SINGH v Minister for Immigration
[2019] FCCA 453
•1 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 453 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – subclass 187 (Regional Sponsored Migration Scheme) – reinstatement application of applicant’s judicial review application – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Gallo v Dawson (No 2) [1992] HCA 44 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 |
| Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2515 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 21 February 2019 |
| Date of Last Submission: | 21 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 1 March 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondents: | Mr Lipinski |
| Solicitors for the respondents: | Clayton Utz Lawyers |
ORDERS
The applicant’s application in a case filed 21 August 2018 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $2,270.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2515 of 2017
| GAGANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application in a case filed by the applicant on 21 August 2018 seeking the reinstatement of his application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”). The applicant filed an application for judicial review of a decision of the tribunal made 24 October 2017.
The applicant’s judicial review application was listed before
Registrar Allaway on 8 August 2018. On that date, the applicant failed to appear and his application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
Rule 16.05 of the FCC Rules relevantly provides:
(3)The Court or a Registrar may vary or set aside a judgement or order after it has been entered if:
(a)it was made in the absence of a party…
Although no reference is made specifically to rule 16.05 of the FCC Rules in the applicant’s application, the delegate for the Minister for Immigration and Border Protection (“the Minister”) accepts that the applicant is seeking an order pursuant to that rule but opposes that application.
The applicant filed an affidavit in support of his reinstatement application affirmed 16 August 2018.
In that affidavit, the applicant states that he filed a judicial review application in November 2017 which was listed for ‘hearing’ on
8 August 2018. He further states that he was unable to attend on that day as he had suffered from a “high fever on and off” for a couple of weeks.[1]
[1] Applicant’s affidavit filed 21 August 2018.
He further stated in that affidavit that his phone “had outgoing calls barred for non-payment of bill”.[2]
[2] Applicant’s affidavit filed 21 August 2018.
Attached to the applicant’s affidavit of 16 August 2018, are two medical certificates stating that he was “unfit to continue his usual occupation”,[3] the first in respect of 13 August 2018 and the second in respect of
14 August 2018. It appears from the face of these documents that they were obtained on 13 and 14 August 2018 respectively.
[3] Applicant’s affidavit filed 21 August 2018.
In addition, the applicant has also attached to his affidavit of
16 August 2018 a statutory declaration which he made at the
Hanson Medical Centre on 13 August 2018 in which he said:
I have been suffering from sickness from few weeks, visited my GP previously, had the history of tonsils, been through series of tonsils problem last year as well during same season. As weeks ago had symptoms of it again was taking homoeopathic medicine as recommended by Dr from India which helped me minimising the pain I was suffering through high fever etc.[4]
[4] Applicant’s affidavit filed 21 August 2018.
The jurat section of the statutory declaration indicates that the statutory declaration was made before a ‘Dr M Ali’ and was declared on
13 August 2018. It refers to ‘06 to 09 of 08 2018’. This may be a reference to the applicant being unwell over those three days, which I note include the date on which the hearing was scheduled before Registrar Allaway.
Submissions
At the hearing before me, the applicant appeared on his own behalf and was assisted by an interpreter in the Punjabi language. Although the interpreter was present to assist the applicant, the applicant made submissions in English and from his submissions and responses it was apparent that he had an adequate command of the English language.
The applicant was asked what he wanted to say in support of his application for reinstatement. In response, he said that he was suffering for some time from illness relating to his tonsils. He said that last year at about the same time of year he also suffered similar illness and he had sought treatment from a hospital in Epping. He further said that the medicines he had been prescribed last year had not assisted greatly.
When asked to explain why the medical certificates he provided related to 13 and 14 August 2018 when the hearing was scheduled for 8 August 2018, he said that based on his experience last season when he became ill, when he became ill this year he had to rely on Indian medicines as he uses homeopathic medicines. He said he to find a homeopathic doctor who could treat him.
Counsel for the Minister relied upon the written submissions filed in this matter and the affidavit of Isabelle Lulu Minnett affirmed on
13 February 2019.
In addition and in response to the oral submissions made by the applicant, counsel for the Minister made the following brief submissions:
a)firstly, the authorities stand for the proposition that medical evidence must speak to both the nature of the medical condition; and
b)secondly, why that medical condition would preclude the applicant from attending court.
