Brar v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1351
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1351
File number(s): MLG 2823 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 6 December 2024 Catchwords: MIGRATION – Registrar review application – where Applicant has requested multiple adjournments – whether a medical certificate provided by the Applicant is in accordance with Court orders – whether the matter should be summarily dismissed for non-compliance with orders – where Applicant’s case is hopeless in any event – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 254
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 13.05
Migration Regulations 1994 (Cth) rr.572.223
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 2 December 2024 Place: Melbourne The Applicant: Appearing in person Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG2823 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUKHPREET SINGH BRAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent to the proceedings be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the Second Respondent to the proceedings be amended to “Administrative Review Tribunal”.
3.The application for review of the Registrar’s decision made on 17 April 2024 which was accepted for filing on 10 June 2024 is dismissed.
4.The Applicant pay the First Respondent’s costs fixed in the sum of $3,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
These proceedings relate to whether an application for review of a Registrar’s decision to summarily dismiss an application for judicial review of an administrative decision to refuse a student visa be dismissed on default of the applicant.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
Mr Sukhpreet Singh Brar (Applicant) is a citizen of India who applied for a Student (Class TU) (Subclass 572) visa on 28 August 2015, on the basis of studying a Diploma of Automotive Management and a Diploma of Accounting.
On 16 October 2015, a delegate of the First Respondent refused to grant the Applicant a student visa on the basis that the Applicant did not satisfy the genuine temporary entrant student criteria for the grant of the visa (delegate’s decision). In summary, the delegate was not satisfied that the Applicant intended to stay temporarily in Australia and therefore the Applicant did not meet cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 2 November 2015, the Applicant applied to the then Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.
On 28 September 2017, the Applicant appeared before the Tribunal at hearing with the assistance of his then representative and an interpreter.
On 25 May 2018, the Applicant (via his then representative) was invited to attend a further hearing which was scheduled for 20 June 2018.
On 20 June 2018, neither the Applicant nor his representative attended the hearing and the Tribunal subsequently dismissed the application for non-appearance.
On 21 June 2018, the Tribunal sent the Applicant (via his then representative) an email which attached a document notifying the Applicant of its decision to dismiss the Applicant’s application for review (the non-appearance decision). The reasons given by the Tribunal for the non-appearance decision dated 20 June 2018 were brief:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 20 June 2018 at 10am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender.
3. No satisfactory reason for the non-appearance has been given.
4. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 5 July 2018, the Applicant (via his then representative) applied to the Tribunal for reinstatement on the basis that the Applicant had not received the hearing invitation because he was overseas at the time and not contactable.
On 16 August 2018, the Applicant appeared before the Tribunal without a representative. On that day, the Tribunal delivered an oral decision by which it affirmed the delegate’s decision to refuse the Applicant a student visa (Tribunal Confirmation Decision).
On 27 August 2018 the Tribunal issued written reasons for the Tribunal Confirmation Decision of 16 August 2018, extracted in full below:
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 October 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).
2. At the hearing on 16 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
3. MEMBER: To be eligible for a grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.
4. You applied for the student visa back in August 2015. Your application was refused in October 2015 because the delegate was not satisfied that you were a genuine temporary entrant and therefore found you did not satisfy clause 572.223.
5. You applied for review of that decision and you included a copy of the primary decision with your application.
6. This is the second time you have appeared before the Tribunal you had a previous hearing in September last year. A decision was not made following that hearing. And so to ensure that a decision was made considering your current circumstances, you were invited back to the hearing today. I have reviewed the previous hearing.
7. To satisfy clause 572.223 an applicant must be both a genuine student and a genuine temporary entrant.
8. The role of the Tribunal is to take a fresh look at your application and to make a new decision. And so let us look at your application and consider does this man satisfy the requirements for the grant of a student visa.
9. Now, in the primary decision your application was was refused because the delegate was not satisfied you were a genuine temporary entrant. But you have today told the Tribunal you have finished your studies, you have no intention of doing any further studies and, in fact, it is your intention to return back home and you do not hold a current offer of enrolment and you are not currently enrolled.
10. Now, as was explained in the letter that we sent with the hearing invitation we said: please provide us with evidence that you are currently enrolled. And we said please provide a copy of your current certificate of enrolment, as is required for the grant of a student visa.
11. It is only when someone is enrolled is it possible to work out a range of other evidence required such as how much money do we need, which comprises course fees for the intended studies, living expenses for the duration of the course and how long do we have to have overseas student health cover, which is required for the duration of the intended stay et cetera, et cetera.
12. So unless we have an enrolment we cannot work out any of those things. And so a current enrolment is a prerequisite for the grant of a visa.
13. As you are not currently enrolled, do not hold a current offer of enrolment, you do not satisfy clause 572.222, which as I said, is a prerequisite for the grant of a visa.
