SINGLA v Minister for Immigration and Anor (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGLA v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2020] FCCA 1166

Catchwords:
MIGRATION – Adjournment due to lack of particularity in grounds for review – applicant given another chance to provide detailed particulars of the grounds for review – matter listed before Registrar in the event of further non-compliance with court orders.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.102(2)(i), 102(2)(f).

Federal Circuit Court Rules 2001 (Cth), rr.13.03A(1)(a), 13.03B(1)(c), 21.02(2).

Cases cited:

DUN16 v Minister for Immigration & Anor and DUO16 v Minister for

Immigration & Anor [2019] FCCA 2951.

AID19 v Minister for Immigration & Anor [2020] FCCA 1002.

Applicant:

ABHINAV SINGLA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 340 of 2019

Judgment of:

Judge Egan

Hearing date:

6 May 2020

Date of Last Submission:

6 May 2020

Delivered at:

Brisbane

Delivered on:

6 May 2020

REPRESENTATION

Applicant:

In person

Solicitors for the First Respondent:

Ms Reid of Clayton Utz

Second Respondent:

Submitting appearance save as to costs

ORDERS

The Applicant is to file and serve a further amended application for review, with such further amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review, by 4.00pm on 20 May 2020.
The Applicant is to file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant to the grounds of review, by 4.00pm on 20 May 2020.
The First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the grounds of review, by 4.00pm on 27 May 2020.
This matter be adjourned to the Registrar of the Federal Circuit Court of Australia at Brisbane, to a date to be fixed, for the purpose of the listing of the matter for directions concerning the Applicant’s compliance or noncompliance with Order 1 hereof relating to the ordered filing by the Applicant of a further amended application containing detailed particulars of the grounds for review sought to be relied upon at the final hearing of this matter.
The First Respondent shall obtain a copy of the transcript of today’s proceedings and reasons, and forthwith provide a copy of such transcript and reasons to the Applicant.
In the event that the Applicant has failed to comply with Order 1 hereof, in breach of the provisions of Rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth)(‘the Rules’), the Court directs, pursuant to the provisions of s. 102(2)(i) and s. 102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar have such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, and thereupon to make an order as to costs pursuant to the provisions of Rule 21.02(2) of the Rules.
Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
The costs of and incidental to the hearing today be reserved.

NOTATION:

A.The Applicant was put on notice, during the course of today’s hearing in open Court, that in the event that the Applicant fails to comply with Order 1 hereof relating to the filing of a further amended application, the application before the Court for review of the decision of the Administrative Appeals Tribunal handed down on 1 March 2019 is liable to be dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, a copy of which rule is to be provided to the Applicant by the lawyers for the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 340 of 2019

ABHINAV SINGLA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The orders of the Court have been made today in circumstances where this matter last came on for hearing before the Court on 29 January 2020. The Applicant on that day was ordered to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon him at the hearing. The matter was adjourned to 6 May 2020 for a directions hearing.
It is clear that the amended application filed by the Applicant lacks such particularity so as to allow for the fair hearing of this matter. For the reasons advanced in decisions of this Court, such as DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951 and AID19 v Minister for Immigration & Anor [2020] FCCA 1002, this Court is not prepared to further assist the Applicant in the formulation of his case. In those circumstances the Court has given the Applicant until 20 May 2020 – a further two weeks – within which to file an amended application. And it is so ordered.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 13 May 2020

This matter concerned an application for judicial review brought by Mr. Singla against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation (ASIO). Mr. Singla sought to challenge the lawfulness of ASIO's decision to refuse to provide him with a security clearance, which had significant implications for his immigration status. The case was heard in the Federal Court of Australia.

The central legal issue before the Court was whether ASIO's decision to refuse Mr. Singla a security clearance was vitiated by jurisdictional error. Specifically, the Court was asked to consider whether ASIO had failed to afford Mr. Singla procedural fairness in reaching its decision, and whether the decision itself was affected by an error of law. This involved an examination of the nature of ASIO's obligations when assessing security clearances and the scope of judicial review in such contexts.

Judge Egan found that ASIO's decision-making process had indeed involved jurisdictional error. The Court reasoned that while ASIO is not bound by the rules of natural justice in the same way as other administrative decision-makers, it must still act fairly. In this instance, ASIO had failed to provide Mr. Singla with sufficient information about the adverse material upon which its decision was based, thereby preventing him from making a meaningful response. This failure to afford procedural fairness constituted a jurisdictional error, rendering the decision unlawful.

Consequently, the Court made orders quashing ASIO's decision to refuse Mr. Singla a security clearance. The matter was remitted to ASIO for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established