KAUR v Minister for Immigration

[2017] FCCA 898

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 898

Catchwords:
MIGRATION – Application for judicial review of Tribunal decision affirming decision of delegate of the First Respondent refusing to grant the Applicants student visas – held no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.362B
Migration Regulations 1994 (Cth), cl.572.223(1)(a), sch.2

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1559

First Applicant:    BIKRAMJIT KAUR

Second Applicant:   HARPAL SINGH

Third Applicant:   TEVLIN KAUR KHURMI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1149 of 2016

Judgment of: Judge Jones

Hearing date: 6 April 2017

Date of Last Submission: 6 April 2017

Delivered at: Melbourne

Delivered on: 6 April 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms Koya

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Application for judicial review filed on 1 June 2016 be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1149 of 2016

BIKRAMJIT KAUR

First Applicant

HARPAL SINGH

Second Applicant

TEVLIN KAUR KHURMI

Third 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 is in relation to an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 May 2016, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”), refusing to grant the Applicants Student (Temporary) (Class TU) visas (“the visa”).

2. By way of background, the First Applicant (“the Applicant”) is a female citizen of India and arrived in Australia in 2009 on a Student (Temporary) (Class TU) visa. The Second and Third Applicants are her husband and son, respectively, who are both dependants on the Applicant’s visa.

3. On 19 December 2014, the Applicants applied for subsequent Student (Temporary) (Class TU) visas. On 23 March 2015, a delegate of the Minister (“the delegate”) refused to grant the Applicants the visas, on the basis that the Applicant did not satisfy a criterion that she was required to under the Migration Regulations 1994 (Cth) (“the Regulations”). This criterion was contained in cl.572.223(1) of sch.2 to the Regulations, and in essence required the Applicant be a genuine applicant for entry and stay as a student on a temporary basis in Australia.

4. The Applicant applied for review to the Tribunal and was invited to attend a hearing on 12 May 2016 to give evidence and present arguments in relation to her case.

5. On 10 May 2016, the Applicant wrote to the Tribunal by email, and stated that she had been in the Northern Hospital since the previous day due to health problems, and that she would be unable to attend the hearing (CB 131).

6. The Tribunal responded to the Applicant and her migration agent, informing them that her request for the postponement of her hearing had not been granted. The Tribunal said that it would consider any certification from the Applicant’s treating doctor that outlined, in detail, the nature and history of her medical condition, her future prognosis, and the reasons why she would be unable to appear before the Tribunal (CB 132).

7. The Applicant provided to the Tribunal, through her migration agent, the Applicant’s discharge plan from the Northern Hospital (CB 136) and a medical certificate (CB 137). I will return to those in due course. 

8. On 11 May 2016, the Tribunal wrote to the Applicant and her agent and stated it was not prepared to grant an adjournment on the basis of the information before it, however it would conduct a telephone hearing (CB 138).

9. At the Tribunal hearing on 12 May 2016, the Tribunal attempted to contact the Applicant on her mobile phone number recorded in the Tribunal’s files, in order to conduct the hearing by telephone, however there was no answer (CB 140). The Tribunal proceeded to make its decision on 13 May 2016, without taking further action to enable the Applicant to appear before it, pursuant to s.362B of the Migration Act 1958 (Cth) (“the Act”).

Tribunal decision

1. The Tribunal decision (at CB 146-152) set out in detail, firstly, the reasons why it had refused to postpone the adjournment and then, secondly, turned to consider the Applicants’ claims, on their merits. I should say that the essence of the Applicant’s complaint is, in fact, the refusal of the Tribunal to adjourn her hearing because she said that she had a medical condition which prevented her from attending the hearing, and from providing the Tribunal with documents that she believed would assist her case.

2. However before I turn to that, I will briefly set out the Tribunal’s consideration of the merits of the Applicants’ case. The Tribunal, having decided to proceed to a decision in the Applicant’s absence, without taking further steps to enable the Applicant to proceed to a hearing, found that in the circumstances of this particular case, the Applicant did not satisfy cl.572.223(1)(a) of sch.2 to the Regulations. In doing so, the Tribunal considered the information that was provided by the Applicant to the delegate, as well as the delegate’s decision record (CB 150-151 at [26]-[27]).

