Malhi v Minister for Immigration

[2013] FCCA 1869

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALHI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1869

Catchwords:
MIGRATION – Applicant seeking adjournment on questionable grounds – applicant asserting he was prevented from presenting his case when he never in fact attended the Tribunal hearing – application for adjournment refused – application dismissed.

Legislation:  

Migration Regulations 1994 (Cth), cl.485.215, reg.1.15C
Migration Act 1958 (Cth)

Applicant: RANJIT SINGH MALHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 743 of 2013

Judgment of: Judge Burchardt

Hearing date: 25 October 2013

Date of Last Submission: 25 October 2013

Delivered at: Melbourne

Delivered on: 25 October 2013

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The Applicant’s application for an adjournment is refused.

3. The Applicant’s application filed 28 May 2013 is dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 743 of 2013

RANJIT SINGH MALHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The matter before the Court is unusual; it is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) which was dated 29 April 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.  I note that the Tribunal records that the delegate refused the application because the applicant did not have the required English language proficiency.  From paragraph 4 of the Tribunal’s decision (Court Book (“CB”) 175) it is apparent that the applicant was invited in writing to appear before the Tribunal to give evidence and present arguments. 

2. On 4 April the applicant requested an adjournment of the hearing on the basis of the recent injury to his knee and provided a medical certificate certifying that the applicant was unfit for work between 4 April and 12 April 2013.  On 4 April 2013 the Tribunal contacted the medical practitioner who had issued the certificate who confirmed that, in his opinion, the applicant would be able to attend the hearing and indicated that the medical certificate had only been issued for work purposes.  It is sufficient to record that the Tribunal hearing was rescheduled and the applicant did not attend the adjourned hearing.

3. The Tribunal, nonetheless, considered the claims and evidence and, having referred in paragraph 8 (CB 176) to the relevant regulation, cl.485.215 and reg.1.15C, which requires a person in the applicant’s position to have what is described as ‘competent English’, the Tribunal went on, relevantly, to note at paragraphs 10-13 (CB 176):

   “10.  For r.1.15C(a)(i) and (iii), the Minister has specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components:  Legislative Instrument IMMI 12/018.

   11.    On the visa application form, the applicant indicated he had not undertaken an English test within the last 24 months.  There is otherwise no evidence before the Tribunal that the applicant had in fact undertaken one of the two specified English language tests in the relevant period. 

   12.    The Tribunal accordingly finds that the applicant does not have competent English as defined in r.1.15C(a).

   13.    Therefore, the requirements of cl.485.215 are not met.” 

   So on that footing, the Tribunal dismissed the application before it.

4. On 28 May 2013 the applicant filed his application in this Court.  The grounds of the application I will read out and are as follows:

   “1.    The decision of the Tribunal was a denial of procedural fairness and natural justice 

   PARTICULARS 

   I was very unhappy with the way my case was heard, in that I was of the belief that my case would be the only one heard.  Instead there were other people whose cases were on who were present in the court.  I wanted to present my case to the tribunal in my own way, Having these other people present, affected the way I presented the case and I say that it was not fair to me that the tribunal proceeded in the way the conducted my case.”

5. The applicant’s affidavit in support of that application effectively simply repeats the ground to which I have referred. 

6. In due course, Registrar Allaway made orders for the orderly conduct of the matter on 7 August 2013.  Orders were made by consent which included that the applicant file any amended application with a supplementary Court Book and written submissions within a given time.  He has done none of those things.  He has, however, filed a notice of address for service. 

7. There the matter lay until, effectively, this morning when the Court has been handed by the solicitors for the first respondent a facsimile apparently sent to Messrs Clayton Utz, the first respondent’s solicitors, on 24 October 2013 at 4.30 pm.  The letter addressed to Clayton Utz from the applicant reads as follows:

   “Dear Sir/Madam,

   I am Ranjit Singh Malhi D.O.B 20-04-1977 and file no MLG743/2013.  I have hearing in the Federal Circuit Court on 25/10/13.  But I cannot attend this hearing because I am sick and sending medical certificate as well. 

   Thank you, Ranjit Singh”

   And it is dated yesterday.  The medical certificate is from the Union Medical Centre in Springvale and is signed by Dr Verghese.  It is dated yesterday and it certifies that the doctor has examined the applicant yesterday and states:

   “In my opinion Ranjit will be unfit for work duties from 24/10/13 to 25/10/13 inclusive.”

8. The matter was called this morning shortly after 9.30am, the time at which the matter was listed, and the applicant did not appear.  I have declined to adjourn the matter.  Clearly, I should treat the applicant’s letter and certificate as an application for an adjournment, but there are a number of things to be said about this.  First, the very late provision of a medical certificate showing unfitness for work repeats the pattern that apparently took place before the Tribunal, in circumstances where a more lengthy period of absence through unfitness to work proved, from Tribunal’s inquiries, to show that the applicant was in fact capable of attending Court.  That does not lead to a state of satisfaction on my part that the same situation applies here, but that history is of some relevance.

9. Second, the material from the doctor does not state that the applicant is unable attend Court and says nothing as to the nature of his condition or as to why he is unable to work or attend Court.  Third, in my view, the case is so totally deficient in merit that it is inappropriate to take up more of the Court’s time and more public expense of another hearing.  The fact is that, first of all, the Tribunal’s decision on the materials in the Court Book was plainly correct.  The applicant simply failed to comply with the mandatory criteria in respect of competent English.

10. Second, the first respondent’s submissions make an assertion which, in my view, is completely unopen to challenge in paragraph 24 where it is said:

    “It is difficult to make sense of the applicant’s contention that the “presen[ce]” of (unidentified) “other people” in the “court” “affected the way” that he “presented [his] case”.  The applicant never did “present his case”, because the applicant did not appear at the scheduled hearing.”

11. It is immediately apparent that the ground on which the applicant relies is utterly incapable of being made out.  The written submissions of the first respondent, in a way consistent with the obligation of the model litigant to do the best, as it were, that could be done with the applicant’s position is as follows (at paragraph 25):

    “If the applicant means to suggest that he arrived at the Tribunal at the scheduled time but then departed without appearing due to some concern about the presence of “other people” - noting that it is by no means clear that that is what the applicant does mean to suggest - then that cannot give rise to any form of jurisdictional error by the Tribunal.”

12. The written submissions go on, accurately in my view, to point out that the Tribunal clearly complied with the Migration Act 1958 (Cth) in its conduct of the case, even assuming in the applicant’s favour the by no means established, beneficent interpretation of events that the first respondent has set out. In the circumstances, the application is, in my view, hopeless. The ground relied upon is plainly, unfortunately, absurd and the Tribunal’s decision, far from being vitiated by any obvious error, is, to the contrary, the only one that appears to me that was reasonably open or, indeed, open at all on the facts as they stood.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  18 November 2013