Mani v Minister for Immigration

[2014] FCCA 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2019

Catchwords:
MIGRATION – Migration Review Tribunal – student visa – whether the Tribunal erred in refusing an adjournment application.

Legislation:
Migration Regulations 1994, cl.570.227 of Sch. 2
Charter of Human Rights and Responsibilities Act 2006 (Vic)

Cases cited:
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 87 ALJR 618; (2013) 297 ALR 225; [2013] HCA 18

Applicant: MOHENESH PRAKASH MANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 53 of 2014

Judgment of: Judge Riley

Hearing date: 4 August 2014

Date of last submission: 4 August 2014

Delivered at: Melbourne

Delivered on: 4 August 2014

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Solicitor Advocate for the First Respondent: Ms Mitchell

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The application filed on 14 January 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 53 of 2014

MOHENESH PRAKASH MANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. 

2. The applicant is a citizen of Fiji.  He has come to Australia a number of times on tourist visas.  On his last entry to Australia as a tourist, he lodged an application for a student visa.  One of the requirements for the grant of such a visa under cl.570.227 of Sch. 2 of the Migration Regulations 1994, in circumstances in which the application was made while the applicant was in Australia on a tourist visa, was that the applicant had exceptional reasons for the visa being granted to him.

3. The Department of Immigration asked the applicant to provide evidence demonstrating exceptional reasons for the grant of the visa.  However, the applicant did not respond to that request.  A delegate of the Minister proceeded to refuse the application. 

4. The applicant then applied to the Tribunal for review of the decision.  The Tribunal wrote to the applicant advising him, among other things, that his hearing before the Tribunal was scheduled for 3 October 2013 at 2pm and advising him that he should provide all documents he intended to rely upon to establish that he met the criteria for the student visa.  The hearing invitation also noted that if the applicant was not able to attend the hearing, he should advise the Tribunal as soon as possible and noted that the Tribunal would only change the hearing date if satisfied that the applicant has a very good reason for being granted an adjournment.  The letter also said that if the applicant did not attend the scheduled hearing, the Tribunal could make a decision without taking any further action to allow the applicant to appear before it. 

5. The applicant replied to that letter indicating that he did intend to attend the hearing, that he did not require an interpreter and that he did not want the Tribunal to take evidence from any other person. 

6. On 1 October 2013 at 4.13 pm, the applicant telephoned the Tribunal and advised a Tribunal officer that he was unwell and needed to see a doctor on the day of the scheduled hearing, being 3 October 2013. 

   
   

   The applicant asked for an adjournment of his hearing.  The Tribunal officer, according to the case note at CB105, advised the applicant that he would need to submit a request in writing explaining why he could not physically attend the hearing and attaching any supporting documents, such as a medical certificate, and the member would consider it. 

7. The applicant, later on 1 October 2013, sent the Tribunal by email a note, apparently signed by himself, saying that he could not attend the hearing on 3 October 2013 due to sickness.  He said he had been sick “this week” and had a doctor’s certificate until 2 October 2013.  He also said that he would attend the doctor or a hospital if his condition got worse.  He asked again for the date of the hearing to be changed.  In the email itself, he said that he would visit the doctor on

   
   

   3 October 2013 and forward a further medical certificate.  With that email, the applicant also provided a medical certificate dated 1 October 2013 which certified that he was unfit for duty/school for two days from 1 October to 2 October 2013.

8. An officer of the Tribunal replied to that email on 2 October 2013 at 11.05am.  The Tribunal officer said that the Tribunal was not prepared to postpone the hearing which would proceed as scheduled on

   
   

   3 October 2013.  The email noted that the medical certificate that had been provided said that the applicant was unfit for duty/school until

   
   

   2 October 2013.  The Tribunal’s email went on to say:

   If further evidence is to be presented, the Tribunal requests that it details the nature of your illness and specifically refers to your inability to attend a Tribunal hearing (which is anticipated to take no longer than 15 minutes).  A certificate stating you will be unfit for school/duty will not be accepted. 

9. The applicant sent the Tribunal an email on 2 October 2013 at 5.03pm which attached a statutory declaration made by the applicant on

   
   

   2 October 2013 at Lalor. It was written by hand and said:

   I will be unable to attend my hearing … due to my sickness.  I have sever (sic) diarrhoea and vomiting from last two days and due to see the doctor tomorrow or go to hospital if my condition does not improve.  I can not travel to [the] city to attend due to my above sickness.  Please advise on a new date.

