Singh v MIBP

[2016] FCA 156

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 156

Appeal from:

Singh v Minister for Immigration and Border Protection & Anor [2015] FCCA 2364

File number:

WAD 561 of 2015

Judge:

NORTH J

Date of judgment:

22 February 2016

Catchwords:

MIGRATION – whether Tribunal erred by failing to have regard to relevant material relating to “compelling circumstances” affecting the interests of an Australian citizen for waiver of visa criterion – consideration of meaning of “compelling circumstances”

Legislation:

Migration Regulations 1994 (Cth) Sch 2 cl 886.225, Sch 4 cll 4020(1), 4020(2), 4020(4)

Cases cited:

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1645

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285

Plaintiff M64/2015 v Minister for Immigration and Border Protection  (2015) 90 ALJR 197

Date of hearing:

22 February 2016

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

26

Counsel for the Appellant:

The Appellant did not appear

Solicitor for the First Respondent:

Mr A Burgess of Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 561 of 2015

BETWEEN:

HARJASPREET SINGH

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	22 FEBRUARY 2016

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders made by Judge Lucev in the Federal Circuit Court on 10 September 2015.  His Honour dismissed an application for review of a decision of the then Migration Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, made on 6 August 2014.  The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, made on 8 August 2013, not to grant the appellant a Skilled (Residence) (Class VB) visa. 

2. The appellant did not appear on the hearing of the appeal.  At the request of the Court, Mr Burgess who appeared on behalf of the first respondent telephoned the appellant twice shortly after the time fixed for the commencement of the hearing of the appeal.  On the second occasion, the appellant answered the phone.  Mr Burgess told him that the appeal was listed for hearing and was to proceed, and that it was possible the Court would dismiss the appeal in his absence.  The appellant indicated that he was aware of that and did not intend to appear. 

3. There is one aspect of the case which makes it desirable for the Court to explain why the appeal should be dismissed. 

4. The appeal concerns the operation of cl 4020 of Sch 4 to the Migration Regulations 1994 (Cth). By virtue of a retrospective amendment…