FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 942

ORDERS

THE COURT ORDERS THAT:

1.    The application is refused.

2.    The applicant is to pay the first respondent’s costs fixed in the amount of $1,756.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for leave to appeal against orders made by the Federal Circuit Court on 27 January 2016: Singh v Minister for Immigration & Anor [2016] FCCA 28.

2    The applicant is a 25 year old citizen of India. On 11 November 2013, he made an application to the Federal Circuit Court for judicial review of a decision of the second respondent, the then-named Migration Review Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (Visa).

3    The application for judicial review was summarily dismissed by the Federal Circuit Court on the basis that it raised no arguable case for the relief claimed: see r 44.12 of the Federal Circuit Court Rules 2001 (FCCA Rules). The judgment sought to be appealed against is interlocutory in nature: r 44.12(2) of the FCCA Rules. An appeal against an interlocutory judgment of the Federal Circuit Court cannot be commenced except with the leave of this Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

4    For the reasons given below, the application should be refused.

Background

5    Section 65(1)(a) of the Migration Act 1958 (Cth) (Act) provides that if the Minister is satisfied that the criteria for a valid visa application are met, the Minister is to grant the visa. If not satisfied, the Minister is to refuse to grant the visa: s 65(1)(b).

6    There are eight subclasses of a Student (Temporary) (Class TU) visa: see Item 1222(4) of Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations). With limited exceptions, it is a criterion for the grant of six of those subclasses of visa that the applicant be a person who is enrolled in, or is the subject of an offer of enrolment in, a course of study that is a “principal course” of a kind specified by the Minister: see cll 570.232, 571.232, 572.231, 573,231, 574.231 and 575.231 of Schedule 2 to the Regulations. That criterion in respect of each of the six subclasses is expressed in substantially the same words in each of the clauses to which I have referred.

7    The criteria to which I have just referred are primary criteria for the grant of a student visa. A person who is a dependent of an applicant for a student visa may also be eligible for a student visa if he or she satisfies the secondary criteria for the grant of a visa of the same subclass.

8    On 12 March 2011 the applicant’s wife applied for a student visa, naming the applicant as her dependent. The applicant was initially a secondary applicant on that application. It appears that the applicant did not, at that point in time, propose to undertake any study in Australia.

9    A delegate of the Minister refused to grant a visa to the applicant and his wife. The applicant and his wife made an application for review of that decision to the Tribunal.

10    On 13 October 2013, the applicant’s wife was killed in a car accident in India. The applicant’s three year old daughter and both of the applicant’s parents were killed in the same accident.

11    Following the death of his wife, the applicant persisted with the application for review before the Tribunal. The Tribunal affirmed the delegate’s decision not to grant the applicant a visa. The applicant made a successful application for judicial review of that decision to the Federal Circuit Court. On 10 June 2014, the Federal Circuit Court made orders setting aside the Tribunal’s decision and remitting the matter to the Tribunal for reconsideration. A note to the orders stated that the Minister had conceded that the Tribunal had failed to consider the applicant’s visa application against the primary criteria for the grant of a student visa.

12    On 10 July 2014, a differently constituted Tribunal issued the applicant with an invitation to appear again before it. The invitation stated:

You are invited to provide a current confirmation of enrolment to the tribunal as soon as possible. The presiding member will then consider whether it is necessary to proceed with the hearing.

13    A hearing before the Tribunal was scheduled to commence on 15 August 2014. The hearing was adjourned at the request of the applicant for medical reasons. A further invitation to appear before the Tribunal was sent to the applicant on 15 August 2014. It advised of a new hearing date of 21 August 2014. It went on to state:

You have not yet provided documents or submissions in support of your application for review. Any such documents should be lodged immediately.

14    At the hearing before the Tribunal, the applicant was unable to demonstrate that he was currently enrolled in, or the subject of an offer of enrolment in, any course that would satisfy the criteria for the grant of any subclass of a Student (Temporary) (Class TU) visa. Although he had previously been the subject of an offer of enrolment, and confirmation of enrolment, in two English language certificate courses, the dates for the commencement and completion of those courses had passed at the time of the Tribunal’s hearing.

15    The Tribunal held that the applicant did not satisfy the enrolment criterion for the grant of the Visa because he was not enrolled, and did not have a current offer of enrolment, in any applicable course of study. It further held that there was no evidence to support a finding that the applicant fell within the limited exceptions to the criterion, or that the applicant satisfied the criteria for the remaining two subclasses of a Student (Temporary) (Class TU) visa in respect of which the enrolment criterion did not apply.

