Federal Court of Australia

Singh v Minister for Immigration and Citizenship [2026] FCA 1158

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to Minister for Immigration and Citizenship.

2.    The name of the Second Respondent be amended to the Administrative Review Tribunal.

3.    The application for leave to appeal be dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth).

4.    The applicant pay the costs of the first respondent fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    By an application dated 23 November 2024, the applicant, Aman Deep Singh, seeks leave to appeal from a decision of the Federal Circuit and Family Court of Australia Div 2 (FCFCOA) made on 21 November 2024 in Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1203. By that decision, the FCFCOA dismissed Mr Singh’s application for an extension of time to review a decision of a Registrar of the FCFCOA summarily dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).

2    Mr Singh does not have legal representation.

3    The application was allocated to my docket on 25 May 2026 and was then listed for hearing at 2.15 pm on 17 August 2026. The parties were notified of the hearing date by email on 1 June 2026. By that email, the parties were also reminded of the timetabling orders that had previously been made by the Court. In circumstances where the applicant was not legally represented, the orders required the Minister to file and serve a written outline of submissions no later than 20 business days prior to the hearing date, and required the applicant to file and serve a written outline of submissions no later than 10 business days prior to the hearing.

4    In accordance with the timetabling orders of the Court, the Minister filed an application book and written submissions dated 7 July 2026. Mr Singh did not file any written submissions in support of his application prior to the hearing.

5    Given the failure of Mr Singh to file written submissions, and the lack of any communication by Mr Singh to the Court since being notified of the hearing date, an officer of the Court contacted Mr Singh by telephone this morning to confirm the hearing today. Mr Singh told the officer that he is feeling unwell and would not be attending the hearing. My chambers then sent an email to Mr Singh informing him that if he wished to apply for an adjournment of the hearing, he should reply to the email stating the nature of his illness and provide a medical certificate in support. Mr Singh did not reply to that email, and has not otherwise sought an adjournment of the hearing.

6    Mr Singh did not appear at the hearing at 2.15 pm. The first respondent sought an order dismissing the application, with costs, pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) (FCR) by reason of the applicant’s failure to appear. I consider it appropriate to make those orders. Mr Singh has taken no step in this proceeding beyond filing the application and supporting affidavit. Mr Singh failed to file written submissions in support of the application and failed to appear today. Further, having reviewed the reasons of the FCFCOA, the application book and the Minister’s written submissions, I conclude that the application has no merit whatsoever. The reasons for reaching that conclusion can be stated relatively briefly.]

Background

7    On 4 August 2018, the applicant’s former wife, Amandeep Kaur Gill, applied for the Temporary Graduate (Class VC) and Temporary Graduate (Post-Study Work) (Subclass 485) visa. In support of her application, Ms Gill provided the Department of Home Affairs with various documents, including, relevantly, an Indian Police Clearance Certificate dated 6 February 2018. Mr Singh and their daughter, Mansirat Kaur, were included as secondary applicants.

8    On 5 September 2018, the delegate notified the family of its decision to refuse to grant the visas on the basis that Ms Gill had not applied for an Australian Federal Police (AFP) check in the 12 months immediately before the day the visa application was made, as required by cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). As a result, Mr Singh and Ms Kaur were refused visas on the basis they were not a member of a family unit of a person who satisfied the primary criteria for, and had been granted, the visa: see cl 485.311 of Sch 2 to the Regulations.

9    On 10 September 2018, the family applied to the Tribunal for review of the delegate’s decision. On 30 December 2018, Ms Gill provided the Tribunal with:

(a)    a written statement dated 25 December 2018 which stated that she had truthfully declared in her visa application that she had not applied for an AFP check during the 12 months immediately before lodging the visa application, and that she had later applied for an AFP check for Mr Singh; and

(b)    a copy of an AFP National Police Certificate in respect of Mr Singh dated 18 September 2018.

10    On 3 January 2019, the Tribunal affirmed the delegate’s decision not to grant the visa. In its reasons for decision, the Tribunal observed that, although the Tribunal conducts a de novo determination of the visa application, the Tribunal is nevertheless bound by the requirements of cl 485.213 of Schedule 2 to the Regulations. That clause requires that the visa application be accompanied by evidence that the visa applicant, and each person included in the application who is at least 16, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made. The Tribunal found that, when the visa application was made, that clause was not satisfied. As a consequence, the applicants did not satisfy the criteria for the grant of the visa.

11    On 23 January 2019, the family applied for judicial review to the Federal Circuit Court (as it then was). Subsequently:

(a)    the marital relationship between Mr Singh and Ms Gill came to an end;

(b)    Ms Gill and Ms Kaur obtained substantive visas;

(c)    Ms Gill and Ms Kaur expressed their desire to discontinue the FCFCOA proceeding; and

(d)    Mr Singh expressed the desire to maintain the FCFCOA proceeding.

12    On 2 July 2024, a Registrar of the FCFCOA ordered by consent that, amongst other things:

(a)    the application be discontinued in respect of Ms Gill and Ms Kaur; and

(b)    the application be listed for hearing of an application brought by the Minister for summary dismissal of the proceeding pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules).

13    On 17 October 2024, a Registrar of the FCFCOA summarily dismissed the proceeding (on the basis that Mr Singh had no reasonable prospect of successfully prosecuting the application).

