Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 885

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 885

File number(s):

SYG 1890 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

5 May 2021

Catchwords:

MIGRATION – PRACTICE AND PROCEDURE – application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr 13.03C(1)(c), 13.10, 16.05(2)(a)

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) Sch 2, cls 602.212(6), 602.215

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Number of paragraphs:

29

Date of hearing:

29 April 2021

Place:

Sydney

The Applicant:

Appeared in person, by telephone, and assisted by an interpreter

Solicitor for the First Respondent:

Ms D Stone of Sparke Helmore Lawyers, by telephone

ORDERS

SYG 1890 of 2020

BETWEEN:

HARJEET SINGH SANDHU

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICUTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	5 MAY 2021

THE COURT ORDERS THAT:

1.The applicant’s application in a case filed on 21 April 2021 is dismissed.

2.The applicant pay the first respondent’s costs of the application in a case set in the amount of $1,200.

REASONS FOR JUDGMENT

INTRODUCTION

1. On 7 April 2021 I made an order pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing an application filed on 10 August 2020. In that application the applicant applied for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made on 13 July 2020 by the second respondent (Tribunal) affirming a decision by a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (Medical visa).

   BACKGROUND

2. The applicant is a citizen of India. He first arrived in Australia in June 2007 holding a student visa. He was later granted two additional student visas, one in 2007, and the other in 2010. The applicant later applied for additional visas, but without success. The applicant’s last substantive visa expired on 2 August 2010, and he has remained in Australia on a combination of bridging visas.

   Application for Medical visa

3. In May 2018 the applicant applied for a Medical visa. To have been entitled to the grant of a Medical visa the applicant had to satisfy, among other things, the requirements of cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That provides:

   (1)  The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

   (c)  any other relevant matter.

   (2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

4. Subclause 602.212(6) of Schedule 2 to the Regulations provides:

   All of the following requirements are met:

   (a)  the applicant is in Australia;

   (b)  the applicant has turned 50;

   (c)  the applicant has applied for a permanent visa while in Australia;

   (d)  the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

   (e)  the applicant has been refused the visa;

   (f)  the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

5. In his application for the Medical visa the applicant said he wished to remain in Australia from 18 May 2018 to 18 May 2019. He claimed that during that period he would be under medical care; he had arranged medical treatment for “neck, lumber spine and shoulder damaged [sic]”; the treatment will cost $15,000 to $20,000, and he arranged a “treatment plan with Blacktown Chiropractors”. On 21 June 2018 a delegate of the Minister refused to grant the applicant a Medical visa.

6. On 9 July 2018 the applicant applied to the Tribunal for review of the delegate’s decision.

7. By letter dated 25 June 2020 the Tribunal requested the applicant provide information in relation to his medical treatment, and information that shows the applicant has a genuine intention to stay temporarily in Australia. The applicant did not respond to the letter.

   Tribunal’s reasons

8. The Tribunal first considered whether cl 602.212(6) of Schedule 2 to the Regulations applied, and it concluded it did not. The Tribunal then considered whether the applicant satisfied the requirements of cl 602.215(1) of Schedule 2 to the Regulations, namely, that he genuinely intends to stay temporarily in Australia for the purpose for which the applicant sought the Medical visa. The Tribunal concluded the requirement was not satisfied, and positively found that the applicant applied for the Medical visa for the purpose of “elongating” his stay in Australia. The Tribunal relied on the following matters:

   (a)The applicant provided no medical information or other information to support his need for the treatment he claimed he needed.

   (b)The applicant provided no information relating to his intention to stay temporarily in Australia.

   (c)The applicant had already spent 13 years in Australia; he had made lengthy efforts to remain in Australia.

   Proceeding before the Court

9. The applicant filed his application with this Court on 10 August 2020. In his grounds of application the applicant claims the Tribunal did not consider “my reasons fairly… and they did not give me proper chance to show I really need the medical treatment”; the Tribunal made a jurisdictional error; the Tribunal’s decision is unfair and will destroy the applicant’s mental wellbeing; the applicant is a kind hearted person who has suffered in his life, and he has always followed the rules and conditions placed on him; and the applicant wants a fair chance to complete his medical treatment.

10. On 22 January 2021 the Minister filed an application in a case seeking an order under r 13.10 of the FCC Rules that the applicant’s application be dismissed. Subrule 13.10(a) and 13.10(c) of the FCC Rules relevantly provides that the Court may order that a proceeding be dismissed generally if the Court is satisfied that the party prosecuting the proceeding has no reasonable prospect of successfully prosecuting the proceeding, or if the proceeding is an abuse of process.

