SINGH v Minister for Immigration

[2015] FCCA 312

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 312

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa – whether exceptional circumstances apply – application summarily dismissed. 

Legislation:  
Federal Circuit Court of Australia Act 1999

Federal Circuit Court Rules 2001

Migration Act 1958

Spencer v The Commonwealth of Australia (2010) 141 CLR 118

Applicant: MAJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 144 of 2015

Judgment of: Judge Street

Hearing date: 12 February 2015

Date of Last Submission: 12 February 2015

Delivered at: Sydney

Delivered on: 12 February 2015

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: N/A

Counsel for the Respondent: Ms Nanson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 144 of 2015

MAJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdictions under s.476 of the Migration Act 1958 in respect of which the applicant was seeking relief on the following grounds:

   1. M.R.T. did not take into account mine and my wife circumstances at time of lodgment of my spouse visa application. I do believe that my circumstances are exceptional which were ignored by M.R.T.

2. The matter was returnable before the Court today and the applicant failed to appear.  This is a matter where it is apparent, on the face of the application, that there is no jurisdictional error identified in the grounds and although the Court could, through default of appearance, dismiss the matter I propose to proceed to deal with the matter summarily. I have taken into account the principles and the caution identified by the High Court in Spencer v The Commonwealth of Australia (2010) 141 CLR 118:

   24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said[48]:

   "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

   More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:

   "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

   There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

   25. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

   …

   59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

   60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

3. The Tribunal’s decision that on 6 January 2015, affirmed the decision of the delegate on 10 September 2013 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958.

4. The Tribunal noted that the delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 820.22211(2) because he did not satisfy the schedule 3 requirements and the reasons put forward for consideration were not sufficiently compelling to waive the schedule 3 criteria.

5. The Tribunal turned to the question of whether the applicant met the schedule 3 criteria and relevantly said:

   9. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of the application as the applicant did not enter Australia as the holder of a subclass 995 visa or a special purpose visa.  The issue in the present case is whether the applicant satisfies the schedule 3critera unless there are compelling reasons for not apply those criteria.

6. The Tribunal relevantly found, in relation to the schedule 3 criteria:

   11. The applicant gave evidence which is consistent with the information set out in the delegate's decision that his last substantive visa ceased on I 0 March 2011. The evidence indicates that the application for the visa was made on 1 I February 2013. Having regard to the definition of "relevant day", which is the last day the applicant held a substantive visa or criminal visa (IO March 20I 1), the Tribunal finds that the application was not made within 28 days of the relevant day.

   12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

7. The Tribunal then turned to consider whether there were compelling reasons for not applying the criteria that the applicant was found not to meet under schedule 3.

8. The Tribunal concluded:

   26. Overall, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

   27. There is no evidence that Mr Rezk meets any of the alternative criteria in cl.820.211(3)(9), that is; people entering Australia to marry and who have subsequently married, and the exceptions based on the death of the sponsor, family violence and the birth of a child.

   28. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

9. In my opinion there is a properly identified basis for the findings that were open to the Tribunal.  There is no error apparent in respect of the conduct of the review of the determination of a kind that constitutes jurisdictional error. I am clearly satisfied that there is no arguable issue of jurisdictional error in the conduct or decision of the Tribunal.

10. I am clearly satisfied that the application has no prospects of success. Accordingly, in this case, under s.17A of the Federal Circuit Court of Australia Act 1999 and r.13.10 of the Federal Circuit Court Rules 2001, I summarily dismiss the application.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 February 2015