Singh v Minister for Immigration
[2018] FCCA 1388
•14 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1388 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) vocational Education and Training (subclass 572) visa – oral application for an adjournment – adjournment refused – show cause hearing – Tribunal having dismissed application for non-appearance – applicant not applying for reinstatement within 14 days after being notified of decision – dismissal confirmed by Tribunal – no arguable jurisdictional error. |
| Legislation: Migration Act 1958, ss.362B, 362C Federal Circuit Court Rules 2001, r.44.12(1)(a) |
| Applicant: | SARABJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1048 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 14 May 2018 |
| Date of last submission: | 14 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Chloe Hillary |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | DLA Piper Australia |
ORDERS
The oral application for an adjournment be refused.
The application filed on 22 May 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1048 of 2017
| SARABJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)[1]
The applicant’s oral application for an adjournment
[1] Reasons for judgment were given orally on 14 May 2018. The applicant filed an application for leave to appeal on 24 May 2018. The registry advised chambers on 24 May 2018 that the applicant had applied for leave to appeal. Chambers ordered a transcript of the reasons for judgment on 24 May 2018. Auscript provided the transcript of the reasons for judgment on 25 May 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 30 May 2018.
This is an application for an adjournment of a show cause hearing in a migration matter. The applicant asked the court to give him more time to manage his case. He said he wanted six months. The applicant said that if he had six months, he would be able to sort out his study. He said that he is currently having a tough time and his parents and grandparents have passed away.
It is not appropriate in the interests of the administration of justice for there to be an adjournment in this case. The application was filed on 22 May 2017. That is almost 12 months ago. The applicant has had a considerable period of time to sort out his study, or whatever else he wanted to do. It is not reasonable in all the circumstances for the matter to be adjourned. The application for an adjournment is refused.
The show cause hearing
This is a show cause hearing in the context of an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”). On 2 May 2017, the Tribunal dismissed the application to it for non-appearance, and, on 18 May 2017 confirmed the dismissal for non-appearance.
The relevant provision is s.362B of the Migration Act 1958 (“the Act”). Subsection 362B(1) of the Act which provides that:
This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
In the present case, the applicant was invited to appear before the Tribunal. The invitation is at CB92 and following. It is dated 12 April 2017. It indicates that the matter was listed for hearing on 2 May 2017 at 9:30am. The invitation was apparently sent to the applicant’s migration agent. There is no challenge to the way in which the invitation was sent. The hearing invitation had enclosed with it a Response to hearing invitation form, which asked the applicant to complete it and return it to the Tribunal. However, the applicant did not do so.
When the matter came on for hearing before the Tribunal, the applicant did not appear. Consequently, the Tribunal made a non-appearance decision on 2 May 2017 at 2:45pm. That decision is at CB125. The hearing decision noted that no request for an adjournment had been received. As no satisfactory reason for non-appearance had been given, the Tribunal decided to dismiss the application without further consideration.
The dismissal was in accordance with s.362B(1A) of the Act. That subsection provided that, in circumstances where the applicant did not appear at the hearing:
The Tribunal may:
…
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Section 362C of the Act defined a non-appearance decision and set out various requirements relating to such decisions.
Subsection 362B(1B) of the Act then provided that:
If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Subsection 362B(1C) of the Act provided that:
On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so – reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b)confirm the decision to dismiss the application, by written statement under section 368.
Subsection 362B(1D) of the Act provided:
If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
Subsection 362B(1E) of the Act provided:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
Subsection 362B(1F) of the Act provided:
If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
In the present case, the applicant did not apply for a reinstatement of his application. The Tribunal, on 18 May 2017, proceeded to confirm the decision to dismiss the application.
However, on 2 May 2017, which was the date when the matter was listed for hearing, the applicant’s agent sent an email to the Tribunal at 4:07pm. The email contained no text but it attached some documents. The attached documents consisted of:
a)a medical certificate dated 1 May 2017 saying that the applicant was unfit for work duties from 30 April 2017 to 5 May 2017;
b)a pathology request for certain tests to be done on the applicant; and
c)a prescription for tablets for the applicant.
The nature of the applicant’s illness was unclear from that material.
The agent sent another email to the Tribunal at 5:59 pm on 2 May 2017. It said:
This afternoon 4PM, I have received email from Mr Singh about illness and did not turn up for the hearing, I kindly request to re scheduled the hearing and inform us same.
My apologies to you, as client has responded to me very late.
Please find the letter from the doctor, which is attached to this email.
The letter from the doctor was the medical certificate which had previously been provided to the Tribunal. At that point on 2 May 2017, the agent had not been notified of the dismissal. The agent did not, in terms, ask for a reinstatement of the proceeding.
The Tribunal gave notice of the decision dismissing the applicant’s application by email on 3 May 2017 at 7:55am. The agent did not respond to that email and did not apply for reinstatement after receiving it. As the applicant did not make a reinstatement application after he was notified of the dismissal for non-appearance,[2] the Tribunal proceeded on 18 May 2017 to confirm the dismissal decision.
[2] Section 362B(1B) of the Act.
The applicant has filed an application to this court without the benefit of legal assistance. The grounds of the application filed on 22 May 2017 are as follows:
AAT decision is not acceptable. AAT dismissed my case on the ground of non appearance in hearing. Unfortunately, I was not well on hearing date and I could not attend the hearing nor inform AAT in the morning. However I have submitted medical certificate to member on same day, hearing day in the evening.
However member has given oral decision by dismissing my application, with holding the hearing AAT should have given me another chance of hearing to present myself and explain my situation in order to set aside my DIBP decision
AAT decision was not taken in fairly manner. AAT should have give another date
I am not happy with the decision of AAT. In decision, AAT didn’t consider my illness and my exceptional circumstances, which was beyond my control
The applicant appeared without the benefit of legal representation before the court today. He was not able to elaborate on the grounds set out in his application or put forward any other grounds of review. He simply said to the court a number of times that he tried his best.
The statutory scheme is straightforward but tight. The legislation requires the applicant within 14 days after receiving the notice of the decision to apply for reinstatement. In this case, the applicant did not apply for reinstatement within 14 days after receiving the notice of decision. Consequently, s.362B(1E) of the Act applied. That subsection is, as mentioned above:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
In the present case, the Tribunal had no option but to confirm the dismissal. Consequently, it is not arguable that the Tribunal made a jurisdictional error in either dismissing the application in the first instance, or in confirming the dismissal in the second instance.
In the circumstances, there is no option but to dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 30 May 2018
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