Sukhwinder Singh v Minister for Immigration and Citizenship

[2012] HCASL 37

SUKHWINDER SINGH
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 37
S405/2011

1. The applicant, a citizen of India, was granted a category of higher education visa by virtue of his status as the spouse of the holder of a student visa.  The applicant was later notified that a delegate of the Minister was considering the cancellation of his visa because the marital relationship between the applicant and his spouse had ended.  On 14 July 2010, the delegate cancelled the applicant's visa.

2. The applicant sought merits review of the delegate's decision before the Migration Review Tribunal ("the Tribunal").  It was not in issue before the Tribunal that the applicant's marriage had ended.  His case was that the cancellation of his visa had occasioned him undue hardship.  The Tribunal concluded that the circumstances on which the applicant relied in this respect did not outweigh the grounds for the cancellation of the visa.  It affirmed the delegate's decision. 

3. An application for judicial review of the Tribunal's decision was dismissed by the Federal Magistrates Court (Cameron FM).

4. The applicant appealed from the dismissal to the Federal Court of Australia (Gray J). The applicant was not legally represented and he did not appear when the appeal was called on. There was some material before the Court to suggest that the applicant may have had medical grounds for his non-attendance. In the circumstances, Gray J declined to deal with the appeal on its merits and made an order dismissing the appeal pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). His Honour observed that it would be open to the applicant to apply to set aside the order if he could demonstrate that he had been unfit to attend court on the date fixed and that his appeal had prospects of success. The applicant did not pursue that course.

5. The applicant seeks special leave to appeal from the orders of the Federal Court.  His proposed grounds of appeal and Written Case are misconceived in that they are directed to the merits of his assertion of jurisdictional error on the part of the Tribunal.  One ground asserts error in the dismissal of the appeal.  The ground is not developed.  No arguable basis for successful challenge to the order is advanced. 

6. The application is dismissed.

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
29 February 2012 V.M. Bell