Singh v Minister for Immigration

[2017] FCCA 2166

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2166

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 379A, 379C, 379G, 476, 477
Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration v Singh [2014] FCAFC 1
AYT16 v Minister for Immigration [2017] FCA 252

AYT16 v Minister for Immigration & Anor [2016] FCCA 2733

Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888

Applicant: MANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1464 of 2016

Judgment of: Judge Driver

Hearing date: 7 September 2017

Delivered at: Sydney

Delivered on: 7 September 2017

REPRESENTATION

No appearance for or by the Applicant.

Solicitors for the Respondents: Ms M Donald of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1464 of 2016

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 May 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a temporary partner visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 10 August 2017. 

Background

1. Mr Singh, a citizen of India, arrived in Australia on 24 March 2008 on a student (Subclass 573) visa[1].  He held several student visas until his final Subclass 573 visa was cancelled on 19 December 2012[2]. 

   [1] Court Book (CB) 163.

   [2] CB 163.

2. On 20 November 2013, Mr Singh applied for the partner visa[3]. On 12 January 2015, a delegate of the Minister refused to grant the visa on the basis that Mr Singh did not meet clause 820.211(2)(d)(ii) of the Migration Regulations 1994 (Cth)[4].

   [3] CB 1.

   [4] CB 163.

The Tribunal proceedings

1. On 29 January 2015, Mr Singh applied to the Tribunal for review of the delegate’s decision[5].  In his application for review, Mr Singh provided the contact information of his representative and registered migration agent including, relevantly, the email address “[email protected]” (nominated email address).

   [5] CB 189.

2. On 21 January 2016, the Tribunal wrote to Mr Singh at the nominated email address, informing him that the Tribunal had considered the material before it and was unable to make a favourable decision on that information alone, and inviting him to appear before the Tribunal on 23 March 2016 to give evidence and present arguments relating to the issues arising in his case[6].  That hearing was postponed at Mr Singh’s request the day prior to the scheduled hearing and upon the provision of a medical certificate[7].

   [6] CB197-201.

   [7] CB 202-204.

3. On 24 March 2016, the Tribunal sent a second hearing invitation to Mr Singh at the nominated email address[8].  The hearing invitation notified Mr Singh that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it, or may dismiss his application for review without any further consideration of the application or the information before it.  The invitation also notified Mr Singh that any further adjournment request and medical certificate must be provided to the Tribunal with adequate notice, and that any further medical certificate would need to specifically set out reasons why he was medically unfit to participate in a hearing.

   [8] CB 205-208.

4. Mr Singh provided a response to the hearing invitation on 30 March 2016 indicating that he would attend but that his representative would not[9].  Mr Singh also provided a change of contact details form confirming the appointment of his migration agent as his authorised recipient and, relevantly, providing the nominated email address as the email address for correspondence[10].

   [9] CB 212.

   [10] CB 209-211.

5. Mr Singh did not attend the scheduled hearing on 21 April 2016[11]. 

   [11] CB 216.

Tribunal decisions

1. On 21 April 2016, the Tribunal dismissed the application under s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) without any further consideration of the application or information before the Tribunal (non-appearance decision)[12].  The non-appearance decision confirmed Mr Singh’s failure to appear at the hearing and noted that no satisfactory reasons had been provided for the non-appearance[13].

   [12] CB 222.

   [13] CB 222.

2. The non-appearance decision was sent to Mr Singh’s authorised recipient at the nominated email address on 21 April 2016, together with an information sheet on applying for reinstatement[14].  The information sheet stated that Mr Singh could apply for reinstatement of the decision within 14 days of receiving notice of the non-appearance decision, and that if he did not seek reinstatement within the 14 day time period, the Tribunal would be required to confirm the non-appearance decision.[15]

   [14] CB 219-221.

   [15] Annexure A to the affidavit of Mia Donald, affirmed 9 August 2017.

3. Mr Singh did not respond to the Tribunal’s email of 21 April 2016 or otherwise contact the Tribunal. On 10 May 2016, the Tribunal proceeded pursuant to s.362B(1E) of the Migration Act to confirm the non-appearance decision (confirmation decision)[16].  In so doing, at [3]-[4] of its decision record, the Tribunal noted that it had advised Mr Singh that he had 14 days in which to seek reinstatement of the non-appearance decision, but that it had not received any such application for reinstatement.

