JAMBLA v Minister for Immigration

[2017] FCCA 2149

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMBLA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2149

Catchwords:
MIGRATION – Application to reinstate proceedings – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 362B(1), 362B(1A), 362B(1C), 362C, 368

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559

Applicant: VIKAS JAMBLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2356 of 2015

Judgment of: Judge Jones

Hearing date: 27 July 2017

Date of Last Submission: 27 July 2017

Delivered at: Melbourne

Delivered on: 27 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms Koya

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Application in a Case filed by the Applicant on 21 April 2017 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2356 of 2015

VIKAS JAMBLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and Background

1. This decision concerns the Application in a Case filed by the Applicant on 21 April 2017 to set aside Orders made on 7 April 2017, dismissing the Applicant’s application for judicial review pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on the basis that the Applicant failed to attend at the final hearing which was listed on 7 April 2017 in relation to his substantive case for judicial review. The Application in a Case is made, although not formally, pursuant to r.16.05(2)(a) of the FCC Rules, which provides as follows:

   (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

   (a)  it was made in the absence of a party;…

The Application in a Case

1. In deciding on the Application in a Case, the overriding principle is the interests of the administration of justice. In my opinion, the following considerations are relevant: firstly, whether the applicant had a reasonable excuse for not attending the hearing; secondly, whether there was any prejudice to the respondent; and thirdly, whether the substantive application discloses a reasonably arguable case.

Whether there was any prejudice to the Respondent

1. Counsel for the Minister properly conceded that there was no prejudice to the Minister, and so I can set aside that consideration. I will focus on the question of whether the Applicant had a reasonable excuse for not attending the final hearing on 7 April 2017 and the merits of his substantive case.

Whether the Applicant had a reasonable excuse for not attending

1. The final hearing was set for 7 April 2017. The Applicant contacted the Court by facsimile on 2 March 2017, indicating that he was mentally unfit to appear in his case because of serious illnesses which had befallen his brother-in-law and his mother-in-law, both of whom resided in India. The Applicant stated that he would return to Australia in August 2017, and requested that the hearing be postponed until after August. He was informed that the Minister did not consent to this application. On 6 April 2017, my Chambers informed both parties that the hearing would go ahead on 7 April 2017.

2. In a facsimile dated 17 March 2017, the Applicant provided a medical certificate from his general practitioner which stated that the Applicant suffered from depression and insomnia in response to recent bereavement, and that he would be unfit for work from 16 March 2017 to 15 April 2017. The Applicant obviously relies on this as his reason for not attending the hearing on 7 April 2017; that is, he was medically unfit.

3. Counsel for the Minister said that the medical certificate was insufficient because, in the words of Justice Lindgren in the decision of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (“NAKX”) at [6], it failed to:

   6. … address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.

4. I agree with Counsel for the Minister’s submission. I did explain to the Applicant the nature of the deficiencies in his medical certificate. The Applicant said that he did not understand the requirements under the law, which I accept. He is self-represented. However, the Court is bound by the decision in NAKX, which has been cited with approval by the Federal Court in subsequent decisions. I respectfully agree that, in order to be satisfied that in circumstances where an applicant relies on his or her medical condition for non-appearance at a court event, the medical certificate that he or she relies on needs to specify the condition (which it did in this case) that he or she is suffering from, but in particular, it needs to address the critical issue of why the Applicant could not attend and participate in the Court hearing.

5. There was no reason given on the medical certificate as to why the Applicant could not attend and participate in the Court hearing on 7 April 2017. Therefore, I am not satisfied that the Applicant had a reasonable excuse for not attending the hearing on 7 April 2017 to prosecute his substantive application.

Whether the substantive application discloses a reasonably arguable case

1. I now turn to the question of whether the Application for judicial review disclosed a reasonably arguable case. It is relevant to note that the Applicant’s substantive application for judicial review filed on

   
   

   21 October 2015 specified the following grounds for judicial review:

   1. Tribunal [sic] has refused without giving an opportunity in my application.

   2. There was no principal [sic] of natural justice followed.

2. It is relevant to set out some background to the then Migration Review Tribunal (“the Tribunal”) hearing, given the grounds of judicial review that are specified. Of course, the Tribunal is not bound by a general principal of natural justice. There are statutory provisions which the Tribunal must follow.