14. As you do not meet clause 572.222 it is therefore the decision of the this Tribunal - I do not intend going on to consider whether you are a genuine temporary entrant because you do not satisfy 572.222 and it is therefore the decision of this Tribunal to affirm the decision under review.
DECISION
15. The Tribunal affirms the decision under review.
(sic.)
On 20 September 2018, the Applicant filed an application for judicial review (substantive application) along with a supporting affidavit of the Applicant. On the face of the application, the decision sought to be reviewed was the Tribunal’s Confirmation Decision.
The First Respondent then filed:
(a)on 26 November 2018, a response;
(b)on 27 May 2020, a Court Book;
(c)on 18 December 2023, an affidavit of service filed by a solicitor for the First Respondent;
(d)on 21 December 2023, an amended response which sought summary dismissal of the Applicant’s judicial review application pursuant to r.13.13 on account of no reasonable prospects of success;
(e)on 3 April 2024, an outline of submission for the First Respondent and a supplementary Court Book; and
(f)on 10 April 2024, an affidavit of service filed by a solicitor for the First Respondent.
On 17 April 2024, the Applicant’s substantive application for judicial review filed 20 September 2018 was summarily dismissed by a Judicial Registrar of this Court (Registrar’s Decision), exercising their delegated power pursuant to s.254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
The present application for review of the Registrar’s Decision was not attempted to be lodged until 10 May 2024 and not accepted for filing until 10 June 2024 (Registrar review application). The Registrar review application did not seek orders or otherwise make an application for an extension of the time within which the application was to be made.
On 17 June 2024, the Registrar review application was listed for hearing on 10 July 2024 and the Court made orders which directed the Applicant to file and serve an outline of written submissions and any additional evidence on which they sought to rely by 4.00pm on 26 June 2024. The orders of 17 June 2024 included the following notation:
B. In the event of any non-compliance with these orders or failure to attend the hearing, the Court may dismiss the application for default or determine the application on what is before the Court pursuant to rr.13.05 and/or 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The Applicant did not file and serve any further materials in accordance with the 17 June 2024 orders or at all in respect of the Registrar review application.
On 4 and 5 July 2024 respectively, the First Respondent filed written submissions and an affidavit of service as directed.
At 10.50am on 9 July 2024, the Court’s migration team received email correspondence from the Applicant (using the same email address as listed on the substantive application) which was headed by the subject line “VERY URGENT - Request for Adjournment - [File No: MLG2823/2018]” and is extracted in full below:
Dear Sir or Madam,
[File No: MLG2823/2018]
I kindly request you for an adjournment of my hearing in the above-mentioned case, currently scheduled for 10 July 2024. Unfortunately, I am seriously unwell and to an extent that my friend is taking me to hospital. I have been looking forward to this hearing so that I could get a fair hearing.
I have been feeling a bit unwell since yesterday and I thought I would be able to recover, however my condition deteriorated overnight and I’m completely down today.
My friend will be taking me to Hospital and I will provide the medical certificate as soon as I get it. I don’t think I will be able to attend the hearing effectively.
I understand the inconvenience this may cause. I apologise for any disruption to the court's schedule.
I kindly request for a rescheduled hearing date and would be happy to work with the opposing party and the court to find a mutually agreeable date.
As I’m unwell, I would like to authorise my friend Sarath Nair [holder of Victorian Licence No: [redacted]] to represent me and liaise with the court on my behalf for this case. Sarath Nair’s email address is [redacted] and mobile number is [redacted].
Thank you for your time and consideration.
Sincerely,
Sukhpreet Brar
[phone number redacted].
At 3.26pm on 9 July 2024, the Applicant was sent the following response from the Court’s migration team:
Dear Applicant
Thank you for your email. Any party seeking an adjournment is required to file an application in a proceeding (supported by an accompanying affidavit) which explains the reasons why they are unfit to attend or participate in the Final Hearing. Any medical certification must be attached to the affidavit.
Kind regards,
(Bold added to signify hyperlinks to the Court’s website)
At 3.03pm on 10 July 2024, the matter proceeded to final hearing whereby there was no appearance for or by the Applicant and the First Respondent was represented by a solicitor advocate. At this hearing, the representative for the First Respondent told the Court that at approximately 12.50pm she had been copied on correspondence from the Applicant which was sent to an incorrect email address for the Court which included annexures that were described as: one document labelled “Application in a Proceeding”, one being a medical certificate (which bore the date 10 July 2024) and the other not being explained to the Court. Those documents were never received by the Court via the approved method of filing nor have they been sent to chambers. In any event the representative for the First Respondent informed the Court that, had the adjournment request been properly made, it would not have been opposed. Accordingly, the matter was adjourned for final hearing at 2.00 pm on 27 August 2024. Importantly, the following notation was included in the orders of 10 July 2024:
A. There will be no further adjournment requests granted on account of medical grounds or otherwise other than in exceptional circumstances. Such application for adjournment must be filed with the Court in the Commonwealth Court’s Portal and served on the other side, with evidence that explains the reasons why the Applicant is not able to attend a hearing before the Court and the nature of any incapacity.
