Gill v Minister for Immigration

[2017] FCCA 2552

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2552

Catchwords:
MIGRATION – Application for judicial review of refusal to grant Student (Temporary) (Class TU) (Subclass 572) visa – requirement that there be no evidence that an applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular – consideration of waiver provisions – held that Tribunal decision not affected by jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), sch.1

Migration Act 1958 (Cth), ss.5, 362B

Migration Regulations 1994 (Cth), sch.2 cls.527.224, 572.223, sch.4 cl.4020, sch.5A

Cases cited:

AZAFB v Minister for Immigration and Border Protection and Another (2015) 244 FCR 144
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Applicant: MANPREET KAUR GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 369 of 2016

Judgment of: Judge Jones

Hearing date: 22 September 2017

Date of Last Submission: 22 September 2017

Delivered on: 22 September 2017

Delivered at: Melbourne

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms Ward

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application for judicial review filed on 29 February 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 369 of 2016

MANPREET KAUR GILL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and Background

1. This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 1 February 2016 affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 28 October 2014 refusing to grant the Applicant a Student (Temporary) (Class TU) (Subclass 572) visa (“the visa”). The Tribunal’s decision is at Court Book (“CB”) 136-145.

2. The material before the Court is the Applicant’s application for judicial review filed on 29 February 2016, the First Respondent’s Outline of Submissions filed on 14 September 2017, a Court Book (“CB”) and a Supplementary Court Book (“SCB”).

3. The Applicant is a citizen of India and applied to the Department of Immigration and Border Protection (“the Department”) for the visa on 25 June 2014 (CB 1).  On 27 June 2014, the Department sent a letter by email to the Applicant requesting additional information in support of the visa application, including evidence demonstrating that the Applicant had sufficient funds to support herself for the duration of her studies (CB 8-16). 

4. On 24 July 2014, the Applicant provided evidence to the Department in relation to funds, including a bank deposit receipt issued by Canara Bank in India, stating that on 20 November 2013 a Surjit Singh made a deposit of rupees in the amount of 29,50,909 (CB 40).

5. The Department referred the document to the New Delhi post for an integrity check on 6 August 2014 (CB 137 at [3]).

6. On 17 September 2014, the Department wrote to the Applicant via email inviting her to comment on adverse information it had received in relation to the deposit receipt that the Applicant had provided (CB 48-51). Specifically, the email informed the Applicant that the Department’s Overseas Post had determined that the deposit receipt for an account held in the name of Surjit Singh was not the Applicant’s father as claimed, but another person with the same name. The email informed the Applicant that, as there was evidence that she had provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa, she may fail to satisfy Public Interest Criterion (“PIC”) 4020 (sub-cl.4020(1) of sch.4 to the Migration Regulations 1994 (Cth) (“the Regulations”)), and thus may be refused the visa. The email also invited the Applicant to submit any evidence of compassionate or compelling circumstances to justify the grant of the visa, as provided for in the exception in PIC 4020 (sub-cl.4020(4) of sch.4 to the Regulations).

7. On 14 October 2014, the Applicant wrote to the Department and advised that her father had (CB 63):

   ...approached to [sic] another personnel to assist with preparation of documents in a systematic manner.  He specified that he did not have intention to provide with wrong documents or intervene with IMMI requirements.  He tried contacting that person numerous times, but could not get through to him.  

8. On 14 October 2014, the Department sent a reply to the Applicant via email indicating that she had not addressed the question asked regarding the financial documents that were submitted with her application. The Department reiterated that, as there was evidence suggesting that the Applicant had provided a bogus document or false or misleading information to the Department, she may fail to satisfy sub-cl.4020(1) of sch.4 to the Regulations, with the result that her visa application may be refused (SCB 1-2).

9. On 14 October 2014, the Applicant sent another email to the Department, stating as follows (SCB 4):

   There are/were no intentions to provide Department with false documents.  Please consider my request to provide me with another chance for submitting financial documents. As mentioned in previous email, I am not aware of situation as in what went wrong.  I have been in extreme stress lately due to the car accident I had.  My car wrecked badly.  I am still in shock and undergoing a very stressful environment. 

