Singh v Minister for Immigration

[2014] FCCA 2672

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2672

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – application for skilled visa – applicant failed to appear before tribunal and before the court on initial review application – application to set aside orders made in default of appearance – matters to be considered – application for re-hearing dismissed.

Legislation:  

Federal Circuit Court Rules 2001, Rule 13.03C ; Rule 16.05

Migration Act 1958 (Cth), ss.360, 362 and 474

MZZGY v Minister for Immigration & Border Protection [2014] FCA 488
Lal v Minister for Immigration & Border Protection (No2) [2014] FCA 892

Applicant: AMARJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 69 of 2014

Judgment of: Judge Brown

Hearing date: 3 October 2014

Date of Last Submission: 3 October 2014

Delivered at: Adelaide

Delivered on: 3 October 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr P d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 23 July 2014 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of five hundred dollars ($500.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 69 of 2014

AMARJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This afternoon, I am dealing with an application in which Amarjit Singh is the applicant.  The first respondent to the application is the Minister for Immigration and Border Protection. 

2. The applicant is a citizen of India.  In May 2012, the applicant applied for a skilled graduate sub-class 485 visa.  On 18 January 2013, a delegate of the Minister requested further information be provided by him, including evidence that the applicant had the prerequisite skills in respect of the skilled occupation, which he had nominated in his visa application.  In this case the occupation nominated was nursery person. 

3. The application followed the applicant having apparently completed a diploma of horticulture at a tertiary institution in Adelaide.  On 8 March 2013, the Minister’s delegate refused the visa application on the basis that the applicant had not provided such a skills assessment, which is an essential prerequisite of the visa in question. 

4. As a consequence of that, on 22 March 2013, the applicant applied for a review of the decision in the Migration Review Tribunal. Pursuant to section 360 of the Migration Act, on 6 January 2014, the applicant was sent a letter inviting him to appear before the tribunal on 5 February 2014.

5. The letter of invitation was sent to an address in suburban Adelaide.  The invitation letter included the following paragraph which is in bold:

   The tribunal notes that, to date, you have not presented evidence that your skills have been assessed by the relevant assessing authority for your nominated skill occupation.  Please provide evidence that your skills have been assessed by the relevant assessing authority for your nominated occupation at or before hearing.  Please note that if you are unable to provide the relevant evidence, the tribunal will require good reason to grant you additional time to obtain it.

6. The hearing before the MRT took place on 11 February 2014.  The applicant did not attend.  The tribunal rang the applicant on a telephone number included in his application, but the call, apparently, rang out. 

7. On that basis the tribunal concluded that proper notice had been given to the applicant and therefore, pursuant to section 362B of the Migration Act, it was appropriate that the tribunal conclude the application and make its decision on the basis of the information then available to it.

8. The tribunal concluded that the applicant had not supplied a skill assessment, from the assessing authority nominated by him and therefore did not satisfy one of the mandatory requirements of the visa. 

9. Accordingly, as the tribunal found the applicant had not submitted any evidence of the skills assessment, for the occupation nominated by him in his visa application, it determined that the decision of the delegate should be affirmed. 

10. As a consequence of that decision, on 28 February 2014, the applicant applied to this court for an order that the decision of the Migration Review Tribunal be quashed.  The grounds of the application are as follows:

    The MRT refused my review application, stating that I don’t satisfy clause 485.214.  The member asked himself questions at the time of decision.  Clause 485.214 states that applicants should have skill assessment in the nominated occupation from relevant assessing authority which is TRA in my case.  Decision claimed that tribunal has not received any proof that skills assessment has been done.  I didn’t receive any call on my mobile phone.  Might be due to network problems or any other issue but I should have been given a fair chance to present in front of tribunal and give my evidence.  Instead tribunal tried to call me and the state’s phone number was not reachable.  I was not given fair chance to present my case in tribunal.  Tribunal failed to give me time so I can come and present my case, hence member made jurisdictional error in the judgment.

11. Accordingly, it seems to be the case that Mr Singh complains that he was denied the opportunity to present his case before the tribunal and necessarily this vitiates the decision of the tribunal.  Essentially he contends that he was denied procedural fairness.

12. The means by which an applicant, in proceedings before the MRT, is to be advised of hearings is set out in section 362 of the Migration Act.

13. These methods include sending an invitation letter to an address nominated by the applicant in question.  In this case, the applicant indicated in his application to the MRT that he resided at Unit 6, 172 Seaview Road Henley Beach South. 

14. It was to that address that the invitation letter was sent.  Accordingly, I am satisfied that the Migration Review Tribunal did properly send the invitation letter required and did indicate in that letter the importance of Mr Singh attending at the hearing in question.  It also indicated to him the relevance of the skills assessment.

