Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1081

ORDERS

THE COURT ORDERS THAT:

1.    The title of the first respondent to the appeal be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant is to pay the first respondent’s costs of the appeal to be taxed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    Mr Varinder Singh seeks to appeal from the decision of the then Federal Circuit Court of Australia (Federal Circuit Court) dated 11 March 2021 which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 May 2020 which had affirmed a decision of the Minister’s delegate not to grant him a Regional Employer Nomination (Permanent) (Class RN) visa.

2    For the reasons which follow it is patently clear that there are no merits to the current appeal and nor were there any before the learned primary judge.

Background

3    On 10 September 2015, Mr Singh made an application to the Department of Immigration and Border Protection (the Department) for a Regional Employer Nomination (Class RN) visa under the Direct Entry Stream (subclass 187 visa). He had been nominated by a company, S and Q Pty Ltd.

4    By a letter dated 11 October 2017, the Department wrote to Mr Singh advising him that as the position in respect of which the nomination submitted by S and Q Pty Ltd had been refused, his application for a subclass 187 visa could not succeed. He was invited to comment on this indication from the Department but no response was provided.

5    As a result, on 17 November 2017, the Department again wrote to Mr Singh and advised him that his application for a visa had been refused. Reasons were provided by the Department which identified that the position nominated by S and Q Pty Ltd had been refused with the result that that Mr Singh’s application did not satisfy cl 187.233(3) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6    On 8 December 2017, Mr Singh lodged with the Tribunal an application to review the delegate’s decision. He was assisted in doing so by a registered migration agent, and a copy of the delegate’s decision was uploaded in support of the application.

7    As Mr Singh has alleged that he was not afforded an opportunity to be heard before the Tribunal it is necessary to observe that on 1 May 2020, Mr Singh was invited by the Tribunal pursuant to s 360 of the Migration Act 1958 (Cth) (the Act) “to give evidence and present arguments relating to the issues arising in [his] case” at a hearing via telephone on 22 May 2020. Mr Singh was advised of the importance of attending the hearing and of the consequences which would follow from his non-attendance. The letter specifically provided:

If you do not participate in the scheduled hearing (that is, you do not answer your phone at the scheduled date and time), we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

8    That written invitation also enclosed a document advising Mr Singh about the hearing process. It was headed, “Information about hearings – MR Division” and it advised, inter alia, that if Mr Singh did not attend at the hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear, or may dismiss the application without further consideration.

9    The records of the Tribunal indicate that the “Response to hearing invitation” form which was attached to the written invitation was not returned by Mr Singh and nor were any further documents provided by him or his migration agents within the seven day period prior to the date set for the hearing or at all.

10    The evidence also discloses that on 15 and 21 May 2020 messages were sent to Mr Singh reminding him of the hearing on 22 May.

11    Mr Singh failed to attend at the Tribunal on the day set for the hearing. A number of attempts were made to contact him by telephone but his telephone was not answered. The Tribunal was able to make telephone contact with Mr Singh’s representative although it was advised by that person that they were also unable to make contact with him.

12    No request had been made by Mr Singh for an adjournment and no explanation was offered by him for his non-attendance before the Tribunal.

13    The Tribunal was satisfied that Mr Singh had been notified of the hearing in accordance with the statutory requirements and that he had been reminded of the occurrence of the hearing.

14    The above attempts to contact the applicant was recorded by the Tribunal in its reasons after which it turned to the merits of the application. In that latter respect it noted that Mr Singh’s application had no prospects of success because he was unable to satisfy the requirements of cl 187.233(3) of the Regulations which required that the Minister approve the nomination applied for by the sponsor. The Tribunal identified that the nomination pertaining to the subclass 187 visa application was refused on 11 October 2017, and that no persuasive material to the contrary has been submitted by Mr Singh such that there was no evidence of an approved nomination at the time of the Tribunal’s decision.

15    Mr Singh sought review of the Tribunal’s decision by the Federal Circuit Court.

The hearing before the Federal Circuit Court

16    Mr Singh’s application for review of the Tribunal’s decision was listed for hearing by video link on 11 March 2021, although Mr Singh did not appear at the scheduled time. On its own motion the Court telephoned Mr Singh, who answered, and the proceedings continued by that medium.

