Singh v Minister for Home Affairs

[2018] FCCA 1088

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1088

Catchwords:
MIGRATION – Review of a registrar’s decision – no merit’s to application – application for review dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: GURJIT SINGH

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 99 of 2018

Judgment of: Judge Vasta

Hearing date: 12 March 2018

Date of Last Submission: 12 March 2018

Delivered at: Brisbane

Delivered on: 12 March 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application for a review of a Registrar’s decision be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 99 of 2018

GURJIT SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 2 February 2018, the Applicant, Gurjit Singh, asked this Court to review a decision of the Administrative Appeals Tribunal that was made on 8 January 2018. 

2. The matter was given a first Court listing of 28 February 2018. As the practice in Brisbane is that all first Court dates are dealt with by Registrars and then the Registrar assigns those matters to judges, the Registrar called this matter on for mention at about 2 o’clock on 28 February 2018. The Applicant did not attend. His name was called and there was no response.

3. There were no messages left with the Court service. There had been no other communications between the Applicant and any other Court personnel.

4. Because of that non-appearance, the Registrar dismissed the application.

5. The Applicant has brought an application to me to review the decision of the Registrar. In doing so, I have to look at whether the Registrar has acted in the exercise of his powers and have a look at the matter, as it were, de novo.

6. The application by the Applicant read that he arrived at 11 am and was told that his matter was not on until 2 pm and for him to return. He said that in the meantime, he went to the Immigration Department and was there far too long and came back half an hour late. That is the sum total of the application.

7. He filed an affidavit in support of his application, but that affidavit did not disclose any material, other than to say “this is an affidavit in support of the application”. 

8. The Applicant appeared before me and I asked him who it was that spoke to him at 11 o’clock and told him to come back at 2 o’clock so that we could ascertain the veracity of the fact that he had attended.

9. I asked the Applicant to tell me who it was that he was talking to at the Immigration Department, so that we could ascertain that he actually was at the Immigration Department at 2 pm, when the matter was called on.

10. He could not assist me. 

11. There was absolutely nothing that would, in any way, show that he was at the Immigration Department at that time. He has, in his submissions, simply apologised and asked me to give him “another go”.

12. On that evidence, it would seem that there is nothing that would cause me to decide that the Registrar had exercised their powers in any way that would be in conflict with what the duties of the Registrar are.

13. I do note, as Ms McConnell for the Minister has said, that this is not an application for reinstatement. This is an application for review of the Registrar’s decision. In those circumstances, I cannot see that the Registrar has made any wrong decision. Upon all of the material before me, there is no valid excuse as to why the Applicant was not here at 2 pm on 28 February 2018 and there is no material before me to suggest then that the Registrar has, in any way, misused or exercised his discretion in any incorrect way.

14. Therefore, I would dismiss the application. 

15. I note Ms McConnell says that that is all I need to do. However, if there is the chance that I am somewhat incorrect in the view that I have taken and that I could look at the matter as a first Court date now, it seems to me that there are no merits to the substantive application whatsoever.

16. The original application was by the Applicant for what is colloquially known as a 457 visa.  To qualify for one of those visas, one must be:

    a)a skilled worker; and

    b)have an approved sponsor or an approved employer at the time of making the application and at the time of the decision by the delegate and/or by the AAT.

17. The Applicant did not have an approved sponsor. 

18. Notwithstanding that he has given a number of excuses as to the business being sold and the persons not having the wherewithal to have done everything that the department had asked, the Applicant was given a choice as to whether to proceed with his application or withdraw his application.

19. He was told that if he withdrew his application he would be in a position to submit another application once the employer had completed everything to apply for sponsorship.  The Applicant chose to proceed with his application. 

20. His application was therefore doomed because there was no sponsor. 

21. Because there was no sponsor, the AAT had no jurisdiction with which to deal with this application and that is what it decided. 

22. The application that this Applicant brought to this Court is simply asking for more time; it is a plea for the Court to feel sorry for him and to give the Applicant “another go” where, in a couple of months, his sponsor may, and I underline the word, “may”, be in a position where they can actually put an application for sponsorship before the department.

23. Clearly, the AAT has made the correct decision upon the evidence that was before it.  There is no jurisdictional error. 

24. This is an application which is totally without merit and the Court should not entertain it further, even if the Court was minded to actually review the Registrar’s decision. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  18 May 2018