Sakaria v Minister for Immigration
[2020] FCCA 1977
•21 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAKARIA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1977 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – confirmation of a non attendance dismissal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 361, 362B, 379A, 379G |
| Cases cited: Lim v Minister for Immigration & Anor [2018] FCCA 496 Minister for Immigration v Li (2013) 249 CLR 332 |
| Applicant: | MANTHAN BHUPATBHAI SAKARIA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULITCULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3060 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2020 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Ms S. Sangha of Mills Oakley Lawyers |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 2, of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3060 of 2019
| MANTHAN BHUPATBHAI SAKARIA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULITCULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant, Mr Sakaria, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 October 2019. The Tribunal confirmed its earlier decision to dismiss Mr Sakaria’s application on account of his non attendance. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 7 July 2020.
Background and the delegate
Mr Sakaria is a citizen of India who was granted a student (Subclass 500) visa on 28 February 2017.[1] Mr Sakaria’s visa was subject to condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations), which required that Mr Sakaria remain enrolled in a registered course.
[1] Court Book (CB) 4
On 21 August 2018, Mr Sakaria was issued with a Notice of Intention to Consider Cancellation (NOICC)[2] on the basis that evidence before the delegate in the form of Provider Registration and International Student Management System (PRISMS) records[3] indicated that Mr Sakaria had breached condition 8202 as he had not been enrolled in a registered course of study since 14 October 2017.
[2] CB 4-8
[3] CB 1
On 21 August 2018, Mr Sakaria responded to the NOICC and stated that he was not able to qualify for the course he intended to study and now intended to enrol in a Master of Information Technology.[4]
[4] CB 9
On 13 September 2018, a delegate cancelled Mr Sakaria’s student visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act) on the basis that Mr Sakaria had not complied with condition 8202.[5] The delegate’s decision to cancel Mr Sakaria’s visa was discretionary as there were no mandatory cancellation circumstances as referenced by s.116(3) of the Migration Act and prescribed by regulation 2.43(2). The delegate addressed the relevant considerations set out in the Minister’s Department’s Procedures Advice Manual (PAM3), and ultimately concluded that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.[6]
[5] CB 16-28
[6] CB 28
The Tribunal
On 18 September 2018, Mr Sakaria lodged an application for review of the delegate’s decision.[7] In his application for review, Mr Sakaria appointed a migration agent as his representative and authorised recipient. Mr Sakaria also provided his own mobile phone number and email address to the Tribunal.
[7] CB 29-30
By letter dated 1 October 2019, sent by email to Mr Sakaria’s representative at his nominated email address, the Tribunal invited Mr Sakaria to attend a hearing before it scheduled for 18 October 2019.[8]
[8] CB 42-49
On 14 October 2019, Mr Sakaria’s representative submitted a completed response to hearing invitation form which indicated that he would be attending the hearing with Mr Sakaria.[9] Mr Sakaria’s representative also provided a Confirmation of Enrolment for a Master of Business Information Systems and evidence of Mr Sakaria’s health cover.[10]
[9] CB 51-54
[10] CB 55-56
On 17 October 2019, Mr Sakaria’s representative requested that the Tribunal reschedule the hearing as Mr Sakaria was suffering from a “medical condition” and would not be fit to attend the Tribunal hearing. A medical certificate was provided from Dr Moussa dated 17 October 2019 which stated that Mr Sakaria was suffering from a “medical condition” and “will be unfit for work” from 17 to 18 October 2019.[11]
[11] CB 58-59
On 18 October 2019, the Tribunal informed Mr Sakaria’s representative by email that it would not reschedule the hearing unless Mr Sakaria could provide further details as to why he was unfit to appear before the Tribunal.[12] The Tribunal also telephoned Mr Sakaria’s representative and indicated that the presiding member had refused the request to postpone the hearing but was open to adjourning the hearing until later that day to allow Mr Sakaria to attend if he could not provide further medical evidence.[13] Mr Sakaria did not attend the scheduled hearing. That afternoon, the Tribunal telephoned Mr Sakaria’s representative and queried whether Mr Sakaria intended to provide further medical information for the presiding member to consider. It stated that the presiding member would allow until 3:30pm for Mr Sakaria to provide additional information.[14] No further medical information was provided by Mr Sakaria.
