Kumar v Minister for Immigration

[2020] FCCA 2100

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2100

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (subclass 573) visa – application for extension of time – whether the Tribunal erred by not considering relevant documents – whether the Tribunal erred by not considering evidence which were significant to the decision – whether the decision was unreasonable, irrational or illogical – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss, 360, 362, 363, 368, 476

Migration Regulations 1994 (Cth), r 4.21

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

WZATH v Minister for Immigration [2014] FCCA 612

Applicant: RAKESH KUMAR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1838 of 2019

Judgment of: Judge Humphreys

Hearing date: 30 July 2020

Date of Last Submission: 30 July 2020

Delivered at: Parramatta

Delivered on: 6 August 2020

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: Ms Ren, Australian Government Solicitors

ORDERS

1. By consent, grant an extension of time for the filing of an application to this Court.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $4,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1838 of 2019

RAKESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant has a significant migration history. The applicant first arrived in Australia in 2009 on a Student (subclass 573) visa and has never left. In 2010, the applicant’s student visa was cancelled. In 2011, the then Migration Review Tribunal (“MRT”) affirmed the delegates decision to cancel the applicant’s Student visa. The applicant unsuccessfully sought judicial review in the Federal Court.

2. In November 2013, the applicant was detained in immigration detention and remained there for the next three years. In December 2013, the applicant applied for a protection visa. This was again refused. The applicant sought merits review at the then Refugee Review Tribunal (“RRT”) and then judicial review at the Federal Court and Full Federal Court.

3. The applicant was refused further bridging visas, but was eventually released into the community. There were subsequent appeals in respect of the protection visa, including an appeal in September 2017 to the High Court, which was unsuccessful.

4. On 4 January 2018, the applicant lodged an application for a Medical Treatment (Visitor) (Class UB) Subclass 602 visa. A delegate of the Minister for Immigration (“the delegate”) refused to grant that visa on the same day. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).

5. On 11 June 2019, the Tribunal dismissed the application under

   
   

   s 362B(1A)(b) of the Migration Act 1958 (Cth) (“the Act”), as the applicant did not appear before the Tribunal at the time and date of the hearing. The applicant was notified of the dismissal decision and given a copy of a written statement, setting out the decision and the reasons for the decision in accordance with s 362C(5) of the Act.

6. The applicant sought reinstatement of the hearing and indicated he had attended a medical practitioner on the date of the hearing. The applicant stated he was regretful that he did not attend the hearing. The applicant attached a tax receipt showing he attended a medical practitioner on 11 June 2019. However, no evidence was presented that the applicant could not participate in the hearing and no evidence was presented that the applicant was unable to request a postponement of the hearing, prior to the scheduled date and time.

7. Accordingly, the Tribunal was not satisfied that on the basis of the applicant’s submission and the evidence presented in support of the submission, that the application should be reinstated. The Tribunal accordingly confirmed the dismissal of the application.

Grounds of Judicial Review

1. The applicant’s grounds of review are as follows, verbatim:

   1.   The AAT member made an error of law for not considering my relevant document (medical reports) which are important to my case.

   2.   The AAT member made an error of law by not considering evidence which are significant and critical to the decision under review.

   3.   There are some jurisdictional error in the AAT decision.

   4.   The delegate failure to consider relevant information and paying regards to irrelevant information.

   5.   Unreasonableness and unfairness of procedures, as failure to accept original documents and unwillingness and disregard to further investigate its veracity.

   6.   The delegate made an error of law for not considering my medical reports.

2. No particulars are supplied in support of the above grounds.

The Applicant’s Submissions

1. Due to health restrictions, the hearing was conducted by telephone. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Notwithstanding Court orders, no written submissions in support of the application, were provided to the Court. Prior to the commencement of the hearing, the Court ensured that the applicant was in the possession of the relevant Court book and that a copy of the first respondents written submissions had been translated to him.

2. The Court carefully explained the procedure that would be followed, in relation to the conduct of the hearing, following which the applicant was invited to make any oral submissions to the Court that he wished to. The applicant told the Court that he went to a function before the hearing and subsequently became ill. The applicant was unable to see a medical practitioner till the day of the hearing. The applicant candidly admitted that he did not contact the Tribunal on the day of the hearing to obtain a postponement. The applicant stated he was unaware that he needed to provide a medical certificate that indicated he was unable to attend or participate in the hearing, to support his application for a reinstatement of the matter.

