Singh v Minister for Immigration

[2018] FCCA 1361

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1361

Catchwords:
MIGRATION – Application for judicial review – temporary student visa – failure to appear at hearing – failure to contact Tribunal – medical certificate not reasonable explanation – no jurisdictional error – application dismissed.

Legislation:

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

Applicant: SUKHJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 639 of 2016

Judgment of: Judge McNab

Hearing date: 24 April 2018

Date of Last Submission: 24 April 2018

Delivered at: Melbourne

Delivered on: 24 April 2018

REPRESENTATION

In Person

Counsel for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 30 March 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 639 of 2016

SUKHJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

1. The Applicant filed an application in this Court on 30 March 2016 seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 8 March 2016. The decision of the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Border Protection to refuse a grant of Student (Temporary) (Class TU) (Subclass 572) visa to the Applicant.

Background

1. On 21 January 2016 the Tribunal invited the Applicant via email to attend a hearing scheduled for 22 February 2016 in order for him to give evidence and present arguments.[1]

   [1] Court Book 70-72.

2. The Tribunal made a very specific request for information to be provided by the Applicant prior to the hearing and those documents were:

   (1)a current certificate of enrolment;

   (2)documents to show that he was currently enrolled in a course or had an offer of enrolment in a registered course;

   (3)documents that showed his past studies in Australia including copies of all attendance certificates, academic transcripts and certificates of completion;

   (4)any explanation for any gaps in enrolments or any documentary evidence relevant to the explanation;

   (5)documents that demonstrate that he had sufficient funds or access to funds to pay for course fees;

   (6)evidence that he met the English language proficiency requirements; and

   (7)evidence that he had successfully completed secondary school to the Year 12 level or other educational qualifications as required for the visa.

3. The letter included a note that stated:

   We request that the above information and other evidence are provided to us at least seven days before the hearing date.

4. The Applicant did not attend the hearing date and on 23 February 2016 the Tribunal dismissed the application pursuant to s. 362B(1A)(b) of the Migration Act 1958 (Cth) on the ground of the Applicant’s

   
   

   non-appearance. As is set out in the decision record of the Tribunal,[2] the Applicant was notified that his application was dismissed and given a copy of a written statement setting out the reasons for the decision. The Applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14-day period would result in confirmation of the dismissal decision.

   [2] Court Book 87 [3].

5. On 29 February 2016 the Applicant sent an email to the Tribunal seeking reinstatement of the application. The email states:

   I’m writing in relation to the application which is application

   
   

   (to dismiss the application.) As I failed to attend the scheduled hearing which was on 22 February, my intention was to appear for the hearing. The reason that I failed to attend the scheduled hearing was because I was very sick. I had diarrhoea, vomiting, because of that I was not able to do anything and not able to travel. I had to see a doctor for this.[3]

   [3] Court Book 82.

6. The Applicant provided a medical certificate which was undated but stated that (formatting replicated below):

   MEDICAL CERTIFICATE

   THIS IS TO CERTIFY THAT ON       22 February 2016

   I EXAMINED       Sukhjinder Singh  

WHO IN MY OPINION IS*
WHO STATES THAT THEY WERE*

SUFFERING FROM A PERSONAL ILLNESS

OR               a medical condition  

AND WILL BE*

UNFIT FOR WORK/SCHOOL

AND WAS*

FROM     22.2.16  TO ̶ ̶̶̶̶̶ ̶̶̶ INCLUSIVE

OTHER COMMENTS  (if necessary)

DOCTOR’S NAME AND ADDRESS PLREASE PRINT OR STAMP  →

SIGNATURE   Dr Tereza Ghaly     

MB, BCh, FRACGP, DRANCOG

Prov No: 2331148L

HILL MEDICAL SERVICES

51 Chandler Rd, PO Box 683

Noble Park Vic 3174

Ph 9562 1766 Fax [phone]

1. The certificate is a standard form where the medical practitioner is required to circle the applicable circumstances and fill in the relevant information where indicated. Where there are two options on this form, the practitioner has not made any indication of which option applies.