[12] CB 59-62
[13] CB 50
[14] CB 63
Non-appearance decision
On 18 October 2019, the Tribunal made a decision to dismiss the application without further consideration under s.362B(1A)(b) of the Migration Act (the non-appearance decision). The Tribunal found that Mr Sakaria had been validly invited to attend a hearing in accordance with s.379A(5) of the Migration Act and had been sent two SMS reminders about the hearing.[15]
[15] CB 67, [1], [4]
The Tribunal noted that Mr Sakaria’s representative had provided a medical certificate and indicated that Mr Sakaria would be unable to attend the hearing.[16] However, the Tribunal found that the evidence was not satisfactory because it failed to explain why Mr Sakaria was unable to attend the hearing.[17]
[16] CB 67, [2]
[17] CB 67, [3]
The Tribunal set out the background of correspondence with Mr Sakaria’s representative.[18] It noted that both Mr Sakaria and his migration agent appeared to presume that notifying the Tribunal they would not attend due to illness meant that the Tribunal would grant the adjournment with no appearance. The Tribunal found that they were not entitled to assume the hearing had been adjourned in accordance with their request in the absence of confirmation by the Tribunal.[19] The Tribunal decided to dismiss the application because Mr Sakaria did not appear at the scheduled time and place for the hearing and provided no satisfactory reason for his failure to appear.[20]
[18] CB 67-68, [5]-[7]
[19] CB 68, [9]
[20] CB 68, [11]-[12]
Mr Sakaria was notified of the non appearance decision by email to his representative’s email address on 18 October 2019.[21] The email attached the non appearance decision, a letter addressed to Mr Sakaria and an information sheet. The letter informed Mr Sakaria that he could apply in writing for reinstatement by 1 November 2019[22] and the information sheet informed him that if he failed to apply for reinstatement within the 14 day period, the Tribunal must confirm the decision to dismiss the application.
[21] CB 64
[22] CB 66
The Tribunal’s power to proceed to dismiss the application due to Mr Sakaria’s failure to appear under s.362B(1A) of the Migration Act was contingent upon the issuing of a valid invitation under s.360, in accordance with the requirements of s.360A of the Migration Act. On 1 October 2019, the Tribunal invited Mr Sakaria to attend a hearing scheduled for 18 October 2019. The invitation was sent to Mr Sakaria’s authorised representative by email to the address nominated in Mr Sakaria’s application for review: [email protected].[23] The hearing invitation was valid because it:
a)contained an invitation to Mr Sakaria to appear before it to give evidence and present arguments as required by s.360(1) and s.361(1)(a) of the Migration Act;
b)notified Mr Sakaria that he could give the Tribunal written notice to obtain oral evidence from a person or persons as required by s.361(1)(b);
c)notified Mr Sakaria of the specified day, time and place of the hearing as required by s.360A(1);
d)complied with s.360A(2) by being given to Mr Sakaria’s authorised recipient by one of the means specified in s.379A of the Migration Act (namely, by transmitting the document by email) as required by s.379G(1) of the Migration Act;
e)complied with s.360A by providing Mr Sakaria with a period of time that was at least the prescribed period of 14 days (as specified by regulation 4.21(4) of the Regulations); and,
f)complied with s.360A(5) by containing a statement to the effect of s.362B about the options available to the Tribunal if Mr Sakaria failed to appear before it.
[23] CB 30, 42-49
As Mr Sakaria was validly invited to attend the hearing in accordance with the statutory requirements, his failure to attend the scheduled hearing on 18 October 2019, enlivened the Tribunal’s power under s.362B. It was open to the Tribunal to exercise its discretion under s.362B(1A)(b) of the Migration Act to dismiss the application without any further consideration of the application or information before it.