10. On 28 October 2014, a delegate of the Department (“the Delegate”) refused to grant the Applicant the visa. It did so on the basis that the Applicant did not satisfy PIC 4020 for the purposes of

    
    

    sub-cl.572.224(a) of sch.2 to the Regulations, which were the criteria that the Applicant was required to satisfy in order to be granted the visa (CB 59-65). The Delegate found that the Applicant not only did not comply with sub-cl.4020(1) of sch.4 to the Regulations, but that the Applicant had also not provided any information supporting the waiver requirements which are contained sub-cl.4020(4) of sch.4 to the Regulations (CB 59-65).

11. On 28 October 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision (CB 66-67) and attached to that application a copy of the Delegate’s decision.  The Applicant also appointed a migration agent to represent her throughout the proceedings. The Tribunal invited the Applicant to attend a hearing scheduled for

    
    

    14 January 2016 and issued this invitation by correspondence dated

    
    

    2 November 2015 (CB 79). The correspondence was sent by the Tribunal via the email address of the Applicant’s appointed migration agent. 

12. On 14 December 2015 (CB 81), 21 December 2015 (CB 84) and

    
    

    21 January 2016 (CB 125), the Applicant’s representative provided further documentation to the Tribunal via email in support of the Applicant’s claim. I have perused those documents, and they include documents relating to the Applicant’s qualifications that she had acquired, her enrolment records, and a medical certificate. The medical certificate refers to a period where the Applicant was undergoing treatment due to “…suffering from PIVD with Headache[s]…” in or around late 2014 to early 2015 (CB 103).  It is to be noted that the

    
    

    21 December 2015 email from the Applicant’s migration agent included a completed response to the hearing invitation, which indicated that the Applicant and her migration agent would appear at the hearing scheduled for 14 January 2016 (CB 85-87).

13. On 12 January 2016, the Applicant’s migration agent contacted the Tribunal via email and advised it that the Applicant could not attend the hearing due to back pain, and attached a medical certificate in support (CB 108-111). The certificate is signed by Dr Hasan Harun, and was completed on 11 January 2016. It says that the Applicant “...has a medical condition (Back Pain) and is unfit for usual occupation on 11/01/2016 TO 15/01/2016 INCLUSIVE” (CB 111).

14. On 13 January 2016, the Tribunal wrote to the Applicant via email, advising that it was not prepared to grant an adjournment based on the limited medical evidence provided by the Applicant (CB 113-115).  Relevantly, the Tribunal indicated to the Applicant that it did not regard the medical certificate as satisfactory evidence that the Applicant could not, or had no capacity to, participate in the hearing (CB 114). The Tribunal informed the Applicant that it would carefully consider any additional certification by the Applicant’s treating doctor attesting to her medical condition. Alternatively, the Tribunal also invited the Applicant to appear at the hearing via telephone. 

15. The Tribunal’s opinion that the medical certificate provided by the Applicant was not a satisfactory reason for not attending the hearing is in accordance with the decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (“NAKX”). In NAKX, his Honour makes plain that a medical certificate that fails to specify a condition and, in particular, fails to specify why an applicant cannot participate in a hearing does not amount to a reasonable excuse or an acceptable reason for not attending a hearing.

16. The medical certificate that the Applicant provided to the Tribunal referred to the Applicant’s “usual occupation” only. It said nothing about the Applicant’s capacity to attend the Tribunal hearing. In any event, the Tribunal invited the Applicant to appear at the hearing via telephone. The Applicant did not accept the invitation to attend by telephone.

17. At 9.51am on 14 January 2016 (the scheduled date for the hearing), the Applicant’s migration agent again wrote to the Tribunal via email informing it that, due to the Applicant’s illness, she would not be in attendance at the hearing (CB 116). The Applicant’s representative sought an additional period of two weeks to submit further evidence (CB 116).

