FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1424

Appeal from:

Singh v Minister for Immigration & Anor [2017] FCCA 1177

File number(s):

NSD 971 of 2017

Judge(s):

SIOPIS J

Date of judgment:

22 November 2017

Catchwords:

MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – no appealable error identified – no appearance by the appellant – appeal dismissed.

Legislation:

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Migration Act 1958 (Cth) s 97

Migration Regulations 1994 (Cth) Sch 2 cl 885.224, Sch 4 PIC 4020(1)

Federal Court Rules 2011 (Cth) rr 36.75, 36.75(1)(a)(i)

Date of hearing:

22 November 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

24

Counsel for the Appellant:

The Appellant did not appear.

Counsel for the First Respondent:

Ms B Rayment

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

NSD 971 of 2017

BETWEEN:

BHUPINDER SINGH

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

22 NOVEMBER 2017

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J:

1    This is an appeal from the decision and orders of the Federal Circuit Court of Australia.

2    It is now 10:30 am or thereabouts, and the appellant has not appeared.

3    The matter was called outside the Court and the appellant did not answer.

4    The first respondent has made an application under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) for the appeal to be dismissed on the basis that the appellant is absent at the hearing of the appeal. There is also a power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) for the Court to dismiss an appeal on the grounds of the non-attendance of the appellant at the hearing.

5    Counsel for the first respondent has informed me that this morning in Court she has had a discussion with the wife of the appellant who said that the appellant has been missing for two days.

6    Counsel for the first respondent has handed to the Court a letter which the first respondents solicitors sent to the appellant on 15 November 2017 containing by way of service, a copy of the first respondents outline of submissions and also advising that the matter was listed for hearing on 22 November 2017 at 10:15 am in the Law Courts building.

7    The letter went on to say that:

You are required to attend court on this occasion.

If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and you pay the Minister’s legal costs of the proceedings.

8    Counsel for the first respondent has advised the Court that there was no response to that letter and the only response that the first respondent is aware of is the conversation between counsel and the appellant’s wife this morning in Court.

9    In those circumstances, the Court will dismiss the appeal under r 36.75 of the Rules and s 25(2B)(bb)(ii) of the Federal Court Act.

10    However, in any event, I will deal briefly with the appeal on its merits. For the reasons which follow, the appeal is, in my view, devoid of merit.

11    The appellant is a 30 year old male citizen of India. He arrived in Australia in 2007 as the holder of a student visa and was, upon the completion of some courses of study in Australia, subsequently granted a skilled graduate visa.

12    On 7 March 2012, the appellant applied for a skilled residence (Class VB) visa, which I will refer to as a skilled residence visa, pursuant to the Migration Act 1958 (Cth).

13    On 2 May 2014, a delegate of the first respondent refused to grant the appellant a skilled residence visa on the basis that the appellant did not satisfy public interest criterion (PIC) 4020(1) contained in Sch 4 to the Migration Regulations 1994 (Cth) (the Regulations) as required by cl 885.224 of Sch 2 to the Regulations.

14    On 19 May 2014, the appellant applied to the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision.

15    On 18 September 2014, the Tribunal affirmed the decision of the delegate.

16    The Tribunal found that the document which purported to be the appellants International English Language Testing System test result dated 3 December 2011 submitted by the appellant in support of his skilled residence visa application was a bogus document pursuant to s 97 of the Migration Act. There was a discrepancy between the photograph of the candidate who was represented as having sat the test recorded on the result form submitted by the appellant to the department; and the photograph of the candidate who sat the test on the records retained by the testing authority for verification purposes. The result form submitted by the appellant contained his photograph, whereas the verification records showed the photograph of a different person.

17    The Tribunal also referred to the fact that there was a significant difference in test scores between the tests taken by the appellant on other dates and the high scores obtained by the candidate in the test taken on 3 December 2011. In addition, there was also evidence from the testing authority to the effect that the result form submitted to the department by the appellant had been tampered with.

18    As a consequence, the Tribunal held that the appellant was not eligible for the grant of a skilled residence visa as the appellant did not satisfy the requirement that there be “no evidence” that he had given or caused to be given to the Minister or an officer of the department a bogus document.

19    On 16 October 2014, the appellant applied to the Federal Circuit Court for a review of the Tribunal decision. The appellant relied on two grounds of review. In essence, the first ground of review alleged that the Tribunal fell into jurisdictional error by not considering his contentions; and the second ground of review alleged that the Tribunal had failed to have regard to relevant material, namely, that there were differences in his photograph as it appeared on records of other tests he had taken and also that he said that he had travelled to India for the test in question.

20    On 1 June 2017, the Federal Circuit Court dismissed the appellant’s application on the basis that he had failed to establish any jurisdictional error by the Tribunal.

21    On 20 June 2017, the appellant appealed against the orders of the Federal Circuit Court to this Court. The appellant’s notice of appeal contains only one ground of appeal which is not satisfied with the Court decision and under the orders sought part of the notice of appeal, it is written wants to review the file again.

22    The appellant’s appeal is incompetent as the appeal ground merely expressed dissatisfaction with the Federal Circuit Court decision and does not allege any appealable error by the primary judge.

23    I have, however, had regard to the decision of the primary judge. The primary judge held, in essence, that the Tribunal’s decision was open on the evidence before it and that it had considered all of the appellant’s contentions. In my view, the primary judge did not err in dismissing the appellant’s judicial review application.

24    It follows, therefore, that the appeal is dismissed both by reason of the failure of the appellant to appear today and also on the merits.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:    29 November 2017