Singh v Minister for Immigration - [2014] FCCA 1111

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1111

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – applications for Student (Temporary) (Class TU) subclass 572 visas – adjournment refused – no appearance by or on behalf of the applicants – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A(1), 359(A)(4)(b), 360, 360A, 362B, 379A(4), 379C(4)

Migration Regulations 1994 (Cth), Schedule 2: cls.572.211, 572.322

Khanam v Minister for Immigration and Citizenship[2009] FCA 966
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Minister for Immigration and Citizenship v Chamnam You[2008] FCA 241
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZFNK v Minister for Immigration and Anor [2006] FMCA 859
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

First Applicant:

GURPREET SINGH

Second Applicant:

SAVTAJ KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2318 of 2013

Judgment of:

Judge Hartnett

Hearing date:

27 May 2014

Delivered at:

Melbourne

Delivered on:

27 May 2014

REPRESENTATION

The Applicants:

No appearance

Counsel for the Respondents:

Mr N. Wood

Solicitors for the Respondents:

Clayton Utz

ORDERS

Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the Application filed 23 December 2013 is dismissed.
The applicants pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2318 of 2013

GURPREET SINGH

First Applicant

SAVTAJ KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

These proceedings commenced by the applicants filing an Application on 23 December 2013 in respect of a decision of the Migration Review Tribunal (‘the Tribunal’). The ground of the Application is:-
“I am not satisfied with the decision of my MRT application. Therefor (sic) I want to appeal (sic) against the decision of MRT in the court.”
There are no particulars stated in the application.
On 19 March 2014, when the matter was before Registrar Caporale, it was ordered by consent, amongst other orders, that the applicants file and serve an amended application, if any, pursuant to order 4 therein on or before 35 days prior to the final hearing. That has not been done. The applicants have not filed written submissions.
In fact, the material before the Court from the applicants is the Application itself and an affidavit from each of them which simply restates the ground of the application and which remains unparticularised. Otherwise the balance of the material on the court file is the Court Book filed on 28 March 2014 by the First Respondent which is in evidence before the Court, the First Respondent’s Submissions filed 19 May 2014, the First Respondent’s List of Authorities filed 23 May 2014 and the Response to the Application filed 13 January 2014 wherein the First Respondent seeks dismissal of the application.
The matter was listed for hearing this day. An interpreter was booked and has attended Court this day. An email was received by the First Respondent’s solicitors, and by the Court, which was sent on 26 May 2014 at 7.51pm seeking an adjournment and is as follows:-
“Sir/madam. File number MGL 2318/2013 Myself Gurpreet singh tomarrow (sic) is my court hearing but I am unable to come tomarrow (sic). Please give me more days . I already attached an evidence . Please If possible please give me few days more I will be very thankful to you please !!!”
There is no request from the Second Applicant. The apparent basis of the request for an adjournment appears to be a certificate from The Boulevard Medical and Acupuncture Clinic in Thomastown by a Dr P. Sood dated 26 May 2014 which certifies that:-
“Mr Gurpreet Singh is/was suffering from medical condition ____________ and will be/was unfit for duty/school for 3 days from 26/5/14 to 28/5/14 …”
The request for an adjournment is opposed. The Court confirmed the matter remained listed for hearing this day at 2.15pm with the parties.
I accept the submissions made by counsel for the First Respondent. There is before the Court an entirely inadequate medical certificate for the purposes of an adjournment. An adjournment cannot be granted on the basis of such evidence. The request for an adjournment is refused.
This is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 21 November 2013, being a decision to affirm an earlier decision of a delegate of the Minister for Immigration and Citizenship (as he then was) (‘the delegate’) made on 9 September 2013 to refuse to grant the applicants’ Student (Temporary) (Class TU) subclass 572 visas (‘subclass 572 visas’). The applicants had made an application for subclass 572 visas on 2 September 2013.
The applicants are husband and wife. The husband is the primary applicant.
The applicants have failed to file any amended application, or otherwise provide any particulars of the stated “ground” of review. Furthermore, the applicants have failed to file any written submissions in support of their application, in breach of the Court’s Orders made 19 March 2014 by Registrar Caporale requiring them to do so by 22 April 2014 (being an Order made by consent).
On 2 September 2013, the applicants made an application for Student (Temporary) (Class TU) subclass 572 visas, and indicated that they sought to satisfy the criteria for subclass 572 visas. The delegate refused to grant the visas on the basis that:-
a)the First Applicant was not, at the time of application, the holder of a substantive visa (that is, including a visa of one of the kinds specified by cl.572.211(2), (4) or (6) of the Migration Regulations 1994 (Cth) (‘the Regulations’));
b)the First Applicant’s last substantive visa was a (Temporary Graduate) subclass 485 visa (not being a visa of one of the kinds specified by cl.572(3)(b ) of the Regulations); and
it followed that the First Applicant did not satisfy cl.572.211(1) of the Regulations.
On 17 September 2013, the applicants made an application for review to the Tribunal.
The applicants indicated that the Tribunal should contact them about their application at their nominated postal address (Unit l, 10 Swanston St, Heidelberg Heights) or email address ([email protected]).
By letter dated 18 September 2013, a Tribunal officer wrote to the applicants at their postal address and acknowledged receipt of the Application for Review. In particular, the Tribunal officer indicated that it was important that, if the applicants wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible.
By letter dated 23 October 2013, a Tribunal officer wrote to the applicants and invited them to appear before the Tribunal on 20 November 2013 to give evidence and present argument relating to the issues in their case. In particular, the Tribunal officer stated as follows:-
“If you are not able to attend a hearing, you need to advise me as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.”
On 13 November 2013, the Tribunal received from the First Applicant a completed “response to hearing invitation” form, which indicated that the First Applicant would appear at the scheduled hearing.
On 20 November 2013, neither of the applicants appeared at the scheduled hearing.

