Singh v Minister for Immigration
[2015] FCCA 2232
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2232 |
| Catchwords: MIGRATION – Application pursuant to r.16.05 of the Federal Circuit Court Rules – applicant seeking to reinstate originating application dismissed for non-attendance – whether applicant provided adequate explanation for non-attendance – whether originating application has merit – applicant’s explanation not satisfactory and substantive claim not having merit – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.16.05(2) |
| SZRJY v Minister for Immigration and Citizenship (No.2) [2012] FMCA 756 MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 |
| Applicant: | PARAMDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 414 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 12 June 2015 |
| Date of Last Submission: | 12 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| The Applicant: | In person (assisted by interpreter) |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent be amended to ‘Administrative Appeals Tribunal’.
The applicant’s application in a case filed 11 May 2015, by which he seeks to reinstate, pursuant to r.16.05 of the Federal Circuit Court Rules 2001, his originating application filed 14 March 2014,
is dismissed.
The applicant is to pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 414 of 2014
| PARAMDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application in a case filed 11 May 2015, the applicant seeks to reinstate his original application which was dismissed on 29 April 2015 because the applicant failed to attend Court. Although not stated in terms, unsurprisingly, as the applicant is not legally represented,
in substance the applicant is seeking that his original application be reinstated pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 (“the Rules”).
The written submissions on reinstatement application of the first respondent filed 2 June 2015, correctly in my view, assert at paragraph 3 various matters of which the Court would require satisfaction before granting the applicant the relief he seeks. There must be an adequate explanation for the applicant’s failure to appear and there must be no delay in the application. The Court must consider whether there would be prejudice to the previously-successful respondents. Finally, and
I accept as the first respondent submits, most importantly, there must be an arguable case on the merits of the substantive application.
To put the matter in context, it is appropriate to review the documents filed in the proceeding. On 14 March 2014, the applicant’s original application was filed. He sought review of a decision of the second respondent and the grounds of application are:
“1. I have lodged my student visa application sub class 570 on 23rd Nov 2012. I put my relationship status as Divorced. The case officer told that I did not comply with 8516 visa condition. I don’t have any idea of separation from my former wife. I came to know only when I apply my student visa.
2. I have provided the divorce certificate with my application. You can contact my former wife to made sure I was not aware
of this – we were living together since sep 2012.3. I request the court to consider my reasons and grant me the visa to study and finish my course.”
The applicant’s affidavit filed 14 March 2014 takes the matter no further, but does append a decision of the second respondent dated
13 February 2014. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa. The Migration Review Tribunal’s decision is short.
It notes at paragraph 2 that the applicant applied on 23 November 2012 to undertake study in Australia. The Student (Temporary) (Class TU) visa for which the applicant applied contained a number of subclasses at the time of the application, and the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements
of cl.570.235 of Schedule 2 to the Migration Regulations 1994
(“the Regulations”).
The Migration Review Tribunal (“the Tribunal”) noted at paragraph 5:
“On 8 January 2014 the Tribunal wrote to the applicant, via his representative, inviting him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case on 12 February 2014. The applicant was invited
to provide within 7 days of receiving the Tribunal’s letter:
…A copy of your current Certificate of Enrolment (COE)
as required for the grant of a student visa.
Document/s that show you are currently enrolled in
a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa...”
The Tribunal noted at paragraph 6 that the applicant had been asked to advise the Tribunal as soon as possible if he could not attend the hearing and that he was told that, if he did not attend the hearing,
the Tribunal might make a decision without taking any further action
to allow him to appear before it.
The applicant did not submit his response to hearing invitation form within 7 days and did not attend the hearing or submit any documentation in response to the Tribunal’s hearing invitation.
The Tribunal noted that, in all the circumstances, it was appropriate
to continue with the hearing and consideration of the claims and evidence is set out at paragraphs 10-14. The Tribunal noted that the issue before the delegate was whether the applicant met the requirements of cl.570.235. But, as the Tribunal noted at paragraph 10:
“the issue now is whether, at the time of this decision, the applicant meets the enrolment requirement for a student via.”
The Tribunal went on at paragraphs 11-14 to state:
“11. With limited exceptions not relevant to this case, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer
of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time
of application. This requirement does not apply to certain ‘eligible higher degree students’ or ‘eligible university exchange students’. However, there is no evidence before the Tribunal that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively or an eligible university exchange student for the purposes of Subclass 575 as defined in cl.575.111.
12. Although invited to provide evidence of his current COE and/or documents that show he is currently enrolled in, or has
a current offer of enrolment in, a registered course of study, the applicant failed to do so. Therefore, there is no evidence before the Tribunal that the applicant is now enrolled in, or has
a current offer of enrolment in any applicable course of study and, on that basis, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
13. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAid or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported
by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.
14. For these reasons, the decision under review must
be affirmed.”
On 4 June 2014, Registrar Allaway made orders which relevantly gave the applicant until 20 March 2015 to file and serve any amended application with proper particulars of the grounds of the application and, inter alia, written submissions. The matter was fixed for hearing on 24 April 2015 before the Court.
