SINGH v Minister for Immigration

[2017] FCCA 700

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 700

Catchwords:
MIGRATION – Application for judicial review – bridging visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48B, 417

Migration Regulations 1994, Sch.2, cl.050.212(5B)(c)

Applicant: SARABJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2564 of 2016

Judgment of: Judge Riethmuller

Hearing date: 28 March 2017

Date of Last Submission: 28 March 2017

Delivered at: Melbourne

Delivered on: 28 March 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2564 of 2016

SARABJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 October 2016. 

2. A brief history of the applicant’s circumstances is important to understanding this case.  The applicant came to Australia from India on a student visa in 2008.  His student visa ceased in 2011.  The applicant remained unlawfully in Australia until he was taken into immigration detention in July 2014. 

3. In September of 2014, he lodged an application for a protection visa.  The delegate of the Minister refused to grant the applicant a protection visa in January 2015.  The applicant then sought review in the Tribunal but the delegate’s decision was affirmed.  The applicant then sought judicial review in the Federal Circuit Court and on appeal to the Federal Court of Australia and, ultimately, the High Court of Australia.  All of these appeals were dismissed with the matter finally being determined by the High Court on 16 June 2016. 

4. In May of 2016, the applicant sought a bridging visa.  This was refused on 11 May 2016 by the delegate.

5. The applicant was invited to appear before the Tribunal to give evidence and present arguments.  Ultimately, the Tribunal affirmed the delegate’s decision not to grant the application on 24 May 2016. 

6. In July of 2016, the applicant applied to the Minister under ss.48B and 417 of the Migration Act 1958 (“the Act”) for the Minister to intervene and grant a visa. This request was rejected. The applicant has made a subsequent application for ministerial intervention under the Act. At the time of the Tribunal’s hearing in the present application, the second request that the applicant made was pending, although has since been refused.

7. At present, the applicant has no visa applications pending, no applications for ministerial intervention and no litigation pending, aside from this case seeking judicial review of the bridging visa decision.  There is no point to this current bridging visa as there is no other substantive reason for the applicant to remain in Australia and, therefore, no purpose to the bridging visa. The applicant does not have litigation pending.  The applicant does not have a ministerial intervention pending (and even if he did, the applicant would no longer be able to rely upon that as a ground because cl.050.212(5B)(c) of Sch.2 of the Migration Regulations 1994 excludes this as a basis for a bridging visa if there has previously been an application for ministerial intervention, which is clearly the case here).  The applicant does not meet any of the other criteria, such as being held in criminal detention or receiving a criminal justice stay certificate or the like. 

8. The Tribunal reviewed the array of possible bases for the applicant’s bridging visa beyond his primary claim that he was seeking ministerial intervention or a visa in an alternative visa category.  It is apparent that none of these bases was open to him.  Even if the Tribunal were wrong in this regard, on the facts as presently before the Court, there is no purpose to overturning the Tribunal’s decision as the applicant is no longer even potentially eligible for a bridging visa. 

9. The applicant relied upon four grounds in his application as follows:

   1. I already applied for ministerial interfere so I was able to apply for this visa and meet cl050.212.

   2. I always abided and wish to abide immigration law I did not said I am not abided by law this I think wrong interpreted.

   3. Decision was not according to the law.

   4. Decision was biased and one sided.

Ground One

1. The first ground is simply wrong at law, in that ministerial intervention has been applied for and refused and subsequent applications for ministerial intervention are not a basis upon which a bridging visa can be granted.  In any event, there is no longer any pending application to the Minister. 

Ground Two

1. The second ground is simply an argument that the applicant maintains he has always abided immigration law in Australia.  It is not a ground for judicial review and, therefore, it is not a matter upon which I need to make a finding of fact.  Although, I do observe that, at the very least, for a number of years after his student visa expired, the applicant was unlawfully present in Australia and clearly not abiding by immigration law at that time. 

Ground Three

1. The third ground boldly asserts that the decision was not according to law.  However, there is nothing about the decision itself that indicates there is any error of law.  Indeed, it is a careful review of the possible bases for a bridging visa by the Tribunal member, many of which were not articulated by the applicant but no doubt covered by the Tribunal member to ensure that if the applicant had simply misconceived his case (being self-represented), he was not disadvantaged. 

Ground Four

1. The fourth ground is that the decision was biased and one-sided.  It is difficult to see how this could be alleged when reading the terms of the decision.  The Tribunal member spends some considerable time considering the applicant’s circumstances and the possible bases upon which he may obtain a bridging visa before concluding that he is not eligible for a bridging visa.  There is nothing about the decision to indicate any form of bias, apprehended bias, or any other defect of that type. 

2. The applicant, in his submissions, made a number of complaints about not receiving a lawyer and claiming that in India everyone receives a lawyer for court cases.  It is clear law in Australia that litigants are not entitled to a lawyer in every case.  Indeed, even in the most serious of cases, there is no entitlement to a lawyer.  To the extent that a court, from time to time, will ask the Registrar to refer a matter to a pro bono lawyer panel in the hope of a litigant receiving some degree of free assistance from members of the profession, this is certainly not a case that appears to me to fall into such a category.  There is nothing in the facts and circumstances, either in the material or as articulated by the applicant, to indicate that he has any basis for a case.  In substance, it appears to me that this present application is little more than an abuse of process. 

3. In these circumstances, I am satisfied that the applicant has not established any ground for judicial review of the decision. 

4. Even if I am wrong in this regard, in circumstances where there is no longer a substantive visa application or other reason that would fall within the definitions that form the basis for a bridging visa, it would serve no purpose to set aside the decision as the applicant simply cannot obtain a bridging visa at present.  In these circumstances, I would also exercise a discretion not to grant relief in a case such as this. 

5. In the circumstances, I therefore dismiss the application. 

Costs

1. In this matter, the applicant has been wholly unsuccessful.  It is appropriate that costs follow the event.  The costs sought are $6,000, which is less than the scale fee.  I find that this is a reasonable amount.  The applicant argues that a costs order should not be made or that some further accounting will need to ultimately be undertaken, as he insists that at present he intends to appeal to the Full Court of the Federal Court against this decision. This is not a basis for refusing to order costs. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 7 April 2017