Singh v Minister for Immigration and Anor

[2020] FCCA 1958

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1958

Catchwords:
MIGRATION – Administrative Appeals Tribunal – a Partner (Temporary) (Class UK) Subclass 820 visa – whether the Tribunal’s decision to dismiss the applicant’s application for non-appearance was infected with jurisdictional error – whether the applicant was denied procedural fairness – wholly unparticularised grounds of review – no jurisdictional error established – application dismissed with costs.  

Legislation:
Migration Act 1958, ss.360, 360A, 362B(1A)(b), 362B(1E), 375A, 379C, 476(2)(a)

Applicant: MANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2490 of 2018

Judgment of: Judge Blake

Hearing date: 14 July 2020

Date of last submission: 14 July 2020

Delivered at: Melbourne

Delivered on: 14 July 2020

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondents: Ms Roeger

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The Application filed on 19 August 2018 be dismissed and such order becomes operative from the date written reasons are published.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2490 of 2016

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

Introduction

1. This matter has been listed by me, now, for ex tempore judgment.  At the outset, I indicate that I heard this matter earlier today.  At that time, Ms Roeger and the applicant were both present, and I had heard arguments from each of them in relation to the application presently before the Court.  At the conclusion of hearing argument, I indicated to Mr Singh and Ms Roeger that I would be delivering ex tempore reasons and judgement at 3.15pm today.  The applicant, Mr Singh, is aware of that, but has chosen not to appear and hear these reasons for decision.  I now proceed to deliver my reasons. 

2. This is an application for a review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 23 July 2018.  In that decision the Tribunal confirmed a decision of a delegate of the Minister, to dismiss the applicant’s application to review a decision not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (‘visa’). 

3. The applicant in this matter is an Indian national.  He arrived in Australia in 2008 as the holder of a valid Student (Temporary) (Class TU) visa. He applied for the visa the subject of these proceedings on 28 July 2014. 

4. On 17 February 2017 a delegate of the Minister refused to grant the applicant the visa.  The applicant subsequently applied to the Tribunal for review of this decision on 7 March 2017. 

5. On 4 June 2018 the applicant was invited to attend the hearing before the Tribunal on 4 July 2018.  The invitation was sent to the email address nominated by the applicant in his application. The applicant ultimately did not attend the hearing on 4 July 2018 before the Tribunal. 

6. Consequently, the Tribunal dismissed the application for review, pursuant to section 362B(1A)(b) the Migration Act1958 (‘Act’) without further consideration of the application.  I refer to this in these reasons as the ‘dismissal decision’.  Relevantly, the dismissal decision noted the following: 

   a)First, the invitation sent to the applicant on 4 June 2018 had stated that a failure to appear before the Tribunal may result in the application being dismissed without further review or consideration;

   b)Second, that the applicant was then sent two separate SMS reminders of the hearing. 

   c)Third, that no request for an adjournment had been received by the Tribunal; and

   d)Fourth that no satisfactory reason was given for the applicant’s non-appearance. 

7. A letter notifying the applicant of the dismissal decision was sent to him on 6 July 2018; to the same email address nominated by him on his application.  Attached to the letter was, among other things, a copy of the Tribunal’s decision and an information statement advising him that he could make an application for reinstatement, if he wished to do so, by 20 July 2018. 

8. No application for reinstatement was ultimately made by the applicant. 

9. The dismissal decision was subsequently confirmed by the Tribunal on 23 July 2019 pursuant to section 362B(1E) of the Act. I refer to this decision in these reasons as the ‘confirmation decision’. The confirmation decision is the decision that is the subject of the current application for review before me.

10. The applicant filed his application for review in this Court and an affidavit in support on 19 August 2018.  The applicant was, at that time, and remains to this day, unrepresented. 

11. Pursuant to orders made by this Court, the Minister filed written submissions and a list of authorities on 30 June 2020. No written submission were filed by the applicant. 

12. There are five grounds of review set out in the application 

    ‘I Mandeep Singh born on 28/12/1988 a citizen of India Passport Number G3752030, declare that I made an application fora Partner (Resident) (Class BS) (Subclass 801) and Partner  (Temporary) (Class UK) (subclass 820) visa on 28th July 2014. The application for Partner visa was refused by the Department of Home Affairs (DHA) on 17th Feb 2017. The delegate from DHA refused the visa application for not meeting the clause 801.221 in Schedule 2 of the Migration Regulations.