The applicant, unsurprisingly, given his self-representation, did not file any additional documents. The first respondent filed contentions
of fact and law on 2 April 2015. It should be noted that the written submissions correctly point out that the grounds of application relate
to aspects of the decision of the delegate and do not deal at all with the Tribunal’s reasoning. The first respondent submitted that the grounds of application were without merit and asserted at paragraph 17 and 18:
“17. The first ground relates to the delegate’s decision, and does not identify an error with the Tribunal’s decision.
18. The second ground similarly relates to the delegate’s decision, and does not identify an error with the Tribunal’s decision.”
The first respondent’s written submissions went on to seek that the application be dismissed.
On 24 April 2015, the applicant appeared in person at the hearing and the matter was adjourned until 29 April 2015 to enable an interpreter
to be made available. On 29 April 2015, the applicant did not attend Court and the application was dismissed for his non-attendance.
On 11 May 2015, the application in a case to which I have already referred was filed. An affidavit in support filed the same day relevantly states:
“4. I wasn’t able to attend the Federal circuit court hearing which was held on 29th April 2015
5. My medical condition was crucial, on hearing date I was having severe pain in my kidneys, that is the reason I wasn’t able to come for hearing
6. Even I have sent my medical certificate to FCCA authorities by e-mail and also by FAX.
7. I am requesting the Federal circuit court to reopen the file for me as I have hope that I could get the positive decision.
8. Please find my explanation about my visa in the enclosed Written Submissions “Annexure A).”
Annexure A traverses the applicant’s version of his history insofar as
it relates to his ex-wife. In large part, it is irrelevant to the matter presently before the Court. Under the heading “Exceptional Circumstances beyond my Control”, however, the applicant stated:
“I have faxed my Medical Certificate to Federal Circuit court
as my wife (Australian Citizen) who was sick, as she is my partner living together for a while and lodged the 309 visa application offshore, she wanted to come with me to federal circuit court. I could not leave her alone as it was doctor advice to stay with her, that time no person was available to look after my wife. So that was totally exception circumstance beyond my control how I could not come to Court for Hearing That is the reason I am requesting you to accept my request to re-instate the application which was dismissed …”
The first respondent filed further submissions on reinstatement application on 2 June 2015. The gravamen of the history is set out at paragraph 7:
“The Applicant lodged an application for a Student (Subclass 570) visa (the visa) on 23 November 2012 (CB1-29). On 30 January 2013, the delegate refused to grant the Applicant the visa (CB58-65). The delegate found that the Applicant did not meet cl 570.235 of Sch 2 to the Migration Regulations 1994 (Cth)(the Regulations) because he failed to comply with condition 8516 of his previous substantive visa. This condition required the Applicant to ‘continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa’. In respect of the Applicant’s compliance with this condition, the delegate did not accept the Applicant’s claim that he had only recently found out about his divorce from his wife. The delegate also expressed concern as to whether the Applicant had misused his student visa to work and maintain de facto residence in Australia. The delegate found that the Applicant did not meet the requirements of other subclasses of Student (Temporary) (Class TU) visa.”
The written submissions go on to traverse the history of the matter before the Tribunal already paraphrased above and the Tribunal’s decision. It is appropriate to repeat that the Tribunal found that there was no evidence that the applicant was enrolled as required in
a registered course of study.
I accept the submission at paragraph 15 of the first respondent’s submission that the discretion in r.16.05 of the Rules must be exercised judicially, although the overriding principle is whether it is in the interests of justice to set aside orders that have been made by the Court in the absence of a party (SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756). In my view, the explanation provided by the applicant for his non-attendance at Court is, as the first respondent submits, unsatisfactory. It is the case that the applicant forwarded a Carer’s Certificate from the Craigieburn Central Medical Centre dated 28 April 2015, which relevantly asserts:
“Miss Lovepreet Kaur has attended Craigieburn Central Medical Centre and due to their medical condition Husband (Paramdeep Singh) has been required to provide care and is unable to attend Work from 29/04/2015 to 29th April 2015 inclusive.”
This is plainly inadequate. As Davies J said in MZZGY v Minister
for Immigration and Border Protection [2014] FCA 488 at [19]:“These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing.”
Those remarks are equally applicable here despite some slightly different facts.
In the ultimate, however, even if I was to give the applicant the benefit of the doubt as to his wife’s medical condition and the need for him
to be with her on 29 April 2015, and accepting as I do that there is no prejudice to the First Respondent identified, nor has there been any undue delay, the reality is that the applicant’s substantive case lacks merit.
The matters of which the applicant complains, which in any event would be merits review, simply do not address the Tribunal’s decision at all. This puts the matter shortly but in my view sufficiently. When the matter was called before the Court on 12 June 2015, the applicant, who now appeared with the assistance of an interpreter, merely asserted that he would like to study in Australia. The first respondent was content through counsel to rely on the written submissions filed and the applicant repeated thereafter that he wished to study
in Australia.
It is quite clear that the substantive application that the applicant seeks to reinstate will not succeed and it is therefore, in my view, not in the interests of justice to exercise my discretion to reinstate the proceeding. The application made pursuant to r.16.05 must be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 28 August 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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