Singh v Minister for Immigration

[2016] FCCA 1551

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1551

Catchwords:
MIGRATION – application for judicial review – whether Tribunal’s refusal to further adjourn hearing reasonable – sufficiency of medical certificate provided by Applicant as basis for adjournment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), Condition 8516 of sch.8, cl.572.235 of sch.2, cl.572.223(1)(a) of sch.2

Cases cited:
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17

Applicant: MAJOR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2535 of 2014

Judgment of: Judge Jones

Hearing date: 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Melbourne

Delivered on: 24 June 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Ms Matheson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed on 12 December 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2535 of 2014

MAJOR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the then Migration Review Tribunal (“the Tribunal”) dated 14 November 2014 affirming a decision of a delegate of the First Respondent (“the delegate”) to refuse the Applicant a Student (Temporary) (Class TU) Visa (“the visa”).

Background

1. The Applicant is a citizen of India. On 2 December 2013, the Applicant applied for a Student Subclass 572 Visa (CB 11 to 29).  On 4 December 2013, the Applicant was invited by the Department of Immigration and Border Protection (“the Department”) to provide evidence in support of his visa application (CB 34 to 45).  On 3 January 2014, the Applicant provided the Tribunal with a copy of his passport, a short statement of purpose, evidence of overseas student health cover, his International English Language Testing System (“IELTS”) results, evidence of funds in his parent’s name from the Punjab National Bank and a divorce Order made 18 June 2013 from the Federal Circuit Court of Australia, which indicated that the Applicant’s marriage was dissolved on 19 July 2013 (CB 46 to 56).

2. On 14 March 2014, a delegate of the Minister refused to grant the visa (CB 62 to 72). The delegate found that the Applicant had remained as a dependent visa holder after the breakdown of his relationship, and had therefore failed to comply with Condition 8516 of sch.8 to the Migration Regulations 1994 (“the Regulations”) (that he continue to meet the requirements for the grant of the dependent visa), which attached to that visa. The Applicant therefore did not meet cl.572.235 of sch.2 to the Regulations (CB 73 to 76).

3. On 28 March 2014, the Applicant applied for review of the Minister’s delegate’s decision (CB 77 to 78). In the application for review, the Applicant nominated his authorised migration agent (CB 78).

4. On 7 October 2014, the Applicant was invited to appear at a scheduled hearing before the Tribunal on 10 November 2014 (CB 86 to 88). In that invitation, the Applicant was advised to provide certain documents as quickly as possible, these being a copy of his current Certificate of Enrolment, documents that show he is currently enrolled in a course or has an offer of enrolment, documents showing his past studies in Australia, an explanation of any gaps in his enrolments and any relevant documentary evidence, and was informed that (CB 87):

   “The Tribunal will assess whether you intend genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations (relevant visa subclass should be merged – for subclass 576 the relevant criteria is CL.576.221(1)(a)). Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.”

5. The Applicant was requested to provide this information at least seven days before the hearing. The Applicant made a number of requests for adjournments to the Tribunal. I will refer to this in some detail later in my decision.

6. The application for judicial review filed by the Applicant on 15 December 2014, sets out the grounds as:

   “1.    I’m not satisfied with MRT decision on my application;

   2.  Therefore, I want to appeal against the decision in Federal Court;

   3.  MRT failed to consider my medical condition.

7. As the Applicant was self-represented (he was assisted by an interpreter in the Punjabi and English languages), I informed the Applicant about the nature of a judicial review proceeding. I emphasised to him that this is not a question of looking at the merits of his case, but whether the decision of the Tribunal was affected by jurisdictional error or serious legal mistake. I asked the Applicant what he meant by his particular ground that the Tribunal failed to consider his medical condition, and he explained that his issue with the Tribunal was that it refused to grant him a second adjournment, because it failed to consider his medical condition.

8. Turning to the chronology in relation to the applications by the Applicant for an adjournment by the Tribunal. On 7 November 2014, the Applicant sent a facsimile to the Tribunal requesting an adjournment because of “health reasons” (CB 101).  Accompanying that facsimile was a medical certificate from a Dr Chaudhary Panwar, who certified the Applicant as “unable to attend work or school from 5 November 2014 to 11 November 2014”. The medical certificate did not specify the particular medical condition the Applicant was suffering from. It simply stated that in the General Practitioner’s opinion, the patient was “unfit for duties”.  There was also attached a document from, it appears, Capital Radiology (CB 103), however, the document is completely illegible and was illegible when sent to the Tribunal.

9. The Tribunal responded to the request for an adjournment by informing the Applicant that the Presiding Member had considered the request for the postponement, but had declined to grant it. At CB 104, there is a case note which states:

   “… I tried calling the PRA via his mobile phone to want to advise him that the presiding member has considered the request for postponement but has declined to grant it.  The applicant has not provided a doctor certificate saying that he is in the doctor’s opinion too unwell to attend a tribunal hearing as distinct from his duties; however, the PRA was not available and I left the message for him to call me back as an urgent matter; and meantime I would send an email to the PRA to advising the above information.”

