Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed as incompetent.
2. The appellant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The appellant, Mr Parminder Singh, is a citizen of India. He came to Australia in September 2007 on a Student (Subclass 573) visa. In October 2007, he was granted a further Student (Subclass 573) visa which ceased in August 2011. During two relatively short periods in 2011 and 2012 and two longer periods in 2012 and 2013 he was an unlawful non-citizen of Australia until being granted a bridging visa. His application for a protection visa was unsuccessful, as was his application for merits review of that decision by the former Refugee Review Tribunal. 2 In December 2014, Mr Singh applied for a Partner (Temporary) (Class UK) visa, upon the basis of relationship with his sponsor (now his wife), Ms Swastika Mohan, an Australian citizen. He also applied for a Partner (Residence) (Class BS) (Subclass 801) visa, but did not meet the criteria for that visa. At that time, the temporary partner visa had only a single subclass, being a Subclass 820 (Partner (Temporary)), the criteria for which were set out in the part of Schedule 2 of the Migration Regulations 1994 (Cth) dealing with Subclass 820 - Partner. 3 In August 2015, a delegate of the first respondent, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, refused to grant the partner visa on the basis that he did not satisfy cl 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations, which requires satisfaction of criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons not to apply those criteria. The delegate found that Mr Singh did not meet an aspect of criterion 3001 of holding a substantive visa within 28 days of applying for the partner visa and that there was no compelling reason not to apply that and the other two requirements. 4 In September 2015, Mr Singh applied for merits review of the delegate's decision by the then Migration Review Tribunal, now part of the Migration and Refugee Division of the second respondent, the Administrative Appeals Tribunal. An initial decision of the Tribunal made in December 2015 affirming the delegate's decision was set aside by consent in May 2016. A differently constituted Tribunal conducted a hearing in November 2016, at which it was again identified that the Mr Singh still did not hold a substantive visa at the time that he applied for the temporary partner visa. A late application to adjourn that hearing was refused, and Mr Singh and Ms Mohan attended and gave evidence without a migration agent being present. 5 On 17 November 2016, the Tribunal affirmed the delegate's decision, also finding that there was no compelling reason, either individually or cumulatively, not to apply the criterion 3001 requirement that Mr Singh hold a substantive visa within 28 days of applying for the temporary partner visa. The reasons that were unsuccessfully advanced for waiving the substantive visa requirement were: having a broken foot and therefore being unable to travel to India; asserted fears of returning to India; aspects of the appellant's relationship with Ms Mohan, including the duration of that relationship and the impact of separation; hardship to Ms Mohan; and his other ties to Australia. 6 On 12 December 2016, Mr Singh applied for judicial review of the Tribunal's decision by the Federal Circuit Court of Australia. On 6 April 2017, a Registrar of that Court made procedural orders which gave an opportunity to file an amended application, affidavit evidence and submissions. Mr Singh did not avail himself of that opportunity. 7 On 7 February 2019, the Federal Circuit Court fixed Mr Singh's judicial review application for hearing. That hearing took place on 10 December 2019. Mr Singh made submissions that apparently went to the merits of his visa application, rather than identifying any jurisdictional error of the kind necessary to obtain the relief sought. In the course of replying to submissions made by the Minister, Mr Singh sought an adjournment, without any prior notice. That application was refused upon the basis that he had been given ample opportunity to obtain legal representation if he was able to do so. 8 By an ex tempore judgment delivered on the same day as the hearing, 10 December 2019, the primary judge dismissed the application for judicial review with costs. The formal orders made were: 1. The name of the first respondent is changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs" and the Court dispenses with the need for the filing of any further document in that regard. 2. The oral application for an adjournment is refused. 3. The application is dismissed. 4. The applicant pay the first respondent's costs fixed in the amount of $7,206.00. 