10. The applicant sent to the Tribunal on 3 October 2013 at 9.45am a facsimile from the Lalor Newsagency enclosing another medical certificate saying that the applicant was suffering from a medical condition, namely “gastro”, and will be unfit for school/duty for two days from 3 October to 4 October. 

11. An officer of the Tribunal responded to the applicant’s communications on 3 October 2013 at 9.52am.  The heading included the word “urgent”, and the heading also included advice that the hearing was to proceed as scheduled at 2pm that day.  The body of the email said:

    The Tribunal has received and considered your Statutory Declaration sent last evening.  It is not prepared to postpone the hearing which will proceed as scheduled at 2pm today.

12. The Tribunal hearing record had written on it by hand the words “no show”.  The Tribunal proceeded to publish a written decision on

    
    

    4 December 2013, some two months after the scheduled hearing.  There is no indication of any communication between the applicant and the Tribunal after the Tribunal’s email sent on 3 October 2013 at 9.52am. 

13. The Tribunal’s reasons for decision noted the requirement that there be exceptional reasons for the grant of a student visa in circumstances where the applicant was in Australia on a tourist visa at the time that the application was made. 

14. The Tribunal’s reasons for decision also noted that the department had asked the applicant to provide any evidence that he had exceptional reasons for the grant of the student visa and the applicant had not responded to that request.  The Tribunal’s reasons for decision noted that the Tribunal had written to the applicant advising him that if he wished to provide material, he should do so as soon as possible.  However, the Tribunal received nothing from the applicant. 

15. The Tribunal’s reasons for decision also noted that the Tribunal wrote to the applicant inviting him to a hearing scheduled on 3 October 2013 and that the applicant had telephoned the Tribunal on 1 October 2013 requesting an adjournment.  The Tribunal’s reasons for decision traversed the communications between the applicant and the Tribunal with the exception of the statutory declaration that the applicant sent on 2 October 2013.   

16. The Tribunal’s reasons for decision went on to note that the applicant had not provided any material to suggest that he had exceptional reasons for the grant of the student visa.  The Tribunal said that it did not accept the applicant’s late attempt to postpone the hearing by the provision of medical certificates which failed to provide any real information about his condition that would have prevented him from attending a brief hearing.  In the circumstances, the Tribunal affirmed the decision under review.

17. The applicant was not represented before this court.  However, he did file written submissions.  The applicant said they were prepared with the assistance of a young lawyer who did not have a practising certificate.

18. The application to this court contains the following grounds:

    1.The Migration Review Tribunal (‘the Tribunal’) acted in excess or without authority to review the purported decision of the delegate, as the Tribunal did not provide sufficient time for the applicant to provide further real information about his condition that would have prevented him from attending the hearing.

    2.Further particulars will be provided in an amended application, as the application is filed to conserve the applicant’s rights to review.

19. No further amended application was filed or sought to be filed.  Accordingly, the only ground of review is the one alleging that the Tribunal did not provide sufficient time for the applicant to provide further real information about his condition that would have prevented him from attending the hearing. 

20. The outline of submissions provided by the applicant contains a chronology of the relevant events.  It alleges that the common law hearing rule is relevant to this matter.  However, that is clearly not correct.  The Migration Act 1958 modifies the common law position in relation to procedural fairness.  The submission also refers to the Victorian Charter of Human Rights and Responsibilities Act 2006.  That Act does not, of course, apply to the Migration Review Tribunal.

21. The applicant, in his written submissions, expressly stated that the applicant did not challenge that exceptional reasons were required for the grant of a student visa in circumstances where the applicant was in Australia on a tourist visa at the time of application.  The applicant also stated in his written submissions that he did not challenge the finding that the applicant had not provided evidence of exceptional reasons with his application and did not respond to an invitation by the department to provide evidence of exceptional reasons.  The written submissions also said that the applicant did not challenge the Tribunal’s finding that the applicant had failed to provide evidence of any exceptional reasons when applying to have his refusal decision reviewed by the Tribunal. 

