FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 150

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal is dismissed.

2.    The applicant pay the costs of the first respondent to be assessed if not agreed.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

THE APPLICATION

1    This is an application for an extension of time and leave to appeal in accordance with the r 35.12 of the Federal Court Rules 2011 (Cth) from the order of a judge of the Federal Circuit Court of Australia. His Honour dismissed Mr Singh’s application in a case seeking to set aside a notice of discontinuance and to re-instate the application for judicial review which had earlier been filed by Mr Singh (Singh v Minister for Immigration and Anor [2016] FCCA 2683). Today’s application is supported by Mr Singh’s affidavit in which he acknowledges that the application should have been filed within 14 days, but says he was unaware of the fact that the Federal Circuit Court had made the decision. He became aware that it was available online. He took some advice. There were delays in obtaining advice or receiving the advice. He has had difficulty with funding. There is some content of his affidavit which Mr Singh accepts I should disregard, notably: ‘[o]nly my husband is working and I am sitting at home because of my pregnancy’.

BACKGROUND

2    On 9 January 2013, Mr Singh was granted a student visa by the Department of Immigration and Border Protection. On 28 January 2014, he received a notice of intention to consider the cancellation pursuant to s 116(1)(b) of the Migration Act 1958 (Cth). The notice was sent on the basis that he may have breached a condition of the Migration Regulations 1994 (Cth), that is, condition 8202(2)(a) which required him to be enrolled in a registered course. This is an entirely standard provision of these particular visas. The provision was queried within the context of the Provider Registration and International Student Management System records (PRISMS) which indicated that Mr Singh had not been enrolled in a registered course of study since 6 July 2013.

3    At the relevant time, condition 8202 provided:

8202    (1)    The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2)    A holder meets the requirements of this subclause if:

(a)    the holder is enrolled in a registered course; or

(b)    in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student-the holder is enrolled in a full time course of study or training.

(3)    A holder meets the requirements of this subclause if neither of the following applies:

(a)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

(4)    In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa—the holder is enrolled in a full time course of study or training.

(emphasis added)

4    The notice to Mr Singh indicated that he had the opportunity to comment on that possible ground of cancellation. He did provide a response on 6 February 2014.

5    On 19 February 2014, a delegate of the Minister for Immigration and Border Protection cancelled the visa on the basis that Mr Singh had breached condition 8202, being satisfied that he had not complied with para (2)(a) as he was no longer enrolled in a registered course, therefore, finding there were grounds for cancellation under s 116(1)(b) of the Act.

IN THE TRIBUNAL

6    Mr Singh then applied to the Migration Review Tribunal, as it was then, for review of the decision. The Tribunal wrote to Mr Singh’s address and invited him to attend a scheduled hearing and to present evidence and arguments noting that if he did not attend, the Tribunal may proceed without him.

7    There was no attendance at that hearing and on the same day, 14 October, the Tribunal affirmed the decision to cancel the visa, noting the non-appearance and that it had unsuccessfully attempted to send an SMS hearing reminder to him. The Tribunal found that it would not exercise its discretion to reschedule the hearing as there was no contact with it to explain any inability to attend. The Tribunal also noted the provisions of the Regulations, referred to the PRISMS records and noted the absence of receipt of any information in support of the application for review. The Tribunal found that Mr Singh had not complied with condition 8202(2) and determined to cancel the visa.

8    The Tribunal had regard to policy guidelines contained in the Procedures Advice Manual and referred to Mr Singh’s statement provided initially to the Department in relation to the circumstances surrounding the cancellation of employment, including the mental health problems that Mr Singh was then experiencing, the traumatic circumstances he described, family problems in India and stating, as he has stated again this morning, that he was not aware that the enrolment had been cancelled. The Tribunal noted that no evidence had been provided in support of any of these claims as Mr Singh conceded again this morning.

IN THE FEDERAL CIRCUIT COURT

9    Mr Singh sought judicial review in the Federal Circuit Court.

10    On 22 July 2016, in the Federal Circuit Court, Mr Singh attempted to file a notice of discontinuance of his application in that Court for judicial review. The notice was filed within two weeks of the scheduled final hearing on 28 July 2016 and, therefore, he required the leave of the Federal Circuit Court for the notice to be filed. With the consent of the Minister, the Federal Circuit Court granted leave to file the notice of discontinuance on 25 July 2016.

