FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2015] FCA 487 Citation: Singh v Minister for Immigration and Border Protection [2015] FCA 487 Appeal from: Application for leave to appeal: Singh v Minister for Immigration [2015] FCCA 431 Parties: HARPREET SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND MIGRATION REVIEW TRIBUNAL File number: VID 82 of 2015 Judge: KENNY J Date of judgment: 19 May 2015 Catchwords: Application for leave to appeal judgment of Federal Circuit Court – Non-attendance at hearing – Application dismissed under r 35.33 of the Federal Court Rules 2011 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth) Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655 Date of hearing: 19 May 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 The Applicant did not appear Solicitor for the Respondent: M Ngo, Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 82 of 2015 BETWEEN: HARPREET SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: KENNY J DATE OF ORDER: 19 MAY 2015 WHERE MADE: MELBOURNE 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, fixed in the amount of $1,756. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 82 of 2015 BETWEEN: HARPREET SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent JUDGE: KENNY J DATE: 19 May 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application under r 35.12 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) for leave to appeal from a judgment of the Federal Circuit Court (Circuit Court) given on 16 February 2015: see Singh v Minister for Immigration [2015] FCCA 431 (CCJ). The Circuit Court judge dismissed an application for judicial review of a decision by the Migration Review Tribunal (Tribunal), affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister), refusing to grant the applicant an Employer Nomination (Residence) (Class BW) visa (subclass 857 visa). 2 Since the Circuit Court dismissed the applicant's judicial review application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the judgment of the Circuit Court is interlocutory in nature and the applicant requires leave to appeal: see Federal Circuit Court Rules, r 44.12(2); and Federal Court of Australia Act 1976 (Cth) (Federal Court Act), ss 24(1)(d) and (1A). In order to obtain leave, the applicant must show that the case is an appropriate one for a grant of leave; that is, he must show that in all the circumstances the decision is attended with sufficient doubt to warrant reconsideration and that substantial injustice would result if the decision was left to stand assuming it to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 3 When the matter was called on for hearing, the applicant was not present and did not appear. The first respondent applied for an order under r 35.33 of the Federal Court Rules that the application for leave be dismissed. Rule 35.33(1) relevantly provides: If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that: (a) if the absent party is the applicant: (i) the application be dismissed; … As already stated, this is an application under rule 35.12. 4 In determining to proceed in the applicant's absence as r 35.33 contemplates, I have had regard to a number of circumstances, including that, on 4 March 2015, the Court's registry sent a letter and a copy of the Court's directions to the applicant, by post and email, by which he was informed that he was required to file submissions 10 business days before the hearing. On 26 March 2015, the Court's registry sent a further letter to the applicant, again by post and email, informing him of the date, time and place of the hearing. On 31 March 2015, the first respondent's solicitors sent a letter to the applicant by post, enclosing a copy of the Court's directions, advising him of the time, date and place of the hearing, and confirming that he was required to file submissions. Subsequently, on 7 May 2015, Chambers staff contacted the applicant by telephone and email confirming that he knew: (a) there was a need to file submissions; (b) he was in breach of the Court's directions in this regard; and (c) the date and time of the hearing. A further email was sent by Chambers staff to the applicant on 11 May 2015, noting that the applicant had not filed submissions, and referring him, amongst other provisions, to the terms of 35.33 of the Federal Court Rules. Further, save for filing an affidavit in accordance with r 35.12(2)(c), the applicant has not otherwise complied with r 35.12(2). In particular, he has not filed a draft notice of appeal. Nor has he filed written submissions in support of his application. 5 In the circumstances disclosed, I would dismiss the application for leave to appeal pursuant to r 35.33(1) of the Federal Court Rules. 6 I am fortified to do so because, for the reasons set out below, the decision is not apparently attended by sufficient doubt to warrant the grant of leave to appeal. application for leave to appeal 7 Whilst there is no draft notice of appeal, the application for leave and the applicant's affidavit of 26 February 2015 list the following grounds: 1. The applicant visa 857 subclass was REFUSED by DIBP on 1st of October 2013 on the basis of applicant has not satisfied the clause 857.221, at the time of the application applicant has satisfied the nomination application criterion, according to the nomination application has been made by employer which has made me to apply for 857 application onshore in Australia. 