Singh v Minister for Immigration
[2018] FCCA 1230
•16 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1230 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – partner (temporary) (Class UK) visa – Applicant filed notice of discontinuance – Applicant seeks reinstatement of application – where Applicant claims he received bad advice – no proper basis for exercise of discretion to reinstate the application – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.01, 44.15. Migration Act 1958 (Cth), ss.360, 362B. |
| Cases cited: CHD16 v Minister for Immigration [2017] FCCA 1679 Chen v Monash University [2016] 244 FCR 424 COB16 & Ors v Minister for Immigration [2018] FCCA 152 |
| Applicant: | JATINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 955 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 16 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 April 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Rebikoff |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application in a case filed 14 December 2017 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2280.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 955 of 2016
| JATINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
On 9 May 2016 the Applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 20 April 2016. By that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (‘the delegate’) to refuse the Applicant’s partner (temporary) (Class UK) (subclass 820) visa (‘the visa’).
The grounds of application were as follows:-
“1. I Jatinder Singh is 26-year-old citizen of India. I applied for the visa on 5 February 2015 on the basis of his relationship with his sponsor, Ms. Jamie-Lee Whelan, a 27-year-old Australian citizen. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. The delegate refused to grant the visa on the basis that the I did not satisfy cl.820.211(2)(d) because the applicant did not meet criterion 3001 and the delegate found that there were no compelling reasons to not apply the relevant Schedule 3 criteria.
3. I was unable to attend hearing due to sickness and have provided an evidence of medical certificate confirming that I was unable to attend hearing. On 12th April I was given adjournment on this matter and I was still unable to further scheduled hearing.
4. Decision was affirmed by tribunal even though Tribunal was aware that I have been in unfortunate situation and been sick and was unable to attend tribunal hearing. Tribunal did not regard to my situation which was beyond my control.
5. I have not been given an opportunity to present my matter before the Tribunal member and I believe new legislation related to Sch. 3 would have helped me to meet Sch. 3 criteria. My partner visa application was lodged when I was not holder of Substantive visa and I was unable to lodge it offshore due to my family commitment. I lodged application in Australia and I was requested to provide a reason why application was not lodged while holder of substantive visa. We provided documents and DIBP was already aware of my situation and was advised of our family problem at the time of work rights application and DIBP even granted me permission to work.
6. DIBP refused to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act)
7. I believe I was not given a fair go when AAT decided on my partner visa application in my absence. I believe ATT did not use all the possible avenues to contact me and was not advised that decision may be made if I don’t attend hearing.
8. I would like to request to Federal Circuit Court to take a close look at the case and would ask for more favorable outcome on this application and set aside Tribunal and DIBP decision. A poor decision from DIBP and ATT has caused me financial setback, stress and anxiety in life.
9. I am requesting to FCC to do me a favor and remit this application back to AAT so that I can have a fair go with this visa application.
10. I shall be submitting further documents to support my visa application in the due course.
(errors in original.)”
As can be observed, many of the grounds stated related to a history of the matter without setting out any ground of judicial review. Other grounds made complaints which were not properly particularised, and other grounds referred to the decision of the delegate which is not reviewable by the Court. Otherwise however, the Applicant appeared to contend, that it was unreasonable for the Tribunal to proceed to make its decision, pursuant to s.362B of the Migration Act 1958 (Cth), without providing the Applicant with a further opportunity to appear before the Tribunal.
Background
The Applicant is a male citizen of India. The Applicant first arrived in Australia as the holder of a subclass 572 student visa on 4 December 2008, that visa ceased on 25 October 2010. He was then granted a second 572 visa which was subsequently cancelled on 22 June 2012. The Applicant did not hold a visa whilst residing in Australia from 23 June 2012 to 19 July 2013. On 19 July 2013 the Applicant applied for a protection visa which was refused. On 5 February 2015 he applied for the visa sponsored by his wife, Ms Jamie-Lee Whelan, an Australian citizen.
On 13 October 2015 the delegate refused to grant the Applicant the visa, finding that the Applicant did not meet the requirements of cl.820.211(2)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Applicant was also refused a partner (residence) (class BS) (subclass 801) visa, the grant of this visa being conditional on holding an 820 visa (with limited exceptions and not applicable to the Applicant’s circumstances).
On 29 October 2015 the Applicant applied to the Tribunal for review of the delegate’s decision in respect of the subclass 820 visa. He was assisted by his authorised representative and recipient at that time. On 1 February 2016 the Tribunal wrote to the Applicant’s representative and authorised recipient inviting the Applicant to appear before it to give evidence and present arguments in relation to the issues on review. The scheduled hearing date was 13 April 2016. The Applicant was advised that the Tribunal would consider whether he met the timeframe requirements in Schedule 3 to the Regulations for lodgement of the visa application and, if not, whether there were “compelling reasons” not to apply those requirements. He was requested to provide any additional material that he wished to rely on at the hearing by 6 April 2016.