On 27 August 2024, the matter again proceeded to hearing. On that occasion, the Applicant appeared in person and the First Respondent was represented by a solicitor advocate. At the outset of the hearing, the Applicant informed the Court that he had been tested positive for COVID-19. The First Respondent did not consent to a further adjournment. However, in light of the Applicant’s alleged condition and as an unrepresented litigant, a further adjournment was granted and the following orders were made:
1. By 4.00 pm on 3 September 2024, the Applicant may:
a. Elect to seek an adjournment of the final hearing of this matter by filing and serving an affidavit which annexes medical evidence to satisfy the Court of the Applicant’s reason for an adjournment (in the form of proof that a registered Australian health practitioner has tested the Applicant to be positive for COVID-19 as of 27 August 2024).
OR
b. Inform the Court by way of an email to chambers that he wishes for the matter to be determined “on the papers”, meaning on the materials that are already before the Court, which are:
• Originating application filed by the Applicant on 20 September 2018;
• Affidavit deposed and filed by the Applicant on 20 September 2018;
• Response filed by the First Respondent on 26 November 2018;
• Court book filed by the First Respondent on 27 May 2020;
• Affidavit of a solicitor for the First Respondent filed on 18 December 2023;
• Amended Response filed by the First Respondent on 21 December 2023;
• Outline of submissions filed by the First respondent on 3 April 2024;
• Court book filed by the First Respondent on 3 April 2024;
• Affidavit of service filed by a solicitor for the First Respondent on 10 April 2024;
• Application for review of the Registrar’s decision lodged by the Applicant on 10 May 2024;
• List of authorities filed by the First Respondent on 3 July 2024;
• Outline of submissions filed by the First Respondent on 3 July 2024; and
• Affidavit of service filed by a solicitor for the First Respondent on 5 July 2024.
AND THE COURT NOTES THAT:
A. A failure to comply with either Order 1(a) or (b) herein will result in the matter being dismissed pursuant to rule 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
On 2 September 2024, the Applicant sent an email to chambers which read as follows:
Dear Officer
Please find the attached medical certificate as requested.
The health clinic did not allow me for a face to face appointment as I had COVID. I had a tele appointment and he provided this medical certificate.
If you require any further information please contact the Dr chigozie Agbarakwe
at Totalcare Medical Centre 03 8685 8446.
Please let me know if you require any further information.
Regards,
Sukhpreet BrarThe Email also attached a medical certificate (Medical Certificate) which is extracted in full below:
TOTALCARE MEDICAL CENTRE
[Address and contact information omitted]
Dr Chigozie Agbarakwe, MBBS, MD, FRACGP, AMC. Provider #213337WT
Date: 28/8/2024
CERTIFICATE OF INCAPACITY
This is to certify that Mr Sulhpreet Brar is receiving treatment for a medical condition and will be unable to continue his/her usual occupation from Wednesday, 28 August 2024 to Friday, 30 August 2024 inclusive.
This certificate was completed on 28/8/2024
Dr Chigozie Agbarakwe
Also on 2 September 2024, in response to guidance from chambers as to the Court’s communication protocol, the email of same date was resent with the inclusion of the First Respondent.
On 7 October 2024, in response to an invitation to respond to the Applicant’s email of 2 September 2024, the representative for the First Respondent confirmed that the First Respondent sought that the Registrar review application be dismissed pursuant to r.13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) by reason of the Applicant’s failure to comply with the Court’s orders of 27 August 2024 wherein the nature of the alleged non-compliance was detailed.
On 10 October 2024, following an invitation to respond to the First Respondent’s email of 7 October 2027, the Applicant wrote to the Court as follows:
Dear Honorable Judge Mansini
Re: MLG2823/2018 SUKHPREET SINGH BRAR v MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS & ANOR
I am writing to respectfully request clarification regarding the doctor's certificate that was submitted as evidence in my case. I understand that the certificate may have been deemed insufficient due to its brevity or lack of detail.
I would like to explain that the doctor's consultation was conducted via teleconference due to Covid. This mode of consultation can sometimes limit the depth of information that can be included in a certificate. I was not allowed to visit the clinic face to face due to Covid.
I had spoken to the Health Clinic and they had advised that this is the standard medical certificate which doctors provide for teleconsultation and also advised me that if required the court may contact them directly for more clarification.
I am prepared to speak to the doctor again and provide additional information or documentation to support the doctor's assessment. This could include:
A detailed summary of the teleconsultation, including the symptoms discussed, diagnosis, and treatment plan.
Copies of any medical records or test results that were reviewed during the consultation.
