SINGH v Minister for Immigration

[2018] FCCA 2542

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2542

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – medical treatment visa – where Applicant failed to attend the Tribunal hearing.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 362B, 379A, 379C

Migration Regulations1994 (Cth), cls.602.212, 602.213, Schedule 3 cl.3001

Cases cited:

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235

ALR 609

Applicant: KULJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1972 of 2016

Judgment of: Judge Barnes

Hearing date: 27 August 2018

Delivered at: Sydney

Delivered on: 27 August 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1972 of 2016

KULJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 27 June 2016.  The Tribunal affirmed a decision not to grant the Applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The Applicant, a citizen of India, applied for a medical treatment visa in April 2016.  The application was refused and the Applicant sought review by the Tribunal.

3. In his review application, the Applicant provided contact details consisting of an address, telephone number and an email address.  In addition, in response to the question as to where he wanted correspondence sent about his application, he provided not only his postal address but also his email address.

4. The Tribunal acknowledged receipt of the application by email sent to that email address on 6 May 2016.  Subsequently, on 7 June 2016, by email sent to the email address provided in the review application, the Tribunal invited the Applicant to a hearing on 27 June 2016.  The Courtbook contains Tribunal case notes indicating that there was no reply to the invitation to attend the hearing and that in these circumstances an SMS hearing reminder was sent to the Applicant’s mobile number (which is correctly recorded in accordance with what he had stated in his review application) on 20 June 2016.  There was no response.  The Courtbook records that a second SMS hearing reminder was sent to the Applicant’s correct mobile telephone number on 24 June 2016.  The Tribunal recorded that the Applicant did not respond and did not attend the hearing.

5. In its reasons for decision, the Tribunal referred to the hearing invitation, including the fact that the letter advised that if the Applicant did not attend the scheduled hearing, the Tribunal could make a decision on the review without taking any further action to allow or enable him to appear before it.  It observed that the letter was sent by email on 7 June 2016.  It also recorded that it did not receive a response to the hearing invitation and that it sent the two SMS messages, but did not receive a response to either message.  The Applicant did not attend the hearing and did not contact the Tribunal to explain his non-attendance or request a postponement.  In these circumstances, the Tribunal decided to proceed to make a decision on the review.

6. The Tribunal saw the issue as whether the Applicant satisfied the requirements of the criterion for a subclass 602 visa in cl.602.213 in Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations). It set out that cl.602.213 (as it stood at the time), relevantly required that at the time of application the Applicant either held a substantive temporary visa of a specified type or, if that was not the case and the Applicant was not medically unfit to depart Australia within cl.602.212(6), that the last substantive temporary visa held was not a subclass 426 or 403 visa and that Schedule 3 criteria 3001, 3003, 3004 and 3005 were met.

7. The Tribunal found that the Applicant did not meet cl.602.212(6), that he did not hold a substantive temporary visa at the time of application, and that the last such visa held was not a subclass 403 or 426 visa, so that he must meet the Schedule 3 criteria.

8. The Tribunal first considered criterion 3001 in Schedule 3 and found that, relevantly, the medical treatment visa application had to have been lodged within 28 days of the relevant day, being the date on which the Applicant’s last substantive visa expired. Information that the Tribunal had before it from the copy of the delegate’s decision record the Applicant had lodged with it revealed that, as the Tribunal found, the “relevant day” that the Applicant’s last substantive visa expired was 15 March 2012.

9. The Tribunal found that a valid application for a medical treatment visa was made on 22 April 2016, but that as this was not within 28 days of 15 March 2012, the Applicant did not satisfy criterion 3001. The Tribunal therefore considered it unnecessary to consider whether he satisfied the other Schedule 3 criteria. It found that he did not satisfy the criterion in cl.602.213 and hence that the decision under review must be affirmed.

10. The Applicant sought review by application filed in July 2016.  There are two grounds in the application.  They are as follows:

    1. The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal.  On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty.  By consequences Tribunal decision is not a decision at all in law.

    2.My point is that having missed the invitation letter , the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.

    (errors in original)

11. The Applicant did not file any amended application or written submissions.  He was given the opportunity today to make oral submissions in relation to the grounds of review and to address any other concerns he had with the Tribunal decision and procedures.

12. In essence the Applicant’s oral submission was to the effect that he had made an application for a medical treatment visa, paid the fees, but “they did not hear [him] out”.

13. As indicated, in the application for review, the Applicant provided contact details, including a postal or email address to which he wished correspondence to be sent. When he failed to appear at the hearing, the Tribunal exercised a discretion to proceed to make a decision on the review pursuant to s.362B(1A)(a) of the Migration Act 1958 (Cth) (the Act) without taking any further action to allow the Applicant to appear before it. It is this action that the Applicant is concerned about.

