FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 188

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 18 December 2013 Parbinder Kaur filed a notice of appeal from the Federal Circuit Court complaining of the court’s decision to dismiss her application in her absence. The Minister, who is named as the first respondent, objects to the competency of the appeal. The objection is well-founded and the appeal must be dismissed on that ground.

2    In the court below Ms Kaur sought judicial review of a decision of the Migration Review Tribunal. The Tribunal affirmed a decision of the Minister’s delegate to refuse to grant her a Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The application was listed for final hearing at 2.15 pm on 5 December 2013. Ms Kaur failed to appear when the matter was called. On the application of the Minister the primary judge dismissed the application under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”), which gives the court the power to do so if the applicant is absent from the hearing.

3    An order made under r 13.03C(1)(c) is interlocutory: Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4], citing Dai v Michael Roberts Strata Management Services Ltd [2000] FCA 680 at [4]–[7] (Beaumont, Whitlam and Lehane JJ); NAOU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 406 at [4] (Spender, Ryan and Whitlam JJ). No appeal may be brought against an interlocutory order without the leave of this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A).

4    Ms Kaur did not apply for leave. Had she done so, I would have refused her application.

5    First, I am not satisfied that the primary judge’s decision is attended with sufficient doubt to warrant it being reconsidered. In his reasons for judgment his Honour said that he had caused his associate to telephone Ms Kaur at 2.25 pm on the day of the hearing. He said he was informed that Ms Kaur claimed to have been unwell and to have faxed a medical certificate and a letter to the registry. He said that she also claimed to have spoken to someone in the Court. But after causing inquiries to be made of the registry, his Honour said that no officer on fax duty at the time could recall receiving a medical certificate and there was nothing in the file to support Ms Kaur’s account. In the circumstances, his Honour said there was nothing before the Court to allow him to do anything other than to accede to the Minister’s application. There is no doubt that this course was available to him. He was not bound to accede to the application, but there was no good reason why he should not have done so. No application to adjourn the proceeding had been made and there was no evidence to support any adjournment application. His Honour’s decision was a discretionary one. To disturb it on appeal it would be necessary for Ms Kaur to show that in exercising the discretion to dismiss the proceedings for Ms Kaur’s failure to appear, his Honour made an error of the kind referred to in House v The King (1936) 55 CLR 499. None of the grounds in the notice of appeal suggests that there was any such error.

6    Nor am I satisfied that substantial injustice would result if leave were refused and the decision were wrong. An order made in the absence of a party may be set aside – even after it has been entered: FCCR r 16.05. In these circumstances, as Young J said in MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9], the appropriate course is for Ms Kaur to apply to the court below to have the judgment set aside. This course remains open to her.

7    It follows that the objection to the competency of the appeal is well made and the appeal must be dismissed on this ground. The general principle is that costs follow the event. There is no reason to depart from the principle in this case.

8    The orders of the Court will therefore be:

(1)    The appeal be dismissed as incompetent;

(2)    The appellant pay the first respondent’s costs.

Associate:

Dated:    7 March 2014