SINGH v Minister for Home Affairs

[2019] FCCA 2993

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2993

Catchwords:
MIGRATION – Application for transfer of proceedings to Melbourne Registry of the Court – no good reason demonstrated for making order to transfer proceedings – delay in hearing of cases in Melbourne registry of the court – application dismissed.

Applicant: GURJIT SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 166 of 2019

Judgment of: Judge Egan

Hearing date: 16 October 2019

Date of Last Submission: 16 October 2019

Delivered at: Brisbane

Delivered on: 16 October 2019

REPRESENTATION

Applicant: In-person

Solicitor for the Respondent: Mr J. Kyranis of Sparke Helmore

ORDERS

1. The applicant’s application in a case filed on 17 September 2019 be dismissed.

2. The costs of and incidental to the application in a case be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 166 of 2019

GURJIT SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant seeks orders:

   (1)That the hearing date of 30 October 2019 be vacated.

   (2)That the matter be transferred to the Melbourne registry of the Federal Circuit Court.

2. The applicant is a citizen of India who is 23 years old. 

3. He arrived in Australia in January 2014 on a Subclass 573 Higher Education Sector student visa.  In July 2014 the education provider cancelled the applicant’s enrolment due to non-commencement of studies.  On 14 March 2017 the applicant applied for a class TU student visa.  That visa application was refused on the basis that there was insufficient evidence to demonstrate that the applicant was a genuine temporary entrant. On 11 February 2019 the tribunal affirmed the decision of the delegate. On 20 February 2019 the applicant filed an application for review of the decision of the tribunal.

4. The application for transfer of venue was filed on 17 September 2019, some seven months after the Originating Application for Review was filed.  The reasons why the applicant seeks the transfer of the matter for hearing to Melbourne are as set out in his affidavit filed on 17 September 2019.  Relevantly, paragraphs 4 – 10 and 15 – 22 inclusive of that affidavit are as follows:

   4. The basis for the application is that:

   a) I have moved to Melbourne and am no longer residing in Queensland

   b) I wish to be legally represented and I cannot afford a lawyer at present;

   c) The adjournment and transfer of the case to Melbourne will not cause any prejudice to the Minister or lawyers representing the Minister.

   5. At the time of lodging my appeal of the original decision of the Administrative Appeals Tribunal, I was a resident of the State of Queensland. I was residing in Port Douglas.

   6. I moved to Melbourne towards the end of August.

   7. I was highly isolated in Port Douglas. I did not have any family support or a friendship circle I could rely upon. I was feeling very low and depressed.

   8. I moved to Melbourne to be closer to family and for the dire need of support. I have several cousins in Melbourne and made the decision to shift there to lift the dark cloud over my head and to have some emotional support.

   9. Another factor that caused me to moved to Melbourne was also the fact that it was much cheaper than living in Port Douglas. I could not afford to live there any longer.

   10. Since moving to Melbourne, I have not been working and am in the process of seeking employment.

   …

   15. There are also no lawyers to assist me with my matter in Port Douglas and the nearest place to see lawyers was in Brisbane. The cost of flying to Brisbane was mounting and time consuming and I found that the lawyers in Brisbane could not assist me as we had communication problems. There was no one that could speak Punjabi.

   16. My migration agent is also based in Melbourne and through him I have been able to seek the assistance of a lawyer to help me with my matter.

   17. I have had a meeting with Counsel, J. J. Jassar and he has outlines an estimate of costs to prepare and run the case.

   18. I cannot afford his fees at present and would need to make payments in instalments to his Clerk’s trust account. I would not be able to make full payment of the fees prior to 30 October 2019. I have been told by Counsel and verily believe that he will not undertake any work prior to full payment of the fees.

   19. I have also been informed by Mr Jassar and verily believe that he is not available on 30 October 2019.

   20. I do need a lawyer to review the grounds of my case and I verily believe that there are genuine grounds for an appeal. However at present, I do not have the availability of funds to afford such assistance. Mr Jassar speaks Punjabi and conduct judicial review hearings and can assist me more readily than any other lawyers and I need to retain him for my matter.

   21. With representation, I may be able to have a full and proper judicial review of the decision of the AAT.

   22. I verily believe that the adjournment and transfer of the matter to the Melbourne Registry will not prejudice the Minister:

   i) I have been in Australia since 2014.

   ii) I am a law-abiding person and I have never committed any crimes and am not involved in any unlawful activities.

   iii) I do not pose a danger or risk to society at large.

   iv) I still have a valid visa to be in Australia and am not an ‘over-stayer’.

   v) I have contributed to the economy by paying for my studies and assisted in keeping an industry afloat.

   vi) I have worked and paid taxes and that contributes to the Government’s coffers.

   vii) Sparke Helmore Lawyers for the Minister are a nationwide firm and have offices in Melbourne that conduct matters relating to Government Administrative Law. They have a team of lawyers in Melbourne.

5. The first respondent opposes each of the applications made by the applicant for the following reasons:

   i)There has been unexplained delay on the part of the applicant in the filing of the application for transfer.  The first respondent submitted that the applicant had filed the originating application some seven months before the filing of the application for a transfer.

   ii)There is no evidence as to when the applicant might have sufficient money to enable him to brief any counsel who might be able to appear on his behalf.  The first respondent submitted that if the matter was transferred on such ground, then that would constitute, in effect, a basis for finding that there could be at least a very long period of adjournment for the hearing of the matter.

   iii)It was submitted by Mr Kyranis on behalf of the first respondent that it is well known that the Melbourne registry of the Federal Circuit Court has a huge backlog of migration cases listed for hearing.  It was pointed out by Mr Kyranis, and it is accepted by the Court, that if this matter was to be adjourned, then it would, in the ordinary course of events, not be heard for at least a year to 1.5 years down the track.  The Court infers that such submission was made in support of the proposition that for good public policy reasons the application should not be granted.

   iv)The first respondent submitted that the unavailability of one specific counsel is not a good or sufficient reason for the court considering an adjournment of the hearing in circumstances where the applicant has had much time to properly arrange his affairs so as to engage legal assistance if he has required it. 

   v)The first respondent submitted that the applicant could appear by video link from a court in Melbourne if he was living in Melbourne. 

6. The court accepts as valid each of the reasons advanced by the first respondent for refusal of the application.  In those circumstances, there is no merit to the application in a case as filed on behalf of the applicant. 

7. The application is dismissed. The costs of and incidental to the application in a case filed on behalf of the applicant are reserved.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  23 October 2019