Singh v Minister for Immigration
[2016] FCCA 1694
•6 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1694 |
| Catchwords: MIGRATION – Application in a case – proceeding discontinued by the applicant filing a notice of discontinuance in July 2015 – proceeding terminated at that point – nothing to resurrect – no basis for the grant of any leave – application wholly devoid of merit – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Batra v Minister for Immigration and Citizenship [2013] FCA 274 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | JASPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1003 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 6 May 2016 |
| Date of Last Submission: | 6 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| No appearance by the Applicant |
| Counsel for the First Respondent: | Mr T. Smyth |
| Solicitors for the First Respondent: | Australian Government Solicitor |
///ORDERS
The name of the second respondent be amended to ‘Administrative Appeals Tribunal’ and the title of the proceeding herein be amended accordingly.
The application in a case filed by the applicant on 26 April 2016 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $2,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1003 of 2014
| JASPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
On 26 April 2016, Jaspreet Singh (“the applicant”) filed an application in a case in this proceeding in which he sought the following orders -
1. The Migration Application filed on 29 June 2014 and discontinued by the Applicant on 3 July 2015 be reinstated and allowed to continue and proceed on such terms as the Honourable Court orders.
2. That a final hearing date be set for the Migration Application.
3. That the Honourable Court do hear the Migration Application and if satisfied there has been a procedural error on review, remit the matter back to the Administrative Appeals Tribunal for a new hearing.[1]
[1] Application in a Case filed by the applicant on 26 April 2016 at p.2.
The first respondent (“the Minister”) opposed the application on two main grounds -
a)no factual basis had been demonstrated for the grant of the orders sought having regard to the fact the applicant was required but failed to show exceptional circumstances; and
b)any grant of the orders sought would be futile as the application was devoid of merit.
Synopsis
For the reasons that follow, in my judgment this application must be refused largely for the reasons advanced by the Minister, and I accede to the Minister’s application for the dismissal of the application.
Background factual setting
At all relevant times the applicant was a national of the Republic of India. On 1 December 2010, the applicant applied for a
Skilled (Provisional) (Class VC) subclass 485 visa. In responding to questions on the visa application documentation, the applicant stated that Trades Recognition Australia (“TRA”) had assessed him as a duly qualified management consultant and that TRA had provided receipt number TRA10985382354. The Department of Immigration and Border Protection (“the Department”) investigated the applicant’s visa application and ascertained that aspects of the visa application were false.
Specifically, the Department had no record that TRA had provided a skills assessment that corresponded with the skills assessment mentioned by the applicant in his visa application. The Department stated that the applicant had provided false and misleading information to the Department. On 24 April 2012, the Minister’s delegate refused to grant the applicant the visa he sought.[2] Being dissatisfied with the delegate’s decision, on 11 May 2012, the applicant applied to the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision.
[2] Court Book filed 27 January 2015 at pp.41-46.
In accordance with its usual practice, the Tribunal wrote to the applicant in relation to the issues then of concern to the Tribunal[3] in response to which the applicant supplied various documents to the Tribunal on 26 February 2014.[4] On 7 March 2014, the Tribunal invited the applicant to appear before it on 8 April 2014.[5] The applicant did not respond to that invitation to appear, nor did he in fact appear on
8 April 2014. On 10 April 2014, the Tribunal gave its decision and upheld the decision of the delegate.[6]
[3] Supplementary Court Book filed 2 May 2016.
[4] Court Book filed 27 January 2015 at pp.69-81.
[5] Court Book filed 27 January 2015 at pp.61-62.
[6] Court Book filed 27 January 2015 at pp.84-88.
The Tribunal relied on well-known and well-regarded authorities in finding that the documentation provided by the applicant that incorporated reference to a false TRA assessment was a bogus document or was information that was false or misleading in a material particular. The Tribunal cited Batra v Minister for Immigration and Citizenship,[7] and Trivedi v Minister for Immigration and Border Protection.[8] Being dissatisfied with the decision of the Tribunal,
the applicant applied to this Court on 29 May 2014 for orders that the Minister and the Tribunal show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”).
[7] [2013] FCA 274.
[8] [2014] FCAFC 42.
The grounds of the application were largely narrative, tracing the history of the applicant’s arrival in Australia, his studies, his belief in the power of education and his wish that this Court, on compassionate grounds, grant the applicant an opportunity to prove his intentions as a genuine temporary entrant. The applicant stated in the grounds of review, “[k]indly grant a new student visa that will help me achieve my career goal and meet my parents’ expectations”.[9] While no applicant on the hearing of an application for relief under the Act is expected to prepare a pleading or anything like one, nothing hinted at a basis of jurisdictional error in the applicant’s grounds of review even remotely.
[9] Application filed 20 August 2014 at p.3.
