Singh v Minister for Immigration
[2018] FCCA 2063
•1 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2063 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a partner visa – application in Court for judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Immigration not to grant a partner visa because relationship between applicant and sponsoring partner not genuine and continuing at time of decision – no appearance by Applicant before scheduled Tribunal hearing – Applicant applied for reinstatement on the basis of inadequate medical certificate – Administrative Appeals Tribunal refuses to reinstate application for review – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 362B, 375A Migration Regulations 1994 (Cth) |
| Cases cited: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 |
| Applicant: | MANJINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 872 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 20 September 2016 |
| Date of Last Submission: | 22 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. Pinder |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 12 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 872 of 2016
| MANJINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of India aged 32 years, having been born on 8 June 1986.
By Application filed in this Court on 12 April 2016 the Applicant seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 1 April 2016 (made under s.362B(1C)(b) of the Migration Act 1958 (Cth) (the Act)) to confirm its earlier decision of 21 March 2016 (made under s.362B(1A)(b)) to dismiss on that date his application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 19 February 2015 refusing to grant him a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa) because of his non-appearance at the Tribunal hearing scheduled for 21 March 2016.
Background
The Applicant arrived in Australia on a Student visa on 18 October 2007.
On 12 September 2011 the Applicant married Ms Jennifer Bamford, an Australian citizen by birth, in Australia.
On 29 September 2011 the Applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) together with a permanent Partner visa on the basis of being in a spousal relationship with Ms Bamford (sponsor). On 9 July 2013 a Delegate of the Minister granted the Applicant a temporary Partner visa.
I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) is to prescribe that at time of decision the relevant applicant is already the holder of a temporary Partner visa.
Decision of Delegate in Relation to Permanent Partner Visa
By Decision Record dated 19 February 2015 the Delegate of the Minister refused to grant a permanent Partner visa to the Applicant because the Delegate was not satisfied that the Applicant was the spouse of the sponsor at time of decision as required by cl.801.221(2)(c) in accordance with the definition of spouse as defined by s.5F(2) of the Act. The Delegate, in particular, was not satisfied that the Applicant and his sponsor were in a genuine and continuing relationship as required by s.5F(2)(c).
Application for Review to Tribunal and Tribunal Decisions
On 4 March 2015 the Applicant lodged an application for review of the Delegate’s decision with the Tribunal.
By letter dated 11 February 2016 the Tribunal advised the Applicant that it was unable to make a favourable decision on the information before it and invited him to appear at a hearing to give evidence and present arguments on 7 March 2016.
However, by email sent on 18 February 2016 the Applicant requested that the Tribunal hearing scheduled for 7 March 2016 be postponed as he was leaving Australia on 14 February 2016 to be with his father in India who was not well. The Applicant advised that he would be returning to Australia from India on 20 March 2016.
The Tribunal agreed to the adjournment and by letter sent by email on 22 February 2016 rescheduled the Tribunal hearing for 21 March 2016 at 8:30am. This letter went on to advise that the Tribunal might wish to take evidence from the sponsor and asked that she attend the Tribunal hearing on 21 March 2016. The letter also attached the usual Response to Hearing Invitation.
The completed Response to Hearing Invitation signed by the Applicant was dated and returned to the Tribunal on 27 February 2016 and indicated that both the Applicant and the sponsor would attend and take part in the Tribunal hearing scheduled for 21 March 2016. However, neither the Applicant nor the sponsor attended the Tribunal hearing on 21 March 2016 and at 10:14am on that date the Tribunal dismissed the application for review under s.362B(1A)(b) of the Act in the following terms:
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 21 March 2016, but did not appear at the scheduled time and place. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
By letter dated 21 March 2016 the Tribunal advised the Applicant of its dismissal of his application for review but indicated that he could apply in writing for reinstatement of his application. For some strange typographical reason this letter indicated that the reinstatement application had to be made by “1 January 1900”, but this error is of no consequence because within the 14 day period permitted under s.362B(1B) of the Act the Applicant, by email from his newly appointed registered migration agent, sought reinstatement of his application for review. The email from the registered migration agent stated that the Applicant “could not attend his hearing due to his sickness on 21/03/2016” and attached a medical certificate in the following terms:
This is to certify that
Mr Manjinder Singh
7/13-17 Tangerine Street
FAIRFIELD EAST 2165
DOB: 8/6/1986
was examined and received Medical Treatment at our clinic, for the period
Monday, 21 March 2016 to Monday, 21 March 2016 INCLUSIVE
He will be unfit to continue his usual occupation/ study.
This Certificate is completed on 21 March 2016.