15. The decision in question is what is known as a privative clause decision pursuant to the provisions of section 474 of the Migration Act. Privative clause decisions are not amenable to review by the court or to the application of any of the prerogative writs.

16. However, as is well known, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by a tribunal which are affected by jurisdictional error or have been made in bad faith. This can include a denial of procedural fairness.

17. It is the applicant’s position, it would seem, that the decision of the tribunal is vitiated by error on the basis that he was not given a fair and proper opportunity to present his case.  In particular, it is said that it is not the applicant’s fault that the mobile phone call, which was made to him did not connect. 

18. In his submissions to me today, it is his position, I think, that he was travelling in a comparatively remote area of the state and it is not his fault that there were problems with the mobile phone network. 

19. In my view, the tribunal was not obliged to telephone the applicant to seek out his submissions.  Rather, it was incumbent upon the applicant to attend upon the tribunal.  In any event, there was no evidence before the tribunal that the applicant had satisfied the prerequisite conditions applying to the grant of the visa. 

20. In my view, the tribunal was entitled, pursuant to section 362B of the Migration Act, to conclude the matter and it was not open to the tribunal to make any other decision than that which it did in the absence of proof of satisfaction of the mandatory visa condition.

21. The tribunal was not invested with any discretion to waive the requirement regarding provision of satisfactory proof of the applicant’s skills in respect of the occupation nominated by him in his visa application.  In my view, there is no inherent illogicality or unreasonableness arising from the decision made.

22. Given the lack of the required skills assessment, there was no other decision which the tribunal could have rationally made.  In addition, the tribunal, by virtue of the invitation letter sent to the applicant gave him an opportunity to appear before it.

23. The applicant’s review application to this court was fixed for a first directions hearing on 28 March 2014.  On that day, the applicant did not appear and the matter was listed for hearing on 4 July at a quarter past 10.  The applicant was directed to file his submissions in respect of the matter 10 days prior to the hearing. 

24. It is clear the case that the applicant did not file any submissions and it is also, I think, clearly the case that the applicant knew of the hearing date in question because on 3 July, which is the date prior to the date scheduled for the hearing, Mr Singh sent a fax from Lameroo which read as follows:

    My name is Amarjit Singh.  My date of birth is 10 September 1981 and my file number is ADG69/2014.  Due to my health is not okay and I’m sick, I will not be able to attend my hearing.  So I please request you to postpone my hearing.  I will be grateful to you.  I am sending my medical certificate.  Yours sincerely, Amarjit Singh.

25. Attached to that document is a medical certificate, which is under the hand of Dr Gerjit Singh, who is a general medical practitioner in practice at Lameroo.  The medical certificate reads as follows:

    This is to certify that Mr Amarjit Singh will be unfit to attend work from 2 July 2014 to 4 July 2014 inclusive due to a medical condition.

26. The applicant did not make any arrangements to attend court by telephone, nor did he send an agent to appear on his behalf.  On 4 July no details were provided as to what was the precise illness from which the applicant suffered. 

27. In those circumstances I was of the view that I could deal with the application in Mr Singh’s absence pursuant to the provisions of rule 13.03C(1) of the Federal Circuit Court Rules, which authorises the court to dismiss an application if an applicant fails to appear at court to prosecute his or her application.

28. In migration matters, it is becoming routine that applicants, who seek review of the decisions pertaining to them, fail to attend the date specified for their review hearings purportedly on the grounds of medical incapacity. 

29. Very often they submit, as in this case, a generalised medical certificate which does not specify any particular condition but which indicates an incapacity for employment for a period of time which encompasses the hearing in question. 

30. It is very often the submission of those representing the Minister that such certificates are self-serving and are designed just to delay the processes of the court, particularly in cases which have all the appearance of being legally futile.

31. Davies J, in the matter of MZZGY & the Minister for Immigration and Border Protection[1] said this in respect of a medical certificate which was broadly analogous to the one which the applicant has submitted in these proceedings:

    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.  Further, wholly unexplained was why it was left until late the day before to seek the adjournment.  It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of the adjournment by the short notice.  I accordingly refused the adjournment application and proceeded to hear the appeal on its merits. [2]

    [1]  MZZGY v Minister for Immigration & Border Protection [2014] FCA 488

    [2] MZZGY & the Minister for Immigration and Border Protection [2014] FCA 488

32. That, in effect, was what occurred in this matter. The medical certificate provided was generic in nature and no commentary was provided in respect of it and the context in which it had come into being.  In those circumstances, I formed the view that the medical certificate was inadequate and that I could infer that it had been provided at short notice merely to delay the court’s processes. 

33. The current application before the court was filed by Mr Singh on 23 July 2014.  The order he seeks is to squash the decision of the MRT. However, I take it that it is an application pursuant to rule 16.05(2) of the Federal Circuit Court Rules to vary or set aside the orders which were made on 4 July 2014 in default of his appearance. 