    2. I then referred the matter to Administrative Tribunal (AAT) in the hope of availing a favourable decision on my Partner visa application. However, the Tribunal also affirmed the decision on 23rd July 2018 to not to grant me Partner (Temporary) (Class UK) (Subclass 820) visa. The reasoning for the decision affirmed by the Tribunal was different to that given by the delegate from the DHA. The Tribunal concluded that the review applicant did not appear before the Tribunal to give evidence and present arguments at the time and date of the scheduling hearing. As I did not apply for the reinstatement of the application within the 14 days period, the Tribunal confirmed to dismiss the application.

    3. Both the DIBP delegate and the AAT have made decisions on the application without evaluating full extent of my personal circumstances. The DIBP refused my partner visa (Subclass 820 and 801) for not meeting criterion 3001 under cl 801.221. In considering compelling circumstances for the waiver of criterion 3001, the DIBP delegate has not reasonable weightage to hardship on the sponsoring partner if I was to depart Australia. The sponsoring partner is financially dependent on me and would suffer significant hardship upon my departure from Australia. The delegate from the DIBP have failed to identify this in assessing my partner visa application.

    4. In relation to the decision affirmed by the AAT, I was suffering from medical and health issues during that period which prevented me from attending the allocated hearing date or respond to the reinstatement of the application within the given time frame. The tribunal have failed to consider my medical condition and made a decision on my application without giving me fair opportunity to represent my case as allowed under Natural Justice System.

    5. I believe that the tribunal fell into jurisdictional error by acting unreasonably while considering my visa application. Therefore, I am now seeking intervention from the Honourable Federal Circuit Court as I believe that there was a jurisdiction error in the decision.’ (emphasis in original)

13. The applicant also filed an affidavit in support of his application with the Court.  The affidavit comprises five short paragraphs. 

    ‘1. I am a citizen of India. My Passport Number is G3752030 and Date of Birth is 28/12/1988.

    2. I came to Australia on a Student visa on 12th July 2008 and remained on Student visa until it ceased on 11 th Sept, 2010. I currently hold bridging C visa (subclass 030) which was granted in association with the partner application. I had entered into a relationship with an Australian Citizen on 08 March 2013 and subsequently got married on 14 July 2014. Based on the relationship with an Australian citizen, I lodged an combined application for combined Partner (Temporary) (Class UK) (Subclass 820) and Partner (Resident) (Class BS) (Subclass 801) visa on 28th July 2014 which was refused then by Department of Immigration and Border Protection (DIBP), now known as Department of Home Affairs (DHA), on 17th Feb, 2017. DIBP delegate affirmed the decision to not grant me Partner (Subclass 820 & 801) for not meeting the criterion set out in schedule 2 clause 820.221 of the Migration Regulations. DIBP delegate were not satisfied that compelling grounds existed in my application for the waiver of criterion 3001 as required under cl 820.221.

    3. I then made a review application to the Administrative Appeals Tribunal with an expectation that a favourable decision will be made as I was in a genuine relationship with the sponsor at the time of application and met the criteria for the grant of visa. However, the AA T dismissed my application on 23 July 2018 for not attending the scheduled hearing. I was unable to attend the hearing due to medical reasons.

    4. I believe both DIBP and AAT have not assessed the visa application fairly as they have not considered the relevant circumstances pertaining to my relationship with the sponsoring partner and my medical condition on the day of AA T hearing.

    5. For these reasons set out in my application, I believe that jurisdictional error has been made while making a decision on my application and I seek judicial review of the application. I request honourable court to review my case to provide me justice.’

14. In addition to these matters, the applicant appeared before me today and made brief submissions in support of what I have set out above. 

15. I observe that the applicant does not contend that he never received the invitations from the Tribunal to appear at the hearing. The evidence before me is that the invitations were sent to the email address nominated by the applicant, and I accept that evidence.  I am fortified in my view that the applicant received communications from the Tribunal, including the information about reinstatement, given his statements today from the bar table he was aware of what was going on, including his right to seek reinstatement 14 days from the date of the dismissal decision. 

