Gill v Minister for Immigration

[2016] FCCA 807

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 807

Catchwords:
MIGRATION – Judicial review – Tribunal dismissed the application on non-appearance of applicant at hearing – applicant advised of hearing date – applicant request for reinstatement dismissed.

Legislation:

Migration Act 1958 (Cth)

AZAFB v Minister for Immigration &  Border Protection [2015] 1383

Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73

Applicant: KULDEEP SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1630 of 2015

Judgment of: Judge McGuire

Hearing date: 11 April 2016

Date of Last Submission: 11 April 2016

Delivered at: Melbourne

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the First Respondent: Mr Day

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. That the name of the second respondent be amended to read "Administrative Appeals Tribunal".

2. That the application filed 16 July 2015 be dismissed.

3. That the applicant pay the first respondent's costs fixed in the sum of $3255.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1630 of 2015

KULDEEP SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION 

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The substantive application seeks judicial review of a determination of the Migration Review Tribunal ("the Tribunal") made 22 June 2015 affirming a decision of the Minister's delegate not to grant the applicant a student visa.

2. Pursuant to a Registrar's Orders and Directions made 25 November 2015, this application is listed for a show cause hearing pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant appears before this Court in person and with the assistance of an interpreter.  He has not filed any written submissions.  His oral submissions were brief.

4. The application essentially provides a narrative but is transcribed for these reasons as follows:

   I applied for Student (Temporary) (Class TU) visa in May 2014.  My application was refused by the Department of Immigration on the basis that I did not satisfied [sic] the requirements of the visa application.  The visa application was refused on 14 October 2014.

   On 30 October 2014, I applied for review application to the Tribunal.  I was invited to attend hearing, but due to sickness I could not make it.  On 15 June 2015, I wrote to MRT to request reinstatement.  However, MRT affirmed the decision and did not gave [sic] the extension.

   I am not satisfied with the decision made by MRT on my application.  I believe there is an error, ther for [sic] I want to appeal against the decision in the Court.

5. The applicant is from India.  He applied for a subclass 572 Vocational Education and Training Sector visa on 16 May 2014 as a secondary applicant.  The primary applicant was his wife.

6. Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations") at cl 572.322(b) requires the applicant to be a member of the family unit of a person who has satisfied the primary criteria in cl 572.21 and cl 572.22.

7. The delegate refused the application for the visa on 14 October 2014, not being satisfied that the primary applicant genuinely intended to stay in Australia temporarily.  As a consequence this applicant was refused the grant of his visa.

8. The applicant lodged an application with the Tribunal seeking review of the delegate's decision on 30 October 2014.  With that application the applicant provided an email address for service.

9. On 14 May 2015 the Tribunal sent an invitation to the applicant to attend the hearing by email at his address for service.  The applicant was invited to attend the hearing on 3 June 2015. That invitation advised the applicant that if he did not attend the Tribunal then it may proceed to make a decision without taking further action to allow or enable him to appear or that it may dismiss the application for review without further consideration of the application or the information before the Tribunal.

10. The applicant did not appear at the hearing on 3 June 2015.  There is no evidence of any communication between the applicant and the Tribunal between the date of the invitation and the Tribunal hearing.

11. On 5 June 2015 the Tribunal dismissed the application under 362B(1A)(b) of the Migration Act 1958 ("the Act"). A copy of that decision was provided by email at the same address to the applicant on 5 June 2015.

12. The applicant sent an email to the Tribunal on 16 June 2015 enclosing a letter of 15 June 2015 explaining that he had received the Tribunal's decision but that he was unwell at the time of the hearing and hence unable to attend.  The illness was detailed as a migraine and an inability to wake up to attend the hearing.  The letter sought a further opportunity to attend a hearing before the Tribunal.

13. On 22 June 2015 the Tribunal affirmed the decision under review and provided a statement of the decision under email of 24 June 2015.  The Tribunal's reasons appear at CB124.  Those reasons disclose at [3] that the applicant was advised that a reistatement of the application could be sought within 14 days of receiving the initial order dismissing the application.  The reasons at [4] confirm the application for reinstatement within the prescribed period.  At [5] and [6], the Tribunal considered the application as follows:

    5.  The applicant's request for reinstatement of 15 June 2015 states that he was unable to attend his scheduled hearing because he had a severe migraine, which started recently due to a change in weather.  He further states that the day before the hearing, he had severe pain and nausea, which led his condition to deteriorate, and he was not able to wake up to attend his hearing.  He further claims that his condition was such that he was not able to inform the Tribunal about his inability to appear prior to the hearing.

    6.  The applicant has not provided any independent evidence, such as a medical certificate from a general practitioner to corroborate that he was suffering from a migraine on the day of his hearing and, therefore, was not able to attend or participate in his scheduled hearing.  This is despite the applicant claiming in his letter that he has been having medical issues for the past two weeks.

14. The Tribunal was therefore not satisfied that the applicant was, indeed, suffering from migraine, severe pain or nausea, such that he was unable to attend or participate in the scheduled hearing on 3 June 2015, or contact the Tribunal at any time or in any form, such as by phone or email, prior to his hearing to request a postponement.  The Tribunal was further not satisfied on the evidence provided by the applicant that he was not able to wake up in time to attending his hearing, particularly given that the hearing was scheduled to start at 1.30 p.m.

15. The Tribunal noted that the applicant was validly notified and proceeded to dismiss his application.

Consideration

1. The Tribunal complied with s 360 of the Act requiring it to invite the applicant to appear at a hearing to give evidence and proceed to argument.

2. S 362B provides for a situation where an applicant fails to appear before the Tribunal and specifically that the Tribunal may make a decision on the review or dismiss the proceedings.  Subsection (1B) provides for reinstatement of an application but within the discretion of the Tribunal.

3. It is apparent that the Tribunal has followed the statutory course mandated by the Act. The determination of the Tribunal was one within its discretion and it clearly considered the material facts submitted by the applicant.

4. As the model litigant, Counsel for the first respondent referred the Court to a recent decision of North J in AZAFB v Minister for Immigration and Border Protection[1] which can be understood as authority for a proposition that the Tribunal here should have taken affirmative action to pursue the applicant when he did not attend at the hearing on 3 June 2015.  I respectfully prefer that AZAFB (supra) turns on its own factual platform, and that no such obligation rested on the Tribunal in circumstances where there had not been a course of contact or engagement between the applicant and the Tribunal which might have alerted the Tribunal to something being amiss in the non‑attendance of this applicant.[2]

   [1] AZAFB v Minister for Immigration and Border Protection [2015] 1383

   [2] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]

Conclusion

1. Consequently, in this matter the applicant does not raise an arguable case, and his application will be dismissed with an order for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 25 May 2016