FEDERAL COURT OF AUSTRALIA

Sahib v Minister for Immigration and Citizenship [2010] FCA 944

THE COURT ORDERS THAT:

1.                  The application for leave to appeal is dismissed.

2(a)    If the applicant files and serves an application to set aside the order of the federal magistrate made on 1 June 2010 by 15 September 2010 then the costs of this application are to follow the event of the application to set aside the federal magistrate’s orders. 

2(b)   If the applicant does not file and serve such an application within the time specified, then the applicant must pay the first respondent’s costs of this application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

BACKGROUND

1                     On 23 October 2008, the applicant applied for a Temporary Business Entry visa.  On 13 March 2009, that application was refused by the delegate of the first respondent and, on 6 April 2009 the applicant applied to the Migration Review Tribunal for review of the refusal.  On 23 December 2009, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa because the applicant did not meet the English language proficiency level required by the Migration Regulations 1994 (Cth). 

2                     The applicant then sought review in the Federal Magistrates Court. The hearing was listed for 1 June 2010.  On that day the applicant did not appear at the hearing.  Rule 13.03(1) of the Federal Magistrates Court Rules provides that:

Default of appearance of a party

(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

    (a) adjourn the hearing to a specific date or generally;

    (b) order that there is not to be any hearing, unless:

(i) the proceeding is again set down for hearing; or

(ii) any other steps that the Court directs are taken;

    (c) if the absent party is an applicant -- dismiss the application;

3                     .  Acting under Rule 13.03(1)(c), the federal magistrate dismissed the application on the basis of non-appearance. 

4                     On 21 June 2010 the applicant then filed a notice of appeal to this Court.  The first respondent filed a notice of objection to competency on the basis that the decision of the federal magistrate was interlocutory in nature and leave to appeal from it is therefore required.  The first respondent also filed written submissions in opposition to the application.

5                     If the present application were treated as an application for leave to appeal, the applicant could not succeed.  The federal magistrate committed no error by dismissing the application in default of appearance by the applicant. Any appeal against that order would be bound to fail.  Consequently, the grant of leave to appeal would be futile.  It is appropriate to dismiss the application on the basis that it is meant to be an application for leave to appeal. The same result would, however, follow if the matter were treated as an appeal.

6                     The applicant explained his reasons for not appearing before the Federal Magistrates Court.  He is entitled in the circumstances of this case to seek to set aside the dismissal of his case by the federal magistrate (see Rule 16.05(2)(a) of the Federal Magistrates Court Rules).  Whether the applicant had a good reason for not attending the hearing would be a relevant matter on an application made under that rule. 

7                     The proper course for the applicant was to apply to the Federal Magistrates Court to set aside the order dismissing his application.  He was alerted to this course by the written submissions of the first respondent which were served on him several days before the hearing. The applicant required the assistance of a Tamil interpreter on the hearing of this application. The applicant’s lack of familiarity with English makes it unlikely that the suggestion made in the submissions of the first respondent was understood by the applicant.

COSTS

8                     An application has been made by the first respondent for the costs of this application.  In support of that application, the first respondent argues that the normal rule that costs follow the event should apply.  The first respondent argued that if the applicant had a ground for setting aside the order of the Federal Magistrates Court, then the appropriate course was for an application to be made to that Court.  The first respondent could do no more than was done by pointing out this option to the applicant in the written submissions. 

9                     Whilst there is much to be said for these arguments, the question of costs is a discretionary one. If an application is made to the Federal Magistrates Court to set aside the order of dismissal, it seems that the applicant will argue that he was prevented from attending through no fault of his own.  It seems likely that he will also argue that he attempted to advise the Court of this fact, but was not successful in doing so.  If that evidence is accepted, then the failure to appear would not have been the fault of the applicant.  Furthermore, it is entirely understandable that he would not understand the appropriate legal avenue for redress.  In those circumstances it would then be unfair for him to have to bear the costs of this application.

10                  Consequently, the order for costs of this application will provide that if the applicant files and serves an application to set aside the order of the federal magistrate by 15 September 2010, then the costs of this application are to follow the event of the application to set aside the federal magistrate’s orders.  If the applicant does not file such an application within the time specified, then the applicant must pay the first respondent’s costs of this application. 

Associate:

Dated:         25 August 2010