   [16] CB 226-227.

The present proceedings

1. These proceedings began with a show cause application filed on 8 June 2016.  Mr Singh has not availed himself of the opportunity provided by procedural orders made by a Registrar to file and serve any amended application.  Under the heading “Grounds of the Application” is a paragraph in narrative form which states as follows:

   I am not happy with the MRD-AAT’s decision because I think I was denied procedural fairness.  I want to appeal the decision made by MRD-AAT because there was a jurisdictional error made while deciding on my case.  I would like to dispute the decision made by DIBP and MRT on basis that an error was made in the judgement.  So I request court to please allow me to review the decision because I submit all the material and documents relevant to the case has not been looked at properly and the decision is not in accordance with the law.

   (errors in original)

2. The application was supported by a short affidavit filed with it, which annexed the Tribunal decision.  I have received that affidavit. 

3. Mr Singh failed to attend first court date directions in this Court conducted by a Registrar, and in the light of that failure, the Minister filed and read for the purposes of today’s hearing an affidavit by Jennifer Louise Strugnell made on 3 August 2016 verifying service of the Registrar’s orders on Mr Singh.  Attached to the affidavit is a letter dated 2 August 2016 to Mr Singh at his nominated address for service, providing a copy of the sealed orders made by the Registrar on 28 July 2016. 

4. The letter noted that the matter had been listed for hearing on 18 August 2017 at 10.15am before me here at 80 William Street.  The letter warned Mr Singh that if he failed to attend, the Minister would seek orders to have the application dismissed with costs.  When the matter was called on 18 August, there was no appearance by Mr Singh.  He had, however, provided the Court with a purported medical certificate and asserted an inability to attend due to illness.  The Court was successful in contacting him by telephone. 

5. During the conversation, Mr Singh coughed a great deal and continued to assert illness.  I gave him benefit of the doubt, notwithstanding concerns I held about the inadequacy of the medical certificate, and made orders for the conduct of a show cause hearing on the application today at 11am.  I am confident that Mr Singh was left in no doubt of the need for him to attend today’s hearing. 

6. He has failed to attend once again.  This must be seen in the context of his failure to attend the Tribunal hearing to which he was invited, his failure to attend the first court date directions in this Court, and his failure to attend the earlier listed hearing before me in this Court.  I have formed the view that Mr Singh is toying with the Court by continuing to fail to appear. 

7. I have decided in the circumstances that the appropriate course is to hear the application in his absence.  For that purpose, I have received as evidence the court book filed on 25 August 2016, as well as the affidavit by the Minister’s solicitor made on 9 August 2017 annexing some additional documents inadvertently omitted from the court book.

8. It is patently clear that the application is doomed to fail.  The Minister’s submissions deal with the matter as best can be done in view of the state of the application. 

Legislative framework

1. Section 360(1) of the Migration Act requires the Tribunal to invite an applicant to appear before it in order to give evidence and present arguments relating to the issues arising in relation to the decision under review, unless one of the exceptions in s.360(2) of the Migration Act applies.

2. Section 360A of the Migration Act prescribes the requirements to be met by a hearing invitation. Relevantly, s.360A(2) of the Migration Act prescribes that where a visa applicant is not in immigration detention, the invitation must be given to the applicant by one of the methods specified in s.379A of the Migration Act. Further, s.360A(5) prescribes that the invitation to appear must contain a statement to the effect of s.362B.

3. Section 379A prescribes methods by which the Tribunal may give documents to a person, which relevantly includes transmitting a document by email to the last email address provided to the Tribunal by the recipient in connection with the review[17]. Pursuant to s.379C(5) of the Migration Act, where the Tribunal sends a document to a person pursuant to s.379A(5), the recipient is deemed to have received the document at the end of the day on which the document is transmitted. Pursuant to s.379G(1) of the Migration Act, if an applicant gives the Tribunal written notice of the name and address of an authorised recipient, the Tribunal must give to the authorised recipient, instead of the applicant, any document that it would otherwise give to the applicant. If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given it to the applicant[18].