On 19 August 2014, a Registrar of this Court made directions that had the effect of progressing the case to a hearing on 10 August 2015.
On 3 July 2015, almost a year after commencing this case,
the applicant filed a notice of discontinuance. By application in a case filed 26 April 2016, approximately nine months after discontinuing the proceeding, the applicant sought orders in the terms that were set out in paragraph 1 of these reasons. In support, the applicant affirmed an affidavit made on 26 April 2016 in which he asserted as the reason for wishing to reinstate the proceeding that the Minister declined to intervene in this case as a result of which he has no option, so he said, but to continue with this application, and if that occurred, he would be sent home.[10]
[10] Affidavit of Jaspreet Singh affirmed 26 April 2016.
Consideration
In his affidavit, the applicant erroneously stated that in view of the Minister’s refusal to intervene he had no option but to continue with this case. That is wrong. This case terminated when the applicant filed a notice of discontinuance. Without leave there is no case to continue.
I am not willing to grant the applicant the leave he now seeks. In order to give the applicant the relief he sought in his application in a case the proceeding would have to be reinstated. That involves setting aside the discontinuance of the proceeding. Two matters call for examination -
a)the circumstances of the discontinuation of the proceeding; and
b)whether the case had merits if the case were to be resurrected from its discontinuance.
Taking the circumstances of discontinuance first, authority requires me to take into account the fact that the applicant voluntarily filed the notice of discontinuance in July 2015. There was no suggestion that the notice of continuance was procured by fraud or duress or that it was executed or somehow filed without the applicant’s knowledge or consent. The authorities that bear upon the effect of those matters were surveyed by Ryan J in SZFOZ v Minister of Immigration and Citizen[11] and by Ross J more recently in Khadri v Minister for Immigration and Border Protection.[12]
[11] [2007] FCA 1137.
[12] [2014] FCA 91.
All the facts point to the notice of discontinuance having been regularly, voluntarily and properly filed. The notice of discontinuance gave effect to the decision of the applicant to discontinue the claims he made to that point in this litigation. To my mind, the applicant is bound by his decision to discontinue the proceeding, there being no evidence of his decision having been affected by fraud, duress, lack of knowledge or other factor invalidating the voluntary nature of his act. In my judgment, no basis has been shown for setting aside the notice of discontinuance filed by the applicant.
The application for judicial review is devoid of merit. The applicant’s application records as ‘grounds’ a narrative that was discursive and which failed to elucidate any fact, document, proposition or claim, integers or other bases for invoking judicial review on account of jurisdictional error. In saying that, I acknowledge that up to the point in time at which the discontinuation of the proceeding was filed, the application had not advanced very far in this litigation, and therefore little material was before the Court pointing to error committed by the Tribunal.
I also acknowledge that the applicant was unrepresented in the Tribunal and in this proceeding. That said, in order to attract the doctrine of jurisdictional error some claim must be before this Court pointing to the fact that the Tribunal fell into error because it -
a)identified a wrong issue;
b)asked itself the wrong questions;
c)ignored relevant material;
d)relied on irrelevant material; or
e)made an erroneous finding or reached a mistake in conclusion.
Those are the touchstones of jurisdictional error as the High Court has held in such cases as Craig v State of South Australia[13] and in
Minister for Immigration and Multicultural Affairs v Yusuf.[14]
Of course, those five indicia of error were not exhaustive and do not provide a complete or rigid taxonomy of jurisdictional error as the decision of the High Court in Kirk v Industrial Relations Commission (NSW)[15] says.
[13] (1995) 184 CLR 163.
[14] (2001) 206 CLR 323 at [82].
[15] (2010) 239 CLR 531.
In this case, it must also be recalled that the applicant did not respond to an invitation to participate in the interview with the Tribunal. In so failing to respond under the provisions of the Act, the applicant forewent his right to give evidence or to make submissions. Nowhere did he explain why he failed to respond to that invitation from the Tribunal. On the material thus far before this Court, the applicant seems to do little more than plead for a rehearing on compassion grounds. That may be akin to a merits review - an act that this Court has been instructed by higher authority not to do, such as
in Attorney-General (NSW) v Quin[16] and Minister for Aboriginal Affairs v Peko-WallsendLtd.[17]
[16] (1990) 170 CLR 1.
[17] (1986) 162 CLR 24.
The applicant’s final sentence in his grounds of application highlights how devoid of merit the applicant’s application for judicial review truly is when he asserted “[k]indly grant a new student visa that will help me achieve my career goal and meet my parents’ expectations”.[18]
No jurisdictional error is disclosed.
[18] Application filed 20 August 2014 at p.3.
For those reasons, I dismiss the applicant’s application in a case and
I accede to the Minister’s application to dismiss whatever is presently before the Court, which I do.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 7 July 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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