Shrestha v Minister for Immigration

[2020] FCCA 1984

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA  v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1984

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – confirmation of an earlier decision to dismiss review application for non attendance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360A, 362B, 362C, 379A

Migration Regulations 1994 (Cth)

Applicant: BINAYA SHRESTHA

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3074 of 2019

Judgment of: Judge Driver

Hearing date: 21 July 2020

Delivered at: Sydney

Delivered on: 21 July 2020

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Ms M. Kelly of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

2. 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 3074 of 2019

BINAYA SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicant, Mr Shrestha, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 October 2019.  The Tribunal confirmed its earlier decision to dismiss Mr Shrestha’s review application on account of his non attendance.  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 7 July 2020.

Background

1. Mr Shrestha, a citizen of Nepal, was granted a student (Temporary) (class TU) (subclass 500) (visa) on 1 August 2016. A mandatory condition of Mr Shrestha’s visa was condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations). Condition 8202(2)(a) relevantly required that the holder be enrolled in a registered course.

2. On 11 July 2018, a delegate of the Minister (delegate) sent Mr Shrestha a notice of intention to consider cancellation of Mr Shrestha’s student visa (NOICC).[1] The NOICC explained that a Provider Registration and International Student Management System (PRISMS) check in respect of Mr Shrestha revealed that he had not been enrolled in a registered course of study since 10 November 2017 and accordingly, was in breach of condition 8202. Mr Shrestha did not provide a response to the NOICC.

   [1] Court Book (CB) 4-8

3. On 30 July 2018, the delegate cancelled Mr Shrestha’s visa pursuant to s.16(1)(b) of the Migration Act 1958 (Cth) (Migration Act) for failure to comply with condition 8202(2)(a). The delegate found that Mr Shrestha had not been enrolled in a registered course since 10 November 2017 and was satisfied the reasons for cancelling the visa outweighed the reasons for not cancelling the visa.[2]

   [2] CB 15-19

Tribunal proceedings

1. On 7 July 2018, Mr Shrestha applied to the Tribunal for review of the delegate’s decision.[3] In the review application, Mr Shrestha provided the email address “[email protected]” for the purpose of receiving correspondence.

   [3] CB 21-22

2. On 26 September 2019, the Tribunal invited Mr Shrestha to attend a hearing scheduled on 14 October 2019.[4] The hearing invitation was sent to the nominated email address and complied with the relevant legislative requirements because it:

   a)was sent to Mr Shrestha by email to the last email address provided to the Tribunal in connection with the review in accordance with s.379A(5)(b) of the Migration Act;

   b)complied with the prescribed notice period as required by s.360A(4) of the Migration Act and 4.21 of the Regulations;

   c)advised Mr Shrestha of the effect of s.362B of the Migration Act (namely, the consequences of the failure of Mr Shrestha to appear before the Tribunal); and

   d)informed Mr Shrestha of the time, date and location of the hearing as required by s.360A(1) of the Migration Act.

   [4] CB 35-36

3. Mr Shrestha did not respond to the hearing invitation. 

4. On 14 October 2019, Mr Shrestha failed to appear at the scheduled hearing.[5] On the same day, the Tribunal dismissed the application pursuant to s.362B(1A)(b) of the Migration Act without further consideration of the application or the information before it.[6]

   [5] CB 40-43

   [6] CB 44

5. On 16 October 2019, Mr Shrestha applied for reinstatement.[7] Mr Shrestha stated that he was sick on the day of the hearing and attached two separate medical certificates. The medical certificates, dated 13 October 2019 and 14 October 2019, respectively, were authored by two different doctors from the same medical clinic. Both certificates stated he had a “medical condition” and was “unfit for work/study”.[8]

   [7] CB 50-52

   [8] CB 51-52

6. On 29 October 2019, the Tribunal refused to grant Mr Shrestha reinstatement and confirmed its original decision to dismiss the application.[9]

Tribunal decision

[9] CB 57-58

Dismissal decision

1. The Tribunal was satisfied that Mr Shrestha was properly invited to a hearing pursuant to s.379A(5) of the Migration Act. The Tribunal also noted that the invitation had not been returned to sender and that it had sent two SMS hearing reminders to Mr Shrestha prior to the hearing.[10]  The Tribunal found that no satisfactory reason for the non-appearance had been given. The Tribunal decided to dismiss the application without any further consideration of the information before it.[11]

   [10] CB 44, [2]

   [11] CB 44, [3]

Confirmation decision

1. The Tribunal found that Mr Shrestha 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 Migration Act.

2. The Tribunal recorded that Mr Shrestha applied for reinstatement within the 14-day period but that it did not consider it appropriate to reinstate the application. The Tribunal found that the medical certificates provided by Mr Shrestha did not provide a satisfactory explanation for Mr Shrestha’s failure to attend the hearing. The Tribunal found that the certificates did not detail that Mr Shrestha could not attend the hearing either in person or by phone. The Tribunal found the certificates to be vague and inadequate to provide a reasonable foundation for the reinstatement application to be granted. The Tribunal proceeded to confirm the decision to dismiss the application.[12]

   [12] CB 58, [6]-[7]

The current proceedings

1. These proceedings began with a show cause application filed on 25 November 2019.  Mr Shrestha continues to rely upon that application.  The grounds in it are:

   1. The medical issue was not considered.

   2. Case got dismissed without hearing.

   3. Studying as per requirement but not considered.

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 16 January 2020.  Mr Shrestha was uncertain whether he had received the court book.  In the end result I do not consider anything of substance turns on that, as the relevant documents were annexed to his own affidavit. 

