FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1048

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The application for an extension of time and leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The applicant seeks an extension of time and leave to appeal from the decision of a judge of the Federal Circuit Court of Australia (FCCA), dismissing his application for orders setting aside a notice of discontinuance of the FCCA proceeding, and reinstating the applicant’s application for judicial review of a decision of the second respondent (Tribunal): Singh v Minister for Immigration & Anor [2018] FCCA 3359.

2    As a decision to dismiss an application to set aside a notice of discontinuance is interlocutory in nature, the applicant requires the leave of the Court to appeal by s 24(1A) of the Federal Court of Australia Act 1976 (Cth): BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 at [13].

3    The applicant did not file written submissions. He appeared at the hearing of the application with the assistance of a Punjabi interpreter.

4    The applicant requested that the Court provide him with legal assistance. The applicant confirmed that he and his sponsor were separated at the time of the Tribunal hearing and he did not take issue with the Tribunal’s finding that it was not satisfied that the applicant and the sponsor had a mutual commitment to a shared life as husband and wife within the meaning of s 5F of the Migration Act 1958 (Cth) at the time of the Tribunal’s decision. In those circumstances, and having read the appeal papers, I was not satisfied that there was a sufficient reason to refer the applicant for pro bono legal assistance with a consequential adjournment of the hearing of the application.

5    The applicant submitted that he has a child by the relationship with the sponsor and he cannot leave the child and go away. This submission is addressed below.

Background

6    The applicant, a citizen of India, arrived in Australia on 13 June 2008 as the holder of a Subclass 572 visa. That visa ceased on 15 August 2010 and he has not held a substantive visa since that date.

7    On 16 September 2013, the applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) visa on the basis of his spousal relationship with Louise Shirley Lanham (sponsor), whom he had married on 29 June 2013.

8    On 10 November 2015, a delegate of the Minister refused the application on the basis that the delegate was not satisfied that the applicant was the spouse of the sponsor.

9    The applicant sought merits review of the delegate’s decision, and on 20 October 2016, the Tribunal affirmed the decision under review.

Tribunal decision

10    The Tribunal put to the applicant information provided by the sponsor that the parties’ relationship had ceased two years ago (that is, about October 2014) and both of her children were from a previous relationship.

11    The applicant said that he and the sponsor had separated between 10 months to a year ago. He also expressed hope that, when the sponsor returns to a good frame of mind, their relationship may “survive”.

12    The applicant stated that he was the father of the sponsor’s daughter, “Kaysha”, but that the sponsor refused to put his name on Kaysha’s birth certificate and had refused to have DNA testing completed to determine the biological relationship between the applicant and Kaysha. The applicant said that he has no legal responsibility for Kaysha. However, the applicant noted that the parties meet and, on those occasions, the applicant provides the sponsor with $500 to $1,000 in cash.

13    The Tribunal found that there was no evidence that the applicant and his sponsor remained or are currently in a spousal relationship. The Tribunal was not satisfied that Kaysha was a child of the parties’ relationship.

14    The Tribunal found that it was unable to be satisfied that the parties were in a spousal relationship because they had “not provided to the Tribunal any evidence regarding the financial aspects of their relationship, the nature of any household, any social aspects of their relationship, or the nature of their commitment to each other”.

15    At [25] of its decision record, the Tribunal concluded:

Having considered all of the evidence the Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all other; that their relationship is genuine and continuing or that they do not live separately and apart on a permanent basis. The applicant therefore does not meet the requirements of s.5F of the Act.

16    Accordingly, the Tribunal concluded that the applicant did not meet the criteria for the grant of the visa.

Proceedings in the FCCA

17    On 7 November 2016, the applicant filed an application for judicial review. However, on 25 July 2018, the applicant’s legal representative filed a notice of discontinuance.

18    On 21 August 2018, the applicant filed an application in a case seeking to set aside the notice of discontinuance and reinstate his review application. The FCCA judgment recorded (at [5], [8] and [9]):

[5]    In his application in a case and accompanying affidavit Mr Singh stated that he was aware that his application had been withdrawn by his lawyer, but claimed that he did not have much knowledge and that he had done whatever his lawyer said, had signed what the lawyer told him to sign and had sent the notice of discontinuance to the court (although I note that the notice of discontinuance appears to have been signed and filed by the lawyer).

