Singh v Minister for Immigration
[2018] FCCA 3359
•22 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3359 |
| Catchwords: 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In his application in a case and accompanying affidavit Mr Singh stated that he was aware that his application had been withdrawn by his lawyer, but claimed that he did not have much knowledge and that he had done whatever his lawyer said, had signed what the lawyer told him to sign and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 of another relationship. He claimed that the Tribunal did not give him natural justice.
In his affidavit of 21 August 2018 (on which he was cross-examined today) Mr Singh in essence repeated what he said in his application. He also claimed that he was “misguided” by his lawyer and “confused”.
Mr Singh has been in Australia for some 10 years. It is apparent from this cross-examination that he has a good understanding of the English language. He completed senior secondary education in India. His evidence was that he was aware that he had discontinued the review application. He acted on the advice of his lawyers to do so. He knowingly authorised his lawyers to discontinue the proceedings, understanding the consequences. He agreed to do so because he was acting on the advice of his lawyers.
Mr Singh’s evidence was that after he discontinued the proceeding he decided that he had received poor advice from his lawyer. He agreed that it was in this sense that he claimed that he was misguided by his lawyer, who he said had indicated that his proceedings would not be successful and that it would be a good idea to discontinue. Mr Singh claimed that, it was after he later talked with friends, that he decided that it had been not a good idea to discontinue and now thought, on the basis of the advice of his friends, that his case may succeed. He also told the court that he was concerned about losing contact with the child and having to return to India.
The circumstances in which the court has power to reinstate proceedings which have been discontinued are limited. There is no express power in the Federal Circuit Court Rules 2001 (Cth) (the Rules) to set aside a notice of discontinuance, although the court has an inherent or implied power (see Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424 at [41]). The Federal Court has considered the circumstances in which this court’s inherent power is enlivened in several cases. In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, at [15]-[20], Ryan J referred to the absence of any express provision in the Rules of this court (then the Federal Magistrates Court) and to the limited circumstances in which a court may exercise its power to reinstate proceedings regularly discontinued under the Rules (as was Mr Singh’s application). His Honour referred to situations involving an abuse of process or those which, as stated at [20]: “otherwise … enliven the inherent power of the Court to prevent injustice.” Ryan J pointed out (at [20]) that “it cannot lie in the mouth of a party … who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process.” It was suggested that courts also “probably have an inherent power to set aside a discontinuance … procured by fraud or duress”.
Insofar as there later appeared to be a possible suggestion that a court may have a wider power to reinstate proceedings “in the interests of justice” (see, for example, Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 at [6] and [27]-[28]), the critical authority for present purposes is the decision of the Full Court of the Federal Court in Chen. While this decision was in relation to reinstatement of an appeal in the Federal Court the reasoning in Chen has been followed in relation to the power of this court to set aside a notice of discontinuance (see, notably, in BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 and SZUXV v Minister for Immigration and Border Protection [2016] FCA 1321).
In Chen, the Full Court expressed the view (at [41]) that the Federal Court had an “implied” power or else a power pursuant to s.23 of the Federal Court of Australia Act 1976 (Cth) (and see the equivalent provision in s.15 of the Federal Circuit Court of Australia Act 1999 (Cth)), to reinstate a discontinued appeal in an appropriate case in order to prevent an abuse of process of the Court or to protect the integrity of the processes of the Court.
However the Full Court also expressed the view (at [42]) that it did not consider that the Court was possessed of an implied or express power simply to reinstate a discontinued appeal in “the interests of justice”. Their Honours explained, at [46]-[47]:
While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.
The Full Court found in the circumstances in Chen that the power to prevent an abuse of the Court’s process was not enlivened. It acknowledged (at [48]) that the power to reinstate an appeal was discretionary in nature and that if it had been enlivened, then the prospects of success of the proposed proceeding may be taken into account. It also found (at [54]), that even if the Court’s power had been enlivened, it would not be appropriate to reinstate the appeal where it did not have reasonable prospects of success.
