Singh v Minister for Immigration
[2018] FCCA 271
•7 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 271 |
| Catchwords: MIGRATION – Judicial review – partner residence visa – citizen of India – dismissal for non-appearance before Administrative Appeals Tribunal – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 5F, 360, 360A, 362B, 362C, 368, 368A, 379, 379A, 379C, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 EBB17 v Minister for Immigration & Anor [2018] FCCA 48 Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| Applicant: | JATINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 528 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 7 February 2018 |
| Date of Last Submission: | 7 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 7 February 2018 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr A Cuninghame |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 528 of 2017
| JATINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered extemporaneously and revised prior to publication)
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 5 September 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa (“Partner Visa”). The Tribunal Decision is at Court Book (“CB”) 309-310. The Court Book was marked as Exhibit 1.
Background prior to the Judicial Review Application
The background prior to the Judicial Review Application is as follows:
a)the applicant, a citizen of India, made an application on 29 June 2012 for a combined Partner (Temporary) (Class UK) (Subclass 820) visa (“Temporary Partner Visa”) and Partner Visa on the basis of his relationship with his Australian citizen sponsor, Ms Breanna Jayde Wilson (“Sponsor”): CB 1-24;
b)the applicant and Sponsor were married on 9 April 2012: CB 65;
c)the applicant was granted the Temporary Partner Visa on 5 February 2014: CB 171-174;
d)on 18 January 2016, departmental officers in India conducted a site visit at the home of the applicant’s parents: CB 225-231. Relevantly, officers interviewed the applicant’s sister-in-law who had no knowledge of the applicant’s marriage to the Sponsor, and the neighbours of the applicant’s parents who stated that the applicant was married to another individual, who they named. Officers also interviewed the applicant’s parents who were aware of the applicant’s marriage to the Sponsor, however they had no knowledge of the Sponsor’s name, age, how the applicant and the Sponsor met or when they were married;
e)on 7 April 2016, the applicant was invited to comment on information given by the applicant’s parents, sister-in-law and parent’s neighbours during the site visit: CB 232-233. The applicant provided a response and further supporting documentation on 5 May 2016: CB 236-239; and
f)on 18 July 2016, the Delegate refused to grant the applicant the Partner Visa: CB 240-263. The Delegate was not satisfied that the relationship between the applicant and the Sponsor was genuine in accordance with ss.5F and 5CB of the Migration Act or that the applicant was the spouse of the Sponsor.
Tribunal proceedings
On 17 August 2016, the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 264-274. The applicant listed an email address for receiving correspondence: CB 265 (“Applicant’s Email Address”). The Court notes that the Applicant’s Email Address is also the applicant’s current email address for service as set out in the originating application for this Judicial Review Application.
On 3 April 2017, the Tribunal invited the applicant to attend a hearing before it, to give evidence and present arguments, scheduled for 22 May 2017: CB 278-280 (“First Tribunal Hearing”). The invitation was sent to the Applicant’s Email Address. On 15 May 2017 and 19 May 2017, SMS reminders as to the date of the First Tribunal Hearing were sent to the applicant’s nominated mobile telephone number: CB 298.
On 22 May 2017, the applicant failed to appear at the Tribunal Hearing: CB 281-284, and the Tribunal made a non-appearance decision: CB 287 (“First Non-Appearance Decision”), which states as follows:
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 22 May 2017 at 2.00PM but did not appear at the scheduled time and place. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 23 May 2017 the Tribunal notified the applicant that because he failed to appear at the First Tribunal Hearing, the Tribunal had decided to dismiss the application for review under s.362B(1A)(b) of the Migration Act, but he was invited to apply for reinstatement of the application for review by 6 June 2017: CB 285-287.
On 23 May 2017, the applicant telephoned the Tribunal advising that “they had forgotten” the date of the Tribunal Hearing: CB 298.
On 4 June 2017 the applicant emailed the Tribunal: CB 290, attaching a letter dated 2 June 2017: CB 291, which says as follows:
To whom this may concern,
I am writing in reply to the received dismissal letter dated 23/05/2017.
I failed to attend my scheduled hearing on 22/05/2017. The reason I failed to attend was because I had a mix up of dates. I was scheduled to attend on the Monday but I was confused and had made arrangements to attend on the Tuesday, thinking this was the 22nd of May. As soon as I had realised my mistake on Tuesday morning I phoned the AAT and spoke with somebody who informed me that the case had been dismissed and that I would be receiving advice of this in the mail.
I am asking for my case to please be reinstated as I am relying on this opportunity to explain myself to the tribunal. I am the father of two Australian daughters aged 2 and 4 and I play a very active role in their lives. Please reconsider my case for reinstatement.
