Singh v Minister for Immigration
[2020] FCCA 1160
•20 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1160 |
| Catchwords: MIGRATION – Extension of Time Application – lengthy delay – insufficient explanation – lack of merit – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.116, 362B, 477 Migration Regulations 1994 (Cth), cls.573.223, 573.231 of sch.2, Condition 8516 of sch.8 |
| Cases cited: Gill v Minister for Immigration and Border Protection & Anor [2018] HCATrans 199 |
| Applicant: | PUSHPINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 956 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 May 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
| Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 956 of 2016
| PUSHPINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed in this Court on 9 May 2016 (Judicial Review Application), the Applicant seeks an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (Act) to enable him to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 21 April 2015 (Tribunal’s Decision).
The Tribunal’s Decision affirmed a decision of a delegate of the First Respondent (Delegate), the then Minister for Immigration and Border Protection (Minister), to cancel the Applicant’s Student (Temporary)(Class TU)(Subclass 573)(Higher Education Sector) visa (Visa).
The Court has considered the Judicial Review Application, the Court Book filed in this matter, the Minister’s written submissions dated 7 December 2018 (Minister’s Submissions) and the transcript of the hearing that took place before this Court.
Background
The Minister’s Submissions (at [3]-[12]) accurately summarise the background to this matter. The Court adopts those submissions, with some alterations, as follows.
On 25 October 2012, the Applicant was granted the Visa. Condition 8516 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) attached to the Visa[1]. Condition 8516 relevantly provided[2]:
The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
[1] Court Book (CB) 13.
[2] CB 13.
According to Provider Registration and International Student Management Systems (PRISMS) records, on 24 October 2014 the Applicant was no longer enrolled in a course of study that was a principle course of a type specified for the visa class he held[3]. That is, the PRISIMS records indicated that the Applicant did not continue to satisfy the primary criteria required for the grant of the Visa.
[3] CB 14.
The Minister’s Department sent the Applicant a Notice of Intention to Consider Cancellation of his Visa (NOICC) on 24 October 2014[4]. The Minister’s Department invited the Applicant to provide a response to the matters set out in the NOICC. No response was provided[5].
[4] CB 12-16.
[5] CB 18.
On 22 December 2014, the Delegate cancelled the Visa under s.116(1)(b) of Act[6] (Delegate’s Decision).
[6] CB 26-31.
On 30 December 2014, the Applicant applied to the Tribunal for review of the Delegate’s Decision[7]. The Applicant did not indicate that he was represented by any migration agent or lawyer.
[7] CB 32-33.
By letter dated 2 March 2015, the Applicant was invited to appear at a hearing before the Tribunal on 24 March 2015 at 2.30pm and asked to provide any additional documents or information[8].
[8] CB 44-46.
On 24 March 2015, the Applicant sent a medical certificate by fax to the Tribunal. The medical certificate stated the Applicant was ‘suffering from a medical condition’ and would be unfit for work for four days[9].
[9] CB 47.
At 1.32pm on 24 March 2015, the Tribunal sent the Applicant an email stating as follows[10]:
[10] CB 48.
The Tribunal has received your medical certificate dated 24 March 2015. The Tribunal notes that the medical certificate from your treating doctor does not explain in detail why you cannot attend the scheduled Tribunal hearing to give oral evidence about these matters. Nor does it explain why you cannot give oral evidence by telephone in relation to the central issue under review at your scheduled hearing. Therefore, the Tribunal proposes to conduct the hearing via telephone this afternoon, we ask that you advise us immediately and provide a telephone number to contact you on.
Please note the Tribunal will be ·contact you 15 minutes prior to the commencement of the hearing.
(Without alteration)
It appears that the Tribunal also tried to contact the Applicant on two occasions by telephone prior to 1.33 pm on 24 March 2015, however, the Applicant did not answer those calls[11].
[11] CB 49.