…

[8]    Mr Singh has been in Australia for some 10 years. It is apparent from this cross-examination that he has a good understanding of the English language. He completed senior secondary education in India. His evidence was that he was aware that he had discontinued the review application. He acted on the advice of his lawyers to do so. He knowingly authorised his lawyers to discontinue the proceedings, understanding the consequences. He agreed to do so because he was acting on the advice of his lawyers.

[9]    Mr Singh’s evidence was that after he discontinued the proceeding he decided that he had received poor advice from his lawyer. He agreed that it was in this sense that he claimed that he was misguided by his lawyer, who he said had indicated that his proceedings would not be successful and that it would be a good idea to discontinue. Mr Singh claimed that, it was after he later talked with friends, that he decided that it had been not a good idea to discontinue and now thought, on the basis of the advice of his friends, that his case may succeed. He also told the court that he was concerned about losing contact with the child and having to return to India.

19    The FCCA judge stated that the circumstances in which the Court was empowered to reinstate discontinued proceedings were limited, and set out the relevant principles by reference to the decisions of this Court, including of Ryan J in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (SZFOZ) and the Full Court in Chen v Monash University [2016] FCAFC 66 (Chen) (followed by Jagot J in SZUXV v Minister for Immigration and Border Protection [2016] FCA 1321 (SZUXV)).

20    At [17] of her Honour’s reasons, the FCCA found that there was “nothing in the circumstances before the Court to establish that reinstatement was necessary in order to prevent an abuse of process or to protect the integrity of the processes of the court”. At [18]-[19], her Honour gave the following reasons:

[18]    Mr Singh made a deliberate and informed choice to file, through his lawyers, the notice of discontinuance. It was regularly filed in accordance with the Rules. I accept that Mr Singh acted on the advice of his lawyers, but there is nothing in the evidence or in Mr Singh’s submissions to raise any concern in relation to the circumstances in which that advice was given or the nature of that advice. There is also nothing to raise even an arguable suggestion of fraud or duress in the present case.

[19]    The fact that the Applicant has now changed his mind and decided that he may have some prospects of success, is not such as to indicate that the discontinuance was procured by fraud or duress or that there was any abuse of process. He was aware he discontinued the proceedings. He authorised his lawyers to do so, knowing the consequences. He acted on the advice of his lawyers. The court’s power to set aside the notice of discontinued is not enlivened.

21    Although it was not necessary to go further, the FCCA judge considered whether, if the power to reinstate the proceeding was enlivened (or it had been open to the Court to have regard to the interests of justice), the applicant had any prospects of success on his application for judicial review.

22    At [20] of her Honour’s reasons, the FCCA judge concluded that the application for judicial review had no reasonable prospects of success, giving the following reasons (at [20] and [21]):

[20]    … In essence, his application for a partner visa was refused by the Tribunal not simply on the basis of the sponsor’s evidence (as he complained in submissions today), but in light of his own evidence that while he and his sponsor had previously lived together as husband and wife, some 10 months to a year earlier they had separated and since that time had lived apart. There was also no evidence before the Tribunal that they had joint financial commitments or that they share any obligations or responsibility, although they occasionally met and Mr Singh gave the sponsor money on occasion.

[21]    Unsurprisingly, in these circumstances the Tribunal found that on Mr Singh’s evidence (as well as his sponsor’s) the relationship had ceased (albeit that her evidence was that it had ceased at an earlier time). Regardless of when the parties had separated, the Tribunal was satisfied the relationship had ceased. It was also unable to be satisfied that at the time of the decision the parties were in a spousal relationship, because the Applicant had not provided any evidence concerning the relevant aspects of spousal relationship referred to in the definition of “spouse” in the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). No even arguable jurisdictional error has been identified in the Tribunal’s approach in this respect.

Application for extension of time and leave to appeal

23    Rule 35.14 of the Federal Court Rules 2011 permits a person to file an application for an extension of time to seek leave to appeal.

The likelihood of leave to appeal being granted and the reasons for the delay are relevant considerations for the purpose of an application for extension of time: SZUJJ v Minister for Immigration and Border Protection [2017] FCA 137 at [25]; Kennedy v Secretary, Department of Industry [2016] FCA 1251 at [64]; Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [22].

