Singh v Minister for Immigration

[2014] FCCA 2912

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2912

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal decision – whether Tribunal erred in concluding that, because the applicant was outside Australia at the time he applied for a Temporary Business Entry (Class UC) Visa (Visa) the applicant did not have standing to apply for a review of the delegate’s decision – whether the Tribunal considered all material and evidence relevant to the application for review – whether the Tribunal accorded the applicant procedural fairness – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Migration Act 1958 (Cth), ss.66, 66(2)(d)(iii), 66(4), 338, 338(9), 347(1),

347(2),347(2)(d)

Migration Regulations 1994 (Cth), regs.4.02(4)(l), 4.05(k)

Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308
MZXGL v Minister for Immigration & Anor [2006] FMCA 1724
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: GHANSHYAM SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2686 of 2014

Judgment of: Judge Manousaridis

Hearing date: 5 December 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

Applicant in person.

Solicitors for the Respondents: Ms H Dejean of
Australian Government Solicitor

ORDERS

1. The application in a case filed on 21 November 2014 is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2686 of 2014

GHANSHYAM SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies to set aside orders I made on 30 October 2014 dismissing the application for judicial review. I made those orders pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) because the applicant did not appear at the first court date appointed for this matter.

2. The principles that must guide me in determining the application before me have been summarised by Ryan J in MZYEZ v Minister for Immigration and Citizenship[1]. His Honour noted that a court has a discretion as to whether to reinstate an application that has been dismissed because of an applicant’s non-appearance. His Honour noted three factors that should normally be taken into account when determining whether the discretion should be exercised in favour of reinstatement, only two of which are relevant to the matters I have to consider in these reasons.

   [1] [2010] FCA 530 at [7]

3. The first is whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was dismissed. The second is whether, if the application is reinstated, the applicant has a reasonably arguable prospect of succeeding on the claims contained in his application.

Explanation for non-appearance

1. The applicant submits he did not attend the first court date “because of illness”.[2] He says in an affidavit:

   I am suffering from Fever. on the day of hearing I was feeling dizziness because of the effect of medecine [sic] I took for Fever.

   [2] Affidavit of G Singh, 21.11.14

2. The applicant attached to his affidavit what purports to be a medical certificate dated 29 October 2014 signed by Dr Thakor B Patel which states as follows:

THIS IS TO CERTIFY

I have examined [the applicant]¸who in my opinion is suffering from a medical condition and will be unfit for work from 29/10/2014 to 30/10/2014 inclusive.

1. The certificate does not identify the medical condition the author of the certificate is of the opinion the applicant suffered from, or the grounds on which the author relied for being of the opinion the medical condition the applicant is said to have been suffering rendered the applicant unfit for work.

2. There is another aspect of the certificate that bears noting. The doctor who signed the certificate conducts his practice at Kedron in the State of Queensland. At the hearing the applicant informed me from the bar table that he and a friend travelled to Brisbane by car a few days before 29 October 2014. He said he developed a fever a few days before he saw the doctor and, on the recommendation of a friend who is not medically qualified, took six Nurofen tablets. That led to the applicant being dizzy.

3. I am not satisfied from the material the applicant has submitted to the Court, or from what the applicant said from the bar table, that he suffered from any condition that prevented him from attending the first court date, or from attempting to attend by telephone. For that reason alone, I would be entitled not to exercise my discretion in favour of setting aside the orders I made on 30 October 2014. However, I will not take the applicant’s failure to provide an adequate explanation for his non-appearance into account in determining whether to set aside my orders of 30 October 2014. Whether or not I will set aside those orders will depend on whether the applicant has a reasonably arguable case for the relief he seeks in his application.

Background

1. To be in a position to consider that question, it will be necessary to set out some background.

2. On 11 March 2014 the applicant applied for a Temporary Business Entry (Class UC) Visa (Visa). On 18 June 2014, a delegate of the first respondent (Minister) refused to grant the applicant the Visa. On 11 July 2014 the applicant applied to the second respondent (Tribunal) for a review of the delegate’s decision.

3. By letter dated 23 July 2014, the Tribunal informed the applicant that at the time he applied for the Visa he was outside Australia and that the only person who could apply to the Tribunal for review of the delegate’s decision was the sponsor named in the applicant’s application for the Visa, namely, Friend’s Cleaning Company Pty Ltd. The Tribunal further informed the applicant it was of the view that the application for review the applicant filed was not a valid application for review. The Tribunal invited the applicant to make comments on whether a valid application has been made.[3] The letter was sent to the applicant’s authorised recipient. The applicant provided no comments.[4]

   [3] CB85

   [4] CB89, [4]

4. On 27 August 2014, the Tribunal decided that the application for review was not a valid application, and that, therefore, the Tribunal did not have jurisdiction to determine the application. The Tribunal found that the application was covered by reg.4.02(4)(l) of the Migration Regulations 1994 (Cth), and that, for that reason, the only person who was entitled to apply for review of the delegate’s decision was the sponsor identified in the applicant’s application for the Visa.[5]

   [5] CB89, [6]-[7]

Grounds of application

1. The applicant, who is not legally represented, included the following grounds of application:

   1.The MRT made a jurisdictional error when it misapplied the law.

   2.The MRT did not include all the matter and evidence related with the application.

   3.The application was denied procedural fairness when the decesion [sic] was made without giving him chance to submit necessary evidence before the decesion [sic].