11. By email sent to the parties on 12 March 2021 the parties were notified that the Minister’s application in a case was listed for hearing before me at 2:15 pm on 7 April 2021. At 10:22 am on 7 April 2021 the applicant sent an email to the Court stating he had “symptoms of Covid-19”, he “had it checked and the doctors suggested” the applicant go home until he receives his results, and “so” the applicant could not attend the hearing. The email was brought to my attention and, at my direction, the Court sent an email to the parties at 11:06 am on 7 April 2021 noting that I had directed that the hearing would proceed by telephone. The email provided the relevant dial-in details. The applicant did not appear at the hearing. I ordered that the application be dismissed with costs, and that the Minister serve a sealed copy of the orders on the applicant.

12. At 5:29 pm on 7 April 2021 the applicant sent to the Court an email in which he stated (errors in original):

    Good afternoon

    As I mentioned this morning

    I am sick and had COVID-19 test done

    Because of the fever ,i had medicine and slept for few hours

    That’s how i missed your email and just saw it now

    Please re-schedule it to some other day

    Thanks

13. The email was brought to my attention, but I directed my associate to ignore it. On 8 April 2021 the applicant sent an email to the Court attaching his COVID-19 results.

14. On 21 April 2021 the applicant filed an application in a case. Under the heading “Orders sought” the applicant explained why he did not attend the hearing on 7 April 2021, and he requested the Court “reopen my case so that I can plead my case and get justice from the honourable Judge”. That application was listed for hearing before me at 10:00 am on 29 April 2021.

    HEARING ON 29 APRIL 2021

15. The hearing of the applicant’s application in a case was heard by telephone. The applicant was not legally represented, but he was assisted by an interpreter.

16. I explained to the applicant the purpose of the hearing. I did so by first setting out the history of the proceeding before the Court. I said that I would treat the application in a case the applicant filed on 21 April 2021 as an application to set aside the orders I made on 7 April 2021. I explained to the applicant there are two matters that I would need to consider. The first is whether the applicant has given a reasonable explanation for his not appearing at the hearing on 7 April 2021. The second, and usually more important, matter is whether the applicant has any reasonably arguable case for setting aside the Tribunal’s decision. I then explained the procedure to the applicant, identified the evidence I need to consider, and then I heard submissions, first from the applicant, and then from Ms Stone, who appeared for the Minister.

17. After Ms Stone completed her submissions the applicant said he wanted to consult a lawyer. I asked the applicant whether he was seeking an adjournment. He said he was. I asked the applicant why he had not already sought the assistance of a lawyer. The applicant said he had in the past obtained the assistance of migration agents, but he was not aware that lawyers could help him. He said he first became aware that a lawyer might be able to assist him on the day of the hearing. I asked the applicant what type of assistance he believed a lawyer could provide to him. The applicant was not able to give me any answer beyond saying that a lawyer might be able to help him. I refused the applicant’s application for an adjournment, and said I would provide my reasons in my reasons for judgment on the applicant’s application in a case. I set out my reasons below.

    PRINCIPLES FOR SETTING ASIDE ORDERS MADE IN ABSENCE OF PARTY

18. The source of the Court’s power to set aside an order made in the absence of a party is r 16.05(2)(a) of the FCC Rules. The principles that govern the Court’s exercise of that power were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

    In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

    (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

    (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

    (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

    [1] [2010] FCA 530, at [7] (cases cited omitted)

    REASONS FOR NON-APPEARANCE AT HEARING AND DELAY

19. The applicant told me that the reasons he did not attend the hearing are those he set out in the first two of the three emails he sent to the Court to which I have referred. The applicant informed me, however, that he had not seen a doctor about the symptoms he claimed led him to obtain a COVID-19 test. He said he took medication which he said was Panadol. The applicant also said he did not seek medical advice because it was costly.

20. I am not satisfied the applicant suffered from any symptoms that prevented him from attending the hearing on 7 April 2021, or which led the applicant to fall asleep, thus preventing him from becoming aware of the email the Court sent at 11:06 am on 7 April 2021 notifying the parties that the hearing at 2:15 pm on 7 April 2021 would proceed by telephone. I am therefore not satisfied the applicant has provided an adequate explanation for not attending the hearing on 7 April 2021, either in person, or by telephone.

    MERITS

21. The applicant’s failure to provide an adequate explanation for not appearing at the hearing on 7 April 2021 would not have much weight if the applicant could demonstrate that the grounds on which the applicant applies for remedies under s 476 of the Act are reasonably arguable. None of the matters the applicant sets out in the application, however, raises any arguable case of jurisdictional error by the Tribunal.

    (a)Grounds 1, 2, and 3 of the grounds of application recite the applicant’s having applied for the Medical visa, the delegate refusing that application, and the applicant’s applying to the Tribunal for review of the delegate’s decision. None of these matters raises any arguable case of jurisdictional error.