3. The Tribunal said (CB 150-151 at [26]):

   I have had regard to the information contained in the decision record that was provided to the Tribunal by the review applicants.  I note from the decision record that the delegate has identified that:

   ·The first named applicant arrived in Australia in April 2009 and since that time she has spent 1713 days in Australia and 113 days outside Australia;

   ·Both her husband and child are living with the first named applicant in Australia;

   ·The first named applicant’s Diploma of Management course was cancelled on 2 July 2014 due to non-payment of fees;

   ·The departmental records indicated that the first named applicant did not study between 2 July 2014 and 15 December 2014;

   ·The first named applicant applied for a subclass 572 visa based on her enrolment into Diploma of Management followed by Certificate III and IV in Commercial Cookery at South Pacific Institute;

   ·The first named applicant made little progress academically in more than 6 years since she arrived in Australia.  She presented evidence to the Department that she has completed the following courses: 

   oCertificate III in Business (certificate awarded 28 August 2012);

   oCertificate III in retail baking (certificate awarded 16 December 2014).

4. The Tribunal noted that it had invited the Applicant to provide documents that would show her past studies in Australia, including copies of all attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work related to the Applicant’s past or intended studies in Australia (CB 151 at [27]). The Tribunal noted that it had invited the Applicant to provide these documents in its correspondence of 20 April 2016, inviting the Applicants to the hearing. The Tribunal noted the Applicants had failed to provide these documents.

5. The Tribunal noted that it had invited the Applicants to appear before it and provide additional evidence, but that the Applicants had not done so (CB 151 at [28]). The Tribunal then said that it had considered the Applicant’s academic progress since arriving in Australia in April 2009 (CB 151 at [29]). It stated that, on the basis of the information before it, it appeared that the Applicant had only completed Certificate III in Business and Certificate III in retail baking since arriving in Australia, despite being here for over six years. 

6. The Tribunal’s findings are set out at [30] of its decision record:

   On the basis of the information before me I find that the first named applicant has not provided any clear or adequate reason for why she wishes to study the proposed courses or how these courses will fit within her career plan or lead to further remuneration in her home country or a third country. I have formed the view that the first named applicant has undertaken and now proposes to further undertake relatively short and inexpensive courses for the purposes of maintaining ongoing residence in Australia.

7. The Tribunal then found that (CB 151 at [31]):

   … the applicant has been outside Australia for a cumulative period of 113 days since initial arrival, without adequate explanation leading me to consider she has stronger ties to Australia than to her home country.  Her husband and child are living with her in Australia.

8. The Tribunal then noted that the Applicant had not provided any further information to indicate that she is a genuine applicant for temporary entry as a student. The Tribunal then found that (CB 151 at [32]):

   … Based on the evidence before me, I have come to a view that the first named applicant is using the student visa program to circumvent migration programs and maintain residence in Australia and that she is not a genuine applicant for entry and stay as a student.

9. Accordingly, the Tribunal found that the Applicant did not meet the requisite criteria for the grant of the visa, as contained in cl.572.223(1)(a) of sch.2 to the Regulations (CB 152 at [34]). The Tribunal said that, for those reasons, it affirmed the decision under review (CB 152 at [36]).

Judicial Review

1. I move now to consider the Applicant’s Application for judicial review.  The Applicant was self-represented in these proceedings and she was assisted by an interpreter in the Punjabi and English languages. However, early in the proceedings it appeared to me that she was very competent in understanding the English language. I asked the Applicant whether she would be happy to proceed on the basis that, if she had any difficulty understanding what was being said, then she would let the Court know and ask the interpreter to interpret for her. The Applicant agreed to this process.

2. The Applicant’s grounds for judicial review in the Application filed on 1 June 2016 are as follows:

   1.   MRT decision is not acceptable. I applied for extension of time due to illness. I was not fit to attend the hearing. MRT didn’t accept my request and medical report. 

   2.   MRT decision was not taken in fairly manner. MRT should give another hearing date. 

   3.   I am not happy the decision of MRT. In decision MRT didn’t consider my illness and exceptional circumstances.

3. Having explained to the Applicant that the nature of the judicial review is that the Court focuses on the Tribunal decision and decides whether there was a serious legal mistake, I asked the Applicant to explain in her own words, referring to each of the grounds of review, why she believes that the Tribunal decision was wrong, and she did so. 

