Singh & Anor v Minister for Immigration & Anor
[2016] FCCA 2888
•20 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2888 |
| Catchwords: MIGRATION – Show cause hearing – operation of s.362B of the Migration Act 1958 – no arguable case – application for judicial review dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001. |
| Legislation: Migration Act 1958 (Cth), ss.362B(1A)(b), 362B(1e) Migration Regulations 1994 (Cth), Schedule 2 cl.572.223 |
| First Applicant: | HARJOT SINGH |
| Second Applicant: | ISHWARA SANCHEZ SALAS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2455 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 20 September 2016 |
| Date of Last Submission: | 20 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2016 |
REPRESENTATION
| Counsel for the Applicants: | Self-represented |
| Counsel for the Respondents: | Ms Kowalewska |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 4 November 2015 be dismissed.
The Applicant pay the First Respondent’s costs in the fixed amount of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2455 of 2015
| HARJOT SINGH |
First Applicant
| ISHWARA SANCHEZ SALAS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Settled from Transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dismissing an application for review and affirming a decision by a delegate of the Minister for Immigration and Border Protection on 30 October 2014 not to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (“the visa”).
The Minister has applied, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“the Rules”) and the subsections therein, to have the matter dismissed on the basis that the Court is not satisfied the application has raised an arguable case. The applicant is self-represented.
I should say that he arrived more than 20 minutes late today.
I expressed my concern to him, because today I have listed matters at 10am, 11.30am, 2.15pm and 4pm, and I indicated to him that his lateness meant that every other person waiting would now have to wait for a period of time.
However, I did say to him that although I had concerns about his failure to make every effort to attend Court on time it did not affect my decision on this matter.
I explained to the Applicant the nature of a show cause hearing and, in particular, informed him that I would focus on whether his substantive case raised an arguable case. I also informed him that he was confined to the relief sought and the grounds mentioned in the application. That is set out at r.44.13(1) of the Rules.
The Minister contends that the Applicant has failed to raise an arguable case and submits that because of this the matter should be dismissed pursuant to r.44.12(1)(a) of the Rules and that the Court should make an order for costs.
The Applicant is the principal visa applicant, there being other members of a family unit of the applicant included in the visa being his de facto partner, Ms Salas.
The Applicant arrived in Australia in 2003 as the holder of a student visa. He lodged an application for a Student (Subclass 572) visa on 12 May 2014. I note that the Applicant was required, amongst other things, to satisfy cl.572.223, Schedule 2 to the Migration Regulations 1994, and also the Tribunal was required to have regard to Ministerial direction no. 53, pursuant to s.499 of the Migration Act 1958 (“the Act”).
The delegate refused to grant the visa because the delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. The Applicant applied to the Tribunal for review of the delegate’s decision and in his review application the Applicant nominated a migration agent as his authorised representative [CB 60].
On 19 August 2015, the applicant was invited by his authorised representative, who was nominated as the Applicant’s authorised recipient, to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 15 September 2015 [CB 63 – 67]
On the morning of that scheduled hearing on 15 September 2015, the migration agent, on the Applicant’s behalf, requested an adjournment of the hearing due to health issues.
The Applicant was requested to provide a medical certificate and did so during that day. In effect, the medical certificate said that the Applicant was assessed on 15 September 2015 and was certified to be suffering from a medical condition and would not be able to attend work that day [CB 80 – 85].
The Tribunal, in my view correctly, advised the Applicant on 16 September 2015, by email copied to his representative, that the medical certificate was inadequate. It was, of course, inadequate. It failed to specify a medical condition and did not say why, in fact, the Applicant could not attend the hearing. Nevertheless, the Tribunal indulged the Applicant and adjourned the hearing to a further date, that being 22 September 2015 [CB 87 – 97].
It is important to note that, in that correspondence, the Applicant was advised that if he fails to attend the scheduled hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it [CB 87 – 97].
It should also be noted that on 21 September 2015, the day before the hearing, the Tribunal sent an SMS hearing reminder to the Applicant’s mobile phone number [CB 98]. The Applicant failed to appear at the Tribunal hearing. This is noted on the Tribunal’s form at [CB 99].
As no reason for the non-appearance had been given, a non-appearance decision was recorded, dismissing the application pursuant to s.362B of the Act without further consideration of the application for review or information before the Tribunal [CB 104].
The tribunal’s non-appearance decision was in accordance with the provisions of s.362B, notified to the Applicant via the authorised representative on 23 September 2015, together with a copy of the Tribunal’s statement of decision.
The cover letter stated that the Applicant may apply in writing for reinstatement of the application. The cover letter stated that the applicant may apply in writing for reinstatement of the application by 7 October 2015.
The Applicant was also provided with an information sheet informing about the dismissal of the applications, which included information that within 14 days of receiving notice of the Tribunal’s non-appearance decision the Applicant could apply to the Tribunal for reinstatement of the application.
The Tribunal pointed out that, should it decide not to reinstate the application or should no application for reinstatement be made within 14 days, then the Tribunal was required to confirm its decision to dismiss the application for review [CB 103 – 106].
This correspondence was sent to the Applicant’s representative [CB 101]. No application for reinstatement of the application for review was made by the Applicant within 14 days of being notified via his authorised representative or, in fact, the Applicant himself.
Consequently, the only thing available to the Tribunal was that, in accordance with s.362B(1)(e), which provides that if the Applicant fails to apply for reinstatement within a 14-day period, the Tribunal must confirm the decision to dismiss the application by written statement under s.368.
The applicant’s substantive application for review was filed in this Court on 4 November 2015.
His grounds of review are effectively in the form of a narrative as follows:
I want to dispute over the conduct of DIBP and the Administrative Appeals Tribunal in regards to the review application of my subclass 572 student visa refusal. My student visa was first refused by the immigration department and then later, the AAT department dismissed by review application, I do not agree with the decisions from both departments. I want to challenge the decisions of both departments in the federal circuit court.