At 2.58pm on 24 March 2015, the Applicant sent an email to the Tribunal stating ‘you can talk to our migration agent’, and provided a number for a person named ‘Marzana’[12]. Shortly after (at 3.01pm), the Tribunal received another email, this time from the Applicant’s girlfriend informing the Tribunal that the Applicant ‘is not well... he had a vomiting [sic] ... cant able to talk’[13].
[12] CB 50.
[13] CB 51.
The Tribunal called the Applicant and advised him that the hearing would not be adjourned and that it would conduct the hearing by telephone. The Applicant himself took this phone call. He indicated that he wanted his “lawyer” to be present. The Tribunal confirmed that he should be “on standby” as the hearing would proceed by telephone[14].
[14] CB 52.
The Applicant did not appear (either by telephone or in person) at the hearing[15]. The Tribunal attempted to contact the Applicant on five occasions without success[16].
[15] CB 53-56.
[16] CB 69 at [4].
On 25 March 2015, the Tribunal invited the Applicant to respond to adverse information (with requisite particulars) which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal also invited the Applicant to provide information relevant to the considerations as to why the Visa should not be cancelled. The Applicant was asked to provide his response to these invitations by 8 April 2015[17].
[17] CB 60-62.
No response from the Applicant was received by the Tribunal.
On 21 April 2015, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Visa.
Tribunal’s Decision
The Tribunal’s Decision appears at pages 68-72 of the Court Book. The Tribunal’s Decision can be summarised as follows.
After setting out a brief introduction and identifying that the issue before the Tribunal was whether the ground of cancellation was made out and, if so, whether the Visa should be cancelled[18], the Tribunal detailed what had occurred on the date that the Applicant was to appear at the Tribunal for the hearing. The Tribunal stated[19]:
[18] CB 69 at [1]-[2].
[19] CB 69.
3.On 2 March 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 24 March 2015. The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. On 24 March 2015 before the hearing, the applicant sent the Tribunal a medical certificate. Taking this to be a request for an adjournment the Tribunal attempted to telephone the applicant without success. The Tribunal then sent an email to the applicant on 24 March noting to him that the medical certificate did not explain in detail why he could not attend the scheduled hearing to give oral evidence, nor did it explain why he could not give oral evidence by telephone, and proposed that the Tribunal conduct the hearing that afternoon by telephone. The Tribunal was then able to contact and speak to the applicant by telephone, and conveyed this information to him. The applicant stated that he would like his lawyer present, and was advised to contact the lawyer immediately. an email was then sent from the applicant’s email stating that the Tribunal could talk to their migration agent and providing a mobile number. As there was no appointment of agent form on the file, the Tribunal decided not to contact the purported agent.
4. At the time appointed for the hearing on 24 March 2015 the Tribunal attempted to contact the applicant by telephone on 5 occasions. Each time the call went to voicemail.
5. After the time scheduled for the hearing to start, another email was received from the applicant’s email address, which stated:
Im pushpinder singh’s ([omitted]) girl friend .... as he is not well ... he had a vomiting ... cant able to talk ... thnxxx
apama sharma ([omitted])
on the behalf of pushpinder
(Without alteration)
The Tribunal noted that it had sent an invitation to the Applicant to respond to information and to provide information, however, no information had been provided. The Tribunal considered that the Applicant had chosen not to engage in the process and had sought to delay procedures. Pursuant to s.362B of the Act, the Tribunal decided that it would proceed to make its decision on the review without taking any further action to enable the Applicant to appear before it[20].
[20] CB 69-70 at [6].
The Tribunal noted that on the evidence before it, the Applicant was no longer enrolled in a course and, therefore, the Applicant did not meet cls.573.231 or 573.223(1A) of the Regulations. As the Applicant had not responded to the NOICC or the Tribunal’s request for his comment on this issue, the Tribunal was satisfied that the Applicant was not enrolled in a registered course. The Applicant was therefore in breach of Condition 8516 and a ground of cancellation was established[21].
