SINGH v Minister for Immigration - [2019] FCCA 453

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 453

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – subclass 187 (Regional Sponsored Migration Scheme) – reinstatement application of applicant’s judicial review application – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Gallo v Dawson (No 2) [1992] HCA 44
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1996) 162 CLR 24
MZKAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 1066

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17

Applicant:

GAGANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2515 of 2017

Judgment of:

Judge Mercuri

Hearing date:

21 February 2019

Date of Last Submission:

21 February 2019

Delivered at:

Melbourne

Delivered on:

1 March 2019

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the respondents:

Mr Lipinski

Solicitors for the respondents:

Clayton Utz Lawyers

ORDERS

The applicant’s application in a case filed 21 August 2018 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $2,270.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2515 of 2017

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application in a case filed by the applicant on 21 August 2018 seeking the reinstatement of his application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”). The applicant filed an application for judicial review of a decision of the tribunal made 24 October 2017.
The applicant’s judicial review application was listed before

Registrar Allaway on 8 August 2018. On that date, the applicant failed to appear and his application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
Rule 16.05 of the FCC Rules relevantly provides:
(3)The Court or a Registrar may vary or set aside a judgement or order after it has been entered if:
(a)it was made in the absence of a party…
Although no reference is made specifically to rule 16.05 of the FCC Rules in the applicant’s application, the delegate for the Minister for Immigration and Border Protection (“the Minister”) accepts that the applicant is seeking an order pursuant to that rule but opposes that application.
The applicant filed an affidavit in support of his reinstatement application affirmed 16 August 2018.
In that affidavit, the applicant states that he filed a judicial review application in November 2017 which was listed for ‘hearing’ on

8 August 2018. He further states that he was unable to attend on that day as he had suffered from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 453
Decision Date: 1 March 2019

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme). The Minister for Immigration (the respondent) opposed the application. The matter came before Judge Mercuri in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law when it dismissed the applicant's application for reinstatement of his judicial review application. This involved considering the AAT's powers and the circumstances under which it could reinstate an application that had been dismissed for non-compliance with directions.

Judge Mercuri reasoned that the AAT had correctly applied the relevant provisions of the *Administrative Appeals Tribunal Act 1975* (Cth) and the *Migration Act 1958* (Cth). The Court found that the applicant had failed to comply with the directions issued by the AAT, and that the AAT had not erred in law in its assessment of the applicant's reasons for non-compliance or in its decision to dismiss the reinstatement application. The principles of procedural fairness were considered, but the Court determined they had not been breached by the AAT's actions.

The application for judicial review was dismissed.

Orders