SINGH v Minister for Immigration - [2017] FCCA 522

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 522

Catchwords:
PRACTICE AND PROCEDURE – Whether registrar had power to dismiss for non-appearance.

Legislation:
Federal Circuit Court Act 1999, ss.15, 102(1),(2),(6), 103(1),(2),(7)
Federal Circuit Court Rules 2001, rr.10.01, 13.03C, 20.00A
Federal Court of Australia Act 1976, s.35A(3)

Cases cited:

Owners of the Ship, Shin Kobe Maru v Empire Sipping Co Inc (1994) 181 CLR 404; (1994) 125 ALR 1; (1994) 68 ALJR 907; [1994] HCA 54
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41; [1998] HCA 28
Uddin v Minister for Immigration & Anor [2017] FCCA 500
Wakim, Re; Ex parte McNally (1998) 20 LegReg 7b; (1999) 198 CLR 511; (1999) 163 ALR 270; (1999) 73 ALJR 839; (1999) 10 Leg Rep 2; (1999) 31 ACSR 99; (1999) 24 Fam LR 669; (1999) 17 ACLC 1055; [1999] HCA 27

Applicant:

GAGANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1145 of 2016

Judgment of:

Judge Riley

Hearing date:

15 March 2017

Date of last submission:

15 March 2017

Delivered at:

Melbourne

Delivered on:

22 March 2017

REPRESENTATION

Advocate for the applicant:

In person by telephone

Solicitors for the applicant:

None

Counsel for the first respondent:

Chris Tran

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

DECLARATION

The order made by a registrar on 7 December 2016 that the application filed on 1 June 2016 be dismissed for non-appearance was invalid.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1145 of 2016

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 7 December 2016, a registrar of this court dismissed a migration matter for non-appearance at its first court date. The dismissal was expressed to be pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”). Later in December 2016, the registrars of this court in the Melbourne registry formed the view that that they did not have power to dismiss applications for non-appearance. On 5 January 2017, the applicant filed an application for reinstatement.
The question before the court is whether the registrar of this court had power to dismiss the matter for non-appearance under r.13.03C(1)(c) of the Rules or under any other provision.
The Minister filed written submissions and made oral submissions. The applicant attended the hearing on the question by telephone from India. However, he did not make any written or oral submissions on the question before the court. He was more concerned to explain his non-appearance on 7 December 2016. However, as I attempted to explain to him, that was possibly a question for another day.
The Minister submitted that a registrar of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 522
Decision Date: 22 March 2017

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The applicant had applied for a Protection visa, which was refused by the primary decision-maker and subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Court.

The central legal issue before Riley J was whether the Tribunal had erred in law by failing to adequately consider and assess the applicant's claims for protection, specifically in relation to the risk of persecution he alleged he would face if returned to his country of origin. The applicant contended that the Tribunal had not properly engaged with his evidence and had made findings that were not supported by the material before it.

Riley J found that the Tribunal had indeed erred in law. His Honour held that the Tribunal had failed to provide adequate reasons for its decision, particularly in relation to its assessment of the applicant's credibility and the weight it gave to certain pieces of evidence. The Court reiterated the principle that a decision-maker must provide sufficient reasons to enable a party to understand how the decision was reached and to identify the basis of the findings of fact and the application of the law. The Tribunal's reasons were found to be deficient in this regard, leading to an apprehension of error.

The application for judicial review was therefore upheld. Riley J set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.

Orders