The proceedings in the Federal Circuit Court

16    Section 476(1) of the Act confers on the Federal Circuit Court the same original jurisdiction in relation to the Tribunal’s decision as the High Court has under s 75(v) of the Constitution. The remedies sought by the applicant in the Federal Circuit Court were only available if the applicant could show that the Tribunal made a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 [76], 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

17    The Federal Circuit Court dismissed the application for judicial review pursuant to r 44.12 of the FCCA Rules. It provides:

44.12 Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

18    As I observed in Singh v Minister for Immigration and Border Protection [2016] FCA 611 at [33] the power conferred by that rule is similar to the power of this Court to enter summary judgment against a party pursuant to s 31A of the FCA Act or r 26.01 of the Federal Court Rules 2011 (Cth) (Rules). Such a power is to be “sparingly employed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ), and should only be exercised in cases that are so obviously groundless that they cannot, on any reasonable view, succeed: see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90-92.

19    The applicant appeared self-represented in the Federal Circuit Court. His originating application expressed the grounds of review as follows (original grammar retained):

I have provided all document that all my family passed away in an accident, so I do not want to go back as it puts me in depression. I requested to get student for myself as I depend on my wife but she died in an car accident. But they are not giving me a student visa. Why can’t I apply for student visa or work visa. I am a reliable person and hard working. I been in Australia for 6 ½ years. I have no criminal records I can provide you police clearance if required.

20    The Minister made submissions before the Federal Circuit Court dealing with the question of whether any jurisdictional error had been made by the Tribunal, notwithstanding that the grounds for review did not expressly assert any error of that kind.

21    The learned Federal Circuit Court Judge, after examining the reasons of the Tribunal and the materials before it, decided that the Tribunal had applied the correct criteria and had correctly determined that there was no evidence upon which it could be satisfied that the applicant fulfilled the criteria for the grant of a Student (Temporary) (Class TU) visa. There was, the Court held, no other arguable basis to claim that the Tribunal’s proceedings had been conducted unfairly and, as a consequence, the applicant had no arguable case for the relief claimed.

22    The learned Judge said (at [16], [18]):

[16]    It is readily apparent that the applicant’s personal circumstances are such as to elicit very considerable sympathy. He has lost both his parents and his wife in one dreadful misfortune. However, while the applicant may well have been in Australia for as long as he says and may well be of good character and be a reliable person, that is not the matter before the Court. The question is whether the Tribunal fell into jurisdictional error or otherwise acted in some fashion as to ground a relief that the applicant seeks.

…

[18]    Most unfortunately for him, the applicant’s materials do not suggest that he has any chance of success in this proceeding. To put the matter in terms of r 44.12, the applicant has failed to raise an arguable case for the relief claimed. …

adjournment application

23    This application was set down for hearing on 10 August 2016 by orders made on 5 April 2016. On 2 August 2016 the Victoria District Registry of the Court received a letter from a law firm purporting to act for the applicant. The author of the letter requested an adjournment of the hearing and stated that the firm had been “instructed” by the applicant to do so. The letter states that the applicant first attended at the law firm on 28 July 2016, and that the lawyer who would be responsible for the applicant’s case was away attending to an emergency in India. An adjournment of six months was sought on the basis that the lawyer in question was the only Punjabi speaking lawyer in the firm. The letter also referred to the personal tragedy affecting the applicant and his ensuing suffering and stress.

24    No affidavit in support of the facts asserted in the letter was filed by the applicant or any person purporting to act on his behalf.

25    I caused my Associate to respond to the letter informing its author that the Court would not act on the correspondence unless the firm in question filed a Notice of Acting pursuant to r 4.03 of the Rules confirming that it had been retained to act on the applicant’s behalf. No Notice of Acting was filed in accordance with the Rules.

26    No solicitor attended the hearing, whether for the purpose of assisting the applicant to make submissions in support of an application for an adjournment, nor for the purpose of making submissions on his behalf on the substantive application, should the application for an adjournment be refused.

27    When the hearing of the application commenced before me, the applicant made an oral application on the same grounds stated in the letter to which I have referred.

28    The applicant informed the Court that he suffered physical and mental health issues, including depression occasioned by the death of his family members. He stated that until recently he was not aware that he could obtain the services of a legal practitioner to assist him with the preparation and presentation of his case.

