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

1. The appeal be dismissed pursuant to r 36.75(1) of the Federal Court Rules 2011.
2. The appellant pay the first respondent's costs fixed in the sum of $5,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 When the matter was called outside Court this morning, the appellant did not appear. Nor has he provided any written submissions in accordance with directions made for preparation of the appeal by the Registrar. 2 The parties were notified by email from the National Operations Team on 4 December 2019 that this appeal was fixed for hearing today at 10.15 am before the Full Court. 3 A Judge of the Court subsequently authorised the issue of a certificate under r 4.12 of the Federal Court Rules 2011, appointing pro bono counsel and solicitors for the appellant. However, when the pro bono solicitors sought to obtain instructions from the appellant, they were unable to receive any response to their repeated efforts to make contact. On 31 January 2020, the Court gave leave to them to withdraw from providing legal assistance. 4 In those circumstances, the Minister has sought that we exercise the power under r 36.75(1)(a)(i) that the appeal be dismissed because of the appellant's non-appearance. 5 In all of the circumstances, that appears to be the appropriate course. However, before parting with the matter, we would observe that, in the course of preparing to hear the appeal, an issue emerged, which we raised with counsel for the Minister today, as to whether the Administrative Appeals Tribunal properly conducted its function under s 348(1) of the Migration Act 1958 (Cth) to review the Minister's delegate's decision, originally, made on 28 March 2012 to refuse to grant the appellant a skilled - graduate (subclass 485) visa, that was renotified to the appellant on 22 August 2016. 6 In the course of giving his reasons for dismissing the application for Constitutional writ relief, the trial judge considered grounds 5 and 6 in the application but dismissed them: Singh v Minister for Immigration [2019] FCAA 2343 at [74]-[90]. Those grounds raised the questions as to whether the Tribunal had made an error of law by failing to consider, first, the appellant's application for review and, secondly, significant material before it. His Honour summarised the argument (at [82]) as being "that the Tribunal did not consider the skills assessment the applicant had submitted" in his application for the visa. 7 To our mind, that raised a real question, which was arguable, had the appellant appeared or given instructions to his pro bono counsel to make submissions on his behalf. It is not necessary for us to resolve that question for present purposes. However, we would not wish to be seen as endorsing the correctness of the trial judge's reasoning on those questions by dismissing the appeal under r 36.75. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Banks-Smith and Jackson.