Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 905

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent's costs of the application to be assessed by a registrar on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In 2014, Mr Singh's application for a temporary partner visa was refused. In 2017, the decision to refuse the visa was affirmed by the Administrative Appeals Tribunal. He sought judicial review in what was then the Federal Circuit Court. In 2021, his application was transferred to the Perth registry of the Circuit Court and a directions hearing took place on 23 July 2021. At that time orders were made listing his review application for hearing on 1 February 2022. Orders were also made allowing for an amended application and for the filing of submissions.

2    Mr Singh did not file an amended application nor did he file any submissions. He did not appear at the hearing on 1 February 2022. Orders were made dismissing the proceedings for non-appearance and for Mr Singh to pay the costs of the proceedings in sum of $7,467.

3    By reason that the proceedings were dismissed for non-appearance, it was open to Mr Singh to seek to have his review application in the Circuit Court reinstated: see r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Instead he commenced an appeal in this Court. As he has followed that course, there is no record of evidence before the Circuit Court concerning the reasons why he did not appear nor as to the merits of his review application.

4    On 14 July 2022, Mr Singh appeared in this Court with the assistance of an interpreter at a case management hearing. At the time it was explained to him that he could bring a reinstatement application in the Circuit Court. He was told that if he was to follow that course he should do so promptly. He was also told that if he did not do so then that may be a matter that would bear upon his application in this Court. He indicated that he would do so.

5    As Mr Singh's application concerned the dismissal of his application in the Circuit Court for his non-appearance, it concerned an interlocutory judgment and leave was required for him to appeal: SZIBD v Minister for Immigration and Citizenship [2008] FCA 429 at [15] (Reeves J); and SMS Technology Australia Pty Ltd v Abdullah M Al Hamed [2009] FCA 451 at [10] (Logan J). For that reason, on 14 July 2022, I ordered that his application be treated as an application for leave to appeal. At the request of the Minister the application was listed for hearing on 3 August 2022 against the possibility that Mr Singh did not choose to proceed by way of reinstatement application in the Circuit Court. Orders were made for the filing of submissions and it was explained that those submissions would need to be filed if Mr Singh decided to pursue his application in this Court.

6    Following the hearing, my associate sent an email to Mr Singh in the following terms (to the email address to which he was sent the link to join the case management hearing on 14 July 2022):

As discussed in the case management hearing listed at 9.45 am today (14 July 2022), it is open to you to file an application in the Federal Circuit and Family Court of Australia (Circuit Court) to have your original matter (MLG531/2017) reinstated, pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

You should contact the registry of the Circuit Court concerning the appropriate form of application.

Your application in the Federal Court (WAD42/2022) has been listed for final hearing on 3 August 2022. You may request that the application in the Federal Court not proceed and instead pursue reinstatement in the Circuit Court. You should inform the lawyers acting for the Minister if you wish to proceed with an application for reinstatement in the Circuit Court instead of your application in this Court.

If you do not make an application for reinstatement then that may be a reason why your application in this court is dismissed (Ellenbrook Family Medical Centre Pty Ltd v Bibok [2022] FCA 172). If your application is dismissed then you may be liable for costs.

Please confirm receipt of this email.

7    Mr Singh did not confirm receipt of the email.

8    On 1 August 2022 an email was sent by my associate to Mr Singh in the following terms:

I refer to my email of 14 July 2022, sent at 2.05 pm (attached below).

The purpose of this email is to remind you that your application in the Federal Court (WAD42/2022) is listed for hearing on 3 August 2022 at 10.15 am. The hearing will take place in a courtroom on Level 7 of the Perth Registry, located at 1 Victoria Avenue.

Could you please advise the Court as soon as possible as to whether you propose to make, or have made, and application for reinstatement in the Federal Circuit and Family Court of Australia.

Please confirm receipt of this email.

9    Again Mr Singh did not confirm receipt.

10    On two occasions on 2 August 2022 and again on 3 August 2022 my associate sought to contact Mr Singh by telephone using a number on which he had been contacted successfully before the case management hearing on 14 July 2022. There was no answer. On the first two occasions a message was left asking Mr Singh to contact my associate.

11    Mr Singh did not appear at the hearing on 3 August 2022. His name was called three times in the precinct of the Court by the court officer but he did not appear.

12    Five minutes after the allocated time for commencement of the hearing, counsel for the Minister sought to proceed in the absence of Mr Singh. In the circumstances I have explained, I considered it appropriate to do so. Mr Singh had been afforded every opportunity to appear or to contact the Court and provide an explanation as to why he was unable to do so.

