SINGH v Minister for Immigration

[2016] FCCA 2366

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2366

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – substantive application dismissed for non-appearance – current application seeks reinstatement of proceeding.

Cases cited:
AZAFB v Minister for Immigration and Border Protection (2015) 68 AAR 171; [2015] FCA 1383

Applicant: SUKHJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 470 of 2015

Judgment of: Judge Riley

Hearing date: 12 August 2016

Date of last submission: 12 August 2016

Delivered at: Melbourne

Delivered on: 12 August 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Bromley Hornsby

Solicitors for the first respondent: Sparke Helmore Lawyers

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore Lawyers

ORDERS

1. The application in a case filed on 20 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the application in a case filed on 20 June 2016 fixed in the sum of $1,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 470 of 2015

SUKHJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to reinstate an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The substantive application, filed on 10 March 2015, was dismissed on 23 May 2016 when the applicant failed to appear at the scheduled hearing. 

2. On 20 June 2016, the applicant filed an application in a case seeking the reinstatement of the proceeding.  The applicant said that he had been unable to attend the scheduled hearing due to sickness and he provided a medical certificate.  The medical certificate is dated 22 May 2016 and said that the applicant:

   … will be unfit for normal duties for the period 22/05/2016 to 23/05/2016 inclusive. 

3. The applicant did not provide that medical certificate to the court prior to the hearing on 23 May 2016.  The medical certificate does not state that the applicant was unfit to travel to court or participate in a brief hearing.

4. The Minister for Immigration did not suggest that there was any prejudice to him in the proceeding being reinstated. However, the Minister said that the applicant’s explanation for his non-attendance was inadequate and that the applicant did not have reasonable prospects of success in the substantive application.

5. I accept that the applicant’s explanation for his non-attendance at this court is inadequate.

6. Regarding the substantive application, the applicant initially had a student visa as a member of the family unit of his wife, who had a student visa for the purposes of a course she proposed to undertake.  However, the applicant and his wife separated.  The applicant applied on 15 April 2013 for a student visa in his own right.  He indicated that he intended to study Certificates III and IV in English as a second language.  The applicant provided certificates of enrolment, showing that he was enrolled in a Certificate III from 15 June 2013 to 2 November 2013 and a Certificate IV from 15 December 2013 to 2 May 2014.

7. The delegate notified the applicant on 7 October 2013 that the Department of Immigration and Border and Protection (“the Department”) had received information that the applicant was no longer in a relationship with his wife.  The email sought the applicant’s comments on that information.  The applicant replied on 29 October 2013 that he had, in fact, separated from his wife before he lodged his application for the student visa the subject of this proceeding.

8. The delegate refused the application on 2 December 2013 on the basis that the applicant had not complied substantially with a condition to which his last substantive visa was subject.  That condition was condition 8516.  It required the applicant to continue to meet the criteria for the grant of his last held visa.  One of those criteria was that the applicant continue to be a member of the family unit of his wife.  As the applicant and his wife had separated, the delegate considered that the applicant had not complied substantially with the conditions to which his last held visa was subject and refused the application. 

9. The applicant then sought review by the Tribunal.  The requirement that a person comply substantially with the conditions of the last held visa was repealed before the Tribunal made its decision. 

10. The Tribunal wrote to the applicant on 23 September 2014 inviting the applicant to a hearing and asking him to provide various items of information.  Those items were a copy of his current certificate of enrolment, documents showing the applicant was enrolled in a course or had an offer of enrolment in a registered course, documents showing the applicant’s past studies in Australia, including attendance certificates, transcripts and certificates of completion, and an explanation for any gaps in enrolment.

11. The Tribunal’s letter was sent to 3/1 Quandon Street, Thomastown, Victoria 3074.  The applicant’s address included in his application to the Tribunal was the same in answer to question 5.  However, in answer to question 25, regarding the address for correspondence, the applicant’s address was slightly different.  It was 3/1 Quandong Street, Thomastown, Vic 3074. 

12. The applicant did not appear before the Tribunal. Moreover, the applicant did not provide any of the information sought by the Tribunal in its letter dated 23 September 2014. 

13. The applicant had a migration agent when he lodged his visa application.  However, that agent ceased to act on 21 October 2013.  The applicant appointed another migration agent on 16 October 2014.  That was after the Tribunal sent the letter on 23 September 2014 and before the scheduled hearing on 27 October 2014. 