3. The Applicant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (“the visa”) on 3 April 2014 (CB 1-41). The application for the visa was refused by a delegate of the Minister (“the delegate”) on 6 February 2015, on the basis that the delegate was not satisfied that the Applicant genuinely intended to stay in Australia temporarily (CB 103-108).

4. Counsel for the Minister provided oral submissions in addition to its written submissions filed on 31 March 2017. In oral submissions, Counsel for the Minister noted part of the delegate’s decision, which indicated that since the Applicant arrived in Australia and held the visa, he had only completed one course, being a Diploma of Hospitality Management (CB 105). I should note that the Applicant was enrolled to undertake an Advanced Diploma of Management at the time that he applied for and was granted the visa. The delegate also noted that he did not commence a Bachelor of Hospitality Management, and that his enrolment was cancelled on 12 December 2008 by the education provider.

5. On 26 February 2015, the Applicant applied for merits review before the Tribunal (CB 109-124). In his application to the Tribunal, the Applicant provided details of his registered migration, including the address and the email address of his migration agent. The Applicant also provided his own address and email address (CB 110).

6. On 23 July 2015, by email to his migration agent, the Applicant was invited to attend a Tribunal hearing on 13 August 2015. The Applicant was requested to provide various pieces of information that were relevant to the determination of the merits review at least seven days prior to the Tribunal hearing, including a copy of his current certificate of enrolment, documents which show that he is enrolled in a course or have an offer of enrolment, documents to show his past studies in Australia (including transcripts and so on), and additionally, an explanation of any gaps in his enrolments and any documentary evidence relevant to those gaps (CB 127-128).

7. The Tribunal noted in its decision to dismiss the application for merits review made on 15 October 2015 (CB 179-182) that none of these documents were submitted to the Tribunal (CB 181 at [11]). At the hearing before this Court, the Applicant has conceded that in fact none of these documents were provided at any time to the Tribunal.

8. On 12 August 2015, being the day before the scheduled Tribunal hearing, the Applicant’s migration agent advised that the Applicant could not attend the scheduled Tribunal hearing due to “medical concerns”. A medical certificate was attached to the email. The medical certificate was completed by a physiotherapist, stating that the Applicant was “suffering from physical condition” and “is not fit for work/school for 2 days from 12/08/2015 til 13/08/2015 inclusively” (CB 143-145).

9. On that same day, at 11.31am, the Tribunal advised the Applicant’s migration agent that the requested adjournment had been refused, and that the Tribunal hearing remained scheduled (CB 146). The Tribunal informed the migration agent that the medical certificate was deficient because it did not say anything about his capacity to attend the hearing. The Tribunal advised the migration agent that the Applicant could attend the Tribunal hearing by telephone. A reminded SMS message was sent to the Applicant’s migration agent on 12 August 2015 (CB 148). On the day of the hearing, two attempts were made by the Tribunal, after the Applicant failed to attend at the scheduled time, to contact the Applicant’s migration agent, to arrange a hearing by telephone. Both attempts were unsuccessful (CB 152-153).

10. The Tribunal made a decision on 19 August 2015 to dismiss the application as a result of the Applicant’s non-appearance under s.362B(1A)(b) of the Migration Act 1958 (Cth) (“the Act”) (“the non-appearance decision”). The Tribunal’s decision was sent to the Applicant’s migration agent by email on 21 August 2015 (CB 156).

11. On 2 September 2015, the Applicant applied to the Tribunal by email to have the matter reinstated. The Applicant attached a copy of the same medical certificate that was provided by the Applicant’s migration agent to the Tribunal on 12 August 2015 and a statutory declaration (CB 163-165).

