FEDERAL COURT OF AUSTRALIA
Singha v Minister for Home Affairs [2018] FCA 999
Appeal from: Singha v Minister for Immigration & Anor [2018] FCCA 618 File number: NSD 95 of 2018 Judge: THAWLEY J Date of judgment: 29 June 2018 Catchwords: MIGRATION – application for s 39B relief in relation to a decision of the Federal Circuit Court of Australia – where the Administrative Appeals Tribunal affirmed a decision of the delegate to refuse the applicant’s medical treatment visa application on the basis that the applicant failed to satisfy the requirements in cl 602.213(5) of Schedule 2 and cl 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) – where the Federal Circuit Court dismissed an application for reinstatement of proceedings – whether applicant was denied procedural fairness in the Federal Circuit Court – whether jurisdictional error or non-jurisdictional error on the face of the record Legislation: Constitution s 75(v)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 5
Federal Circuit Court Rules 2011 (Cth) rr 13.03C(1)(c), 16.05
Migration Regulations 1994 (Cth) Schedule 2, cl 602.213, sub-cl 602.213(5); Schedule 3, cl 3001
Cases cited: Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302
BXD17 v Minister for Immigration and Border Protection [2018] FCA 765
DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95
Kaur v Minister for Immigration and Border Protection [2016] FCA 565
Sayadi v Minister for Immigration and Border Protection [2014] FCA 1235
Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
Date of hearing: 29 June 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms S He of Mills Oakley ORDERS
NSD 95 of 2018 BETWEEN: DIPAK SINGHA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
29 JUNE 2018
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
4.In the absence of any agreement pursuant to the immediately preceding direction, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).
5.Within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
6.In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the…
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- Case
- [2018] FCA 999
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant was denied procedural fairness in the Federal Circuit Court and whether there was a jurisdictional error or non-jurisdictional error on the face of the record. The court held that the Tribunal and the Federal Circuit Court correctly concluded that there was no power or provision in the Regulations to waive the requirement of cl 3001 of Schedule 3. The applicant's substantive case to the Federal Circuit Court was bound to fail. The decision of the Federal Circuit Court not to exercise its discretion to reinstate the proceedings was clearly correct. The court found that there was no basis for the relief sought and dismissed the application with costs.
The court ordered that the application be dismissed, and the applicant pay the first respondent’s costs of and incidental to the application, to be fixed by way of a lump sum. The court directed that within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs. If no agreement was reached, the first respondent had to file and serve an affidavit constituting a Costs Summary within 21 days. The applicant had to file and serve any Costs Response within a further 14 days. If no agreement was reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs was to be referred to a Registrar for determination.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to the application, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
3. Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
4. In the absence of any agreement pursuant to the immediately preceding direction, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).
5. Within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
6. In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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