18. The Applicant did not attend the hearing at 11am on 14 January 2016 (CB 120-121).  At 12.08pm on 14 January 2016, the Tribunal advised the Applicant’s migration agent via email that the Applicant had failed to attend the hearing and that, pursuant to sub-s.362B(1) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear before it (CB 123). In the same email, the Tribunal also advised that it had decided to adjourn making its decision until 21 January 2016 in order to allow the Applicant additional time to submit documentary evidence or submissions.

19. The Tribunal telephoned the Applicant’s migration agent at 12.11pm on the same day and advised him of the substance of the email (CB 122). At 1.28pm that same day, the Tribunal sent a further email to the Applicant’s migration agent informing him that the Applicant’s second postponement request was only brought to the Tribunal’s attention one hour after the scheduled hearing time (CB 124). The Tribunal noted that there was no further medical evidence provided with that request and, consequently, the Tribunal was not prepared to grant an adjournment. The Tribunal reiterated in the email, however, that it would allow the Applicant until 21 January 2016 to provide further submissions.

20. On 21 January 2016, the Applicant’s migration agent submitted further documentation and supporting evidence to the Tribunal, including a statement from the Applicant dated 20 January 2016 stating that she had never intended to provide bogus documents to the Department, and that the documents had been fraudulently prepared by her uncle

    
    

    (CB 127). The Applicant also provided new evidence in relation to a deposit of funds, which she requested the Tribunal to consider (CB 128-130).

Tribunal Decision

1. In making its decision, the Tribunal correctly set out the law, which, pursuant to sub-cl.4020(1) of sch.4 to the Regulations, required that there must be no evidence that an applicant has given, or caused to be given, to the Minister, the Tribunal or any other bodies (CB 141 at [23]):

   23.    ...a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made…

2. The Tribunal relevantly noted that the law also required that an applicant and each member of the family unit have not been refused a visa because of a failure to satisfy sub-cl.4020(1) of sch.4 to the Regulations during the period starting three years before the application was made and ending when the visa was granted or refused, unless the applicant was under 18 years of age (sub-cls.4020(2)-(2AA) of sch.4 to the Regulations).

3. A particular requirement is, of course, the question of whether there is evidence about an applicant that an applicant has given or caused to be given a bogus document or information that is false and misleading in a material particular in relation to an applicant and, importantly for the Applicant to note in this case, in the twelve months before the application was made. The Tribunal noted in its decision that, where it was found that sub-cl.4020(1) of sch.4 to the Regulations had not been satisfied (in other words, there was a bogus document or information that was false or misleading in a material particular), the Tribunal could nevertheless waive that requirement if the Applicant satisfied

   
   

   sub-cl.4020(4) of sch.4 to the Regulations (CB 141 at [24]).

4. The Tribunal relevantly considered the information and the meanings of “false or misleading in a material particular” and “bogus document”. It stated that the reference in the definition of “bogus document” (contained in sub-s.5(1) of the Act) to a document that “…was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion in the grant of [a] visa…”

   
   

   (CB 141-142 at [25]). 

5. The Tribunal then said that the requirement of sub-cl.4020(1) of sch.4 to the Regulations to not provide a bogus document or false or misleading information “...applies whether or not the document or information was provided by the applicant knowingly or unwittingly” (CB 142 at [26]).

6. Relying on Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (“Trivedi”), the Tribunal then stated as follows

   
   

   (CB 142 at [27]):

   27.    While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision…

7. In the present matter, the Applicant has conceded that the document provided by her uncle was a fraudulent document. The Applicant said that she was not aware of the fraudulent nature of the document, however, her lack of awareness is not relevant. What is relevant is the fact that the document was provided to the Department (Trivedi at [1], [23]–[28], [56]).

8. The Tribunal noted earlier in its decision that it had proceeded under sub-s.362B(1) of the Act to make its decision on review. When the Applicant had failed to appear at the hearing, the Tribunal considered whether it would be appropriate to exercise its discretion in the Applicant’s favour, however, it decided that it would not do so, and there would not be any value in doing so (CB 140 at [17]). In reaching this conclusion, the Tribunal took into account whether the information that the Applicant met PIC 4020 and sub-cl.572.224(a) of sch.2 to the Regulations was likely to be forthcoming, whether the Applicant had already had a fair opportunity to provide the documents, and the significance of the information or documents to the Applicant (CB 140 at [18]).