2. However, Nominated occupation was cook which was strongly related from his overseas education completed from Australia. 3. Applicant has been in Australia for five years and studied for three years, in Australia working for six years as part time and full time, on and off with Australian employer in English speaking atmosphere. Understanding the Australian culture and developed culture he could easily justify that his application made in Australia with Australia genuinely and authentically, but unfortunate thing is employer has some issues beyond nomination went off. 4. One on other applicant is having situation where he could not understand tribunals or Federal circuit court decisions. However, Department has sent a letter to applicant regarding Refusal of visa through the migration agent; according to that letter applicant has lodged the review at Migration review Tribunal. Even applicant is intent to do further submission in regarding Educational documents and other submissions. Here, there is no mistake has been found from Federal circuit court, here the only problem is "Migration Review Tribunal has taken the decision on the different aspect and DIBP has taken the decision on different aspect". 5. Therefore, applicant comes to federal circuit court for legitimate decision but honourable judge Whelan has been misguided by solicitors of DIBP, federal circuit court application under the judicial Review has been made on 09th May 2014, due to his financial Hardship he could [not] hire a solicitor or lawyer to review the application in Federal circuit court. 6. In the Federal Circuit court decision showing that on 16th February 2015 Justice Whelan made a decision by relying on other case law regulations which are not relevant to my case, interestingly Decision has been made by Delegate had to be reviewed by Migration review tribunal. 7. Migration review tribunal has raised new issue and tribunal has made its own decision which is against the Migration act 1958, I can say Migration Review tribunal misused the power, my case must have been sent to Delegate that if delegate refuses the 857 visa again on the basis of my approved nomination wasn't available at the time of the decision there should be a room to organise one more nomination from other employer at least because of my application subclass falls in to the criterion that new nomination could be lodged and linked with my existed application that time but I did not have an opportunity by immigration officer either through email or orally. 8. The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal. According to letter received by mail applicant has lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute? 9. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at Migration review tribunal if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection). 10. Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even looked at applicant claims as there was big barrier "Judicial review has been made which has not been proved by applicant to make it Valid application", but he has exceptional circumstance beyond his control. (Errors in original) 8 The 26 February 2015 affidavit also contains other statements apparently in support of the leave application: 1. Application relies on Migration act 1958, according to Migration Regulations 1994, For application made at the time of the application require that at the time of visa application the applicant have nomination lodged and Time of the decision nomination need to be approved. 2. So, I was able to find another employer and that employer would have lodged other nomination if immigration had notified me. 3. But applicant argument is I have been a victim because of immigration delay as well as employer negligence. In this affidavit, the applicant affirmed that he was "not happy" with either the Tribunal's decision or that of the Circuit Court. 9 Nothing in the documents that the applicant has filed discloses arguable jurisdictional error in the Tribunal's decision, which was undiscerned by the Circuit Court. 10 Further, as reference to the Tribunal's reasons for decision and the reasons for judgment of the Circuit Court indicate, there appears to be no jurisdictional error involved in the Tribunal's decision and no discernible error in the reasons for judgment of the Circuit Court. tribunal's decision 11 The Tribunal's reasons for decision record that the applicant applied to the Department of Immigration and Border Protection (Department) for the subclass 857 visa on 27 June 2012 and that he nominated his proposed employment of "cook" as an "approved appointment" under reg 5.19 of the Migration Regulations 1994 (Cth) (Migration Regulations) by AAJ India Pty Ltd (trading as 'Souvlaki on Charles, Launceston'). After a Ministerial delegate refused the applicant's subclass 857 visa application, the applicant applied to the Tribunal for review. 12 The issue before the Tribunal was whether the appointment mentioned in cl 857.213(a) of Sch 2 to the Migration Regulations had been approved for the purpose of cl 857.221 as they stood at the relevant time. Clause 857.213(a) required that: the applicant has been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer[.] 13 Regulation 5.19(1) of the Migration Regulations provides that: An employer may apply to the Minister for approval of a nominated position as an approved appointment. Regulation 5.19(4) sets forth when the employer nomination meets its requirements. 