Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 731
•30 June 2021
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 731
Appeal from: Singh v Minister for Immigration & Anor [2019] FCCA 3557 File number: VID 1407 of 2019 Judgment of: BEACH J Date of judgment: 30 June 2021 Catchwords: MIGRATION – leave to appeal from decision of Federal Circuit Court – leave refused Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 24 Date of hearing: 30 June 2021 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 1407 of 2019 BETWEEN: PARDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
30 JUNE 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The applicant has sought both an extension of time and leave to appeal from a judgment of the Federal Circuit Court where the primary judge refused to make an order under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) setting aside his order dismissing the proceedings in default of appearance under r 13.03C(1)(c).
It is not in doubt that an order refusing such a setting aside is interlocutory in nature. Accordingly, leave to appeal is necessary. The applicant does not need any extension of time.
Now whether leave to appeal should be granted involves considering:
(a)whether the decision at first instance is attended by sufficient doubt such as to warrant its reconsideration; and
(b)whether substantial injustice would result if leave were refused, supposing the decision below to be wrong.
For the following reasons, the first limb is not established. Accordingly, leave to appeal should be refused.
Let me begin with some background.
On 14 December 2016, the applicant lodged an application for judicial review in the court below seeking to challenge the decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the Minister not to grant to the applicant a partner (temporary) (class UK) visa.
That application was listed for hearing before the primary judge at midday on 5 December 2019. The applicant failed to appear. The primary judge delayed commencement of the hearing for a short time before he made an order pursuant to r 13.03C(1)(c) dismissing the application for non-appearance.
But the applicant did appear later that day. At that time he applied to set aside the default dismissal. Surprisingly perhaps although within his right, the Minister opposed the application.
The primary judge considered the application to set aside the earlier order and principally addressed the question of whether there was a sufficiently arguable basis to establish jurisdictional error on the part of the Tribunal.
The primary judge set out the background of the matter at [14] to [38] of his reasons, which I do not need to repeat and will adopt for present purposes.
The primary judge found that the applicant’s grounds of review did not contain sufficient particularity such as to meaningfully identify any jurisdictional error on the part of the Tribunal. Upon reviewing such grounds, I agree with his Honour’s conclusion. Nevertheless the primary judge went on to make other observations.
The primary judge considered that the Tribunal had analysed the applicant’s circumstances with respect to whether any compelling reasons existed to grant the visa sought. He held that the Tribunal’s decision was open to it on the material before it.
Further, the primary judge considered that the Tribunal had complied with any procedural fairness obligations.
Further, the primary judge accepted the Minister’s submission that to the extent the applicant complained of any decision of the delegate, the court did not have direct jurisdiction to review it.
The primary judge concluded that the applicant had not demonstrated a reasonably arguable case for jurisdictional error on the part of the Tribunal or that it was appropriate for him to hear full argument on the matter. Accordingly, his Honour dismissed the application to set aside the default order.
Now before me, the applicant seeks leave to appeal from the primary judge’s order and has raised the following appeal grounds:
1.Hon. judge failed to hold that administrative appeals tribunal made jurisdictional error of law when it took into account irrelevant consideration and misconduct the facts.
2.AAT did not give chance to him to produce his wife that she is pregnant and she cannot come to office.
3.Delegates of minister wrongfully refused his visa when applicant genuinely married with his partner.
4.Applicant claims that he had not much knowledge of law and he is not in position that what he answer to delegates that why he never reply to delegates.
5. Applicant and his partner both married.
6. Applicant claims that he did not get fair trial.
In my view and as I have said, the applicant has not made out the first limb of the leave test.
First, the applicant has failed to establish any error on the part of the primary judge in the exercise of the primary judge’s discretion to refuse to set aside the orders dismissing the application for non-appearance. The primary judge properly considered the circumstances of the case by considering the explanation for the applicant’s failure to attend the hearing at the allotted time and whether the substantive judicial review application had reasonably arguable prospects of success such as to warrant reinstatement. I should also say that no challenge has been made concerning the underlying order dismissing the proceeding in default of appearance.
Second, it would seem that some of the grounds advanced in the applicant’s proposed notice of appeal before me were not raised before the primary judge.
Third, the proposed ground 1 is not particularised to make it meaningful. No irrelevant consideration purportedly taken into account by the Tribunal is identified nor is any apparent. Moreover, and as held by the primary judge, the Tribunal properly considered all of the applicant’s claims and the circumstances underlying those claims. This ground is not reasonably arguable.
Fourth, with respect to proposed grounds 2, 5 and 6, the primary judge correctly concluded that the Tribunal complied with any procedural fairness obligations. There is no evidence that the applicant sought to call his wife to give evidence as suggested in proposed ground 2. Rather, the applicant gave evidence to the Tribunal that the applicant and his wife had separated and that she was seeking a divorce from him. Further, the Tribunal had regard to the applicant’s vague evidence that he was in a relationship with a new partner who was pregnant, but noted that she had not appeared. The Tribunal placed weight on there being no independent evidence in relation to her or the claimed pregnancy. Moreover, there was no evidence that she had been prevented from giving evidence before the Tribunal. Ultimately, it was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts. These grounds are not reasonably arguable.
Fifth, proposed grounds 3 and 4 are directed to the proceedings before the delegate and the delegate’s decision. But the primary judge had no jurisdiction to directly review the delegate’s decision. The primary judge was correct to conclude that in the circumstances of this case, and where the Tribunal’s decision superseded that of the delegate, the court had no jurisdiction with respect to the delegate’s decision. These grounds are also not reasonably arguable.
In the circumstances, in my view the primary judge’s decision is not attended by sufficient doubt such as to warrant its reconsideration. The proposed appeal does not enjoy reasonable prospects of success. There was no error in the dismissal. There was no error in the failure to reinstate. And moreover, to have reinstated the proceeding would have been an exercise in futility as the applicant had no reasonably arguable ground concerning any jurisdictional error made by the Tribunal.
The application for leave to appeal must be dismissed with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 30 June 2021
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