9 For completeness, it should be noted that the three grounds of review before the primary judge were always most unlikely to succeed, objecting to the "harsh approach" of the Tribunal in the approach taken to the visa application criteria, the Tribunal's decision being made in a "hurry" based on unspecified "incomplete and unrelated information", and a failure to provide "sufficient opportunity to provide the required information". His Honour found that no jurisdictional error had been established, but also that the asserted characterisation of what the Tribunal had done was not made out in any event. 10 On 6 January 2020, Mr Singh filed a notice of appeal in the following terms (verbatim): The Appellant appeals from all of the orders of the Federal Circuit Court of Australia given on 10 December 2019 at SYDNEY JUDGE STREET Grounds of appeal 1. Nine years of relationship emotional hardship difficulty on offshore application 2. Harsh approach and need legal representative to present my case in court 3. Refused to postpone date to get legal aid, need another chance to defend myself. Orders sought 1. I would like to request court to consider my application on behalf of our long term genuine relationship 2. I would like to get another chance to present myself with legal aid representative 11 It may be seen that the only aspect of the primary judge's decision that is apparently addressed by the notice of appeal is his Honour's refusal of Mr Singh's adjournment application. 12 On 20 January 2020, the Minister filed a notice of objection to competency in the following terms: The appellant seeks to bring an appeal from a decision of the Federal Circuit Court exercising original jurisdiction under the Migration Act 1958 (Cth) not to adjourn a hearing, contrary to s 24(1AA)(b)(ii) of the Federal Court of Australia Act 1976 (Cth). 13 The Minister's notice of objection to competency was set down for hearing today, 1 July 2020. The Minister filed written submissions, addressing that notice. Mr Singh filed written submissions which addressed his plight, and the plight of Ms Mohan, including the fact that she is some 31 weeks pregnant and the problems that will give rise to, and the risks to him in being made to return to India during the current COVID-19 pandemic, but Mr Singh's written submissions did not address the competency issue. I do not doubt that Mr Singh and Ms Mohan are distressed by their predicament. 14 As the Minister points out in his written submissions, while s 24 of the Federal Court of Australia Act 1976 (Cth) confers and circumscribes the appellate jurisdiction of this Court, and while an appeal from a judgment of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth may be brought as of right pursuant to s 24(1)(d), that is subject to subject to the exceptions in s 24(1AA) to (1D). The judgment of the primary judge was a judgment of a kind referred to in s 24(1)(d), being a judgment of the Federal Circuit Court exercising original jurisdiction that was not of a kind excluded by the balance of that provision. 15 Section 24(1AA) of the Federal Court of Australia Act 1976 (Cth) provides as follows: An appeal must not be brought from a judgment referred to in paragraph (1)(a), (d) or (e) if the judgment is: (a) a determination of an application of the kind mentioned in subsection 20(3); or (b) a decision to do, or not to do, any of the following: (i) join or remove a party; (ii) adjourn or expedite a hearing; (iii) vacate a hearing date. 16 The prohibition on bringing an appeal from the refusal by the primary judge to adjourn the judicial review hearing is unqualified. As Thawley J pointed out in Tran v Singh [2019] FCA 70: [37] There is no provision which qualifies s 24(1AA) by, for example, permitting an appeal by leave notwithstanding the prohibition contained in s 24(1AA). [38] Section 24(1A) contemplates that an appeal might be brought from an "interlocutory decision" if leave is given. Section 24(1A) must be read with s 24(1AA). Section 24(1AA) clearly evinces an intention that determinations or decisions of the kind there described not be the subject of appeal, with or without leave. That provision cannot be sidestepped on the basis that the determination or decision can be characterised as an "interlocutory decision" which would otherwise be amenable to appeal if leave were obtained in accordance with s 24(1A). Indeed, if s 24(1A) had that effect, s 24(1AA) would be rendered practically ineffective. 17 It follows that, as Mr Singh's appeal relevantly falls within s 24(1AA)(b)(ii), as identified in the Minister's notice of objection to competency, that appeal is incompetent and must be dismissed. There is no proper reason why costs should not follow the event. I certify that the preceding seventeen (17) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.