FEDERAL COURT OF AUSTRALIA

Sandhu v Minister for Immigration and Border Protection (No 2) [2015] FCA 1429

THE COURT ORDERS THAT:

1.    The applicant’s application dated 1 December 2015 be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to that application.

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

(Revised from transcript)

REASONS FOR JUDGMENT

1    On 25 November 2015, the Court ordered that an application for leave to appeal, which had been filed earlier by Mr Pritpal Singh Sandhu, be dismissed for non-appearance pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) and that Mr Sandhu pay the first respondent’s costs.

2    The circumstances in which this order was made were set out in reasons for judgment delivered that day: see Sandhu v Minister for Immigration and Border Protection [2015] FCA 1321 (Sandhu No 1). In those reasons, the Court stated at [2]-[4]:

The applicant did not appear in court when the application for leave to appeal was called on for hearing. He has not filed any written submissions prior to today’s hearing.

The applicant was informed of the hearing date, time and place by emails and letters sent to the addresses that he had provided to the Court. The hearing date was confirmed on at least two occasions by correspondence sent to his email address. It is sufficient to refer to a letter sent by the Court on 1 October 2015 headed “Important Information about your Application Hearing” which notified the applicant of the time, date and place of the hearing today and to a letter sent by Mr V Murano, a lawyer acting for the Minister, dated 10 September 2015, sent by post and email to the applicant, explaining to him the need to appear at court hearings, the possible consequences if he did not appear, and his responsibility to keep up to date with what might happen in relation to his matter by keeping in contact with the Court.

I am confirmed in my view that the applicant was well aware of the hearing date and place by the fact that there was a telephone conversation between the applicant and a member of Chambers staff on 16 November 2015, some days ago, in which the applicant confirmed that he was aware that the hearing was listed for today, 25 November 2015, and that he understood that it was important that he attend. Unsuccessful attempts have been made today to contact the applicant on his mobile phone and to locate him in the surrounds of the Court.

3    Mr Sandhu has since filed another application dated 1 December 2015 in which he states:

    I want to accept my application.

    I want to reopen my student visa file.

    I want to court orders that I will not pay any costs to Immigrations.

4    Mr Sandhu’s application was accompanied by an affidavit, in which he deposed that he “could not attend court date 25.11.15 because of my medical situation. I was sick and unhealthy”. A pro forma medical certificate, stamped “Dr Maghu Ramachadran Provider No 4544691W, MyClinic Tarneit, 412 Derrimut Rd, Tarneit 3029, Ph: 87422088 …”, was attached to this affidavit. The certificate was headed “Derrimut Road Health Clinic”. It relevantly read:

“This is to Certify that Pritpal Sandhu is suffering from a Medical condition”.

5    Under these words there appears to be the word “Unwell”, although the handwriting is difficult to read. Beneath this, the words “and is/was unfit for work / school” appear, and “unfit for work” and “school” are circled. Someone has written in a further option “/Court”, which is also circled. The certificate is said to apply “from 24.11.15 to 25.11.15 inclusive”. The certificate apparently bears a signature or initials, although precisely what they represent is impossible to discern.

6    Mr Sandhu did not attend the hearing today to support his application, but rather he called Chambers staff shortly before the hearing was scheduled to begin to say that he was again unwell and that he had a medical certificate to this effect. Chambers staff informed him that he should nonetheless attend the hearing and that the hearing might well proceed. When the matter was called on, however, Mr Sandhu was not present. Chambers staff subsequently called his mobile phone, but there was no answer. The hearing adjourned for a period to allow Mr Sandhu time to attend court if he had acted on the advice of Chambers staff.

7    Mr Sandhu was not present when the hearing resumed. The matter was called outside the courtroom, but no appearance by Mr Sandhu was announced.

8    The first respondent appeared by his legal representative, and applied to have Mr Sandhu’s interlocutory application dismissed.

9    The Minister’s representative referred me to provisions of the Federal Court Rules 2011 (Cth) (the Rules), including rr 35.33 and 5.23. In Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 (Lal), White J was satisfied that the Court had power to proceed to hear and determine an application of the same kind as Mr Sandhu’s application, albeit in the absence of the applicant, pursuant to rr 17.04 and/or 35.32 or the inherent power of the Court: see Lal at [4]-[5].

10    I am satisfied that the Court has power to hear and determine Mr Sandhu’s application dated 1 December 2015, in Mr Sandhu’s absence, under one or more of the provisions of the Rules referred to in [9] above and/or the Court’s inherent power.

11    Further, I consider that it is proper to do so, in the circumstances of this case and bearing in mind the history of the matter. Mr Sandhu did not contact Chambers until just before the scheduled hearing. It is apparent that Mr Sandhu knows that his application was listed for hearing today and that he had not been granted an adjournment, if that is what he sought. Although he claims to have another medical certificate, he has not in fact provided any evidence to the court about the nature of his asserted illness. As stated below, Mr Sandhu has chosen not to appear at hearings in this and the Circuit Court on more than one occasion.

