Singh v Minister for Immigration and Border Protection
[2016] FCA 538
•18 May 2016
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2016] FCA 538
Appeal from: Application for leave to appeal: Singh v Minister for Immigration & Anor [2015] FCCA 3062 File number(s): VID 934 of 2015 Judge(s): BUCHANAN J Date of judgment: 18 May 2016 Legislation: Federal Circuit Court Rules 2001 (Cth), r 16.05(2)(a)
Migration Act 1958 (Cth)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 4 May 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 24 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms E Latif Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
VID 934 of 2015 BETWEEN: GURKAMAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
18 MAY 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BUCHANAN J:
This is an appeal against a decision of the Federal Circuit Court of Australia (“the FCCA”) not to reinstate an application for judicial review to that court which challenged a decision of the Migration Review Tribunal (“the MRT”) established under the Migration Act 1958 (Cth) (“the Act”). (The MRT is now the Administrative Appeals Tribunal).
The decision of the MRT affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) (subclass 485) visa as a member of the family of his wife, who was the principal visa applicant.
The decision of the FCCA was an interlocutory one. Leave to appeal from it is therefore required if an appeal is to be considered on its merits. The tests for the grant of leave to appeal which are applied in this Court are stated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399, namely that to be granted leave to appeal an applicant for leave to appeal must show that the decision is attended with sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave was refused.
The initial visa application was made by the applicant’s wife, Jagdish Kaur, on 13 March 2011. The applicant was named as the secondary applicant. Ms Kaur relied on her occupation as a pastry cook. On 23 July 2012, a delegate of the Minister initially refused Ms Kaur’s visa application as she had not achieved the necessary medical clearance. However, it appears that there had been errors, or failures, of communication and that decision needs no further attention. In fact, the visa assessment process continued.
On 24 July 2012, a further request for information was made, including evidence of an IELTS (International English Language Testing System) language test result. The visa application on 13 March 2011 indicated that neither Ms Kaur, nor the applicant, had taken such a test within the previous 24 months and no other evidence of English language competence was supplied with the visa application. Such evidence is not required from holders of passports from the United Kingdom, Canada, New Zealand, the United States of America or the Republic of Ireland, but Ms Kaur and the applicant are nationals of India and the exemption does not apply to them.
Ms Kaur was also asked to provide evidence of a skills assessment as a pastry cook.
Information about those two matters was not provided and, on 18 September 2012 the delegate refused a visa to Ms Kaur and to the applicant.
The applicant then applied in his own right, on 8 October 2012, to the MRT for review of the delegate’s decision. He was to appear before the tribunal on 25 March 2014, but he did not do so. The MRT decision was given on 26 March 2014. It was short and to the point.
As relevant to the present application, the essence of the MRT’s decision was that it was necessary for the applicant to at least demonstrate the required level of competence in English in a test taken not earlier than two years before the visa application. The visa application stipulated that no such test had been taken in the two years before the application. The applicant had provided no evidence of any such test taken during that period or since that time. He therefore did not qualify for the grant of a visa.
Any challenge to the decision of the MRT needed to establish jurisdictional error in order to succeed. On the facts so far disclosed that would appear to be a daunting task but, in any event, some attempt to identify an error of that character was indispensable from that point forward.
On 29 April 2014, the applicant lodged an application for judicial review with the FCCA. The grounds for the application were as follows:
1.I am not satisfy with MRT decision on my application.
2.My visa was refused because at the time of application lodgement I did not meet englich profeciency criteria. Moreover, my degree was not assessed from assessing authority.
3.Therefore I want to appeal against the decision in federal court
Those grounds do not identify or suggest any jurisdictional error.
An affidavit filed in support of the application for judicial review stated only:
1.I am not satisfy with MRT decision on my application
2.Therefore, I want to appeal against the decision in federal court
The affidavit did not identify, or suggest, any jurisdictional error by the MRT.