9. In my view, the Tribunal correctly found that the Applicant had been aware of the reason for the visa refusal from the Department. That is made clear by the Delegate in its decision record. The Tribunal also noted that the Applicant had been aware of this reason for more than two years (CB 140 at [19]).  The Tribunal found that the Applicant had a fair opportunity to provide the relevant documents in support of her application (CB 140 at [19]), and noted further that the Applicant had conceded in her statement dated 20 January 2016, provided to the Tribunal after the hearing, that a bogus document was provided to the Department, although she did not have the intention to do so

   
   

   (CB 141 at [20]).

10. The Tribunal also noted that the Applicant had been provided with an opportunity to submit evidence with respect to compelling or compassionate circumstances pursuant to sub-cl.4020(4) of sch.4 to the Regulations, but had failed to do so (CB 140-141 at [19]–[20]). It cannot be disputed that the Applicant did not, either before the Tribunal hearing through her migration agent or subsequently after the hearing, provide information to the Delegate regarding what compelling circumstances might exist to waive sub-cl.4020(1) of sch.4 to the Regulations.

11. The Tribunal noted that it had postponed making its decision to enable the Applicant to provide further evidence that she met the requirements of PIC 4020, and sub-cl.572.224(a) of sch.2 to the Regulations

    
    

    (CB 141 at [21]). The Tribunal found that the Applicant had instead submitted new financial documents relevant to the applicable sch.5A requirements (CB 141 at [21]). The Tribunal also noted that the Applicant had the benefit of professional advice from a registered migration agent (CB 141 at [21]).

12. The Tribunal then proceeded to consider the evidence before it.  The Tribunal had regard to the Applicant’s own evidence that she had provided a bogus document to the Department, which had been fraudulently prepared by her uncle, and the Department’s investigation, which determined that the deposit receipt submitted by the Applicant prior to the Delegate making its decision was not for a bank account held in the Applicant’s father’s name, but in the name of another person (CB 142 at [29]–[31]). In those circumstances, the Tribunal was satisfied that the Applicant provided to the Department the deposit receipt from the Canara Bank in the name of Surjit Singh, together with the financial support statement signed by the Applicant’s father, Surjit Singh Gill, inferring that the bank account holder was in fact the Applicant’s father (CB 142 at [32]).

13. The Tribunal specifically said as follows (CB 142 at [31]):

    31.    …She claims that bogus documents provided to the department were fraudulently prepared by her uncle without her or her family’s actual knowledge. As stated above, the requirement in cl.4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

14. The Tribunal found that the information provided by the Applicant was false and misleading, because the deposit receipt provided with the visa application as evidence of the Applicant’s financial capacity did not belong to her father, but to another person with the same name and surname (CB 143 at [33]). The Tribunal was also satisfied that the information was false or misleading in a material particular, because sub-cl.572.223(2)(c) of sch.2 to the Regulations required that an applicant for a subclass 572 visa must have access to funds demonstrated or declared in accordance with the requirements of the applicable criteria under sch.5A of the Regulations relating an applicant’s financial capacity (CB 143 at [34]).

1. The Tribunal then found that the information provided by the Applicant was purposely false on the basis that the Applicant either intended to provide the information to the Department, or her family from India intentionally provided the information, and the Applicant adopted and consented to providing the information by failing to take an interest in the application and the way in which it was being presented

   
   

   (CB 143 at [35]).

2. The Tribunal stated as follows (CB 143 at [36]):

   36.    Accordingly, the tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a Student visa subclass 572. Accordingly, the tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a). 

3. I should note for the Applicant’s benefit, that it is obvious that the Tribunal referred to her as a male in the above paragraph, however, throughout the Tribunal’s decision, it referred to her as a female. I regard the reference to “his” as a simple typographical error not affecting the decision of the Tribunal.  For instance, the Tribunal uses phrases such as “her statement” (CB 142 at [31]); “she claims” (CB 142 at [31]) and “her written response” (CB 141 at [20]).  Otherwise, the Tribunal refers to the Applicant as “the Applicant”.  I am satisfied that the Tribunal understood that the Applicant was a female applicant.

