Singh v Minister for Home Affairs

[2020] FCCA 2591

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 2591

Catchwords:
MIGRATION – Application for judicial review of Administrative Appeal Tribunal’s decision to refuse a Student visa – where the applicant failed to appear at the Tribunal hearing – where the applicant did not provide an adequate explanation for his absence – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: KAMAL JIT SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 315 of 2018

Judgment of: Judge Young

Hearing date: 9 September 2020

Date of Last Submission: 9 September 2020

Delivered at: Darwin

Delivered on: 9 September 2020

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Cummings

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 315 of 2018

KAMAL JIT SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision made by the Administrative Appeal Tribunal (“the Tribunal” or “AAT”) on 8 August 2018, declining to reinstate an application of the applicant, dismissed for want of appearance on 1 August 2018.  The background of the matter, very briefly, is as follows.  The applicant has or did apply for a Student visa in 2017.  He provided some information in support of the application for the Student visa but the delegate of the Minister wrote to him in July 2017, saying he needed to provide a valid certificate of enrolment in support of his application. He was given 28 days to respond. 

3. On 18 August 2017, the delegate refused to grant the visa on the basis that no valid certificate of enrolment had been provided and the applicant, therefore, failed to comply with one of the mandatory requirements set out in the Migration Regulations. On 6 September 2017 the applicant applied to the Tribunal for a review of the delegate’s decision and on 9 July 2019 the Tribunal invited the applicant to attend the hearing.

4. The court book at page 63 sets out the invitation sent to the applicant and the date of the invitation is 9 July 2018.  It appears to have been addressed to Mr Singh’s email address and it notified him that the member would be present in Melbourne, Mr Singh would be expected to appear by telephone and he was given the appropriate times – 1 August 2018 at 1 pm in South Australia and 1.30 pm in Victoria.  A telephone number was indicated on which the Tribunal member would call Mr Singh.

5. I also see in the court book that on 25 July 2018, approximately a week before the hearing, an SMS was sent to Mr Singh on his mobile number advising him of the hearing and also on the day before, another SMS was sent.  My Singh makes no complaint about notice of the hearing.  According to the decision of the Tribunal made on 1 August, which is set out in the court book, the Tribunal referred to the invitation and simply noted that the applicant did not appear. 

6. It is said in the letter notifying him of the decision sent on the 2 August 2018, he was advised that he might apply for reinstatement of the application.  As is apparent from the statement of decision and reasons of the Tribunal dated 8 August 2018, what had occurred on 1 August was that the hearing started at, apparently, 1.30 pm Victoria time and, at 1.31 pm, the Tribunal received an email from the applicant in the following terms in what appears to be a handwritten note:

   I was sick, that’s why I couldn’t be able to attend the hearing.  Thank you.

7. Attached to that email along with the email note that I have just referred to was a medical certificate from a doctor practising in an Adelaide suburb which said as follows:

   This is to certify that I have examined Mr Kamal Jit Singh who, in my opinion, is suffering from a medical condition and will be unfit for work from 1 August 2018 to 2 August 2018 inclusive.

   This specific health reason is confidential medical information and can only be revealed to an employer with the expressed permission of the patient.

8. Then there is the signature of the doctor.

9. In the email sent to the Tribunal on 8 August 2018 from Mr Singh he says as follows:

   Dear Officer, I was sick on the day of hearing so was not able to attend the hearing.  I had emailed AAT my letter about my sickness and my sick certificate from doctor on 1 August 2018, i.e. day of hearing.

   Kindly consider my case to reinstate the application. 

   Kindly find sick certificate arranged which was emailed to the AAT on 1 August 2018.

   I request to reinstate my application.

10. As the email indicates, the medical certificate that I have already referred to was, again, sent to the AAT.

11. In its decision in refusing to reinstate the application, the member very briefly set out the background, including the background that I have just referred to.  The relevant paragraph is as follows:

    On 1 August 2018 at 1.31 pm, the Tribunal received an email from the applicant, indicating that the applicant was sick and couldn’t attend the hearing.  The hearing had already commenced at 1.30 pm.  Subsequent to the hearing, the applicant’s application was dismissed by the Tribunal for non-attendance.  On 8 August 2018 at 11.36 am, the Tribunal received an email from the applicant requesting a reinstatement of his application with a medical certificate included.  The medical certificate was included in AAT file folder F38, and states that the applicant was suffering from a medical condition and unfit for work from 1 August 2018 to 2 August 2018.  The Tribunal finds that the applicant has not provided an adequate excuse for his non-attendance at the hearing of 1 August 2018. 

12. When I invited submissions from Mr Singh about why the Tribunal had made an error in its decision on that date, essentially he told me that he was still seeking to obtain a certificate of enrolment and he did not make, really, any submissions at all going to the issue of jurisdictional error.

13. The failure of a person to appear at a Tribunal hearing of this kind, for obvious reasons, requires an adequate explanation before an application can be reinstated.  An adequate explanation would address, at a minimum, if there is a health reason, the nature of the health reason; it might well be a diagnosis of influenza or some other illness, and where, in this case, it was said the hearing was to be by telephone with the applicant, presumably, being permitted to remain at his home, there would need to be, in my view, an explanation about why the applicant could not effectively participate in the hearing by telephone, notwithstanding a complaint of illness.

14. One can imagine that there may be illnesses which would mean that an applicant could not, effectively, participate in a hearing, even by telephone from his home.  It is not necessary to give examples, they are easy enough to imagine.  Similarly, one can imagine situations where a person may well be ill but nevertheless, the illness is relatively mild and there is little reason why an applicant could not participate.  Of course, the question of whether an applicant could effectively participate on the hearing will depend, in substance, on the nature of the issues to be determined at the hearing. 

15. In this case, it was a question of whether or not a certificate of enrolment was able to be provided by Mr Singh.  It is clear enough that at no point, including to the present, has he been able to provide the required certificate of enrolment that would entitle him to seek a student visa or have a student visa.  That being the case, I am satisfied that there is nothing in the material before me to suggest that at any time Mr Singh was unable to effectively participate in the hearing before the Tribunal on 1 August or, indeed, at any other time in a way that would do an injustice to him or would prevent him from effectively advancing any claim that he might reasonably make.

16. In the circumstances a certificate from a medical practitioner which declines to address any of those matters and simply makes a bold statement that a person is suffering from a medical condition and would be unable to attend work for 2 days is, obviously, completely inadequate.  The conclusion of the Tribunal was, in my view, inescapable and shows no error.  The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 15 September 2020