Singh v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCA 723

Appealed from:  Application for extension of time:  Singh v Minister for Immigration & Border Protection [2018] FCCA 2063
File number: NSD 1789 of 2018
Judge: FLICK J
Date of judgment: 23 May 2019
Catchwords:

ADMINISTRATIVE LAW – onus upon party to adduce evidence – failure of party to attend at hearing – no necessity for Tribunal to make out case for party – no necessity to alert party to deficiencies in the evidence presented

PRACTICE AND PROCEDURE – application for extension of time – proposed grounds expose no error – application dismissed   
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11

Migration Act1958 (Cth) ss 5F, 357A, 360, 362B, 362C

Federal Court Rules2011 (Cth) rr 31.02, 35.14, 35.33, 36.05
Cases cited:

BXD17 v Minister for Immigration and Border Protection [2018] FCA 765

Luu v Renevier (1989) 91 ALR 39

MZWPN v Minister for Immigration and Multicultural Affairs [2006] FCA 807

Patel v Minister for Immigration and Border Protection [2015] FCA 1221

S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283

Secretary, Department of Family and Community Services v Verney [2000] FCA 570, (2000) 60 ALD 737

Singh v Minister for Immigration & Border Protection [2018] FCCA 2063

Sullivan v Department of Transport (1978) 1 ALD 383

SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281

SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867

Williams v Minister for Immigration and Border Protection [2014] FCA 674, (2014) 226 FCR 112
Date of hearing: 11 February 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 30
Counsel for the Applicant: The Applicant did not appear
Counsel for the First Respondent: Mr D Hughes
Solicitor for the First Respondent: MinterEllison
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1789 of 2018
BETWEEN:

MANJINDER SINGH

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

23 MAY 2019

THE COURT ORDERS THAT:

1.The oral application for dismissal of the proceeding pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) is rejected.

2.The Application for an extension of time is refused.

3.The proceeding is dismissed.

4.The Applicant is to pay the costs of the First Respondent, either as assessed or agreed.

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


REASONS FOR JUDGMENT

FLICK J:

  1. The Applicant in the present proceeding, Mr Manjinder Singh, is a citizen of India.

  2. In February 2015, a delegate of the Minister for Immigration and Border Protection refused to grant Mr Singh a Partner visa under the Migration Act1958 (Cth) (the “Migration Act”).  The delegate was not satisfied that Mr Singh and his sponsor, Ms Jennifer Bamford, were in…

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Details
Case
[2019] FCA 723
Decision Date

CaseChat Overview and Summary

The case of Singh v Minister for Home Affairs involved Mr Singh, who had applied for a review of a decision made by the Minister for Home Affairs. Mr Singh failed to attend his hearing, leading to the Tribunal dismissing his application. Mr Singh subsequently sought to have his application reinstated and appealed the Tribunal’s decision to the Federal Circuit Court. The court was required to determine whether the Tribunal had correctly exercised its discretion under section 362B of the Migration Act in dismissing the application and whether the court should grant an extension of time for Mr Singh to lodge an appeal.

The court considered that the absence of merit in Mr Singh’s proposed appeal was the primary reason for the failure of his application. The court held that the Tribunal was not required to make out a case for Mr Singh or to alert him to deficiencies in the evidence he presented. The court further determined that the application for an extension of time was without merit, as the proposed grounds did not expose any error. Consequently, the court dismissed Mr Singh's application for an extension of time and the proceeding itself.

The court rejected the oral application for dismissal of the proceeding pursuant to rule 35.33 of the Federal Court Rules 2011 (Cth). The application for an extension of time was refused, and the proceeding was dismissed. The court ordered that Mr Singh pay the costs of the First Respondent, either as assessed or agreed.

Orders

Orders of the court

1. The oral application for dismissal of the proceeding pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) is rejected.

2. The Application for an extension of time is refused.

3. The proceeding is dismissed.

4. The Applicant is to pay the costs of the First Respondent, either as assessed or agreed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Of relevance to both the exercise of the discretion conferred by r 35.33 and the discretion to extend time are the merits of the proposed appeal. It is the absence of merit which dooms Mr Singh’s application to failure. The preferable course, however, is not to dismiss the proceeding for want of attendance but to proceed to consider the application for an extension of time in his absence. The resolution of that application may provide some assurance to Mr Singh that his proceeding has been resolved by reference to such merits as the application may have rather than simply because he failed to appear: cf. SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [9] to [10] per Flick J. Cited in: Patel v Minister for Immigration and Border Protection [2015] FCA 1221 at [5] per Edelman J.Section 362B, the Tribunal decision & the Federal Circuit Court Section 362B of the Migration Act provides in part as follows: Failure of applicant to appear before TribunalScope(1) This section applies if the applicant:(a) is invited under section 360 to appear before the Tribunal; but(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.Tribunal may make a decision on the review or dismiss proceedings(1A) The Tribunal may:(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.Reinstatement of application or confirmation of dismissal (1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:(a)if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or(b)confirm the decision to dismiss the application, by written statement under section 368.…(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.(notes omitted)In relation to matters that come before it, the Tribunal is relevantly required to “act in a way that is fair and just”: s 357A(3) of the Migration Act. Section 360(1) then provides that, subject to the section itself, the Tribunal “must invite the applicant to appear … to give evidence and present arguments relating to the issues arising in relation to the decision under review”. In refusing to reinstate the application which had been dismissed in March 2016, the Tribunal in its reasons for decision in April 2016 set forth the fact that Mr Singh had applied for review of the delegate’s decision and that his proceeding had been previously dismissed and continued on as follows:4.The review applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.5.The applicant wrote to the Tribunal on 31 March 2016 stating that he was ill on the day of the hearing, which was scheduled a day after his return from India. The Tribunal notes that the hearing was postponed at the applicant’s request and having regard to his travel plans. The applicant presented to the Tribunal a medical certificate from Berala Medical Clinic. The Tribunal has had regard to that evidence but considers it inadequate to explain the applicant’s non-appearance. The medical certificate is dated 21 March 2016 and refers to the applicant receiving ‘medical treatment’ (the nature of which is unspecified) and being unfit to continue his usual occupation / study. There is nothing in that document indicating the applicant was unfit to appear before the Tribunal and give evidence. The Tribunal hearing does not require the applicant to engage in his usual occupation or study.6.The Tribunal is also mindful that the applicant made no effort to contact the Tribunal on the day of the hearing, or for ten days subsequent to the hearing, to advise that he was ill. In the Tribunal’s view, if the applicant planned to participate in the hearing but was genuinely ill and unable to due to his illness, he would have made contact the Tribunal, and could have easily done so by phone or email, to advise of his illness. His failure to do so may suggest that the applicant’s reference to his illness is a more recent invention. 7.The Tribunal does not consider that the evidence presented by the applicant adequately explains his non-appearance because it does not indicate that the applicant was incapable of participating in the hearing.8.The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.On its face, this decision of the Tribunal in April 2016 seems to be an unexceptional exercise of its power conferred by s 362B(1C)(b). Although there may be some uncertainty as to the date of the notice provided with respect to the March 2016 decision, the notice required by s 362C was in fact given.

Ratio Decidendi

Legal Principle Established

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