13    As the application filed by Mr Singh was a few days late, he needed an extension of time to proceed. The Minister opposed the extension on the basis that the application for leave lacked sufficient merit. 'Usually where the delay is not significant, the reason for the delay has been adequately explained and there is no material prejudice that would arise if the extension were granted then it will be necessary in the interests of justice for the extension to be granted under s 477A(1) unless the proposed grounds are considered to be hopeless based on an impressionistic assessment, reading them without the benefit of detailed argument': CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1441 at [4] (Colvin J).

14    For the following reasons, there was insufficient merit in the application to justify an extension of time or for the grant of leave and I refused the application by Mr Singh.

15    As counsel for the Minister appropriately submitted there is a divergence of view as to whether this Court has jurisdiction to entertain an application for leave to appeal to seek to set aside an order of the Circuit Court dismissing a proceeding for non-appearance. Some judges have doubted whether there is such a jurisdiction: see MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 at [3]-[4] (Sundberg J); VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505 at [10] (Sundberg J); MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] (Young J); SZIBD at [14]-[18]; and SZMIU v Minister for Immigration and Citizenship [2012] FCA 179 at [51] (Murphy J). Others have taken a different view: Sivaprakasam v Minister for Immigration and Border Protection [2014] FCA 871 at [30] (Beach J); SMS Technology at [10]-[19]; and BZAAG v Minister for Immigration and Citizenship [2011] FCA 217 at [27]-[33] (Logan J).

16    In Ellenbrook Family Medical Centre Pty Ltd v Bibok [2022] FCA 172, I proceeded on the basis that there could be an appeal with leave. With respect to those judges who have expressed a different view, I am inclined to the view that a decision to finally dismiss proceedings for non-attendance is not an order made as a matter of practice and procedure. I accept that the availability of a procedure (whether as a matter of practice or, as in the present case, by express provision in the rules) whereby a party may apply to reinstate proceedings or set aside a dismissal of proceedings in default of attendance is a substantial factor that is likely to weigh against the grant of leave. However, there may be cases where it is appropriate to seek leave by reason of some aspect of the approach of the court below at the time that the dismissal order was made. A final judgment entered in default is not simply a decision as to the manner in which the proceedings might be conducted. It brings the whole proceedings to a conclusion. It may have significance beyond the proceedings because a default judgment may give rise to a res judicata: Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 519-521 (Kirby P), 526-527 (Clarke JA); and Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502.

17    The Minister did not invite a resolution of the difference in the approaches and advanced submissions as to why there was no merit in the application for leave. Adopting that approach, for the following reasons the application should be refused.

18    Firstly, the only material before the court as to the basis for Mr Singh's application to this Court was his affidavit. It does not provide any basis for the grant of leave. After explaining the history of his visa application and the fact that his relationship 'fell apart and our divorce was finalised on Jul 2017', he says that the Circuit Court has not assessed his application 'and thus assessment of my application lacks procedural fairness'. This does not engage with the fact that he was given notice of the final hearing and did not file an amended application or any submissions prior to the hearing as provided for by orders of the Circuit Court. Nor does it engage with the fact that steps were taken to contact Mr Singh when he failed to dial in to the hearing (in accordance with instructions provided in an email on 27 January 2022). In short, there has been no demonstration of an arguable basis upon which the decision to dismiss the proceedings for non-attendance may be said to have been in error.

19    Secondly, no reason has been identified as to why it is not appropriate for Mr Singh to pursue the reinstatement procedure. Indeed, at the case management hearing he indicated that he would do so.

20    Thirdly, this court should not encourage the pursuit of appeals in instances where a reinstatement procedure is available but has not been pursued. The reinstatement procedure is available as a quick and efficient mechanism to deal with instances where it is fair and reasonable for a party to be allowed to proceed to a substantive determination. The pursuit of an appeal is expensive and time consuming and undermines the integrity of the processes of the Circuit Court in giving effect to the overarching purpose of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). It is a course that should not be allowed unless good reason is shown as to why it is appropriate. As has been noted, there was no such reason demonstrated in the present case.

21    Fourthly, if the reinstatement procedure was pursued then Mr Singh would be required to provide to the Circuit Court any explanation for his non-appearance and explain the merits of his application. Then, if the application was refused and Mr Singh sought to bring an appeal, this Court would have the benefit of a consideration of those materials by the Circuit Court.

22    The Minister sought an order for costs. The application for leave having been dismissed I ordered that Mr Singh do pay the costs of the application for leave, such costs to be assessed by a registrar if not agreed.

Associate:

Dated:    4 August 2022