Kalola v Minister for Immigration

[2016] FCCA 2873

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALOLA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2873

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal – necessity for applicant to have substantive visa at time of application  – application made well after 28 day time limit – Tribunal clearly correct to proceed in absence of applicant – decision also clearly correct – application dismissed.

Legislation:

Migration Regulations 1994, reg.602.213

Applicant: RITUBAI PURSHOTTAMBHAI KALOLA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2642 of 2014

Judgment of: Judge Burchardt

Hearing date: 26 September 2016

Date of Last Submission: 26 September 2016

Delivered at: Melbourne

Delivered on: 23 November 2016

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Ms Symons

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed on 23 December 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2642 of 2014

RITUBAI PURSHOTTAMBHAI KALOLA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 23 December 2014, the applicant seeks judicial review of a decision of the Migration Review Tribunal (as it then was) dated 27 November 2014.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The grounds of application indicate the “Tribunal failed to consider the other subclasses of visas in this class of visa” and the applicant’s affidavit filed in support does nothing more than to append a copy of the Tribunal’s decision.  Despite being given the opportunity to do so by orders made by Registrar Caporale on 15 April 2015, the applicant has not filed any amended application or written submissions.

3. The application is at CB1 - 12.  It notes that it is an application for a Medical Treatment visa (CB1) and the grounds at CB3 are “I am suffering from back pain and unable to travel”.  It is apparent that the applicant was present in Australia at the time the application was completed (CB2). 

4. The application noted at CB5 “I may intend to enter a hospital as I have a severe back pain”.  At CB12, there is a medical certificate from Dr Mark Lun of the Plenty Valley Medical Centre dated 13 August 2014 which certifies that he has examined the applicant and “In my opinion he will be unfit for his normal work from Thursday, 14 August 2014 to Friday, 15 August 2014 inclusive.  He can return to normal work after this time”. 

5. On 19 August 2014, a delegate of the first respondent sent to the applicant notice of refusal of his application.  The decision record is at CB29 - 31.  The delegate noted that regulation 602.213 of the Migration Regulations 1994 had not been met by the date of decision.  Relevantly, the delegate found at CB31:

   The applicant last held a substantive temporary visa on 20/04/2012; therefore they did not hold a substantive temporary visa at the time of application and do not meet 602.213(1) and 602.213(2). 

   A valid application for a Medical Treatment visa was made on 18/08/2014.  As the application was not validly made within 28 days after the applicant ceased to hold a substantive visa, the applicant does not satisfy 3001 and the criteria of 602.213(3), 602.213(4) and 602.213(5).

   The application was therefore refused.

6. The applicant applied on 9 September 2014 to the Tribunal for review of the decision.  The material forwarded to the Tribunal did not indicate any additional ground as to why the delegate’s decision might be incorrect.

7. On 29 October 2014, the Tribunal wrote to the applicant inviting him to attend for a hearing on 26 November 2014 (CB65).

8. On 25 November 2014, the applicant emailed the Tribunal (CB72).  He requested an adjournment.  He said he had been injured and had great pain in his lower back and was unable to move.

9. He annexed as part of his application a medical certificate from Dr Santokh Singh of Epping Clinic (CB75).  Apparently no later than 21 November 2014, it relevantly certified:

   This is certify that I have today examined (the applicant). 

   In my opinion, he will be unfit for his normal school/work from 21/11/2014 to 23/11/14 inclusive.

10. A further certificate dated 25 November 2014 in the same terms asserted (CB76) that the applicant would be unfit for normal school/work from 24 - 26 November 2014 inclusive and that he was advised not to do heavy lifting/bending forward.

11. On 26 November 2014, an officer of the Tribunal telephoned the applicant at 9.24 am (CB77).  Relevantly, the case note reads:

    I telephoned the RA and advised that the presiding member has not agreed to grant the postponement request on the basis that the medical certificate supplied does not say he is unfit to attend the hearing.

    I advised that in the circumstances and due to the late notice, the presiding member is prepared to conduct the hearing by telephone.

    I asked him to please confirm he would be available on his mobile from 1 pm onwards and stated he should expect a call from the tribunal and reiterated that the hearing was going ahead this afternoon and he should ensure that he is available to take the phone call.  He stated that he would be available and will wait for the phone call.

12. On 26 November 2014 at 4.47pm, the same officer of the Tribunal created a further file note.  Relevantly, it reads (CB82):

    I called the mobile number provided by RA prior to his hearing at 1:15 pm and 1:17 pm in an attempt to conduct hearing preliminaries, however he did not answer.  I left messages outlining the reason for my call and advised I would call back between the times of 1:30 pm and 3:30 pm with the member and an interpreter present to begin his hearing.  I also advised that if he did not answer the phone to participate in the hearing it would be cancelled and a decision would be made on the papers by the tribunal member; 

    I called at 13:32 with the interpreter and left another message.