29    I refused the application for the adjournment for the following reasons.

30    First, although I am prepared to accept that the applicant suffers from depression and immense grief, he adduced no evidence that he was affected by any psychiatric illnesses or by his grief in such a way that would materially diminish his capacity to make submissions on his own behalf in the proceedings.

31    In this regard I note that the law firm apparently contacted by the applicant ought well have known that an application for an adjournment in this Court must in the usual course be supported by admissible evidence and not by assertions of fact made in written correspondence to the Registry or from the bar table. In addition, the law firm ought to have known that a solicitor that has been retained by a client to represent a party to proceedings in this Court must file a Notice of Acting in accordance with r 4.03 of the Rules. That requirement should not be regarded as a mere procedural formality to which no significant consequences attach. Rather, the requirement is one that ensures certainty as to the authorisation of one person to act as the agent of another in their dealings with the Court.

32    It may be reasonably inferred that the law firm had in fact been retained by the applicant or it would not otherwise have been authorised to act upon his “instructions” in a communication with a Registry of the Court stated to be made on his behalf. The applicant, having already experienced significant personal difficulties, was entitled to a better standard of legal services to that which it appears he has received from the law firm in question, but that particular circumstance is one to which I attach little weight in assessing his application for an adjournment.

33    Second, I do not accept that the applicant could not in any event have sought the services of a lawyer earlier than he did. His application was commenced in this Court on 5 February 2016 and yet it appears he did not seek the services of the law firm to which I have referred until 28 July 2016. I do not accept his assertion from the bar table that he was unaware until recently that he could obtain the services of a lawyer in relation to matters affecting his Visa generally or in connection with these proceedings.

34    Counsel for the Minister submitted that the application for the adjournment should be refused for the additional reason that the application was entirely lacking in merit and that the grant of an adjournment would therefore be futile. Although I have ultimately concluded that the application would indeed be bound to fail, that conclusion is not one that was taken into account in the exercise of my discretion to refuse the application for the adjournment. Acting on the Minister’s submission would have involved exercising some degree of prejudgment as to the merits of the application without first hearing the parties on that issue of importance.

35    Counsel for the Minister also submitted that there is, in this Court, no entitlement in a party to be legally represented before the Court and that the applicant’s application for an adjournment should be refused on that ground. In support of that submission Counsel relied on the decision of Gyles J in SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702. In that case, an applicant for leave to appeal deposed that she had been denied an adjournment in the then-named Federal Magistrates Court for the purpose of accessing free legal advice and that this circumstance had amounted to a denial of natural justice before that Court. Gyles J said (at [4]):

[4]    That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.

36    That passage is, with respect, correct insofar as it confirms the position that a litigant is not entitled to be provided with free legal advice and representation as a matter of right. So much is axiomatic.

37    However, I do not understand Gyles J to state, as an absolute proposition, that the refusal of an application for an adjournment of a hearing to enable a litigant to obtain free legal advice (or, as here, paid legal advice) could not in any circumstance amount to a denial of natural justice. The decision is to be understood in the context of the judgment appealed against, which concerned the specific practice of the then-named Federal Magistrates Court of making information about free legal services available to self-represented litigants sometime after the proceedings were commenced: see SZHTI v Minister for Immigration & Anor [2006] FMCA 41 at [7] – [8]. The decision does not support the Minister’s submission that the applicant’s application for an adjournment to obtain legal advice and representation may be refused on the ground that the applicant is not entitled as of right to be legally represented in this Court. The discretionary power to grant an adjournment is to be exercised judicially and consistently with the purpose for which it is conferred, having regard to all matters relevant to its exercise including the proper administration of justice, both in the extant proceedings and more generally.

38    The application for an adjournment in the present case was refused for the reasons I have given in [30] – [33] above.

The application for leave to appeal

Principles

39    The discretion conferred by s 24(1A) of the FCA Act to grant leave to appeal against an interlocutory judgment is unfettered: SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 (Flick J at [12]). A policy underlying the discretion is that the time and resources of the Court and the parties should not likely be taken up with appeals about decisions that do not finally determine the rights of the parties: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 (French J).

40    In the applicant’s case, the judgment of the Federal Circuit Court had the practical effect of bringing an end to the proceedings before that Court. That is a circumstance weighing heavily in favour of the grant of leave: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor Corporation) (at 400).