10. The email was sent to the Applicant’s then authorised representative at the email address listed on the Applicant’s application for review (CB 78), advising the Applicant that his request had been declined and stating in part:

    “… The applicant has not provided a doctor certificate saying that he is in the doctor’s opinion too unwell to attend a tribunal hearing as distinct from his duties.”

11. There then follows a series of case notes (CB 106 to 109), in which the Applicant is contacted. In particular, at CB 107, the case note states as follows:

    “On 7/11/14, the PRA called back the Tribunal and I informed him that the presiding member has considered the request for postponement but has declined to grant it.  The applicant has not provided a doctor certificate saying that he is in the doctor’s opinion too unwell to attend a tribunal hearing as distinct from his duties; and the hearing for 10/11/14 would be processed as scheduled;  I also told him that I emailed the above information to his Rep. and he should discuss with the Rep. about this matter.”

12. On 7 November 2014, the Applicant called the Tribunal and advised that he would not be coming to the hearing scheduled on Monday, as he had back problems. He was again advised that the Tribunal hearing would proceed as scheduled.  On 7 November 2014, there is a case note as follows (CB 109):

    “AR called to advise the RA is too unwell to attend the hearing as per medical certificate and will not be attending Mondays hearing as scheduled. …”

13. The Applicant did not attend the hearing (CB 110-111).  However, the Tribunal decided to grant a rescheduled hearing (CB 114-117). Correspondence dated 10 November 2014 was sent to the Applicant’s representative and included in the facsimile transmission was correspondence addressed to Mr Singh, dated 10 November 2014, advising him that the rescheduled hearing was on 14 November 2014, and stating, in bold, the following (CB 116):

    “This hearing has been rescheduled despite you not providing an appropriate medical certificate.  Should you request a further postponement on medical grounds you will be expected to provide a medical certificate setting out a Dr’s opinion that you are too unwell to participate in the hearing of approximately one hour.  Please note you have not provided any of the documents you were invited to provide in the tribunal’s hearing invitation letter of 7 October 2014.  Any documents or written submissions you intend to rely on should be lodged immediately.”

14. The next step in this chronology is a request by the Applicant on 14 November 2014, that is, the day of the re-scheduled hearing, for a further adjournment. Attached to the request was a medical certificate dated 13 November 2014, by the same medical practitioner, in similar terms to the earlier certificate, which stated that the patient, Mr Singh, was unfit for duties, and would be “unable to attend work or school from 12 November 2014 to 19 November 2014” (CB 120). At CB 121, there is a case note of contact made with the Tribunal by a friend of the Applicant at 11.33am, as follows:

    “Received a call from the RA’s friend asking about a missed call on his phone.  I told the RA’s friend I cannot divulge any information.  The friend repeated twice his friend has taken medication and is unable to return the call.  I again repeated that I cannot divulge any information.”

15. There was a further case note when the Applicant’s friend returned the Tribunal’s call at 11.38am (CB 122):

    “… Advising the RA has taken pills, is unwell and asleep and cannot come to the phone.  I asked if he would be able to pass the message onto the RA, ... stated he would.  I advised, the Member has considered his postponement request, but has declined to grant a further postponement of this hearing.  Accordingly, the hearing will proceed today as scheduled.

    I have also left a detailed message on the AR’s phone, advising same as there too was no answer.”

16. The Tribunal proceeded to hear the application on 14 November 2014, and made its decision on that date. Before turning to the Tribunal’s decision, it is to be noted that the Tribunal identified the issue for determination as whether the Applicant satisfied cl.572.223(1)(a) of sch.2 to the Regulations, that is, whether the Applicant is a genuine Applicant for entry and stay as a student. Clause 572.223(1)(a) of sch.2 to the Regulations provides:

    “(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)     the applicant’s circumstances; and

    (ii)    the applicant’s immigration history; and

    (iii)   if the applicant is a minor -- the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)   any other relevant matter;

    …”

17. The Tribunal also noted in its decision that under s.499 of the Migration Act 1958 (“the Act”), the Tribunal was required to comply with written Directions, the relevant one in this case being Direction No. 53, and set out the factors to be taken into account in assessing whether an Applicant for a student visa was a genuine temporary Applicant for entering and stay as a student.

18. Ultimately, the Tribunal had regard to particular factors in Direction No.53 (CB130, [24]), and it had regard to the courses of study the Applicant had been enrolled in and to the Applicant’s statement of purpose submitted to the Department at the time of his visa application (CB 130-131, [27] to [28]). It had regard to other relevant matters, such as the Applicant’s dependent visa status, the formal dissolution of his marriage (CB 131, [29]) and the length of the proposed courses of study (CB 131, [30]). The Tribunal noted that the Applicant had not provided any evidence of any course completed in Australia (CB131, [31]).

19. It then set out the evidence it would have sought from the Applicant had he attended the hearing, but was unable to because of the Applicant’s non-attendance (CB 132 at [35]). The Tribunal ultimately concluded that based on the limited information before it, it could not be satisfied that the Applicant genuinely intended to stay in Australia temporarily and that the Applicant, therefore, did not meet cl.572.223(1)(a) of sch.2 to the Regulations. It further concluded that the Applicant was not eligible for any other subclass of visa in class TU (CB 132, [37] to [38]).

