SINGH v Minister for Immigration

[2017] FCCA 2025

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2025

Catchwords:
MIGRATION – visa – student visa – failure to meet criteria – failure to provide evidence of proficiency in English – failure to attend Tribunal hearing – Tribunal proceedings in absence of applicant – whether discretion to proceed in absence of applicant properly exercised – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 362B, 476

Migration Regulations 1994 (Cth), cl.572.223 of Sch.2, cl.5A 407 of Sch.5A

Applicant: HARJOT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 269 of 2016

Judgment of: Judge Heffernan

Hearing date: 9 August 2017

Date of Last Submission: 9 August 2017

Delivered at: Adelaide

Delivered on: 9 August 2017

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr O Young

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 269 of 2016

HARJOT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. This is an application pursuant to s.476 of the Migration Act 1958 (‘the Act’) for judicial review of a decision of the Administrative Appeals Tribunal, dated 5 August 2016, that affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) Visa (‘the visa’). 

2. The applicant was self-represented before me and appeared with the assistance of an interpreter in Punjabi and English.  I also permitted him to consult with and gain some assistance from his wife, Ms Kaur, who was also present.  The grounds of the application filed by the applicant are as follows:

   “(1)I missed the chance to attend AAT hearing for bad health.

   (2)I am sick and I have certificate from doctor.

   (3)I am a genuine student.

   (4)Due to my sickness and bad health, I was unable to submit my English language certificate.

   (5)Please understand my problem and decision of AAT should be quashed and I may be given a chance to reappear in my hearing.”

3. The application was supported by an affidavit of the applicant dated 29 August 2016.  That affidavit annexed a copy of the decision record of the Tribunal, but apart from indicating that the applicant regarded himself as a genuine student who was willing to study, it added nothing of substance to the application.  On 21 October 2016, the Registrar made procedural orders that inter alia gave the applicant leave to file further material on which he sought to rely and any application by 23 December 2016.  The applicant was also ordered to file an outline of submissions 14 days prior to today’s hearing.  No further materials were filed by the applicant. 

4. The background of this matter is not disputed and can be summarised succinctly.  The applicant applied for the visa on 20 May 2015.  Further information was requested from him on 29 May 2015.  In particular he was asked to provide confirmation of his enrolment and evidence of his degree of proficiency in the English language and any other evidence that might assist him to establish that he was a “genuine temporary entrant” to Australia.  The delegate refused to grant the visa on 25 August 2017 on the basis that no evidence had been provided to establish that the applicant had proficiency in the English language. 

5. In fact, when the applicant made his application, that application indicated in answer to question 34 that he had not undertaken an English language proficiency test within the last 24 months.[1] There being no evidence that he had undertaken such a test, the delegate concluded that he was unable to satisfy cl.572.223(2) of Schedule (2) to the Migration Regulations 1994 (Cth) (‘the Regulations’). The applicant applied to the Administrative Appeals Tribunal in a timely manner, seeking review of the delegate’s decision.

   [1]     Court Book (‘CB’) p 5.

6. He was invited by the Tribunal to attend at a hearing to give evidence and present argument on 4 August 2016.  That invitation also requested further information of the applicant, and in particular put him on notice that he was required to provide evidence of a certificate of proficiency in the English language.  The applicant did not respond to the hearing invitation and did not attend at the scheduled hearing. 

7. The Tribunal determined to proceed in the absence of the applicant pursuant to s.362B of the Act. It was open to the Tribunal in the circumstances simply to dismiss the application for a review of the delegate’s decision, but the Tribunal elected to proceed in his absence. The following day, it affirmed the decision of the delegate. The Tribunal identified the issue before it as being whether the applicant was a “genuine applicant for entry and stay as a student” having regard to the matters prescribed in cl.572.223. In the circumstances of the applicant, the Tribunal determined that it was necessary for him to establish English language proficiency as required by cl.5A 407 of Schedule 5A to the Regulations.

8. Having considered all of the material before it, the Tribunal concluded that the applicant had not provided evidence of having undertaken a IELTS, was not fully funded, and therefore could not satisfy cl.5A 407(c). There was also no evidence of the applicant having completed a relevant senior secondary certificate of education or a substantial part of a relevant course conducted in English and for that reason, he could not satisfy cl.5A 407(d). The Tribunal further concluded that he could also not meet cl.5A 407(f). In short, the Tribunal concluded that the applicant could not establish proficiency in the English language as required by the Regulations and accordingly could not meet the criteria for the grant of a subclass 572 visa.

9. On that basis, the Tribunal affirmed the decision of the delegate. 

10. The applicant does not now dispute that he did not provide the Tribunal or the delegate with evidence of a certificate of English proficiency that could have enabled him to satisfy the criteria for subclass 572.  He simply asserts that he is a genuine student and that he was sick at the time of the AAT hearing.  His grounds assert that he has a medical certificate to establish his ill health and that it was on account of ill health that he had been unable to submit a certificate of proficiency in English.  The grounds are not particularised in a way that identifies any form of jurisdictional error. 

11. In essence, the applicant is saying that it is because he was sick the Tribunal should not have proceeded in his absence to make the decision that it did. For practical purposes, this amounts to complaints of a lack of procedural fairness, a failure in the duty of the Tribunal to conduct a hearing and/or a failure on the part of the Tribunal to properly exercise the discretion in s.362B.