34. The applicant has provided a brief affidavit in support of his application in which he deposes:

    I was sick on the day of hearing.  I was unable to attend hearing because of sickness.  I want to appear in court and present my arguments.

35. Mr Singh has still not specified what the nature of his illness was on the earlier occasion.  It is his position that he was sick.  This afternoon I have asked him, in effect, what his arguments are as to why the decision of the Migration Review Tribunal is vitiated by legal error. 

36. I appreciate that the issue of jurisdictional error is a complicated one and difficult to explain to a layperson.  However, apart from the fact that Mr Singh has agreed that he did not attend the hearing before the Migration Review Tribunal, to which he was invited and the telephone call which was made to him fell through, he has not specified any other arguments.

37. Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules the court may vary or set aside its judgment or order, after it has been entered, if the order is made in the absence of a party.  It is clearly the case that the orders of 4 July 2014 were made in Mr Singh’s absence.  The rule provides the court with a discretion to set aside its orders in a number of specified circumstances, including where orders are made in the absence of a party.

38. The rule provides a discretion which is expressed as being unfettered.  However, in my view, given the moment of the decision in question to the applicant, it is clearly a discretion which must be exercised judicially. 

39. The rule is an instrument to avoid injustice being inflicted on one or other of the parties concerned to the judgment in question.  However, a re-hearing is not analogous to an appeal to which a party to concluded litigation has as a matter of right.

40. Mr Singh is not entitled, as of right, to have the orders in question set aside the orders, merely because they were made in his absence.  Given the frequency with which applicants in migration matters fail routinely to attend before the court to argue their cases, in my view this court must be very circumspect in how it exercises the discretion arising under rule 16.05.

41. White J in the case of Lal v the Minister for Immigration and Border Protection[3] closely considered rule 39.05 of the Federal Court Rules which is analogous to this court’s provision in order 16.05 of its rules. His Honour said as follows:

    Rule 39.05 of the Federal Court Rules 2011 authorises the court to set aside a judgment or order after it has been entered if amongst other things it was made in the absence of a party. The rule does not circumscribe the discretion to set aside in these circumstances that that discretion must, of course, be exercises judicially.

    [3]  Lal v Minister for Immigration & Border Protection (No2) [2014] FCA 892

42. Some authorities indicate that the power under Rule 39.05 is exercised ordinarily only in exceptional circumstances, for example, Australian Securities and Investment Commission & Active Super Pty Ltd No 4. 

43. However, in my view, the circumstances to which rule 39.05 may apply are likely to be quite varied so it may not be appropriate to require exceptional circumstances in all cases. Nevertheless, it is apparent that good reason must be established for the court to exercise the discretion to set aside an order which has been entered.

44. Further authorities indicate that a party seeking the favourable exercise of the court’s discretion to set aside orders made absentia would usually have to firstly provide a proper explanation for the absence in question and secondly demonstrate a case for review which is reasonably arguable. 

45. In this matter I am not satisfied that the applicant has provided a proper explanation as to why he did not attend on the day in question.  As I say, in my view, the certificate which he has provided is wholly inadequate.

46. Although I do not wish to appear uncharitable it strains my credulity to accept that the illness, undisclosed as it is, coincided by mischance with the date fixed for the hearing of the matter.  Following, as it does, other absences from proceedings, it seems probable that the applicant wished to delay the hearing, if at all possible.

47. In addition, for the reasons which I have provided, it does not appear to me that Mr Singh has a reasonably arguable case.  It remains the case that he has not satisfied an essential pre-condition of the grant of the visa in question, namely satisfactory proof that he has the skills relevant to the visa for which he has applied and these skills have been independently assessed.

48. Finally, as I say, the discretion to allow a judgment to be set aside must be exercised in the light of all relevant circumstances.   In this particular matter the applicant has routinely failed to appear at hearings relating to his application, in both the tribunal and this court.

49. The applicant failed to appear before the MRT; he failed to appear on the first directions hearing of this matter; he failed to appear when it was fixed for hearing; he failed to provide submissions as directed.  It is only when an order adverse to his interests has been made, in this court, that he has appeared to prosecute the interlocutory application.

50. As I say, it is becoming commonplace for applicants, in migration matters such as this one, to fail to appear not just on one or two occasions but throughout the process of review of their various applications and then appear only when compelled to do so as a consequence of a decision adverse to them. 

51. The consequence of this is multiple hearings relating to matters which, very often are not ones of great intrinsic complexity. This has implications for the wastage of the resources of not only the court but also of the Minister and those advising him. 

52. In my view, it is not in the general public interest for proceedings, such as these, to be unduly protracted, as a consequence of applicants failing to appear as required.

53. For all these reasons, I have come to the conclusion that the application of the applicant should be dismissed and a further modest order for costs made in favour of the Minister.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:              4 December 2014