Dr Mohammad Nizam Uddin
(Medical Certificate)
By its Decision Record of 1 April 2016 the Tribunal decided not to grant the reinstatement application and to confirm under s.362B(1C)(b) of the Act its dismissal of the application for review of 21 March 2016 for the following stated reasons:
[4] The review applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
[5] The applicant wrote to the Tribunal on 31 March 2016 stating that he was ill on the day of the hearing, which was scheduled a day after his return from India. The Tribunal notes that the hearing was postponed at the applicant's request and having regard to his travel plans. The applicant presented to the Tribunal a medical certificate from Berala Medical Clinic. The Tribunal has had regard to that evidence but considers it inadequate to explain the applicant's non-appearance. The medical certificate is dated 21 March 2016 and refers to the applicant receiving 'medical treatment' (the nature of which is unspecified) and being unfit to continue his usual occupation / study. There is nothing in that document indicating the applicant was unfit to appear before the Tribunal and give evidence. The Tribunal hearing does not require the applicant to engage in his usual occupation or study.
[6] The Tribunal is also mindful that the applicant made no effort to contact the Tribunal on the day of the hearing, or for ten days subsequent to the hearing, to advise that he was ill. In the Tribunal's view, if the applicant planned to participate in the hearing but was genuinely ill and unable to due to his illness, he would have made contact the Tribunal, and could have easily done so by phone or email, to advise of his illness. His failure to do so may suggest that the applicant's reference to his illness is a more recent invention.
[7] The Tribunal does not consider that the evidence presented by the applicant adequately explains his non-appearance because it does not indicate that the applicant was incapable of participating in the hearing.
Application to this Court
The Applicant relied on the following Grounds:
1.The Tribunal exercised power vested in it under s.362B(1A)(b) of the Migration Act 1958 unfairly and arbitrarily.
2.The Tribunal failed to apply procedural fairness in the applicant's matter.
Particulars:
The applicant says he was not given a fair hearing to present his evidence. The Tribunal made a decision in the absence of the applicant despite applicant's communication with the Tribunal that he is unwell to attend the hearing and providing medical evidence to support his position.
Consideration
In my opinion neither Ground asserted by the Applicant establishes that the Tribunal’s decision of 1 April 2016 to confirm its decision to dismiss the application for review on 21 March 2016 is affected by jurisdictional error. The decision of the Tribunal in that regard was not legally unreasonable, nor did it “lack an evident or intelligible justification”.
In this case the Tribunal in its Decision Record of 1 April 2016 chose to explain its exercise of discretion in confirming the dismissal of 21 March 2016, “and the Court is entitled to treat what is said by the Tribunal….as a complete explanation for why it chose to exercise the discretion as it did”: see Tracey and Mortimer JJ in AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 (AYX17) at [61].
At [5] of its Decision Record the Tribunal correctly recorded that it had postponed the Tribunal hearing at the Applicant’s request from 7 March 2016 to 21 March 2016. The Applicant accepted that date and returned the Response to Hearing Invitation dated 27 February 2016 which indicated that he and his sponsor would appear at the Tribunal hearing now scheduled for 21 March 2016.
The Tribunal then further at [5] points out correctly that the Medical Certificate was “inadequate to explain the applicant’s non-appearance”. There was no statement in the Medical Certificate of the nature of the medical condition supposedly affecting the Applicant on 21 March 2016 or the type of medical treatment which he received at the Berala Medical Clinic. Further, there was no attempt in the Medical Certificate to causally link any medical condition suffered by the Applicant on that date with any inability of the Applicant to appear at the Tribunal hearing and to meaningfully participate in it. It would seem the Applicant was well enough to attend the Berala Medical Clinic on 21 March 2016. There is no statement in the Medical Certificate of the Applicant’s occupation or study which it is said that he would be unfit to continue on 21 March 2016. Rather, the Medical Certificate appears to be on its face an entirely pro forma document which does not give any plausible or persuasive explanation to the Tribunal of why the Applicant would not have been able to meaningfully participate in the Tribunal hearing scheduled for 21 March 2016.
The approach of the Tribunal to the Medical Certificate was entirely consistent with decisions of numerous Judges in the Federal Court of Australia. In MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 at [7] Davies J said as follows:
[7]No error has been demonstrated in the conclusion of the Federal Circuit Court that the Tribunal did not deny the appellant procedural fairness. The medical certificate which the appellant furnished to the Tribunal was in the following form:
In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive. (medical condition)
The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day. As the Federal Circuit Court correctly stated at [18]:
The authority of the Federal Court indicates that a medical certificate of the type provided by the [appellant] would not, in the Federal Court, be an adequate justification for an adjournment.