This not a case in which it could be inferred that Mr Sakaria was not aware of the scheduled hearing which therefore warranted additional steps to be taken by the Tribunal to ensure he was aware of the hearing. Furthermore, it was not a case in which there was an indication that Mr Sakaria’s nominated representative and authorised recipient had changed. Critically, Mr Sakaria’s representative was in contact with the Tribunal on the day of the hearing and indicated that Mr Sakaria was aware of the hearing but would not be attending.[24]
[24] CB 63
Reinstatement application
On 30 October 2019, Mr Sakaria’s representative sent an email to the Tribunal requesting reinstatement of the application.[25] Mr Sakaria’s representative stated that he did not tell Mr Sakaria that he was required to obtain specific medical evidence until 1:30pm on the day of the hearing and that Mr Sakaria’s doctor was not available to see him on such short notice.[26] He stated that Mr Sakaria saw an alternative doctor, but did not receive a medical certificate before the Tribunal’s deadline. Mr Sakaria’s representative provided a copy of a medical certificate from Dr Kelvin Vo dated 18 October 2019, which stated that Mr Sakaria had a “sore throat” and was “unfit for work”.[27] Mr Sakaria’s representative also provided a further medical certificate from Dr Moussa which was dated 17 October 2019 but the representative indicated it was completed on 23 October 2019 and back-dated. This certificate stated that Mr Sakaria would be “unfit to attend tribunal hearing”.[28]
[25] CB 71
[26] CB 73
[27] CB 76
[28] CB 75
The confirmation decision
On 4 November 2019, the Tribunal confirmed the decision to dismiss the application pursuant to s.362B(1C)(b) of the Migration Act (the confirmation decision).[29] The Tribunal was satisfied that Mr Sakaria applied for reinstatement within 14 days after receiving notice of the dismissal decision and proceeded to consider whether it was appropriate to reinstate the application.[30]
[29] CB 80-83
[30] CB 81, [4]
The Tribunal set out its previous findings and the submission by Mr Sakaria’s representative.[31] The Tribunal reviewed the further material provided and concluded in relation to the medical certificate dated 18 October 2019 that a “sore throat” was not a proper basis for not attending the hearing.[32] It also found that the back-dated medical certificate was likely produced at Mr Sakaria’s request and failed to detail the reason why Mr Sakaria was unable to attend the Tribunal hearing.[33] The Tribunal considered the submission that Mr Sakaria’s misunderstanding and late notification led to Mr Sakaria’s failure to provide appropriate medical evidence, but did not accept it. The Tribunal noted that the initial decision to refuse the adjournment was clearly conveyed to Mr Sakaria’s representative at 9:30am and he was given two clear choices: attend a hearing later that afternoon, or; provide further medical evidence to explain why the hearing should be rescheduled.[34] Accordingly, the Tribunal confirmed the decision to dismiss Mr Sakaria.[35]
[31] CB 81-82, [5]-[10]
[32] CB 82, [11]
[33] CB 82-83, [12]
[34] CB 83, [13]-[14]
[35] CB 83, [16]
The current proceedings
These proceedings began with a show cause application filed on 25 November 2019. The application has plainly been prepared with professional assistance, in that relatively sophisticated legal arguments are contained in it. They are:
Ground 1: I lodge this judicial review application to the Federal Circuit Court of Australia because I am convinced that AAT (Administrative Appeals Tribunal)’s decision to affirm the decision of dismissal my application is unreasonable for it failed to rely on the professional opinion.
Particulars:
On 17-Oct-2019, I notified my migration agent over the phone, that I was sick and could not attend the Tribunal Hearing scheduled on the following day 18-Oct-2019; Also, I provided the agent with a Medical Certificate completed by Dr. L.G. oussa from The Edinburgh Medical Centre. The agent sent it through to the Tribunal and requested for time extension on the same day at 2:13 in the arvo.
On 18-Oct-2018, about 1:30pm, my agent called me over the phone when I was resting in the bed, saying that the medical certificate submitted did not specify that I was unfit for hearing and as such, I needed to see Dr, Moussa again and request him to specify in the certificate that I was unfit for the hearing. I went to the Edinburch Medical Centre, trying to get the hold of Dr. Moussa, even thought I was quite unwell because of the severity of the sore throat. However, the physician did not have time to see him as he had other patients to attend to. Subsequently, I had to go to other clinic next door and waited more than two hours before seeing Dr Kelvin Ho who wrote him another certificate. Regrettably, by the time when my agent sent me through the certificate, the Presiding Member, E Tueno, had made her findings to dismiss the application.