3. Mr Shrestha also told me that he had not read the Minister’s written submissions filed on 7 July 2020, although he acknowledged receipt of them.  I dealt with that by having the Minister’s solicitor present her submissions orally and then called on Mr Shrestha to respond.  It was clear from Mr Shrestha’s oral submissions that he considers what the Tribunal did was unfair.  In his view, he was unable to attend the Tribunal hearing due to illness and did not anticipate that his review application would be dismissed on account of his absence. 

4. When notified of the dismissal, he provided medical evidence in the form of the two medical certificates.  He considers it unfair that that medical evidence was not accepted and that his review application was not reinstated.  He told me that if the Tribunal was dissatisfied with the certificates, it could have contacted the hospital he attended and obtained further information.  Mr Shrestha says that at the time he was suffering from a high fever and migraine. 

5. I put to him that he could have asked the doctors who he consulted to provide more specific medical opinion.  He told me that he was not aware at the time either that he could do so or that it was needed. 

6. In my view, no arguable case of jurisdictional error arises from the show cause application.  The first ground, that the medical issue was not considered, is wrong in fact.  It plainly was considered in the Tribunal’s reinstatement decision. 

7. The second ground is factually correct inasmuch as the review application was dismissed without a hearing on the merits.  Mr Shrestha has not, however, sought to challenge the dismissal decision, and he would require an extension of time to do so; he has not sought one.  In any event, in my view, the Tribunal acted within its powers and reasonably in taking the dismissal decision. 

8. The third ground is an assertion of fact which is not established and does not bear directly on the validity of the Tribunal decision.

9. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.

10. Mr Shrestha’s contention in ground 1 that the Tribunal did not take into consideration his medical grounds for reinstatement is plainly incorrect. The Tribunal considered his application for reinstatement at [5]-[6], and after assessing the evidence it concluded that Mr Shrestha’s explanation for his non attendance was unsatisfactory and the medical certificates were inadequate. Accordingly, it decided to confirm its dismissal decision.

11. In relation to ground 2, to the extent that this ground takes issue with the dismissal decision, as set out above, Mr Shrestha was validly invited under s.360 of the Migration Act to appear before the Tribunal. In circumstances where Mr Shrestha failed to appear, the Tribunal may, pursuant to s.362B(1A)(b) of the Migration Act, dismiss the application without any further consideration of the application or the information before it. It was therefore entirely open for the Tribunal to have dismissed the application in the manner that it did once Mr Shrestha failed to appear, subject only to the proviso that the Tribunal exercise its discretion in s.362B of the Migration Act reasonably.

12. In that regard, it should be borne in mind that a reasonable exercise of such discretion does not require the decision to be one that is advantageous to the person subject to that decision.  Further, it will be a rare case in which the Court will find that the exercise of a discretionary power was unreasonable where the reasons demonstrate a justification for the exercise of that power.

13. The Tribunal’s discretion to proceed under s.362B of the Migration Act was exercised reasonably in circumstances where Mr Shrestha was sent two SMS hearing reminders to his mobile phone, he failed to attend the Tribunal hearing and he had not otherwise contacted the Tribunal.

14. Further, the Tribunal’s decision to confirm the dismissal cannot be said to be unreasonable. The Tribunal correctly approached its statutory task of determining the reinstatement application. In Singh v Minister for Immigration[13] at [29], Colvin J framed that task as follows:

    When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is ‘appropriate’ having regard to all of the circumstances advanced to support reinstatement.  In such a context, the word ‘appropriate’ connotes two aspects:  fitness and propriety.  That is, in order to be ‘appropriate’, something must be both suited to the particular circumstances as well as sensible, right and proper.

    [13] [2018] FCAFC 184

15. As is apparent from [4] of the Tribunal’s decision, having regard to the circumstances, it formed the view that it was not appropriate to reinstate the application. In reaching that conclusion, the Tribunal considered the sole reason Mr Shrestha advanced in support of the reinstatement application, namely that he was “very sick” on the day of the hearing, and considered the two medical certificates provided. It found, however, that the certificates proffered by Mr Shrestha “did not provide a satisfactory explanation” in circumstances where they did not state why he was unable to attend the hearing in person or by telephone. Further, the Tribunal found that the certificates were “vague and inadequate”.

16. The Tribunal’s conclusion that it was not appropriate to reinstate the application was open to it on the material before it, fell within the area of “decisional freedom” that the Tribunal had, and its reasons provide an evident and intelligible justification for that decision.  This is not such a “rare” case that the “stringent” test of legal unreasonableness has been met.  Indeed, there was nothing extraordinary about the Tribunal’s conclusion that the generic medical certificates stipulating that Mr Shrestha had an unspecified medical condition which made him unfit for study/work (and not unfit to attend a hearing) did not adequately explain his failure to attend. This Court and the Federal Court have also made similar observations of the inadequacies of generic medical certificates that state that a person is unfit for work without providing any meaningful detail of a person’s illness.   

17. As for ground 3, this ground misunderstands the basis of the Tribunal’s decisions. Once the Tribunal’s power to dismiss the application under s.362B(1A)(b) of the Migration Act was enlivened, the Tribunal did not need to further consider the application or information before it. Likewise, the Tribunal was only obliged to proceed to consider the merits of Mr Shrestha’s review application if the Tribunal considered it appropriate to reinstate the application. In any event, there is no evidence before the Court to suggest that Mr Shrestha was studying as required.

18. I conclude that Mr Shrestha is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

19. I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

20. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Shrestha was uncertain what to say.  It was apparent that he is dissatisfied with the outcome.  In my view, costs should follow the event in this case, and there is no reason to depart from the court scale.

21. I will order 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 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

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

Associate: 

Date: 27 July 2020