[21] CB 70 at [10]-[11].
Noting that the ground of cancellation did not result in “automatic cancellation”, the Tribunal identified that it had a discretion to cancel the Visa. In considering whether the Visa should be cancelled, the Tribunal referred to the matters relevant to the exercise of the discretion being set out in the Minister’s Department’s Procedures and Advice Manual[22]. The Tribunal made reference to the fact that the Applicant had been given a number of opportunities to provide reasons and evidence about why his Visa should not be cancelled, however, he had not provided a response at any time[23].
[22] CB 70 at [12]-[13].
[23] CB 70-71 at [14].
The Tribunal outlined the case as follows:
a)In relation to the purpose of the Applicant’s travel to Australia, besides the Applicant’s Visa application which indicated that his purpose was to study, there was no other evidence[24].
b)In relation to the reason for and extent of the breach, the Tribunal noted that the Applicant had not provided any information in this regard and that the breach occurred at least from 24 October 2014 until the date of cancellation[25].
c)In relation to the degree of hardship the cancellation would cause, the Tribunal again referred to there being no response from the Applicant to indicate any hardship that would be caused by cancellation of the Visa[26].
d)In relation to the circumstances in which the ground of cancellation arose and the past and present conduct by the Applicant toward the Minister’s Department, the absence of any information was again noted by the Tribunal[27].
e)The Applicant did not hold a subclass 457 visa, therefore compelling and compassionate factors were not applicable[28]. Whether there would be any consequential cancellations was also not applicable[29]. Further, as the Applicant did not respond to the NOICC or the Tribunal’s invitation for information, there were no other relevant matters raised by the Applicant to consider[30].
f)In relation to whether any international obligation would be breached if the Visa was cancelled, the Tribunal stated there was no information before it in relation to this factor[31].
g)In relation to the impact on any victims of family violence, there was no information to suggest that this was a relevant factor[32].
[24] CB 71 at [15].
[25] CB 71 at [16].
[26] CB 71 at [17].
[27] CB 71 at [18]-[19].
[28] CB 71 at [20].
[29] CB 71 at [21].
[30] CB 72 at [24].
[31] CB 71 at [22].
[32] CB 72 at [23].
The Tribunal stated[33]:
I have weighed the factors above with the fact that the applicant has breached a condition of his visa. The applicant has not provided any information, argument or reason why his visa should not be cancelled. In this situation I give the breach of condition weight and have no other information to indicate that the discretion should be exercised to not cancel the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
(Without alteration)
[33] CB 72 at [25].
The Tribunal affirmed the Delegate’s Decision to refuse the Visa.
Judicial Review Application
As indicated, the Applicant requires an extension of time in order to commence these proceedings. In his Judicial Review Application, the Applicant indicated that he needed an extension of time and set out the “grounds” of why he considered it to be in the interests of the administration of justice for an extension to be granted. Those grounds are as follows:
1. Due to financial hardship I could not lodge judicial review application.
2. But now I am able to afford the judicial review.
3. Hence, I request a chance to please accept my review application so that I can prove my genuine intention to study.
(Without alteration)
The Applicant has, therefore, satisfied the requirements of s.477(2)(a) of the Act. The Court must now consider s.477(2)(b) of the Act. Namely, whether it is in the interests of the administration of justice for an extension of time to be granted. The factors the Court considers when determining whether to extend time are not exhaustive. However, the matters the Court will most often consider are[34]:
a)Whether the Applicant has provided an acceptable explanation for the delay.
b)Whether the Minister would suffer prejudice.
c)The merits of the judicial review application.
[34] SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281, at [15].
The Applicant appeared before the Court without legal assistance and no request for an interpreter was made. At the hearing, the Applicant advanced only one submission: that the Tribunal did not properly consider his medical certificate. This will be returned to when examining the merits of the Applicant’s application.
Consideration
Explanation
The delay in commencing the Judicial Review Application is 349 days. This is just under one year. The extent of the delay weighs against an extension unless an acceptable explanation can be provided.