11    On 19 August 2016, Mr Singh filed an application in a case seeking to set aside the notice of discontinuance and to re-instate the proceeding, stating he did not understand English very well, that the notice of discontinuance was prepared by and signed on his behalf by his lawyer and that he did not agree to the filing of that notice.

12    On 30 August 2016, the Federal Circuit Court conducted a hearing in relation to the re-instatement application, but dismissed the application. His Honour found that there were two problems with the application. One was that the substantive application was properly discontinued and that leave would be required to set aside that notice. His Honour referred to the decision of SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 discussing that decision (at [10]). His Honour found that there was nothing apparent in the circumstances described which would warrant or necessitate the notice of discontinuance being set aside which in itself was a rare occurrence.

13    His Honour also found that it was apparent that Mr Singh did not have an arguable case in relation to the substantive application. His Honour observed there was no evidence before the Tribunal that he was a student actively enrolled in a course subject to the enrolment. In those circumstances in the absence of an arguable case, the application was refused in the Federal Circuit Court.

IN THIS COURT

14    On 10 October 2016, Mr Singh filed an application for an extension of time for leave to appeal in this Court. In support of the application, he filed an affidavit of 10 October 2016, to which I have referred, and a draft notice of appeal containing nine grounds which are, in essence, submissions which recite the history of the matter. They are:

1.    The applicant is a citizen of India. The delegate cancelled the visa on 19th Feb 2014 the basis that the I have breached Condition 8202 of my visa as I wasn't enrolled in a registered course from 5th July 2013, but there was strong reason why I did not enrol, all medicals [sic] evidence submitted and I had given explanation to officer but still delegate has cancelled my visa on 24th February 2014.

2.    On 28th feb [sic] 2014 I have applied for Review at AAT, but the decision made by AAT on October 2014 was showing that invited to attend a hearing on 14th October 2014 and in the same letter was also invited to provide evidence of current enrolment, evidence of past studies and academic achievements in Australia and an explanation for any gaps in enrolment. Prior to the schedule time of the hearing, I was requested, through my migration agent, but my migration agent hasn't sent me an email and also decision record is showing that tribunal has sent me the text which has not been happened with my knowledge.

3.    It was in those circumstances that the Tribunal should have found me that I was not informed to attend the hearing but tribunal has taken the decision which is odd and got me little bit pain in heart.

4.    That is the reason I have gone to Federal Circuit Court to review of the-Tribunal decision as Tribunal has judicial Error [sic] in the decision made without me at hearing.

5.    Anyhow once I have received the decision from the Tribunal I have applied for Judicial Review as there was Jurisdictional Error in the Tribunal and Delegate Decision. I have attended the hearing date but Judge has not given me full decision So [sic] I was in Dilemma whether I Can [sic] apply further or not.

6.    In [sic] the phone I was asking the Registrar to send me the Decision if decision has been taken, Registrar has advised me to apply further without decision. Probably these communication [sic] might not have been understood properly to me to go further that is the reason I [sic] bringing the review application after the tie [sic] frame in Last [sic] minute.

7.    I have not had any control of my own situations [sic] in Australia which became very bad in Australia to provide reasons at tribunal, but Administrative appeal Tribunal has made me ineligible to get the visa back and affirm to cancel the visa. According to letter received by mail I have lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done [sic] by me, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

8.    The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of I am ready to provide valid reasons why I hadn't to have to study in Australia while I am sick in Australia, and I am eligible to study in Australia if I am given chance by Federal court [sic] or DIBP (Department of Immigration and Border Protection)

9.    Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court [sic] has court [sic] hasn't even looked at applicant claims as there was big barrier "Judicial review has been made which have not been proved by me to make it Valid application", but I have exceptional circumstance beyond my control, reasons I have submitted and also documents can be submitted to the Federal Court of Australia.

15    Mr Singh requires leave to appeal from an interlocutory judgment (in this case, to dismiss an application for re-instatement). Such an application is to be lodged within 14 days of the interlocutory judgment as discussed in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 (at [3]).

16    In this instance, the application had to be filed by 13 October 2016 pursuant to r 35.13 of the Rules. It follows that Mr Singh is 27 days out of time.

