Singh v Minister for Immigration & Border Protection

[2014] FCCA 261

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 261

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Whether grounds for judicial review raise an arguable case – application dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Rules 2001 (Cth), rr.44.12, 44.13
Migration Act 1958 (Cth), s.379A

Applicant: CHARANJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2657 of 2013

Judgment of: Judge Emmett

Hearing date: 18 February 2014

Date of Last Submission: 18 February 2014

Delivered at: Sydney

Delivered on: 18 February 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondent: Ms N Blake
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2657 of 2013

CHARANJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application filed on 29 October 2013, be dismissed on the basis that the grounds of the applicant’s application do not raise an arguable case for the relief claimed.

2. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

3. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

4. The grounds of the applicant’s application are as follows:

   “1. I did not get any letter from the Migration Review Tribunal asking to submit any information in writing. Migration Review Tribunal should have given me this opportunity.

   2. I did not get any letter from the Migration Review Tribunal about the hearing, even if the Tribunal sent a letter informing my agent, in case of no reply form the Agent to this letter the Tribunal should have given me a chance to submit oral or written information. The Tribunal failed to inform me that my attending of hearing was very important for my case. It did not tell me that failure to not to attend the hearing will result in refusal of my review application. The Tribunal did not tell me that I could have sought additional time to submit additional information.

   3. The Tribunal member did not consider the information which was in my file such as the marriage certificate and other documents.”

5. Those grounds are wholly unparticularised and are not supported by evidence.

6. The applicant’s application asserts that he did not get a letter asking him to appear before the Migration Review Tribunal (“the MRT”) for a hearing. The applicant admitted that he had a migration agent, whose address was the nominated address to which the second respondent should send correspondence. In that event, s.379A of the Migration Act 1958 (Cth) requires correspondences to the applicant to be sent to that specified address. The applicant submitted that his migration agent did not contact him. In the circumstance, the grounds of the application do not raise an arguable case of jurisdictional error on the part of the MRT.

7. The applicant has not provided any other complaint arguable of demonstrative jurisdictional error on the part of the MRT.

8. The Rules provide that if the Court is not satisfied that the application has raised an arguable case for the relief claimed the Court may dismiss the application.

9. On the face of the application, it does not raise an arguable case for the relief claimed. For that reason, the application should be dismissed with costs pursuant to rule 44.12 of the Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  6 March 2014