    During the MAHL I called with the member and interpreter present to begin the hearing however, RA did not answer his phone. (time of call 1:40 pm).  The attempt was recorded and the member cancelled the hearing and the interpreter was released.

13. The Tribunal member clearly elected to continue with the hearing and her decision is at CB88 - 91, handed down on 27 November 2014.

14. The Tribunal noted the history of the applicant’s non-attendance already referred to above.  At paragraphs 8 - 9, CB89, the Tribunal noted:

    The applicant therefore did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  To date there has been no response from the applicant concerning the Tribunal’s attempts to contact him.

    In these circumstances, and pursuant to s. 362B(1) of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. In making this decision, the Tribunal notes that it has considered its power under s. 362B(2) to reschedule the applicant’s appearance before it, or to delay its decision on the review in order to enable the applicant’s appearance before it as rescheduled.  However, having sent the invitation to the correct email address of the applicant provided with the review, in view of his confirmation of his availability for the telephone hearing, and of the Tribunal’s subsequent and unsuccessful attempts to contact him by telephone, the Tribunal has elected not to further exercise its power to defer the review.

15. The Tribunal went on at paragraphs 12 - 13 to note that cl. 602.213 applies to applicants who are in Australia at the time that the visa application is made and that the applicant was so present.  It also relevantly requires that the applicant either held a substantive temporary visa of the specified type, or if not held a substantive temporary visa and was not medically unfit to depart Australia as required by cl. 602.212(6).  There were various other requirements the applicant had to meet.  The Tribunal noted the applicant’s assertion of severe back pain and his doctor’s certificate, but went on in paragraph 15, CB90, to note:

    There is no other evidence or any claim that the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition.  He has not produced a written statement to that effect from a Medical Officer of the Commonwealth (cl. 602.212(6)(f)).  In addition, his date of birth, as recorded in his passport on the department’s file, is 23 January 1979.  He has therefore not turned 50 (cl. 602.212(6)).

16. The Tribunal noted, therefore, that the applicant had not met the requirements of cl. 602.212(6).

17. The Tribunal noted that because the last substantive temporary visa the applicant held was not a subclass 403 or 426 visa, he must meet Schedule 3 criteria 3001, 3003, 3004 and 3005.  In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day, which was not the case in this instance (paragraph 18).

18. The Tribunal found, and was clearly correct to do so, that the applicant’s application lodged on 18 August 2014 was about 16 months after the last day upon which he held a substantive visa.  It was therefore not made within 28 days of the relevant day and the applicant therefore did not satisfy criterion 3001.

19. The Tribunal concluded, therefore that the applicant did not satisfy cl. 602.213, which was an essential criterion for the grant of the visa.

20. It should be noted that the Tribunal had earlier found at paragraph 2, CB89:

    The applicant applied for the visa on 18 August 2014.  At that time, class UB contained one subclass, Subclass 602 (Medical Treatment).  There were therefore no other classes of visa available.

21. When the matter came before the Court, the applicant, who is self-represented, asserted that he was not aware that he needed a certificate from the Commonwealth.  He had met with an accident and was depressed, which was the reason he could not deal with the matter.  He complained that he had not been told that his visa had expired and thus did not know about the 28-day criterion.  He asked if he would get an opportunity for another hearing and said he wished to hire a lawyer.  He said he was not working with his former lawyer and, indeed, not working now.

22. Counsel for the first respondent was essentially content to rely upon the written submissions filed.  Essentially, she submitted that the Tribunal applied the relevant law and had provided procedural fairness.  She pointed to the fact that the applicant had been invited to the hearing and received the invitation, but now says that he was unwell.

23. Finally, I should note that the applicant asserted in reply that his telephone had been broken when his car had an accident.  Given that the Tribunal officer had been able to speak to the applicant on the day of the posited hearing, that explanation is impossible to accept, bearing also in mind that if one were to accept the force of his medical certificate, he could not possibly have been driving a car.

24. In this case, my conclusions can be expressed very shortly.  In the circumstances, there was quite clearly nothing improper about the Tribunal exercising its discretion to proceed to hear and determine the matter without adjourning further to give the applicant a further opportunity to be heard.  This conclusion is so obvious it is not necessary to say anything further.

25. Furthermore, the Tribunal’s reasoning was plainly correct.  The applicant made his application a very substantial time after the expiry of his last substantive visa and well outside the 28-day limit.  It is immaterial whether the applicant knew the limit had expired.  Furthermore, for the reasons given by the Tribunal, he did not otherwise satisfy the criteria for the grant of the visa he sought.

26. This claim is, I regret to say, devoid of merit and will be dismissed with costs. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 23 November 2016