Singh v Minister for Immigration

[2019] FCCA 1432

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1432

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) Subclass 820 visa – whether the applicant was notified of the hearing date in accordance with the statutory regime – whether it was reasonable and open to the Tribunal to dismiss the application – whether the applicant had a real opportunity to seek reinstatement of the proceedings – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362, 362B, 362C, 375A, 476

Applicant: KULWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2366 of 2015

Judgment of: Judge Street

Hearing date: 28 May 2019

Date of Last Submission: 28 May 2019

Delivered at: Sydney

Delivered on: 28 May 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Davyskib
Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 28 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2366 of 2015

KULWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 August 2015, affirming a decision of the Tribunal made on 30 July 2015 to dismiss the application made by the applicant for review of a decision of the delegate made on 20 June 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa.

2. The applicant is a citizen of India who arrived in Australia on 20 January 2008 as a holder of a Student (subclass TU-573) visa. On 5 October 2012, the applicant applied for the Partner (Temporary) (Class UK) visa, which the delegate refused to grant on 20 June 2014.

3. The applicant applied for review on 9 July 2014. On 28 July 2015, the applicant was sent an invitation to appear at a hearing on 28 July 2015 before the Tribunal. The applicant failed to appear at that hearing. The invitation was sent to the email address identified in the application for review.

4. On 30 July 2015, the Tribunal found the applicant had been invited to appear and had failed to appear and that there was no satisfactory reason for the non-appearance. The Tribunal decided to dismiss the application without further consideration, under s 362B(1A)(b) of the Act. That decision was sent to the applicant on 19 August 2015, giving the applicant an opportunity to seek to have the application for review reinstated.

5. On 18 August 2015, the Tribunal found that the earlier Tribunal had dismissed the applicant under s 362(1A)(b) of the Act, in circumstances where the applicant had failed to appear before the Tribunal. The Tribunal found the applicant was notified of the dismissal and given a written copy of the decision in accordance with s 362C(5) of the Act. The Tribunal found the applicant was advised that reinstatement of the application could be sought within 14 days and as the applicant did not seek to make any application for reinstatement within 14 days, the Tribunal affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 28 August 2015. On 8 October 2015, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant indicated he did not wish to put submissions. The Court reminded the applicant it would not call upon the solicitor for the first respondent if the applicant did not put any submissions. The applicant did not put forward any submissions.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal erred in making final decision. The MRT adopted harsh approach to judge the application criteria.

   2. The Tribunal made decision in hurry based on incomplete information.

   3. The Tribunal did not provide sufficient opportunity to provide the required information.

Ground 1

1. Ground 1 fails to identify any basis upon which the Court could find the decision was the subject of a jurisdictional error. On the face of the material before the Court, the applicant was notified of the hearing date in accordance with the statutory regime and it was reasonable and open to the Tribunal to dismiss the application under s 362B(1A)(b) of the Act.

2. Further, on the material before the Court, the applicant was notified of that decision and given an opportunity to reinstate the proceedings. In those circumstances, it was open to, and reasonable for, the Tribunal to affirm the decision under review. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, this ground fails to identify any relevant error by the Tribunal. For the reasons already given, on the face of the material before the Court, the Tribunal complied with its statutory obligations and acted reasonably in determining to dismiss the applicant’s application for review where he failed to appear and acted reasonably in affirming that decision after the applicant was notified of the same and given an opportunity for reinstatement. No jurisdictional error arises by reason of ground 2.

Ground 3

1. In relation to ground 3, the applicant’s disagreement with the adequacy of the opportunity given to him, does not identify any relevant error. On the face of the material before the Court, the applicant had a real opportunity to seek reinstatement of the proceedings and did not do so within the time period identified. No jurisdictional error arises by reason of ground 3.

Section 375A Certificate

1. The first respondent, consistent with their duty as a model litigant, has raised with the Court the existence of a certificate under s 375A of the Act, dated 21 July 2014, that was given to the Tribunal. The Minister has submitted that the existence of the certificate, in the circumstances of the present case, is not capable of giving rise to a relevant error where the applicant failed to appear. In those circumstances, the applicant suffered no practical injustice by reason of the non-disclosure of the certificate or the documents the subject of the certificate.

2. I accept the submissions of the first respondent in that regard. As the applicant failed to appear, the non-disclosure of the certificate or the documents the subject of the certificate could not possibly have had an impact on the outcome of the review. The applicant suffered no practical injustice by reason of the non-disclosure of the certificate or the documents the subject of the certificate. Accordingly, no jurisdictional error arises by reason of the non-disclosure of the certificate.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2019