4. Having found that the Applicant did not meet the requirements of

   
   

   sub-cl.4020(1)(a) of sch.4 to the Regulations, the Tribunal then turned its mind to whether sub-cls.4020(1) or (2) of sch.4 to the Regulations should be waived. The requirement under the waiver provisions, as they are referred to, is that there are (CB 143 at [37]):

   37.    ...compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen…that justify the granting of the visa.

5. It is undisputed that the Applicant did not provide any information in relation to the waiver provisions. The Applicant did provide evidence of her qualifications, but that is not the sort of evidence that the Tribunal would be obliged to consider under the waiver provisions of sub-cl.4020(4) of sch.4 to the Regulations. Consequently, the Tribunal concluded that the Applicant did not satisfy PIC 4020 for the purposes of sub-cl.572.224(a) of sch.2 to the Regulations, being a requirement for the grant of the visa.

6. The Tribunal considered other subclasses within the visa class, and noted that they all have an equivalent provision requiring the Applicant to satisfy PIC 4020. The Tribunal therefore dismissed the Applicant’s application for review of the Delegate’s decision.  

Judicial Review

1. The Applicant appeared in person today and was assisted by an accredited interpreter in the Hindi and English languages. The Applicant has some command of English, so I suggested to her that, when she felt comfortable about speaking in English she may do so, and then when she required interpretation she may turn to the interpreter for the interpreter’s assistance. The Applicant said she felt comfortable with this approach. When I proceeded to make my oral decision, I also advised the Applicant that if there was any point at which she didn’t understand what I was saying, she could indicate this to the Court and it could be interpreted for her by the interpreter. The Applicant agreed to this process. 

2. The Applicant filed her application for judicial review on

   
   

   29 February 2016. The Applicant’s ground of review was as follows:

   4.  The AAT erred in not giving consideration to the evidence that the Applicant being myself have been a genuine student visa entrant.  I provided evidence in support of this, however the tribunal member disregarded such evidence.  The AAT did not give consideration to the evidence provided me at the AAT that I had a strong background to study and that I had well planned my study and that I had all intentions to study and complete the course that I was enrolled for. Accordingly AAT failed to give consideration to the evidence as a matter of law.

3. At the hearing, I explained to the Applicant the nature of the judicial review process and the function of the Court on judicial review. I explained that the Court could not consider the merits of the Applicant’s application for the visa. I further explained that the Court’s function was to decide whether the Tribunal made a jurisdictional error, or, as I refer to it, a “serious legal mistake”. Having explained the role of the Court on judicial review to the Applicant, I asked her what was wrong with the Tribunal decision, and I take to be her responses her oral submissions. 

4. The Applicant confirmed that she was not complaining about the fact that the Tribunal did not adjourn its hearing. The Applicant initially complained that she was not given an opportunity to provide evidence. However, the Applicant conceded later in her oral submissions that the Tribunal had given her time to provide documents, which she did. The Applicant said that one of the documents in particular that she had provided to the Tribunal was a financial document that she said evidenced her compliance with sch.5A to the Regulations, and proved that she had the finances available to complete her study.

5. The Applicant’s complaint is that the Tribunal failed to take into account this evidence in its decision, and focused on the deposit receipt that the Applicant provided with her application for the visa, which she said was submitted by mistake. 

6. The Applicant then went on to say that, as a result of the Tribunal’s decision, she is going into a deep depression and needs to get her visa back to assist her in recovery. The Applicant has not provided any appropriate medical evidence of depression to this Court and I do not make any judgment about it.  In any event, it was not medical evidence that was before the Tribunal.

7. The Applicant, for the grant of her visa, was required to satisfy PIC 4020, which relevantly provides that there must be no evidence that the Applicant has given, or caused to be given, to the Delegate, the Tribunal or any other assessing authority, a bogus document or information that is false or misleading in a material particular. The fact that the Applicant subsequently provided a document that may well have been genuine about her financial circumstances does not assist the Applicant. PIC 4020, which the Applicant was required to meet, stipulates that there had to be no evidence when the Applicant made her application for the visa that a bogus document or information that was false or misleading in a material particular had been provided. 

