Singh v Minister for Immigration
[2019] FCCA 3179
•6 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3179 |
| Catchwords: MIGRATION – Application for reinstatement – where no prospect of success in substantive application – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Cases cited: MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 SZWBH v Minister for Immigration & Border Protection [2015] FCAFC 88 |
| Applicant: | NAVRAJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 146 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 30 October 2019 |
| Delivered on: | 6 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for re-instatement be dismissed.
Written reasons for judgment be published from Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $305.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 146 of 2019
| NAVRAJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 30 October 2019, this matter came before the Court in response to the applicant filing an application in a case seeking reinstatement of an application which was dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”).
The Court heard submissions from the Minister to the effect that the application should not be reinstated because the substantive application had no prospect of success. The applicant also conceded that his application had no reasonable prospect of success.
Accordingly, the Court made orders as follows:
1. The application for re-instatement be dismissed.
2. Written reasons for judgment be published from Chambers at a later date.
3. The applicant pay the first respondent’s costs fixed in the sum of $305.
What follows are the reasons for judgment referred to in order 2 above.
Background
In an application filed 18 April 2019, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 28 March 2019. The Tribunal dismissed the applicant’s application for non-appearance. Inferably, the applicant also sought review of a decision dated 12 April 2019 which confirmed that non-appearance decision.
The consequence of the Tribunal’s decisions was that a decision of the first respondent (the “Minister”) not to grant the applicant a Regional Employer Nomination (Permanent) visa (the “visa”) was left undisturbed.
When this matter came on for final hearing before this Court on 27 August 2019 the applicant failed to appear. The Court dismissed the application for non-appearance and ordered the applicant to pay the Minister’s costs.
Almost one month later, the applicant filed the present application. That application asked that the Court’s orders of 27 August 2019 be set aside pursuant to r.16.05(2)(a) of the Rules. The applicant filed an affidavit in support of his application for reinstatement.
The Minister opposed the application for reinstatement and on 30 October 2019 moved for the application be dismissed on the basis that there was no reasonable prospect of success. In effect, the basis of the Minister’s submissions was that, in light of the facts of this case and the decision in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88]-[89] (“Singh”), the substantive application in this Court would inevitably fail.
The Court asked the applicant if he understood what was being advanced by the Minister. He indicated that he did.
When the Court asked if the applicant understood that his substantive application had no reasonable prospect of success, he responded, “Yes. That’s fine, but I needed some time to submit my documents…”. He further re-iterated that he needed more time for his employer to return from India to submit more documents.
The Court briefly adjourned to consider the materials that had been filed in the matter – namely, the judicial review application, the applicant’s affidavits, the Court Book and the Minister’s submissions dated 15 August 2019 – to determine if the Minister’s submission was correct and the application did, in fact, have no prospect of success before this Court.
Upon return, the Court indicated to the applicant that the Minister’s submission was jurisprudentially correct and, on that basis, it could not assist him. The application was, accordingly, dismissed. The Court also indicated that, to the extent he sought further time to file more documents in relation to a different visa (as was suggested), the Court did not have jurisdiction in relation to the separate visa in question.
Re-Instatement
In MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530, Ryan J (at [7]) identified three relevant considerations for the Court to consider when determining if it is in the interests of the administration of justice to reinstate a substantive application. Those considerations are:
a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
b)the existence and nature of any prejudice which might flow to the Minister from reinstatement, and the extent, if any, to which that prejudice can be mitigated by other relief such as costs; and
c)whether the applicant has a reasonably arguable prospect of success on the substantive application.
The Court is not confined to these factors. It is, ultimately, a discretion for the Court to determine if it should reinstate the application.
It will rarely be in the interests of the administration of justice to set aside orders where there would be no reasonable prospect of the applicant succeeding in the substantive application. Here, this was the determinative factor in the Court making the orders it did.
The circumstances of this case are that:
a)the business the applicant nominated as his Sponsor had their nomination refused;
b)the applicant’s visa was thus refused by a delegate on the basis he had no approved sponsor as required by cl.187.233 of sch.2 of the Migration Regulations 1994 (Cth) (the “Regulations”);
c)the applicant applied for review by the Tribunal. The Tribunal invited the applicant to comment on the fact that the position identified in the visa application was not approved, and that the decision to refuse the nomination was not the subject of an application for review; and
d)the applicant did not respond to the invitation and failed to attend the Tribunal hearing. The Tribunal dismissed the application for non-appearance and then confirmed that decision as the applicant had failed to apply for reinstatement.
