Singh v Minister for Immigration

[2014] FCCA 2629

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2629

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders made pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – whether the Court should exercise its discretion to set aside orders dismissing the application for non-appearance – whether the applicant has provided an adequate explanation for not attending the first court date – whether the applicant has reasonably arguable prospects of success on the substantive application – application to set aside orders granted.

Legislation:  

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

MZADO v Minister for Immigration [2014] FCCA 2322
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: SULTAN SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2446 of 2014

Judgment of: Judge Manousaridis

Hearing date: 6 November 2014

Delivered at: Sydney

Delivered on: 6 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. Orders 1 and 2 of the orders made on 9 October 2014 are set aside.

2. The applicant pay the first respondent’s costs of the first court date, such amount to be set at $500. 

3. The costs of the application in a case filed on 23 October 2014 are reserved. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2446 of 2014

SULTAN SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court today is an application in a case filed by the applicant seeking to set aside orders 1 and 2 that I made on 9 October 2014. By those orders, I dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). In brief, I dismissed the application because the applicant did not appear at the first court date in this matter.

2. The principles that must guide me in determining the application before me are not in doubt and they have been conveniently summarised by Ryan J in MZYEZ v Minister for Immigration and Citizenship[1].  His Honour noted that whether or not to reinstate a case that has been dismissed because of a party’s absence, the Court has a discretion as to whether the proceedings should be reinstated. His Honour noted three factors that should normally be taken into account in determining whether the discretion should be exercised in favour of reinstatement.  Only two of those factors are relevant to the matters I have to consider today.  The first is whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was dismissed and the second is whether the applicant seeking reinstatement has a reasonably arguable prospect of success on the substantive application. I will consider each of those factors as they arise in the application that is before me. 

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

3. The reason the applicant has given for his non-attendance on 9 October 2014 is that he was medically unfit to attend Court.  In support of that explanation, the applicant tendered a medical certificate issued by Dr Faiz Sachawars.  In that medical certificate Dr Sachawars stated:

   This is to certify that I have examined Sultan Singh today, and I confirm that he will be unfit for work/school/usual activities from 08.10.2014 to 09.10.2014 inclusive.

4. This medical certificate suffers from the deficiencies that Judge Burchardt noted in MZADO v Minister for Immigration[2] was exhibited by the medical certificate that was before his Honour. That is, the medical certificate by Dr Sachawars does not show the time of day at which it was given and is highly generalised in nature.

   [2] [2014] FCCA 2322

5. The applicant gave evidence about the nature of the medical condition that caused him to attend Dr Sachawars.  The applicant said that he was suffering from vomiting and diarrhoea.  The applicant was cross-examined.  It was not put to him, and quite properly not put to him, given the absence of any other evidence, that what the applicant said about his medical condition was untrue.  However, in cross-examination, the applicant did say that he was taken to the doctor by a friend of his by car and that it took him 15 minutes to get there and 15 minutes to return. 

6. After the applicant gave evidence, I arranged for my Associate to telephone the surgery from which Dr Sachawars practises.  My Associate was informed that Dr Sachawars was not in the practice because he was away ill.  However, arrangements were made for another general practitioner who practices in the same practice to give evidence, being Dr Laughlin.  Dr Laughlin had access to the medical records maintained by the practice and he accessed the record of the applicant’s attendance on Dr Sachawars on 9 October 2014.

7. Dr Laughlin said that the record indicated that the applicant was seen by Dr Sachawars at 2 pm and the record indicated that the applicant reported vomiting and diarrhoea.  The record indicated that there was no sign of tenderness in the abdominal region and also that the applicant had a clear chest.  Although I was inclined not to accept the evidence of the applicant, I am, having heard his evidence and the evidence given by Dr Laughlin, inclined to accept that evidence. 

8. There are two reasons.  One is that there was no competing evidence against it, which is understandable in the circumstances in which this application was conducted.  And another factor is the fact that the applicant did take the trouble of applying to reinstate his case and appeared in the manner in which he conducted himself before me to be earnest in his desire to challenge the decision of the Migration Review Tribunal.  

9. So in relation to the first factor identified by Ryan J in MZYEZ, I am satisfied that the applicant has given me an adequate explanation for his not attending on the first court date.  However, I must note that the applicant appeared to have had an opportunity to first contact either the Court or the first respondent and failed to do so and that has caused the incurring of unnecessary costs.  However, that is a matter which can to some extent be remedied with an appropriate costs order. 

10. It is now necessary for me to turn to the second factor relevant to my consideration of this application.  And that is whether the applicant has a reasonably arguable prospect of succeeding in his application if it is reinstated. 