14 Clause 857.221 of Sch 2 to the Migration Regulations, headed "Criteria to be satisfied at time of decision" relevantly stated: The appointment mentioned in paragraph 857.213(a): (a) has been approved; and (b) has not been withdrawn; and (c) continues to satisfy the criteria for approval; and (d) is still available to the applicant. 15 The Tribunal noted that the delegate decided not to grant the applicant a subclass 857 visa because a nomination by AAJ India Pty Ltd relating to the applicant had been refused on 20 September 2013 and the applicant did not therefore meet the criteria in cl 857.221. The Tribunal also noted that the Department's Integrated Client Service Environment (ICSE) database did not record any approval for a nomination by AAJ India Pty Ltd and that there was no information to show that AAJ India Pty Ltd had at any stage sought review of the decision to refuse the company's nomination. As the Tribunal observed, this was consistent with the applicant's own evidence at the hearing because the applicant stated that the owner of AAJ India Pty Ltd had asked him to go to Tasmania to work in his business, but that the owner had not done what he was supposed to do, "including in relation to paying his tax". The applicant stated that the owner was overseas from March to August 2013, and that was why he did not apply to the Tribunal to review the decision to refuse to approve the nomination. 16 The Tribunal found that, as the cl 857.213(a) nomination by AAJ India Pty Ltd had not been approved, the applicant could not satisfy cl 857.221. The Tribunal noted that the applicant had not made any claims in relation to the other visa in the class. Since the applicant did not meet the criteria for a subclass 857 visa, the Tribunal affirmed the decision under review. circuit court's decision 17 The applicant sought judicial review of the Tribunal's decision in the Circuit Court. His application contained the following grounds or statements: 1. Tribunal member did not even understand my situation, there is no procedural fairness[.] 2. That was misunderstanding in between immigration department and employer in regarding nomination[.] 3. When I have submitted all documents with my application there was no response, suddenly after couple of months they have refused visa, this manner is conspicuous, led to possibility of Admiration error immigration end. 4. Eventually my case has been refused. 5. Just I have been bounced in between DIBP and MRT for year and Tribunal opens my file refused[.] 6. I wasn't even given some chance to make some submissions in regarding my situation how I wasn't able to get all evidence from employer about the Nomination. 7. I have felt this is unfair and not legitimate to me as I have lost the future in Australia as well as time and money. 8. I hope Federal circuit court has got Jurisdiction in this matter. 9. Or else Apex court might have Jurisdiction in my matter. (Errors in original) 18 In reasons for judgment, the Circuit Court judge stated that "the essence" of the applicant's grounds of judicial review was "that he was denied procedural fairness because of a misunderstanding between the Department and his employer sponsor" (CCJ, [14]). Her Honour further stated that the applicant claimed "he was not given an opportunity to make submissions regarding his situation with respect to how he was unable to obtain evidence about the nomination" (CCJ, [14]). Her Honour observed that the applicant "appear[ed] to misconstrue the role of the Tribunal" as it was "bound to apply the relevant regulations", which in this case required the applicant to have been nominated by an employer for an approved appointment (CCJ, [15]). Her Honour held that the applicant could not meet the relevant criteria because the appointment by AAJ India Pty Ltd had not been approved. Her Honour also held that there was no lack of procedural fairness since the applicant "was informed by letter what the issue was on 13 March 2014 and was invited to appeal before the Tribunal" (CCJ, [16]). Being satisfied that the application "raise[d] no arguable case for the relief sought", her Honour dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules. Discussion 19 Nothing in the application or affidavit filed by the applicant or in any other material before the Court discloses arguable appealable error in the judgment of the Circuit Court. 20 The applicant himself appears to have accepted that, by the time of the delegate's decision, AAJ India Pty Ltd's employer nomination had been refused. In this circumstance the applicant was unable to satisfy the criterion in cl 857.221 of Sch 2 to the Migration Regulations. Further, there is no basis shown for any claim that the applicant was denied procedural fairness before the Tribunal. He was given adequate notice of the issue that would be dealt with by the Tribunal before a hearing and he subsequently attended the hearing where he was provided with an opportunity to make out his case as to why his visa application should not be refused. disposition 21 For the reasons stated, I would dismiss the application for leave to appeal pursuant to r 35.33(1) of the Federal Court Rules and, as already stated, I am confirmed in this conclusion by the fact that the decision of the Circuit Court is not apparently attended by sufficient doubt to justify the grant of leave to appeal. In dismissing the application, I have also had regard to s 37M of the Federal Court Act, which requires that the powers conferred on the Court be exercised in a way that best promotes the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 19 May 2015