The explanation for the delay appears to be that the Applicant lacked the funds to commence his Judicial Review Application. There is no evidence to support this assertion. No financial evidence or, at the very least, evidence on affidavit has been provided by the Applicant.
Even if the Court was to accept that the Applicant lacked the financial means to commence his Judicial Review Application, it remained open to the Applicant to seek a fee waiver. While he may not have been aware of such, and without evidence of his funds, it is unclear if he was in fact eligible for a waiver. However, there is nothing to indicate that the Applicant sought to inform himself of any options or assistance he may obtain in order to challenge the Tribunal’s Decision.
The Court is not satisfied that the Applicant’s explanation for the delay is acceptable, let alone sufficient to mitigate the extent of the delay. This weighs against an extension.
Prejudice
The Minister does not claim any prejudice. The Court is prepared to find that this weighs in favour of an extension being granted.
Merits
The merits of the Judicial Review Application carry the most weight in determining whether an extension should be granted. When considering the merits of the Judicial Review Application, the Court has done so at a reasonably impressionistic level[35].
[35] MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63].
The grounds of the Judicial Review Application are as follows:
1. Unfortunately last time medical certificate was not detailed enough to explain why I could not attend the hearing.
2. I was physically unwell and unfit to chase it up with my agent.
3. I have genuine reasons to explain my medical state stating why I could not attend the hearing.
4. My visa was cancelled in my absence during the MRT hearing.
(Without alteration)
The Court also takes into account the Applicant’s submission at the hearing that the medical certificate was not properly considered and the third ground of the extension of time application that he wants to prove his intention to genuinely study.
The Applicant’s main complaint appears to be with the Tribunal’s decision to proceed to make a decision without him appearing before the Tribunal. In particular, the Tribunal’s decision not to adjourn the review in light of the Applicant’s medical certificate.
The Tribunal’s decision not to grant an adjournment is subject to the principles of legal reasonableness[36]. The question is not whether the Court would have done differently to the Tribunal in the circumstances, but whether no reasonable person could have decided as the Tribunal did in the particular circumstances of this case.
[36] Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2003) 139 ALD 181.
The Court does not consider it reasonably arguable that the Tribunal’s decision not to adjourn the hearing was unreasonable as:
a)The medical certificate was generic. It stated that the Applicant had a “medical condition”. It did not state what the Applicant’s symptoms were and how any symptoms prevented the Applicant from attending or participating in the hearing. Medical certificates of a similar nature have often been considered as an inadequate basis to grant an adjournment even in the case of self-represented litigants[37]. To the extent the Applicant argues that the Tribunal did not “properly consider” the medical certificate, this cannot be sustained. The Tribunal had regard to the content (noting its deficiency) and, reasonably, concluded it was not sufficient (Ground 1 and the Applicant’s oral submissions);
b)The Tribunal extended the opportunity to the Applicant to attend the hearing by telephone if he did not propose to attend in person. When the Applicant was contacted on the telephone (indicating that he was able to answer contradicting his girlfriend’s email) he proceeded to engage with the Tribunal officer and indicated that he wanted his lawyer to be present (i.e., not that he could not participate by telephone). If the Applicant had “genuine reasons to explain” his medical condition he could have explained that when the Tribunal called him (Ground 3);
c)There was no “lawyer” or migration agent on the record for the Applicant. Therefore the fact that the Applicant wanted his lawyer present was not a basis for an adjournment and the Tribunal was correct to consider such. Further, that the Applicant was “too sick” to chase it up with his agent is unsupported by the evidence and pleads to the merits, not the reasonableness of the Tribunal’s decision (Ground 2); and
d)The Applicant had demonstrated no engagement with the Delegate or the Tribunal in relation to his Visa cancellation. There was nothing to indicate to the Tribunal, given the Applicant’s lack of previous engagement, that he would participate in the hearing if it was adjourned.