14. Ground 1 also suggests that the Tribunal acted on the assumption that the Applicant had received the hearing invitation.  When asked about ground 1, the Applicant said that he did not receive the hearing invitation.

15. However the Applicant’s focus on whether he actually received the hearing invitation misunderstands the obligations on the Tribunal under the Act. Under s.360 of the Act the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

16. Under s.360A, the notice must be given by one of the methods specified in s.379A of the Act. In this case, the Applicant had provided an email address in his Tribunal review application as an address to which communications may be sent. The Tribunal recorded that it transmitted the hearing invitation by email to the last email address provided to it by the Applicant in connection with the review in accordance with s.379A(5) of the Act. There is nothing in the material before the court to suggest that the Tribunal failed to transmit the invitation or that it was unsuccessfully transmitted. On its face, the email attaching the hearing invitation was sent to the email address that was the last email address provided by the Applicant to the Tribunal for the purposes of the review.

17. Under s.379C(5) of the Act, which applies when the Tribunal gives a document to a person by the email method specified in s.379A(5), the person is taken to have received the document at the end of the day on which the document is transmitted by email.

18. In other words, in this case the Applicant was taken to have received the email inviting him to the Tribunal hearing at the end of 7 June 2016. There is no evidence to indicate any issue raising the application of s.379C(7) of the Act.

19. I am satisfied that the Applicant was invited to attend the Tribunal hearing in accordance with the statutory requirements. The hearing invitation contains the matters specified in the Act. The Tribunal’s power under s.362B of the Act was enlivened to enable it to make a decision on the review.

20. Nonetheless, as the First Respondent acknowledged, such power is discretionary and should be exercised reasonably.  I accept that, as was submitted for the First Respondent, in this case the Tribunal’s discretion was exercised reasonably.  I note in that respect that the Tribunal not only sent the invitation to the email address provided by the Applicant, but it also sent two SMS reminders of the scheduled hearing to the mobile telephone number the Applicant had provided in the review application.  The Applicant had not engaged with the Tribunal by way of providing written submissions or in any other way.

21. There is nothing in the circumstances of this case to suggest legal unreasonableness (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30). Insofar as it was suggested in the Minister’s written submissions that there was no suggestion that the hearing invitation was “returned unclaimed”, this hearing invitation was not sent by mail.  However there is no evidence that there was any issue in relation to transmission of the email. 

22. This is not a case in which the Tribunal should have taken further steps to contact the Applicant after he failed to appear at the hearing, whether analysed in terms of legal unreasonableness or otherwise.

23. Insofar as ground 1 alleges that the Tribunal failed to discharge its duty as a result of an error by a third party, no third party was identified.  No migration agent was on the record in respect of the application and it was a matter for the Applicant to provide up-to-date contact details.

24. The Applicant’s contention that he did not actually receive the invitation, even if taken at face value, does not establish jurisdictional error, as what is in issue is deemed, not actual, receipt.  Ground 1 is not made out and nor is any legal unreasonableness or failure to comply with procedural fairness. 

25. Ground 2 contends that apart from the hearing invitation letter the Tribunal did not make any other attempt to contact the Applicant to attend the hearing and also asserts that there was an obligation on the Tribunal to send information to the Applicant under s.424A of the Act.  The Applicant submitted that the Tribunal made no attempt to contact him.

26. Insofar as this is a concern about whether the Tribunal took action other than the invitation letter to notify the Applicant of the hearing, as indicated it did make other attempts to contact the Applicant to attend the hearing by way of two SMS messages.  As discussed in relation to ground 1, no jurisdictional error is apparent in that respect.

27. While ground 2 is a contention that the Tribunal was under an obligation to comply with s.424A of the Act, as pointed out in written submissions for the First Respondent, the relevant provision in this case is s.359A of the Act which is, relevantly, in equivalent terms.

28. The Applicant does not identify any particular information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review such as to enliven a s.359A(1) obligation. It is also well-established that the obligation to provide particulars of information under this provision only applies to information which the Applicant did not give for the purposes of the application for review (see s.359A(4)(b)). The Tribunal relied on the delegate’s decision record to identify the “relevant day” for the purposes of cl.3001. Accordingly this information was within the s.359A(4)(b) exception as information that the Applicant gave to the Tribunal by providing it with a copy of the delegate’s decision record.

29. If this is intended to be a contention that the Tribunal was obliged to put its provisional reasoning to the Applicant for comment, the Tribunal is not under an obligation to put its provisional reasoning to an applicant for comment under s.359A of the Act. Further, such reasoning does not amount to information which in its terms constitutes a rejection, denial, or undermining of the Applicant’s claims in the sense considered in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609. Ground 2 is not made out.

30. As the grounds relied on by the Applicant have not been established, the application should be dismissed.  The Applicant has been unsuccessful.  It is appropriate he meet the costs of the First Respondent.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  10 September 2018