Singh v Minister for Immigration and Border Protection
[2017] FCA 530
•19 May 2017
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2017] FCA 530
Appeal from: Application for leave to appeal: Singh v Minister for Immigration & Anor [2016] FCCA 2746 File number: NSD 1930 of 2016 Judge: BURLEY J Date of judgment: 19 May 2017 Catchwords: MIGRATION – application for partner visas – decision to dismiss application affirmed by Tribunal for failing to attend hearing or apply for reinstatement pursuant to Migration Act 1958 (Cth) s 362B – no basis for leave to appeal – application dismissed
PRACTICE AND PROCEDURE – application for leave to appeal
Legislation: Federal Court of Australia Act 1976 s 24
Migration Act 1958 (Cth) ss 360, 362B, 362C, 368, 426A
Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court Rules 2011 (Cth) Part 35
Migration Regulations 1994 (Cth) Schedule 2
Cases cited: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397
Date of hearing: 1 and 29 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr T Galvin of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 1930 of 2016 BETWEEN: JATINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
19 MAY 2017
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. BACKGROUND
In the present proceedings, the applicant seeks leave to appeal from Singh v Minister for Immigration & Anor [2016] FCCA 2746 (Judge Street). In that decision, the Federal Circuit Court of Australia (FCCA) dismissed the applicant’s application for review of a decision of the second respondent (Tribunal) made on 22 June 2016 pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) and ordered that the applicant pay the first respondent’s (Minister) costs.
The applicant’s grounds in support of his application for leave to appeal are:
(1)The First and Second Respondents wilfully ignored relevant material in a way that affected the exercise of powers vested in it that amounted to an error of law;
(2)With regard to 1 above, the First and Second Respondents made a jurisdictional error, having no power to make the decision invalid by an error of law.
The applicant relies on an affidavit sworn by him on 7 November 2016 which identifies that he applied for a partner visa which was rejected by the Minister and subsequently by the Tribunal. He states that his application was not heard properly, that relevant information was not considered by the respondents and that there are errors in their decisions. Furthermore, his affidavit states that he could not attend the hearing before the Tribunal as he was unwell and unfit to attend.
The genesis of the present application may be briefly summarised. On 31 May 2013 the Department for Immigration and Border Protection received an application for a Class UK (Partner-Temporary) (subclass 820) visa and class BS (Partner-residence) (subclass 801) visa (Partner Visa) in relation to the applicant. The applicant was sponsored by his then wife.
On 16 March 2015, a delegate of the Minister refused to grant the Partner Visa on the basis that the applicant did not meet paragraph 820.221(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which requires that at the time of the decision the applicant continued to meet the relevant time of application criterion set out in subclauses 820.211(2), (5), (6), (7), (8), or (9) of Schedule 2. The basis for the refusal was that the relationship between the applicant and his sponsor had ceased and there was no further evidence of an ongoing spouse relationship between him and his sponsor. Accordingly, the delegate found that he did not meet the requirements of subclause 820.221(1)(a).
On 2 April 2015 the applicant applied to the Tribunal for a review of the delegate’s decision. On 12 April 2016 the Tribunal sent an email to the applicant’s migration agent which attached an invitation to the applicant to attend a hearing before the Tribunal on 26 May 2016. The Tribunal received no response to the hearing invitation and the applicant did not attend the hearing scheduled on 26 May 2016. On 7 June 2016 the Tribunal decided to dismiss the application under s 362B(1A)(b) of the Migration Act 1958 (Cth) (Act) due to the failure on the part of the applicant to appear at the scheduled hearing. A copy of the dismissal decision along with an information sheet about the ability of the applicant to seek reinstatement was sent to the applicant via his migration agent by email on 7 June 2016. On 22 June 2016 the Tribunal decided to confirm the decision to dismiss the application on the basis that the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing. The Tribunal’s decision records that the applicant was given a copy of a written statement setting out the decision and was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within that period would result in confirmation of the dismissal decision. No application was received, and the Tribunal proceeded to confirm the decision.
On 28 June 2016 the applicant filed an application for judicial review of the Tribunal’s decision in the FCCA. The application set out the following grounds:
(1)jurisdictional error and lacked jurisdiction
(2)error in interpretation of legislation
(3)natural justice
As I have noted, the application proceeded under r 44.12 of the FCC Rules. The applicant was unrepresented and, it appears, appeared at the hearing with the assistance of an interpreter. The primary judge records in his decision that from the bar table the applicant requested an adjournment on the day of the hearing, submitting that he would like an opportunity to obtain the services of a lawyer. He also submitted that he was very sick at the time of the Tribunal hearing and did not know of the 14 day opportunity to reinstate his application. He asked for a further opportunity to put on evidence.
The primary judge refused the requested adjournment and concluded that the unparticularised grounds of review set out in the application failed to identify any arguable jurisdictional error.
