Singh v Minister for Immigration - [2018] FCCA 3359

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3359

Catchwords:
MIGRATION – Review of decision of Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – Application to set aside notice of discontinuance – power not enlivened.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.15

Federal Court of Australia Act 1976 (Cth), s.23

Cases cited:

BZAGD v Minister for Immigration and Border Protection [2016] FCA 670

Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424

Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137

SZUXV v Minister for Immigration and Border Protection [2016] FCA 1321

Applicant:

AMRINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3051 of 2016

Judgment of:

Judge Barnes

Hearing date:

22 October 2018

Delivered at:

Sydney

Delivered on:

22 October 2018

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The Application in a Case filed on 21 August 2018 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3051 of 2016

AMRINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

On 7 November 2016 the Applicant, Mr Singh, filed an application seeking review of a decision of the Administrative Appeals Tribunal dated 20 October 2016 affirming a decision not to grant him a Partner (Temporary) (Class UK) visa. At that time he was self-represented.
In July 2018 the Applicant obtained legal representation. His solicitor filed a notice of address for service on 13 July 2018.
On 25 July 2018 the Applicant, through his solicitor, filed a notice of discontinuance of these proceedings.
On 21 August 2018 Mr Singh filed an application in a case seeking, in effect, to set aside the notice of discontinuance and reinstate his review application. He is self-represented in relation to this application.
In his application in a case and accompanying affidavit Mr Singh stated that he was aware that his application had been withdrawn by his lawyer, but claimed that he did not have much knowledge and that he had done whatever his lawyer said, had signed what the lawyer told him to sign and had sent the notice of discontinuance to the court (although I note that the notice of discontinuance appears to have been signed and filed by the lawyer).
Mr Singh claimed that he believes he did not get justice and that there was legal error in the Tribunal decision; that the Tribunal did not consider his claim that a named child was his biological daughter (but believed his wife) and that it made a grave mistake. He also complained that his wife had refused to have DNA testing and had said that the child was not his, but was the child…

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: [2018] FCCA 3359
Decision Date: 22 October 2018

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning his immigration status. The Minister for Immigration (the respondent) was the opposing party. The application was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the applicant had validly discontinued his application for judicial review. This question arose because the applicant had filed a notice of discontinuance, but subsequently sought to set aside that notice, arguing it was filed under a misunderstanding. The Court was therefore required to determine the circumstances under which a notice of discontinuance, once filed, could be set aside.

Judge Barnes reasoned that the power to set aside a notice of discontinuance is not automatically enlivened simply by a party changing their mind or claiming a misunderstanding. The Court considered the principles governing discontinuance and the limited circumstances in which such a step could be revisited. His Honour concluded that the applicant had not demonstrated sufficient grounds to justify setting aside the notice of discontinuance.

Consequently, the Court ordered that the application for judicial review be dismissed.

Orders