Singh v Migration Review Tribunal

[2014] FCA 763

FEDERAL COURT OF AUSTRALIA

Singh v Migration Review Tribunal [2014] FCA 763

Citation:	Singh v Migration Review Tribunal [2014] FCA 763
Parties:	VARINDER SINGH v MIGRATION REVIEW TRIBUNAL and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
File number:	WAD 110 of 2014
Judge:	BARKER J
Date of judgment:	6 June 2014
Catchwords:	MIGRATION – application for judicial review of decision to refuse to grant Student (Temporary) (Class TU) visa – where judicial review application should have been commenced in Federal Circuit Court of Australia – where judicial review application made out of time – where applicant did not involve himself in hearing before Migration Review Tribunal or attend hearing in Federal Court of Australia
Legislation:	Migration Act 1958 (Cth) s 476
Date of hearing:	6 June 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	The applicant did not appear
Counsel for the Second Respondent:	Mr A Gerrard
Solicitor for the Second Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 110 of 2014

BETWEEN:

VARINDER SINGH
Applicant

AND:

MIGRATION REVIEW TRIBUNAL
First Respondent

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	6 JUNE 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant’s application for judicial review filed on 6 May 2014 be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 110 of 2014

BETWEEN:

VARINDER SINGH
Applicant

AND:

MIGRATION REVIEW TRIBUNAL
First Respondent

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:	BARKER J
DATE:	6 JUNE 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 6 June 2014, I made an order that the application for judicial review filed by the applicant, Mr Singh, be dismissed.  I gave ex tempore reasons for this decision, which I now publish in an edited form.

2. Before the Court is an originating application for review of a migration decision.  It is made by Varinder Singh.  Mr Singh names the respondents as the Migration Review Tribunal and Department of Immigration and Citizenship.  It may be understood that he intends to name those parties as the Tribunal and the Minister of Immigration and Citizenship, but there are a number of difficulties with this application.

3. The first, perhaps, in all the circumstances, most fundamental is that this Court would not seem to have any jurisdiction to deal with an application for review of this type. In fact, as provided in s 476 of the Migration Act1958 (Cth), it should go to the Federal Circuit Court of Australia. There is, as has been pointed out by counsel for the Minister who has appeared on short notice today, another problem in that the application was made out of time and there is no application to extend the time.

4. There is a further, third, serious problem with this proceeding in any event, and it is this: that the decision that Mr Singh purports to have reviewed is one in which he did not involve himself.  By that, I mean that after a decision adverse to his interests was made by the Minister’s delegate and he sought review of it on its merits in the Migration Review Tribunal, all of which was done by a migration agent acting on his behalf, Mr Singh elected not to attend the hearing in the Tribunal and the migration agent apparently telephoned the Tribunal to advise that Mr Singh would not be attending that hearing, to which he had been invited, and that the Tribunal should determine the matter on the papers.  That was done. 

5. There was a question previously raised by the delegate as to the apparently fraudulent nature of materials concerning a bank account in India and Mr Singh had been requested to respond to the allegation.  He chose not to, and there was no indication that he ever has done so.  It is very difficult to imagine in all circumstances how the application could possibly succeed on its merits.

6. And finally, Mr Singh, having chosen the wrong court, having not sought to extend the time for seeking to have a review in any event, and never having put on any materials dealing with this primary factual issue, has also chosen not to attend this Court today.  In all of those circumstances the application, being the originating application for review of a migration decision filed 6 May 2014, is dismissed.  There will be no order for costs as the Minister does not press for such an order.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:       23 July 2014