Singh v Minister for Immigration

[2014] FCCA 2438

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2438

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal not to grant skilled visa – applicant has failed to satisfy criterion attaching to visa – namely proof of skills recognition – applicant failed to appear on hearing – applicant provided medical generic medical certificate day prior to hearing – adequacy of medical certificate considered – no apparent jurisdictional error – application dismissed as a consequence of applicant’s non-appearance.

Legislation:  

Migration Act 1958 (Cth), ss.362, 362B, 474
Federal Circuit Court Rules, r.13.03C(1)

Plaintiff 157/2002 (2003) 211 CLR 476
MZZGY v the Minister for Immigration and Border Protection [2014] FCA 488

Applicant: RAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 155 of 2014

Judgment of: Judge Brown

Hearing date: 23 September 2014

Date of Last Submission: 23 September 2014

Delivered at: Adelaide

Delivered on: 23 September 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Applicant pay the costs of the First Respondent fixed at SIX THOUSAND AND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

2. The application filed on 30 April 2014 be dismissed pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 155 of 2014

RAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This morning, I have before me an application for review brought pursuant to section 476 of the Migration Act, from a decision of the Migration Review Tribunal, which was made on 7 April 2014.

2. The applicant in the proceedings is Ravinder Singh.  The first respondent is the Minister for Immigration and Border Protection and the second respondent is the Migration Review Tribunal, which has provided a submitting appearance.   The Minister is represented by counsel.

3. The applicant seeks an order that the decision of the Tribunal be quashed and, presumably, thereafter, remitted for rehearing before another Migration Review Tribunal and heard according to law.

4. The applicant has prepared his own application.  He is clearly not legally qualified and it is difficult to glean precisely what are his grounds of complaint.  The application is otherwise comparatively simple. 

5. The applicant applied for a Skilled Graduate temporary class VC (subclass 485) visa online.  The nominated occupation he provided was hairdresser and the name of the assessing authority was Trades Recognition Australia.  It was asserted that the applicant had undergone the skill assessment on 3 April 2011 and a reference number was provided in respect of such an assessment.

6. It is a mandatory requirement of such a visa that the applicant provide proof that the skills for the occupation, which he has nominated have been assessed by a relevant and approved assessing authority as suitable for that occupation. 

7. This criterion appears in regulation 485.221 of the Migration Regulations.  A delegate of the Minister requested such proof from the applicant and when it was not forthcoming, declined to grant the visa in question.  That led to a review before the Migration Review Tribunal.  That application had something of a chequered history. 

8. The applicant was invited to appear before the Tribunal on 14 August 2013.  He provided a medical certificate, in broad terms, that he was unable to work between the dates 12 to 16 August 2013. 

9. On that basis, at short notice, the proceedings were adjourned until 19 August. The applicant did not appear on that date and, as it was authorised to do pursuant to section 362B of the Migration Act, the Tribunal concerned decided to make its own decision without further input from the applicant.

10. Given that there was no proof that the applicant’s skills had been assessed, as required by the applicable regulation, the Tribunal affirmed the decision. 

11. After that, there was a review in this Court.  However, the matter was remitted with the consent of the Minister on 15 October 2013 and the necessary constitutional writs were issued as a consequence of a consent order of this Court. 

12. Precisely why that was so, I am unclear, but, no doubt, the Minister was persuaded that there was some procedural irregularity or appearance of unfairness relating to the determination of the matter in the applicant’s absence. 

13. When the matter was remitted, a further Tribunal sent an invitation to the applicant to give evidence and present arguments before the Tribunal on 29 January 2014.  The prior day, as had previously occurred, the applicant sent a facsimile to the Tribunal enclosing a further medical certificate.

14. I have been provided with a copy of that medical certificate, which again was in broad and unspecific terms.  It was said that the applicant was unable to work or will be unable to work from 28 January to 2 February 2014. 

15. Notwithstanding the certificate, the Tribunal attempted to telephone the applicant three times.  That seems to engage one of the grounds for review which the applicant has made.  In ground 2, he says:

    Please note that I live in regional Australia and phone services are very bad at times.  My mobile was switched on.

16. So, presumably, that is a complaint to the effect that the Tribunal did not give the applicant procedural fairness in adopting the course which it did. Again, as had previously happened, the Tribunal determined that it was appropriate to make a decision in the absence of the applicant or any further submissions from him. Pursuant to section 362, the decision was affirmed.

17. However, there was a further twist in the story in that on 4 February 2014, the Tribunal notified the applicant that a mistake had been made and that the fax of 28 January had not, in fact, come to the notice of the tribunal due to a failure of the fax machine. 

