FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection (No 2) [2018] FCA 1827

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s interlocutory application filed 12 June 2018 to reinstate the proceedings be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before me is an interlocutory application to reinstate an appeal from the decision of the Federal Circuit Court in Singh v Minister for Immigration & Anor [2017] FCCA 2948 (primary judgment).

2    By way of background, the essence of Mr Singh’s judicial review proceedings at the Federal Circuit Court (the basis of the primary judgment) concerned his claims that he was misguided by S & S Migration and that he was a “victim of fraudulent activity by … S & S Migration …”. I understand from [4] that S & S Migration was Mr Singh’s migration agent. The critical question before the primary Judge was whether Mr Singh had made out his assertion of fraud. From his Honour’s reasons outlined from [17] to [31], the primary Judge was “not persuaded that the heavy burden of establishing fraud was discharged” by Mr Singh and dismissed the application.

3    I note that by a notice of listing emailed to Mr Singh on 9 October 2018, Mr Singh was informed of the time and date of today’s hearing. It was sent to the same email address that he provided in the footer of his interlocutory application.

4    This morning at the hearing, there was no appearance by Mr Singh. I temporarily adjourned the hearing and my Associate endeavoured to contact Mr Singh on the mobile telephone number recorded in the footer of his interlocutory application. There was no answer.

5    I am satisfied that all reasonable steps have been taken to inform Mr Singh of the time and date of today’s hearing.

6    Mr Knowles for the Minister submitted that, in default of appearance by Mr Singh, the Court should dismiss the interlocutory application for want of appearance. In my view, however, it is possible to deal with the interlocutory application for reinstatement on its merits and I will now proceed to do so.

Prior listing before the Court

7    Mr Singh’s notice of appeal, the substantive motion in the proceeding in this Court, was first listed before North J in June of this year. Mr Singh did not appear at the hearing. In his Honour’s judgment relating to the hearing (Singh v Minister for Immigration and Border Protection [2018] FCA 861), North J made the following observations:

1    This appeal was listed for hearing at 10.15 am on 1 June 2018. At that time, the appellant did not appear. Before the commencement of the hearing, the instructing solicitor of the first respondent called the appellant three times on the mobile telephone number recorded on the notice of appeal and received no answer.

2    Prior to 1 June 2018, the appellant was notified of the time, date and place of the hearing by the solicitor for the first respondent by a letter dated 9 April 2018, sent to the address recorded as the address for service on the notice of appeal. That same information was sent by email to the email address recorded on the notice of appeal.

3    On 25 May 2018, further correspondence advising of the hearing date, time and place was sent to the appellant by email to the same email address by the solicitor for the first respondent.

4    At 10.30 am on 1 June 2018, the appeal commenced, and the appellant was called outside the court. He did not appear.

5    In the circumstances set out above, I am satisfied that the appellant had notice of the hearing date, time and place.

8    Consequently, North J dismissed the appeal for want of appearance pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and r 36.75(1) of the Federal Court Rules 2011 (Cth) (Federal Court Rules).

Interlocutory application to reinstate the appeal

9    On 12 June 2018, some 11 days after the matter was dismissed, Mr Singh filed an interlocutory application and supporting affidavit seeking the following order:

1.    REOPEN THE MATTER

10    Annexed to the interlocutory application was a sheet of paper with the following handwritten statement (accompanying statement):

RESPECTED HIS HONOUR, “My name is Sarbjeet Singh. My file number is VID 1383/2017. ON 1 JUNE 2018 I had hearing date in federal court of australia. But I didn’t attend that hearing because I was sick on that day. Just only this reason why i didn’t attend hearing on that day. I want to be reopen this matter again. I will attend the Court and proof myself in front of you “HIS HONOUR”. I will attach my medical certificate with this file.

(Errors in original.)

11    In Mr Singh’s affidavit he deposed that he did not attend the hearing because he was sick on the day a “fever and flu”.

Can the Court reinstate the proceeding?

12    I note that Mr Singh’s application was pursuant to r 36.75(2) of the Federal Court Rules:

36.75 Absence of party

…

(2)    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 hearing.