Background
I lodged my student visa application with department of immigration and border protection on 23rd May 2014.
On 31st July 2014, I was requested by the immigration department to provide further documents in regards to my student visa application. I was also asked to provide the financial documents as well. Due to my father’s bad health, I didn’t get the financials in time.
On 30th October 2014, my student visa application was refused by the immigration department as I was late to provide the required documents.
On 20th November 2014, I lodged my student visa review application with AAT department. During this process of my visa review application, I was continually undertaking my studies and was maintaining all of the visa conditions attached to my student visa.
I received a hearing invitation to appear before the AAT tribunal on 19th August 2015.
I couldn’t attend the hearing at AAT tribunal.
On 8th October 2015, my subclass 572 visa review application was dismissed by AAT department.
Currently, I am going to lodge this judicial review application for further review on my subclass 572 visa application.
Claims and Evidence:
The first hearing was scheduled for 15th September 2015. Due to my medical concerns, I couldn’t attend the hearing. But I provided my medical certificate (Attached herewith) and a written request for an extension to the AAT department. My request was accepted but I was given 22nd September 2015 as the next hearing date. I was determined to attend the hearing but due to some personal circumstances, I was late for the hearing. The hearing time was 3.30pm but I couldn’t make it. I called the AAT department at 4.15pm to reschedule the hearing but was told that it was not possible any more.
On 8th October 2015, my subclass 572 visa application was dismissed by AAT department. It came to me as a big shock. Why my application was dismissed if I was failed to attend the hearing. Why the AAT department simply affirmed the decision of DIBP not to grant me a student visa. This is very unfair treatment from AAT department in regards to my subclass 572 visa review application. I acknowledge that the immigration department had concerns about my student visa application but they gave me a chance to provide further information. AAT department didn’t even give me a chance to justify myself of to provide them further information in regards to my student visa review application.
I have serious concerns in regards to the dismissal of my review application and want to challenge the decision in the federal circuit court. I believe that AAT department has made an error in assessing my application and have failed to act lawfully in regards to my subclass 572 visa review application.
I request the “FEDERAL CIRCUIT COURT” to exercise its powers and to reverse the decision of the Administrative Appeals Tribunal.
In his grounds of judicial review the Applicant repeats the background to his application and notes that his first hearing was rescheduled because he provided a medical certificate, and says:
I was determined to attend the hearing (rescheduled for 22 September 2015) but due to some personal circumstances, I was late for the hearing. The hearing time was 3.30 pm but I couldn’t make it. I called the AAT department at 4.15 pm to reschedule the hearing but was told it was not possible any more.
He then goes on to recite what I have already said: that is, that his application was dismissed. He says:
It came to me as a big shock. Why my application was dismissed if I was failed to attend the hearing. Why the AAT department simply affirmed the decision of the DIBP not to grant me a student visa. This is very unfair treatment from AAT department in regards to my subclass 572 visa review application.
He goes on to acknowledge that the delegate itself had concerns about his student visa application and then says, and I quote:
AAT Department didn’t even give me a chance to justify myself or to provide them further information in regards to my student visa review application. I have serious concerns in regard to the dismissal of my review application and want to challenge the decision in the federal circuit court. I believe that AAT department has made an error in assessing my application and have failed to act lawfully in regards to my subclass 572 visa review application.
I asked the Applicant if he had read the Tribunal decision in relation to his matter. He prevaricated somewhat but, in the end, confirmed that he had. I said, therefore that he would understand that the Tribunal decision was done in a manner that was in accordance with the provisions of the Act. He acknowledged this was true.
I asked him why he said the AAT’s decision was unfair, and he said that he was not aware of the 14 days he had to reinstate the matter. He went on to say that his migration agent did not inform him of this.
I pointed out to the Applicant that this was not an issue he raised in his very lengthy grounds of review; namely, that it was the migration agent’s failure to notify him. I asked him why he did not inform the AAT or ring the AAT beforehand, and he said he was relying on his migration agent to do that.
After hearing the Minister’s submission, I asked the Applicant in reply why he said he was relying on a migration agent when, in fact, in his application for review, he said:
I called the AAT Department at 4.15 pm to reschedule…
I pointed out to the Applicant that, although he was not giving sworn evidence, he appears to have given the Court contradictory information. I pointed out to him that it would be difficult for me to accept that he was not aware of the 14-day opportunity for him to make an application to reinstate his case when he had given the Court incorrect information.
In any event, even if I were to consider this as a ground for review, which, pursuant to the rules, are not permissible, I would have to say that all that has been raised is negligence or incompetence of a migration agent. There is no sense of fraud being raised and, consequently, it is not a basis for jurisdictional error.
I am satisfied that the Applicant has no arguable case in relation to the substantive matter. The Tribunal complied in every sense with the provisions of s.362B of the Act upon the failure of the Applicant, who was invited under s.360 to appear before the Tribunal, who was advised about the consequences if he failed to appear, but failed to attend at the second rescheduled hearing. The Tribunal was entitled, and it did so under s.362B(1A)(b) to dismiss the application without further consideration.
The Tribunal informed the Applicant that he had 14 days in which to apply to reinstate the matter, which was an entitlement available to him pursuant to s.362B(1B). The Tribunal attached to its written statement a brochure from the Tribunal. The Applicant failed to apply within
14 days and so the Tribunal did what it was required to do pursuant to s.362B(1E); that is, confirm its decision to dismiss the application.
There is no jurisdictional error. There is nothing unfair about the way in which the Tribunal conducted itself. Consequently, the Applicant does not have an arguable case and I would dismiss his application for judicial review with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 9 November 2016
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