FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3557 |
| Catchwords: MIGRATION – Partner visa – applicant late to court – application dismissed pursuant to rule 13.03C(1)(c) – reinstatement – explanation – sent to wrong court – no prejudice – whether sufficient arguable case – whether compelling reasons to waive Sch 3 criteria – application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| Applicant: | PARDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2727 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Ward |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to r 16.05 Federal Circuit Court Rules 2001 (Cth), the application for reinstatement of the proceeding be dismissed.
The applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2727 of 2016
| PARDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application dated 14 December 2016, the applicant sought judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 14 November 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Partner visa pursuant to s 65 of the Migration Act 1958 (Act).
Despite orders made on 21 June 2017, setting the application down for hearing and giving the applicant an opportunity to file any amended application and submissions, the applicant did not take those opportunities. He appeared before me self-represented.
The matter was listed for hearing at midday on 5 December 2019. At that time, there was no appearance by or on behalf of the applicant. The court delayed commencement of the hearing for a short time before an order was made pursuant…
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- Case
- [2019] FCCA 3557
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether there were compelling reasons to waive Schedule 3 criteria, and more fundamentally, whether Singh had shown a sufficiently arguable case for judicial review to warrant the reinstatement of his dismissed application. The court was required to consider the threshold for demonstrating an "arguable" ground of review in the context of an application for reinstatement, particularly for an unrepresented applicant whose first language was not English.
Judge Kelly reasoned that the discretion to grant reinstatement does not require the court to be satisfied of the grounds of review to the same standard as a final hearing. Instead, the applicable threshold is whether the grounds for judicial review are "arguable," meaning they are not fanciful, illogical, or devoid of merit, but possess a level of rationality and a basis in the material sufficient for the court to proceed to full argument. The applicant's explanation for his lateness, involving being directed to the wrong courtroom, was accepted, especially as the hearing commenced only 15 minutes after the scheduled time and the Minister's representative conceded no prejudice would arise. Despite the applicant's history of previous visa applications and merits reviews, the court re-examined the materials to assess the arguable basis for review.
The court ordered that the application be reinstated.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing on judicial review.[4] On an application for reinstatement, the threshold which is applicable to consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’.[5] In CAL15, Mortimer J stated:[6]The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)[4] CAL15, [2016] FCA 1344, [5]. [5]CAL15, [2016] FCA 1344, [5] citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391, [62].[6] CAL15, [2016] FCA 1344, [6]. When asked to explain the reason for his absence from court when the matter was called on, the applicant stated that he had in fact arrived at court at 11:45am and had been directed to attend a courtroom on level 8. Although a matter with a similar name was listed for hearing on that day, it was not listed at midday and was not listed for hearing on level 8. The solicitor-advocate for the Minister accepted that no prejudice would be suffered by reason of the reinstatement of the application. I accept that submission, particularly in circumstances where the hearing commenced 15 minutes after its scheduled time. The question is whether there a sufficiently arguable basis for review. In the circumstances, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and the application for review. As appears below, the applicant has previously applied for different visas and those applications have been the subject of merits review on two occasions. The applicant, a male Indian citizen aged 36 years, first came to Australia on 6 June 2009. At that time, he was a dependent on his former wife’s Student visa, which lapsed on 7 October 2011. The day beforehand, on 6 October 2011, the applicant lodged an application for a Temporary Skilled (Graduate) visa. His application was refused by a delegate of the Minister on 5 July 2012. The applicant applied for review of that decision to the then Migration Review Tribunal (MRT), which affirmed the delegate’s decision on 20 June 2013. The applicant’s bridging visa lapsed on 29 July 2013, and he remained in Australia unlawfully until 12 February 2014 when he was granted a Bridging visa. The applicant applied for a Partner visa on the basis of his relationship with Kylie Marie Khaliq (sponsor). In his visa application, the applicant claimed to have met the sponsor in October 2012 at a shopping centre. The sponsor is an Australian citizen who has an adult daughter from a previous relationship. On 12 October 2013, the applicant and sponsor married. Following the grant of his Bridging visa, on 19 February 2014, the applicant lodged the application the subject of this proceeding.