   [17] Section 379A(5).

   [18] Section 379G(2).

4. Certain changes to s.362B took effect from 18 April 2015 and apply to all applications to the Tribunal after that day, or applications made before that date where a hearing invitation has been issued after 18 April 2015.[19] Section 362B relevantly provides that if the applicant is invited to appear before the Tribunal under s.360 of the Migration Act but does not appear at the hearing, the Tribunal may, by written statement under s.362C, dismiss the application without any further consideration of the application or information before the Tribunal[20]. A non-appearance decision must be made in accordance with s.362C and be sent to the applicant by one of the methods specified in s.379A within 14 days of the date on which the decision is taken to have been made[21]. Pursuant to s.362C(3) of the Migration Act, that decision is taken to have been made by the making of a written statement.

   [19] Migration Amendment (Protection and Other Measures) Act 2015 (Cth); Part 2, item 34(2).

   [20] Section 362B(1), (1A).

   [21] Section 362C(1) and (5).

5. If the Tribunal dismisses the application, the applicant may apply for reinstatement of the application within 14 days after receiving notice of the decision under s.362C[22].  Where the applicant makes such an application and the Tribunal decides to reinstate the application, the application is taken to have never been dismissed and the Tribunal must proceed to conduct the review[23].

   [22] Section 362B(1B).

   [23] Section 362B(1D).

6. However, should the applicant fail to apply for reinstatement within the 14 day period, s.362B(1E) compels the Tribunal to confirm the non-appearance decision.

Proceedings in this Court

1. As a preliminary matter, the Minister notes that the judicial review application, filed on 8 June 2016, identifies the confirmation decision dated 10 May 2016. Insofar as Mr Singh challenges the confirmation decision alone, his application is plainly misconceived. In circumstances where Mr Singh did not seek reinstatement, the Tribunal was statutorily required to confirm the non-appearance decision by virtue of s.362B(1E) of the Migration Act.

2. That said, the non-appearance decision dated 21 April 2016 is also a decision that may be the subject of a judicial review application made pursuant to s.476 of the Migration Act. Sections 362C and 477(3)(b) of the Migration Act contemplate that a non-appearance decision is a migration decision capable of being challenged.

3. If Mr Singh had sought that the Court make orders for constitutional writs in respect of the non-appearance decision, he would have required an extension of time pursuant to s.477(2) of the Migration Act. Because Mr Singh applied for judicial review of the confirmation decision within time, the Minister would not have opposed the granting of an extension of time within which to seek relief in respect of the non-appearance decision, and I would have granted it.

Consideration

1. First, to the extent that Mr Singh takes issue with the decision made by the Minister’s Department, the Court has no jurisdiction in relation to the delegate’s decision, which is a primary decision[24].

   [24] Section 476(2)(a) of the Migration Act.

2. Secondly, there is no substance to the bare assertions made in the ground advanced in the application.  Mr Singh has not identified any basis for his contentions that the Tribunal’s decision was not made in accordance with law or that he was denied procedural fairness.  No denial of procedural fairness or other jurisdictional error is otherwise apparent in the circumstances of this case.  For the reasons that follow, the Tribunal’s decision was made in line with the statutory scheme and was open to the Tribunal.

Compliance with procedural requirements

1. The Tribunal invited Mr Singh to appear before it under s.360 of the Migration Act. The notice complied with the requirements in s.360A of the Migration Act: the Tribunal gave Mr Singh notice of the day, time and place of the scheduled hearing; the notice was transmitted by email to the last email address provided to the Tribunal by Mr Singh, being the email address of his authorised recipient; the period of notice given was more than the prescribed period (14 days after Mr Singh received the invitation); and the notice contained a statement of the effect of s.362B of the Migration Act.

2. When Mr Singh did not appear before the Tribunal at the scheduled hearing, the Tribunal dismissed the application by written statement under s.362C of the Migration Act. The Tribunal has no power to vary or revoke a non-appearance decision after the day and time that the written statement is made[25]. The Tribunal notified Mr Singh of the non-appearance decision. The Tribunal’s written statement complied with the requirements of s.362C of the Migration Act: the written statement set out the decision and the reasons for the decision and recorded the day and time the statement was made. Further, a copy of the written statement was given to Mr Singh on the day of the decision: it was transmitted by email to the last email address provided to the Tribunal by Mr Singh in connection with the review, being the email address of his authorised recipient[26]. The Tribunal also gave Mr Singh a statement describing the effect of s 362B(1B) to (1F) of the Migration Act.[27]

   [25] Section 362C(4) of the Migration Act.