12. The applicant made brief oral submissions to me today and submitted to the Court that he was hospitalised at the time of the hearing and for that reason he was unable to attend.  He said that at the relevant time he was not aware of what was happening and his health was not very good.  He claims that he was bedridden at the time.  He says that he and his wife were not checking emails at the relevant time but he does not dispute that he had been given an invitation to attend at the hearing, as found by the Tribunal; rather he submits that because of his ill health, he and his wife did not turn their attention at the relevant time to the fact of the hearing and the matters that they were required to attend to. 

13. With respect to his certificate of proficiency in the English language, the applicant submitted to the Court that his bag had been stolen and that it had all his paperwork in it.  He had filed a relevant police report, but that he did not receive any response from his college and so he was not able to submit a certificate of proficiency in the English language, as requested by the Tribunal. 

14. For the first respondent, counsel made submissions both in writing and orally. The effect of the written submissions is that it was open to the Court to proceed pursuant to s.362B and that the discretion to do so was exercised reasonably. Further, it was submitted that in reality, the ground of the applicant at point 4 of his application is made in the absence of any evidence being provided by way of a sick certificate and that in any event, there was no English language certificate provided either to the Tribunal or to this Court. With respect to the grounds at points 3 and 5 of the applicant’s application, the respondent submitted that there was no jurisdictional error identified and that those grounds simply express a dissatisfaction with the findings of the Tribunal and for that reason, amount to a request for an impermissible merits review.

15. In his oral submissions, Mr Young reiterated that with respect to the submissions made by the applicant this morning, there was no evidence as to the applicant’s hospitalisation and that in any event, it could not impact upon the lawfulness or reasonableness of the Tribunal acting in the way it did because it had not been brought to its attention that the applicant was either sick at that time or hospitalised.  Similarly, it was submitted that the suggestion the papers had been stolen and that that incident had been reported to the police was not a matter on which any evidence had been provided to the Tribunal or subsequently to this Court. 

16. Mr Young emphasised that the applicant had, after his initial application and prior to the Tribunal hearing, had it brought to his attention that he was required to provide evidence of his proficiency in English.  In essence, what was being submitted by the respondent was this was a live issue from the earliest stage of the application process and that the applicant must have been aware of that.  It was submitted that it was clearly open to the Tribunal to proceed in the way that it did and in the absence of a certificate of proficiency in English the finding made by the Tribunal that the applicant did not satisfy the criteria was also open to it. 

17. The purpose of judicial review in this Court is not to conduct a hearing de novo.  Whilst the parameters of judicial review are not set in stone and are broad, they do not enable this Court to reconsider the merits of an application or to substitute its own view for that of the Tribunal.  For that reason, my consideration is confined to taking into account the materials that were actually before the Tribunal at the time of the hearing.  In other words, has it been demonstrated that the Tribunal fell into jurisdictional error on the basis of the material before it at the time?

18. There was no evidence before the Tribunal that the applicant was unwell on the day of the hearing or that he was hospitalised.  Nothing was submitted to the Tribunal to suggest that for any reason he was unable to attend.  There was no written application or any other form of application to adjourn the Tribunal hearing.  No medical certificate was submitted and there is nothing to suggest that the applicant later provided any explanation to the Tribunal for his failure to attend at the scheduled hearing. 

19. Before the Tribunal may proceed under s.362B, two preconditions must be satisfied. The first is that the applicant must have been invited under s.360 to appear before the Tribunal.[2]  The applicant was extended that invitation.[3]  Secondly, it must be established that the applicant has failed to attend at the hearing on the day on which or at the time and place at which the applicant is scheduled to appear.[4]  The Tribunal recorded that the applicant failed to attend and that he had provided no explanation for this.  That was a matter that was recorded in the migration hearing record.[5]

    [2] Section 362B(1)(a).

    [3]     CB p 89.

    [4] Section 362B(1)(b).

    [5]     Affidavit of Oliver Young dated 7 August 2017 ‘migration hearing record’.

20. The discretion to proceed under s.362B was clearly enlivened. I am satisfied that the discretion was exercised reasonably in all of the circumstances. I am satisfied that the Tribunal complied with its duty to conduct a hearing under the Act. It is not disputed that the applicant received the relevant notice about the hearing. There was no procedural unfairness occasioned to the applicant in the Tribunal proceeding as it did. Indeed, the Tribunal records that it contacted the applicant by telephone on a number of occasions during the course of the hearing in order to inquire of his absence. This Court is not now permitted to reconsider the merits of the applicant’s claim and it is not appropriate to consider fresh evidence not available to the Tribunal as to his state of health at the time and putative reasons for non-attendance.

21. I note, having said that, that no affidavit has been filed by the applicant annexing the medical certificate that he has spoken of or putting on oath any of the matters that he submitted in Court. Having made that observation, the applicant does not challenge that no certificate of proficiency in English was provided to the Tribunal or that no certificate had been provided earlier to the delegate. For that reason, there can be no error in the conclusion by the Tribunal that the applicant was not capable of satisfying the relevant criteria specific to his circumstances pursuant to cl.572.223. In the circumstances, the applicant has not established that jurisdictional error has occurred and, for that reason, I dismiss the application.

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

Date: 15 September 2017