On 12 April 2016 the Applicant’s authorised recipient requested that the hearing be adjourned and provided a medical certificate stating that the Applicant was unfit for work from 11 April 2016 to 14 April 2016 inclusive.
On 13 April 2016 the Tribunal informed the Applicant by email to the nominated address of his authorised recipient that the hearing would be rescheduled as requested to 19 April 2016. The Applicant was advised that if he did not attend the hearing the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear or that it may dismiss the application for review without any further consideration. The Tribunal also sent SMS reminders of the rescheduled hearing to the Applicant’s mobile phone number on 18 April 2016. The Applicant did not attend the hearing. On 20 April 2016 the Tribunal affirmed the delegate’s decision.
The Tribunal Decision
The Tribunal determined to make its decision on the review without taking any further action to enable the Applicant to appear before it, pursuant to s.362B of the Act.
Section 362B of the Act provides that:-
“362B Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.”
The Tribunal noted that a copy of the decision record of the delegate had been submitted to the Tribunal by the Applicant for the purposes of the review.
The Tribunal noted, correctly, that the issue for it was whether the Applicant met Schedule 3 criteria and, if not, whether those criteria should be waived. The Tribunal noted in paragraph 11 of its Statement of Decisions and Reasons (‘the Decision Record’) that:-
“It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application.”
The Tribunal therefore proceeded to examine the criteria in Schedule 3 to the Regulations and noted that the Applicant was required to satisfy Schedule 3 criteria 3001, 3003 and 3004 unless the Minister was satisfied there were compelling reasons for not applying those criteria.[1]
[1] Migration Regulations 1994 (Cth) cl 820.211(2)(d).
The Tribunal turned to criterion 3001 identifying that the Applicant, in order to satisfy that criterion, was required to have lodged a valid visa application within 28 days of the “relevant day”, namely, the last day on which he held a substantive visa. That date was 22 June 2012. The visa application was made on 5 February 2015. Accordingly, the Tribunal found the Applicant did not satisfy criterion 3001.
The Tribunal then considered whether there were compelling reasons for not applying the criteria. The Tribunal noted that the meaning of compelling reasons was not defined by the legislation; however, the Tribunal referred to several case authorities and then said in paragraphs 17 and 18 of the Decision Record:-
“17. The primary decision records that the department sent an email to Mr Singh on 23 July 2015 providing him with the opportunity to submit information regarding any compelling factors for consideration. Mr Singh did not respond to this invitation.
18. Mr Singh did not provide any written evidence to the Tribunal in support of his application for review. He did not attend the hearing to give oral evidence.”
The Tribunal then considered the evidence submitted by Mr Singh in his application for the visa in order to determine if compelling reasons existed. The Tribunal noted that evidence was that the Applicant had met Ms Whelan in October 2013, and they had married in December 2014. There was no evidence before the Tribunal that they had children together or that either had parenting responsibilities in relation to other children. The Tribunal had regard to two statutory declarations from friends attesting to the parties being in a genuine married relationship and five photographs, which appeared to the Tribunal to be taken at a marriage ceremony.
The Tribunal acknowledged the claim, and supporting evidence, that the parties were in a genuine relationship. However, the Tribunal noted (in paragraph 20 of the Decision Record) that compelling reasons:-
“...must involve something in addition to the basic pre-requisite criteria for the grant of the visa. In other words, the compelling reasons must go beyond whether or not the applicant and the sponsor are in a genuine spousal relationship. Accordingly, the Tribunal is not satisfied that the claimed genuine relationship is a compelling reason to not apply the criteria.”
The Tribunal noted that the Applicant had not submitted any evidence to the Tribunal further to that he provided to the Department. As he did not attend the Tribunal, the Tribunal was unable to obtain further details about the nature of his relationship with his wife at the time of decision, and the Tribunal noted, nor was there information about the potential impact on the Applicant or his wife if he was required to reapply for a partner visa offshore.
Having considered the circumstances of the Applicant and his sponsoring partner separately and cumulatively the Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria and, accordingly, determined that the Applicant did not meet cl. 820.211(2)(d)(ii) of Schedule 2 to the Regulations.
The Court proceeding
Having filed his application on 9 May 2016 as a litigant in person the Applicant then proceeded to file a notice of discontinuance of his application on 20 November 2017. That notice was completed by him and signed by him on 16 November 2017. He remained a litigant in person.
On 20 November 2017 and pursuant to r.13.01(2)(b) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) the Court ordered that there was leave to the Applicant to discontinue the application filed 9 May 2016. By orders made on 8 December 2017 the Court ordered, pursuant to r.44.15(2) of the Rules that the Applicant pay the First Respondent’s costs fixed in the sum of $5130.
