SINGH v Minister for Immigration

[2014] FCCA 2056

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2056

Catchwords:
MIGRATION – Application for judicial review – dismissed for non-attendance – reinstatement – tests for – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.1.06(1), 2.01(1)(b), 13.03C(1)(a), 15A.04(3)(a), 16.05(2)(a)

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066

Applicant: JOGINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 74 of 2014

Judgment of: Judge F. Turner

Hearing date: 4 August 2014

Date of Last Submission: 4 August 2014

Delivered at: Melbourne

Delivered on: 11 September 2014

REPRESENTATION

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application in a Case filed 15 April 2014 seeking to re-instate the application for judicial review filed 15 January 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 74 of 2014

JOGINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This decision involves an application to reinstate an application for judicial review dismissed by Registrar Allaway on 2 April 2014 pursuant to Rule 13.03C(1)(a) of the Federal Circuit Court Rules 2001 (the “Rules”). It was dismissed because the applicant was absent on that day.

2. The applicant filed an Application in a Case on 15 April 2014 seeking reinstatement. The application for reinstatement came on for hearing before the Court on 7 May 2014, but was adjourned at the request of the applicant until 4 August 2014.

3. The applicant filed an Affidavit on 14 July 2014 annexing a medical certificate from Dr Ata Eqbal. That certificate states that the applicant was unfit for work/school/child care from 1April 2014 to 2 April 2014.

4. The first respondent filed written submissions on 6 May 2014 opposing the reinstatement of the application for judicial review. The first respondent submits that the application for reinstatement should be treated as an application pursuant to r.16.05(2)(a) to set aside an order made in the absence of a party.

5. The first respondent submits that the application for reinstatement should not be granted unless the Court is satisfied:

   ·That the applicant has provided a satisfactory explanation for the non-attendance on 2 April 2014, and

   ·That the substantive application filed on 15 January 2014 raises an arguable case for the relief claimed.

6. The Court accepts that submission which is consistent with the principles governing reinstatement referred to by Justice Ryan in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].

7. Justice North held in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18], that if a reasonably arguable prospect of success does not exist, there is no purpose in reinstatement.

8. On 1 August 2014, the applicant’s lawyer sent an email to the Court advising that Dr Eqbal would only attend the hearing on 4 August 2014 if subpoenaed.

9. Rule 15A.04(3)(a) of the Rules provides that:

   (3)Unless the Court directs otherwise:

   (a)a subpoena requiring attendance must be served at least 7 days before attendance under the subpoena is required.

10. Rule 1.06(1) of the Rules provides that “the Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time”.

11. The email to the Court requested that the Court direct that a subpoena could be served on Dr Eqbal on 1 August 2014 for the hearing on

    
    

    4 August 2014, or alternatively that a short adjournment be granted on 4 August 2014 to allow the applicant to subpoena Dr Eqbal to attend.

12. The evidence of Dr Eqbal would be confined to the first principle governing an application for reinstatement (supra) of whether the applicant provided a satisfactory explanation his non-attendance on
    2 April 2014?

13. Even if such an explanation is provided, to succeed with reinstatement the applicant still has to show that he has an arguable case for the relief claimed in his substantive application, for if he has not “there is no purpose in reinstatement”: MZKAJ (supra).

14. At the hearing before the Court on 4 August 2014, the applicant was represented by Ms Thompson and the first respondent by Mr Brown.

15. The Court advised the parties that in order to decide whether the requirements of the Rules as to the time for service of subpoena should be dispensed with, or whether an adjournment should be granted to enable proper service of a subpoena on Dr Eqbal, the Court needs to consider whether the substantive application shows an arguable case for judicial review.

16. The Court therefore invited submissions for the parties as to whether an arguable case exists, the Court would then reserve its decision.

17. Ms Thompson addressed the part in the grounds for judicial review that the applicant’s sponsor had Attention Deficit Hyper-active Disorder (“ADHD”) and the consequences of that. Ms Thompson referred to the sponsor’s Affidavit filed 14 July 2014 and to the annexed Transcript of the hearing before the Tribunal on 19 December 2013 (the “Transcript”). Ms Thompson referred to the Transcript (at p.22, l.34) where the sponsor gave evidence that she has ADHD and stated the consequences of that for the applicant and for her.

18. Ms Thompson submitted that the Tribunal failed to consider that claim.

19. Ms Thompson sought to refer to Annexure ‘ALD–1’ to the Affidavit of the sponsor (Ms Amber Lee Davey) filed on 14 January 2014. Pursuant to r.2.01(1)(b), the Court ruled that the Court would not have regard to that annexure as it could not read it.

20. Mr Brown then addressed the Court. He acknowledged that the sponsor had raised the fact that she has ADHD and the consequences that flow from that for the applicant and the sponsor. He submitted that the Tribunal dealt with the claim, particularly at p.6 [27] of the Tribunal’s decision as follows:

    “The Tribunal asked the sponsor what compelling reasons there were in the applicant’s case that would be such that the Tribunal should waive the Schedule 3 criterion. The sponsor said that the applicant is her husband and he looks after her; they doing many things together and he is the only person who can live with her. The sponsor said that the applicant makes her calm. The sponsor said that if the applicant was required to depart Australia she would go with him and live in India and that she cares for him so much she would go anywhere with him. The sponsor said that she receives Centrelink payments and the applicant’s father sends money on a monthly basis and this is their only source of income because the applicant is not able to work.”

21. The Court finds that the Tribunal considered the claim that the sponsor has ADHD and the consequences of that for her and the applicant. The Tribunal did not find that the hardships and inconvenience as described, would be compelling reasons to not apply the Schedule 3 criterion (Decision p.6 [28]).

22. The Court finds that that part of the ground for judicial review has no merit. No other ground was agitated for the applicant.

23. The Court then adjourned the matter for decision.

24. The Court finds that the applicant does not have a reasonably arguable prospect of success. There is therefore no utility in hearing evidence from Dr Eqbal.

25. The application for re-instatement is dismissed.

I certify that the preceding twenty–five (25) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 11 September 2014