    (b)Ground 4 claims the Tribunal did not consider the applicant’s “reasons fairly”. That is not arguable. The Tribunal invited the applicant to provide evidence of the medical treatment he claimed he was undergoing, but the applicant did not respond to the Tribunal’s invitation. The Tribunal decided the application first by identifying the criteria the applicant was required to satisfy, and then by assessing whether, on the material that was before it, the applicant satisfied those criteria.

    (c)Ground 5 claims the Tribunal (and the delegate) did not consider the facts and reasons the applicant gave to support his application, and the Tribunal (and delegate) did not give the applicant a “proper chance to show” the applicant needed the medical treatment. The Court does not have jurisdiction to review the delegate’s decision and, for that reason, the ground is not arguable to the extent it is directed to the delegate’s decision. The ground also is not arguable to the extent it is directed to the Tribunal. As I have already noted, the Tribunal invited the applicant to provide evidence of his medical treatment he claimed he was undergoing, but the applicant did not respond to the Tribunal’s invitation; and the Tribunal considered the application before it.

    (d)Ground 6 claims the decisions of the delegate and the Tribunal are unfair and will destroy the applicant’s mental wellbeing if they are not fixed. It is not arguable the Tribunal’s decision was made in circumstances of unfairness to the applicant.

    (e)Grounds 7 and 8 assert jurisdictional error without giving any particulars. For that reason these grounds disclose no arguable case of jurisdictional error.

    (f)Ground 9 refers to the character of the applicant and to the hardship he has suffered. Although these matters are relevant to the applicant, they do not disclose any arguable case of jurisdictional error by the Tribunal.

    (g)Ground 10 asks that the applicant be given a fair chance to complete his medical treatment. That does not state a ground of jurisdictional error.

22. The applicant repeated these grounds in his affidavit made on 7 August 2020 which he filed with his application.

23. Even if the applicant were to disclose a reasonably arguable case of jurisdictional error, it is not reasonably arguable there would be any utility in granting the applicant relief. In his application for the Medical visa the applicant claimed he had arranged medical treatment for the period ending in May 2019. That period has long passed; and the applicant in any event informed me that his neck problems had resolved.

24. I asked the applicant why he believed the Tribunal’s decision should be set aside. The applicant said he has been in Australia since 2007 and his many applications for a visa have been rejected. That raises no arguable case of jurisdictional error.

25. I directed the applicant’s attention to paragraph 27 of the Minister’s written submissions dated 22 January 2021 where the Minister submitted the applicant applied to the Court for the purpose of engaging in protracted litigation to delay the finality of the visa refusal decision and to enable him to remain in Australia through bridging visa entitlements. In that context I asked the applicant whether he believed the Tribunal had made any error in the manner in which it conducted his case. The applicant said he did not have any such belief. The applicant said he brought the application to let the Department of Immigration know he wanted to put his life in order. These point to the applicant using this Court’s process for a collateral purpose to the purpose for which the application has purportedly been made.

26. I am not satisfied that if I were to set aside the orders of 7 April 2021 the applicant would have any arguable or any reasonably arguable case the Tribunal made a jurisdictional error. I am therefore not satisfied the applicant would have any arguable or any reasonably arguable prospects of succeeding on his claim for remedies under s 476 of the Act.

    APPLICATION FOR ADJOURNMENT

27. I did not grant the applicant an adjournment for two reasons. First, I did not accept the explanation the applicant gave for not having previously sought the assistance of a lawyer. In particular, I did not accept, because I found it implausible, that the applicant was not aware until the hearing that a lawyer, as opposed to a migration agent, could have given him assistance. Second, there would be no utility in granting the adjournment. The applicant could not point to any potential advantage he might gain if the hearing were to be adjourned for the purpose of the applicant engaging legal assistance; and there is nothing in the material before me that was capable of suggesting that my granting an adjournment might have improved the applicant’s position.

    DISPOSITION AND COSTS

28. The applicant has not given an explanation for not appearing at the hearing on 7 April 2021. More importantly, I have concluded the applicant would not have any arguable or any reasonably arguable case the Tribunal made a jurisdictional error. I propose, therefore, to order that the applicant’s application in a case filed on 21 April 2021 be dismissed.

29. Ms Stone submitted that if the Minister were to succeed he would seek an order that the applicant pay the Minister’s costs set in the amount of $1,200. The applicant submitted he is not a lawyer and could not make any submission about costs. I am satisfied that costs should follow the event. I am also satisfied that $1,200 represents a fair indemnity of the costs the Minister has incurred in relation to the applicant’s application to set aside the orders made on 7 April 2021. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $1,200.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       5 May 2021