Singh v Minister for Immigration and Border Protection
[2017] FCA 988
•22 August 2017
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2017] FCA 988
Appeal from: Singh v Minister for Immigration and Border Protection [2016] FCCA 2236 File number: VID 984 of 2016 Judge: KENNY J Date of judgment: 22 August 2017 Catchwords: MIGRATION – non-appearance by the appellant at the hearing of the appeal – appeal dismissed under r 36.75(1) of the Federal Court Rules 2011 (Cth) Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Singh v Minister for Immigration and Border Protection [2016] FCAFC 141
Date of hearing: 22 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 The Appellant did not appear Counsel for the First Respondents: T Smyth Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submitted to any order, save as to costs. ORDERS
VID 984 of 2016 BETWEEN: JATINDER SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
22 AUGUST 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed under r 36.75 of the Federal Court Rules 2011 (Cth).
2.The appellant pay the first respondent’s costs of the appeal, fixed in the sum of $6,439.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
KENNY J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA), dismissing an application for judicial review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), to affirm the decision of a delegate of the respondent Minister not to grant the appellant a Skilled (Provisional) (Class VC) subclass 485 (Skilled - Graduate) visa (the visa). The judgment of the primary judge has the citation Singh v Minister for Immigration and Border Protection [2016] FCCA 2236.
The appellant did not appear at the hearing, today, 22 August 2017, and he has not filed written submissions in support of his appeal. The Minister, who had earlier filed written submissions, has applied for the appeal to be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules (Cth), on the basis of the appellant’s non-appearance.
Rule 36.75(1)(a)(i) relevantly provides that, if the appellant is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that the appeal be dismissed. The following circumstances are relevant to my conclusion that it is appropriate to proceed in the appellant’s absence as contemplated by r 36.75 of the Federal Court Rules.
On 25 August 2016 Registrar Josan listed the appeal for hearing during the sitting period 31 October – 25 November 2016 and made orders for the preparation of the appeal.
On 6 October 2016, the Court advised the parties by email that, as this appeal raised similar issues to those raised in matters heard by a Full Court in May 2016, the Court did not propose to list this appeal for hearing at that stage. The Full Court of the Federal Court delivered judgment in the matters to which the Court’s email referred on 17 October 2016: see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (Singh) and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 (Gill).
On 11 May 2017, Registrar McCormick revoked the orders made on 25 August 2016 and made orders in their place. On 11 July 2017, the Court notified the parties by email that the matter had been listed for hearing at 2.15 pm on Tuesday 22 August 2017.
On 8 August 2017, my Associate emailed the appellant noting that he had not filed submissions in accordance with the orders made by Registrar McCormick. The email was sent to the email address listed on the appellant’s notice of appeal. The email reminded the appellant that it was important he attend the hearing on 22 August 2017 and requested that he confirm receipt of the email. On 16 August 2017 my Associate again emailed the appellant, reminding him that it was important that he attend the hearing and advising that if he did not attend the Court might proceed in his absence.
On 21 August 2017, as the appellant had not responded to the emails of the Court either by confirming their receipt or otherwise, my Associate phoned the appellant to confirm that hearing was listed for 2.15 pm today, 22 August 2017. The appellant advised my Associate that he had not received the emails from the Court. He also advised my Associate that he had a different email address to that provided in his notice of appeal. My Associate then emailed the appellant at this new email address, forwarding the emails of 8 and 16 August 2017, confirming that the hearing was listed for 2.15 pm today 22 August 2017 and advising that if he did not attend the hearing, the Court might proceed in his absence. The appellant has not responded to the Court’s most recent email and, as already stated, he has not appeared today. Further, he has not engaged with the Court process since he filed his notice of appeal.
Upon considering the grounds set out in the appellant’s notice of appeal, I am strengthened in my view that it would be appropriate to dismiss the appeal under r 36.75(1)(a)(i) of the Federal Court Rules, although, as I indicate below, there is a further matter that falls for consideration.
As will be seen, the grounds set out in the appellant’s notice of appeal do not appear to have any prospect of success. Briefly, these grounds are as follows.
Ground 1
Under ground 1, the appellant alleged that “the Judge erred in dismissing the review and not according substantial justice to the appellant”. The appellant has not put forward any basis for this assertion and I can discern none.