The application was listed for final hearing on 4 August 2015. Consent orders were made for the applicant to file written submissions. He did not do so.
The afternoon before the hearing, the applicant contacted the solicitors for the Minister to indicate that he would not appear at the hearing for medical reasons, and wished an adjournment. The request was supported by a medical certificate from a practitioner in Griffith, New South Wales (where the applicant was living) dated 3 August 2015 certifying that the applicant “has [sic] been unable to work due to illness, from 03/08/2015 until 03/11/2015 inclusive” and by information from the applicant that he had an appointment with a “heart specialist” at Griffith Hospital the following day. The same documents (a letter from the applicant and the medical certificate) were also sent to the FCCA. Enquiries by the solicitors for the Minister suggested that the named “heart specialist” might be another general practitioner but no aspect of that potential inconsistency requires attention on the present appeal. The applicant was advised that the Minister would oppose any adjournment.
The applicant did not appear at the hearing but the FCCA declined to adjourn. It is apparent from the FCCA’s judgment which the applicant wishes to challenge on appeal (i.e. the judgment about reinstatement, given on 7 December 2015) that the medical circumstances provided by the applicant were immediately rejected as inadequate. The application for judicial review was then dismissed (on the same day – 4 August 2015) with costs, for non-attendance by the applicant.
Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) permits the FCCA to set aside a judgment or order after entry if it is given or made in the absence of a party. On 20 August 2015, the applicant applied to set aside the orders made on 4 August 2015. The application was refused on 7 December 2015 (Singh v Minister for Immigration & Anor [2015] FCCA 3062). It is with respect to that interlocutory judgment that the present application for leave to appeal has been brought.
There were two reasons why the application to reinstate was refused. The first was that the application to adjourn the proceedings on 4 August 2015 was without merit. The second reason was described as “more vital”. It was that reinstating the proceeding would be futile, as it had no prospect of succeeding. The FCCA said:
22.My conclusions can be stated shortly. I ruled on the adjournment application on 4 August 2015. I refer to and incorporate what I then said about the medical evidence provided by the applicant. It is wholly inadequate. It is, furthermore – although this is a matter I only note in passing – inconsistent with the fact that the applicant has been able to come to Court today. The more vital consideration in the circumstances is the total absence of merit in the substantive application itself.
23.It is not, in my view, in the interests of justice to reinstate this application in circumstances where, on the materials before the Court which the applicant has not as yet put in issue in any meaningful way, the applicant simply did not have competent English at the time of his application. He was required to have competent English by the nature of the visa he was seeking and the regulations that applied to it at the time. His application is utterly devoid of merit insofar as the materials reveal anything, and indeed it is difficult to see what conceivable matters the applicant could point to to grant his application in any event.
I agree with the FCCA about the second matter. It is not necessary to say anything about the first.
At the hearing of the present application for leave to appeal, the applicant appeared but made a very limited contribution to the proceedings. Initially, through an interpreter, he disclaimed being in a position to address his application. When asked why, he said he wished to have more time to prepare to take another English language test. Success or failure in any such test could have no bearing on the present application for leave to appeal and I ruled that the matter would proceed. When asked if there was anything he wished to say in support of his application for leave to appeal (no written submission having been filed), the applicant repeated only that he wished the benefit of extra time but otherwise offered no submission.
On the facts as I have set them out there is no prospect of a successful appeal in this Court because there is no argument available that could lead to a conclusion by the Court that the MRT may have committed a jurisdictional error so that, if the proceedings were reinstated, there was some prospect that the FCCA would find the existence of such jurisdictional error. An appeal to this Court would be futile, as would any further proceedings in the FCCA. The plain fact appears to be that the applicant did not qualify for the grant of a visa, in his own right.
The proceedings in the FCCA and in this Court represent a waste of resources and are without any apparent merit at all.
The application for leave to appeal will be refused with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 18 May 2016
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