24    Further, in order for the Court to grant leave to appeal, the applicant must satisfy the Court of the cumulative test set out in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, namely, whether:

(1)    in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(2)    substantial injustice would result if leave were refused supposing the decision to be wrong.

25    If the proposed appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, then it would be futile to grant leave to appeal and, accordingly, leave should not be granted: BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230; (2013) 139 ALD 140 at [25].

Delay and prejudice

26    The application was filed 25 days out of time. The applicant claims that the delay was because his lawyer “did not apply on time” and “is charging lots of money and I don’t have that mu[c]h of money”. The Minister submitted that this explanation is inadequate, particularly where the applicant is not represented by a lawyer in this proceeding.

27    The Minister accepts that there is little prejudice to him if the Court were to grant an extension of time, beyond the public interest in the finality of administrative decision making.

Merits of the draft notice of appeal

28    The Minister submits that the application should be refused because the proposed substantive appeal is without merit. The Minister contends that none of the seven draft grounds of appeal (which are repeated in the application for leave to appeal) identify any arguable error in the reasons of the FCCA judge.

29    Having regard to the terms of the draft notice of appeal, I accept the Minister’s submission. None of the proposed grounds of appeal is directed to the relevant decision, which was a decision to refuse to set aside the applicant’s notice of discontinuance. None of the proposed grounds of appeal identify any error in relation to the FCCA judge’s identification of the relevant legal principles, or her Honour’s application of the relevant legal principles to the facts in this case.

30    For these reasons, the proposed appeal cannot succeed and, accordingly, there is no point in granting the leave sought.

31    Although it is not necessary to address them, the individual proposed grounds of appeal have no merit for the following reasons.

Ground 1

32    Ground 1 contends that the FCCA judge erred by failing to hold that the Tribunal fell into jurisdictional error by taking into account irrelevant considerations and “misconducting” the facts.

33    As submitted by the Minister, it was not incumbent on the FCCA judge to identify jurisdictional error in the Tribunal decision in circumstances where there was no material before the Court to establish that reinstatement was necessary in order to prevent an abuse of process or to protect the integrity of the process: SZFOZ at [20]; Chen at [41], [46]; SZUXV at [8].

Grounds 2 to 5

34    Grounds 2 to 5 take issue with the delegate’s decision, variously contending that the delegate “overlooked or mistook the facts”, did not consider the applicant’s marriage, made “a mockery of the law and human emotion”, and “follow blindly instructions and they think all marriages do by migrants are fake”.

35    The decision of the delegate was not relevant to the FCCA judge’s consideration of whether the notice of discontinuance should be set aside. The delegate’s decision was reviewed by the Tribunal which considered the visa application afresh.

Grounds 6 and 7

36    Ground 6 states that the applicant does not know who will take care of his daughter. As noted above, the applicant submitted orally that he cannot leave his child and go away.

37    The FCCA judge addressed the position of the applicant’s child at [24] of her Honour’s reasons, saying:

His concern about being separated from the child if he has to return to India is understandable, but the court has no discretion on humanitarian grounds to reinstate proceedings or to set aside a Tribunal decision.

38    At [22], her Honour also noted that the Tribunal found that the applicant had not claimed that he had any custody or access or other orders in respect of the child, nor was there any evidence about those matters.

39    The FCCA judge’s reasons concerning the child do not raise any arguable appellable error and the applicant’s submission to this Court does not raise any arguable ground of appeal.

40    Ground 7 states that the applicant “appeal[s] to highest court to give me justice”. This ground also does not identify any arguable appellable error.

Conclusion

41    The draft notice of appeal does not raise any arguable ground of appeal from the decision of the FCCA judge. The applicant has not demonstrated that the FCCA judge’s decision is attended by any, let alone sufficient, doubt to warrant the grant of leave to appeal. Nor would there be substantial injustice if leave to appeal were refused because, as the FCCA judge concluded, the application for judicial review had no reasonable prospects of success.

42    Accordingly, the application for an extension of time and leave to appeal will be dismissed. Costs should follow the event.

Associate:

Dated:    8 July 2019