17    After hearing the matter, the learned primary judge dismissed the application and delivered ex tempore reasons for his conclusion. His Honour held that:

(a)    The evidence established that the Tribunal had duly notified Mr Singh of the time and date of the hearing and had further made a number of additional attempts to contact him such that he might participate in it. Despite that Mr Singh had failed to attend.

(b)    The Tribunal was correct to affirm the delegate’s decision because the application was hopeless consequent upon Mr Singh not being able to satisfy the requirements of cl 187.233 of the Regulations and, in particular, that the approved employer nomination had not been achieved.

Appeal to this Court

18    By the Notice of Appeal Mr Singh sought to raise four matters. They were, in terms, as follows:

1.    Procedural fairness not provided to the Applicant

2.    No opportunity provided to allow for a legal representative to be appointed for the Applicant

3.    Covid 19 restrictions not allowing for evidence to be provided

4.    Cost of penalty for costs is too high

19    Subsequent to the institution of the appeal a Registrar of this Court made orders for the filing and serving of outlines of argument. Mr Singh did not provide any outline and nor did he participate in any of the procedural steps specified in those orders.

20    Given the absence of any comprehensible grounds in the Notice of Appeal and the absence of any submissions which might enlighten the gravamen of Mr Singh’s complaints, it can be concluded that no adequate grounds have been raised. For that reason alone the appeal should be dismissed.

21    Further, on 31 August 2022, when the matter was listed for hearing in this Court and when the matter was called on, Mr Singh failed to appear. The matter was called outside of the Court and no appearance followed. Further, the Court attempted to contact Mr Singh on the telephone number which he had provided. Two attempts were made. The phone was not answered on either occasion. Ms Tinlin, for the Minister, asked the Court to dismiss the appeal pursuant to r 36.75 of the Federal Court Rules 2011 (Cth). That rule provides as follows:

36.75 Absence of party

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed; or

(ii)    the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken; or

(b)    if the absent party is the respondent:

(i)    the hearing proceed generally or in relation to a particular claim for relief in the appeal; or

(ii)    the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken.

22    Given the circumstances, the absence of Mr Singh when the matter was called on and after appropriate notice was given, is sufficient to warrant dismissing the appeal. Nevertheless, the Minister’s submissions have sought to address the perceived concerns behind each of the grounds of the appeal and it is not inappropriate to consider them in that context.

Ground 1

23    The first contention is that procedural fairness was not provided to Mr Singh, but it is not clear whether that complaint is directed to the Tribunal or the primary judge. One might think it was directed to the former, and to the extent to which it was directed to the Tribunal, it may be thought that Mr Singh complains that he was not given adequate notice of the hearing. There is, however, no evidence that such is the case.

24    As the Minister’s written submissions disclose, that suggestion can be easily dismissed for the following reasons:

(a)    on 1 May 2020, in compliance with s 360 of the Act, the Tribunal wrote to Mr Singh and invited him to attend a hearing by telephone, scheduled on 22 May 2020;

(b)    the Tribunal also sent SMS hearing reminders prior to the hearing to the number listed on the appellant's Tribunal review application, and there are no indications that those reminders were not delivered successfully;

(c)    the Tribunal further attempted to call the appellant on a number of occasions on the scheduled hearing date, on his personal mobile telephone number listed on his review application; and

(d)    the Tribunal contacted the appellant's representative and provided additional time for the representative to contact the appellant.

25    In these circumstances the Tribunal went well beyond meeting the statutory requirements for notifying Mr Singh of the hearing of the application. It provided him with more than adequate notice of it and there is no substance to Ground 1.

Ground 2

26    By the second ground of appeal, Mr Singh complains that no opportunity was provided for a legal representative to be appointed to assist him. This ground appears to be directed to the conduct of the hearing before the Federal Circuit Court although he has adduced no evidence of the events which occurred on that occasion.

27    By the Minister’s submissions it is identified that, “During the hearing in the proceedings below, in the appellant's submissions in reply, he requested time to obtain proper legal representation, which the primary judge did not entertain”.

