SINGH v Minister for Immigration - [2015] FCCA 3007

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3007

Catchwords:
MIGRATION – Application to reinstate – applicant’s explanation for delay – no arguable case.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)

SZRJY v The Minister for Immigration and Another(No.2) [2012] FMCA 756
Nukala v Minister for Immigration & Anor [2013] FCCA 2322
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 250

Applicant:

GURPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 639 of 2015

Judgment of:

Judge Harland

Hearing date:

22 October 2015

Date of Last Submission:

22 October 2015

Delivered at:

Melbourne

Delivered on:

22 October 2015

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Mr Hutton

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application in a case filed on 22 July 2015 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 639 of 2015

GURPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application to reinstate the proceedings pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth). The applicant’s application for judicial review was dismissed at the directions hearing, pursuant to r.13.03C(1)(c) due to the applicant’s non-appearance. The applicant filed an application in a case seeking reinstatement and filed an affidavit explaining that he missed the Court date because he missed his flight from San Francisco to Melbourne.
The applicant deposed that he had travelled to San Francisco and that he had a flight booked for 4 July 2015 to return to Australia in time for the directions hearing on 8 July 2015 but missed his flight because of heavy traffic. He then returned to Australia on 17 July 2015. The applicant was cross-examined by the solicitor for the Minister and explained that he did not book his return ticket until he was in the US on 17 June 2015 and that he did not attempt to contact the Minister or the Court to say that he would be unable to make his Court appearance because his phone was broken. However, in fact, what he said in cross-examination was that he did not have any of his Court documents so did not have his Court reference. It was clear that he had been in contact with friends, as he said under cross-examination, they had helped him reorganise his flights.
The Minister’s point is that he could have asked his friends to contact the Court or the Minister even without having the case reference to at least attempt to advise of his inability to attend Court and that he also should have advised the Minister in advance of travelling overseas so that the Minister would have been on some notice that there might have been some difficulty. It is clear that the Court has a discretion, pursuant to r.16.05 as to whether or not to reinstate an application. Barnes FM, as she then was, in SZRJY v The Minister for Immigration and Another(No.2) [2012] FMCA 756, said as follows at paragraph 15 and 16:
“The discretion in rule 16.05 must be exercised judicially and with caution, although the overriding principle is whether it is in the interests of justice to set aside orders that have been made by a Court in the absence of a party. In determining whether it is in the interests of justice and whether to exercise the discretion to reinstate the proceedings, it is relevant to consider whether the applicant has provided a satisfactory explanation for his absence and demonstrated that there is an arguable case in the principal proceedings (see Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 and cases sited therein).
While I accept what the applicant says in relation to his lack of English skills, as Raphael FM noted in SZMWX v Minister for Immigration & Anor [2009] FMCA 115 at [4], the Court deals with many cases brought by people who do not speak English but most attend Court. As his Honour put it, “[i]t is an applicant’s responsibility to ensure that he is aware of when his matters are being heard in Court”.
In this case, the applicant is able to speak English and does not need the assistance of an interpreter.
Judge Riethmuller also referred to this rule in Nukala v Minister for Immigration & Anor [2013] FCCA 2322 and said at paragraph 3:
“There is no question that I have the power to set aside the dismissal order on the basis that it was made in the Applicant’s absence. In exercising the discretion to determine whether or not to set aside such an order, it is relevant to have regard to the explanation for the absence of the Applicant at the hearing and, importantly, to look at the prejudice to the parties and whether or not the Applicant can demonstrate an arguable case”
The Minister submits that the applicant’s application for delay is inadequate. In my view, whilst in some respects that is correct, it seems odd that the applicant had not booked a return ticket before having left Australia. He also said that as soon as he arrived in Australia, he contacted the Court and found out that his application had been dismissed. The more important issue, and I accept the submissions of the Minister in this regard, is that the explanation for delay is a secondary matter and that the primary matter is whether or not the applicant can demonstrate that he has an arguable case.
In deciding whether or not it is in the interests of justice to allow the case to be reinstated, it is necessary to look at the strength of the case before the Court. The applicant simply says in his application that the Tribunal made a jurisdictional error. He does not give any particulars as to what that error was and the submission that he made before me today was really seeking for me to re-determine the matter on the merits or even more than that, saying that he had been misled by his migration agent.
He acknowledged that bogus documents had been used or false documents had been used, but that he basically had bad advice and really wants to be given another chance so that he can support his family. It is certainly the case that for many applicants appearing unrepresented in these proceedings, that it is difficult for them to grasp the legal arguments that the Court has to consider. As I explained during the course of the hearing, the exercise of judicial review is limited to looking at whether or not there is a jurisdictional error that the Tribunal has made.
It is not a matter of this Court having the power to re-determine the case and looking at the Tribunal decision. I cannot see from the decision what error it could have made, as it is clear, and the applicant had conceded this, that he had not complied with the conditions of the visa, because the work reference was false. He therefore had not complied with an essential aspect of the visa, which is having a valid skills assessment.
In those circumstances, I cannot see how the Tribunal could have come to any other decision than it did. I refer to the Federal Court decision of Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 250. There is a need to show an explanation for the delay and an arguable case and in this matter, the absence of an arguable case is the most significant factor.
If there was an arguable case, I may have been willing to accept the explanation for the delay, although it has some deficiencies, but really because there is no arguable case I cannot see how it would be in the interests of the administration of justice which involves the Court having to case manage a lot of cases competing for time before it to grant the reinstatement application. So for these reasons I will dismiss the application in a case and award the first respondent’s costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 9 November 2015