12. On 5 September 2015, the Applicant advised the Tribunal that he was no longer represented by his migration agent (CB 166-168). On 18 September 2015, the Tribunal was advised of the appointment of a new migration agent for the Applicant (CB 169-170).

13. On 15 October 2015 the Tribunal decided to affirm the decision to dismiss his application (CB 176-182).

14. In the Applicant’s oral submissions to the Court in respect of his grounds for judicial review, he said that his first migration agent did not inform him that the Applicant could attend the Tribunal hearing on 13 August 2015 by telephone. The Applicant told the Court that had he known that he could attend the Tribunal hearing by telephone, he would have participated by telephone.

15. In the email correspondence sent by the Applicant personally to the Tribunal on 2 September 2015 in relation to his application to have this matter reinstated, the Applicant stated that he was “hereby… writing to [the Tribunal] to request [the Tribunal] to reinstate the hearing for reasons mentioned in the attached statutory declaration” (CB 163).

16. It is relevant, given the submissions made to this Court, that in the Applicant’s statutory declaration he noted that he provided the medical certificate; which he did. In the statutory declaration, the Applicant further stated that “it’s known that doctor’s [sic] use generalized format [sic] to give medical certificates, therefore it wasn’t mentioned specifically that I can’t attend the hearing”. The Applicant then went on to say that, “[d]ue to the pain I was given strong medication which caused drowsiness and I had to sleep and hence couldn’t attend the phone hearing either” (CB 164).

17. In my view, this evidence given in statutory declaration is inconsistent with what the Applicant told the Court today. When I pointed the inconsistency out to the Applicant, he said that had he been told about the opportunity to attend the Tribunal hearing by telephone, he would not have taken the pain medication. However, once an applicant nominates a migration agent to represent him or her in proceedings (and in these circumstances the Applicant agrees that he did nominate a migration agent), the Tribunal’s obligation is only to communicate with that migration agent if the applicant has nominated them as the recipient of all communication. There is no dispute that the Applicant did nominate the migration agent as the recipient of communication from the Tribunal, and the Applicant has accepted that today. Consequently, the Applicant’s explanation that he was not told about the Tribunal offer of a telephone hearing does not assist his case.

18. In my opinion, the Tribunal complied with all its legislative requirements. The Applicant was invited to the Tribunal hearing pursuant to s.360 of the Act. The invitation complied with s.360A of the Act. The Tribunal exercised its discretion under sub-s.362B(1A) of the Act to proceed to make a decision without further consideration of the application. The Tribunal was entitled to exercise this discretion under sub-s.362B(1)(b) of the Act when the Applicant failed to attend the Tribunal hearing.

19. Pursuant to subs.362B(1A) of the Act, the Tribunal had the discretion to either make a decision on review without taking further action to allow or enable the Applicant to appear before it, or to dismiss the application without further consideration of the application or information before it. It chose the latter. In my opinion, this was a discretion that cannot be said to have been exercised unreasonably. In my view, the Tribunal had taken all efforts to allow the Applicant to attend the hearing, even though it did not accept the medical certificate as an adequate explanation for non-attendance. It offered the Applicant the opportunity to attend the hearing by telephone. It sent a SMS text message reminder to the migration agent in relation to the Tribunal hearing and on the day of the hearing attempted twice unsuccessfully to contact the migration agent (see above at [17]).

20. In addition, there is no dispute that the Applicant failed to engage with the Tribunal, as he failed to provide the Tribunal, as he was requested to do so, with any documentary material that may assist his case.

21. The Tribunal’s decision not to reinstate the matter pursuant to

    
    

    sub-s.362B(1B) of the Act was, in my view, also reasonable. The discretion, which must be exercised, is available under sub-s.362B(1C) of the Act. The Tribunal is given the discretion to reinstate an application if it considers it appropriate in the circumstances pursuant to s.362C of the Act. On the other hand, the Tribunal can affirm the decision to dismiss the application by written statement pursuant to s.368 of the Act. In these circumstances, the Tribunal dismissed the application by written statement.