   [26] Sections 379A(5) and 379G(1) of the Migration Act.

   [27] Annexure A to the affidavit of Mia Donald, affirmed 9 August 2017.

3. Under ss.379C(5) and 379G(2) of the Migration Act, Mr Singh was taken to have received the non-appearance decision at the end of the day on which it was transmitted, being 21 April 2016. Section 362B(1B) of the Migration Act applied such that Mr Singh had 14 days after receiving notice of the non-appearance decision to apply to the Tribunal for reinstatement of the application. Mr Singh failed to apply for reinstatement and, in those circumstances, the Tribunal was required to confirm the decision to dismiss the application[28].

   [28] Section 362B(1E) of the Migration Act; AYT16 v Minister for Immigration & Anor [2016] FCCA 2733 at [28] (decision upheld on appeal in AYT16 v Minister for Immigration [2017] FCA 252); Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888

Reasonableness of the Tribunal’s exercise of discretion

1. Insofar as Mr Singh’s ground of review may be understood as advancing as a contention that the Tribunal exercised its discretion in a manner that was legally unreasonable, such a contention cannot be established.

2. First, the Tribunal gave reasons for exercising its discretion which disclosed an evident, transparent and intelligible justification for the Tribunal proceeding as it did.[29]  The Tribunal identified that Mr Singh had not appeared at the scheduled time and place for the hearing and had not provided a satisfactory reason for the non-appearance, and proceeded to dismiss the application on that basis.

   [29] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [76].

3. Secondly, there is nothing in the material before the Court to suggest, nor has Mr Singh identified any basis for a finding, that the Tribunal’s decision to proceed was arbitrary, capricious, without common sense or plainly unjust.[30]  The Tribunal had postponed a previous hearing at Mr Singh’s request the day before the scheduled hearing[31].  It is of note that Mr Singh’s request included a medical certificate which merely stated that he would be “UNFIT TO CONTINUE his USUAL OCCUPATION” and provided no detail as to why Mr Singh would be unfit to participate in the Tribunal hearing[32].

   [30] Li at [28]; Minister for Immigration v Singh [2014] FCAFC 1 at [44].

   [31] CB 203.

   [32] CB 204.

4. In the rescheduled hearing invitation, the Tribunal notified Mr Singh that if he 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.  It also notified Mr Singh that any further adjournment request and medical certificate must be provided to the Tribunal with adequate notice, and that any further medical certificate would need to specifically set out reasons why he was medically unfit to participate in a hearing for a few hours, either in person or over the phone[33].  Mr Singh responded to the hearing invitation, but failed to appear at the scheduled time.  Nor did he make any adjournment requests or otherwise contact the Tribunal.  In those circumstances, it cannot be said that it was legally unreasonable for the Tribunal to proceed to dismiss the application.

   [33] CB 208.

1. Moreover, consistently with my observations in AYT16 v Minister for Immigration & Anor[34]:

   …To the extent that some injustice was occasioned by the Tribunal's non-attendance decision, the Migration Act, as amended, provided a remedy. The remedy was to seek reinstatement of the review application in accordance with the notification issued by the Tribunal.

   [34] AYT16 v Minister for Immigration & Anor [2016] FCCA 2733 at [26].

Conclusion

1. The application is irredeemably hopeless.  It is patently clear that it fails to disclose an arguable case for the relief claimed.  Mr Singh is the author of his own misfortune before the Tribunal in failing to attend the hearing to which he was invited and then failing to seek reinstatement. 

2. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,500.  I am satisfied that although the matter was listed today for a show cause hearing, the Minister has reasonably and properly incurred costs well in excess of that amount, and that the sum of $4,500 is an appropriate award of costs when assisted on a party and party basis.

4. I will order that Mr Singh is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     8 September 2017