3. At the conclusion of the first respondent’s oral submissions, the applicant was again invited to make any oral submissions to the Court. The applicant declined to do so.

The First Respondent’s Submissions

1. The first respondent noted that the application for judicial review was filed within the statutory timeframe, as calculated from the confirmation decision dated 25 June 2019. In these circumstances, the first respondent consented to the Court granting an extension of time to seek judicial review of the non-appearance decision dated 11 June 2019.

2. The first respondent noted that the Tribunal properly notified the applicant that it proposed to hold a hearing on 11 June 2019. On 14 May 2019, by email, the applicant provided the Tribunal with a response confirming he would attend the hearing. The applicant was sent two reminder SMS messages on 3 June and 7 June 2019, respectively. Due to the applicant’s nonappearance, at 3:29pm, the Tribunal dismissed the application for non-appearance under s 362B(1A)(b) of the Act.

3. On 13 June 2019, the Tribunal informed the applicant of the nonappearance dismissal of his matter, but he could apply for reinstatement by 27 June 2019. The applicant responded with the medical tax receipt confirming he had attended a medical practitioner that day, but no medical certificate. The Tribunal considered the material that the applicant provided, but was satisfied that the application should not be reinstated and confirmed the decision to dismiss the application.

4. On behalf the first respondent, it was submitted that all relevant statutory requirements for the exercise of the power to dismiss the matter, pursuant to s 362(1A)(b) of the Act, were met. The invitation letter met the requirements of s 360A of the Act in that it specified the time, date and place of the hearing was sent by an approved method, being email, on 8 May 2019, which was more than the required 14 days minimum notice prescribed in r 4.21(4) of the Migration Regulations 1994 (Cth) (“the Regulations”).

5. That notification also included a statement describing the effect of

   
   

   s 362B of the Act, including that if the applicant did not attend the scheduled hearing, the Tribunal may dismiss the application for review without any further consideration of the application or information before it (see s 360A(5) of the Act).

6. It was submitted that all relevant procedural requirements to enable the Tribunal to dismiss the matter, due to non-appearance of the applicant, were complied with. Thus, the decision to dismiss the matter was lawfully made.

7. It was further submitted that the Tribunal complied with all procedural obligations in making and notifying the applicant of the nonappearance decision, pursuant to s 362C of the Act. The notification set out that the decision was to dismiss the application, due to the applicant failing to appear. It clearly indicated the day and the time of the non-appearance and was emailed to the applicant, in a prescribed method (email) well within 14 days, after the decision to dismiss the application for non- appearance was made. The notification also included an information sheet about dismissal applications and advised the applicant in clear terms that he could apply for a reinstatement, as well as the consequences for failing to do so (see s 363C(6) of the Act).

8. Following the applicant applying for reinstatement, it was submitted that the Tribunal complied with s 368A of the Act by providing a written statement of the confirmation decision. That decision referred to the applicant’s receipt for a consultation with a medical practitioner, as being considered in the reinstatement application, but advised that the decision under review, was affirmed pursuant to s 368(1)(e) of the Act.

9. In relation to ground one, it is submitted that this asserts the Tribunal did not consider the applicants medical “reports”. The only medical evidence before the Tribunal related to the applicant’s substantive visa application and did not relate to his nonappearance. Accordingly, the Tribunal was not required to consider the merits of the information in a substantive application. Ground six is substantively the same as ground one and both cannot succeed.

10. In relation to ground two, it is clear that the Tribunal did consider the tax receipt but noted that it did not contain any material that the applicant was unable to participate in a hearing or request a postponement.

11. Ground three is a bare assertion that there was some jurisdictional error, but no particulars are provided. Without particulars, the ground cannot succeed (see WZATH v Minister for Immigration [2014] FCCA 612 at [60]).

12. Ground four contends that the delegate failed to consider relevant information or had regard to irrelevant information. It was submitted that the Court does not have jurisdiction, in respect of the delegate’s decision. This ground cannot succeed.