Ground 2
Under ground 2, the appellant alleged that “the Judge erred in
notproviding an interpreter to the appellant when the matter was being heard that will able to help me and she could not explain properly”. Reference to the transcript indicates that the FCCA provided an interpreter, at the appellant’s request. The appellant did not express any concern about the interpreter or any relevant dissatisfaction at the time; and he has not pointed to any specific inadequacy in the assistance given him by the interpreter. This ground appears to be without foundation.Grounds 3 and 4
Grounds 3 and 4 may be dealt with together. Under ground 3, the appellant alleged that “the Judge erred in dismissing the appellant’s review application without considering the merits of the case”. Under ground 4, the appellant alleged that “the Judge erred in dismissing the appellants [application] without properly considering the appellant’s submissions”. Both these grounds appear untenable. Reference to the transcript of the hearing and to her Honour’s reasons for judgment clearly indicates that her Honour gave careful consideration to the substance of the appellant’s case and the submissions that he made.
Ground 5
Under ground 5, the appellant alleged that “the appellant's application clearly raises an arguable case”. Her Honour’s task was, however, to consider and determine whether the Tribunal’s decision contained jurisdictional error, on the bases alleged by the appellant. Her Honour determined that there was no jurisdictional error shown. Her Honour was not called on to address the issue of an “arguable case”.
Grounds 6 and 7
Under ground 6, the appellant alleged that “the court erred in law and/or in fact when it took into account irrelevant information and/or evidence in deciding to dismiss the appellant’s application on 2 August 2016”. Under ground 7, the appellant alleged that “the court erred in law and/or in fact when it failed and/or refused to take into account relevant information and/or evidence in deciding to dismiss the appellant’s application on 2 August 2016”. The appellant has not, thus far, identified the material that it is said her Honour wrongly took into account, nor the material that he submits should have been considered and was not. These grounds also appear unsubstantiated.
Ground 8
Under ground 8, the appellant alleged that “the Learned Judge erred in law and/or in fact in failing and/or refusing to find that the Administrative Appeals Tribunal did not act in a way that was fair and just”. As already stated, the claim that the primary judge erred because she took into account irrelevant information or evidence would appear baseless, since the appellant did not identify the material and evidence the subject of this claim; and there is no other error of this kind readily discernible. Further, as the first respondent submitted in written submissions, her Honour was “was not in terms invited to make such a finding; even if she had been, there is no apparent basis on which she could have done so”. Instead, her Honour addressed the issue of procedural fairness; and there is no apparent error in the manner in which her Honour did so.
Ground 9
Under ground 9, the appellant alleged that “The Learned Judge erred in law and/or in fact in refusing and/or failing to grant an adjournment of the hearing on 2 August 2016 when taking into account all fact[s] and circumstances”. It would appear, however, that the appellant did not seek an adjournment. Certainly, the transcript of the hearing provides no indication that an adjournment was sought. Her Honour’s reasons also contain no reference to such an application. In this circumstance, in the absence of any evidence to the contrary, the first respondent’s submission that no such application was made appears correct. This ground also appears unsustainable.
Ground 10
Under ground 10, the appellant alleged that “The Learned Judge erred in law and/or in fact in failing and/or refusing to find that the Administrative Appeals Tribunal was unfair in all the circumstances of the case” In so far as Her Honour addressed the issue of fairness, there is no error readily discernible in her Honour’s decision.
Ground 11
Under ground 11, the appellant alleged that “The Learned Judge erred in law and/or in [f]act in failing to find that the decision of the Administrative Appeals Tribunal was affected by jurisdictional error and/or that the Administrative Appeals Tribunal had misapplied the Migration Regulations and/or the Migration Act”. The appellant has not, however, in any written submission or otherwise, identified any real basis for imputing jurisdictional error to the Tribunal.
Ground 12
Under ground 12, the appellant alleged that “The Learned Judge erred in law and/or in [f]act in failing to find that the decision of the Administrative Appeals Tribunal was affected by jurisdictional error in that the Administrative Appeals Tribunal had breached s 425(1) of the Migration Act”. As the first respondent submitted in writing, it would not appear that the appellant submitted to her Honour that there had been a breach of s 425 of the Migration Act 1958 (Cth). There is no apparent basis for such a claim.
Accordingly, the appellant’s grounds of appeal, as set out in the appellant’s notice of appeal, do not appear to have any prospect of success.
As earlier indicated, however, this matter might be affected by the decisions of the Full Court of this Court in Singh and Gill. Judgments in Singh and Gill were delivered after the judgment of the primary judge, which is the subject of this appeal.