41    Two considerations guiding the exercise of the Court’s discretion are, first, whether, in all of the circumstances, the decision is attended with sufficient doubt to warrant its reconsideration on appeal and, second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation (at 398-399). These considerations, necessarily, bear upon each other.

The approach of the Federal Circuit Court

42    As I have mentioned, the applicant’s originating application filed in the Federal Circuit Court did not, on its face, specify any jurisdictional error affecting the Tribunal’s decision. Even if the single paragraph (extracted at [19] above) was to be interpreted generously as alleging jurisdictional error on the part of the Tribunal, the paragraph did not give any particulars of any error of that kind. The learned Federal Circuit Court Judge, at the invitation of and with the assistance of Counsel for the Minister, nonetheless independently reviewed the Tribunal’s decision to identify whether the applicant had an arguable case that had not been particularised in the originating application.

43    In this Court, Counsel for the Minister submitted that although it was open to the learned Federal Circuit Court Judge to independently consider for himself whether the applicant might have an arguable case that had not been adequately expressed or particularised, the learned Judge was under no obligation to do so. The submission is to be accepted. It is consistent with at least two authorities to which Counsel referred: Khanam v Minister for Immigration and Citizenship [2009] FCA 966 at [20] – [21] (Collier J), SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 (SZFNK) at [4] – [5] (Madgwick J). In the context of an appeal concerning a protection visa, Madgwick J noted that members of this Court and the Federal Circuit Court commonly “act from a degree of charity and concern that Australia should not unlawfully deal with an asylum seeker”: SZFNK at [5]. The authorities do not otherwise identify any clear jurisdictional basis for undertaking an independent examination of that kind, and it is not presently necessary for me to identify one.

44    Of course, once a Judge decides to undertake an independent examination of that kind, the examination must be conducted in accordance with the rules of procedural fairness and in a way that is otherwise consistent with the Court’s responsibilities in matters involving self-represented litigants: see generally AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at (AMF15) [37] – [42].

45    The submissions before me proceeded on the assumption that a ground of appeal might be argued in this Court where a Federal Circuit Court Judge errs in undertaking an independent examination of a Tribunal’s decision that the learned Judge is not obliged to undertake. I will proceed on that assumption.

The proposed grounds of appeal

46    The applicant filed a Draft Notice of Appeal. It contains the following proposed grounds (original spelling and grammar retained):

1.    The Federal Circuit Court made a decision without considering all facts and information and disregarding the evidence it had on file

2.    The Federal Circuit Court failed to accord me, the applicant, procedural fairness and natural justice.

3.    The Federal Circuit Court erred in not having considered the fact that I had been the dependent applicant and sought to meet the requirements. Requested enrolments in a course were submitted but before they could be updated , the decision was made by tribunal. The section 572.231 was incorrectly assessed

4.    The Faderal Circuit Court failed to consider my circumstances and proceeded to make decision applicant and did not apply section 357 A correctly . It was to apply section 359 to seek more information and allow reasonable time to complete that request seeing my circumstances where I lost both of my parents and wife in a very tragic car accident leaving me all alone.

47    In support of the first two proposed grounds, the applicant submitted that he had “wanted to” provide the Federal Circuit Court with a document evidencing his confirmation of enrolment in a certificate course for the improvement of his English language skills. He claims he was not “asked” by the Federal Circuit Court to provide any documents. The document to which he referred shows that he had received confirmation of enrolment in the English language certificate courses to which I referred earlier (at [14]).

48    The document in question was contained in a book of documents that was before the Federal Circuit Court at the hearing of the applicant’s application for judicial review in any event. In summarising the Tribunal’s reasons, the learned Federal Court Judge noted that the Tribunal had received a “letter of offer” in relation to the same courses. The judgment goes on to say:

[12]    … As the Tribunal correctly noted at paragraph 10, … the issue in the case was whether the applicant was currently enrolled or subject to an offer of enrolment in a registered course of education.

49    The applicant is correct in his assertion that he had provided the Tribunal with not only a letter of offer in relation to the courses in question, but a confirmation of his enrolment in them. However, nothing turned on that question in the proceedings in the Tribunal, nor in the Federal Circuit Court, because the time in which the courses were to have been completed had passed by the time of the Tribunal’s hearing and, as the applicant acknowledged before me, he had obtained no other offer of enrolment or confirmation of enrolment in any course since that time. The Federal Circuit Court did not err in identifying the issue before the Tribunal as being one concerned with the applicant’s current status at the time of the Tribunal’s decision. Accordingly, the first and second proposed grounds of appeal do not cast any doubt on the correctness of the decision of the learned Federal Circuit Court Judge so as to warrant its reconsideration on appeal.