11. By the application that he filed, the applicant seeks to set aside the decision of the Migration Review Tribunal, which affirmed the decision of a delegate not to grant the applicant a Skilled (Residence) (Class VB) visa. The only substantive issue that was before the Tribunal was whether the applicant had the required English proficiency.  That proficiency had to be demonstrated by the applicant showing he had acquired a particular score in tests conducted under the International English Language Testing System (IELTS).  To understand the grounds on which the applicant seeks to set aside that decision requires some understanding of what went on before the Tribunal.  I will not in these reasons set out in detail what occurred before the Tribunal in that regard.  But I will restrict myself to a brief summary of it.

12. On 13 March 2014 the Tribunal wrote to the applicant and requested that he provide evidence of his competence in English within seven days.  No such evidence was provided.  There was a hearing on 14 April 2014 on which day the Tribunal granted the applicant until 30 April 2014 to provide evidence of competent English.  Further extensions of time to provide competent English were sought by the applicant, and given by the Tribunal.  Notwithstanding those extensions given by the Tribunal, the applicant, for various reasons he gave to the Tribunal, failed to provide evidence of English competence.

13. On 3 July 2014 an officer of the Tribunal spoke to the applicant’s migration agent and informed him that the applicant had been granted until 5 pm on 28 July 2014 to provide the Tribunal with evidence of competent English.  On 21 July 2014 the Tribunal received a letter from the applicant’s migration agent, indicating that the applicant did not undertake the IELTS test on 12 July 2014 because he was medically unfit, but he had undertaken the IELTS test on 19 July 2014.  In support of that he enclosed a medical certificate with a letter. 

14. On 25 July 2014 the Tribunal received a letter from the applicant indicating that he did not attend the IELTS test on 12 July 2014 due to illness, but he attended such test on 19 July 2014 but felt unwell at that time.  He stated that the next available IELTS test was on 2 August, but he had been advised by his doctor not to sit the test on that day.  He enclosed two medical certificates.  The first was dated 24 July 2014 and indicated that the applicant was:

    Unfit for work/school/usual activities from 24 July 2014 to 31 July 2014 inclusive. 

15. The second was dated 25 July 2014 and indicated the applicant attended a medical appointment on 25 July 2014. 

16. On 28 July 2014 an officer of the Tribunal contacted the applicant’s migration agent and informed him that the Tribunal was not prepared to extend the time any further and that the applicant had until 5 pm on 28 July 2014 to provide evidence of competent English.  The Tribunal did not receive any such evidence and then proceeded to determine the application for review and affirmed the delegate’s decision. 

17. The application for review that was filed states two grounds of application.  The first is:

    MRT did not take into consideration of my medical condision [sic].

18. The second is:

    Other applicants in similar circumstances were granted the extension.

19. I can say immediately that ground 2 raises no arguable claim for relief.  Even if similar circumstances that were dealt with differently by the Tribunal were relevant, this ground gives no particulars at all.  The first ground, however, is different.  In my opinion, without saying too much about it, there is a basis for arguing, at least on a superficial reading of the Tribunal’s reasons that it is arguable the Tribunal did not consider the medical condition as revealed by the medical certificates provided to the Tribunal by the applicant.

20. To say, of course, that it is reasonably arguable from a superficial reading of the Tribunal’s reasons that the Tribunal did not consider the applicant’s medical condition is far from saying that the Tribunal did not, in fact, take into account the applicant’s medical condition.  And to say that the Tribunal did not consider the medical certificates in this particular case is not necessarily to say that the Tribunal made any jurisdictional error.  In my opinion, however, these are matters that need to be fully explored in a proper hearing. 

21. For that reason I am of the opinion that the first ground is one that is reasonably arguable and, being reasonably arguable, affords the applicant reasonable prospects of success.  Before I leave this particular topic of my reasons, I should note that the Minister submitted that the Tribunal’s decision to proceed was not marked by legal unreasonableness.  That may or may not be so, but the ground stated in the application is a more specific ground than unreasonableness.  I do note, however, that it is well within the Minister’s duty to the Court to explore and make submissions on whether the Tribunal’s decision was unreasonable.

22. The end result is, I propose to make an order setting aside order 1 of the orders I made on 9 October 2014.  I also propose to set aside order 2.  However, I do propose to make an order that the applicant pay the costs thrown away by reason of this reinstatement.  Those costs should be no more than the costs incurred by the Minister in attending the first court date.  And I propose to fix that amount in the sum of $500, subject to any submission either the Minister or the applicant wishes to make against such order.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  13 November 2014