14    In dismissing the proceeding, the Registrar exercised delegated power under s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.01 (item 58) of the 2021 Rules. Under s 256 of the FCFCOA Act, a party may apply for review of an exercise of power by a delegate under s 254 of the FCFCOA Act. Rule 21.02(1) of the 2021 Rules stipulates that applications for review of an exercise of power by a Registrar must be made within seven days. Rule 21.02(1) stipulates that this timeframe may be extended by the Court on any terms that it thinks fit, or with the consent of the parties.

15    On 30 October 2024, Mr Singh applied for an extension of time to review the Registrar’s decision.

16    On 21 November 2024, the FCFCOA made orders refusing the extension of time. In the reasons for decision, the primary judge made the following findings:

(a)    Whilst there are no prescribed statutory criteria to inform the discretion to extend time, relevant factors include the length of the delay, any explanation or reasons for the delay, prejudice to the respondent or third parties, and the merits of the underlying application.

(b)    Mr Singh had not provided any explanation for his delay in filing the application.

(c)    No prejudice would be suffered by the Minister if time were extended.

(d)    Mr Singh has no reasonable prospects of establishing any of his grounds for review of the Tribunal’s decision.

(e)    In addition to the lack of merit in the grounds of review, the evidence demonstrated that Ms Gill was incapable of satisfying cl 485.213 of Schedule 2 to the Regulations, and therefore the criteria for the grant of the visa could not be satisfied. It followed that Mr Singh could not satisfy cl 485.311 of Schedule 2 of the Regulations, and the Tribunal was required to affirm the delegate’s decision.

Consideration of the application for leave to appeal

17    Mr Singh requires leave to appeal as the decision of the FCFCOA was interlocutory. The principles governing applications for leave to appeal in this Court were stated in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 and can be summarised as follows:

(a)    An applicant must generally demonstrate that, first, the decision in question is attended with sufficient doubt to warrant its being reconsidered by the Full Court and, second, that substantial injustice would result if leave were refused, supposing the decision to be wrong.

(b)    The two criteria are cumulative (that is, both must ordinarily be made out) and they are also inter-related.

(c)    As to the first criterion, an applicant does not have to demonstrate that the proposed grounds of appeal are strongly arguable, or that the proposed appeal will or is likely to succeed. The applicant need only demonstrate that there is sufficient doubt about the correctness of the decision to warrant appellate reconsideration.

(d)    As to the second criterion, an applicant is likely to suffer substantial injustice (if leave were to be refused supposing the decision to be wrong) if the decision has the practical effect of finally determining the rights of the parties, or determines “a substantive right”.

18    Further, the decision of the FCFCOA was discretionary in nature because the primary judge declined to exercise a discretion to extend time. The proposed appeal must therefore establish an error of the kind in House v King (1936) 55 CLR 499 at 504-505.

19    The application for leave to appeal stated the following grounds for the application:

1.     The Honourable Court misconstrued or misapplied clause 485.213 of the Migration Regulations 1994 (Regulations) and for that reason fell into jurisdictional error.

2.     The Honourable Judge C. E. Kirton KC overlooked the relevant information and for that reason fell into jurisdictional error.

3.     The Honourable Judge C. E. Kirton KC failed to consider that each case has its own facts and merits and ought to consider on a case-by-case basis.

20    In support of the application, Mr Singh relied upon an affidavit affirmed by him on 23 November 2024. Amongst other things, the affidavit contained the following assertions:

5.     The decision of the Court/Tribunal is affected by the incorrect principle of law.

6.     I was self - represented and needed legal assistance for the hearing.

7.     The Honourable Judge C. E. Kirton KC decision to refuse to grant a 485 Graduate visa did not accord the applicant with procedural fairness and natural justice.

8.     I strongly believe that I have a genuine arguable case, and the Federal Circuit and Family Court of Australia made an error by dismissing my application on 21 November 2024.

21    As noted earlier, the applicant has not filed any written submissions supporting any of the above assertions. Having reviewed the application book and the decisions below, I consider that none of those assertions have any basis. I consider that the Tribunal correctly construed cl 485.213 of the Regulations. The applicant has not identified any “relevant information” overlooked by the primary judge, any other “principle of law” that was incorrectly applied by the Tribunal or the primary judge, or any failure of the requirements of procedural fairness by the primary judge. The fact that the applicant was self-represented before the primary judge is not a ground of appeal.

22    The applicant has not identified any error in the discretionary decision of the FCFCOA. The primary judge correctly stated the applicable principles and applied those principles. The critical factor was that the underlying application for judicial review of the Tribunal’s decision lacked any merit. The visa application failed to satisfy a condition for the grant of the visa.

23    In my view, the decision of the primary judge is not attended by any doubt and the application for leave to appeal should be dismissed with costs.

Conclusion

24    In conclusion, an order will be made dismissing the application pursuant to r 35.33 of the FCR.

25    The Minister sought an order for the payment of costs fixed in the amount of $5,000. That amount is less than the amount that would be allowed under r 40.43 of the FCR on a short form bill if the application had been dismissed before hearing (see item 15.1 of Schedule 3 to the FCR). In circumstances where the Minister was required to prepare an application book and written submissions and to attend the hearing today, in my view an order for costs in the amount of $5,000 is reasonable.

Associate:

Dated:    17 August 2026