Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCA 922
•9 August 2022
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 922
Appeal from: Singh v Minister for Immigration & Anor [2020] FCCA 651 File number: NSD 484 of 2020 Judgment of: CHEESEMAN J Date of judgment: 9 August 2022 Catchwords: MIGRATION – application for extension of time and leave to appeal an interlocutory decision of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) – where applicant did not appear at hearing or respond to any communication in relation to the hearing – where application filed 26 days’ out of time – whether the application should be dismissed due to the applicant’s absence when the matter was called for hearing – Held: application dismissed. Legislation: Federal Court Rules 2011 (Cth), r 35.33 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 9 August 2022 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Ms A Wilford of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs. ORDERS
NSD 484 of 2020 BETWEEN: JATINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHEESEMAN J
DATE OF ORDER:
9 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to the Minister for Immigration, Citizenship and Multicultural Affairs and any need to file any further document in that regard is dispensed with.
2.The application for extension of time and leave to appeal filed on 29 April 2020 be dismissed.
3.The applicant pay the first respondent’s costs of the application in the fixed sum of $4000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)CHEESEMAN J:
This is an application for extension of time and leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia, now the Federal Circuit and Family Court of Australia, summarily dismissing an application made under s 476 of the Migration Act 1958 (Cth): Singh v Minister for Immigration & Anor [2020] FCCA 651. The primary judge dismissed the applicant’s application in respect of a decision of the second respondent, the Administrative Appeals Tribunal dated 31 July 2018 pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), as then in force.
The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister, to refuse the grant of a Student (Temporary) (Class TU) (Subclass 500) visa. The primary judge’s decision was interlocutory in nature, and an appeal from it, therefore, required a grant of leave by this Court: see r 44.12 (2) of the Circuit Court Rules as then in force, and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Pursuant to r 35.13 of the Federal Court Rules 2011 (Cth), an application for leave to appeal was required to be made within 14 days of the primary judge’s orders, in this case that was by 3 April 2020. The application was filed on 29 April 2020, that is, 26 days out of time.
The application was called on for hearing on 9 August 2022. The applicant did not appear. The Minister applied under r 35.33(1)(a)(i) of the Rules for the application to be dismissed.
It is not necessary for the purpose of the present application, that is, a dismissal for non-appearance, to set out the background giving rise to the proceedings before the Circuit Court. That background is set out in paragraphs [4] to [12] of the Minister’s written submissions. The matter was called outside and there was no appearance by the applicant. I am satisfied that I should accede to the Minister’s application for the following reasons.
First, I am satisfied that the applicant has been made aware of the listing of the proceedings for hearing. There have been communications emanating from the Court and also from the Minister’s solicitors commencing on 31 May 2022 as to the listing of the proceedings for an in-person hearing. On 29 June 2022, the New South Wales Appeals Unit of this Court informed the parties that the matter was listed for hearing today at 10:15 am. The email attaching the timetabling orders made by the Registrar and requesting provision of material in electronic format was also sent on that date. On 12 July 2022, the Minister’s submissions and list of authorities were served by email on the applicant and lodged with the Court. The email chain sent by the Minister’s representatives on that date included the initial notification of the hearing. On 8 August 2022, the Appeals Unit reminded the parties of today’s hearing and requested the parties to inform the court of who was appearing at today’s hearing. There has been no communication or response from the applicant to any of the above communications.
Secondly, having regard to the documents that have been filed – which I note for completeness include an affidavit of the applicant – there is nothing before the Court on this application that indicates that there is any merit in the applications filed by the applicant. I note that the materials lodged by the applicant for the purpose of this application include a document that is titled “Draft Notice of Appeal”. That draft notice of appeal, in substance, replicates the grounds of application included in the application for extension of time filed by the applicant. Even if I assume for present purposes that the grounds of the proposed appeal are intended to replicate the grounds of review that were argued before the primary judge, then I note that, having regard to the reasons of the primary judge, that the summary dismissal of the proceedings is not attended by sufficient doubt that would warrant either an extension of time or leave to appeal being granted. The primary judge observed that the applicant’s grounds of review did not grapple with the basis of the Tribunal’s decision. With respect, that observation is correct. The primary judge further noted that the applicant had accepted that he was not enrolled in a course of study and, therefore, could not satisfy one of the mandatory criteria for the grant of the visa.
The other ground agitated before the primary judge concerned what the primary judge regarded to be a typographical error in the Tribunal’s reasons in respect of the date of the applicant’s arrival in Australia. The primary judge found that the typographical error as to the date of the applicant’s arrival did not give rise to any error on the part of the Tribunal in affirming the decision of the delegate to refuse the grant of the visa in circumstances where the mandatory criteria for the grant of the visa was not met.
For these reasons, I am satisfied that the applicant is aware of but has failed to attend the hearing of his application, and that on the material before the court, the applicant has no reasonable prospect of success on the extension of time application and the leave to appeal application. In these circumstance, it would likely be inappropriate to grant an extension of time or leave to appeal even if the applicant had attended. Accordingly, I will make an order under r 35.33(1)(a)(i) of the Rules that the application for extension of time and leave to appeal filed on 29 April 2020 be dismissed.
The Minister has applied for the applicant to pay the Minister’s costs of this application in the fixed sum of $4000, that amount being less than the amount that can be claimed in a short form bill for an application for leave to appeal involving a migration decision. I am satisfied that the amount sought is reasonable and proportionate to the nature, including the complexity, of the case. Accordingly, I will make an order in the terms sought.
Finally, the Minister sought an order changing the name of the first respondent to reflect the Minister’s current title. I will make that order.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. Associate:
Dated: 9 August 2022
0