The medical certificates provided speak to neither of those matters.
The court needs to have regard to three factors in considering an application for reinstatement such as this. The first is reasonableness of the explanation which, it was submitted, was not been satisfied in this instance. The second factor is the prejudice to the Minister. The Minister quite properly as a model litigant, accepted that the prejudice can be ameliorated with a costs order and therefore this factor does not weigh against the granting of the reinstatement order.
The third and most decisive factor, it was submitted, is the substantive merits of the underlying application.
For the reasons set out in the Minister’s written submission, the Minister submits that the substantive application has no merit.
Consideration
Reinstatement application
In determining whether or not to grant the application for reinstatement, the court must have regard to the three factors identified in
MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530 (“MZYEZ”):
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)Whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)The existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)Whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.[5]
[5] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].
His Honour went on to say:
… a party’s absence is analogous to a party’s failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party’s favour where there is little or no prospect of that party’s succeeding on the substantive claim: See Gallo v Dawson (No 2) (1992) 109 ALR per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ at 319-320
(emphasis added).[6][6]MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [8].
Reasonable excuse for non-attendance
The applicant’s affidavit in support of his application for reinstatement essentially asserts that he was unable to attend court on 8 August 2018 due to illness.
In support of this assertion, he provided two medical certificates and a statutory declaration. Upon reading the statutory declaration in the most favourable way for the applicant, it purports to provide evidence from the applicant to support his claim that he was unwell during the period from 6 to 9 August 2018 due to “tonsil problems”.[7]
[7] Applicant’s affidavit filed 21 August 2018.
The question which arises however, is whether this statutory declaration, together with the medical certificates provided by the applicant together with the statutory declaration are adequate and sufficient. The medical certificates state that the applicant was unable to participate in his usual occupation on 13 and 14 August 2018. The medical certificates say nothing about the applicant’s condition on 8 August 2018.
Moreover, as submitted on behalf of the Minister, in determining the adequacy of a medical certificate in support of an application for an adjournment or, as in this case, an application for the reinstatement of a proceeding, the medical certificate must both identify the medical condition and explain why that condition would have prevented the applicant from effectively participating in the hearing.[8]
[8] NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 at [24].
In NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, Lindgren J considered the adequacy of two medical certificates in the context of an adjournment application. In that case, the medical certificates identified in general terms he conditions that the applicants were suffering from, but did not:
…address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.[9]
[9] NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6].
In this instance, the medical certificate does not even go so far as to identify the actual condition that the applicant was suffering from, let alone state that as a result of that condition the applicant could not have attended or participated in the hearing.
Moreover, even though the applicant did not see this doctor until some 5 days after the hearing date, there is nothing in the medical certificate which states that the applicant had reported being so unwell on 8 August 2018 that he could not attend his court hearing or that the applicant’s presentation on 13 August 2018 was consistent with someone who had been so severely unwell.
The applicant in his oral submissions also indicated that he had been so unwell that he could not drive and had to have a friend drive him to find a doctor. I note that the applicant has not filed any affidavit material from that friend attesting to that fact. Nor has the applicant filed any material from his homeopathic practitioner from whom he said he was obtaining treatment at the time.
Weighed against this is the fact that the applicant did act relatively quickly to seek to have the proceedings reinstated, filing this present application in a case on 21 August 2018.
In all of the circumstances, I am not satisfied that the applicant has provided a satisfactory explanation for his non-attendance on 8 August 2018.
Prejudice to the Minister
As noted above, the Minister quite properly concedes that any prejudice to the Minister arising from the reinstatement of the applicant’s claim could be dealt with by an order for costs.
This issue is therefore not determinative of the application before the court.
Does the applicant have a reasonably arguable prospect of success on the substantive application?
The first respondent relies upon an affidavit affirmed by Isabelle Lulu Minnett and filed in these proceedings on 13 February 2019.