The present application constitutes an application for leave to appeal from an interlocutory decision which is governed by s 24(1A) Federal Court of Australia Act 1976 (Cth) and Part 35 of the Federal Court Rules 2011 (Cth). In such an application the applicant must show that there is sufficient doubt as to the correctness of the judgement below to warrant review and that, if the judgement below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal refused; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400.
On the day listed for the hearing of the matter, 1 March 2017, the applicant appeared in person, with the assistance of a Punjabi interpreter. He asked for an adjournment of the matter on the basis that he was unwell and that he had been looking for a lawyer to represent him. He identified the name of a lawyer who had said that he would act for him and, during a short adjournment, confirmed that if the Court adjourned the matter for 20 days he would be able to appear and be represented. I granted the adjournment, over the objection of the Minister.
On 29 March 2017 the matter was listed for final hearing. The applicant appeared with the assistance of an interpreter but without legal representation. He made submissions in support of his application to the effect that his relationship with his former wife was genuine, that it had subsisted for two years before it had broken down and that he had made a mistake in failing to attend the Tribunal hearing but that if he had the opportunity to attend a further hearing before the Tribunal, his Partner Visa application would be granted.
2. CONSIDERATION
The terms of s 362B of the Act apply if the applicant is invited under s 360 to appear before the Tribunal but fails to do so. In that circumstance the Tribunal may, by written statement under s 362C, dismiss the application without further consideration of the application or the information before the Tribunal (s 362B(1A)(b)). If the Tribunal dismisses the application, an applicant may, within 14 days after receiving notice of the decision, apply to the Tribunal for reinstatement of the application (s 362B(1B)), after which the Tribunal must, if it considers it appropriate to do so, reinstate the application (s 362(1C)), and if it does so, the application is taken never to have been dismissed and the Tribunal must conduct the review (s 362B(1D)). But if the applicant fails to apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application by written statement under s 368 (s 362B(1E)), and if the Tribunal so confirms the decision, the decision under review is taken to be affirmed (s 362B(1F)). The effect of the confirmation is accordingly to deem the decision under review as having been affirmed; see, in the context of the analogous provision, s 426A, AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 (AYT16) per Perram J.
The terms of section s 362B of the Act make clear that it is important for the applicant to seek to reinstate his decision within 14 days of being notified that it has been dismissed due to his non-attendance. He did not do so and consequently the Tribunal was obliged by law (s 362A(1E)) to confirm the decision. The Tribunal had no lawful ability to do otherwise.
On 7 June 2016 the Tribunal provided the applicant, through his migration agent, with notice of its decision, which was made on the same day in accordance with the requirements of s 362C of the Act. The applicant did not seek to reinstate the application within 14 days of being notified of the decision. Once that fact was established, the Tribunal’s hands were tied and the dismissal had to be confirmed (see AYT16 at [11]).
The present application seeks leave to appeal from the decision of the primary judge, who upheld the decision of the Tribunal. No ground of appeal before the primary judge addressed the application of the statutory scheme by the Tribunal.
Ground 1 of the current application is that the Tribunal and the FCCA “wilfully ignored relevant material in a way that affected the exercise of powers vested in [them] that amounted to an error of law”. For present purposes I shall assume that the ground contends that the primary judge failed to apprehend that the Tribunal wilfully ignored relevant material in the manner alleged. It is not a ground that was advanced before the primary judge, and so leave would in any event be required to advance it in the present application.
I am not satisfied that the ground has substance. No material has been identified that is said to have been “wilfully ignored” and, from the material available, none is apparent to me. Accordingly I decline leave to the applicant to advance ground 1.
Ground 2 of the application is that, having regard to the contents of ground 1, “the First and Second respondents made a jurisdictional error, having no power to make the decision invalid by an error of law”. This ground may be taken to reflect the first ground advanced before the primary judge. For present purposes I shall assume that the ground contends that the primary judge fell into error by failing to apprehend that the Tribunal made the alleged jurisdictional error. However, even allowing for this adjustment, the ground advanced does not have sufficient merit to warrant the grant of leave. As noted, no “material” which the Tribunal failed to consider has been identified, and no details of the alleged jurisdictional error have been provided. I can otherwise see no basis upon which the ground might succeed. The primary judge was, with respect, correct to conclude that no arguable case arose from this ground.
The applicant directed his submissions to the fact that he made a mistake by not appearing before the Tribunal and his contention that his application for a Partner Visa was based on a genuine relationship. Regrettably for the applicant, neither of these matters raise the basis for a finding of jurisdictional error on the part of the Tribunal or the primary judge.
In the result, I am not satisfied that the applicant has demonstrated a sufficient basis for the grant of leave to appeal. Accordingly, I dismiss the application and order that the applicant pay the first respondents’ costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 19 May 2017
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