50    The third proposed ground of appeal is disjointed in its expression and appears to raise a number of unrelated complaints. Insofar as this ground of appeal assumes that the Federal Circuit Court had the jurisdiction to review the merits of the Tribunal’s decision, the ground cannot possibly succeed.

51    Interpreting the ground of review generously in favour of the applicant, I proceed on the basis that the applicant intends to allege that the Federal Circuit Court erred in failing to determine that the Tribunal had committed a jurisdictional error in failing to afford the applicant more time in which to obtain a current confirmation of enrolment, or offer of enrolment, in an applicable course. The difficulty with that contention is that it formed no part of the grounds for judicial review before the Federal Circuit Court. Moreover, there was nothing in the material before the Federal Circuit Court to suggest that the applicant had made an application for an adjournment of the Tribunal’s hearing on the ground that he was in a position to obtain either confirmation of enrolment in a course or an offer of an enrolment in a course. He did secure an adjournment of the hearing from 15 August 2014 to 21 August 2014 on medical grounds, however he did not specify in his request for that adjournment that he required further time to satisfy the criteria for the grant of the Visa.

52    The concluding words of the third proposed ground of appeal contend that the criteria specified in cl 572.231 of Schedule 2 to the Regulations had been misconstrued or misapplied by the Tribunal or perhaps by the Federal Circuit Court. That is the clause that contains the enrolment criterion which I have already mentioned. In his submissions before this Court, the applicant did not specify how the Federal Circuit Court or the Tribunal had erred in construing cl 572.231. I have myself reviewed the reasons of the Tribunal to identify whether there is any jurisdictional error of the kind alleged and am satisfied that there is none. It follows that there is insufficient doubt in the correctness of the judgment of the Federal Circuit Court to warrant its consideration on any basis raised in the proposed third ground of appeal.

53    As to the fourth proposed ground of appeal, I understand the reference to s 357A in that ground to be a reference to s 357A of the Act, which is contained in Division 5 of Part 5. Division 5 deals with the procedures of the Tribunal. Section 357A relevantly provides that Division 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

54    Again interpreting the applicant’s proposed Notice of Appeal beneficially toward the applicant, I assume that this ground is intended to allege, as did the third ground, that the applicant had been denied procedural fairness before the Tribunal and that the Federal Circuit Court erred in failing to identify that the Tribunal had committed jurisdictional error of that kind. As I have mentioned, the applicant in this Court is faced with the difficulty that he did not raise that issue in any ground of review before the Federal Circuit Court. This Court cannot find that the decision of the Federal Circuit Court is attended with doubt in respect of any grounds that were not raised below.

55    As I have mentioned, the discretion to grant leave to appeal against an interlocutory judgment is unfettered. The principles stated in Décor Corporation guide the exercise of my discretion but are not to be taken as an inflexible and determinative test. I have, in the exercise of my discretion, examined the judgment of the Federal Circuit Court in order to determine whether the decision is attended with sufficient doubt to warrant its reconsideration for reasons other than those expressed in the proposed grounds of appeal. In my assessment, there is nothing in the materials before me that would justify the grant of leave on any such alternative ground.

Supplementary submissions

56    After the hearing of oral argument on 10 August 2016, I made orders granting leave to the Minister to file supplementary written submission on a discrete question of law. The applicant was given an opportunity to file written submissions in response. The submissions filed by the applicant were not strictly responsive. They repeated the effect of the applicant’s oral submissions and made a further plea to the Court to allow his application. Notwithstanding that the applicant’s submissions were not responsive, I have had regard to the matters referred to in them. They have not altered my assessment as to the legal merits of the application.

Conclusion

57    As the learned Federal Circuit Court Judge observed, the personal circumstances of the applicant engender considerable sympathy. It was not, however, within the power of the Tribunal to grant the applicant a student visa on compassionate grounds, nor did the Federal Circuit Court have the power to do so, nor is it within the power of this Court to do so.

58    Accordingly, I refuse the application for leave to appeal. Having heard the parties as to costs, I will order that the applicant pay the first respondent’s costs, fixed in the amount of $1,756 in accordance with Item 15.1(b) of Schedule 3 to the Rules.

Associate:

Dated:    12 August 2016