The first respondent submitted in written submissions that the appellant had been given “ample opportunity to say what he wished in support of his contention that he had been ‘dodged’ by a third party”. The first respondent submitted that the appellant’s contention should be understood as a contention that “although he wished to apply for a skilled graduate visa, he did not wish to do so until his paperwork was complete” and that “he signed blank forms”. In this context, the first respondent noted that, as the primary judge observed, it was not altogether clear what form he signed. The first respondent continued:
On that footing, it was amply open to the learned Circuit Judge to reason, as she did, that 'this was a case of bad or negligent advice on the part of the agent' (FCCJ [23]), rather than a case of vitiating fraud. Notably, Mr Singh did not in terms or in substance allege fraud on S & S's part. On a proper understanding of his evidence, Mr Singh said no more than that he trusted his agent and that his agent disappointed him.
Accordingly, this case is quite different — and is distinguishable — from Gill. There, the fundamental question for the Court was whether the appellant had, as the Circuit Court had held, by his indifference imputed authority to his agent to act either lawfully or unlawfully in achieving his desired visa outcome: Gill [49]. The question mattered because it went to the validity of the visa application submitted. Here, however, the question of indifference /authority does not arise because her Honour was unable to find that any fraud had been practiced on Mr Singh (still less on the Tribunal). The question whether the scope of the authority Mr Singh gave his agent embraced that fraud was therefore not reached.
(Emphasis in original.)
Accordingly, so the first respondent submitted, no error of this kind can be imputed to the judgment of the learned primary judge.
I am not, however, persuaded that Mr Singh’s case is distinguishable from Gill, as the first respondent has submitted. In Gill at [49], the Full Court stated:
As emphasised above, the primary judge found that it was not possible for him to make a positive finding that the appellant was complicitous or colluded in the agent’s fraud. Rather, the primary judge proceeded on the basis that his lesser findings relating to the appellant’s “indifference” and the general authority he gave to his agent meant that the appellant had to bear responsibility for the agent’s fraudulent conduct. In our respectful view, this approach fails to recognise and give effect to the relevant distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly. This distinction is equally important in the context of considering the legal significance of any general authority given to a migration agent by a visa applicant. In our respectful view, the primary judge erred in failing to recognise and give effect to the significance of this distinction.
In this case, the first respondent does not contend that the primary judge performed the analytical exercise required by Gill (or Singh). The reasons of the primary judge indicate that her Honour did not do so. I am not, though, persuaded that this exercise was not required. Her Honour stated (at [23]) that:
This does not seem to me to be a case of fraud on the Tribunal. The applicant’s evidence that he signed a blank form suggests that he was not taking proper care of his own interests. However, there is not an application form in the court book. It seems, at most, that this was a case of bad or negligent advice on the part of the agent. It does not rise to the level of fraud on the Tribunal so as to constitute jurisdictional error.
This statement by her Honour addressed the submissions before her Honour at that time, without the advantage of the judgments in Singh and Gill.
It may be that there is no relevant difference between the carelessness to which her Honour referred and the indifference described by the Full Court referred in Gill at [49]. It may be said that the approach taken by her Honour failed to recognise and give effect to the relevant distinction between a carelessness as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to a carelessness as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly. It might therefore be said that the primary judge did not perform the exercise as required by the Full Court in Gill at [49].
In the circumstances of this case, however, it is unnecessary to decide this issue. Rather, the appellant’s failure to appear at the hearing today, in the other circumstances to which I have referred, makes it appropriate to dismiss the appeal under r 36.75(1)(a)(i) of the Federal Court Rules. As I have indicated, I am fortified in that conclusion by the apparent absence of any merit in the appellant’s stated grounds of appeal. Accordingly, I would dismiss the appeal pursuant to r 36.75(1)(a)(i) of those Rules and order that the appellants pay the first respondent’s costs.
The success of any application, which might be subsequently made, to set aside these orders would depend on an exercise of discretion and, amongst other things, this would involve consideration of whether there was an acceptable explanation for the appellant’s failure to attend the hearing and the strength of the appellant’s case on the appeal if the order dismissing the appeal were to be set aside. In the latter regard, it might be thought that the decisions in Singh and Gill could provide the appellant with a tenable basis for challenging the judgment of the primary judge. However, in the circumstances of this case, as I have indicated, where the appellant has not sought to participate in the court process and has not attended the hearing today, it is unnecessary to comment further.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 22 August 2017
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