A statement from the doctor providing further context or clarification regarding the certificate.
I believe that with this additional information, the court will have a more complete understanding of my medical condition and the basis for the doctor's assessment.
I humbly request you to give me a fair chance to present my case and allow me to come for the hearing to explain my side.
Thank you for your time and consideration.
(sic.)
On 12 November 2024, the matter was listed for hearing to determine whether the Registrar’s review application should be dismissed on the basis of non-compliance with the Court’s orders of 27 August 2024 (Dismissal Hearing). Parties were also invited to file and serve any evidence and submissions on the matter. In response to those orders the First Respondent filed written submissions on 25 November 2024.
The Applicant attended the Dismissal Hearing on 2 December 2024 and sought assistance of a friend who accompanied him at the bar table. The Applicant did not require an interpreter. The First Respondent was represented by a solicitor advocate. Both parties made oral submissions in support of their respective cases.
CONSIDERATION
I turn to consider the First Respondent’s application that the application for review of the Registrar review decision (accepted for filing on 10 June 2024) be dismissed pursuant to r.13.05(1)(a) of the Court’s Rules for non-compliance with the Court’s orders of 27 August 2024.
Rule 13.05(1)(a) of the Court’s Rules provides that, where an applicant is in default, the Court may order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
In the present case, the Applicant was in default when he did not comply with the Court’s orders of 27 August 2024 because he did not elect to seek an adjournment of the final hearing by providing the specified medical evidence or inform the Court that he wished to proceed on the papers by 4.00pm on 3 September 2024 or at all.
The Applicant’s failure to do what was required by the 27 August 2024 orders is properly assessed against the context. The Applicant had a history of not complying with Court orders. Having been granted one prior adjournment of the hearing without proper application or evidence in support, on 10 July 2024, the Applicant was afforded a written explanation of the process he was required to follow for any future adjournment requests and on notice that future adjournment requests would not be granted other than in exceptional circumstances.
At the hearing on 27 August 2024 and by the orders of the same date, the Applicant said he was unwell and was afforded an oral and written explanation of the process he was required to follow in order to proceed. Specifically, what was required of him in order to properly apply for an adjournment with supporting evidence to substantiate his alleged illness or alternatively if he wished to elect to have his substantive application for an extension of the time to seek review of the Registrar’s decision determined on the basis of the materials that were already before the Court. He was required to take either step by 4.00 pm on 3 September 2024 and was given an oral and written explanation that the consequences of failure to do so would likely result in the substantive application being dismissed in accordance with the Court’s Rules. Despite this explanation and also being clearly on notice of the consequences of a failure to so comply, the Applicant did not do what was required.
By 4.00 pm on 3 September 2024, the Applicant had sent an email to chambers which attached the Medical Certificate which certified that, as of 28 August 2024, the Applicant was receiving treatment for a medical condition and would be unable to continue his/her usual occupation from Wednesday 28 August to Friday 30 August 2024 inclusive. The Medical Certificate was not annexed to an affidavit explaining how it was obtained, was not filed in the Commonwealth Court’s Portal and did not constitute proof that a registered Australian health practitioner had tested the Applicant to be positive for COVID-19 as of 27 August 2024.
The Applicant subsequently foreshadowed, by email to chambers of 10 October 2024, that there might be more medical evidence he could have filed to prove his illness as of 27 August 2024 and as advised to the Court on that occasion. As at the time of the dismissal hearing, he had not filed any evidence or documentation other than the Medical Certificate of 28 August 2024.
The Applicant told the Court at the Dismissal Hearing that he did not seek a determination of his substantive review application on the papers (which required an extension of the time for filing) because he wanted to bring new evidence before the Court relevant to the closure of his education provider which evidence was not before the Registrar in conducting the review and was not before the Tribunal in the course of its review.
I am satisfied that the Applicant as an unrepresented litigant was afforded all procedural fairness in pursuit of his substantive application for review of the Registrar’s decision.
The Applicant’s non-compliance with the Court’s orders of 27 August 2024 has caused delay to the proceeding, cost and inconvenience to the First Respondent.
In all of the circumstances, I consider it appropriate to dismiss the application on account of the Applicant’s non-compliance with the Court’s orders of 27 August 2024. I do so in the knowledge that the Court would not be permitted to engage in merits review and receive the new evidence that the Applicant could have brought before the Tribunal and the application lacks arguable prospect of success. Accordingly, there would be no utility to the grant of an extension of the time for filing and further continuation of these proceedings is not in the interests of the administration of justice.
RESOLUTION
For the above reasons, the application for review of a Registrar’s decision filed 10 June 2024 is dismissed pursuant to r.13.05(1)(a) of the Court’s Rules. I will make an order as to costs fixed in the amount of $3,000 which is appropriate in the circumstances of the present case and number of appearances required.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 6 December 2024
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