22. The applicant also said, in his written submissions at paragraph 37 that:

    It was the Applicant’s intention to explain to the MRT at his hearing, the reasons why he was unable to provide the required documentation that was requested. 

23. When asked to explain that statement to the court, the applicant said that he wanted to tell the Tribunal why he had not been able to get documents showing that he had exceptional circumstances.  He referred to difficulties in being able to get information and documents from Fiji.

24. Although the application to this court said that the ground of review is that the Tribunal did not provide sufficient time for the applicant to provide further real information about his condition that would have prevented him from attending the hearing, the applicant’s written submissions do not further that claim.  The written submissions simply seem to argue that it was unreasonable for the Tribunal not to give a later hearing date on the information it had.

25. The ground set out in the application to this court is without substance.  The applicant first raised the issue of his health on 1 October 2013.  The hearing was not until 3 October 2013.  It is difficult to see how the Tribunal failed to provide the applicant sufficient time to gather real information about his condition.  The applicant appears to have gone to a doctor twice between 1 and 3 October 2013 and obtained medical certificates.  There was no explanation about why the doctor could not have given further information about the applicant’s condition that may have been sufficient to persuade the Tribunal that the applicant was not able to attend the hearing.

26. The applicant also suggests in his written submissions that the Tribunal was biased and had already made up its mind because it had indicated that the hearing would only take 15 minutes.  It seems to me that the hearing in this matter could well have reasonably only taken 15 minutes, given that all that was required was for the applicant to show that he had exceptional reasons justifying the grant of a student visa, in circumstances where he was in Australia on a tourist visa when the application was made.  There do not appear to have been any other issues that needed to be considered.  I do not accept that indicating that the hearing would only take 15 minutes was any indication of prejudgment.

27. The submissions go on to say that the Tribunal made a jurisdictional error in failing to postpone the applicant’s hearing and denying him the right to a hearing.  The High Court has recently considered this issue in the case of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 87 ALJR 618; (2013) 297 ALR 225; [2013] HCA 18. The essence of that decision is that the Tribunal is required to meet a standard of legal reasonableness in considering an application for an adjournment.

28. In the present case, the Tribunal has given, very briefly, a statement of its reasons for refusing the adjournment.  The Tribunal said at paragraph 20 of its reasons for decision:

    The Tribunal did not accept a late attempt to postpone the hearing by the provision of medical certificates which failed to provide any real information about his condition that would have prevented him from attending a brief hearing.

29. The Tribunal did not expressly address, in its reasons for decision, the statutory declaration that the applicant sent to the Tribunal late in the afternoon before the Tribunal hearing.  The statutory declaration did provide somewhat more of an explanation than the medical certificates did.  It said that the applicant had severe diarrhoea and vomiting.  However, the second medical certificate provided by the applicant said that he was suffering from “gastro”.  It is probably fair to assume that everyone would know that the symptoms of “gastro” include vomiting and diarrhoea.

30. The Tribunal was clearly aware of the second medical certificate.  It said that the applicant was unfit for duty/school for two days.  It did not say that the applicant was unfit to attend a 15 minute Tribunal hearing.  In accordance with Federal Court authority, such a medical certificate is insufficient to justify a failure to attend a Federal Court hearing.  It would seem, by analogy, that the same would apply to the Tribunal.

31. In all the circumstances, I am not persuaded that the Tribunal erred in failing to grant an adjournment for the reasons advanced by the applicant. 

32. I also note that the applicant has been given many opportunities, since his visa application was lodged on 23 November 2012, to provide evidence of exceptional reasons justifying the grant of a student visa in his circumstances.  The delegate asked him to provide such evidence.  The Tribunal asked him to provide such evidence.  Moreover, the Tribunal did not hand down its decision for two months after the scheduled hearing on 3 October 2013.

33. The applicant himself indicated to the court today that he did not want to have a Tribunal hearing for the purpose of providing evidence of exceptional reasons.  He wanted a Tribunal hearing to be able to explain to the Tribunal why he had not been able to provide evidence of exceptional reasons.  It seems unlikely, even if the Tribunal hearing had been adjourned, that the applicant could have been successful.

34. All in all, I am not persuaded that there was any error in the Tribunal’s handling of this matter.  The application will be dismissed with costs. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Associate: 

Date:  4 September 2014