13. The first sentence of ground five complains that the Tribunal was unreasonable and unfair in its procedures. It was submitted that the Tribunal complied with its procedural requirements in making its decision. Any suggestion that the decision is unreasonable, cannot succeed. The issue was whether the applicant established he was unable to attend or participate in the hearing. No evidence was provided that the applicant was unable to do so, other than he consulted a General Practitioner for a consultation “lasting less than 20 minutes”. It is submitted that the Tribunal had an intelligible justification to refuse the reinstatement application and there is no basis for contending the Tribunal acted unreasonably.

14. The second sentence in ground five asserts that the Tribunal failed to accept original documents and did not further investigate its veracity. It is submitted that this ground is vague and lacks particulars. If the applicant was referring to the tax receipt that he provided, the ground is misconceived. The Tribunal did not doubt the truthfulness of the receipt and accepted the applicant attended the medical centre on the day of the hearing. Rather, it refused to reinstate the application on the basis that there was insufficient evidence of the applicant’s inability to participate in the hearing or request an adjournment. No jurisdictional error is apparent.

15. In terms of the matters raised by the applicant in his submissions, the representative for the Minister noted that it was for the applicant to make his case and it was not for the Tribunal to seek additional information from the applicant. The decision of the Tribunal to refuse reinstatement was a reasonable exercise of the legitimate discretion, open to the Tribunal, given the material they had before it.

Consideration

1. The Court is reasonably satisfied that the Tribunal complied with all procedural requirements, in relation to the notification of the time, date and place of the hearing and the consequences of non-attendance, pursuant to s 360A of the Act. This included a statement that if the applicant did not appear, the matter could be dismissed, pursuant to

   
   

   s 362B of the Act.

2. It is not contested that the applicant did not appear at the hearing or request an adjournment. The Court is satisfied that the Tribunal made a valid and lawful decision to initially dismiss the matter due to the applicant’s lack of attendance, pursuant to s 362B(1A)(b) of the Act. That initial decision was properly conveyed to the applicant and all procedural obligations in making and notifying the applicant of his non-appearance were complied with. The applicant was made aware that he could seek to have the matter reinstated.

3. In the applicant’s response, he sought reinstatement and provided only a tax receipt, in respect of a medical consultation on the day of the hearing. There was no information as to the condition the applicant was suffering from, or that he was unfit to attend the Tribunal hearing either in person, or by an alternative means, such as telephone. The Tribunal considered this material but confirmed the dismissal pursuant to s 368(1)(e) of the Act. The Court is satisfied that this was a decision that was clearly open to the Tribunal on the material it had before it. All procedural requirements set out in the Act were complied with. There was nothing illogical or legally unreasonable in the decision to confirm the dismissal.

4. In terms of the grounds of judicial review, there is a substantive overlap between the grounds. The Court is satisfied that ground one and ground six are substantively the same. There was no requirement of the Tribunal to consider the medical information that is contained in a substantive application. These grounds cannot succeed.

5. The Court is satisfied to the extent that ground two alleges the Tribunal failed to consider the evidence submitted in support of the reinstatement application. This fails at a factual level. The Tribunal clearly considered the medical tax receipt and made reference to it, in its confirmation decision. This ground cannot succeed.

6. Ground three is a bare assertion of jurisdictional error without any particulars and on that reason alone, can be dismissed. The Court is not satisfied that there is any jurisdictional error apparent within the Tribunal’s decision.

7. Ground four cannot succeed. The Court does not have any jurisdiction in respect of the delegate’s decision and is restricted only to the Tribunal’s decision (see ss 476(1), (2)(a) and (4) of the Act).

8. Ground five asserts procedural unfairness and legal unreasonableness. The Court is satisfied that all procedural requirements were complied with. There was no obligation on the Tribunal to investigate the veracity of any documents. It is for the applicant to present his evidence. The Tribunal is under no obligation to enquire. The Court is satisfied that the decision to confirm the dismissal, was within the decisional freedom of the Tribunal, based on the evidence that was before it. The decision is not one which lacked an evident and intelligible justification, was illogical irrational or otherwise legally unreasonable (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [76]). The applicant chose not to appear at the Tribunal hearing and provided no evidence to support the contention that he was unable to appear, or seek a postponement of the hearing.

9. As the applicant is unrepresented, the Court has perused the Tribunal’s decision record and the papers contained within the Court book. The Court is satisfied that there is no jurisdictional error that has not been articulated by the applicant.

Conclusion

1. Accordingly, the application is dismissed.

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

Associate:

Date: 6 August 2020