Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 150
•18 February 2021
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150
Appeal from: Application for extension of time: Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4147 File number: NSD 1368 of 2020 Judgment of: LOGAN J Date of judgment: 18 February 2021 Catchwords: PRACTICE AND PROCEDURE – application for extension of time – where applicant sought legal representation unsuccessfully – where applicant represented on pro bono basis – where legal representation unable to meet with applicant physically due to health restrictions – whether explanation for delay is adequate – where proposed ground of review does not have sufficient prospects of success – application dismissed
MIGRATION – where the Tribunal affirmed the decision-maker’s decision to not revoke the cancellation of the applicant’s visa – whether jurisdictional error by Tribunal failing to take into account effect on applicant’s spouse of non-revocation as required by paragraph 14.2(1) Direction No. 79 – where spouse gave no evidence before the Tribunal – where applicant gave contradictory evidence as to effect on spouse
Legislation: Migration Act 1958 (Cth) ss 477A, 501, 501CA Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 29 Date of hearing: 18 February 2021 Counsel for the Applicant: Mr P Berg with Ms P Hart Solicitor for the Applicant: Jacobs Legal Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore ORDERS
NSD 1368 of 2020 BETWEEN: LALIT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
18 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application for extension of time be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application to be fixed by a Registrar if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Mr Lalit Singh (Mr Singh) is a citizen of the Republic of India. He first came to Australia, on 9 August 2016. His entry into Australia was lawful as he was then the holder of a class SN, subclass 190, skilled – nominated visa. The following year, on 27 April 2017, Mr Singh married Ms Juhi Sirohi (Ms Sirohi). That marriage was an arranged one. Ms Sirohi travelled to Australia from India in February 2018 to live with Mr Singh.
A little over two years later, on 30 March 2020, Mr Singh committed a range of what might collectively be termed domestic violence offences against Ms Sirohi. He was convicted of those offences by the Magistrates Court of New South Wales at Parramatta (Magistrates Court). On 7 April 2020, upon a plea of guilty. He was sentenced to an aggregate term of imprisonment for 12 months, commencing on 30 March 2020, by that Court. At the same time, that Court made an apprehended domestic violence order against Mr Singh for a period of two years.
Mr Singh appealed against the aggregate sentence to the District Court of New South Wales (District Court), sitting at Parramatta. On 7 May 2020, the District Court varied the order of the Magistrates Court such that he was, instead, sentenced to a two year term of imprisonment, to be served by way of intensive correction order in the community. His appeal against the apprehended domestic violence order was dismissed by the District Court.
In the interval between the conviction and appeal against conviction outcomes, Mr Singh’s visa had been cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). As the Act required, Mr Singh was offered an opportunity to make a representation in respect of the revocation of the cancellation of his visa.
On 23 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), responsible for the administration of the Act, decided, pursuant to s 501CA(4) of that Act, not to revoke the decision cancelling Mr Singh’s visa. Mr Singh then sought the review on the merits of the Minister’s delegate’s decision by the Administrative Appeals Tribunal (Tribunal). On 16 October 2020, for reasons published that day, the Tribunal decided to affirm the decision of the Minister’s delegate not to revoke the cancellation of Mr Singh’s visa.
It is possible, under the Act, to seek the judicial review of such a decision by the Tribunal. There is, however, a time limit prescribed for the filing of such a judicial review application. It is 35 days: see s 477A(1) of the Act. Mr Singh did not file an application for judicial review within that time period. However, s 477A(2) of the Act grants to the Court a discretion to extend the time limit. In short, such an extension may be granted if the court is satisfied that it is necessary in the interests of the administration of justice to grant such an extension.
The question for resolution today is whether Mr Singh ought to be granted an extension of time?
It is desirable, first, to set out a short chronology of procedural events:
·16 October 2020 – Mr Singh is given notification of the Tribunal’s decision
·20 November 2020 – last date for the filing within time of an application for judicial review
·18 December 2020 – date upon which application for an extension of time was filed
In relation to applications of the present kind, it is always necessary to examine what explanation, if any, is given for delay and the adequacy of that explanation, the question of any prejudice to a respondent party, and the prospective merits of the proposed judicial review application, having regard to the ground or grounds of review sought to be advanced.
As to prospective merits, it is singularly important not to convert an application of the present kind into the substantive hearing of a judicial review application: see DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 (DHX17), especially at [68] and [76]. In that case, the Full Court described the requisite consideration of proposed grounds of review as impressionistic. It is possible, having regard to earlier authorities, and these are canvassed in DHX17 by the Full Court, to find other formulations, but, with respect, I rather think that these are different ways of saying the same thing. What one does not do is to form any concluded view as to whether or not a proposed judicial review application will succeed. Even an apparently weak case might attract an extension of time.
