Singh v Minister for Immigration, Citizenship and Multicultural Affairs

1. The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs".
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs of the appeal fixed in the sum of $4000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SARAH C DERRINGTON J: 1 Mr Singh appeals from a judgment of the Federal Circuit Court (FCC), as it was then known, delivered on 10 March 2021. The primary judge dismissed Mr Singh's application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant Mr Singh a Skilled (Residence) (Class VB) subclass 886 visa. The Minister's portfolio name is now the "Minister for Immigration, Citizenship and Multicultural Affairs". The Minister's application for that name to be substituted is granted. 2 By documents sent to the Court overnight, Mr Singh applied for an adjournment of this hearing on the basis that he is unable to apply for a visa based on the currency of his Indian passport. He also asserted that he was unable to attend Court via video link, as had been arranged for him, because of the time zone difference between India and Melbourne. 3 Mr Singh had previously contacted the Court by email on 8 and 11 November 2022 seeking to have the matter adjourned until he could obtain a tourist visa to enter Australia and prosecute his appeal. 4 Mr Sing was notified on 16 August 2022 that the matter was being considered for listing in the week between 5-8 December 2022. Mr Singh has been on notice since 12 September 2022 that the matter was listed for hearing today. Despite that, Mr Singh has not filed any formal application for an adjournment, nor any affidavit in support of his application for an adjournment. Further, Mr Singh was ordered by directions of Registrar McCormick, dated 8 April 2021, to provide written submissions for this hearing 10 business days before today. Mr Singh has not done so. In circumstances where his appeal has been on foot since 31 March 2021 and in the absence of any proper application or explanation for an adjournment, I am not prepared to grant one. 5 Mr Singh raises essentially three grounds: (1) His visa application was unfairly determined by each of the delegate, the Tribunal and the FCC because it was contrary to natural justice; (2) The Tribunal and the FCC made a decision on "mere suspicion without any evidence or material of probative value" and Mr K's evidence from Proceeding 1215933 (merits review) was used in his own review; (3) The use of the words "may be" and "cast doubt" and "real suspicions" "stand nowhere in a real verdict or justice". 6 The background to the matter is set out in detail in the reasons of the primary judge: Singh v Minister for Immigration and Border Protection [2021] FCCA 416 at [3]-[39]. The relevant facts are also set out in the court book filed on 11 October 2017. 7 Mr Singh was represented by senior counsel in the proceedings in the FCC. Before the primary judge, two grounds of review were ultimately pressed. The first contended that the Tribunal failed to carry out its review reasonably, or in accordance with Part 5 of the Migration Act 1958 (Cth) in forming a reasonable suspicion that the document [a skills assessment] was "bogus" for PIC 4020 [Public Interest Criterion 4020 of Sch 4 to the Migration Regulations 1994 (Cth)] purposes and considering the definition of "bogus document" in s 5 of the Migration Act. It was contended that instead of carrying out the review in accordance with Pt 5, including the power to get information under s 359, summon a person to give evidence under s 363(3), and provide a meaningful hearing under s 360, the Tribunal transposed witness evidence from another proceeding and abdicated its role of weighing evidence of conflicting witnesses with an open mind. 8 The primary judge held that the Tribunal did not contravene s 359 of the Migration Act and that the Tribunal's approach of relying on the decision record in Proceeding 1219533 was one that was reasonable and open to it: Singh at [68]-[69]. In dismissing this ground of review, the primary judge held, at [69]: It was open to the Tribunal to, among other things, reach a conclusion that there was a reasonable suspicion that the Applicant's work reference was a bogus document. While the Tribunal had regard to earlier findings about Mr K's evidence, it also considered that evidence in the context of the case before it, including by considering evidence given by the Applicant. The Tribunal did not abdicate its role in weighing the evidence nor did it conduct the review in a manner that does not accord with Part 5 of the Act. 9 The second ground of review agitated before the primary judge was that the Tribunal failed to provide clear particulars of the evidence of Mr K in breach of s 359A. It was contended that without giving the applicant the context of what Mr K might say, it was unreasonable for the Tribunal to use the evidence as it did. It was submitted that, having regard to the extract of the s 359A notice, as set out at in Singh at [71], and the evidence given by Mr K in Proceeding 1215933, s 359A required the Tribunal to convey that the evidence revealed Mr K's memory, with respect to timeframes, was "all over the place". 10 Having referred to the principles relevant to s 359A as set out by O'Callaghan J in Nguyen v Minister for Immigration and Border Protection [2019] FCA 159 at [28], and adopting those principles, the primary judge dismissed the second ground of review: Singh at [73] and [78]. The primary judge held that the Tribunal did not fail to provide clear particulars as required by s 359A, nor did the Tribunal act unreasonably in its approach: Singh at [77]. In reaching this conclusion, the primary judge referred to his earlier findings about the nature of Mr K's evidence, as being clear and not imperfect, and observed that there was no material difference between what was contained in the s 359A notice and Mr K's evidence: Singh at [74]. The primary judge also observed that Mr Singh had been on notice of Mr K's evidence for "a very long time" and had made detailed submissions about that evidence in the lead up to the hearing. Further, Mr Singh had the opportunity to answer questions by the Tribunal at the interview about Mr K's evidence and to request the Tribunal to summon Mr K: Singh at [75]. 11 As is apparent from the grounds relied on below, Mr Singh seeks to rely on grounds of review that were not raised before the primary judge and which, in any event, fail to identify any material errors of fact, law or discretion on the part of the primary judge. Mr Singh has said in oral submissions that he has no further documents to put before the Court - he has submitted everything that he has. 12 To the extent that the gravamen of Mr Singh's complaint is that he was denied procedural fairness, there is no basis for it. 13 In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212, the Chief Justice described procedural fairness in this way at [7]: Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at 56-57 [26]; and SZRUI at [5]. 14 Similarly, as was said by the Full Court in Sneddon v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; 230 FCR 82 at [177] per Middleton and Wigney JJ, and cited with concordance in Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177 at [38] per Flick, Griffiths and Derrington JJ: There are no concrete rules as to what procedures a decision-maker must employ to provide procedural fairness in any particular case. What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts, including any statutory or regulatory requirements or considerations: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26], [29]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (Saeed) at [19]-[20]; SZQHH at [26]; see too Re Minster for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 at [30]-[32]. 15 In the present case, it is relevant to the contextual inquiry that Mr Singh was competently represented before the FCC by senior counsel. To the extent that ground one of his appeal to this Court alleges a breach of natural justice, that ground must fail. Ultimately, the touchstone as to whether natural justice or procedural fairness has been afforded is 'practical injustice': NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [4] per Allsop CJ and Katzmann J (citations omitted). Mr Singh was afforded every opportunity to out his case to the FCC. No error on the part of the primary judge is established. 16 Grounds two and three of his appeal to this Court must also fail. They are no more than invitation to rehear the evidence that was before the Tribunal, inviting impermissible merits review. Grounds two and three are without merit. 17 For these reasons, the Court orders that: (1) The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs". (2) The appeal be dismissed. (3) The appellant pay the first respondent's costs of the appeal fixed in the sum of $4000. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.