Chen was followed by the Federal Court in SZUXV in which Jagot J stated (at [8]) that the correct approach to adopt in relation to an application to this court to set aside a notice of discontinuance was the approach taken in Chen, which confined the discretion to cases in which the setting aside of the notice of discontinuance was “necessary to prevent an abuse of process or to protect the integrity of the process” (also see BZAGD to the same effect).
Jagot J also observed in SZUXV (at [8]) that the primary judge had agreed with the submissions from the First Respondent that the proposed ground of review did not have a reasonable prospect of success and found (at [9]) that, whichever way the application was assessed, it lacked merit.
I have considered the application to set aside the notice of discontinuance in light of these authorities. However there is nothing in the circumstances before the court to establish that reinstatement of the application is necessary in order to prevent an abuse of process or to protect the integrity of the processes of the court.
Mr Singh made a deliberate and informed choice to file, through his lawyers, the notice of discontinuance. It was regularly filed in accordance with the Rules. I accept that Mr Singh acted on the advice of his lawyers, but there is nothing in the evidence or in Mr Singh’s submissions to raise any concern in relation to the circumstances in which that advice was given or the nature of that advice. There is also nothing to raise even an arguable suggestion of fraud or duress in the present case.
The fact that the Applicant has now changed his mind and decided that he may have some prospects of success, is not such as to indicate that the discontinuance was procured by fraud or duress or that there was any abuse of process. He was aware he discontinued the proceedings. He authorised his lawyers to do so, knowing the consequences. He acted on the advice of his lawyers. The court’s power to set aside the notice of discontinued is not enlivened.
The solicitor for the Minister suggested that the advice of Mr Singh’s lawyer was sound advice, as the substantial application could not succeed. Strictly speaking, it is not necessary for me to consider the prospects of success. However, even if the power to reinstate the proceedings was enlivened (or if it had been open to the court to have regard to the interests of justice), in this case the Applicant’s review application has no reasonable prospects of success. In essence, his application for a partner visa was refused by the Tribunal not simply on the basis of the sponsor’s evidence (as he complained in submissions today), but in light of his own evidence that while he and his sponsor had previously lived together as husband and wife, some 10 months to a year earlier they had separated and since that time had lived apart. There was also no evidence before the Tribunal that they had joint financial commitments or that they share any obligations or responsibility, although they occasionally met and Mr Singh gave the sponsor money on occasion.
Unsurprisingly, in these circumstances the Tribunal found that on Mr Singh’s evidence (as well as his sponsor’s) the relationship had ceased (albeit that her evidence was that it had ceased at an earlier time). Regardless of when the parties had separated, the Tribunal was satisfied the relationship had ceased. It was also unable to be satisfied that at the time of the decision the parties were in a spousal relationship, because the Applicant had not provided any evidence concerning the relevant aspects of spousal relationship referred to in the definition of “spouse” in the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). No even arguable jurisdictional error has been identified in the Tribunal’s approach in this respect.
I note, for the sake of completeness, that the Tribunal also turned its mind to the alternative means by which a visa applicant may satisfy applicable time of decision criteria for the class of visa in question, notwithstanding that a spousal relationship was not continuing (in particular, in circumstances in which a person had custody or joint custody or access to, or had a residence order or contact order under the Family Law Act 1975 (Cth) relating to, a child). The Tribunal considered whether the Applicant could satisfy this criterion, but found that he had not claimed (and nor was there any evidence) that he had any custody or access or other court orders in respect of the child. Nor was there any independent evidence that at the time of decision the Applicant satisfied any of the other criteria for the grant of the visa. No arguable jurisdictional error is apparent in this respect.
The Applicant’s concern that the Tribunal hearing was one-sided or that he was denied procedural fairness is unsupported by any evidence.
His concern about being separated from the child if he has to return to India is understandable, but the court has no discretion on humanitarian grounds to reinstate proceedings or to set aside a Tribunal decision.
The Applicant’s grounds of review in relation to his substantive application were otherwise in the nature of submissions reiterating his claims and seeking impermissible merits review. The application for review does not have reasonable prospects of success.
In summary, in the circumstances of this case the court’s power to reinstate the proceeding is not enlivened. Even if the power had been enlivened, the review application has insufficient merit to warrant reinstatement.
The application in a case must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 19 November 2018
1
6
3