FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection (No 2) [2016] FCA 1121

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 22 June 2016 is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

introduction

1    On 30 May 2016 I gave judgment and made orders pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) dismissing the applicant, Mr Singh’s, application for an extension of time and leave to appeal: see Singh v Minister for Immigration and Border Protection [2016] FCA 620 (Singh (No 1)). The reasons for making that order are set out in my judgment, but, in summary, Mr Singh failed to appear before the Court on three separate occasions when his application was listed for hearing. On each occasion Mr Singh provided a medical certificate to the Court. Ultimately, on the third occasion, I found that the medical certificate provided did not comply with my earlier order made on 27 May 2016 that any medical certificate upon which Mr Singh intends to rely for a further adjournment would need to state whether he was fit to attend Court, if not, the nature and detail of the medical condition preventing him from attending Court, why that condition prevented him from attending and the date on which he would be fit to attend Court.

the application before the Court

2    On 22 June 2016 Mr Singh filed an interlocutory application seeking, in effect, to have his application for an extension of time and leave to appeal reinstated. In the affidavit in support of that application, affirmed on 20 June 2016, Mr Singh says:

2.    I provided the attached medical evidence which made me unable to attend the hearing, and his Honour dismissed my case on 30 May 2016.

3.    I still have some mental and physical problems and appreciate that the Honourable Court allow me another date to argue my case. Since the refusal of my partner visa on 25 July 2013, I became terribly disturbed because the relationship between us was, and continues to be genuine and the tribunal failed to accept our relationship.

3    Mr Singh’s interlocutory application is, as the first respondent submitted, an application pursuant to r 35.33 and r 39.05 of the Rules. Rule 35.33(2) provides that:

If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)     setting aside or varying the order; and

(b)     for the further conduct of the proceeding.

4    Rule 39.05 provides that:

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

…

5    In Sandhu v Minister for Immigration and Border Protection (No 2) [2015] FCA 1429 (Sandhu) Kenny J considered an application for reinstatement of an application for leave to appeal which, as in the present case, had been earlier dismissed by her Honour by reason of the applicant’s failure to appear. In Sandhu the relevant rules of court considered by her Honour were r 35.33(2) and r 39.05. Her Honour said at [13]:

In exercising its discretion to set aside an order in circumstances such as the present, the Court will ordinarily consider whether the absent party has provided an acceptable explanation for his or her absence and the strength of his or her case: SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCA 1106 per Farrell J at [3]; Singh v Minister for Immigration and Border Protection [2015] FCA 223 per Perry J at [7], citing Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 1573; 115 FCR 197 at 199 [11] per Katz J (Branson and Mansfield JJ agreeing).

submissions in support of the application

6    Mr Singh made submissions today in support of his application for reinstatement of his application for an extension of time and leave to appeal. In relation to the issue of his absence on 30 May 2016, and the earlier dates that the matter was before the Court, namely 25 and 27 May 2016, Mr Singh said that he had liver problems and liver pain and for that reason he was too sick to attend Court and so he provided medical certificates. I infer that the medical certificates to which he refers are those annexed to his affidavit in support of the application now before me.

7    In relation to the strength of his case Mr Singh made a number of submissions. First, he submitted that he is still married and in a genuine relationship with his partner, that the relationship has been ongoing for more than four years and that he thinks there is merit in his case.

8    Secondly, he submitted that his initial visa application was lodged in December 2011, some five years ago, and that when he lodged it he submitted some documents, but that he did not know what he should and should not submit because he was not a lawyer.

9    Thirdly, Mr Singh made submissions that were in the nature of an allegation of denial of procedural fairness on the part of the Tribunal. Those submissions were to the effect that he was overtired when he appeared before the Tribunal, he told the Tribunal about that and that was why he could not answer the questions that were put to him. He also submitted that he told the primary judge that he could not answer the Tribunal’s questions because of his fatigue. Mr Singh concluded that he thought the Tribunal hearing would be short and that is why he attended with no sleep but that it was, in fact, one and a half to two hours in length.

10    Finally, in making submissions in reply, Mr Singh submitted that the primary judge rejected the tender of some additional documents which he said evidenced his genuine relationship on the basis that those documents were not before the Tribunal.

consideration

11    I turn then to consider Mr Singh’s evidence and submissions in the context of what must be established before me by Mr Singh in order for his application for reinstatement to succeed.

12    The evidence given by Mr Singh in his affidavit in support of his application for reinstatement about the reason for his absence does not rise above the evidence that was provided at the time his application for an extension of time and leave to appeal was dismissed. The first medical certificate annexed to Mr Singh’s affidavit does not explain his absence on 30 May 2016 when the application was dismissed. The second medical certificate annexed to Mr Singh’s affidavit is, in fact, the medical certificate that was before me when I made the order dismissing his application. It does not provide the Court with the detail of the matters that were required by the order made on 27 May 2016. In my opinion, the evidence that has been provided in the affidavit does not provide the Court with an acceptable explanation for Mr Singh’s absence.

