FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2014] FCA 563

THE COURT ORDERS THAT:

1.    The applicant’s application for an adjournment filed on 26 May 2014 be dismissed.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the costs of the first respondent fixed in the sum of $1,665.00.

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

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT)

1.    INTRODUCTION

1    This is an application filed on 11 October 2013 for leave to appeal against the decision of the Federal Circuit Court of Australia in Singh v Minister for Immigration and Citizenship [2013] FCCA 1667. In that decision the Court below dismissed an application to set aside its earlier orders made in the absence of Mr Singh on his failure to attend the hearing of his application for judicial review before that court. By that application, Mr Singh had sought judicial review of a decision by the Migration Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (the Minister) not to grant him a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2    Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) because the decision below was interlocutory: see, eg, Pannu v Minister for Immigration and Citizenship [2013] FCA 1282 at [1] (White J); Pantel v Minister for Immigration and Border Protection [2014] FCA 205 at [25] (White J).

3    The Minister opposes the application and contends that leave should be refused with costs on the grounds that:

a)    the decision below is not attended by sufficient doubt to warrant its reconsideration by this Court;

b)    no substantial injustice would result if leave were refused;

c)    there is no appellable error apparent in the decision below; and

d)    the appeal does not enjoy any reasonable prospects of success.

4    Mr Singh appeared unrepresented before me and made his submissions with the assistance of an interpreter.

5    On 26 May 2014, Mr Singh also filed an interlocutory application seeking to adjourn the hearing of this application today. That application was accompanied by an affidavit affirmed on the same date by Mr Singh. In considering the application for an adjournment, I had regard to the matters raised in Mr Singh’s application and affidavit. For the reasons set out below, I decided to refuse his application for an adjournment at the hearing and dismiss his application for leave to appeal, with costs.

2.    APPLICATION FOR AN ADJOURNMENT

6    Mr Singh’s application was initially set down for hearing in the sitting period between 10 February 2014 to 7 March 2014. Mr Singh was notified by letter dated 15 October 2013 that the Court anticipated that the application for leave to appeal would be heard in Adelaide during that period. By a second letter dated 26 November 2013, the Court informed Mr Singh that his application was set down for hearing before me on 27 February 2014. However, it was not until the Court contacted Mr Singh again on 6 February 2014 that he replied via an email on 11 February 2014 stating that he was in India for “medical treatment” and that it would therefore be difficult for him to attend the hearing in late February. In his email, Mr Singh requested that the Court relist the hearing of the application for a date in March 2014.

7    Mr Singh’s February 2014 request for an adjournment was not formally made by way of an application or substantiated with any evidence. Nonetheless, I did not draw any inferences from Mr Singh’s lack of evidence, medical or otherwise, in support of his application and, with the consent of the Minister, granted Mr Singh the requested adjournment. In granting that adjournment, I had regard to the fact that Mr Singh was an unrepresented litigant; that he had indicated to the Court that he would not be in Australia on the date then listed for the hearing of his application; and that the Minister had consented to the adjournment. Accordingly, I made orders on 13 February 2014 vacating the hearing and ordering that it be relisted in the next Full Court period commencing on 5 May 2014.

8    The Court wrote to Mr Singh on 13 February 2014 notifying him that the hearing had been vacated and would be relisted for hearing during the May 2014 sittings. By reply email, Mr Singh wrote to the Court on 14 February 2014 stating that “I am satisf[ied] with new date on 5th [M]ay 2014. Thanks”. On 17 February 2014, staff from the Court’s Registry emailed Mr Singh to inform him that the “date of the hearing will be confirmed by the [C]ourt when a new date has been set (in the May period). You will be advised of this in writing.”

9    On 14 March 2014, the Court wrote to Mr Singh to notify him that his application had been relisted for hearing by a single judge on 28 May 2014 at 10.15am. The Court then emailed Mr Singh on 23 April 2014 to notify him that the matter had been listed before me for hearing on the date previously advised, namely, 28 May 2014.

10    In his affidavit dated 26 May 2014, Mr Singh stated that he had been overseas between 28 November 2013 to 18 May 2014 and as a result “could not submit any submissions to support my case”. Mr Singh deposed that he had been under stress during the past couple of months and was therefore now requesting additional time within which to prepare his case. Mr Singh also deposed to not having any legal representation as a result of his financial standing.

