Singh v Minister for Immigration

[2016] FCCA 3431

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3431

Catchwords:

MIGRATION – Administrative review – application seeking reopening of matter – no prospects of success – application dismissed – applicant to pay respondents’ costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: HARJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 775 of 2015

Judgment of: Judge Vasta

Hearing date: 19 December 2016

Date of Last Submission: 19 December 2016

Delivered at: Brisbane

Delivered on: 19 December 2016

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. All outstanding applications be dismissed.

2. The Applicant pay the Respondents’ costs of and incidental to this application fixed in the sum of $3606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 775 of 2015

HARJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 28 August 2015, the Applicant applied for a review of a decision of the Administrative Appeals Tribunal.  I had set the matter down and made certain orders.  Before the matter was to be heard before me, which would have been on 28 April 2016, there was a notice of discontinuance sent on 24 April 2016.  I then made an order dismissing the application.

2. The Applicant was later taken into custody and appeared before Driver J on 19 October 2016.  On that day, he told Driver J that he was forced to withdraw his matter before me.

3. Driver J allowed him an opportunity to make an application before me to re-open his case.  He made that application a week later, within the timeframe that Driver J had given him. 

4. The application said, in effect, that his lawyer had forced him to withdraw his application.  When he appeared before me, I asked him for some proof of that and asked him to file an affidavit and to put all the correspondence in that affidavit.  He has done so.  In that affidavit, he claims that his lawyer, Mr Chand, forced him to withdraw his file from this Court.

5. He claims that Mr Chand rang him and told him to withdraw the file.  Mr Singh said that he told Mr Chand that his wife was sick, he was taking care of her and that he didn’t want to withdraw the case from the Federal Circuit Court.  He said that Mr Chand emailed again that day and also told him on the phone “you can’t win this case but if you gather evidence from the doctors that your wife is incapacitated or needs constant care, we can make a request for ministerial intervention”.

6. Mr Singh, in his affidavit, claims he told Mr Chand he didn’t want to withdraw his case but Mr Chand kept forcing him to withdraw the case.  Mr Singh then said I will talk to my brother because:

   “I was in a lot of depression and was not able to make any decision.”

7. Mr Singh said that Mr Chand emailed him two times on 19 April asking him to call him and Mr Singh said that he told him again that he did not want to withdraw his file. Mr Singh claims that Mr Chand then talked to Mr Singh’s brother on the phone and convinced him that Mr Singh should go for a ministerial intervention and win that case. 

8. He said that Mr Chand told him that if he withdraws his case, he will not charge any costs for the ministerial intervention. Mr Singh says that Mr Chand told him to write in an email that “I want to withdraw my file from Federal Court”, which he did in an email on 21 April 2016.

9. In the affidavit, Mr Singh talks about what happened with regard to the medical matters.  Those emails that he talks about are in evidence.  It does show that on 10 April, the solicitor asked Mr Singh to make a deposit into the account of his barrister pursuant to an invoice that the barrister had rendered.  Two days later, the solicitor said:

   “Dear Harjinder

   As discussed, with you on Sunday, today is the last day for submission and if the money is not in Mr Peter Travers’ account, he will not give me a copy to file with the Federal Circuit Court of Australia.

   I tried calling you but you didn’t answer.

   Regards

   Parmesh Chand”

10. The next bit of correspondence is then on Sunday, 17 April, where Mr Chand wrote to Mr Singh and said:

    “Dear Harjinder

    I refer to my conversation about 5 minutes ago. 

    I have copied this email to Mr. Peter Travers. 

    I am also forwarding your mobile number to Mr Travers…. 

    In order to save costs it is advisable that we withdraw the Federal Court appeal and go back to the Tribunal on the basis that you appointed Ms Timea Sandra Pocze-Graf and not Emma Brockhurst. 

    The details are in Mr Peter Travers email.

    Please get back to us as soon as possible.

    Parmesh Chand”

11. The email from Mr Travers reads:

    “Dear Parmesh,

    After a detailed review of Harjinder’s file, I cannot find any grounds to suggest jurisdictional error on behalf of the Tribunal.  As you know, without jurisdictional error there is no grounds for review and it is certain that Harjinder will fail at the upcoming hearing of the application on 28 April 2016.  In addition to his application being dismissed, Harjinder will have costs awarded against him. That is, he will be liable to pay the Minister’s costs of approximately $6,800.00. 

    There are two recent cases in March 2016 (Tangilanu v Minister for Immigration & Border Protections … and Singh v Minister for Immigration) that confirm that there is no jurisdictional error on the part of the Tribunal. Both cases have been handed down since you filed the application on behalf of Harjinder. This is unfortunate for Harjinder as any uncertainty that may have existed at the time of the application has now been clarified by the Court. 

