Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 94

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal be dismissed with costs.

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

REASONS FOR JUDGMENT (Ex tempore, revised from transcript)

WHEELAHAN J:

1    The appellant is a citizen of India who appeals a decision of the Federal Circuit and Family Court of Australia (Division 2) made on 21 April 2022. The Court below dismissed an application by the appellant for judicial review of a decision of the Administrative Appeals Tribunal.

2    The underlying subject matter of the appellant’s claim was that he arrived in Australia in June 2014 as the holder of a student visa which was valid until 30 August 2017. On 30 August 2017, the appellant applied for a Student (Temporary) (Class 2U) (Subclass 500) visa. On 30 October 2017, a delegate of the Minister refused to grant the visa on the ground that the delegate was not satisfied that the appellant genuinely intended to stay in Australia temporarily. The primary judge held that the appellant was notified of this decision when the decision was sent by email to the appellant’s representative on 30 October 2017.

3    The appellant then sought review of the delegate’s decision by the Administrative Appeals Tribunal. His review application was lodged with the Tribunal on 21 November 2017, which the primary judge held was outside the 21 day period prescribed by reg 4.10(1)(a) of the Migration Regulations 1994 (Cth). The Tribunal determined that it therefore had no jurisdiction to review the delegate’s decision: see Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15.

4    The appellant then sought judicial review of the Tribunal’s decision that it lacked jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth). The appellant was unrepresented before the primary judge. In a lucid and detailed decision, His Honour Judge Kendall considered all potential grounds of judicial review on the ground of jurisdictional error that were raised by the appellant’s grounds of review and rejected them. Accordingly, his Honour dismissed the appellant’s application for judicial review.

5    On 13 May 2022, the appellant filed a notice of appeal in this Court challenging the primary judge’s decision to dismiss his application for judicial review. The Minister contested the appeal, and the Tribunal filed a submitting notice.

6    On 13 September 2022, I made comprehensive orders so that the appeal would be ready for hearing. Those orders included a requirement that the appellant file and serve an outline of submissions, not exceeding 15 pages, by 4.00 pm on 5 December 2022. On 14 December 2022, I ordered that the appeal be listed for hearing today, at 10.15 am. I am satisfied that a copy of the order and notice of the hearing was sent to the appellant at the email address identified on his notice of appeal by email from my chambers dated 15 December 2022, which also referred to the hearing date.

7    The appellant remains unrepresented, and did not file an outline of submissions, as I had ordered. The Minister filed an outline of submissions on 20 December 2022, submitting that the appeal was without merit. The solicitors for the Minister served those submissions together with a list of authorities on the appellant by email dated 20 December 2022 to the same email address identified in the notice of appeal. That email also noted the hearing date as 14 February 2023.

8    On 17 January 2023, the appellant sent an email to my chambers stating –

I want to say that I would like to take my appeal back and take it off the listing please.

9    That email was sent from the appellant’s email address identified in the notice of appeal.

10    My chambers responded on 17 January 2023 advising the appellant that if he wished to discontinue the proceeding he should either file a notice of discontinuance, or with the respondents’ consent, email proposed draft consent orders dismissing the proceeding. By further emails sent to the appellant on 3 February 2023 from my chambers, the appellant’s attention was drawn to the form applicable to a notice of discontinuance for the purposes of r 36.73 of the Federal Court Rules 2011. The appellant did not respond to any of these emails from my chambers, and no notice of discontinuance has been filed.

11    On 31 January 2023, a paralegal employed by the Minister’s solicitors telephoned the appellant on two occasions. The first call was not answered. The appellant answered the second call, which was at 3.04 pm. The paralegal identified himself as calling from the Minister’s solicitors and asked if he was speaking to Mr Singh, which the appellant confirmed. The paralegal told the appellant that he was calling regarding the migration proceedings in the Federal Court, noting that the solicitors had received an email from the appellant suggesting that he wished to withdraw his appeal. The appellant confirmed this to the paralegal but said that he “had a second thought”. The appellant told the paralegal that he wished to proceed with the appeal, which the paralegal acknowledged before terminating the call.

12    When the appeal was called on for hearing today, there was no appearance for the appellant. Counsel for the Minister applied pursuant to r 36.75(1)(a)(i) for an order that the appeal be dismissed. Whatever position the appellant expressed on 31 January 2023 when he was telephoned by the Minister’s solicitors, I am satisfied that the appellant no longer wishes to pursue his appeal. Therefore, it is appropriate that the appeal be dismissed pursuant to r 36.75.

13    I will order that the appeal be dismissed with costs.

Associate:

Dated:    14 February 2023