22. In this Court, the Applicant claimed that his migration agent was not aware that the Tribunal hearing remained scheduled, and that his migration agent did not inform him that the Tribunal hearing remained on foot. The Tribunal considered these claims.

23. In my opinion, the Tribunal had regard to the steps taken by the Tribunal in the non-appearance decision made on 19 August 2015 to enable the Applicant to attend by telephone (CB 180 at [5]). It said relevantly (CB 120 at [6]):

    6. The applicant did not appear at the Tribunal at the schedule time on the hearing date. As recorded in the Tribunal case notes, the Tribunal attempted to contact the applicant’s agent by telephone but was unsuccessful. The Tribunal left voicemail messages seeking an urgent response however none was provided. A further case note on the Tribunal file records that the applicant contacted the Tribunal on 19 August 2015 to inquire as to the progress of his case and claimed that his representative had told him he had not received any response from the Tribunal. Somewhat peculiarly, the time of this call is recorded as 10.59am, the same time as the Tribunal’s non-appearance decision was finalised. The Tribunal was therefore unaware of this call at the time it finalised the decision however, given the findings below, considers that it would not have altered or effected its decision in the circumstances of this case.

24. The Tribunal considered the Applicant’s statutory declaration and said (CB 181 at [8]-[10]):

    8. Other than this declaration, the applicant has provided no material or documents in support of his claim to have suffered a back injury that prevented him from attending the hearing. Nor has he provided any material evidencing any medication that caused him to be too drowsy to attend even a telephone hearing. There is also nothing further, for example, from his physiotherapist (who provided the medical certificate), supporting his claim that his inability to attend work/school also meant he could not attend a Tribunal hearing either in person or by telephone. In addition, there is nothing from the applicant’s then agent supporting the claim that he received no further communication from the Tribunal following his email of 12 August 2015, to which the medical certificate was attached. The Tribunal also noted that, in his statutory declaration, the applicant does not repeat this claim (see paragraph 6).

    9. The Tribunal has had regard to the reasons given by the applicant for his non-appearance however it notes that the Tribunal responded promptly to his agent regarding the medical certificate and his statement that the applicant would not attend the hearing scheduled for 13 August 2015. On the basis that there had been no change advised in his agent’s details, and the Tribunal’s confirmation that its email response to him was delivered (paragraph 5), the Tribunal is satisfied that he was appropriately notified that his advice of his non-attendance, taken as a request for an adjournment, was not accepted by the Tribunal and that the hearing would proceed. In addition the Tribunal is satisfied that the applicant was sent an SMS message confirming his hearing date and time, after his agent advised of his non-attendance.

    10.    In all the circumstances, the Tribunal is not satisfied that the applicant was so ill as to be unable to attend the hearing scheduled for 13 August 2015, either in person or by telephone…

25. The Tribunal also noted the failure of the Applicant to provide any documentary material to support the merits review (CB 181 at [11]).

26. The Tribunal decided, therefore, that it should exercise its discretion by affirming the decision to dismiss the application (CB 182 at [14]-[15]).

27. This was an entirely reasonable exercise of the Tribunal’s discretion. The Applicant’s migration agent was aware of the Tribunal hearing. The migration agent was reminded about the Tribunal hearing. The Tribunal did not have any material before it from the Applicant in relation to his application for merits review that might assist his substantive application. I find that the Tribunal exercised its discretion reasonably, and I am satisfied that the Applicant was accorded procedural fairness.

28. Accordingly, I am satisfied that the Applicant does not have a reasonably arguable case on his application for judicial review, which was put on the basis that he essentially was not afforded natural justice or procedural fairness by the Tribunal. The Applicant received every opportunity by the Tribunal to attend the hearings. The Applicant failed to attend and to engage in the process as required, by providing relevant material that might assist in his case.

Conclusion

1. In these circumstances, I will not make an Order to set aside my Order made on 7 April 2017. I dismiss the Application in a Case filed by the Applicant on 21 April 2017.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  

Date:  11 September 2017