Consideration

12    Rule 35.33(2) of the Rules provides that, if a hearing proceeds in a party’s absence and an order is made at the conclusion of the hearing, the party who was absent may apply to the Court for an order setting aside or varying that order. Rule 39.05 provides that the Court may vary or set aside a judgment or order after it was entered in certain circumstances, including where it was made in a party’s absence. Mr Sandhu’s December application invoked both these rules.

13    In exercising its discretion to set aside an order in circumstances such as the present, the Court will ordinarily consider whether the absent party has provided an acceptable explanation for his or her absence and the strength of his or her case: SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCA 1106 per Farrell J at [3]; Singh v Minister for Immigration and Border Protection [2015] FCA 223 per Perry J at [7], citing Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 1573; 115 FCR 197 at 199 [11] per Katz J (Branson and Mansfield JJ agreeing).

14    Mr Sandhu’s explanation for his failure to attend on the last occasion (25 November 2015) is unsatisfactory. As indicated in the passages set out at [2] above, he was well aware of the previous hearing date of 25 November 2015 because he confirmed the fact when he spoke with Chambers staff some days earlier, on 16 November 2015. The certificate on which Mr Sandhu now relies indicates that it was obtained the day before the hearing and yet Mr Sandhu did not contact the Court by email, phone or otherwise to advise the Court that he was unwell and did not wish to attend, on either 24 November 2015 or on the day of the hearing. Court staff sought to contact him on his mobile phone on 25 November 2015 when he did not attend court on the hearing day, but this was to no avail. There is no suggestion in any of the material before the Court that Mr Sandhu was unable to call or email prior to the hearing. As noted, Mr Sandhu did not attend the hearing today to explain why he did not contact the Court on 24 or 25 November to inform staff of his inability to attend on 25 November or to present his case.

15    Further, the medical certificate is on its face inadequate to explain Mr Sandhu’s absence at the hearing on 25 November 2015. It does not state, even in a general way, the medical condition said to have made him “unwell” and unfit for work or a court attendance. There is no evidence at all that indicates in what way an unnamed medical condition prevented Mr Sandhu from attending court on 25 November 2015.

16    Further, as indicated in Sandhu No 1, I would have refused the application for leave to appeal the judgment of the Federal Circuit Court on the merits had it been necessary to do so and had no other consideration been brought to my attention further to that which then appeared on the Court file. My reasons for this assessment are set out in Sandhu No 1 at [8]-[34]. I refer to them here, without repeating them. For the reasons set out, it appears to me unlikely that the applicant would be able to show that the discretion exercised by the Federal Circuit Court miscarried in such a way as to justify this Court’s interference on appeal. There was nothing to support the proposition that the decision of the Circuit Court was attended by sufficient doubt to warrant its reconsideration, so that Mr Sandhu would not have satisfied the first limb of the test in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Nor, as explained in Sandhu No 1, does it appear that he could satisfy the second limb of that test.

17    Since delivering judgment and reasons on 25 November 2015, no other matter has been brought to my attention that would lead me to take a different view of Mr Sandhu’s case and the merits of his application for leave to appeal. Mr Sandhu has not shown that he has, or had, anything in the nature of a reasonably arguable case.

18    For the reasons stated, I am not persuaded that I should vary or set aside my earlier orders of 25 November 2015. Accordingly, Mr Sandhu’s application dated 1 December 2015 should be dismissed.

19    The Minister has been required, by his legal representative, to attend Court today and the Minister’s legal representative, Ms Mitchell, has indicated (by her response prior to me concluding my oral statement of reasons for judgment today) that she applies for costs. The Minister should have an award of costs. There is no reason shown to depart from the usual rule regarding the disposition of costs.

20    I observe that this is not the first time that Mr Sandhu has failed to appear at a court hearing. The application, which was dismissed on 25 November 2015, was an application for leave to appeal from orders of the Federal Circuit Court, dismissing, in substance, an application for reinstatement of a judicial review application. As noted in Sandhu No 1, a Federal Circuit Court Registrar dismissed that judicial review application because Mr Sandhu failed to appear at a hearing relating to it and Mr Sandhu subsequently failed to satisfy the Federal Circuit Court Judge that there was a reasonable explanation for his absence from that hearing. In these circumstances, Mr Sandhu must have been well aware by 25 November 2015 of the importance of attending a court hearing relating to an application made by him and if he was not able to attend, advising the court, with proper evidence and in a timely way of any impediment to his attendance before the relevant hearing occurred. He has failed again today to attend the hearing of his own application, without offering any satisfactory explanation supported by evidence. His conduct is indicative of someone who has failed to have any proper regard to his obligations as a litigant in this Court or in the Circuit Court.

Associate:

Dated:    14 December 2015