    Further, there are no means by which to apply to extend the time in which the application could be made to the Tribunal.  Unlike the Court, which can extend the appeal period, the Tribunal cannot.  Therefore the decision was not affected by jurisdictional error and Harjinder has no grounds for appeal.

    You may wish to apply to the Minister for relief, but with respect, I expect that such an application would be futile. 

    In the application, you state the Tribunal was aware of a Form 956 advice by a Migration Agent that appointed Ms Timea Sandra Pocze-Graf as the authorised recipient of information for Harjinder. The only Form 956 that appears in the Court Book is that appointing Emma Brockhurst.  Are you or Harjinder able to provide me with a copy of the form 956 or any document of correspondence to the Department appointing Ms Timea Sandra Pocze-Graf. If the Tribunal was, or should have been, aware that Ms Pocze-Graf was the authorised point of contact, Harjinder may have some ground for review.  Please urgently respond on this point as the submissions are past due. 

    Unless evidence that an alternate authorised recipient was appointed, I would not recommend that Harjinder proceed with the application.  If he chooses to proceed, there is no submission I can make on his behalf.  If he chooses not to proceed, I would obviously only charge Harjinder for the time worked on his file. 

    I look forward to your urgent instructions. I do not have any contact details for Harjinder.

    Kind regards,

    Peter”

12. Later that night, Mr Chand, the solicitor, spoke to Mr Singh and then sent another email:

    “Dear Harjinder

    We spoke about 30 minutes ago.  Mr Peter Travers has copied the second email to you. 

    As you can see that Mr Travers has spent Sunday working on your file. 

    We looked at your case from every corner. 

    Since filing your application to the Federal Court, there has been two decisions. In both cases applicants were unsuccessful.  

    As for ministerial intervention, rules are very strict.  If your wife is incapacitated or needs constant care you will have to provide a lot of evidence from doctors.  The case has to be strong. 

    You must not now sit back, you will have to gather evidence. 

    As discussed you will have to get back to soon by close of business tomorrow. 

    You cannot withdraw the case at the last minute.

    Regards

    Parmesh Chand”

13. On 19 April, two days later, Mr Chand sent another email saying:

    “Hi Harjinder

    I have not heard from you. 

    You told me that you will get back to me after talking to your brother.

    Parmesh Chand”

14. Later, he sent another email:

    “Dear Harjinder

    We are waiting for instructions. 

    You promised to call but failed to do so.

    Parmesh Chand”

15. The next email was two days later from Mr Singh, saying:

    “Myself Harjinder Singh I want withdraw my file from federal court and want to gar far for ministry. Thanks.” (Sic)

16. That is the email correspondence that led to the withdrawal. I should say that also Mr Chand has supplied an affidavit where he has said at paragraph 4:

    “Obtaining instructions in this matter was not straightforward as I constantly had difficulty getting into contact with the applicant.  For this reason, our communication was in writing wherever possible. 

    Although I provided the applicant with legal advice in relation to his options in respect of proceeding with the application, at no time did I induce the applicant to withdraw his file and at no time did the applicant’s communications with me, written or verbal, raise the concern that he did not understand the advice I had given or that he did not consent to a notice of discontinuance being filed.

    I spoke to the applicant’s brother on the telephone as I had difficulty contacting the applicant.  I discussed the applicant’s options in respect of proceeding with the application with the applicant’s brother however I did not induce the applicant’s brother to convince the applicant to withdraw from the proceedings. 

    I did not induce or coach the applicant to draft the email of 21 April 2016 providing instructions to withdraw his Federal Circuit Court application. The applicant was however advised that, in the event he wished to withdraw the application, I required those instructions in writing.”

17. Having regard to all of that evidence, I then have to look at what was the reason for the withdrawal.  The reason for the withdrawal was, as I have just said, that the Applicant was given strong and robust advice as to his prospects and what the consequences were of proceeding with an unmeritorious application. 

18. The Applicant, on the evidence before me, took that advice and acted accordingly.  The prospects of success, or even having an arguable case before me, are really nil. 

19. The Applicant did not file his original application with the Administrative Appeals Tribunal within the time.  There is, in effect, a guillotine clause.  If the application is not in by that time, the Tribunal has no discretion to hear the matter.  The two cases quoted in Mr Travers’ advice point that out. 

20. There is no arguable matter that could be put before me in pursuit of the original claim by Mr Singh. 

21. In that case, I have really no option but to dismiss the application to re-open this case. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 9 February 2017