More recently, in BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35] Thawley J said as follows of the analogous position in relation to meaningful participation in a Court hearing:
The critical question is whether the applicant was prevented from attending court or participating effectively in a court hearing. Where an applicant’s case is that she is unable to attend or participate meaningfully in a hearing by reason of a medical condition, such an applicant must provide some basis for the court to conclude that the medical condition does indeed prevent her attendance or effective participation. The most obvious way to do so is to furnish medical evidence to the effect that the relevant medical condition exists and has the effect of preventing the attendance or effective participation of the applicant. The weight to be afforded such evidence depends on its particular content. A report which explains why the relevant medical practitioner holds the opinion that the medical condition prevents the applicant attending or participating is likely to be afforded more weight than a report which contains mere ipse dixit. A report which just states a conclusion, if admissible, may be of little or no weight. The report in the present case did not state that the applicant was unable to attend, and nor did it state that she was unable to participate meaningfully at a hearing. It follows that it also did not explain why the applicant would not be able to attend or participate meaningfully. Similar issues were addressed in Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]- [14], per Murphy J.
The appointed Tribunal hearing date of 21 March 2016 presumably was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14], “one of the most important appointments in [his] life”. The Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:
What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.
In my view, the decision of the Tribunal to confirm its earlier dismissal of the application for review was legally open to it. Perhaps a Tribunal differently constituted might have come to a view more favourable to the Applicant, but that possibility is not sufficient to give rise to jurisdictional error. It could not be said that no rational or logical decision maker could have arrived at the decision which the Tribunal reached in this case. There was an intelligible justification for the Tribunal deciding to proceed in the way that it did because it had a “genuinely free discretion” and “decisional freedom” to make the decision and in that regard its decision did not fall outside of the range of possible, acceptable outcomes: see Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 650 [52].
As Tracey and Mortimer JJ said further in AYX17 at [39]:
In Minister for Immigration and Border Protection v Stretton [2016] 237 FCR 1 at [92], Wigney J placed the reference to a range of outcomes in what we consider, with respect, to be its correct context: namely as another way of explaining the general limits of the judicial function in a supervisory jurisdiction:
In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]- [45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Liat [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.
A Final Matter
Whilst judgment in this matter stood reserved after the hearing on 20 September 2016 the Minister, as a model litigant, after having conducted a review of all current matters following the decision of the Full Court of the Federal Court of Australia in Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305, identified that a delegate of the Minister had issued a certificate purportedly pursuant to s.375A of the Act (s.375A Certificate) on 11 March 2015. Orders were then made in Chambers to permit the parties to put on further evidence and submissions in relation to the s.375A Certificate. In the s.375A Certificate the delegate certified that the disclosure of folios 120-123 and 126-127 of Department file CLF2011/175836 would be contrary to the public interest because the identified folios contained ‘internal process and internal investigation’.
Section 375A of the Act applies to a document or information where two criteria are established:
a)first, that the Minister has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in s.375(a) or (b)); and
b)second, that the Minister has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
Mr Greg Johnson of Counsel in his Written Submissions of 22 September 2017 on behalf of the Minister submitted that the s.375A Certificate met each of the requirements prescribed in s.375A(1) of the Act, and was therefore validly issued. He accepted that it appears that the Tribunal complied with its duties under s.375A(2) and accordingly that it may be inferred that the documents identified in the s.375A Certificate were not at any time given to the Applicant by the Tribunal for the purposes of the review.
Mr Johnson submitted that this did not give rise to a denial of procedural fairness constituting jurisdictional error. I agree with Mr Johnson’s submission. The documents the subject of the s.375A Certificate are not in evidence but even if the documents went in some way to the merits of the Applicant’s clam to be entitled to a Partner visa, the simple fact of the matter is that the Tribunal never had any regard to the documents because it never substantively considered the Applicant’s claims on their merits. The Tribunal did not mention or rely upon the documents the subject of the s.375A Certificate in its decision of 1 April 2016 confirming its earlier dismissal of the application for review, but rather only to the matters appropriate to the exercise of its discretion as to whether or not to reinstate that application. The documents the subject of the s.375A Certificate would have been entirely irrelevant and immaterial to that decision and could not have had any conceivable impact on the outcome of the Tribunal’s refusal to reinstate. The fact that the Tribunal did not alert the Applicant to the existence of the s.375A Certificate and the documents subject to it did not result in any practical unfairness: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J.
Conclusion
In my view the Grounds asserted by the Applicant fail to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 1 August 2018
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