The Tribunal's decision

On 21 November 2013, the Tribunal affirmed the decision of the delegate not to grant the applicants subclass 572 visas.
The Tribunal noted that, as at the date of its decision, the First Applicant had not contacted the Tribunal to explain his failure to attend the hearing. Having considered the overall circumstances of the matter, the Tribunal determined that it was appropriate to proceed under s.362B of the Act to make a decision on the review without taking any further action to allow or enable the First Applicant to appear before it.
The Tribunal found that the First Applicant did not satisfy the “time of application” criterion in cl.572.211 of the Regulations. It found that the First Applicant did not meet the requirements in cl.572.211 (2), (4) or (6) of the Regulations, because the First Applicant did not hold a substantive visa at the time of application. It found that the First Applicant did not meet the requirements in cl.572.211(3)(b) of the Regulations because the last substantive visa held by the First Applicant was a subclass 485 visa.
The Tribunal found that there was no evidence that the Second Applicant satisfied the primary criteria for a subclass 572 visa. The Tribunal found that the Second Applicant did not satisfy the secondary “time of decision” criterion in cl.572.322 of the Regulations because the First Applicant did not meet the primary “time of application” criterion in cl.572.211 of the Regulations.

Consideration

The application for judicial review fails to identify any ground of judicial review. Indeed, it fails to identify any error of any kind by the Tribunal. As Reeves J of the Federal Court said in SZNXA v Minister for Immigration and Citizenship [2010] FCA 775, it is impossible for the Court to engage in judicial review by reference to a “ground” of review of the kind relied on by the applicants.
In these circumstances, it is open to the Court to dismiss the application. It is not incumbent on this Court “independently to consider for itself whether a self-represented litigant might, despite the inadequacies of presentation of his her position, have a case for the court’s intervention”.[1] In any event, there is no obviously arguable case to put forward that the Tribunal has erred in making its decision.
[1] SZFNK v Minister for Immigration and Anor [2006] FMCA 859 at [4] (Madgwick J). See also Khanam v Minister for Immigration and Citizenship[2009] FCA 966 at [21] (Collier J).
The Tribunal complied with its obligation under s.360 of the Act to invite the applicants to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, in accordance with the requirements of s.360A. It did so by utilising one of the methods specified in s.379A(4) of the Act: dispatching the invitation letter by prepaid post to “the last address for service” or “the last residential address” provided to the Tribunal by the applicants in connection with the review. By operation of s.379C(4) of the Act, the applicants are taken to have received that invitation on 1 November 2013, being seven working days after the date of the invitation.[2] In any event, it is apparent that the applicants did receive the invitation because they returned the completed “response to hearing invitation” form which, as stated above, indicated that the First Applicant (but not the Second Applicant) would appear at the scheduled hearing.
[2] Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 at 166-167 [15].
As submitted by the First Respondent, the Tribunal was under no obligation to give any “information” to the applicants under s.359A of the Act before making its decision. That is because it is apparent that the only “information” which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review - being information that the First Applicant did not have a substantive visa at the time of application, and that his last substantive visa was a subclass 485 visa - was information which the applicants gave for the purposes of the application for review. The exception in s.359A(4)(b) of the Act to the general obligation in s.359A(l) is applicable to that information.[3] The general obligation in s.359A(l) of the Act to put certain “information” does not encompass “the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by weighing up the evidence by reference to those gaps, etc”.[4]
[3] See also Minister for Immigration and Citizenship v Chamnam You[2008] FCA 241 at [15]-[22]; Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [74].
[4] SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 [18], citing approval VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477.
There is nothing reviewable in the Tribunal’s approach in making a decision on the review despite the non-appearance by either applicant at the scheduled hearing. Section 362B of the Act expressly authorises the Tribunal to take that approach. There was no lack of reasonableness, nor was there unfairness to the applicants in this approach.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:

Date: 11 June 2014