On 23rd of October, 2019, Dr. I.G. Moussa was available to see me and revisit my medical record. Dr. Moussa, from his professional opinion as a registered General Practitoiners, asserted that I was unfit for the Tribunal Hearing on 17th a nd 18th of October, 2019 based on the severity of the medical condition that I was suffering from during these periods.
The copy of the submission that my agent made to the Tribunal plus medical certificates are enclosed in Exhibit 1
Relevant Case Law and Statutory Law:
I learnt that section 363B of the Migration Law Act 1958 does not provide any criteria that must be taken into account by the Tribunal when deciding whether to reinstate the application or to confirm the decision to dismiss the application.
However, the Tribunal’s discretion whether to reinstate the application or to dismiss the application is subject to the requirements that the discretion be exercised reasonably, in the sense contemplated in the Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
At [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] per Gageler J in the case of Li, state: “ a decision-maker must action “rationally” having regard to mandatory considerations, and a finding may be unreasonable if it is not based on an evident and intelligible justification”
Also, in the case of Li, at [28] per French CJ and [110] per Gageler J stated that “unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or plainly unjust”.
At [12] of the Tribunal’s decision, the presiding member state: “in relating to Dr Moussa’s second backdated, medical certificate dated 17-Oct-2019……..Dr Moussa complied with the request…….” From which, it can be inferred the Tribunal’s decision is without any common sense or unjust. How could I, as a patient, have influenced a GP’s professional opinion? If I were fit for the Tribunal hearing on 18-Oct-2019, how would a Registered GP compromise his integrity and risk of breaching his code of conduct by giving a false statement in the medical certificate. Therefore, I believe the Tribunal did not act in the compliance with the procedural fairness, which amounted to a judicial error.
(errors and emphasis in original)
The application curiously, given the high professional content of it, sought the assistance of a Bengali interpreter for Mr Sakaria. However, at today’s hearing, it became apparent that he does not speak Bengali but does speak good English. The hearing continued in the English language.
The application was supported by an affidavit filed with it. In that affidavit, Mr Sakaria provides legal argument on the question of legal unreasonableness and the exercise of discretionary power. I received the affidavit as a submission. I have before me as evidence the court book filed on 29 January 2020.
I invited oral submissions from Mr Sakaria this morning. He is understandably concerned that he lost the opportunity for a review by the Tribunal of the merits of the cancellation decision. He told me that he was unwell at the scheduled time for the Tribunal hearing, and sought to explain that to the Tribunal through an initial medical certificate. When informed by his migration agent that more detail was required, he sought and obtained it. He is dissatisfied with the Tribunal’s decision to refuse to reinstate his application in the face of all the medical evidence available.
As I pointed out to Mr Sakaria, there are a range of decisions that the Tribunal could have made on the face of that medical opinion. It would have been perfectly reasonable for the authority to accept at face value the medical certificates and to reinstate the application. It was however, in my view, within the Tribunal’s range of possible decisions to take the decision that it did. The first certificate was unhelpful in that it did not specify what the medical problem was. The certificate by Dr Vo was more specific, but the Tribunal was entitled to view the condition of a sore throat as a relatively trifling one.
The third certificate by Dr Moussa directed attention to Mr Sakaria’s fitness to attend the Tribunal hearing which he did not attend, but does not provide any details of his medical condition. In the circumstances it was, in my view, open to the Tribunal to take the decision it did in relation to reinstatement on the basis of the material before it.
Because of that, I take the view that the application asserting legal unreasonableness would fail. This is not a case where there was no intelligible justification for the decision. On the contrary, the Tribunal provides cogent reasons for its exercise of discretion. Neither is it a case where the reasons given by the Tribunal point to illogicality or irrationality. It was a logical and rational analysis of the circumstances by the Tribunal.
In other respects, I agree with the Minister’s submissions on the ground of review advanced.
The sole ground of the application for judicial review contends that the Tribunal’s decision to affirm the dismissal of his application was “unreasonable for it failed to rely on the professional opinion”. Mr Sakaria elaborates on this complaint in a further eleven paragraphs titled “particulars”. The same particulars are mirrored in his supporting affidavit.