11    At the hearing before me, Mr Singh was given an opportunity to make oral submissions in support of his application for an adjournment. Mr Singh largely repeated the grounds contained within his application and supporting affidavit, namely, that he had been overseas until 18 May 2014 and that he therefore claimed to have been unable to prepare for the hearing of his application for leave. In addition, Mr Singh reiterated that he is without legal representation and seeks additional time within which to obtain advice in relation to his application from family and friends and, perhaps, a legal adviser. The Minister opposed the application for an adjournment on the basis that Mr Singh had been given sufficient time within which to prepare his case and had otherwise failed to diligently prosecute his application.

12    Against this background, I refused the application for an adjournment at the hearing for the following reasons.

13    First, I am satisfied that Mr Singh has been on notice from, at the very latest, February 2014 that the hearing of his application for leave to appeal would be listed in the Full Court appeal period commencing on 5 May 2014 and from March 2014 that it would be listed today.

14    Secondly, I am satisfied that Mr Singh has had more than sufficient time within which to prepare for the hearing. In this regard, the Court has already accommodated a request by Mr Singh for an adjournment with the consent of the Minister which gave Mr Singh a considerably more extended time within which to prepare for the hearing than that which he requested in February. Furthermore, the mere fact that Mr Singh was overseas does not in itself mean that he would have been unable to prepare for the hearing today.

15    Thirdly, while Mr Singh refers to his inability to obtain legal representation due to his financial circumstances, there is nothing in Mr Singh’s evidence that suggests that even if I were to grant an adjournment, he would be in a position within the foreseeable future to obtain legal representation.

16    Finally, ss 37M and 37N of the FCA Act require that matters in this Court proceed expeditiously and efficiently. I do not consider that Mr Singh has been diligent in the manner in which he has pursued relief in the Tribunal, the Court below nor in this Court, as is illustrated among other matters by the very late application for an adjournment.

3.    THE APPLICATION FOR LEAVE TO APPEAL

3.1    Background

17    Mr Singh is a national of India and applied for a Student (Temporary) (Class TU) visa on 10 August 2011. The criteria for the grant of that visa are contained in clause 572 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The relevant criteria at the time that the delegate’s decision was made included a requirement that an applicant provide evidence that he or she has funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the first 36 months: see clause 5A405 of Schedule 5A to the Regulations.

18    On 11 August 2011 the delegate sent an email to Mr Singh’s authorised representative requesting, among other things, evidence from Mr Singh of sufficient funds to support himself and any family members for the duration of his course and gave Mr Singh 28 days within which to provide this evidence. Mr Singh failed to provide any such evidence and, as a consequence, the delegate refused the application for a visa.

19    Mr Singh applied for review by the Tribunal. On 29 January 2013 the Tribunal invited Mr Singh to a hearing on 13 March 2013 to give evidence and make submissions. The invitation advised that if Mr Singh failed to attend the hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear. No response was received to the invitation and Mr Singh did not attend the hearing. Nor did he provide any information in response to the Tribunal’s request also contained in the invitation for information in support of his application including evidence of sufficient funds to support himself for the duration of his course of study. The Tribunal decided that it would exercise its power under s 362B of the Act to make a decision on the application for review without taking any further action to allow or enable Mr Singh to appear.

20    In its reasons for dismissing his application for review, the Tribunal assumed in Mr Singh’s favour that he was enrolled in a Diploma of Information Technology (Website Management) and found that it was a course specified for a subclass 572 visa. However it found that Mr Singh had failed to provide it with any evidence that he was capable of meeting the financial capacity requirements and accordingly did not satisfy the requirements then contained in cl 572.223(2)(a)(i).

21    Mr Singh applied for judicial review of the Tribunal’s decision pursuant to s 476 of the Act to the Federal Circuit Court. The application identified only one ground, namely, “financial support pending”. Mr Singh failed to attend at the hearing of that application on 16 September 2013 as a consequence of which the application was dismissed pursuant to r 13.03C of the Federal Circuit Court Rules 2001 (Cth). Following entry of that order, Mr Singh applied to set it aside. That application was heard by the primary judge on 10 October 2013. His Honour gave ex tempore reasons for refusing the application and had regard to the following considerations.