On 12 June 2017, the Tribunal reinstated the application for review, under s.362B(1C)(a) of the Migration Act: CB 292-294 (“Reinstatement Decision”). The Reinstatement Decision (which is at CB 294) reads as follows:
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal 22 May 2017 at 2:00PM but did not do so. The Tribunal dismissed the application under s.362B(1A)(b) of the Act and the review applicant applied for reinstatement of the application within the prescribed period. The review applicant contacted the Tribunal by telephone on 23 May 2017 explaining he had confused the days for his hearing. He subsequently wrote to the Tribunal by email on 4 June 2017 further explaining he had thought the hearing was on a Tuesday, not the Monday for which it was listed. He also said he is the father of two Australian daughters aged 2 and 4 in whose lives he plays an active role. For these reasons, the Tribunal considers it appropriate to reinstate the application.
On 13 June 2017, the Tribunal invited the applicant to attend and give evidence and present arguments at a hearing before it scheduled for 21 August 2017: CB 295-297 (“Second Tribunal Hearing”).
On 14 August 2017 and 18 August 2017, SMS hearing reminders as to the date of the Second Tribunal Hearing were sent to the applicant’s nominated mobile number: CB 298-299.
The applicant did not appear at the Second Tribunal Hearing on 21 August 2017: CB 300-303.
On 21 August 2017, the Tribunal dismissed the application for review under s.362B(1A)(b) of the Migration Act: CB 303-306, and made a further non-appearance decision (“Second Non-Appearance Decision”) which states as follows:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 21 August 2017. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(Emphasis in original).
On 21 August 2017 the Tribunal wrote to the applicant at the Applicant’s Email Address to notify him of the Second Non-Appearance Decision, and informed the applicant that he may apply for reinstatement of his application for review by 4 September 2017: CB 304. The applicant did not respond to this correspondence or apply for reinstatement of his application for review by 4 September 2017.
On 5 September 2017, the Tribunal Decision was to confirm its decision to dismiss the application for review in the Second Non-Appearance Decision: CB 307-310. The Tribunal Decision made on 5 September 2017 is set out in full as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 July 2016 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under the Migration Act 1958 (the Act).
2. On 21 August 2017 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
The grounds of the Judicial Review Application
The grounds as set out in the Judicial Review Application are as follows:
1. I was born on 10/04/1982
2. I am currently on Bridging Visa C
3. I Jatinder Singh has applied for a partner visa on 28th June 2012 on the basis of relationship with Ms Breanna Singh. The visa application was refused by DIBP on 18th July 2016 and affirmed by Administrative Appeals Tribunal on 5th September 2017.
4. The Tribunal dismissed my application I was not able to attend to attend the hearing.
5. In my opinion DIBP and AAT made the judicial error in refusing my application as both the authorities overlooked my circumstances.
The applicant also affirmed an affidavit on 29 September 2017 (“Applicant’s Affidavit”), the body of which is identical to the grounds of the Judicial Review Application.
A Registrar of the Court made orders on 22 November 2017 (“Registrar’s Orders”) permitting the applicant to file any amended application including complete particulars by 10 January 2018, and to file written submissions prior to hearing. Nothing was filed prior to today’s hearing. At hearing today:
a)the applicant made no submissions which would indicate any jurisdictional error in the Tribunal Decision (and indeed the applicant failed to make any cogent submissions at all); and
b)the Minister relied upon the written submissions filed on 31 January 2018.
The Court also notes that at the hearing today no interpreter was requested by the applicant, and therefore none was in Court. The Court checked with the applicant to see if he required an interpreter, and he said that he did not. Further, the applicant confirmed that he understood what was being said to him by the Court during the course of the proceedings.
Consideration
Grounds 1, 2, 3 and 4 merely recount the personal and procedural history of the applicant’s migration proceedings and are not competent grounds of judicial review because they are incapable of establishing, and furthermore do not establish, any jurisdictional error in the Tribunal Decision.
In respect to ground 4 it is notable that the applicant gives no explanation for why he failed to attend the Second Tribunal Hearing, particularly in circumstances where the applicant had previously sought reinstatement of the application for review following its dismissal because of his non-attendance at the First Tribunal Hearing. Furthermore, it is significant that grounds 4 and 5 do not allege any procedural failure or unfairness in the process followed by the Tribunal leading to the Tribunal Decision, and the applicant made no submission along those lines or to that effect today.
