SINGH v Minister for Immigration

[2017] FCCA 1605

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1605

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (Class UB) visa – the Tribunal complied with its statutory requirements – the applicant’s was sent an invitation to the hearing in compliance with s.360(1) – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 360A, 362B, 424A, 476

Migration Regulations 1994, cl.602.212, 602.213 of sch.2, sch.3

Applicant: AWTAR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 253 of 2017

Judgment of: Judge Street

Hearing date: 7 July 2017

Date of Last Submission: 7 July 2017

Delivered at: Sydney

Delivered on: 7 July 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr D Eberl
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 253 of 2017

AWTAR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 December 2016 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant is a citizen of India and applied for the visa on 29 June 2016.  The applicant last held a substantive visa on 28 February 2001. On 5 July 2016, the delegate found that the applicant failed to meet cl.602.213 of Schedule 2 to the Migration Regulations 1994 (“the Migration Regulations”) and found that the applicant failed to meet the criteria for the grant of a visa.

The Tribunal’s decision

1. The applicant applied for review on 21 July 2016. By letter dated 8 November 2016, the Tribunal invited the applicant to attend a hearing on 20 December 2016. That letter informed the applicant that the Tribunal was unable to make a favourable decision on the information provided. The applicant was informed that if he did not attend the hearing and a postponement was not granted, the Tribunal would proceed to make a decision without further notice.

2. On 13 December 2016, the applicant contacted the Tribunal and asked if he could attend the hearing by telephone. The Tribunal agreed to the applicant appearing by telephone. On 19 December 2016, the applicant contacted the Tribunal and advised that he was not feeling well and was informed that he needed to provide a medical certificate as to why he could not attend by telephone. The applicant did not provide any medical certificate or further explain why he could not attend by telephone.

3. On the available information, the Tribunal refused the applicant’s request for a postponement and wrote to him on 19 December informing him that there was no adjournment being granted and that if he did not attend by telephone or in person, the Tribunal would proceed to make a decision on the material before it. 

4. On 20 December 2016, an officer of the Tribunal contacted the applicant in the morning regarding the hearing listed for 2:00pm and informed the applicant the Tribunal would call him back after 2:00pm for the hearing. The Tribunal attempted unsuccessfully to contact the applicant three times after 2:00pm for the hearing as scheduled. The review applicant did not appear before the Tribunal on the day and time and place scheduled and did not respond to the telephone calls. The Tribunal has not received any further explanation or medical evidence to support the claimed inability to participate in the hearing.

5. It was in those circumstances that the Tribunal decided pursuant to s.362B of the Migration Act to proceed to make a decision without taking any further action to enable the applicant to appear before the Tribunal. That decision, on the material before the Court, was reasonable and cannot be said to lack an evident and intelligible justification and was a proper exercise of the discretionary power by the Tribunal.

6. The Tribunal proceeded to identify the need for the applicant to meet cl.602.213 of Schedule 2 to the Migration Regulations. The Tribunal identified the mandatory criteria that the applicant must meet. The Tribunal identified that there was no information to suggest that the applicant met the mandatory requirements at cl.602.212(6) of Schedule 2 to the Migration Regulations and that in those circumstances, the applicant must meet the Schedule 3 criteria.

7. The Tribunal identified that the Schedule 3 criteria relevantly required the applicant to hold a substantive visa on the relevant day. The last substantive visa held by the applicant expired on 28 February 2001. It was in those circumstances the Tribunal found that the applicant failed to meet the mandatory criteria 3011 and that accordingly, the applicant did not satisfy the requirements of cl.602.213 of Schedule 2 to the Migration Regulations. 

8. On the face of the material before the Court, the application to the Tribunal was without any reasonable prospect of success as the applicant could not meet the mandatory criteria.

Before this Court

1. On 16 March 2017, a Registrar of this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence and would hear submissions from the applicant, then hear submissions from the solicitor for the first respondent provided the applicant put submissions, and then hear submissions from the applicant in reply. The applicant confirmed she understood the nature of the hearing as explained by the Court.

Adjournment application raised from the bar table

1. From the bar table, the applicant indicated that he wanted an adjournment. The applicant explained that he had not given any earlier notice of an adjournment. The applicant asserted he wanted to obtain legal advice. The Court asked the applicant why the applicant had not been able to obtain legal representation since the commencement of the proceedings and the applicant indicated it was his financial position.  The Court asked the applicant what had changed with his financial positon and the applicant indicated that he understood there was going to be a rally held for him to raise legal funds. No earlier notice of an adjournment application was provided to the Court. The adjournment was refused by the first respondent.

2. Further, on the material before the Court, the Tribunal complied with its statutory requirements in the conduct of the review and the discretionary decision to proceed with the determination of the review for the reasons earlier given was open to the Tribunal. Based on the material before the Court, the Tribunal complied with its requirements of procedural fairness. Taking into account the want of merits in the application before the Court, the Court is not satisfied that this is a case that warrants an adjournment in the interests of the administration of justice. 

3. The grounds in the application are as follows.

   1. The second respondent acted on assumption that the applicant had received its invitation to appear before the Tribunal. On account of mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequence Tribunal decision is not a decision at all in law.

   2. My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.

Consideration

Ground 1

1. The proposition in ground 1 that the Tribunal failed to discharge its statutory duty is without substance. The Tribunal complied with its statutory requirements and there was a deliberate decision made by the applicant not to attend the hearing.  The essence of the Tribunal’s power to proceed to determine the review was in the circumstances reasonable.

2. The Court notes the decision was made in circumstances where on the face of the material before the Tribunal, the applicant’s last substantive visa was held in 2001. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the proposition that the applicant was not contacted is untrue. It is apparent from the Tribunal’s records that the applicant was contacted both prior to the hearing and on the morning of the hearing. Further the Court tried to contact the applicant by telephone 3 times. On the face of the material before the Court, the applicant advanced a meritless application for an adjournment on the basis of non-existent medical evidence.

2. There is no basis to suggest that the Tribunal contacted the applicant other than with an open mind reasonably capable of persuasion for the determination of the matter on its merits. In the context of the mandatory criteria that the Tribunal was required to consider, the adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. 

3. The proposition that there is any information enlivening an obligation under s.424A of the Migration Act is not made out. I accept the Minister’s submission that the relevant provision was s.359A of the Migration Act that the applicant may have been intending to refer to and no information was identified enlivening any obligation under that section.

4. The Court notes that the Tribunal complied with its obligations under s.360A(5) of the Migration Act in relation to the hearing invitation sent pursuant to s.360(1) of the Migration Act. I also note that the application for review attached the delegate’s decision and that the delegate’s decision identified that the applicant’s last substantive visa ceased on 28 February 2001 and accordingly, that was information provided pursuant to s.359A(4)(b) of the Migration Act by the applicant for the purpose of the application for review. No jurisdictional error is made out by ground 2.

Conclusion

1. The application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 31 July 2017