The particulars contend that the Tribunal’s decision was unreasonable in the manner contemplated in Minister for Immigration v Li.[36]
[36] (2013) 249 CLR 332
The basis for the allegation of unreasonableness relied on by Mr Sakaria appears to be one line in the Tribunal’s confirmation decision with respect to the second medical certificate obtained from Dr Moussa, where it stated that it appeared “that the applicant requested Dr Moussa to say that he was unable to attend the hearing, and that Dr Moussa complied with the request”.[37] Mr Sakaria takes issue with the assertion that he would have the ability to influence the professional opinion of a general practitioner. He argues that the Tribunal’s comment demonstrates that its decision is unjust and without common sense. However, Mr Sakaria misunderstands both the high threshold for legal unreasonableness and the basis of the Tribunal’s decision.
[37] CB 82-83, [12]
In deciding whether it was appropriate to reinstate the matter, the Tribunal had regard to the following factors:
a)the further medical certificate from Dr Kelvin Vo dated 18 October 2019[38] stated that Mr Sakaria had a “sore throat” which the Tribunal found was not a proper basis for not attending the hearing, noting that many people attend work and go about their daily activities with a sore throat;[39]
b)the further medical certificate from Dr Moussa[40] which was dated 17 October 2019 (backdated from an appointment on 23 October 2019) and simply indicated that Mr Sakaria was unfit to attend a Tribunal hearing. The certificate did not specify why he was unable to attend the hearing. The Tribunal also noted that it appeared Mr Sakaria had requested Dr Moussa to say that he was unable to attend the hearing, and that the doctor complied with this request;[41] and
c)the Tribunal considered the submission from Mr Sakaria’s representative that it was due to his misunderstanding that Mr Sakaria did not provide further medical evidence. However, the Tribunal did not accept the submission on the basis that it had clearly notified the representative that the postponement request had been refused and Mr Sakaria must either attend the hearing, or provide further medical evidence for the Tribunal.[42]
[38] CB 76
[39] CB 82, [11]
[40] CB 81
[41] CB 82-83, [12]
[42] CB 83, [14]
In the circumstances, the Tribunal did not consider it appropriate to reinstate the application and confirmed the decision to dismiss the application.[43] These matters provide a basis to support the Tribunal’s decision that it was not appropriate to reinstate the matter pursuant to s.362B(1C)(b) of the Migration Act. The Tribunal’s discretion was exercised reasonably where Mr Sakaria was unable to demonstrate that he was not unfit to attend a hearing. The Tribunal’s decision not to exercise its discretion could not be said to be arbitrary, capricious, without common sense or plainly unjust; while “reasonable minds may reach different conclusions about the correct and preferable decision”, the Tribunal’s decision was plainly within the “area of decisional freedom”. The Tribunal’s reasons for that decision provide an intelligible justification for the exercise of its discretion.
[43] CB 83, [15]
Further, the Tribunal did not exercise its discretion purely based on its conclusion that Dr Moussa’s certificate was amended in accordance with the request of Mr Sakaria. It conducted a thorough consideration of the circumstances of the non-appearance and the subsequent medical evidence provided by Mr Sakaria. For several reasons, including: Dr Vo’s statement that Mr Sakaria had a “sore throat”, Dr Moussa’s failure to specify exactly why Mr Sakaria could not have attended the hearing, and the fact that the representative was clearly on notice that the adjournment had been refused, the Tribunal was not satisfied that reinstatement of the application was appropriate.[44]
[44] CB 82-83, [11]-[14]
The Tribunal’s confirmation decision was not “arbitrary”, “irrational” or “lacking an evident and intelligible justification”.[45] Accordingly, Mr Sakaria fails to raise an arguable case for the relief claimed and ought to be dismissed with costs pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Federal Circuit Court Rules).
[45] Lim v Minister for Immigration & Anor [2018] FCCA 496 at [34]
Conclusion
I conclude that Mr Sakaria is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules, the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. Mr Sakaria did not wish to be heard on costs.
I will therefore orders that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3, of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 July 2020
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