It is necessary to recall that access to an exercise of judicial power is not likely to be denied. A fortiori, that is so in a case which, as matters presently stand, would have the consequence of Mr Singh’s removal, as a matter of obligation by the Minister, from Australia.
Sometimes, of course, the parties approach an extension of time application on the basis that argument on the extension of time will be treated as argument on a substantive judicial review application with no further hearing being necessary if the court is disposed to grant an extension of time. That can sometimes be a convenient way of saving costs to the parties, as well as the limited public resource of judicial time. But it is by no means mandatory to follow that course and, in other circumstances, it can be just as convenient, first, to consider alone the question as to whether or not an extension ought be granted.
Turning first to the subject of explanation, such explanation as there is, is to be found in an affidavit of Mr Jang to which no objection was taken by the Minister. In that affidavit, there is an assertion – and I use that term advisedly – that Mr Singh is impecunious. That particular assertion has conclusionary qualities, but it is not entirely unsupported by inferences, one might draw from other facts which emerge from the material before the court. Mr Singh had the benefit of legal representation, apparently funded from his own resources, in the proceedings before the Tribunal. The evidence discloses that he was in immigration detention at the time when the Tribunal conducted its hearing and also handed down, later, its decision. He had been in immigration detention for some months. The Tribunal’s reasons disclose that, prior to his imprisonment, and then immigration detention, he had been in remunerative employment, and indeed, was a well-regarded employee. Inferentially, all of that stopped upon his no longer being at liberty. Further, his present representation is provided, commendably, on a pro bono basis.
Yet further, Mr Singh was not inactive in seeking to secure legal representation during the period within which a judicial review application could be filed as a right. The endeavours, though, that he made to seek legal representation, firstly, met with a requirement for putting solicitors in funds, which did not occur, and, secondly, were directed to the securing of legal aid. The latter did not prove possible, apparently, because in New South Wales, legal aid is not provided through the New South Wales Legal Aid Office for migration cases. Thereafter, he cast around, so very understandably, amongst fellow detainees for possible leads in relation to the securing of legal representation. His present representation is the result of that. Thus, to the chronology already given it should be added, this, that on 20 November 2020 he was able to secure some legal advice from lawyers acting pro bono.
There was an endeavour on 4 December 2020 to file the judicial review application. That was refused at the registry, because an extension of time was needed. It was under those circumstances that the application for an extension of time came to be filed.
Two other considerations also intrude, and they are interrelated. The ability of Mr Singh to seek legal representation is not the same as someone at large in the community. He is in immigration detention. There is nothing to suggest that that detention is unlawful, but it is nonetheless a deprivation of liberty. Related to that, and as a consequence of the apprehensions as to public health and health of detainees, there are, and were in November and December last year, restrictions which the Minister, for good reason, imposes in relation to access, physically, to immigration detention centres by outsiders, including, materially, legal practitioners. So the ability freely to interchange with legal practitioners is constrained. Telephone and audio visual means have been the means which Mr Singh has had to use, and the same applies to his legal practitioners.
Also raised on the evidence and related to detention, earlier experience with the criminal justice system, and as well, it seems, in reflection on his offending conduct, is that Mr Singh has been depressed. The Tribunal’s reasons are eloquent as to the course of the mental health issues he has faced.
Quite properly, with respect, Mr Reilly, for the Minister, in submissions, acknowledged that delay, as a consideration, is not going to feature much in relation to the disposition of this application. With that, I agree. By that I mean that, whilst Mr Singh had the benefit of legal representation before the Tribunal, and whilst one might infer that his then lawyers would at least have given him some indication as to rights of challenge when the Tribunal’s decision was published, this is not a case, in my view, where it could be said that Mr Singh has rested on his rights. Taking all of the circumstances that have been just recited, I consider that his explanation is adequate.
The Minister also does not point to any particular prejudice. Although it must be said that there is a public interest in finality of public administration, that must be balanced against a countervailing public interest in terms of a person’s ability to secure a hearing according to law on judicial review.
Further, questions as to adequacy of explanation always interplay with prospective prospects in relation to the proposed judicial review application. Thus, Mr Berg and Ms Hart for Mr Singh, as well as Mr Reilly, appropriately focused on that subject in submissions.
The proposed ground of review is this:
In oral evidence before the second respondent the applicant stated that his wife would suffer hardship if he were removed from Australia. The wife of the applicant is the victim in the offending leading to the visa cancellation. Nonetheless the applicant stated he would support his wife throughout the 2 years AVO separation, and they would be reconciled after that date. The wife of the applicant is an Australian permanent resident. The second respondent made an error of law in failing to consider the effect of non-revocation upon his wife.
