FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2014] FCA 1079 Citation: Singh v Minister for Immigration and Border Protection [2014] FCA 1079 Appeal from: Application for extension of time: Singh v Minister for Immigration & Anor [2014] FCCA 1061 Parties: JASPREET SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: SAD 115 of 2014 Judge: BESANKO J Date of judgment: 9 October 2014 Legislation: Federal Circuit Court Rules 2001 (Cth) r 13.03C Federal Court of Australia Act 1976 (Cth) s 24 Federal Court Rules 2011 (Cth) rr 4.12, 35.14 Migration Act 1958 (Cth) s 362B Migration Regulations 1994 (Cth) cll 485.214, 485.221 Dates of hearing: 25 August 2014, 1, 26 September 2014 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 25 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr P d'Assumpcao Solicitor for the First Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 115 of 2014 BETWEEN: JASPREET SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE OF ORDER: 9 october 2014 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for an extension of time within which to seek leave to appeal dated 21 May 2014 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 115 of 2014 BETWEEN: JASPREET SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE: 9 october 2014 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application by Mr Jaspreet Singh for an extension of time within which to seek leave to appeal from an order made by the Federal Circuit Court of Australia on 23 April 2014. The application is brought pursuant to r 35.14 of the Federal Court Rules 2011 (Cth). 2 On 23 April 2014, the Federal Circuit Court made an order pursuant to r 13.03C of the Federal Circuit Court Rules 2001 (Cth) that the applicant's application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") be dismissed. The order was made on the basis that the applicant was absent from the hearing (Singh v Minister for Immigration & Anor [2014] FCCA 1061). The order is an interlocutory judgment and leave from this Court to appeal is required (Federal Court of Australia Act 1976 (Cth) s 24(1A)). The applicant was required to make his application for leave to appeal within 14 days of 23 April 2014 (i.e., by 7 May 2014). In fact, he made his application on 21 May 2014. 3 There were three hearings of the applicant's application before this Court, for reasons which I will explain. On each occasion, the applicant appeared in person. 4 The history of this matter is as follows. On 22 June 2011, the applicant lodged an application for a Skilled (Provisional) (Class VC) visa. On 17 May 2012, a delegate of the then Minister for Immigration and Citizenship refused the applicant's application. On 4 June 2012, the applicant applied for a review of the decision by the Tribunal. 5 The Tribunal invited the applicant to appear before it on 14 August 2013. The applicant did not appear on that date and, pursuant to s 362B(1) of the Migration Act 1958 (Cth), the Tribunal decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Tribunal decided to affirm the decision of the Minister's delegate. 6 The Tribunal said that the relevant subclass of the Skilled (Provisional) (Class VC) visa was subclass 485 and that the criteria for that subclass was set out in Part 485 of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"). The Tribunal said that to satisfy the primary criteria required for the grant of a subclass 485 visa, the applicant must have applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority (cl 485.214 of the Regulations), and that he had had his skills assessed by the relevant assessing authority as suitable for the nominated skilled occupation (cl 485.221 of the Regulations). 7 The Tribunal referred to the definitions in the Regulations of "skilled occupation" and "relevant assessing authority". The Tribunal noted that the applicant's nominated skilled occupation was a Graphic Pre-press Trades Worker and that Trades Recognition Australia ("TRA") was the relevant assessing authority. The Tribunal was not satisfied that, at the time of application, the applicant had applied for a skills assessment for the nominated occupation by the relevant assessing authority. The Tribunal was not satisfied that a TRA reference number on the applicant's visa application established that he had made such an application. It said (at [15]): The Tribunal notes that there is no payment confirmation in respect of the above TRA reference number or any other evidence to establish that the applicant applied for a relevant skills assessment. The applicant has not presented to the Tribunal to provide oral evidence in support of his application. Due to the lack of evidence, the Tribunal finds that at the time of visa application on 22 June 2011, the applicant had not applied for a skills assessment for the nominated skilled occupation by the relevant assessing authority and therefore does not satisfy the requirements of cl.485.214. 8 The Tribunal also said that it was not satisfied at the time of decision that the applicant's skills had been assessed as suitable for the nominated skilled occupation by the relevant assessing authority. The Tribunal said that, in those circumstances, the applicant did not satisfy the requirements of cl 485.221. 9 On 6 September 2013, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The ground of his application for judicial review was as follows: MRT refused my review application stating that I don't satisfy cl.485.214. Member asked himself question that at the time of application cl 485.214 states that applicant should have applied for skill assessment in the nominated occupation from "relevant assessing authority". Further it claimed that Tribunal has not received any proof that skills assessment has been applied. Tribunal noted that no payment confirmation receipt was provided with the application. Tribunal member in the judgment did mention that skills assessment number "TRA reference number: 11/999281867" is provided in paragraph 15. Tribunal member failed to put weight or understand that skills assessment reference number is provided only after application for skills assessment. This reference number itself proves that I have applied for skills assessment and I satisfy cl 485.214. Tribunal failed to recognise the proof already supplied to it hence member made "Jurdictional [sic] error" in his judgment. 10 The applicant's application was listed for hearing on 16 April 2014. The hearing date was fixed at a directions hearing before the District Registrar at which the applicant appeared in person. Shortly before the hearing on 16 April 2014, the applicant sent a sickness certificate to the Court. On that date, the Federal Circuit Court judge after speaking to the applicant who appeared by telephone, made an order adjourning the hearing to 23 April 2014. The applicant did not appear on 23 April 2014 and, as I have said, his application for judicial review was dismissed. 