Singh v Minister for Immigration

[2014] FCCA 1411

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1411

Catchwords:
MIGRATION – Application for adjournment – non-appearance by applicant – whether medical certificate adequate – application dismissed.

Legislation:

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

NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Applicant: LAKHBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1565 of 2013

Judgment of: Judge Riethmuller

Hearing date: 22 May 2014

Date of Last Submission: 22 May 2014

Delivered at: Melbourne

Delivered on: 22 May 2014

REPRESENTATION

Counsel for the Applicant:  There being no appearance by or on behalf of the Applicant

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 23 September 2013 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1565 of 2013

LAKHBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for an adjournment by the applicant Lakhbir Singh in this matter. The matter is set for final hearing today.

2. The applicant has not complied with procedural directions in that he has failed to file any contentions of fact and law.

3. The grounds that the applicant pursues in his application appear on their face to indicate a desire to challenge the merits of the Tribunal’s decision stating that “I have all the evidence of to prove that, I am genuine student”.

4. When the matter was before the Tribunal, the Tribunal had considerable difficulty making arrangements for the applicant to be heard. The Tribunal, after initially considering the material sent the applicant a letter informing him that they were not able to make a favourable decision on the basis of the material that had been lodged saying in their decision:

   11. By letter dated 29 May 2013, the Tribunal informed the applicant that it had considered the material before it but was unable to make a favourable decision on the basis of that material alone. The applicant was invited to attend a hearing on 24 June 2014 to give evidence and present arguments in relation to the issues arising in the review. The applicant was also invited to provide evidence of current enrolment or current offer of enrolment for the purposes of cl.572.222 or cl.572.231; and any information or documents he considered relevant to the review noting that an issue relating to the requirement of cl.572.235 will arise during the hearing. Copies of the relevant Regulations were attached to the letter. The tribunal did not receive any response to t is letter.

5. The Tribunal then goes on to set out the steps it took to ensure that the applicant had every reasonable opportunity to appear before the Tribunal saying:

   12. On the day and time of the scheduled hearing, the applicant did not appear. The Tribunal kept the arrangements for the hearing open for several hours past the schedule time, but the applicant did not appear and did not contact the Tribunal. Later the same day, the Tribunal received a short letter from the applicant stating that he will not be attending the hearing on 24 June 2013 due to ill health and enclosed a medical certificate stating that he was unfit to attend his usual occupation from 19 June to 26 June 2013.

   13. On 27 June 2013, the Tribunal sent the applicant another letter in the same terms as that of 29 May 2013 inviting the same evidence and material and informing the applicant that the Tribunal has rescheduled the hearing to be held on 10 July 2013 at 9:00am.

   14. On the day and time of the re-scheduled hearing, the applicant did not appear. The Tribunal kept the arrangements for the hearing open for several hours past the schedule time, but the applicant did not appear and did not contact the Tribunal.

   15. At around 11.30, the tribunal received a facsimile comprising pages from the Tribunal previous letters and a booking for travel indicating the applicant departed Australia on 9 July 2013 to Delhi, India and will return to Melbourne Australia at 9:15am 15 August 2013. The fax also included a one page document dated 5 July 2013 from S.B.S Memorial General and Eye Hospital in India describing that Jagir Singh was admitted to hospital on the same date.

   16. By letter dated 25 July 2013, the Tribunal again rescheduled the hearing to 26 August 2013 and repeated its invitation to provide evidence of current enrolment and material relating to cl.572.235.

   17. On the day and time of the re scheduled hearing, the applicant did not appear. The Tribunal kept the arrangements for the hearing open for several hours past the schedule time, but the applicant did not appear and did not contact the Tribunal.

   18. The Tribunal is satisfied that the letters of 29 May 2013; 27 June 2013 and 25 July 2013 were correctly sent to the address the applicant provided for receiving correspondence.

6. It is in these circumstances that the applicant’s email (which I treat as an informal application for an adjournment) is before the Court.

7. In his email which is somewhat difficult to read due to the punctuation, or lack thereof, he says:

   My name is Lakhbir Singh and my file number is MLG 1565/13 .My hearing date is 0n 22 may 2014 and I got my mostly all documents but from last 2 weeks I am not feeling well and it is very hard for go to Melbourne on long travel .i am going to attached my medical certificates and that certificate as well when immigrations apply section 20 on me but on that time I gave them my evidence and they allow to me for continue study but when I applied my student visa they refused because they said you did not complete your pervious study but that already has been cleared so I have already completed diploma in hospitality management .i was good student in study and I want to continues my study in advanced diploma in business and then I am going for degree as well for bright future so please can I get any next hearing date.  

8. He supports this email with a scan of a medical certificate from a doctor in Wodonga which simply says that he is “RECEIVING MEDICAL TREATMENT FOR THE PERIOD FROM 20/05/2014 TO 24/05/2014” and then goes on to say “He will be unfit to attend his usual occupation”. No details of what the medical condition is nor why it would be such so as to prevent him from appearing or at the very least seeking leave to appear by telephone or video from presumably Wodonga where the medical certificate seems to have been issued.

9. In this case I have regard to the decisions of the Full Court of the Federal Court in NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 and the decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. In these cases the Full Court and Justice Lindgren found that such certificates were inadequate to properly found an adjournment application or, on the best reading of those decisions for the applicant, they were at least decisions where medical certificates in similar terms were insufficient to persuade the courts on those previous occasions on the facts of the particular cases.

10. When I turn to the facts and circumstances of this case and look at the matter as a whole it seems to me that this certificate is not sufficient to explain the applicant’s absence nor to properly found an adjournment application.

11. In the circumstances I therefore refuse the application for an adjournment. As the applicant has not attended I therefore dismiss the applicant’s application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

12. I Order that the applicant pay the first respondent’s costs fixed at $4,000. I have regard to the scale fees and the nature of this particular matter and it seems to me that the costs sought are reasonable and particularly having regard to the fact that they represent slightly less than 2/3 of the scale fee that is set for standard track matters of this type, although in my view properly reflecting the likely amount of work given the nature of this particular matter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  4 July 2014