The Act provides that the Minister may give directions in relation to the making of a decision of the present kind. Such directions are relevant considerations in the sense that they must be taken into account by the Minister’s delegates and sitting in place of a delegate, by the Tribunal. The direction prevailing at the time when the Tribunal heard and determined the review application was Direction No 79. Paragraph 14.2(1) of that direction provides:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the person began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The proposed ground of review contains an assertion that Mr Singh’s wife was, at the time of hearing, a permanent resident. There was no evidence before the Tribunal that she had that status. The only definite evidence as to Ms Sirohi’s class of visa concerned the visa that she held at the time when the Minister’s delegate made the decision not to revoke cancellation. At that time, she was stated by the delegate to hold a class UF, subclass 309 partner (provisional) visa. That type of visa is a temporary visa. Whilst that type of visa may not confer a right of permanent residence, it is sufficient for the purposes of the present application to assume in Mr Singh’s favour without deciding that it may be nonetheless a visa which confers, in terms of para 14.2(1)(b), “a right to remain in Australia indefinitely”.
The proposed case by Mr Singh is that the Tribunal failed to address a mandatory consideration, namely that specified in para 14.2(1)(b) of the direction, and that there is thus revealed a jurisdictional error. The Tribunal’s reasons disclose that the Tribunal was well aware that Mr Singh was married. They also disclose the following at paras 30(g), 35 and 44:
30.…
(g)The applicant was referred to a counsellor for relationship counselling and attended a consultation on 19 June 2020. The progress notes record that the applicant was offered a referral to a psychologist for relationship counselling, but he politely declined. The applicant reported he had seen a psychologist previously and “was taught how to avoid his wife and her aggression”. It noted that the applicant plans to file for divorce and is looking to start his life afresh without her.
…
35.I acknowledge that the applicant has undertaken some courses while in immigration detention. However, there is insufficient evidence to demonstrate any meaningful effort on the applicant’s behalf to address the underlying causes of his violent offending since his arrest. The applicant only commenced online courses after the mandatory cancellation decision. While in detention, he also refused an offer for a referral to a psychologist for further relationship counselling.
…
44.The applicant also contends that he wishes to resume his marriage with Ms Sirohi after the expiration of the ADVO. He also claims that he wishes to support her financially in Australia, however, claims that if he is removed to India, he will unable to provide such assistance. This claim by the applicant is inconsistent with evidence before the Tribunal and there is no evidence from Ms Sirohi demonstrating that she wishes to also continue her marriage with the applicant.
[emphasis in original]
There was also before the Tribunal a written submission on behalf of the applicant by his then-lawyers which stated that the effect of non-revocation on Ms Sirohi was unclear on the evidence and should not be speculated about.
The reasons of the Tribunal must, of course, be read as a whole. But when one so reads those reasons, the particular paragraphs which I have extracted, and in the further context of the submission made on Mr Singh’s behalf to the Tribunal, my view, as a matter of impression, is that this particular proposed ground of review does not enjoy a sufficient prospect of success to warrant the granting of an extension of time. The reason for that is that the Tribunal looks to have addressed, insofar as it was possible on the evidence, the circumstances of Ms Sirohi and the relationship. It is a noteworthy feature of the evidence before the Tribunal that Ms Sirohi did not give any evidence, either in favour of the continuance of the marriage or against it. She just gave no evidence at all. That distinguishes the present case from those where a wife or other partner gives evidence and this evidence is, on the face of the Tribunal’s reasons, is not taken into account in terms of whether or not the cancellation decision should be revoked.
Here, in my view, as a matter of impression, the Tribunal has addressed, to the extent possible on the evidence, the impact on the wife and also noted an inconsistency in relation to the evidence before it as to Mr Singh’s attitude. It is put on behalf of Mr Singh that at present, there is no transcript of the hearing as yet. That is true. But there is nonetheless revealed in the reasons particular aspects of the evidence and it is entirely speculative as to whether any different position would be advanced by reference to the transcript.
The long and the short of it, therefore is that, as a matter of impression, I do not consider that there is revealed a case for jurisdictional error grounded in a failure to take into account the terms of para 14.2 of the Minister’s direction. It is also in that regard necessary to remember that the reasons of the Tribunal will be shaped by the Tribunal’s place in an administrative decision-making continuum. That continuum necessarily includes the particular submissions made to the Tribunal by the parties.
For these reasons, I dismiss the application for an extension of time.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
Associate:
Dated: 1 March 2021
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