SINGH v Minister for Immigration

[2018] FCCA 2248

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2248

Catchwords:
MIGRATION – Application for judicial review – partner (Subclass 820) visa – reinstatement application – whether the Tribunal exercised discretion according to law –whether decided in accordance with natural justice – no error by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B(1C), 425

Migration Regulations 1994 (Cth), reg.820.211(2)(d)(ii) of sch.2

Cases cited:

Kaur v Minister for Immigration and Border Protection [2016] FCA 132

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: KULBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1124 of 2016

Judgment of: Judge McNab

Hearing date: 10 July 2018

Date of Last Submission: 10 July 2018

Delivered at: Melbourne

Delivered on: 10 July 2018

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Mr Grant

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed 30 May 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1124 of 2016

KULBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE (REVISED FROM TRANSCRIPT)

Introduction

1. By an application filed on 30 May 2016, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘Tribunal’) dated 10 May 2016. That decision dismissed his application to review a decision of the delegate of the First Respondent not to grant him a partner (Subclass 820) visa (‘Visa’).

Background

1. By way of background, on 18 May 2015 the Applicant applied for a visa on the basis of his spousal relationship with his wife, Rochelle Anne Roussel-Rutter (‘Sponsor’).

2. On 16 December 2015, the delegate refused to grant the Applicant the visa on the basis that the delegate was not satisfied that the Applicant met cl.820.211(2)(d)(ii) of sch.2 of the Migration Regulations 1994 (Cth).

3. On 4 January 2016, the Applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision and provided a copy of the delegate’s decision with the application.

4. On 22 February 2016, the Tribunal sent a letter via email to the Applicant’s nominated email address, inviting him to attend a hearing scheduled on 6 April 2016.

5. On 5 April 2016, the Applicant contacted the registry of the Tribunal and spoke to a member of the staff. A case note was taken of the communication, which provided as follows:

   [t]he review Applicant called to advise he was not feeling well and would be unable to attend tomorrow’s hearing; he advised he had an appointment with a doctor this afternoon. I advised the Applicant he would need to place a request in writing to have his hearing postponed; he should attach a medical certificate along with his request. I informed the Applicant that the medical certificate would need to specifically state the reason why he was unable to attend a Tribunal hearing; a generic certificate stating he was unfit for work/study may not be accepted by the member. I advised the Applicant it would be up to the Tribunal Member whether the hearing would be postponed. The Applicant advised he would fax through the request as soon as he had seen his doctor.

6. A medical certificate was provided which stated that the Applicant was suffering from a medical condition and will be unfit for work and study from Wednesday, 6 April 2016 to Wednesday 6 April 2016 inclusive, and it noted that the certificate was issued on 6 April 2016.[1]

   [1] Court Book 194.

7. The application for an adjournment was granted. On 6 April 2016, the Tribunal wrote to the Applicant, advising him that the adjourned hearing date was 22 April 2016. It also notified him in relation to any need for a further adjournment that:

   [t]he member reviewing your case has asked me to advise you that no further postponement of the hearing will be granted on medical grounds unless you provide the Tribunal with a full report from your treating doctor indicating why you are unable to attend a hearing before the Tribunal. A brief certificate stating that you are “unfit for work or study” will not be sufficient. The doctor preparing the report should comply with the Tribunal’s requirements for expert reports and should state that they are aware that they may be summoned to appear before the Tribunal to give evidence in relation to your medical certificate – medical condition.

8. The Tribunal notified the Applicant of matters relating to his substantive application before the Tribunal.[2] On 15 April 2016, the Applicant forwarded a response to a hearing invitation to the Tribunal.[3] There are case notes recorded which detailed communications between the Applicant and the Tribunal registry in relation to his preparations in relation to witnesses and forwarding of documents in preparation for the hearing.[4]

   [2] Court Book 198.

   [3] Ibid 201

   [4] Ibid 203 - 205

9. The Applicant did not attend the hearing on 22 April, and there was no prior notification from him addressing any request for postponement or adjournment.

10. On 22 April 2016, the Tribunal wrote to the Applicant, advising him that the application had been dismissed and notifying him that he could apply in writing for reinstatement of the application by 6 May 2016.

11. On 2 May 2016, the Applicant wrote to the Tribunal stating that he could not attend the hearing as he was really sick on the hearing days and requesting the member to:

    [p]lease give me once chance (sic), so I can proof (sic). I request to member please reinstatement (sic) my hearing.

12. On 6 May, the Applicant wrote again, stating that:

    [m]y hearing was on 22 April 2016, but, regarding my health problem, I couldn't attend hearing.

Decision of the Tribunal

1. On 10 May 2016, the Tribunal made a decision refusing to reinstate the application. That decision sets out the narrative of communications between the Tribunal and the Applicant. At [11], it notes that the Applicant did not attend the hearing on 22 April 2016 and did not contact the Tribunal at any time that day to provide any reason for his

   
   

   non-appearance.

2. At [20], the Tribunal notes that the Applicant has provided no evidence that he was suffering any medical condition on 22 April 2016, when the adjourned hearing date was listed. The Tribunal did not accept that the Applicant had not been able to provide such information to the Tribunal, if he had any:

   [h]e has not provided any medical certificate which would indicate that he would not have been able to participate in the hearing on 22 April 2016. The first time the Applicant contacted the Tribunal after he failed to attend the second hearing arranged for the Tribunal was on 2 May 2016, responding to the initial dismissal of the application by the Tribunal.

3. In relation to the substantive hearing, the Tribunal noted at [22] that:

   [d]espite stating that the Sponsor would attend the hearing in accordance with the request from the Tribunal, there has been no communication from the Sponsor to indicate that she was unable to attend the hearing. There has been no further information provided from the Sponsor to support the application. The Applicant has provided no further information to the Tribunal that has not already been considered by the department or has been considered by the Tribunal before the application was listed for hearing.

4. The Tribunal concluded at [23] that there was no evidence available that would justify the reinstatement of the application.

Grounds of review

1. The Applicant’s grounds of review, replicated exactly from his application and supporting affidavit, are as follows:

   1.Jurisdictional error & Lacked jurisdiction

   2.Error in interpretation of legislation

   3.Natural justice

   4.The Tribunal misinterpreted the applicable law of misapplied the law and made jurisdiction error.

Consideration

1. The Tribunal has the power to either reinstate a hearing where it considers it appropriate, or confirm the decision to dismiss the application under s.362B(IC) of the Act. The First Respondent submits this power is analogous to the discretionary power contained in s.363 of the Act and that the same standards should apply.[5] The First Respondent submits that the decision to dismiss was intelligible, justifiable and not unreasonable[6] and therefore no error arises from the exercise of the discretion.

   [5] See Kaur v Minister for Immigration and Border Protection [2016] FCA 132 [17].

   [6] Minister for Immigration and Citizenship v Li [2013] HCA 18 [28].

2. In my view, there is no error apparent in the decision of the Tribunal, nor is the decision affected by unreasonableness. There is no suggestion that the Applicant did not receive the communications from the Tribunal notifying him of the adjourned hearing date and the basis on which any application for a further adjournment would be sought. The decision to dismiss was open to the Tribunal on the circumstances before it and it exercised its discretionary power to affirm the decision to dismiss the application according to law.

Conclusion

1. Given the circumstances outlined above, I dismiss the application.

I certify that the preceding twenty-one one (21) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  15 August 2018