Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 513
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 513
File number(s): ADG 38 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 7 June 2023 Catchwords: MIGRATION – Student visa – no appearance by or for the applicant – where circumstances indicate applicant offshore – where Minister concedes jurisdictional error – whether writs should issue Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submission/s: 7 June 2023 Date of hearing: 7 June 2023 Place: Adelaide Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Ms M Scanlon Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 38 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1.A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision dated 7 January 2020 in Proceeding No. 1720123.
2.No orders as to costs.
AND THE COURT NOTES THAT:
A.The First Respondent (the Minister) concedes that the decision of the Second Respondent (the Tribunal) dated 7 January 2020 is affected by jurisdictional error. Specifically, the Minister concedes that the Tribunal asked itself the wrong question under cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) by directing its consideration to the question of whether the Applicant had a genuine intention to study and not to the question of whether the Applicant had a genuine intention to remain in Australia temporarily. In the circumstances of this case, this constituted a material jurisdictional error.
B.The Applicant has departed Australia with no intention of returning. In those circumstances, there is no utility in issuing a writ of mandamus.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
This is an application for judicial review under section 476 of the Migration Act1958 (Cth) filed on 24 January 2020 (“Judicial Review Application”). The Judicial Review Application seeks judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) which affirmed a delegate’s decision to refuse the applicant, Mr Gurpreet Singh (“Mr Singh”), a Student Temporary (class TU) Higher Education Sector subclass 500 visa (“Student Visa”) on the basis that Mr Singh did not meet the genuine temporary entry criterion under clause 500.212(a) of Schedule 2 to the Migration Regulations1994 (Cth) (“Migration Regulations”).
On 20 February 2020, a Registrar of the Court in Adelaide made consent orders which provided for the matter to be listed for hearing on a date to be fixed. There has been a significant delay, generally speaking, in migration judicial review proceedings in the Adelaide Registry being allocated to a Judge for hearing. This matter was not allocated to the now presiding Judge until March 2023. On 29 March 2023 a directions hearing was held before the presiding Judge by videolink and at that directions hearing there was no appearance by Mr Singh.
On 29 March 2023 orders were made (“March Orders”) in the following terms:
…
a) the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 26 April 2023;
b) the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 23 May 2023; and
c) the matter be listed for final hearing in-person in the Adelaide Registry of the Court on 7 June 2023 at 10.00am ACST before Judge Lucev.
…
The March Orders afforded Mr Singh the opportunity to file and serve:
(a)any amended originating application;
(b)further affidavits; and
(c)an outline of submissions,
by 26 April 2023.
The March Orders also appended a note which indicated that:
If the applicant does not appear at the final hearing on 7 June 2023 at 10.00am ACST before Judge Lucev, the originating application or any amended originating application may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The March Orders were sent to Mr Singh on the same day they were made at the email provided on Mr Singh’s address for service on the file. Mr Singh did not file any documents, as he was permitted to, pursuant to the March Orders.
Pursuant to the March Orders the matter was set down for final hearing in-person at 10.00am today in the Adelaide Registry of the Court. When the matter was called today there was no appearance by Mr Singh. The matter was then called outside and there was still no appearance by Mr Singh.
Ms Scanlon, who appeared for the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), requested, and the Court agreed, to read the affidavit of Thomas James Ellison (“Mr Ellison”) affirmed 7 June 2023 (“Ellison Affidavit”). In the Ellison Affidavit, Mr Ellison indicated that on the afternoon of 5 June 2023 he attempted to contact Mr Singh by mobile phone but was unsuccessful. Later that afternoon, Mr Ellison was advised by a Department of Home Affairs officer that Mr Singh was offshore and was provided an overseas number, with what appears to be an Indian overseas area code, to contact Mr Singh on.
Mr Ellison was ultimately successful in contacting a person who said he was the applicant in this matter. Mr Ellison deposes to the fact that that person on the phone told him that he had left Australia three months ago due to family issues, that he was not returning to Australia and that he did not want the case to proceed: Ellison Affidavit at [6]. Mr Ellison informed the person concerned that the Minister conceded that the Tribunal Decision was affected by jurisdictional error and that the Minister was prepared to remit the matter to the Tribunal for reconsideration and pay Mr Singh’s filing fee in this Court. Mr Ellison then further stated that Mr Singh told him that he would send Mr Ellison an email telling him what he wanted to happen with the matter.
On 6 June 2023, not having heard from Mr Singh, Mr Ellison sent an email to Mr Singh confirming that the Minister accepted that there was an error in the Tribunal Decision and was agreeable to the Tribunal Decision being quashed. Mr Singh was informed further that if the Minister did not hear from him, the Minister would seek orders for writs in the nature of certiorari quashing the Tribunal Decision and that there be no order as to costs. Mr Ellison’s email also indicated that given Mr Singh did not intend to return to Australia the Minister did not see any utility in remitting the matter for redetermination to the Tribunal. There is no indication that there has been any further contact with or from Mr Singh by the Minister, and the Court can indicate that it has not heard from Mr Singh, and as indicated earlier, there was no appearance by him today and no appearance by anyone on his behalf.
The Minister handed up proposed orders (“Proposed Orders”) as follows:
THE COURT ORDERS THAT:
1. A writ in the nature of certiorari directed to the Second Respondent quashing the decision dated 7 January 2020 (Proceeding No. 1720123).
2. No orders as to costs.
AND THE COURT NOTES THAT:
3. The First Respondent (the Minister) concedes that the decision of the Second Respondent (the Tribunal) dated 7 January 2020 is affected by jurisdictional error. Specifically, the Minister concedes that the Tribunal asked itself the wrong question under cl 500.212(a) of the Migration Regulations 1994 (Cth) by directing its consideration to the question of whether the Applicant had a genuine intention to study and not to the question of whether the Applicant had a genuine intention to remain in Australia temporarily. In the circumstances of this case, this constituted a material jurisdictional error.
4. The Applicant has departed Australia with no intention of returning. In those circumstances, there is no utility in issuing a writ of mandamus.
Ms Scanlon has explained to the Court that the Tribunal Decision is affected by jurisdictional error for the reasons set out in Note 3 of the Proposed Orders.
The Court accepts that the Tribunal Decision is affected by jurisdictional error for the reasons set out and that, in the circumstances, it is appropriate that a writ in the nature of certiorari issue quashing the Tribunal Decision.
In circumstances where Mr Singh has not attended and not sought costs, although he would probably only be entitled to disbursements in circumstances where he is a self-represented litigant, it is appropriate that there be no order as to costs. The Court notes further that Mr Singh had been put on notice by way of Mr Ellison’s email of 6 June 2023 that the Minister would seek an order in those terms: Ellison Affidavit, Annexure TJE-2.
In the circumstances, the Court will make orders accordingly.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 June 2023
0
0
0