13    Nor does the further submission, or evidence given from the bar table by Mr Singh about his liver problems, assist him. While Mr Singh may suffer from those medical issues, no explanation has been given as to the exact nature of the condition and how it was that it prevented his appearance in Court when his application was dismissed.

14    That then leaves the strength of Mr Singh’s case. In Singh (No 1) I observed, at [21], that I had the benefit of reading the material that was before the Court in relation to the applicant’s application for an extension of time and leave to appeal, and that, based on that material, I was of the view that there was nothing to support the making of the orders sought by the applicant, and that he was unlikely to establish that his proposed appeal had any prospects of success.

15    The first respondent has submitted that there have been no changes in the substantive matter that would lead me to take a different view today. I accept that submission, even taking into account Mr Singh’s submissions of today. I shall explain why that is so.

16    Mr Singh requires leave to appeal from the judgment and orders of the primary judge. This is because they were interlocutory in nature, his application before the Federal Circuit Court of Australia (Federal Circuit Court) having been dismissed at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). His application for leave to appeal had to be filed within 14 days of the orders being made by the primary judge. However, it was not so filed but was filed six days out of time. Thus, Mr Singh also requires an extension of time to bring his application for leave to appeal.

17    In his application for an extension of time and leave to appeal Mr Singh raises one ground – that the judgment of the primary judge was affected by an error of law, as he dismissed the application “contrary to the evidence on file”.

18    In the affidavit in support of that application, Mr Singh said that he believed he had an arguable case and explained the delay in the filing of his application as follows:

I now understand that my last day for review was 16 November 2015 and I previously completed form 121 and now having the proper application completed I rely on the grounds listed and await a date for the hearing.

19    Mr Singh annexed a draft notice of appeal to his affidavit which included two grounds of appeal. The first ground was, in effect, that Mr Singh did not agree with the judgment of the primary judge, and the second ground was to the effect that the evidence should not have led to a refusal of the spouse visa, because of the evidence submitted in his affidavit and submissions to the Federal Circuit Court.

20    The likelihood of leave to appeal being granted and the reasons for delay are relevant considerations for the purpose of an application for extension of time. In relation to an application for leave to appeal, the applicant must show that there is sufficient doubt about the correctness of the judgment below to warrant review and, further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

21    In my opinion, Mr Singh had not properly explained the reason for his delay in filing his application for leave to appeal, but, putting that matter to one side, there is a real issue about the ability of Mr Singh to show that there is sufficient doubt about the correctness of the judgment of the primary judge to warrant a review.

22    The applicant raised nine grounds of review in his application that was before the primary judge. The primary judge considered each of those grounds in turn and made findings about them: see Singh v Minister for Immigration & Anor [2015] FCCA 2958.

23    In summary, the primary judge held that it was open to the Tribunal to conclude that the spousal relationship between the applicant and his wife did not meet the test for the partner visa because of the inconsistencies between their evidence, the scarcity of evidence about the social aspects of their relationship and the lack of a common understanding of their future plans. The primary judge then rejected each of the grounds raised by the applicant.

24    The task of this Court on appeal is to determine whether the judgment of the primary judge is affected by appealable error. The grounds included in the draft notice of appeal are an attempt to engage this Court in impermissible merits review of the Tribunal’s findings and appear to be an attempt to take issue with the primary judge’s refusal to undertake a review of the merits of the Tribunal’s findings. Once again, in the submissions made today by Mr Singh in relation to his ongoing relationship, he attempted to cavil with the merits of the Tribunal’s findings. There is no power in this Court to undertake a merits review.

25    As I have already said, the task of this Court on appeal is to determine whether the judgment of the primary judge is affected by appealable error. To the extent Mr Singh’s oral submissions alleged a denial of procedural fairness on the part of the Tribunal, as submitted by the first respondent, such an allegation was made before the primary judge who held at [26] of his judgment that, without proper particulars, the broad allegation of a denial of procedural fairness did not raise an arguable case. But to the extent further particulars may have been provided today, I note that the Tribunal decision records that Mr Singh appeared before it with the assistance of an interpreter and that he was represented by his registered migration agent. Further, on the face of the Tribunal’s decision record, there is nothing to indicate that the applicant was not afforded procedural fairness.

26    To the extent Mr Singh submitted that he told the primary judge about these issues, that is not evident on the grounds of the application and, as the primary judge held, the allegation of a denial of procedural fairness before him was in broad terms.

27    Mr Singh also referred in his oral submissions to the rejection by the primary judge of further documents that he attempted to tender which went to the issue of the genuineness of his relationship. The primary judge referred to the tender of that material at [18] of his judgment. As his Honour quite properly noted there, he declined to receive the material on the basis that it could not assist him in considering the validity of the Tribunal decision.

28    In light of the matters set out above I am of the opinion that Mr Singh has not satisfied the Court that his case is sufficiently strong to warrant the reinstatement of his application for an extension of time and leave to appeal.

29    In those circumstances, I will make orders dismissing the interlocutory application filed on 22 June 2016 and that the applicant is to pay the first respondent’s costs as agreed or taxed.

Associate:

Dated:    21 September 2016