SINGH v Minister for Immigration
[2016] FCCA 2746
•25 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2746 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (class BS) (subclass 801) visa – whether the Tribunal complied with its statutory obligations to dismiss the reinstatement application under s.362B(1A)(b) – application of s.362C – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.362B, 362C, 379, 476. Migration Regulations 1994, Schedule 2 - cls.801.221, 820.221. |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 118. |
| Applicant: | JATINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1658 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 25 October 2016 |
| Date of Last Submission: | 25 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2016 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Mr D McLaren Minter Ellison |
ORDERS
The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The Applicant pay the First Respondent’s costs fixed in the amount of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1658 of 2016
| JATINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 June 2016 affirming a decision of the delegate to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (class BS) (subclass 801) visa and affirming a decision of the Tribunal made on 7 June 2016 to dismiss the applicant’s application under s.362B(1A)(b) of the Act. The applicant is a citizen of India.
The Delegate’s Decision
On 16 March 2015, the delegate identified the criteria that the applicant had to meet to be granted a Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (class BS) (subclass 801) visa. The delegate found the criteria to grant both of those visas had not been met.
The delegate referred to the attempt of an officer of the Department to contact the applicant on 19 December 2014 and the further attempt to contact the applicant on 16 January 2015. The delegate referred to the communications received from the applicant’s migration agent on 27 January 2015.
On 28 January 2015 the applicant was sent a letter providing the applicant with an opportunity to comment on allegations that the relationship had broken down. There was an explanation in the letter as to the circumstances where, even if the relationship has broken down or ended, a visa can still be granted.
The delegate noted that the applicant was given 28 days to provide a response, and that no response was received. The delegate referred to the supporting material that had been provided, and in particular, the breakdown of the relationship on 27 January 2015. The delegate found that the applicant was no longer the spouse of the sponsor and that the applicant fails to meet subclause 820.221(1)(a) of the Migration Regulations 1994 (“the Regulations”).
It was in those circumstances that the delegate found that the criteria for the grant of Partner (Temporary) (Class UK) Subclass 820 visa were not met and that the applicant did not meet cl.801.221 of the Regulations. As a result, the applicant did not meet the criteria for the Partner (Residence) (class BS) (subclass 801) visa.
The Tribunal’s Decision
On 2 April 2015 the applicant applied for a review of the delegate’s decision. The application for review included the details of a migration agent representative and the migration representative’s email address.
By email dated 12 April 2016, the Tribunal invited the applicant to attend a hearing on 26 May 2016, because having considered the material before the Tribunal, the Tribunal was unable to make a favourable decision on the information alone.
The emailed letter included a statement:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted you must assume the hearing will go ahead. If you do not attend the scheduled hearing we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
That email, which attached the letter to the applicant and attachments, was sent to the correct email address identified in the application for review, which the applicant was taken to have received pursuant to s.379C(5) of the Act. There was no response to the invitation to appear and the applicant failed to appear on that date.
On 7 June 2016, almost 10 days after the hearing date, the Tribunal noted that the applicant had not appeared at the scheduled hearing and that no satisfactory reason for the non-appearance of the applicant had been communicated to the Tribunal. The Tribunal had decided to dismiss the application under s.362B(1A)(b) of the Act without further consideration of the application or the information before the Tribunal. That statutory course was open to the Tribunal in accordance with the statutory regime.
The applicant was notified of the decision of the Tribunal made on 7 June 2016 and given a further opportunity in accordance with section s.362C of the Act to seek reinstatement of the application within 14 days. The notification of the decision on 7 June 2016 was sent again to the correct email address of the migration agent on the applicant’s application for review.
The Tribunal noted that the applicant had not applied for reinstatement of the application within the 14 day period when the Tribunal confirmed the decision to dismiss the application and affirmed the decision under review. The notification to the applicant for reinstatement complied with s.362C of the Act.
Proceedings Before this Court
On 28 June 2016 the applicant lodged an application with this Court identifying the following grounds:-
1. jurisdictional error and lacked jurisdiction
2. Error in interpretation of legislation
3. Natural Justice.
At the commencement of the hearing, the Court explained to the applicant that the matter was listed today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.
The Court explained that this was a hearing to determine whether the applicant had an arguable case. The Court explained that the Court was considering whether there was a reasonable argument that the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness under the statutory regime.
The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The Court explained that if satisfied there was a reasonable argument that the Tribunal’s decision was unlawful or a reasonable argument that the Tribunal’s decision was unfair, the matter would be fixed for hearing on another occasion.
The Court explained that if not satisfied that there was a reasonable argument that the Tribunal’s decision was unlawful or unfair, the application would be dismissed. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant identified that he wanted to get a lawyer and sought an adjournment. No earlier notice of an adjournment had been given to the first respondent. The applicant asked the Court to appoint a lawyer and the Court indicated that it did not propose to do so.
The applicant submitted that he had a job for a number of months and had spoken to a friend very recently who suggested he might be able to get a lawyer. The proceedings were commenced on 28 June 2016. The Court is not satisfied that there would be any utility in granting an adjournment in the present case. An adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.
From the bar table, the applicant maintained that he was very sick at the time of the hearing and could not attend. The applicant suggested that he did not know of the 14 day opportunity to reinstate the application. Under the statutory regime, the applicant was taken to have received the communication sent to the correct email address.
The applicant asked for a further opportunity to put on evidence. The Court again explained that it could only determine whether the Tribunal’s decision was lawful or whether the Tribunal’s decision was unfair and that the Court did not have power to make a determination on compassionate grounds or to revisit the merits.
A Registrar of the Court made orders on 25 August 2016 providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error.
I accept the submissions of the first respondent that the unparticularised grounds in the application fail to identify any arguable jurisdictional error. On the material before the Court, the Tribunal complied with the statutory obligations in the conduct of the review and there is no basis to assert that the Tribunal acted in excess of jurisdiction or engaged in any jurisdictional error.
There is no substance in the proposition that there is an error in the interpretation of the legislation by the Tribunal. The Tribunal complied with its obligations of procedural fairness under the statutory regime in the conduct of the review. The bare assertion of a want of natural justice does not identify any arguable jurisdictional error.
Conclusion
I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The application fails to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.
The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 10 November 2016
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