17    On his appearance before me today, Mr Singh has again indicated from the bar table that he does not know how the conditions could have been cancelled. He was enrolled in a course, but was unable to continue his study due to his own health issues and also health issues with his sick father in India and lack of funds coming both from his father in India and his own lack of funds to pay fees for the course, so that he could attend the college. He has asked today for a last chance to re-instate that opportunity by seeking this extension of time for leave to appeal.

18    The relevant Rules of this Court provide as follows:

35.12    Form of application

(1)    A person who wants to apply for leave to appeal must file an application, in accordance with Form 117.

(2)    The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is brought;

(b)    the reasons, if published, for the judgment or order;

(c)    an affidavit stating the facts that support the application;

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2); and

(e)    if the applicant wants to have the application considered without oral argument—a statement to that effect.

Note 1:    A lawyer may file a notice of appeal starting migration litigation only if the notice includes or is accompanied by a certificate under section 486I of the Migration Act 1958, signed by the lawyer.

Note 2:    File is defined in the Dictionary as meaning file and serve.

Note 3:    For migration litigation, lawyer has the meaning given by section 5 of the Migration Act 1958.

35.13    Time for filing application

The application must be filed:

(a)    within 14 days after the date on which the judgment was pronounced or the order was made; or

(b)    on or before a date fixed for that purpose by the Court from which leave to appeal is sought.

Note:    Judgment and order are defined in the Dictionary.    

35.14    Extension of time to seek leave to appeal

(1)    A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

(2)    The application may be made during or after the period mentioned in rule 35.13.

(3)    The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)    the reasons for the judgment or order, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the application for leave to appeal was not filed within time; and

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2);

(e)    a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

Note 1:    The Court may grant an extension of time, and hear and determine the application for leave to appeal, at the same time.

Note 2:    An application under rule 35.12 or 35.14 will be heard and determined by a single Judge unless the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the application.

Note 3:    File is defined in the Dictionary as meaning file and serve.

19    The power in the Court to extend time under r 35.14 is discretionary. The considerations relevant to the Court’s discretion are whether there is an acceptable explanation for the delay; whether there is undue prejudice to another party; and whether there is merit in the substantial application: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Those considerations are considered together. In the present circumstances, it is clear that there is no specific prejudice to the Minister, other than the general public interest in the finality of administrative decision-making.

20    The length of delay of 27 days is not minor but not particularly extensive and in all the circumstances of this case perhaps understandable, given difficulties with access to advice and funding.

21    So the real question is whether, bearing in mind, both those factors and giving them some weight, there is merit in the proposed grounds themselves. That is one of the essential difficulties. The grounds of the application for leave to appeal set out above, also appear to set out the draft grounds of appeal if leave is granted.

CONSIDERATION

22    The proposed grounds of appeal do not establish any error in the finding of the primary judge. Mr Singh has not established any error in the finding of the primary judge that his inherent power to set aside a notice of discontinuance should not be exercised. There is nothing to indicate that the notice was procured by fraud or duress or without knowledge or consent. It is clear from the primary judge’s reasons that his Honour was alive to the power to set aside a notice obtained in certain circumstances and I refer to what his Honour says (at [10]-[11]) of his decision:

10.    The difficulties that confront the applicant are twofold. Firstly, the application has been properly discontinued with leave of the Court. In these circumstances, the bases for obtaining the Court’s leave to set aside a notice of discontinuance or reinstate proceedings are limited. This issue was discussed by Ryan J in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 where his Honour said:

17.    There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 where his Lordship said, at 747;

‘It was also not in dispute that if the action had been discontinued by an order made under Ord 21 r 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under Ord 15 r 6(2). Order 21, though with amendments, can be traced through Order 20 of the Rules of 1962 to Order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under Ord 21, r 3 and the application for the rectification of the order of 14 August 1985 has been dismissed.’ (emphasis added)

18.    Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside; see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557 where Lord Scarman, with whom the rest of their Lordships agreed, said, at 571:

