Singh v Minister For Immigration and Anor (No.2)

[2013] FCCA 901

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2013] FCCA 901

Catchwords:
MIGRATION – Application in a Case – substantive application dismissed for non-appearance – no satisfactory explanation for the applicant’s non-appearance – Application in a Case dismissed.

Singh v Minister for Immigration & Anor [2013] FCCA 482

Applicant: NARENDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3121 of 2012

Judgment of: Judge Nicholls

Hearing date: 26 June 2013

Date of Last Submission: 26 June 2013

Delivered at: Sydney

Delivered on: 26 June 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application in a Case made on 6 June 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3121 of 2012

NARENDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an Application in a Case made by Mr N Singh (“the applicant”) on 6 June 2013. By that application the applicant seeks an order that I set aside orders made on 9 May 2013, that, in effect, the substantive application made by the applicant before this Court on 24 December 2012 be dismissed. The background to this matter is set out in the judgment derived from the transcript of the last occasion this matter was before the Court (see Singh v Minister for Immigration & Anor [2013] FCCA 482 (“Singh”)).

2. The applicant appeared in person today. Ms B Rayment appeared for the respondent Minister. The Application in a Case before the Court today, in essence, asks the Court to accept the applicant’s explanation that his failure to attend on the last occasion was because he had sought an adjournment of the hearing of this matter, and that he had sought that adjournment of the hearing because he was seeking to obtain legal assistance and representation.

3. The first thing that must be said is that there is a great difference between requesting an adjournment, and being granted such an adjournment. I dealt with that question on the previous occasion. I rely for the purposes of today on what I said on the previous occasion (see Singh at [11] – [16]).

4. I have also taken into evidence today two documents marked as Respondent’s Exhibit 1 (“RE1”) and Respondent’s Exhibit 2 (“RE2”). They are:

   1)RE1 – A letter from the Minister’s solicitors to the applicant, at his address for service and dated 14 May 2013, advising him of the orders made by this Court, in his absence, on 9 May 2013.

   2)RE2 – A letter from the Minister’s solicitors to the applicant, at his address for service and dated 8 January 2013, enclosing a copy of the notice of address for service filed by the respondent Minister and putting the applicant on notice that “if you do not attend the scheduled directions hearing in your matter we will seek orders from the Court to have your application dismissed and for you to pay the Minister’s legal costs”.

5. The critical issue arsing from RE1, RE2 and the background in Singh is that there are two essential reasons why the applicant’s Application in a Case is to be dismissed today.

6. The first is that the applicant has had more than a reasonable opportunity to arrange the legal advice and assistance that he says he has been seeking. As Ms Rayment submitted, the applicant’s application was initially made to this Court in December 2012. Even when the applicant appeared before me on 13 March of 2013, while at that time he said that some relevant steps had been taken, it was still clear that his hope was to obtain legal advice, not that he had actively taken steps to obtain that advice. In particular, he had expressed hope that a charitable organisation (Australian Multicultural Charity) was going to assist him in that regard (see Singh at [8]).

7. The applicant told the Court today that he had made an application to the Legal Aid Commission, New South Wales on 1, or 2, March 2013. That, quite clearly, predates 13 March 2013 when the applicant last appeared before me. As Ms Rayment says, it is not appropriate to accept the applicant’s explanation in this regard as no mention was made of any such Legal Aid application being made when the matter was before the Court on 13 March 2013.

8. However, even if a Legal Aid application had been made, I note that it is now nearly four months since early March 2013 and that that is more than enough time for the Legal Aid Commission to advise the applicant if it was going to provide him with legal advice or not. Importantly, the applicant says that once having made his application, he took no steps to pursue this matter with the Legal Aid Commission. That is, other than seeking an adjournment of the hearing of this matter before this Court.  

9. In all, the applicant has been given a reasonable opportunity to obtain legal advice. It is now well over six months from the date of the Tribunal’s decision. The applicant was put on notice of the need to act with some appropriate expedition in promoting his case and, importantly, he was put on notice by the Court on the last occasion on which he appeared that he needed to attend to matters in a more timely fashion. Further, he was on notice of the possibility, or even probability, that if he did not act with some impulsion in relation to obtaining legal advice, that the Court would not grant him a further indulgence. In these circumstances, there has been no satisfactory explanation for the applicant’s failure to attend on the previous occasion.

10. Further, and equally as important, when I have regard to the material that is before the Court, in particular the material set out in the Court Book (“CB”) that the Minister has filed in these proceedings, it is quite clear that the substantive application to the Court lacks merit. As Ms Rayment, in my view, correctly described it, it is “hopeless and bound to fail”.

11. The applicant had initially applied for a student visa. At the hearing with the Tribunal, the applicant did have the availability of the services of an interpreter ([15] at CB 85). In any event, on the evidence before the Court, I am otherwise satisfied that the applicant was able to conduct himself in English, given his own assertion that he could speak, read and write English. He was put on clear notice, both in writing and before the Tribunal, that the one, and only, critical issue in his case (having regard to a relevant criterion for the visa he had applied for) was whether or not at the relevant time (at the time before the Tribunal), the applicant was able to provide evidence that he had enrolled, or had an offer of enrolment, in a relevant course of study (CB 67 to CB 69). Despite the opportunity given to him by the Tribunal, the applicant did not provide any such evidence to the Tribunal (CB 85).

12. Not only is it the case that the Tribunal’s conclusion was reasonably open to it on what was before it, but, given the relevant regulatory scheme that applied to the relevant class of visa for which the applicant had made an application, the Tribunal really had no option other than to come to the conclusion that it did. That is, that it had to affirm the delegate’s decision that the visa not be granted to the applicant. It is difficult to see in these circumstances, even if some further indulgence were to have been given to the applicant today, how any legal advice could have, or would have, assisted him in revealing jurisdictional error in the Tribunal’s decision. 

13. I should also note that nothing that the applicant has said to the Court today causes me to come to any view that any further time would result in him being in a better position in prosecuting his original application than he is now seeking.

14. In all the circumstances it is appropriate that the Application in a Case be dismissed. There is no satisfactory explanation for the failure to attend on the previous occasion. There is no utility in granting the applicant any further time given the critical issue in the Tribunal’s decision. Further, I am of the view that the applicant’s quest for legal advice, even from today, would be a futile exercise. I will make an order dismissing the Application in a Case.

15. It is appropriate that a costs order be made.  The amount sought is, in my view, reasonable and the legal work that has been done preparing for the hearing of the Application in a Case. I will make the order in the amount sought by the Minister.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 23 July 2013