18. Therefore, the applicant was given another opportunity and a hearing was scheduled for 3 April 2014.  However, in between that time and this, the applicant, apparently, commenced these proceedings. 

19. This chain of events seems to relate to the first ground.  The applicant takes umbrage that the decision has been called back.  What procedural unfairness arises from that, I do not know. 

20. In any event, there was a hearing scheduled for 3 April 2014 and again the applicant did not attend that, it would seem, and the decision was made to affirm the decision not to grant the applicant a visa.

21. The matter has been listed for hearing today and today I have before me a fax which was received yesterday, 22 September, 2014 from Mr Singh.  It reads as follows:

    Hi dear sir,  I am Ravinder Singh.  Tomorrow is my hearing.  Can you please postpone my hearing date because I sick now.  Thanks.

22. Attached to that is a medical certificate, in broad terms, that certifies that Mr Ravinder Singh was unable to work or will be unable to work from 22 September 2014 to 26 September 2014 and there is a copy of a prescription that was written by the doctor concerned on 22 September 2014 for Amoxicillin, which I believe is a common antibiotic.

23. The decision of the MRT is a privative clause decision, as stipulated by section 474 of the Migration Act. The effect of that section is that decisions under the Migration Act, which are of an administrative nature are deemed to be privative clause decisions and, as such, are not amenable to review by the Court or to the application of any prerogative writ.

24. However, the High Court in a number of cases, particularly Plaintiff S157 of 2002,[1] 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.

    [1]  Plaintiff 157/2002 (2003) 211 CLR 476

25. Jurisdictional error is a difficult concept to explain.  However, it does not entail a rehearing on the merits of any particular evidence arising to a decision concerned.

26. As I say, in this case, it is a mandatory criterion of the visa in question that, before its grant, the applicant provides proof that his occupational skills, in the occupation nominated by him for the visa, have been properly assessed. 

27. The applicant did not provide such proof before the MRT concerned.  Accordingly, it is difficult, if not impossible to find any discernible error on the basis of the current material provided by the applicant.  Neither this court nor the MRT had any discretion to waive the requirement for appropriate skills verification before grant of the visa sought.

28. The applicant’s application is an inchoate complaint that he was not telephoned effectively, on his mobile telephone number, on the date allocated for further hearing and that the Tribunal fixed a further date for hearing without reference to him.  It is also asserted that the authority he nominated, for the skills assessment is an appropriate one and therefore, as a consequence of these matters, there has been jurisdictional error.

29. In my view, the applicant has not provided any concrete evidence that the requisite assessment from the Trades Recognition Australia has been provided, although he asserts to the contrary.  There was nothing the MRT could address about that and the Tribunal was required to make a finding of fact about the existence or otherwise of the skills assessment.  This was its jurisdictional task.  It found there was no skills assessment.

30. Accordingly the Tribunal found that the relevant criteria, which are mandatory, concerning the grant of the visa had not been met.  Neither the Minister’s delegate nor the Tribunal itself could dispense with those required criteria and nor can I, given that this is a privative clause decision. 

31. In the absence of the applicant today, the Minister seeks that I should dismiss the application pursuant to the provisions of rule 13.03C(1) of the Federal Circuit Court Rules.  That provides that if a party to a proceeding is absent from a hearing, the Court may, amongst other things, do the following:  if the absent party is an applicant, dismiss the application.

32. The power to dismiss a case, in the absence of a party, is one which must be exercised judicially.  Basically, I must consider two matters:  firstly, the basis on why the applicant has apparently not appeared, and secondly, the strength of his case. 

33. In terms of the first matter, I bear in mind what was said by Davies J in MZZGY v the Minister for Immigration and Border Protection.[2]  In that case, as in this matter, it was the case that a letter had been sent by the applicant concerned to the Court by email the previous day.  It was also the position that a medical certificate and a prescription had also been sent. 

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

34. The medical certificate in that case was broadly similar to the certificate provided in the current matter.  Davies J said as follows:

    “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 an adjournment by the short notice.  I accordingly refuse the adjournment application and proceed to hear the appeal on its merits.”

35. I adopt those statements.  In my view, the medical certificate provided by Mr Singh is equally inadequate.  There is no explanation or detail provided in respect of his alleged illness.  I do not know what the relevance of the prescription for Amoxicillin is.

36. I have read the case book concerned and considered the relevant statutory considerations relating to the visa in question. In my view, there was no failure of jurisdiction by the MRT. On that basis, given the failure of the applicant to appear and the inadequacy of his explanation for his non-appearance, the application must be dismissed, pursuant to the provision of rule 13.03C (1)(c).

37. The first respondent seeks costs, and in my view, it is appropriate that the applicant pay the first respondent’s costs fixed in the sum of $6,646.00. 

38. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:             23 September 2014