Consideration

1. The Tribunal noted that the Tribunal records indicated that the Applicant resides in the Melbourne suburb of Cranbourne and the medical certificate provided by the Applicant was issued by a clinic in the Melbourne suburb of Noble Park. The Tribunal was not satisfied that the certificate sufficiently explained the absence. At [9] the Tribunal noted:

   The Tribunal is concerned that the certificate does not specify whether the Applicant’s medical condition is something concerning which a doctor formed an opinion or was simply a reflection by the medical practitioner as to the Applicant’s own statement as to his medical condition. 

   [10] Furthermore, even if the Applicant’s medical condition was something concerning which the medical practitioner formed an opinion, at the highest that opinion is simply in relation to the Applicant’s incapacity for work/school. The certificate says nothing in relation to the Applicant’s capacity to attend a hearing, whether that hearing be one involving person attendance by the Applicant at the Tribunal premises or a hearing conducted via telephone. 

2. The Tribunal also noted that the Applicant did not respond to the Tribunal’s hearing invitation. It observed there was no record of any kind that the Applicant had made any attempt to contact the Tribunal on the day scheduled for the hearing either in writing or via telephone to advise that he would be unable to attend the hearing. 

3. The email seeking reinstatement makes no reference to the Applicant having any prior contact with the Tribunal. In my opinion, the Tribunal has considered the Applicant’s application for reinstatement and has, on the basis of the material before it, rejected that application. Further, that decision is not attended with any suggestion that it is legally unreasonable or not reasonably open to the Tribunal to adopt that course. There was no failure to give consideration to the application.

4. The Applicant’s grounds for review are in the following terms:

   (1)I came to Australia in 2007.

   (2)I applied for my student visa after completion of my studies which was refused by the Department of Immigration and Border Protection on 3 September 2015.

   (3)I applied in AAT for the review of my application and they invited me to comment on my case on 22 February 2016. As I was unable to attend the hearing due to sickness, I tried to contact AAT many times via phone call but no one there attended the call. On 23 February 2016 I come to know that the AAT dismissed my hearing and sent me dismissal decision. I replied the dismissal decision in the following words.

5. The grounds of review arising from the grounds of application set out in the Court book may be summarised as follows:

   (1)the Tribunal failed to provide any information or reasons to support its decision;

   (2)the reasons for the Tribunal’s decision to dismiss the application for reinstatement were not satisfactory or unreasonable; and

   (3)the Tribunal failed to provide the Applicant with more time to comment on his case. 

6. In my view, there is no merit to any of those grounds for the reasons explained above. The Tribunal gave the reasons for its decision based on the material that had been provided by the Applicant and it was open to the Tribunal to dismiss the application pursuant to

   
   

   s. 362B(1C)(b) of the Act.

7. In respect of ground 2, the Tribunal considered the Applicant’s explanation for his failure to attend the hearing. However, it did not accept that that explanation amounted to a sufficient explanation for his failure to appear at the hearing or otherwise contact the Tribunal.

   
   

   That decision was reasonably open to the Tribunal.

8. In relation to ground 3, the Tribunal was under no obligation to provide the Applicant with more time to comment on his case or otherwise provide information to it. Further, there was no evidence before the Court to indicate that the Applicant requested any additional time from the Tribunal for this reason.

9. In appearing before the Court today, I raised with the Applicant why he had not provided the information requested in the letter of invitation of 21 January 2016. He stated that at that time he had become nervous and could not provide the information. He also stated that he wished to appear before the Tribunal to provide information. In my view, the invitation to appeal was clear and it clearly requested that the information be provided prior to the hearing date.

10. For these reasons, in my view, there has been no jurisdictional error on the part of the Tribunal which is apparent to the Court, and for that reason the Court will dismiss the application filed on 30 March 2016.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 28 May 2018