The applicant applied for a visa on 9 September 2016 in which he nominated his occupation as ‘motor mechanic (general)’ and sated that he was employed by a sponsor. The application was prepared with the assistance of a migration agent.[10]
[10] Annexure ILM-3 to affidavit of Isabelle Lulu Minnett filed 13 February 2019.
On 12 May 2017, a delegate of the Minister refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of clause 187.233 of Schedule 2 of the Migration Regulations 1994 (Cth) which required the applicant be sponsored in a position which is the subject of an approved nomination. The delegate found that as the nomination application had been refused, the applicant did not meet clause 187.233.[11]
[11] Annexure ILM-4 to affidavit of Isabelle Lulu Minnett filed 13 February 2019.
The applicant sought a merits review of the delegate’s decision by the tribunal by application to the tribunal on 1 June 2017.[12]
[12] Annexure ILM-5 to affidavit of Isabelle Lulu Minnett filed 13 February 2019.
The tribunal invited the applicant to a hearing on 16 October 2017.[13]
[13] ILM-6 to affidavit of Isabelle Lulu Minnett filed 13 February 2019.
The day before the scheduled hearing, the applicant, by his representative, provided the tribunal with written submissions and supporting documentation.[14]
[14] ILM-7 to affidavit of Isabelle Lulu Minnett filed 13 February 2019.
Importantly in those submissions, the representative stated that the applicant acknowledged that he did not meet clause 187.233 of schedule 2 to the Regulations and that the employer had not lodged a review application for the nomination.[15]
[15] ILM-7 to affidavit of Isabelle Lulu Minnett filed 13 February 2019.
The written submissions also stated that the applicant had begun his work with the sponsor but had experienced harassment in that employment and was dismissed.
The written submissions also stated that the applicant was then employed by ‘Brighton Toyota’ in the ‘Job Ready program’ and requested a three month postponement of the visa decision so that he could conclude the ‘Job Ready Program’.
The applicant attended the hearing before the tribunal on
16 October 2017 and was accompanied at that hearing by his migration agent.[16]
[16] ILM-8 to affidavit of Isabelle Lulu Minnett filed 13 February 2019.
On 24 October 2017, the tribunal notified the applicant that it had refused to grant the applicant the visa. In doing so the tribunal considered the request for an extension of time but found that there would be no benefit in this as the sponsor had not applied for a review of the nomination refusal and therefore even if the applicant completed the Job Ready Program, that would not alter the outcome.[17]
[17] Paragraphs [16] and [18] of the tribunal’s decision record dated 24 October 2017.
Moreover, the tribunal noted that “the applicant has agreed in both his written and oral evidence that he does not satisfy cl 187.233 as the nomination made by Edney’s Leongatha was refused” and found that the applicant did not meet clause 187.233 of schedule 2 to the Regulations and therefore affirmed the delegates’ decision not to grant the visa.[18]
[18] Paragraphs [18] to [21] of the tribunal’s decision record dated 24 October 2017.
In his substantive application for judicial review, the applicant, under the heading ‘grounds of application’ says:
I was a victim of discrimination and fraud by the employer.
I was unfairly dismissed from my job.
I faced racism on my workplace.[19]
[19] Applicant’s application filed 21 November 2017.
He also attached a further document headed ‘Grounds for my judicial review application’. I do not propose to set that out in full however, under the heading ‘My Concerns and my claims’ he relevantly says:
I acknowledges that I do not meet the legislation requirements for my subclass 187 visa application but I humbly request to the Federal Circuit Court to give a generous consideration to the factors that were beyond my control and lead to the refusal of my subclass 187 visa application. I want to bring your attention to the following factors.
VICTIM OF DISCRIMINATION BY THE EMPLOYER
Before applying for a subclass 187 visa application, I was holding a subclass 572 visa. Months before the expiry of my 572 visa, I started looking for an employer who could employ me as a motor mechanic and who could sponsor me on for a subclass 457 OR subclass 187 visa. … Finally, I selected ‘EDNEY”S LEONGATHA” as the employer offered me a package of $40731 for the motor mechanic position and was ready to sponsor me under RSMS scheme.
….