28    It is apparent that the application for review by the Federal Circuit Court was filed on 19 June 2020 and the hearing occurred on 11 March 2021. That afforded Mr Singh ample time, being about nine months, to obtain legal representation. That was more than sufficient and there was no evidence before the Federal Circuit Court as to Mr Singh’s attempts, if any, to obtain legal representation prior to the hearing. In these circumstances there was simply no basis on which the Federal Circuit Court should have adjourned the hearing to enable Mr Singh to attempt to obtain legal representation.

29    As the Minister also submitted, there was no obligation on the primary judge to ensure that the appellant had legal assistance: see Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17]; New South Wales v Canellis (1994) 181 CLR 309 at 330–331; BFB17 v Minister for Immigration and Border Protection [2018] FCA 724 at [14].

30    Finally, it is correct to conclude that in the circumstances of this case no adjournment to obtain legal representation could have assisted Mr Singh. In the absence of an approved nomination, it was not possible for him to satisfy the essential criteria of the subclass 187 visa. The Tribunal correctly concluded that he did not satisfy the criteria for a subclass 187 visa, and there is no challenge to that. Indeed, on the evidence, no challenge could be made. As a result the only decision available to the Tribunal was to affirm the decision under review. For these reasons there is no substance in Ground 2.

Ground 3

31    By Ground 3, Mr Singh asserts that COVID-19 restrictions did not allow for evidence to be provided. Again, this ground has not identified whether the complaint is directed to the proceedings before the Tribunal or in the Federal Circuit Court. On the basis that the ground seeks to raise a procedural fairness issue there is nothing to suggest that Mr Singh sought to file any evidence before the Tribunal or before the Federal Circuit Court, and he has not adduced any evidence to suggest otherwise.

32    In addition, it is not clear what evidence he might have wished to adduce in the circumstances. As has been identified above, the matter was largely one of law and the application of the Regulations, and, as such, the point on which the delegate and the Tribunal refused his application for a visa did not require, nor would it be affected by, any further evidence.

33    It follows that the assertion by Mr Singh that COVID-19 restrictions prevented him from adducing any evidence does not raise any error on the part of the Tribunal or the primary judge.

34    Further, as the Minister correctly submitted, in circumstances where the appellant is not the subject of an approved nomination as required for the grant of a subclass 187 visa, it would be futile to remit the matter to the Tribunal as there is no possibility that Mr Singh will be able to satisfy the requirements for the grant of a visa.

Ground 4

35    Ground 4 raises a complaint that the costs order made by the primary judge was somehow excessive. The grounds do not identify any reason why that is so. It is apparent that the learned primary judge fixed the costs in the sum of $6,100, and experience shows that that amount is generally in the vicinity of the amounts of costs awarded for a hearing in that Court on an application of the nature dealt with by the primary judge.

36    As the Minister’s written submissions correctly identify, the jurisdiction to award costs was conferred by s 79 of the Federal Circuit Court of Australia Act 1999 (Cth) for the purposes of empowering the Court to make orders that fairly indemnify the successful party against the legal costs the successful party incurred, but which would not have been incurred had the litigation not been brought. A reference was made to the decision in Oshlack v Richmond River Council (1998) 193 CLR 72, [67]. There is nothing to suggest other than that the learned primary judge applied that principle in awarding the amount of costs he did.

37    Further, as is pointed out by the Minister’s written submissions, in Pt 3 of Sch 1 of the Federal Circuit Court Rules 2001 (Cth), costs for a proceeding that concluded at a final hearing are set in the scale amount of $7,467. The Minister was awarded costs in the sum of $6,100 which is less than that scale amount. It follows that the costs awarded were below the scheduled amount and that rather indicates that no error has occurred. There is, with respect, no basis on which any error can be identified in the order for costs made by the learned primary judge. In those circumstances, and for the reasons which have been given, the appeal should be dismissed.

38    The Minister has sought costs of this appeal. There is no reason why the Minister should not be entitled to his costs of this appeal, and the order should be that the appellant pay the Minister’s costs of the appeal as agreed or as taxed.

39    The Minister correctly pointed out at the hearing that the title to the proceedings is perhaps incorrect. In those circumstances, it is ordered that the title of the first respondent in these proceedings be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

Associate:

Dated:    31 August 2022