13    The Court’s power to reinstate this matter is found in s 25(2B)(bc) of the Federal Court Act which provides:

(2B)    A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(bb)    make an order that an appeal to the Court be dismissed for:

   (i)    failure to comply with a direction of the Court; or

(ii)    failure of the appellant to attend a hearing relating to the appeal; or

(bc)    vary or set aside an order under paragraph (ab), (ba) or (bb); or

14    An order pursuant to s 25(2B)(bc) is clearly discretionary. Criteria guiding the Court in the exercise of that discretion were explained by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530. In that matter, Ryan J considered an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court (now the Federal Circuit Court) which dismissed an application to reinstate proceedings in that Court.

15    In MZYEZ, Ryan J noted at [9] that

…the principles controlling a discretion whether or not to reinstate a proceeding are not identical to the principles going to whether leave to appeal from an interlocutory judgment ought to be granted.

16    Relevantly, his Honour outlined the factors that must be considered when determining applications for reinstatement, explaining at [7]:

Principles governing an application for reinstatement

In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

(a)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(b)    the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

(c)    whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement

(Emphasis omitted.)

(See also, generally: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598, ACK16 v Minister for Immigration and Border Protection [2018] FCA 1554, BAL17 v Minister for Immigration and Border Protection [2018] FCA 792, SZTUR v Minister for Immigration and Border Protection [2017] FCA 1570, BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 and BEN15 v Minister for Immigration and Border Protection [2016] FCA 211; however, cf: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 at [77] per French J (as his Honour then was) and Cameron v Cole (1944) 68 CLR 571 particularly at 589 per Rich J.)

17    The same principles of law from MZYEZ have been applied in applications for reinstatement of proceedings in the Federal Court: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 at [29], BLJ16 v Minister for Immigration and Border Protection [2018] FCA 525 at [2], BRL15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 1478 at [3], AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305 at [8] and particularly at [9] and MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18].

18    In the circumstances of Mr Singh’s case, it is also appropriate to be guided by the principles set out in MZYEZ.

Is there a reasonable excuse for Mr Singh’s absence from the hearing of the appeal?

19    In his accompanying statement and affidavit, Mr Singh stated that he did not attend Court because he was feeling ill with influenza.

20    In BLJ16, the applicant provided an affidavit in support of his interlocutory application to reinstate his proceeding in which he deposed that he suffered from “a severe cold and flu caused by viruses” and that he was using “over-the-counter cold medication” which prevented him from attending the hearing. Though Moshinsky J determined it was not necessary to make a finding in relation to the medical evidence in that case, his Honour said in obiter at [4] that he doubted whether those symptoms would have been satisfactory.

21    By analogy, cases seeking to be reopened due to non-attendance based on medical grounds are not unlike those in which adjournments are sought due to medical conditions.

22    In Singh v Minister for Immigration and Border Protection [2018] FCA 778, the appellant sought an adjournment on medical grounds. He provided to the Court correspondence relating to a medical condition which attached, inter alia, a medical certificate. The certificate indicated that he was “unfit for work or study for three days” and that he was “receiving medical treatment” for a period of three days. Despite the certificate, Middleton J found at [12] that there was “no appropriate material which the Court could or should act upon as an excuse for non-attendance”.

23    Likewise, in SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020, Lee J dealt with a request to adjourn an appeal accompanied by two medical certificates. Having observed that the substance of the medical certificates was vague, his Honour refused the adjournment because:

14    No explanation was provided as to why the medical difficulties said to have been suffered by the first appellant were not communicated at an earlier time, given that the condition was apparently extant [for approximately 18 days]. Leaving that issue to one side, this case seems to be an example falling into the same category as considered by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 and Pagone J in Singh v Minister for Immigration and Border Protection [2016] FCA 108, that is, where a medical certificate is, on its face, quite unsatisfactory.

15    The medical certificates do not purport to address the critical question of whether, and if so why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX and Singh, I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone, nor is there any explanation as to why the other appellants have also not appeared. I agree, with respect, with what Pagone J said in Singh (at [2]), namely that:

… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing.

16    The medical certificates provided by the first appellant are noticeably deficient in this regard. I do not regard the contents of the Adjournment Request as augmenting the content of the medical certificates in any meaningful way. Although the first appellant says his treating doctor has advised him to obtain “complete bedrest”, the medical certificates do not make that plain, nor is it evident why this would prevent participation by telephone; again, even if this is the case, there is no explanation as to why the condition could not have been brought to the attention of the Court at an earlier stage such that appropriate arrangements could then have been made.

(Emphasis added.)

24    In the interlocutory proceeding before me, Mr Singh indicated in his accompanying statement that he would attach a medical certificate. A medical certificate was provided by Mr Singh annexed to his affidavit filed 12 June 2018 stating the following:

Mr Sarbjeet Singh has a medical condition and will be unfit for work from 01/06/2018 to 02/06/2018 inclusive.