‘The first issue is whether the notice of discontinuance can be struck out, and, if it can, whether it should be. It is accepted that under the Rules of the Supreme Court as they were in 1979 (for they have now been amended to take care of the situation which arises when interim payments have been made: see R.S.C. (Amendment No. 2) 1980, r. 4), the plaintiff, notwithstanding the two interim payments and the admission of liability, could discontinue without leave, if he did so not later than 14 days after service of defence. Lord Denning M.R. was, however, prepared to hold that our courts can, by the device of statutory interpretation, repair the omission in the unamended R.S.C., Ord. 21, r. 2 to provide for the case in which interim payments had been ordered and made before the expiry of the time limit. "I fear," he said, "that the draftsmen of interim payments forgot all about notices of discontinuance. Interim payments are quite inconsistent with a right to discontinue without leave"; [1980] 1 W.L.R. 833, 854H. Interim payments were made possible by the Administration of Justice Act 1969, section 20, and introduced into the law in 1970 by R.S.C., Ord. 29, rr. 12-17. Like Lord Denning M.R., I have no doubt that the failure to amend the rule relating to notice of discontinuance was a casus omissus. But I do not agree that it is an omission which the courts can make good by reading into the rule a provision that leave is needed when the rule expressly said it was not. Unless, therefore, it is possible to treat a notice of discontinuance without leave which complies with the Rules of the Supreme Court as an abuse of process (which is what Parker J. did), the notice cannot be struck out.

In the Court of Appeal, Lord Denning M.R. was prepared so to hold (p. 855). Brandon L.J. expressed no opinion. Shaw L.J., however, held that it was not possible. It seemed to him "an inversion of logic to speak of an act which purports to terminate a process as being an abuse of that process." (p. 864D). I am not sensitive to the logical difficulty. Even if it be illogical (and I do not think it is) to treat the termination of legal process as an act which can be an abuse of that process, principle requires that the illogicality be overridden, if justice requires. The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.’

19.    In Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050, to which I was referred by Ms Burnett who appeared for the Minister, Mansfield J noted an acknowledgement by the respondent Minister that a notice of discontinuance filed by the former solicitor for the applicant without the knowledge or consent of the applicant can be set aside in the discretionary exercise of the Court’s inherent power to prevent injustice. In those circumstances his Honour observed, at [2] and [5];

‘2 Discontinuance of proceedings is a process by which an applicant puts an end to the claim in the proceedings. It is, however, permitted only if it does not amount to an abuse of process: Castanho v Brown and Root (UK) Ltd [1981] AC 557. Lord Scarman at 571 pointed out the curiosity of treating an act which purports to terminate a proceeding as being an abuse of that proceeding, but nevertheless regarded it as appropriate to override illogicality ‘if justice requires’.

... ...

5 In my judgment, the respondent sensibly and appropriately acknowledged that the Court has power to set aside the discontinuance in its discretion, as part of its inherent power to prevent injustice, if the circumstances alleged are made out. Thus, it is not necessary to explore in any detail the content of the concept of abuse of process in the present context. It was accepted by the respondent that the allegations, if made out, fell within its reach.’

20.    In the present case, by contrast, the Minister does not acknowledge the existence of any circumstances which would enable the filing of a notice of discontinuance by the appellant himself to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice. Castanho v Brown & Root and Applicant A26 were exceptional cases and, it seems to me, it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process. Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.

21.    Because of what I have concluded was an absence of power in the Federal Magistrates Court to set aside the appellant’s discontinuance of his application to that Court, it follows that the appellant has failed to satisfy the first limb of the test erected in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In that case, a Full Court of this Court applied the principles enunciated by a Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431 and observed, at 398:

‘The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second:

“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.”’

11.    In the case presently before me there does not appear to be anything that would show a basis for the Court setting aside a notice of discontinuance that would fall within the types of circumstances discussed in the above quote.

23    Even if there were error in that regard, no arguable case has been shown to the effect that Mr Singh demonstrated that he was enrolled in a registered course, and there is nothing to point to error in the conclusion of the primary judge that ‘it was difficult to see’ how the Tribunal could have reached any other conclusion in the circumstances. In my view, the decision of the primary judge not to set aside the notice is not attended by any sufficient doubt nor would there be substantial injustice in the circumstances I have described if leave to appeal were refused. The appeal in the circumstances described would be bound to fail.

24    In those circumstances, the application for an extension of time and leave to appeal must be dismissed with costs and I so order.

Associate:

Dated:    24 February 2017