11 In his application for an extension of time and his draft notice of appeal, the applicant set out the grounds of his application in the following terms: 1. Federal Circuit court dismissed my case because I was sick and not able to attend hearing. MRT refused my review application stating that I don't satisfy cl.485.214. Member asked himself question that at the time of application cl 485.214 states that applicant should have applied for skill assessment in the nominated occupation from "relevant assessing authority". Further it claimed that Tribunal has not received any proof that skills assessment has been applied. Tribunal noted that no payment confirmation receipt was provided with the application. Tribunal member in the judgment did mention that skills assessment number "TRA reference number: 11/999281867" is provided in paragraph 15. Tribunal member failed to put weight or understand that skills assessment reference number is provided only after application for skills assessment. This reference number itself proves that I have applied for skills assessment and I satisfy cl 485.214. Tribunal failed to recognise the proof already supplied to it hence member made "Jurdictional [sic] error" in his judgment. 2. Federal Circuit Judge failed to put weight on fact that TRA is not a COMPETENT AUTHORITY for skills assessment. 12 The applicant's application for an extension of time was listed for hearing before me on 25 August 2014. The applicant did not provide an outline of submissions prior to the hearing. The first respondent did provide an outline of submissions prior to the hearing. 13 The applicant appeared before the Court on 25 August 2014 and he told me a number of things. He said that he had an agent who had all of his documents and that his agent had told him not to go to any of the hearings. The applicant named the agent. He said that he had paid monies to his agent, although for what precise purpose was never made clear. He said that the same thing had happened to two men who were with him in Court. The agent apparently assured the applicant that he would get his permanent residency. Counsel for the first respondent told me that this was the first time he had heard of such allegations. 14 I decided to adjourn the hearing to 1 September 2014 to give the applicant the opportunity to put forward evidence in proper form, that is, affidavits, as to the reasons he had not appeared at the hearings before the Federal Circuit Court and the Tribunal. I advised the applicant that if he did not appear on 1 September 2014 his application may be dismissed. 15 The applicant appeared on 1 September 2014. He had filed an affidavit and there were also affidavits from a Mr Verma and a Mr Bhanoria. The applicant's affidavit was brief. It read: 1. I came to Australia 2008 and after finish my studies Migration Agent mess up with my case. 2. He got all my documents and Passport. 16 The other affidavits were also very brief. 17 In addition to these documents, the applicant handed up a statutory declaration which he had completed and a statutory declaration which had been completed by Mr Verma. The applicant referred to the general advice he had received from the agent and the monies he had paid him. There was no mention of the hearings before the Tribunal and the Federal Circuit Court. Mr Verma's statutory declaration was to similar effect. 18 Counsel for the first respondent opposed the admission into evidence of the statutory declarations, and I declined to receive them. Not only are they very difficult to understand, but they do not raise any matter relevant to the issues before the Federal Circuit Court or indeed the Tribunal. 19 At the hearing on 1 September 2014, the applicant again said that the agent had advised him not to attend the hearings of the Tribunal. He accepted that there had been no assessment by a relevant assessing authority and said that that was the agent's fault. He said he was in the court building for the hearing before the Federal Circuit Court judge, but he did not appear because he was waiting downstairs for his lawyer (i.e., his migration agent). He did not issue his application for leave to appeal because he "trusted his lawyer like blind faith". Again, from the context, that is a reference to his migration agent. 20 With some hesitation, I considered it appropriate to refer the applicant for pro bono assistance. I was hesitant to take that course because there was not, at that point, any evidence before the Court (as distinct from statements from the bar table) in support of the applicant's allegation of fraud. That allegation was made very late in the piece. Furthermore, the applicant did not dispute that he did not have an assessment from the relevant assessing authority and he therefore faced an argument that to grant relief would be futile. Nevertheless, on 1 September 2014, I made the following orders: 1. The hearing be adjourned for further hearing to Friday, 26 September 2014 at 2:15pm. 2. Pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), the applicant be referred to a lawyer for legal assistance, that legal assistance being to obtain legal advice and to appear at the further hearing listed on 26 September 2014, if appropriate. 3. Any affidavit material of the applicant be filed and served by Friday, 19 September 2014. 4. Any affidavit material of the first respondent be filed and served by midday on Thursday, 25 September 2014. 5. The costs of today be reserved. 6. Liberty to apply. 21 A barrister of considerable experience in migration matters and in providing pro bono advice and assistance in migration matters was engaged. Ultimately, that barrister sought and was given permission by the Registrar to be released from any obligation to provide legal assistance to the applicant because the applicant failed to provide him with the necessary instructions and information to enable him to assist the applicant further. 22 When the hearing resumed on 26 September 2014, the applicant admitted that it was his fault and that he had been late in writing down "all the story" for the pro bono barrister. Nevertheless, he asked me to re-engage him. I am not prepared to do that. The pro bono scheme is a voluntary one and I have given the applicant a sufficient, perhaps generous, opportunity to present any further material. 23 Prior to the resumed hearing, the first respondent filed an affidavit of the first respondent's solicitor which attached two emails from the migration agent named by the applicant in which the agent states that the applicant's allegations against him are false and baseless. In the circumstances, I will not receive that affidavit into evidence. 24 I will proceed on the basis of the grounds stated in the application for an extension of time and the draft notice of appeal. The application for an extension of time should be refused. There is no explanation for the delay which I am prepared to accept. More importantly, and, in any event, there is no prospect of leave to appeal being granted. I do not accept the applicant's explanation for his failure to appear before the Federal Circuit Court. Further, even if I did, there is no prospect of the applicant's application for judicial review being successful because he has not identified any error, let alone jurisdictional error, in the decision of the Tribunal. 25 The application for an extension of time within which to seek leave to appeal dated 21 May 2014 is dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 9 October 2014