20. The Applicant’s first two specified grounds of review merely express dissatisfaction with the Tribunal decision and the fact he wanted to appeal the decision. The Applicant’s third specified ground of review is that the Tribunal failed to consider his medical condition. Counsel for the Minister, reflecting the arguments in the Minister’s written submissions, which were filed on behalf of the Minister on 31 March 2016, submitted that the Tribunal’s exercise of power in refusing to adjourn the hearing the second time was legally reasonable, considering the Applicant’s lack of real engagement with the visa application and the Tribunal review process. This is set out at [40] of the Minister’s written submission.

21. Counsel for the Minister referred specifically to, first, the fact that the Applicant failed to respond to the Department’s email of 3 February 2014, requesting more information from the Applicant (CB 57-61);  second, his failure to respond to the Tribunal’s further hearing invitation dated 10 November 2014 (CB 116-117);  third, his failure to submit a suitable medical certificate (CB102-103 and 120);  and, fourth, the fact that the Applicant was represented by an authorised representative in the review, but failed to put in any evidence in support of the Applicant’s application (CB 99).

22. The Applicant, having heard the Minister’s submission, then raised a further ground that he said supported his application for judicial review. He said that he was misguided by his migration agent, in that the agent did not tell him that he was required to provide any documents to the Tribunal. The Applicant stated that he had completed his studies and that he wanted to have the matter re-heard by the Tribunal, because he had now all the evidence that was necessary to be provided.

23. The first thing I have to say about the Applicant’s reliance, in response, on the failure of the migration agent to advise him that he was required to provide any documents, is that it is well-settled that the negligence of an agent does not give rise to jurisdictional error: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [33]. I asked the Applicant why he had not raised this in his initial application for review. He said that he was advised by another migration agent when he was filling in the application form, which he signed on his own behalf, to put down that particular ground of application, namely that the Tribunal failed to consider his medical condition, and nothing else.

24. I am not satisfied with that explanation. In any event, the real issue before the Court is the decision of the Tribunal to proceed to a hearing and not to grant the second adjournment. The question is whether that was a reasonable exercise of the Tribunal’s discretion to refuse to adjourn the hearing.

25. There is a decision of the Federal Court which is particularly relevant in this matter; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. In that decision, Lindgren J was considering requests for adjournment by two Appellants, who had produced two medical certificates before the Court. The medical certificates, his Honour found, at [6], were:

    “… quite unsatisfactory.  They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing.”

26. I should note that in the medical certificates provided to his Honour, the General Practitioner stated that one Appellant was suffering from dermatitis atopic and the other Appellant from an anxiety disorder, depression.  His Honour found at [7] as follows:

    “I do not accept that either of the medical conditions referred to would make the sufferer unable to attend court - apparently each was able to attend upon the medical practitioner.”

27. His Honour continued at [8]:

    “If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.”

28. His Honour also noted that the medical certificates were structured identically, using the expressions ‘he’ and ‘she’, and dated the same day. His Honour found them to be unpersuasive and refused the application for an adjournment.

29. The Tribunal in this matter was confronted with medical certificates that were, to use the words of his Honour Lindgren J, quite unsatisfactory.  Both certificates (CB 102 and 120), dated 5 November 2014 and 13 November 2014 respectively, do not specify the particular medical condition which the Applicant was alleged to have suffered from.

30. I note here that the Applicant claimed that he had a back condition. Both medical certificates stated that the patient was “unfit for duties”, and that the Applicant would be “unable to attend work or school” for a specified period. Both medical certificates were clearly deficient. They did not specify the medical condition, nor why the Applicant would be unable to participate effectively in a Court hearing. 

31. As I have already observed, there was also a document filed from an organisation called Capital Radiology (CB 103). However, the document is completely illegible and of no assistance. I should note that for the purposes of the second adjournment, the Applicant was on notice by way of telephone communications by the Tribunal Case Officer and the invitation to the adjourned hearing, that if he required any further postponement on medical grounds, he was expected to provide a medical certificate setting out the doctor’s opinion that he was too unwell to participate in the hearing of approximately one hour. He did not do this.

32. In those circumstances, and in circumstances where the Applicant had not provided any documentation to the Tribunal regarding his studies, despite being requested to do so in the original invitation to appear before the Tribunal (CB 86-87), the Tribunal, in my opinion, exercised its discretion to refuse to grant the adjournment and to proceed with its decision, reasonably.

33. I note that the invitation to the Applicant on 7 October 2014 was sent to the Applicant’s agent by facsimile, as was the second invitation, dated 10 November 2014, for the re-scheduled hearing on 14 November 2014. However, as I have already indicated, the Applicant’s claim that he was misguided by his migration agent, is no basis for a finding of jurisdictional error. The Tribunal, in my view, exercised its discretion to refuse to adjourn the hearing in a reasonable manner. 

1. Consequently, I find that the decision of the Tribunal is not affected by jurisdictional error. 

2. Accordingly, the application for judicial review filed on 12 December 2014 will be dismissed, with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 24 June 2016