This certificate, without further information, is inadequate to explain Mr Singh’s inability to attend the hearing on 1 June 2018.

25    In the absence of further evidence beyond the contents of his affidavit, there is no material in this case to suggest that Mr Singh’s ability to attend the hearing, either in person or by telephone, was impeded. I am not persuaded that the explanation offered in Mr Singh’s accompanying statement and affidavit is satisfactory to excuse his non-attendance.

Will the Minister suffer prejudice if the appeal is reinstated?

26    It is not apparent to me that the Minister would suffer any prejudice if the Court reinstated Mr Singh’s appeal.

Does Mr Singh’s appeal have a reasonably arguable prospect of success?

27    In his notice of appeal filed 20 December 2017 that initiated the proceedings before this Court, Mr Singh provided the following ground of appeal:

1.    I have one prove [sic] of fraud with me by S & S.

28    Towards the end of the notice of appeal, Mr Singh included a handwritten sheet of paper that read:

GROUNDS OF APPEAL

My self is Sarbjeet Singh. I had court room on 20 oct 2017. I was sick on that day. I have medical certificate with me which one i give to court room. That was reason I wasn’t prove myself front of judge Wilson. but i have one prove in my hand thatwhy i want my case will review again in court. That prove is my Name letters. If i put that case front of S & S agent then my name spell was correct but they did that thing that’s why they put my Name spell incorrect there. My Name Spell is SARBJEET SINGH. But there is incorrect.

(Errors in original.)

29    Mr Singh sought the following orders:

 1.    …

 2.    Review the case again.

3.    To review the decision given by the Judge.

30    In determining whether Mr Singh’s appeal to the Federal Court has a reasonably arguable prospect of success, I note that his claims, in summary, are:

(1)    the Federal Circuit Court erred in refusing Mr Singh’s oral request for an adjournment on the hearing listed on 20 October 2017 (the reason why he was not able to prove his case in front of the Judge); and

(2)    the Federal Circuit Court erred in finding that Mr Singh had not made out the allegation of fraud (the reference to the S & S agent).

31    For present purposes regarding the merits of the appeal, I also note the Minister’s written submissions (filed on 25 May 2018 in the substantive appeal) to the effect that both of Mr Singh’s complaints were without substance.

32    As to the first issue, primary Judge considered the medical certificate Mr Singh provided at the hearing on 20 October 2017 to not only be unhelpful, but “ridiculously unhelpful”. The transcript of the proceeding indicates, relevantly, from p 2 ln 41:

HIS HONOUR:     … I’m not presently minded to grant you what you’re after today. Do you have a medical document to show me that you might be unable to comport yourself today? Show it to Mr Brown, please. The document that you’ve handed to me is dated 18 October, which is two days ago. It’s from Altona Super Clinic to Dr Nuran Mungi MBBS, who I assume is your treating general practitioner; is that right?

MR SINGH: Yes.

HIS HONOUR: It says, without giving any details, “According to the history obtained today, in my opinion he has been and/or will be unfit for work/school from 18 October 2017 to 20 October 2017 inclusive.” Well, that document is not particularly helpful to me, because it gives me no insight whatsoever as to what was the reason for your consultation. It’s a letter addressed to the recipient, but by the same person. It doesn’t say what your medical condition is. And in those circumstances, it tells me nothing, so I find it ridiculously unhelpful.

(Emphasis added.)

33    The primary Judge also considered Mr Singh’s claim that his grandmother had passed away two weeks prior to the hearing (from transcript p 3 ln 14):

MR SINGH: Your Honour, because my grandmother passed – because I have - - -

HIS HONOUR: When did she die?

MR SINGH: Yes. 5 October.

HIS HONOUR: Yes. Well, okay. I’m against you, Mr Singh. If you wish to participate in this case, please do. If you don’t, the case will go on without you. I’m against your, Mr Singh.

34    At [16], the primary Judge found that Mr Singh “failed to produce any medical evidence about any medical ailment and I regarded one month since his grandmother’s passing as sufficient to enable him to proceed.”

35    The Minister submitted that it was open to the primary Judge to make such assessments and that it was within the Federal Circuit Court’s discretion to refuse to grant the adjournment.

36    I am satisfied that it was open to his Honour to find that Mr Singh had not shown himself, by reason of his medical conditions or bereavement or both, to be unfit to participate meaningfully at the hearing.

