Singh v Minister for Home Affairs
[2019] FCA 2006
•25 November 2019
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Home Affairs [2019] FCA 2006
Appeal from: Singh v Minister for Immigration & Anor [2019] FCCA 1623 File number: VID 675 of 2019 Judge: MIDDLETON J Date of judgment: 25 November 2019 Date of publication of reasons: 26 November 2019 Legislation: Migration Act 1958 (Cth) ss 55, 348, 359
Migration Regulations 1994 (Cth) Sch 2, cl 820.221
Cases cited: Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Date of hearing: 25 November 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 18 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr O Young Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 675 of 2019 BETWEEN: JAGDEEP SINGH
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
25 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
On 25 November 2019, I made orders that the application be dismissed with costs because the Applicant did not satisfy the requirements of cl 820.211 in Sch 2 to the Migration Regulations 1994 (Cth) (the ‘Regulations’). These are the reasons for those orders.
INTRODUCTION
In the matter before me, the Applicant appeals from a decision of a judge of the Federal Circuit Court of Australia dated 13 June 2019 and published as Singh v Minister for Immigration & Anor [2019] FCCA 1623. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) to affirm a decision of the delegate of the First Respondent (the ‘Minister’) to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa.
BACKGROUND AND THE DECISION OF THE FEDERAL CIRCUIT COURT
The primary judge summarised the relevant background, procedural history and summarised the Tribunal’s decision at [1]-[17]. His Honour also provided an overview of the criteria for the grant of a partner visa and the principles discussed in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [22]-[27].
The primary judge indicated that he had reviewed all of the relevant materials and made two preliminary observations ([28]-[30]). First, many of the Applicant’s allegations encompassed claims that the Tribunal failed to consider evidence or documents, or failed to afford the Applicant an opportunity to adduce such evidence. His Honour found that such claims must be considered with reference to the history of the matter, including the Applicant’s consistent failure to provide information to the Tribunal. Secondly, his Honour found that the grounds of review were expressed so generally that the Court was left to discern for itself the existence of jurisdictional error.
The primary judge found that ground one provided no particulars and failed to identify the relevant documents that were not considered or a proper basis for contending that the Applicant was not afforded a reasonable opportunity to address the issue of his spousal relationship. His Honour was satisfied the Tribunal complied with its obligations of procedural fairness and rejected this ground (at [31]-[35]).
The primary judge found that ground three was not a proper ground of review and that, as far as the ground alleged either actual or apprehended bias, there was no evidence to support this assertion and no inference of bias of prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons. His Honour rejected ground three ([40]-[43]).
The primary judge observed that ground four was unclear, but appeared to contend that the Tribunal never advised the Applicant of the timeframe in which to submit documents and that he should have been provided with an opportunity to give evidence at hearing. His Honour found that the Tribunal’s invitation to provide information pursuant to s 359(2) of the Migration Act 1958 (Cth) (the ‘Act’) gave a clear date for the provision of the required information, which was then extended at the request of the Applicant’s representative. As the Applicant did not subsequently provide any information, he was no longer entitled to appear before the Tribunal, and the Tribunal had no power to invite him to a hearing. His Honour rejected this ground ([44]-[46]).
The primary judge also found that: ground five was not a proper ground of review, as it merely stated that the Applicant had a right of review ([47]-[48]); ground seven gave no particulars of the purported “administrative error” of the Minister and that the Tribunal conducted the review as required by s 348(1) of the Act ([49)-[50]); ground eight was unclear but appeared to seek impermissible merits review ([51]-[52]); and ground nine appeared to take issue with the Minister’s decision which the Court had no jurisdiction to review ([53]-[54]).
As all nine of the Applicant’s grounds had been rejected, the primary judge dismissed the application for judicial review ([55]).
ISSUES ON APPEAL
On 21 June 2019 the Applicant lodged a draft notice of appeal which, in accordance with the orders of Registrar McCormick dated 12 August 2019, is now taken to be the notice of appeal in this matter. The notice of appeal raised five “grounds” in the form of lengthy submissions.
Grounds 1-3: procedural fairness and failure to consider material
Grounds one to three appear to agitate claims that were comprehensively dealt with by the primary judge and revolve around allegations that the Tribunal either denied the Applicant procedural fairness or failed to consider relevant material ([28]-[54]). The grounds contain vague assertions of error such as, “tribunal did not even consider material” (errors in original) and “tribunal was saying that tribunal did not have material lnfront of tribunal is wrong” (errors in original). These allegations are baseless without particulars of the documents that the Applicant claims were not considered. The substance of these allegations was addressed by the primary judge, who noted at [33] that he was “satisfied that the Tribunal complied with its obligations of procedural fairness” and at [37] that “the Tribunal’s Reasons demonstrate that it considered all such documentation as was before it”.
The Applicant also claims that the primary judge erred by failing to consider Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 84 ALJR 251; 264 ALR 417; 114 ALD 1 (‘Berenguel’), which concerned the provision of IELTS language test results following a visa application and has no relevance to these proceedings.
Ground 4: failure to take grounds into account
Ground four alleges the primary judge failed to take into account and misinterpreted the Applicant’s grounds of review. The Applicant claims that the primary judge should have taken his grounds to allege that the Tribunal failed to comply with its procedural fairness obligations “in granting with extension under the s.359(2) of the Migration act 1958” (errors in original). I am satisfied that the primary judge plainly considered and addressed each of the Applicant’s grounds ([28]-[54]), which grounds, in a similar manner to these proceedings, involved vague and often incomprehensible assertions of error that the primary judge found to be “in many respects unclear or overlapping” ([28]).
A review of the Applicant’s grounds provides no insight as to where this claim was made before the primary judge. In any event, it is unclear how such an assertion could give rise to an arguable case of error, given the Tribunal afforded the Applicant an extension of time to provide information or documentation.
Ground 5: unfairness
Ground five makes a number of vague assertions of error, namely, that the primary judge’s decision was “plainly unfair, unjust and unreasonable”, and cites s 55 of the Act, which has no relevance to the primary judge’s decision. The Applicant particularises this claim by reference to Berenguel which, as noted at [11] of these reasons, is irrelevant to this proceeding.
The Applicant also states that he wishes to seek review of the primary judge’s decision on the basis of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 (‘Li’). Presumably, the Applicant relies on Li as a basis for the allegation of unreasonableness. However, such a claim is plainly unsubstantiated as s 55 had no relevance to the Federal Circuit Court proceedings and was not a necessary consideration for the primary judge.
CONCLUSION
The Applicant’s grounds of the appeal fail to identify any meaningful case of error by the primary judge in dismissing the application for review. In my view, the Tribunal was correct to find that the Applicant could not satisfy cl 820.221 of the Regulations and to affirm the Minister’s decision.
The application should be dismissed with costs for the reasons set out above.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 26 November 2019
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