Taunque Harmit Singh v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1624
•24 OCTOBER 2005
FEDERAL COURT OF AUSTRALIA
Taunque Harmit Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1624
Judiciary Act 1903 (Cth) s 39B
Taunque v Minister for Immigration [2005] FMCA 1400 affirmed
TAUNQUE HARMIT SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 1110 of 2005GRAY J
24 OCTOBER 2005
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1110 of 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
TAUNQUE HARMIT SINGH
APPELLANTAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
GRAY J
DATE OF ORDER:
24 OCTOBER 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1110 of 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
TAUNQUE HARMIT SINGH
APPELLANTAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GRAY J
DATE:
24 OCTOBER 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant has applied for leave to appeal from a judgment of the Federal Magistrates Court. That judgment was given by Federal Magistrate McInnis on 9 September 2005. See Taunque v Minister for Immigration [2005] FMCA 1400. His Honour dismissed an application by the applicant, filed on 29 August 2005, with costs. That application was an application seeking to set aside a previous order of the Federal Magistrates Court. The previous order was made on 12 August 2005. On that occasion, Federal Magistrate McInnis dismissed an application by the applicant, seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) with respect to a decision of the Migration Review Tribunal (‘the Tribunal’). On 30 September 2004, the Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refusing the applicant a student visa.
Federal Magistrate McInnis dismissed the application on 12 August 2005 because the applicant failed to appear at court to pursue the application. On 29 August 2005, the applicant filed an application to set aside the order, with a supporting affidavit, explaining his non-attendance on 12 August 2005. On 9 September 2005, the federal magistrate heard the application and gave judgment. His Honour found that a letter from the Federal Magistrates Court sent to the applicant advising him of the hearing date had been sent to the wrong address. His Honour also found, however, that the applicant had been present at a directions hearing on 15 December 2004, when the proceeding had been listed for hearing on 12 August 2005, and also that the respondent’s legal advisers had subsequently served on the applicant a sealed copy of an order made by the court, in which the court fixed that date for the hearing. Further, his Honour found that the applicant had complied with certain orders that were also made in the same sealed copy order. On that basis, his Honour took the view that he was not prepared to rely on the applicant’s assertion that he misunderstood the date. His Honour found that the more likely explanation is that the applicant did not attempt to attend the court on the day on which the proceeding was listed for hearing. His Honour also pointed out that the applicant did not make any prompt application to seek to set aside the orders made.
His Honour then proceeded to deal with the question whether, if he were wrong, there was in any event some basis for saying that the applicant might have been entitled to relief. His Honour examined the reasons for decision of the Tribunal. He identified that two issues had been raised before the Tribunal. Both issues concerned the question whether the applicant had failed to comply substantially with a condition, designated as condition 8202, in a previous student visa.
The first issue was whether information about the applicant’s academic results was correct. The second issue was whether the applicant was prevented by reason of a medical condition, a skin condition, from complying substantially with the requirements of condition 8202. On each of those issues, the Tribunal had reached conclusions adverse to the applicant. The federal magistrate found that the applicant, whilst claiming that the Tribunal had made an error of law, effectively sought to agitate the facts and to invite the Federal Magistrates Court to re-visit the matter by way of merits review.
His Honour pointed out that it was necessary for the applicant, if he were to succeed, to demonstrate jurisdictional error on the part of the Tribunal. In his Honour’s view, the Tribunal had not made any error, let alone a jurisdictional error. His Honour therefore found that there was no arguable case, so that even if he were to set aside the previous decision dismissing that application, the applicant could not succeed.
In order to succeed in his application for leave to appeal it is necessary for the applicant to demonstrate that the judgment below is attended with sufficient doubt to warrant its reconsideration, and to demonstrate that substantial injustice would result if leave were refused, supposing the judgment below to have been incorrect.
In support of the application for leave to appeal, the applicant has filed a brief affidavit, setting out the history of the matter. All that he says about the federal magistrate’s judgment is that he disagrees with it on the ground that there was an error of law in the court’s decision, constituting a jurisdictional error. In a draft notice of appeal filed in support of the application, the applicant identifies two grounds of appeal. The first is that the federal magistrate erred in law in not finding that the applicant’s grounds of review were made out and granting the appropriate relief. The second ground is that the federal magistrate should have held that the applicant’s grounds of review were made out and should have granted the appropriate relief.
It is plain that there is no detail provided in support of the proposition that the judgment below is attended by any doubt, or that there would be any injustice if, supposing it to have been wrong, it were not set aside.
In his oral submissions to me, the applicant has asked that I give him another chance to return to the Tribunal. He is convinced that he is now armed with sufficient factual material so that, if he were to return to the Tribunal and to re-contest the issues that were before it, he would be able to persuade the Tribunal that he ought to succeed.
In making that submission, the applicant is obviously in some difficulty in understanding the nature of administrative law. I do not blame him for that difficulty, because the concepts themselves are difficult. It is plain, however, that the facts were a matter for the Tribunal. The Tribunal’s decision can only be overturned if jurisdictional error were to be found. The mere fact that an applicant has additional material, and could now mount a better case before the Tribunal, does not go anywhere near establishing that the Tribunal made a jurisdictional error.
So far as I can see, having examined the federal magistrate’s reasons for judgment, his Honour was correct to say that the Tribunal addressed both the issues before it, on the material that was before it. All that it did not do was find in favour of the applicant. No ground existed, or exists now, for saying that the Tribunal made any jurisdictional error. It follows that his Honour came to the correct conclusion, that the applicant had no prospect of success in the application, even if the earlier order dismissing it were to have been set aside.
Nor could it be said that there is any material before the Court suggesting that his Honour made any error in reaching the factual conclusion that he did as to why the applicant was not present on 12 August 2005. It was well open to his Honour to take the view that, having received a copy of the orders made previously, and having filed material required by those orders, the applicant was well aware of the hearing date of 12 August 2005, especially as he had been present when that hearing date was fixed.
It is apparent, therefore, that the applicant is unable to demonstrate that the federal magistrate’s judgment is attended by sufficient doubt to warrant its reconsideration. He is also unable to demonstrate that any injustice would result if leave to appeal were refused, even if the judgment at first instance were wrong on one issue. For those reasons it is necessary for me to dismiss the application for leave to appeal.
The orders I make are as follows:
1.The application for leave to appeal be dismissed.
2.The applicant pay the respondent’s costs of the application.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 28 November 2005
Counsel for the applicant: The applicant appeared in person Solicitor for the respondent: Australian Government Solicitor Date of hearing: 24 October 2005 Date of judgment: 24 October 2005
0