37    As to the second issue, I accept the Minister’s submission that Mr Singh bore the onus of proving the allegation of fraud: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [113]. At the hearing, Mr Singh said in relation to his allegation of fraud (transcript p 36 from ln 37):

MR SINGH: Your Honour, I just like to tell you about when it happens on that S and S Migration, then I went to – because my friends told me some other news comes here, the agent Jatinder Singh is fraud. They just maybe – because he took $2000 from me, they say we can, like, apply with the files ..... how can I – as for visa check. Then they apply for, they say, you granted the visa. Then when I got the frauds, the things because the most ..... effect by Jatinder. Then I – I write one email to immigration. That’s why I’m not written to S and S because in my conditions because you come here but if happen, like badly happen with you, with us, we confuse. We like just lost like this one. That’s ..... your Honour. And I don’t want anything to be – from you and anything. I just say – I just give just chance, proper chance, like this one, I applied student visa. I had completed my test and the government give me a visa. Then I’m happy. Just for this reason I applied. No nothing. Just, your Honour, that’s it.

38    Counsel for the Minister submitted that the primary Judge ought to ignore Mr Singh’s statement because he refused to enter the witness box to be challenged. His Honour agreed, observing at [20] that “[s]o little of [Mr Singh’s] statement had factual content.”

39    The primary Judge also considered evidence in relation to the allegation of fraud that S & S was not entirely in control of Mr Singh’s visa application, and that certain aspects of the visa application “tended to show that S & S were not as involved in this visa application as [Mr Singh] asserted but rather that [he] took the running of the visa application himself” (at [29]).

40    The primary Judge concluded that:

31.    There is force in the submission that the applicant was sufficiently computer literate that he lodged the visa application and that on the dates recorded above, by the use of the VEVO system and in the applicant’s name, visa status checks were undertaken, some of which were undertaken after S & S had departed Australia.

32.    I was not persuaded that the heavy burden of establishing fraud was discharged by the applicant in this case.

33.    In my judgment, nop jurisdictional error was shown. Fraud was not shown. This application for judicial review failed.

41    I further accept that, on the evidence before the primary Judge, it was open to his Honour to conclude that Mr Singh’s allegation of fraud was not substantiated.

42    On balance, I am of the view that the grounds of appeal Mr Singh seeks to advance before this Court lack in merit and offer him, at best, poor prospects of success.

Conclusion

43    Although the Minister would not be prejudiced by the reinstatement of the proceeding I am not persuaded that Mr Singh’s explanation for his absence from the hearing of the appeal before North J was satisfactory, and further I am not satisfied that his appeal from the decision of the primary Judge has a reasonable prospect of success. For these reasons alone I am not prepared to exercise my discretion under s 25(2B)(bc) to set aside the orders of North J of 1 June 2018 dismissing the appeal.

44    In any event, however, in exercising my discretion I also note that Mr Singh has repeatedly failed to attend Court hearings in respect of matters relating to his visa. So, for example:

    Mr Singh did not attend the first hearing of his application for judicial review before the Federal Circuit Court scheduled for 6 April 2016.

    He filed an application in a case on 13 April 2016 seeking to reopen the judicial review application in the Federal Circuit Court. Mr Singh provided an affidavit deposing, inter alia, that he was unable to attend on the date of the first hearing because he was “unfit on that day” and attached a medical certificate which stated that from 5 April 2016 to 8 April 2016 he was “unfit to continue his usual occupation”. The application in a case was listed for 6 May 2016, but Mr Singh failed to appear at that hearing, too. Judge Wilson noted in Singh v Minister for Immigration & Anor [2016] FCCA 1652 at [7] that Mr Singh had “been given a number of indulgences” and the matter was dismissed.

    A further application in a case was filed by Mr Singh on 5 September 2016 seeking to reopen the case for a second time because “reasons of why I didn’t attend the hearings I already attached”. (The hearing was relisted for 20 October 2017, which Mr Singh attended in person, over three years and four months after his application for judicial review was originally filed.)

45    Mr Singh’s history of failure to attend Court hearings was perpetuated, yet again, by his non-appearance at Court today.

46    In my view, Mr Singh’s repeated disregard for the process of both this Court and the Federal Circuit Court weighs against the exercise of discretion in his favour to reinstate the substantive appeal from the primary judgment.

Associate:

Dated:    22 November 2018