Singh v Minister for Immigration and Border Protection
[2019] FCA 449
•26 March 2019
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2019] FCA 449
Appeal from: Application for leave to appeal: Federal Circuit Court Orders made on 29 January 2018 by Judge Riethmuller File number: VID 112 of 2018 Judge: BROMBERG J Date of judgment: 26 March 2019 Catchwords: MIGRATION – application for leave to appeal a decision of the Federal Circuit Court – whether denial of natural justice in dismissing the matter for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Circuit Court Rules 2001 (Cth), rr 13.03C(1)(c), 16.05(2)
Cases cited: House v The King (1936) 55 CLR 499 Date of hearing: 26 March 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms M Montalban of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 112 of 2018 BETWEEN: MANDEEP SINGH
Applicant
AND: MINISTER FOR IMMGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
26 MARCH 2019
THE COURT ORDERS THAT:
1.The applicant’s application for leave to appeal is dismissed.
2.The applicant pay the first respondent’s costs of that application
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an application for leave to appeal from orders made by the Federal Circuit Court of Australia on 29 January 2018. Pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”), the primary judge dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), due to the applicant’s non-appearance at a hearing listed on that day. The first respondent (“the Minister”) was also a respondent to the applicant’s application before the primary judge.
On 19 January 2018, after the applicant’s application seeking judicial review had been listed for a hearing on 29 January 2018, the applicant wrote to the chambers of the primary judge seeking an adjournment of the hearing. The email seeking that adjournment is before me in an affidavit of the applicant. In essence, the email adverted to the applicant’s mother being ill in India and suggested that an adjournment of the hearing was required so that the applicant could visit his mother in India.
A response to the applicant from the primary judge’s chambers was provided. In that response, the applicant was advised that the primary judge would consider granting leave to the applicant to appear at the hearing by telephone upon being provided with confirmation of the applicant’s flight itinerary demonstrating that he would be out of Australia on 29 January 2018. It appears, on the material before me, that the applicant made no response to that communication. At the hearing on 29 January 2018, there was no appearance by or on behalf of the applicant. The Minister, through his counsel, advised the primary judge that Departmental records indicated that the applicant had not left Australia.
The Minister sought dismissal of the matter pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules. That application was granted. The primary judge did not publish reasons, but his Honour’s reasons are set out on transcript.
The primary judge noted that the applicant had been asked to provide further material to support his adjournment application and, in particular, copies of his tickets and itinerary, and that the applicant had also been advised that arrangements could be made for him to appear by telephone. The applicant’s failure to respond was referred to, and the primary judge also stated that it appeared from records of the Minister, that the applicant had not left the country in any event. In those circumstances, his Honour stated that the application for an adjournment was refused and that the application itself was dismissed.
By application filed on 8 February 2019, the applicant has sought leave to appeal from the orders of the primary judge. Both the grounds of that application and the draft Notice of Appeal allege that in dismissing his application for non-appearance, the primary judge denied the applicant natural justice. The denial of natural justice is said to arise from the primary judge’s failure to postpone the hearing despite the applicant having contacted the court in advance, with the consequence that the application was dismissed.
The applicant appeared before me today not legally represented. Insofar as he made submissions, those submissions did not take matters any further than what is adverted to in the application for leave to appeal and the accompanying affidavit in support.
In my view, this application must be dismissed largely on the basis of the submissions made by the Minister.
The judgment from which this appeal is sought to be instituted was an interlocutory judgment within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the applicant requires leave to appeal. The test for whether leave to appeal from an interlocutory judgment should be granted is well-established. Fundamentally, there are two considerations: first, whether the decision is attended with sufficient doubt to warrant it being reconsidered on appeal and, second, whether substantial injustice would result if leave were refused supposing the decision to be wrong.
As the Minister’s submission notes, the power exercised by the primary judge in dismissing the applicant’s application was discretionary. To succeed in challenging the exercise of a discretionary power, the applicant would need to establish an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan J). The applicant would need to show that the exercise of discretion had miscarried because the primary judge had acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters or made a mistake of fact. Alternatively, a failure to properly exercise discretion may be inferred where the discretionary decision is unreasonable or plainly unjust.
The applicant has not pointed to any basis upon which it might be said that the primary judge’s discretion relevantly miscarried. There is no basis for thinking that the decision of the primary judge is attended with sufficient doubt so as to warrant it being reconsidered on an appeal. The primary judge acted upon what was, essentially, an unexplained failure by the applicant to attend at the hearing which had been scheduled for his own application.
The primary judge had provided the applicant with the facility to appear by telephone, if, indeed, he needed to be in India. In any event, the primary judge was presented with information that despite the basis upon which the adjournment application had been made, the applicant was in Australia at a time of the scheduled hearing. It is difficult to accept, and I do not accept, the applicant’s assertion made in his affidavit that he did not understand the content of the email which the primary judge’s chambers had provided to him in response to his application for an adjournment.
Furthermore, there is no material before me which would allow me to come to a view that substantial injustice would result if leave to appeal is refused supposing the primary judge’s decision to be wrong. No submission was made in support of any contention that the underlying application for judicial review has any merit. Additionally, I take into account that it remains open for the applicant to apply for the orders of the primary judge to be set aside or varied pursuant to r 16.05(2)(a) or (c) of the Federal Circuit Court Rules.
For those reasons, I will dismiss the application.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 3 April 2019
0
1
2