   4.Applicant stay in Australia untill [sic] decision made

Ground 1

1. I read ground 1 as a claim that the Tribunal incorrectly concluded it did not have jurisdiction to consider the applicant’s application for review.

2. Whether or not the Tribunal was correct requires me to consider a number of provisions. The starting point is s.338 of the Migration Act 1958 (Cth) (Act) which defines decisions that are “MRT-reviewable decisions”. The significance of a decision being “MRT-reviewable” is that an application can be made to the Tribunal for review of such decisions under s.347(1) of the Act.

3. Section 338 identifies a number of classes of MRT-reviewable decisions. In addition to decisions referred to in s.338, s.338(9) provides that regulations may prescribe a decision to be an MRT-reviewable decision for the purposes of s.338 of the Act. One decision that has been prescribed as an MRT-reviewable decision is that identified in paragraph (l) of reg.4.02(4) of the Regulations. It is a “decision to refuse to grant a Subclass 457 (Temporary Work (Skilled)) visa to a non-citizen” where the non-citizen is outside Australia at the time of the application and the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by among others, “a company that operates in the migration zone”.

4. Subsection 347(2) of the Act identifies persons who may apply to the MRT for review of an MRT-reviewable decision. The persons who may apply differ according to the type of MRT-reviewable decision. Paragraph (d) of s.347(2) provides that if the MRT-reviewable decision is covered by subsection 338(9) of the Act, the person who may apply to the MRT for a review of that decision is “the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection”. Paragraph (k) of reg.4.05 of the Regulations provides that an application for review of a decision mentioned in paragraph (l) of reg.4.02(4) may only be made by “the sponsor or nominator”.

5. There is no issue that at the time the applicant applied to the Minister for the Visa the applicant was a non-citizen, and was not in Australia. Nor is there an issue that the Visa for which the applicant applied was a Subclass 457 (Temporary Work (Skilled)) visa. That meant the delegate’s decision was an MRT-reviewable decision covered by paragraph (l) of reg.4.02(4) of the Regulations. That, in turn, meant that the only person who could apply to the MRT for review of the delegate’s decision was the sponsor the applicant identified in his application for the Visa.

6. It therefore follows that the Tribunal was correct to conclude that the applicant could not apply for review of the delegate’s decision and that, for that reason, the MRT did not have any jurisdiction to determine the application for review. Ground one of the application for review, therefore, is not reasonably arguable.

Ground 2

1. Ground 2 does not identify the “matter and evidence related with the application” the applicant claims was not included in the MRT’s consideration of the application. In any event, it is difficult to see what matter the MRT was required to consider other than evidence that satisfied the Tribunal the applicant was overseas at the time he applied for the Visa (a matter that is not in issue), that the Visa the applicant applied for was a Subclass 457 (Temporary Work (Skilled)) visa (a matter that also is not in issue), and that the application for review was not made by the sponsor of the applicant.

2. Ground 2, therefore, is also not reasonably arguable.

Ground 3

1. Ground 3 is not arguable. An officer of the Tribunal sent a letter dated 23 July 2014 to the applicant informing him that the applicant did not have any standing to apply for review of the delegate’s decision because he was outside Australia at the time the application was made and that, therefore, the application for review was not a valid application. The officer of the Tribunal noted, however, that whether or not the application was valid had to be determined by a Tribunal member. The letter invited the applicant to make comments on whether a valid application had been made.

Ground 4

1. Ground 4 does not state any ground, and, therefore, raises no reasonably arguable case for relief.

Conclusion and disposition

1. Because the application the applicant filed with this Court discloses no reasonably arguable claim for relief, I propose to dismiss the application in a case to set aside the orders I made 30 October 2014. I also propose to order that the applicant pay the Minister’s costs.

2. Before I conclude, I should draw the applicant’s attention to one aspect of the delegate’s decision to which the Tribunal referred. The delegate, in his purported notification to the applicant of his decision, incorrectly stated that the applicant had a right to apply for a review of the delegate’s decision. That error constituted a breach of the obligation prescribed by s.66(2)(d)(iii) of the Act which requires the Minister, when notifying an applicant of a decision refusing to grant a visa who has a right of review, to specify, among other things, who can apply for the review.

3. Subsection 66(4) provides that the failure to give notification of a decision does not affect the validity of the decision. It has been held, however, that the Minister’s providing a purported notification of a decision that does not comply with s.66 denies the document the Minister sent the status of a valid notification for the purposes of s.66 of the Act.[6] A consequence of that is that the running of time that depends on there being a valid notification under s.66 of the Act does not begin to run where there has been a notification that does not comply with s.66 of the Act. For example, in Chan v Minister for Immigration and Multicultural and Indigenous Affairs[7] it was held that the time did not begin to run for the expiration of an applicant’s bridging visa after the applicant was given a notification of a refusal that did not comply with s.66 of the Act. And in MZXGL v Minister for Immigration & Anor,[8] this Court found that the time for making an application to the Tribunal did not begin to run when the applicants in that case received a notice of a decision refusing to grant a visa that did not comply with s.66 of the Act.[9]

   [6] Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308

   [7] (2003) 134 FCR 308

   [8] [2006] FMCA 1724

   [9] I wish to record my gratitude to Ms Dejean, who appeared for the Minister, for bringing these cases to my attention.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 12 December 2014