Singh v Minister for Immigration and Border Protection

[2017] FCA 1334

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1334

Appeal from:

Application for extension of time and leave to appeal:

Singh v Minister for Immigration & Border Protection [2017] FCCA 1198

File number:

VID 565 of 2017

Judge:

ALLSOP CJ

Date of judgment:

10 November 2017

Catchwords:

MIGRATION – application for extension of time and leave to appeal from decision of the Federal Circuit Court – where Federal Circuit Judge dismissed application for judicial review of Tribunal decision affirming refusal of grant of student visa under show cause procedure in r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) – where applicants sought adjournment of hearing of applications – adjournment granted

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 44.12

Date of hearing:

10 November 2017

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Applicants:

The First Applicant appeared in person

Counsel for the First Respondent:

Mr V Murano

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting appearance, save as to costs

ORDERS

VID 565 of 2017

BETWEEN:

KULJEET SINGH

First Applicant

NAVDEEP KAUR

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	10 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The application for the adjournment of today's applications be granted subject to the following terms.

2.On or before 1 December 2017, the applicants file and serve written submissions that they would file on the appeal were an extension of time and leave to appeal granted, such submissions are to include a clear identification as to why the Administrative Appeals Tribunal's approach and reasons were wrong or in error and why the primary judge was wrong or in error.

3.Upon consideration of any such submissions, the Court will either call upon the Minister's representatives for further submissions or, if such be unnecessary, will list the matter for judgment.

4.The applications are stood over to a date to be fixed in 2017 for further argument or judgment as the case may be.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. Listed before the Court today is an application for an extension of time and for leave to appeal, filed by the applicants, Mr Singh, and his partner in relation to a decision by a judge of the Circuit Court which dismissed the application for judicial review of a decision of the Administrative Appeals Tribunal under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth); that is, the show cause provision. The essence of what the learned primary judge did was dismiss the application on that interlocutory basis, because his Honour could find no basis for an argument as propounded as to any error in the Tribunal’s reasons. The applicants wish to seek leave to appeal from that decision, but were some days out of time.

2. A short affidavit has been put on by Mr Singh to the effect that he was not aware of the timeframe and could not afford a lawyer.  Directions were made by a Registrar of the Court in early July 2017 to have this matter prepared for hearing.  Included in those directions was a direction that submissions be filed by the applicants, including submissions that would support any appeal were the Court to grant an extension of time.  No submissions have been filed by either applicant since July.  The Minister has filed submissions as to why the application should be refused both as to an extension of time, as to leave to appeal and why the grounds of appeal in the draft notice of appeal would be dismissed.

3. Mr Singh appeared today asking for an adjournment, saying that his previous lawyer had not prepared anything and that he was not ready to argue this case.  He indicated that he did not have a lawyer presently.  I would be presently minded to dismiss the application for an extension of time, and if I were to grant that, to dismiss the application for leave to appeal.  I would take a lenient view of the small number of days out of time if I were persuaded that there was, or were, one or more grounds to question on a reasonable basis the approach of the Tribunal, but the Court has no material whatsoever at the moment to cast legal doubt on the approach of the Tribunal.  The notice of appeal is uninformative in any detail.

4. What I propose to do, however, is to provide Mr Singh with a further opportunity to put his case as to why the Tribunal is wrong and why he should be given an opportunity to have a further argument as to any asserted errors in the Tribunal’s approach.  To that end I propose to grant the application for an adjournment for a limited time.  I propose to give Mr Singh until 1 December, that is, three weeks from today, to file and serve submissions in support of any appeal were the court to grant an extension of time and leave to appeal.  Those submissions should be directed to why the Administrative Appeals Tribunal decision is wrong and why the primary judge in the Circuit Court was wrong. 

5. The first respondent has put on submissions.  It may be helpful for Mr Singh to focus upon those submissions as to what he wants to say.  If I consider that any submissions filed by Mr Singh on behalf of himself and Ms Kaur warrant a response from the Minister,  my Associate will contact the parties with a direction as to further submissions from the Minister or an oral hearing, if thought necessary.  If, on the other hand, I do not think that the submissions are sufficient to raise any legitimate doubt in the approach of the Administrative Appeals Tribunal or the primary judge I will not put the Minister to any further expense, and I will list the matter for judgment and the publication of reasons.

6. The orders of the Court are:

   1.The application for the adjournment of today's applications be granted subject to the following terms.

   2.On or before 1 December 2017, the applicants file and serve written submissions that they would file on the appeal were an extension of time and leave to appeal granted, such submissions are to include a clear identification as to why the Administrative Appeals Tribunal's approach and reasons were wrong or in error and why the primary judge was wrong or in error.

   3.Upon consideration of any such submissions, the Court will either call upon the Minister's representatives for further submissions or, if such be unnecessary, will list the matter for judgment.

   4.The applications are stood over to a date to be fixed in 2017 for further argument or judgment as the case may be.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:

Dated:       16 November 2017