BHATTI v Minister for Immigration

[2018] FCCA 1492

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHATTI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1492

Catchwords:
MIGRATION – Application for judicial review – failure to attend Tribunal hearing – content of medical certificate – no reasonable excuse – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B(1A)(b), 362C(5), 476

Migration Regulations 1994 (Cth), reg.572.223(1)(a)

First Applicant: AJAY BHATTI

Second Applicant: JASPREET KAUR PANDHER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 641 of 2016

Judgment of: Judge McNab

Hearing date: 17 April 2018

Date of Last Submission: 17 April 2018

Delivered at: Melbourne

Delivered on: 17 April 2018

REPRESENTATION

Applicants in person

Counsel for the Respondents: Ms Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed 30 March 2016 be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 641 of 2016

AJAY BHATTI

First Applicant

JASPREET KAUR PANDHER

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

(REVISED FROM TRANSCRIPT)

Introduction

1. By an application filed pursuant to s. 476 of the Migration Act 1958 (Cth) (‘the Act’) dated 18 August 2016, the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The decision of the Tribunal, dated 11 March 2016, affirmed a decision of a delegate of the First Respondent to refuse the Applicants Student (Temporary) (Class TU) Subclass 572 visas.

Background

1. The background is set out in accurate terms from [2] - [11] of the outline of submissions filed on behalf of the First Respondent, which are replicated exactly below (citations omitted):

2. The Applicants are citizens of India, and are husband and wife.  On 21 August 2014, the Applicants applied for Student (Temporary) (Class TU) Subclass 572 visas.

3. On 16 January 2015, a delegate of the Minister refused the application. The delegate was not satisfied that the first named Applicant was a genuine Applicant for entry and stay as a student and that he intended to stay in Australia temporarily. The delegate concluded that the Applicant did not meet the requirements of clause 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth).

4. On 4 February 2015, the Applicants applied to the Migration Review Tribunal (as it then was) for review of the delegate’s decision. The Migration Review Tribunal application form provided the following email address for correspondence with the Applicants; [email protected].

5. By letter dated 22 January 2016, emailed to the email address listed above, the AAT invited the Applicants to attend a hearing scheduled for 24 February 2016 at 1.30 pm. It provided details of the location of the hearing and stated:

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

6. On 23 February 2016, the day before the scheduled hearing, the Tribunal received an email from the Applicant requesting that the hearing be postponed because the Applicant had health issues and was unable to attend. A medical certificate dated 23 February 2016 was attached to the email, which stated that the Applicant had back pain, and was unfit for work/study from 23 February 2016 to 24 February 2016 inclusive.

7. On 23 February 2016, the Tribunal emailed the Applicant, attaching a letter advising that the Tribunal had agreed to reschedule the hearing to 29 February 2016 at 9.30 am in light of the Applicant’s request for a postponement. The letter also stated:

   Please note that no further postponement is anticipated on medical grounds unless you specifically provide a medical certificate indicating that you are unable to attend a Tribunal hearing, in person or by telephone, which is anticipated to be 40 to 60 minutes in duration, and indicating when you will be fit to do so. If you fail to attend the hearing on Monday 29 February 2016 without such evidence, the Tribunal may dismiss your application or make its decision on the available evidence.

8. By email dated 23 February 2016, the Applicants were formally invited to the rescheduled hearing for 29 February 2016 at 9.30 am.

9. On 28 February 2016, the day before the rescheduled hearing, the AAT received a second request that the hearing be postponed due to the Applicant’s health. The email attached a medical certificate dated 28 February 2016 which stated that the Applicant was receiving medical treatment and was unfit to continue his usual occupation from 28 February 2016 to 29 February 2016 inclusive.

10. On 29 February 2016, after the time of the rescheduled hearing, the Tribunal emailed the Applicant. The email attached a letter advising the Applicant that the second hearing postponement request had been declined. The reason provided was:

    The medical certificate did not contain the details set out in the Tribunal’s letter dated 23 February 2016, which the Tribunal indicated would be required in order to postpone a second hearing.

11. The Applicants failed to attend the scheduled hearing on 29 February 2016.

Consideration

1. The Applicants’ grounds of application are (reproduced exactly):

   1.jurisdictional error and lacked jurisdiction;

   2.error in interpretation of legislation; and

   3.natural justice.

2. The Tribunal have made a decision pursuant to s. 362B(1A)(b) of the Act to dismiss the application without any further consideration of the application or information before the Tribunal on 11 March 2016. The Tribunal was of the view that there was no satisfactory reason for non-appearance given by the Applicants. This was informed by the medical certificate given to the Tribunal by the First Applicant which did not conform to the requirements detailed in the letter from the Tribunal dates 23 February. The medical certificate failed to indicate that the First Applicant was unable to attend the Tribunal hearing in person or via telephone and when he would be fit to do so. The Tribunal indicated in the letter that if the Applicants failed to attend and there was no evidence given in the form specified that the Tribunal may dismiss the application. That is what the Tribunal did.

3. I can see no error in the approach taken by the Tribunal. I order that the application filed on 30 March 2016 be dismissed, and that the Applicants pay the First Respondent’s costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  7 June 2018