While the Court recognises that the grounds of the applicant’s judicial review application (which were largely repeated in his affidavit in support of the application in a case) arguably identified grounds of review that a Court would ordinarily consider and seek the applicant to comment upon, here the materials clearly indicate that the only decision open to the Tribunal to make was that the visa was to be refused.
Further, the only decision open to the Tribunal to make if the matter were remitted by this Court would be to refuse the visa. Hence, any remittal would be futile. For this reason, the application for re-instatement should be dismissed.
While the applicant indicated that he was awaiting his employer to return from India and that he would provide documents, these would not have any bearing on the success of the application. The employer to which the applicant appeared to be referring was a new employer – not the employer who had nominated the applicant in relation to the visa the subject of review before this Court.
The applicant cannot seek a nomination from a new employer in order to meet the criterion of cl.187.233 if the matter were to be remitted. Hence, the documents the applicant suggests he was waiting for would be of no assistance if the Court were to allow him to put on that evidence.
Further, even a new nomination in the same position made by the original employer could not be relied upon. The visa application must be considered against a specific employer nomination the applicant has declared in their visa application and a specific approval of that nomination by the Minister: Singh at [88]-[89].
The applicant’s employer’s nomination was refused, and his employer did not seek review of the decision. If the employer were to do so now, the Tribunal would have no jurisdiction as the time in which the employer could seek review is now outside of the statutory limit. The materials in the Court Book indicated that at the time the applicant applied for review with the Tribunal (and at the time the Tribunal sought the applicant’s comment upon his lack of approved nomination), the statutory time limit for the employer had well and truly passed. Hence, the application for review at the Tribunal was doomed to fail.
In effect, if the matter were remitted the Tribunal would have no choice but to affirm the decision as the applicant does not meet the mandatory criterion of cl.187.233.
The application therefore has no reasonable prospect of success and even if the Court found (as it has assumed in this case) all other factors weighed in favour of the orders being set aside, it would not have been in the interests of the administration of justice to set aside the orders given there was no reasonable prospect of success.
Conclusion
The Court acknowledges that the applicant’s judicial review application and affidavit identify matters that arguably assert jurisdictional error (see [14] and [17]-[18] of the judicial review application and [20] of the affidavit). The Court also acknowledges that the Tribunal arguable acted outside the scope of authority in inviting the applicant to attend a hearing in circumstances where he had failed to respond to the invitation to comment.
Nonetheless, the critical flaw in the application as a whole was that the applicant could not and cannot meet cl.187.233 of the Regulations. Hence, it was not necessary for the Court to explain to the applicant that he must prove that the Tribunal had fallen into jurisdictional error. To this end, the Court is satisfied that there was no procedural unfairness in the Court proceeding in the way it did.
It is noted that this was not a first court date and it was not the case that there was no material before the Court to base its assessment of the merits of the application upon. In reality, all of the arguments and evidence in respect of the substantive application had been filed prior to the final hearing listed on 27 August 2019, which the applicant had failed to attend. It is not the case that the applicant was called upon to resist an application for his matter to be dismissed without any notice that was the case. The applicant had been on notice of the very point that the Minister raised as the basis for the Court dismissing the application to set aside since he had been served the submissions on 15 August 2019 (submissions the Minister confirmed service of on 27 August 2019).
The matter that was put against the applicant on 30 October 2019 was a matter that applicant had had time to prepare and to meet: SZWBH v Minister for Immigration & Border Protection [2015] FCAFC 88. Further, when called upon to answer the Minister’s submission (and, after confirming that he understood the submission), the Court plainly asked the applicant if he understood there really was no prospect of success. He agreed, stating that was “fine”.
For the reasons expressed above, and on the Minister’s application and after hearing from the applicant, the Court dismissed the application for reinstatement on 30 October 2019.
Finally, the Minister sought costs fixed in the amount of $400. It was unclear how the Minister arrived at that figure. Noting that the Court’s scale for a matter such as this was in the sum of $305, the Court ordered costs fixed in the sum of $305.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 November 2019
0
2
3