14. The Tribunal noted that it had not received any response to the invitation and noted that the applicant did not appear at the hearing and nor did his agent.  The Tribunal noted that neither the applicant nor the agent contacted the Tribunal.  The Tribunal noted that it kept the hearing open for several hours after the scheduled time.  The Tribunal noted that the invitation had not been returned unclaimed.  The  Tribunal said it was satisfied the letter of 23 September 2014 was sent to the correct address.  That finding does not seem to me to be objectionable. The difference between the two versions of the applicant’s address was trifling.  It is very unlikely to have caused a failure to deliver the letter.

15. The Tribunal noted that, before it made its decision on 16 February 2015, the applicant’s agent contacted the Tribunal twice by telephone on 25 November 2014 and 4 December 2014.  The agent merely asked whether a decision had been made.  He did not seek time to lodge documents, file submissions, ask when the matter was listed for hearing or seek a further hearing date.  The agent did not provide any material and did not seek further time to do so.  These  circumstances also indicate that the applicant had received the Tribunal’s letter dated 23 September 2014 and he and his agent were aware of the hearing date.

16. The Tribunal decided on about 16 December 2015 to proceed to make a decision without giving the applicant any further opportunity to appear before it.  The Tribunal noted that the regulation requiring substantial compliance with the conditions to which the visa last held was subject, under which the delegate had made her decision, had been repealed.  The Tribunal considered that the issue before it was whether the applicant had evidence of current enrolment or a current offer of enrolment.  The Tribunal noted that the applicant had provided no such evidence. 

17. The Tribunal noted that most student visa categories required evidence of enrolment in or a current offer of enrolment in a specified course of study.  The Tribunal noted that this requirement did not apply to higher degree students, eligible university exchange students or eligible non-award students.  The Tribunal noted that there was no evidence that the applicant fitted into any of those categories, and no evidence that the applicant was then enrolled in or had a current offer of enrolment in an applicable course of study.  Consequently, the Tribunal considered that the delegate’s decision had to be affirmed.

18. The application to this court was apparently prepared without the benefit of legal assistance.  The applicant appeared today without legal representation.  He did not file any written submissions.  The grounds of the application largely recount the history of the matter and say that the applicant believes the Tribunal made an error of law.  However, no particulars are given of that alleged error of law.

19. The Tribunal does appear to have properly applied the relevant criteria before it.  There was no evidence at the time of the Tribunal’s decision that the applicant was enrolled in a relevant course.  The conclusion that the applicant did not meet the relevant visa criteria seems to have been unavoidable. 

20. There is a question about whether the Tribunal afforded the applicant procedural fairness.  The Tribunal did not give the applicant a hearing. However, I am satisfied that the Tribunal gave the applicant an opportunity for a hearing.  The applicant was given reasonable notice of the hearing scheduled for 27 October 2014.  The applicant was represented by a migration agent at that time.  The applicant simply failed to attend and did not seek an adjournment or explain his absence.  The decision was not made for three and half months after the scheduled hearing.  In these circumstances, it does not seem to me that there was an arguable denial of procedural fairness in relation to the applicant not having a hearing before the Tribunal.

21. There is potentially an issue of procedural fairness in relation to the fact that the Tribunal decided the case on a completely different basis to the basis upon which the delegate decided the case.  However, the Tribunal decided the case on the basis that the applicant did not meet the basic criteria for the visa.  The letter dated 23 September 2014 asked the applicant to provide a current certificate of enrolment, or an offer of enrolment,

    … as required for the grant of a student visa. 

22. In my view, this was probably sufficient to alert the applicant to the issue on which the decision would turn.  In addition, I note that the applicant had a migration agent for 11 days prior to the scheduled hearing.  In these circumstances, I do not consider that there was an arguable denial of procedural fairness in relation to the issue on which the decision would turn.

23. This case is distinguishable from the decision in AZAFB v Minister for Immigration and Border Protection (2015) 68 AAR 171; [2015] FCA 1383. In that case, the applicant had provided a substantial and serious written submission. There was no written submission at all provided to the Tribunal in this case.

24. The Tribunal does not appear to have failed to take into account any relevant considerations or taken into account any irrelevant considerations.  All in all, it does not seem to me that it is reasonably arguable that there is a viable ground of jurisdictional error in this case.

25. That fact, combined with the inadequacy of the applicant’s explanation for his non-attendance at this court on 23 May 2016, indicates that it would not be appropriate and in the interests of the administration of justice to reinstate the proceeding.  The application for reinstatement will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     8 September 2016