8. I accept that the Applicant was not aware that the document was fraudulent until subsequent to making her application for the visa. The Applicant has said very honestly that it was a document that her uncle prepared and that it was fraudulent. However, I find that the Tribunal did not err in law in not considering the subsequent financial document provided to it by the Applicant. The document was not relevant to the issue that the Tribunal had to decide, which was whether the Applicant met the criteria applicable to the visa, which in turn required the Applicant to satisfy PIC 4020.

9. In my opinion, the Tribunal was inevitably bound to find that the Applicant did not satisfy sub-cl.4020(1) of sch.4 to the Regulations. I note that sub-cl.4020(1) of sch.4 to the Regulations could have been waived under sub-cl.4020(4) of sch.4 to the Regulations, but that such a waiver required the Applicant to have provided evidence which demonstrated compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen.

10. It appears that the Applicant’s ground of review may have been addressed to the waiver provision under sub-cl.4020(4) of sch.4 to the Regulations, as she says that the Tribunal should have considered her strong history of study. However, that would not have been helpful evidence in relation to the waiver provision as the provision directs focus on circumstances which are compassionate or compelling affecting the interests of an Australian citizen or an eligible New Zealand citizen.

11. As the Minister points out in its written submissions, the Applicant’s specified ground of review, that she had a good history of study that the Tribunal did not consider, was something that the Tribunal might have considered in a next step in the process of considering whether the Applicant satisfied the student visa criterion. However, the Tribunal was not required to because the Applicant must have first satisfied cl.572.224 of sch.2 to the Regulations and the requirements of PIC 4020. The Applicant had not satisfied those requirements.

12. Although the Applicant says she is not complaining about the fact that the Tribunal did not adjourn the hearing, I am satisfied that the Tribunal’s decision to refuse to postpone the hearing was not legally unreasonable.

13. As I have already indicated, the medical certificate provided by the Applicant when her migration agent first requested an adjournment on her behalf was not satisfactory evidence that the Applicant could not attend the Tribunal hearing. In any event, the Applicant’s medical condition was identified as back pain, and the Tribunal provided the Applicant with an opportunity to attend by telephone. The Applicant did not take up this option. Furthermore, the Tribunal provided a further week for the Applicant to provide documents.

14. The Minister has properly drawn the Court’s attention to two decisions. The first is by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 (“SZVFW”), and the second is by North J in AZAFB v Minister for Immigration and Border Protection and Another (2015) 244 FCR 144 (“AZAFB”). In my view, the issues in SZVFW and AZAFB can be distinguished from the present case because the Applicant before this Court has not complained that she was not on notice of the hearing. In fact, in the response sent on the Applicant’s behalf by her migration agent (CB 85-88), it is clear that the Applicant knew that there was a hearing scheduled on 14 January 2016. The fact is that the Applicant applied for an adjournment of the hearing based on a medical ground which the Tribunal did not accept. The Applicant was offered a hearing by telephone, and she did not accept that offer.

15. The Applicant says that she is not complaining today about the fact that the Tribunal did not adjourn the hearing. However, in light of the issue that the Tribunal was required to decide, I find that the Tribunal’s discretion, in not postponing the hearing and making its decision after giving the Applicant time to provide further information, was exercised reasonably in a legal sense. 

Conclusion

1. Accordingly, for the reasons set out in this judgment, I am not satisfied that the Applicant’s ground that she has specified in her application for judicial review and put forward today in her oral submissions raises a jurisdictional error on the part of the Tribunal. I will therefore dismiss the Applicant’s application for judicial review filed on 29 February 2016.

2. The Minister is asking for costs of $5,800. I note that this is less than the scale amount contained in sch.1 to the Federal Circuit Court Rules 2001 (Cth). I will also therefore order that the Applicant pay the costs of the First Respondent in the fixed amount of $5,800.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  

Date:  23 October 2017