[37] NALM v Minister for Immigration [2004] FCAFC 17 at [24]; Gill v Minister for Immigration & Border Protection & Anor [2018] HCATrans 199.
The Court is not satisfied that it is arguable that the decision of the Tribunal not to adjourn was unreasonable. This was a discretionary decision of the Tribunal and was in no way arbitrary or capricious in the Court’s view. It was entirely reasonable in the particular circumstances of the case.
In relation to the Tribunal’s decision to proceed without inviting the Applicant to attend a further hearing, it is accepted that s.362B(1A)(a) (which is what the Tribunal proceeded under in this case) is discretionary and must be exercised reasonably. Here, the Tribunal stated[38]:
The review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. On 25 March 2015 the Tribunal emailed the applicant noting that the Tribunal had decided on the information before the Tribunal it would not be granting an adjournment or inviting him to another hearing. The Tribunal sent the applicant a letter on that day inviting him to comment on or respond to information ad to provide information, in which it was noted that on information currently before the Tribunal he would not be invited to a further hearing before the Tribunal made a decision. The applicant did not respond to this letter by the due date, nor has he responded up until the time of decision. The Tribunal considers that the applicant has chosen not to engage in the process and has sought to delay procedures without proper evidence that he was unable to engage in a telephone hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
(Without alteration)
[38] CB 69-70 at [6].
It is to be noted that the Tribunal did not cancel the Visa because the Applicant did not attend the hearing. Nor did the Tribunal cancel the Applicant’s Visa in his “absence” (as suggested in Ground 4). Rather, the Tribunal proceeded under s.362B(1A)(a) of the Act and the Court considers it entirely reasonable to have done so where:
a)Despite being on notice that the hearing was going to proceed by telephone, he did not answer the Tribunal's call (the Court notes that the Applicant had been contacted on the same number earlier and was advised that the call would be made shortly); and
b)The Applicant had been invited to comment and to provide information and did not provide anything to the Tribunal to demonstrate that a further hearing would have utility. The Applicant had the opportunity to participate in the proceedings and advance his case (including after his failure to attend the hearing) and he simply did not do so.
The Court is satisfied there is no arguable case that the Tribunal denied the Applicant procedural fairness or acted unreasonably in conducting the review in the manner that it did.
As the Judicial Review Application is directed toward the Tribunal’s consideration of the medical certificate and it proceeding in the manner it did, it follows that at a reasonably impressionistic level the Judicial Review Application lacks merit.
As for the Applicant’s statement that he wants a chance to prove his genuine intention to study, that is not a matter relevant to the Court’s task on judicial review. It appeals to the merits of the cancellation decision. Hence, it raises no arguable case.
The Court has otherwise reviewed the Tribunal’s decision to consider if an arguable case could be made. The Court cannot identify any arguable error. The Tribunal had regard to the relevant matters and correctly outlined and applied the legal principles.
The Applicant did not provide any evidence that he was enrolled or the subject of a current offer of enrolment in a course and was on notice of his need to do so. On that basis, it was open for the Tribunal to find that a ground for cancellation existed without taking any further action. In circumstances where the Applicant advanced no reasons why the Visa should not be cancelled despite having numerous opportunities to do so, it was also open for the Tribunal to find that there were no reasons why the Visa should not be cancelled. An absence of evidence is a logical basis for the Tribunal to have based its findings upon.
The Court cannot identify an arguable case of jurisdictional error such that it would weigh in favour of an extension being granted.
Conclusion
In light of the lengthy delay, unsatisfactory explanation and the lack of merit in the Judicial Review Application, the Court is not satisfied that it is in the interests of the administration of justice to extend time under s.477(2) of the Act.
The Minister seeks the sum of $3,737 for costs, which is the scale costs allowed in Item 2, Part 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth). An Order will accordingly be made that the Applicant pay the Minister the sum of $3,737 for costs.
The application for an extension of time is refused.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC
Associate:
Date: 20 May 2020
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