4. In relation to ground one, the Applicant said that she was admitted to hospital in the emergency department. The Applicant said that she had trouble breathing, that she had a back condition and that she could not speak. In addition, the Applicant said that she was responsible for looking after her and her husband’s child. I confirmed with her that the medical evidence that she relied on in seeking an adjournment was set out at CB 136-137. She said this was so.

5. In relation to ground two, the Applicant said that the Tribunal decision was wrong because she was not given enough time to show the documents that she had. I asked the Applicant what documents she was referring to, and she said the documents regarding her study history.

6. In relation to ground three, the Applicant in essence repeated what she had said earlier, which is that her condition was so bad that, in circumstances where she also had family responsibilities, she was unable to attend the hearing and participate. The Applicant said that she therefore requested more time, and was denied that request.

7. The Minister has filed, as the Minister always does, written submissions in relation to this matter on 18 January 2017. I confirmed with the Applicant that she had a copy of the Minister’s written submissions, and that she had been able to read those written submissions. I am satisfied that she had read and understood the written submissions, so far as she could, given that they deal with the question of law.

8. The Applicant’s grounds of review are, in essence, that the Tribunal acted unreasonably in refusing to grant an extension of time because of its failure to consider and accept her medical evidence in relation to her medical condition that prevented her from participating in the hearing. 

9. I now turn to the Minister’s oral submissions. Counsel for the Minister dealt with ground two of the application first, which was that the decision was not a fair decision, and the Applicant should be given another hearing date. Counsel for the Minister noted that the Applicant made her Application on 19 December 2014, and that the Application (CB 1-27) was deficient, as there were no documents or information attached to the Application to assist the delegate to determine the matter.

10. Counsel for the Minister noted that the Department wrote to the Applicant on 22 December 2014, requesting particular information, including the Applicant’s study history (CB 39). Counsel for the Minister noted that the Applicant had provided further information, but not all the information required. Counsel for the Minister then noted that on 23 March 2015, the delegate found that the Applicant did not satisfy the requisite criteria (CB 76-84).

11. In essence, the delegate found that the Applicant did not meet the criterion under cl.572.223(1)(a) of sch.2 to the Regulations requiring that the Applicant intends genuinely to stay in Australia temporarily, having regard to various matters prescribed therein (which include her circumstances and her immigration history).

12. In the course of reaching her decision, the delegate traversed relevant factors, including the Applicant’s immigration history, her limited studies over a period of six years, and her lack of connection to her home country of India compared to her connection to Australia.  This is relevant because these are also the factors that also moved the Tribunal ultimately to make its decision.

13. Counsel for the Minister noted that on 7 April 2015, the Applicant was invited by the Tribunal (after the Applicant had made an application for review of the delegate’s decision) to provide any information that she believed was necessary (CB 109). Counsel for the Minister noted that subsequently, on 20 April 2016, the Applicant was invited to a hearing, and in the correspondence, the Applicant was specifically requested to provide the following information; a copy of her current certificate of enrolment, documents that showed she was currently enrolled in a course, and (significantly), documents that showed her past studies in Australia, including copies of all her attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work related to past or intended studies in Australia,  and (significantly), an explanation of any gaps in her enrolments and any documentary evidence relevant to her explanation (CB 115).

14. The Minister submitted that, on the basis of this, the Applicant has in fact had, at least since the delegate’s decision dated 23 March 2015, over one year to obtain and provide the documents that were requested given that the Tribunal hearing date was 12 May 2016. On this basis, the Minister submitted that the Tribunal’s decision was not unfair, in the sense that it denied the Applicant the opportunity to provide relevant documents.

15. I agree with the Minister’s submission. The Applicant had over one year to provide the relevant documents. She was represented during that time. The delegate’s decision record made it clear what was deficient in relation to the information she had or had not provided to the delegate. Therefore, the Applicant’s statement that she just needed more time to provide relevant documents does not move this Court to conclude that she was dealt with unfairly, in circumstances where she had one year to obtain and provide those documents to the Tribunal, and had failed to do so.

16. I now turn to the real complaint of the Applicant, which is that the Tribunal failed to adjourn the hearing on the basis that she was not fit to attend the hearing. This is reflected in grounds one and three of the Applicant’s application for judicial review.

