Singh v Minister for Immigration

[2014] FCCA 1747

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1747

Catchwords:
MIGRATION – Judicial Review of decision of Migration Review Tribunal – dismissed pursuant to Federal Circuit Court Rule 13.03C on basis applicant failed to appear.

Legislation:

Migration Act 1958 (Cth)

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

Applicant: PARAM VIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 342 of 2013

Judgment of: Judge Simpson

Hearing date: 25 July 2014

Date of Last Submission: 25 July 2014

Delivered at: Adelaide

Delivered on: 25 July 2014

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant do forthwith pay the first respondent its costs in the sum of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3,326.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 342 of 2013

PARAM VIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex tempore reasons)

1. I have before me an application for judicial review of a decision of the second respondent, the Migration Review Tribunal, to affirm the decision of a delegate of the first respondent, that is the Minister, to refuse an application brought by the applicant for a Skilled Graduate (Temporary) (Class VC, subclass 485) visa.  The visa sought required that there be a skills assessment completed by a relevant assessing authority for the applicant’s nominated occupation of hairdresser. 

2. The applicant’s name has been called three times and he has not appeared.

3. The applicant, or someone on his behalf, sent a document which was received by the Court on 25 July 2014.  I do not know whether the document is genuine.  It indicates that a physiotherapist, by the name of Ross Leslie, has signed a sick leave certificate in relation to the applicant.  It states that the applicant is unfit for work from 24 July to 27 July 2014.  The diagnosis is of low back pain.  The document is dated 24 July 2014 and came into the Court earlier today.

4. The document having been brought to my attention, I had hoped that at the appointed time, I would have my Associate get the applicant on the telephone and see whether he is able to put his submissions to the Court over the telephone rather than in person.  It seems to me that low back pain would not restrict the applicant from speaking on the telephone and putting such submissions as he thought appropriate. 

5. My Associate has attempted to contact the applicant on the most recent telephone number that we have for him.  That telephone number is contained on a document dated 19 May 2014.  It is an application for exemption from paying Court fees on the basis of financial hardship and the telephone number there is 0424 257 833 and gives the applicant’s address as 3/6A Grayson Street, Kilkenny, SA 5009.  My Associate has since about 2.15pm this day rung that number on three occasions at five minute intervals.  On each occasion the telephone call not been answered and has gone through to voice mail. 

6. I do not consider the sick leave certificate to be a document that can be relied upon.  At best, it is a sickness certificate of a physiotherapist, not a medical practitioner. I would have thought that the applicant could have provided much more reliable evidence of his alleged illness that he says prevents him from attending Court. He could have sworn an affidavit explaining exactly what his condition is and to seek that the Court adjourn the matter to another date more suitable to him and the Court.

7. The applicant should have done all possible to have made himself available to appear by telephone this afternoon.  He should, in my view, have contacted the Court to find out what the Court wanted to do to accommodate his inability to attend Court.  I can only speculate on his reasons for not doing so.  It may well be that what the applicant is simply trying to do is to delay the hearing of this matter and if that is the case, then that would be a most serious matter.

8. It is informative to look at the history of this matter.  The background is that the applicant sought a visa, went before a delegate to the Minister and was unsuccessful there. 

9. On 21 November 2012, the applicant applied to the Tribunal for a review of the delegate’s decision.  On 11 September 2013, the Tribunal wrote to the applicant inviting him to appear at a hearing scheduled for 8 October 2013.  In addition, the Tribunal asked the applicant to provide information, including evidence of his skills assessment by the relevant assessing authority. 

10. A case note kept by the Tribunal record on the morning on 8 October 2013 - that is the hearing date, a friend of the applicant, Mr Singh, telephoned the Tribunal to inform it that the applicant had slipped in the bathroom and had injured himself and was unable to attend the hearing before the Tribunal in person.

11. The Tribunal received a medical certificate by fax stating that the applicant would be “unable to work” from 7 to 8 October.  A further Tribunal case note records that the Tribunal advised the applicant that given the nature of the injury the hearing would not be adjourned and instead, the applicant could appear by telephone.  The applicant’s friend then told the Tribunal the applicant was suffering from “trauma” and would not be able to attend by telephone.

12. The Tribunal advised the applicant’s friend that it may not be able to grant an adjournment without evidence of the applicant’s psychological trauma and without such evidence the hearing may proceed.  The applicant’s friend told the Tribunal he would provide a certificate regarding the applicant’s psychological trauma.  No medical certificate was provided to the Tribunal.

13. In the afternoon of 8 October 2013, the Tribunal called the applicant three times to proceed with the hearing but there was no answer.  On 11 October, the Tribunal wrote to the applicant inviting him to appear at a re-scheduled hearing by telephone on 22 October 2013.  The Tribunal received no response from the applicant to this invitation.  The applicant did not attend the 22 October 2013 hearing.  The Tribunal the proceeded to decide the matter and to affirm the decision. 

14. The applicant then lodged an appeal of an application for review in this Court and the grounds of the application.  There was only one ground and it is in these terms (I will read it verbatim):

    “MRT refused my review application stating that I don’t satisfy clause 485.221.  Member asked himself question that at the time of the decision clause 485.221 states that the applicant should have skill assessment in the nominated occupation from “relevant assessing authority”.  Decision claimed that Tribunal has not received any proof that skills assessment has been done.  I was sick on the day of hearing, but Tribunal did not extend my date of hearing.  I was injured, but still member stated that my injury does not prevent me from attending hearing.  I was not given fair chance to represent 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.”

15. It will be seen that the present circumstances are very similar to what occurred before in the Tribunal. It corroboration to the view that the applicant is doing all that he can to delay the hearing of this matter. In the circumstances, with that history and with the evidence that is before me, I consider that the only appropriate course for me is to dismiss the application.

16. In deciding what to do, I note clause 13.03C of the Federal Circuit Court Rules and that provides as follows:

    “If a party to a proceeding is absent from a hearing (including a first Court date) the Court may do one or more of the following –

    …

    (c)     if the absent party is an applicant, dismiss the application.”

17. I propose to dismiss the application pursuant to clause 13.03C of the Federal Circuit Court Rules. There will be an order to that effect.

18. The second order will be that the applicant pay the first respondent the sum of $3326. 

19. Immediately before making these orders, I requested that my Associate again attempt to contact the applicant.  There was no success.  That call was made about 35 minutes after the appointed time for the hearing of the application.

20. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  7 August 2014