On 14 December 2017 the Applicant filed an application in a case. Contemporaneously he filed an affidavit sworn by him on 14 December 2017 wherein he deposed:-
“2. Please re instate my application as I have been victim of poor immigration assistance where a person posed himself as lawyer and asked me to withdraw this application and I followed his instructions and now I have come to know that this was not the right thing to do and I would like to continue with my application.
(errors in original.)”
The First Respondent had sought, in respect of the substantive application for judicial review, that the application be dismissed and the Applicant pay the First Respondent’s costs. In respect of the application in a case now before the Court, the First Respondent seeks dismissal of the application and a costs order. The First Respondent filed written submissions with respect to the reinstatement application as it had done with respect to the judicial review application.
Consideration
On the hearing of the matter this day the First Respondent cross-examined the Applicant as to the grounds as set out by him in his application in a case. During the course of that cross-examination the Applicant confirmed that after speaking to an “Indian sort of lawyer”, whose name he did not know, whom he met at Point Cook in the shopping centre and who is a friend of a friend, that he determined he would discontinue the judicial review proceedings and proceed in some other manner. His evidence was that he did not know his filing of a notice of discontinuance would stop the proceeding completely. His evidence was that the “Indian sort of lawyer” told him that he was “not going to get anything from this procedure”. He claimed that he was further told that if he proceeded and lost the action, he would be required to pay more money than if he discontinued the proceeding.
The Applicant’s further evidence was that subsequently he spoke to another person who advised him that he had made a mistake, and that he should have proceeded with his substantial judicial review application. Both his filing of the notice of discontinuance, and his filing of the application in a case, were voluntary decisions made by him and were deliberate actions. They were, on the evidence, unaffected by fraud, and in essence, what the Applicant wanted then and wants now is “more time”.
The above evidence goes to the Court’s consideration of whether the Court has power, in these circumstances, to set aside the notice of discontinuance. There is no express power to set aside a notice of discontinuance under either the Federal Circuit Court Rules2001 (Cth) or the Federal Court Rules 2011 (Cth).[2]
[2] CHD16 v Minister for Immigration [2017] FCCA 1679, 18; COB16 & Ors v Minister for Immigration [2018] FCCA 152, 24.
The Court does however, have an implied power to set aside a notice of discontinuance and reinstate a proceeding in order to prevent an abuse of process of the Court or protect the integrity of those processes,[3] but such power will only be enlivened where the party who filed the notice of discontinuance:-
“…did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.”[4]
[3] Chen v Monash University [2016] 244 FCR 424, 41.
[4] Ibid, 46.
There is no general power to reinstate a proceeding “in the interests of justice”.[5] Barker, Davies and Markovic JJ held at paragraph 46 of Chen v Monash University [2016] 244 FCR 424 (‘Chen’):-
[5] Ibid, 47.
“While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
(emphasis added)”
Further, it is well established that the provision of bad or negligent advice is not sufficient to constitute fraud for this purpose even where it is provided by someone who is not a registered migration agent.[6]
[6] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, 53.
The Court determines there is no proper basis for the exercise of its discretion to reinstate the Applicant’s application. The Applicant acted voluntarily, and no fraud exists. Further, there is no merit in the judicial review application filed by the Applicant to justify the exercise of any discretion.
The Tribunal had rescheduled its hearing in respect of the Applicant’s application upon request by the Applicant and to a date beyond that on which the Applicant’s medical certificate stated that the Applicant was “unfit for work”. No further contact was made by the Applicant or his authorised representative regarding the Applicant’s health in respect of the rescheduled hearing date and thus, it was entirely reasonable for the Tribunal to proceed as it did.
The Tribunal complied with the notification requirements in the Act; sent SMS reminders of the rescheduled hearing to the Applicant and had good reason to believe that the notice emailed to the Applicant’s authorised recipient would have been received by him given the authorised recipient had previously responded to a notice sent to the nominated email address. The notice requirements had in fact been met.
The First Respondent’s submission that the Tribunal’s decision to determine the application without giving the Applicant a further opportunity to appear was legally reasonable is accepted by the Court. It could not be described as a decision that “lacks an evident and intelligible justification”. [7]
[7] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 76.
Further as submitted by the Minister:-
“The Applicant’s claim that he was not advised that a decision may be made if he did not attend the hearing is patently not supported by the evidence. Notices of both the first and rescheduled hearing, contained a statement of the effect of s 362B, consistent with s 360A(5).”
The Tribunal was required to assess the application of the Applicant against the legislative criteria in force at the time of the application and did so. The Tribunal correctly identified the relevant criteria and legal authority going to “compelling reasons”, and the Applicant did not identify any legal error in the decision of the Tribunal.
The Applicant was afforded the required statutory natural justice by the Tribunal.
Conclusion
The application in a case is dismissed and a costs order shall follow.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 17 May 2018
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