    The primary judge rejected Mr Singh’s explanation as to why he was unable to attend the hearing before the Tribunal and provide the information sought by the delegate (reasons at [2]).

    There being nothing before the delegate or the Tribunal to indicate that he had the capacity to provide or resource the funds required pursuant to the requirements of Sch 5A, the Tribunal affirmed the delegate’s decision (reasons at [3]).

    The primary judge did not accept Mr Singh’s explanation that he had simply overlooked the hearing date for his application for judicial review given:

    the background of his non participation at every phase of the departmental scrutiny of his entitlement for the visa; and

    what the primary judge found to be the “inherent unlikelihood of firstly, his making a mistake as to the day on which the hearing was listed before [the primary judge], given his attendance at the hearing before the Registrar when that hearing was scheduled, coupled with the fortuitous nature of the telephone call to the Federal Court Registry at the time just after the hearing has concluded” (reasons at [8]).

In short, the primary judge considered that Mr Singh was given a reasonable opportunity to be heard but did not take it (reasons at [9]).

    In any event Mr Singh gave no medical evidence in support of his claim to be suffering from back pain, depression and fever. As a consequence of this, the primary judge gave no weight to his assertion that he failed to attend on 16 September 2013 due to medical incapacity (reasons at [10]).

3.2    Consideration

22    As counsel for the Minister submitted, in determining whether or not to grant leave to appeal in the exercise of its discretion, the primary considerations are whether, in all of the circumstances, the decision of the Court below is attended with sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result if leave were refused, assuming the decision to be wrong: see DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 (the Court). These considerations are not separate but bear upon each other.

23    In his application for leave to appeal and draft notice of appeal, Mr Singh identifies two grounds, namely:

1.    “Immigration did not provide me sufficient time for submitting financial documents on request”; and

2.    the primary judge “did not consider on actual cause. They took decision on the basis of other grounds.”

24    While the second ground does not raise a discernible ground of appeal, when read with Mr Singh’s affidavit it appears that what he seeks is for this Court to “consider my real issue (refusal of student visa)”.

25    At the hearing, Mr Singh confirmed that the first ground was a complaint that the delegate had not afforded him sufficient time within which to provide his documents and was not a complaint against the Tribunal. I do not consider that the ground would have any likelihood of succeeding if leave were granted. The Tribunal undertook a full review of the merits of Mr Singh’s application for a visa in accordance with its obligation under ss 348 and 349 of the Act. As an aspect of that, Mr Singh was afforded an opportunity to lead any evidence upon which he relied in support of his application for review, as I have explained. As such, any deficiency in the processes by which the delegate’s decision was reached was superseded or ‘cured’ by the subsequent review of that decision in the Tribunal.

26    Mr Singh explained at the hearing that the second ground was a complaint that the Court below did not give him the opportunity to put in his documents so that he could be granted a visa. However, that complaint does not raise any arguable case of error on the part of the Court below. As the Minister submitted, neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal’s decision to refuse to grant a visa to Mr Singh. The jurisdiction of the Federal Circuit Court is limited to a consideration only of the legality of the decision by the Tribunal to refuse to grant the applicant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, in the event that leave to appeal were granted, on an appeal from the Federal Circuit Court under s 24 of the FCA Act this Court is required to consider whether there is error in the decision of the court from which the appeal is brought. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant’s claims.

27    Furthermore, as the Minister submitted, Mr Singh failed to lead any evidence before the Tribunal in support of his application for a visa despite being afforded an opportunity to do so with the consequence that his application for judicial review of the Tribunal’s decision could not have succeeded. In other words, there is no error in the Tribunal refusing to grant Mr Singh a visa when confronted with a complete absence of evidence on an essential criterion for the grant of a visa. Even at common law, the obligation upon a decision-maker is only to provide the person affected by a decision with an opportunity to be heard. It does not require that the person concerned in fact take advantage of that opportunity: see, eg, Sullivan v Department of Transport (1978) 1 ALD 383 at 403 (Deane J). Consistently with this, s 362B of the Act expressly authorised the Tribunal to proceed to make a decision in the present case notwithstanding the failure by Mr Singh to appear and give evidence as invited by the Tribunal to do.

28    For these reasons I dismiss the application for leave to appeal with costs fixed in the sum of $1,665.00.

Associate:

Dated:    28 May 2014