MY CURRENT EMPLOYMENT
…
Now I want to dispute over the conduct of DIBP and the Administrative Appeals Tribunal in Federal Circuit Court. My 187 visa application was first refused by the immigration department and then later on, the AAT department affirmed the decision not to grant me a subclass 187 visa. I do not agree with the decisions from both departments. I want to challenge the decisions given by both departments in the federal circuit court.[20]
[20] Applicant’s application filed 21 November 2017.
As stated above, when asked at the hearing before me, the applicant did not add anything of substance to the matters set out in his written application.
It is submitted that the applicant’s application does not identify any valid ground for judicial review. There is some force to this submission. On its face, the application seeks impermissible merits review.
The Minister, as a model litigant, addresses the following arguments which could possibly be raised against the tribunal’s decision:
a)whether the tribunal correctly applied the law, including whether it failed to take into account irrelevant considerations; and
b)whether the tribunal afforded the applicant procedural fairness.
I find that the tribunal applied the law correctly in so far as the requirements for the visa were set out in clause 187.233 of schedule 2 of the Regulations. That required:
(1)The position to which the application relates is the position:
(a)Nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)In relation to which the applicant is identified as the holder of a subclass 457 (Temporary Work (Skilled) visa; and
(c)In relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The Minister has approved the nomination.
(3)The nomination has not subsequently been withdrawn.
(4)…
(5)The position is still available to the applicant.
(6)…
The Minister had not approved the sponsor’s nomination of the position and therefore the applicant failed to satisfy clause 187.233(2).[21]
[21] Applicant’s affidavit filed 21 November 2017, see paragraphs 15, 19 to 20 of the tribunal’s decision record.
Importantly for the purposes of this application, which is an application to reinstate and not the substantive application, the applicant concedes this fact both in the evidence before the tribunal and which the tribunal considered at paragraphs 8 and 15, but also in the applicant own grounds of review in which he says, “I acknowledge that I do not meet the legislation requirements for my subclass 187 visa application.”[22]
[22] Applicant’s application filed 21 November 2017.
I accept that the tribunal correctly applied the law and therefore any ground of review on this basis would not have reasonable prospects of success if the matter were to be reinstated and proceed further.
It might be said that the applicant raises an issue regarding whether the tribunal erred by failing to take into account relevant considerations in so far as the applicant has asked the court to have regard to ‘factors beyond his control’ including that he was a ‘victim of discrimination by the employer’ and that he had secured other employment with Brighton Toyota.
I agree with the submission of the Minister that clause 187.233 does not require the tribunal to take into account these factors therefore even if it could be said that the tribunal did not consider them, that this could amount to a jurisdictional error.[23]
[23] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1996) 162 CLR 24 at [39] per Mason J.
If the applicant’s application could properly be construed as raising a concern about whether he had been afforded procedural fairness, section 357A of the Migration Act 1958 (Cth) (“the Act”) states that
division 5, part 5 of the Act is taken to be “an exhaustive statement of the requirements of natural justice in relation to the matters it deals with.”
The tribunal acknowledged that the applicant had asked for more time before his application was determined to allow him to complete the
Job Ready Program and the remaining period of the employment experience required for a full skills assessment.[24] However, the tribunal correctly noted that even if the applicant completed this qualification, it could not “in any way alter the outcome of the review”.[25] The qualification is not a criterion for the purpose of satisfying clause 187.233. Even if the applicant had obtained the skills assessment, that would not have enabled the applicant to meet the requirements of clause 187.233 of schedule 2 of the Regulations.
[24] Paragraph [8] of the tribunal’s decision record dated 24 October 2017.
[25] Paragraph [18] of the tribunal’s decision record dated 24 October 2017.
I find that any claim by the applicant that he had been denied procedural fairness would not have arguable prospects of success.
Conclusion
For these reasons, not only am I satisfied that the applicant has not provided an adequate explanation for his non-attendance on 18August 2018, but more importantly, on the facts of this case, and given the concessions made by the applicant both before the tribunal and in this court, the applicant has failed to identify any grounds of review which have a reasonable prospect of success.
I therefore dismiss the applicant’s application for the reinstatement of his judicial review application and order that the applicant pay the Minister’s costs fixed in the sum of $2,270.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 1 March 2019
0
5
4