Dhillon v Minister for Home Affairs

[2018] FCCA 3892

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHILLON v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3892

Catchwords:
MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.362B(1A)(b)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: JAGDEEP SINGH DHILLON

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 491 of 2018

Judgment of: Judge Vasta

Hearing date: 14 December 2018

Date of Last Submission: 14 December 2018

Delivered at: Brisbane

Delivered on: 14 December 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 16 May 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.  

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 491 of 2018

JAGDEEP SINGH DHILLON

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 16 May 2018, the Applicant, Jagdeep Singh Dhillon, applied to this Court to review a decision of the Administrative Appeals Tribunal (“the AAT”) that had affirmed a decision not to grant the Applicant a student visa.  The merits of the case were not determined by the AAT.  Having seen the decision that the delegate had made, the Applicant sought that the AAT review that decision.  The AAT had set the matter down and had given a date of 3 pm on the 27^th of March 2018 for hearing of the matter. 

2. A week before that date, the Applicant emailed the Tribunal requesting that the Tribunal postpone the hearing because he was going to be away on that date.  The Tribunal replied to him later that day and said that his request for any postponement had been refused and that he was expected to attend at the scheduled time on the scheduled date.  At 2.08 pm, on 27 March, that is, 52 minutes before the hearing was to begin, the Applicant emailed the Tribunal requesting postponement of his hearing. 

3. He attached a medical certificate from a general practitioner which was from the Surfers Paradise Day & Night Medical Centre from a Dr Stephen Clapham which simply read, “Medical certificate.  This is to certify that Mr Jagdeep Dilan is receiving medical treatment for the period Tuesday, 27 March 2018 to Wednesday, 28 March 2018 inclusive and will be unfit to continue his usual occupation.” 

4. This certificate was completed on 27 March 2018 and it is signed by Dr Clapham with a stamp as well.  The email read: 

   Honourable respected sir/madam, my AAT hearing is today on 3 pm.  Unfortunately I am feeling really sick and not able to attend hearing today.  Doctor gave me two days bed rest.  If it is possible, please postpone the hearing.  I am extremely sorry for the inconvenience.  Thanks.

5. The AAT noted then that the Applicant did not appear before the Tribunal scheduled time and the AAT are said to have made several attempts to telephone the Applicant. 

6. The AAT then dismissed the application pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (“the Act”) as the Applicant didn’t appear before it. The Applicant was notified of the dismissal decision and given a copy of the written statement and the reasons. The Applicant was advised that reinstatement of the application could be sought within 14 days and the Applicant did apply for reinstatement.

7. He wrote, relevantly:

   “I was unable to attend the interview on 27 March 2018 as I got really sick during the day.  I went to the doctor and I was told to rest and did not go to work or travel.  I was feeling dizzy; therefore, I decided not to leave the house.  I took my prescriptions and had my phone on silent.  I emailed my medical certificate to the Tribunal and I was under the impression they will understand my situation and grant me an extension for the hearing.  Unfortunately, when I was contacted by phone I was deep asleep due to my prescriptions and did not notice that someone was trying to call me.  When I checked my phone it was too late to return the call.”

8. The AAT noted that whilst the Applicant may have been unable to participate in his usual occupation, according to the certificate, the Tribunal didn’t accept that he was unable to participate in a Tribunal hearing of limited duration at the scheduled time.  This is a reasonable conclusion considering that the Applicant did actually go to a medical practice and then, one would assume, make it home from the medical practice to his house and then, using his phone, it would seem, take a photo of the certificate and then email it through to the Tribunal 52 minutes before the hearing. 

9. That seems to have been a matter that the Tribunal then took into consideration and whilst it didn’t say it, it did say that it did not consider it appropriate to reinstate the application, and the decision to dismiss the application was then confirmed. 

10. The Applicant in his originating application before this Court has one ground of application, that is,

    1. The decision-maker engaged in jurisdictional error in making a decision that was unreasonable:

    a. by continuing with the Application when it was aware that the Applicant was unwell and had provided a sick certificate.

    b. by making a finding that if the Applicant was unable to attend in person, he would be able to attend by telephone, without first contacting the applicant to find his condition.

11. The question of whether it was reasonable really comes down to looking at all of the circumstances.  The circumstances, as I have outlined, are that the Applicant had, a week beforehand, attempted to postpone the hearing.  That was refused.  There was no other correspondence by the Applicant until quite incredibly, coincidentally, he gets sick on the day that he had asked for the matter to be postponed. 

12. The certificate does not say anything other than he was unfit for his usual occupation.  There was nothing in there as to why it was that he could not talk on a telephone and then participate in the hearing.  In those circumstances, and given the time that the certificate was sent, it seems to me it is very difficult to say that the conclusion that the AAT made was unreasonable. 

13. The AAT sought to contact the Applicant to find his condition and the Applicant himself says that he noticed when he woke that the phone calls had been made, and yet there is nothing in there to say that he contacted the Tribunal after seeing that there had been the missed calls to explain his situation. 

14. All of those circumstances add up to a situation where the Court cannot find that it was legally unreasonable for the AAT to have made the decision that it had.  Therefore, there is no jurisdictional error. 

15. The Applicant has not appeared today.  The Applicant appeared before Registrar Buckingham on 19 June 2018 where orders were made for the hearing of this matter, including that the matter be adjourned to 14 December at 3 pm for final hearing. 

16. The Applicant has not complied with any of the other orders to file and serve written submissions and so on.  The Applicant’s name was called at 3 o'clock and he did not appear.  I gave him 10 minutes grace. 

17. His name was called again and he had not appeared. It is now 3.23 pm. He has not appeared. I find that it is appropriate in this case to deal with the matter pursuant to r.13.03C(1)(e) and hear the matter on the merits.

18. For the reasons I have enunciated, I dismiss the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 January 2019