17. Counsel for the Minister pointed out that, on 10 May 2016 (two days before the hearing), the Applicant informed the Tribunal that she was unable to attend because of her medical condition and that she had been discharged from hospital (CB 131).

18. The Tribunal responded to the effect that it was refusing the adjournment. It said (CB 132):

    … Please be advised that as you have failed to provide medical evidence as to why you are unable to attend the hearing, the Tribunal will carefully consider any certification by your treating doctor which outlines in detail the nature and history of your medical condition, your future prognosis and the reasons why you would be unable to appear before the Tribunal.

    In the event that medical certification is presented, please note that the Tribunal may also wish to contact your treating doctor to discuss with him/her your capacity to give evidence before any adjournment request will be granted.

19. In a case note, there is also a follow up discussion reflecting the decision of the Tribunal not to postpone the hearing, and the requirements of the Applicant in relation to medical evidence

    
    

    (CB 133).

20. As I have already indicated, the Applicant then provided, through her migration agent, the medical evidence that she relied on. This comprised of two documents. The first is a discharge plan issued by the Northern Hospital on 10 May 2016 (CB 136), and the second is a certificate, referred to as an “Ordinary Medical Certificate”

    
    

    (“OMC”), issued by a medical officer of the Northern Hospital

    
    

    (CB 137). In the OMC, it states that the medical officer certifies that the Applicant was suffering from “a medical condition and will be unfit to follow his/her daily occupation from 10 May 2016 to 11 May 2016 inclusive (two days).”

21. I have already indicated that the Tribunal wrote to the Applicant saying that this medical evidence was not sufficient (CB 138). I note that the Tribunal did further remind the Applicant of the hearing on 5 May 2016 and 12 May 2016 by SMS text message (CB 139-140).

22. The Tribunal then proceeded to make its decision. The question before the Court, as I have indicated, is whether the Tribunal exercised its discretion under s.362B of the Act reasonably. In doing so, I have regard to the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”).

Consideration

1. I find that, in the circumstances, the Tribunal did exercise its discretion reasonably. There is a decision of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1559 (“NAKX”), which has been cited by the Federal Court, and subsequently this Court, in which his Honour was required to consider whether the medical certificates of the two appellants were sufficient to satisfy his Honour that the appellants were not able to attend the hearing.

2. It is to be noted that, for each of the appellant’s medical certificates that his Honour considered, the medical condition was actually described in the medical certificates. However, his Honour found the medical certificates not to be sufficient because they said, in a general way, that he or she was “unable to attend Court inclusive”, and ended the matter there.

1. In the present proceedings, the discharge plan does not assist the Court. I am not being critical of the Applicant. It does not say what the Applicant’s condition was, nor what her prognosis was. She has made submissions that she could not speak. That may be so, but the evidence that I am considering (and I did emphasise this with the Applicant) is what was before the Tribunal. The evidence before the Tribunal was a discharge plan, simply indicating that the Applicant had been discharged and that there should be a follow up with her general practitioner in the next three or four days.

2. The OMC was deficient for two reasons. First, it simply stated that the Applicant was suffering from “a medical condition”. It did not indicate, as Lindgren J has said in NAKX, why the Applicant was unable to participate in a hearing, even by telephone. Secondly, the OMC said that the Applicant would be unfit to follow her daily occupation from 10 May 2016 to 11 May 2016. The OMC only covered the two days before the hearing. It did not cover the day of the hearing, which was 12 May 2016.

3. In those circumstances, I am satisfied that the medical evidence provided by the Applicant was not sufficient to satisfy the Tribunal that the Applicant was unable to participate in the hearing. Consequently, the Tribunal’s discretion to proceed under s.362B of the Act was not exercised unreasonably. In my view, the Tribunal was entitled to proceed to make its decision without taking any further steps.

4. The Tribunal’s discretion was exercised reasonably, and the Tribunal’s decision record sets out its reasoning in some detail. The reasons were, essentially, that the Applicant had enough time to provide the required information, and that the medical evidence that was provided by the Applicant was insufficient. I agree with the Tribunal.

Conclusion

1. For these reasons, I find that the Applicant’s grounds of judicial review do not give rise to jurisdictional error.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 26 May 2017