The Tribunal Decision was, in any event, made consistent with the statutory requirements under the Migration Act because:
a)section 362B(1) of the Migration Act applies in circumstances where an applicant is invited to appear before the Tribunal pursuant to s.360 of the Migration Act and fails to appear;
b)by a letter dated 13 June 2017, the Tribunal validly invited the applicant to the Second Tribunal Hearing on 21 August 2017;
c)the invitation was sent to the Applicant’s Email Address, which was his nominated address, in accordance with s.379A(5) of the Migration Act;
d)the invitation to the Second Tribunal Hearing complied with the requirements of s.360A of the Migration Act by including statements to the effect of s.362B of the Migration Act, setting out the day, time and place at which the Second Tribunal Hearing was to take place and providing a period of notice in excess of the prescribed period;
e)in accordance with s.379C(5) of the Migration Act, the applicant was deemed to have received the invitation to the Second Tribunal Hearing on 13 June 2017, being the end of the day on which the invitation was transmitted to the applicant;
f)the prescribed period of 14 days in reg.4.35D of the Migration Regulations 1994 (Cth) ended on 27 June 2017 and the Second Tribunal Hearing was listed on 21 August 2017;
g)in those circumstances, the Tribunal was entitled to proceed as it did pursuant to s.362B(1A)(b) of the Migration Act to dismiss the application for review without further consideration of the application for review or the information before the Tribunal when the applicant failed to appear at the Second Tribunal Hearing;
h)on 21 August 2017, the Tribunal complied with s.362C(2) of the Migration Act by making a written statement that set out the reasons for its decision to dismiss the matter in the form of the Second Non-Appearance Decision;
i)the Second Non-Appearance Decision was then sent to the Applicant’s Email Address on the same day together with a statement describing the effect of s.362B(1B), (1C), (1D), (1E) and (1F) of the Migration Act in compliance with ss.379A(5) and 362C(5) and (6) of the Migration Act;
j)when the applicant failed to apply for reinstatement of the application for review within 14 days, which expired on 4 September 2017 the Tribunal complied with ss.362B(1E) and 368A of the Migration Act on 5 September 2017 by confirming its decision to dismiss the application by written statement under s.368 of the Migration Act, that being the Tribunal Decision; and
k)the Tribunal Decision was sent to the Applicant’s Email Address on the same day in compliance with ss.368A and 379A(5) of the Migration Act.
The Tribunal’s exercise of its discretion to dismiss the application for review was reasonable in all the circumstances. In circumstances where the application for review had previously been reinstated due to a request by the applicant, the applicant must be taken to have been well aware of the consequences of his failure to appear at the Second Tribunal Hearing. Also, the applicant was sent two SMS reminders as to the time and date of the Second Tribunal Hearing. Significantly, the applicant did not seek to reapply for reinstatement of the application for review by 4 September 2017 as he was entitled to do. Nor did the applicant proffer any explanation for his failure to attend the Second Tribunal Hearing on 21 August 2017 prior to the making of the Tribunal Decision. Likewise, even now, no such explanation has been tendered or set out in the grounds of the Judicial Review Application or the Applicant’s Affidavit. There is no suggestion from the applicant that the Tribunal can, or ought to have, done more procedurally than it did to avail the applicant of an opportunity to have his application for review reinstated. In these circumstances, this is not a case which demanded that the Tribunal attempt to phone the applicant on the mobile number it had in its records when he failed to attend the Second Tribunal Hearing: compare AZAFBv Minister for Immigration & Border Protection & Anor [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 171 at [22]-[28] per North ACJ. The applicant having failed to apply to reinstate the application for review following the Second Non-Appearance Decision, there was nothing unreasonable in the Tribunal’s subsequent exercise of discretion to proceed to determine the application for review under s.362B of the Migration Act by making the Tribunal Decision on 5 September 2017. Pursuant to s.362B(1E) of the Migration Act, the applicant having failed to make an application for reinstatement within the specified 14 day period, the Tribunal Decision made by the Tribunal was the necessary consequence of the applicant’s failure to seek reinstatement of his application for review: AYT16 v Minister for Immigration & Anor [2016] FCCA 2733 at [28] per Judge Driver; Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888 (“Singh”) at [22] and [35] per Judge Jones.
In respect to ground 5, insofar as the applicant seeks review of the Delegate’s Decision, this Court does not have jurisdiction to review the Delegate’s Decision because, by virtue of s.476(2) of the Migration Act, the Delegate’s Decision is a primary decision: Migration Act, s.476(4).
Insofar as the applicant asserts in ground 5 that the Tribunal failed to take into account the applicant’s circumstances, this has not been particularised so as to make this ground meaningful, and the failure to particularise this ground is sufficient on its own to warrant its dismissal: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J.
Where, as here, the Tribunal properly exercised a discretion open to it to dismiss the application for review as a consequence of the applicant’s non-attendance at the Second Tribunal Hearing and subsequent failure to apply for reinstatement of the application for review, the applicant’s assertion that the Tribunal failed to consider his circumstances is a hollow one. The Tribunal was simply not obligated to do so: Migration Act, s.362B; Singh at [22], [34] and [35] per Judge Jones; EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [26]-[27] per Judge Lucev (and cases there cited).
Conclusion and orders
The Court has concluded that there is no jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 8 February 2018
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