16. Having observed that, I now turn to deal with each of the grounds of review. 

17. Grounds 1 and 2 are not proper grounds of review.  They merely recite the history of the matter. They do not give rise, on their face or otherwise, to any jurisdictional error of the Tribunal. 

18. Ground 3 takes issue with a decision of the delegate. This Court does not have jurisdiction in relation to the decision of the delegate – that is, jurisdiction to review it. See section 476(2)(a) of the Act. This aspect of the ground is therefore incompetent and cannot be taken any further by me.

19. The remaining matters with which the applicant takes issue, and that can fairly be said to arise from the grounds of review in the material in submissions before me are these: 

    a)that the Tribunal made its decision without considering all of the applicant’s personal circumstances, including circumstances pertaining to his relationship with his sponsor and partner;

    b)the Tribunal proceeding to deal with matters before it and failing to consider that the applicant was suffering from medical and health issues; the Tribunal thereby not affording the applicant procedural fairness;  and

    c)the Tribunal, in a general sense, acting unreasonably. 

20. It will be apparent from the background set out above that the Tribunal dealt with the application under section 362B(1A)(b) of the Act. Whether this power was enlivened for the Tribunal to exercise depends on whether subsection (1) of subsection 362B enlivened.

21. Section 362B is enlivened where an applicant is invited to appear before the Tribunal under section 360 of the Act, but relevantly, does not appear.

22. An invitation under section 360 of the Act is required to comply with the requirements set out in that section, and also the requirements in section 360A of the Act.

23. The invitation to appear at the hearing is set out at Court Book 156. I have reviewed that invitation. It appears to me that the invitation complies with the requirements for an invitation set out in section 360, and section 360A of the Act. Among other things, the invitation specifies the time and the place of hearing, and gives more than the minimum notice period required. Importantly also, the invitation was sent to the email address provided by the applicant and specified the consequence of non-attendance at the Tribunal hearing.

24. There is no dispute that the applicant did not appear at the hearing before the Tribunal.  As noted above, the applicant has not said in his material that he did not receive the information.  I am therefore satisfied that the Tribunal’s discretion to dismiss the application was enlivened once the applicant failed to appear. 

25. The applicant’s answer to his non-appearance appears to be that he was prevented from attending the hearing before the Tribunal for medical or health reasons.  He said today he has a medical certificate for that day.  He has not provided that to the Court, despite having the opportunity to file submissions prior to today’s hearing.  Nor did he provide any evidence of that nature to the Tribunal, either prior to the dismissal decision on 4 July 2018, or after the dismissal decision on 4 July 2018, but before the confirmation decision of 23 July 2018.

26. In circumstances where the applicant did not provide any evidence as to the medical issues preventing his appearance, it was open to the Tribunal to proceed to deal with the matter and exercise a discretion to dismiss the application.  Proceeding in that manner was not, in my view, on the material before me, an unreasonable exercise of the Tribunal’s discretion. 

27. Once the dismissal decision was made on 4 July 2018, the Tribunal, as it was required to do, provided a copy of the decision to the applicant. By virtue of section 379C of the Act, the applicant was deemed to have received the dismissal decision, or notification of it, on that date. The applicant then had 14 days, pursuant to section 362B(1B) of the Act, to seek reinstatement of his application. From what he said today, I am satisfied he was aware of this opportunity at the time. Despite this, he never took that step. This failure to take that step had the consequence that the Tribunal was required to confirm the decision to dismiss the application. See section 362B(1E) of the Act.

28. In light of all of the above, it appears to me that the Tribunal has acted in the manner consistent with the requirements set out in the Act. The applicant was sent the proper invitation. His failure to appear enlivened the discretion that was exercised reasonably by the Tribunal to dismiss the application. He then received notice of the decision, took no steps to seek reinstatement. This produced the consequence that the Tribunal was required to confirm the dismissal decision.

29. The applicant makes a generalised claim that the Tribunal has acted unreasonably.  There are no particulars to the claim, and in my view it cannot be sustained on the material before me. An unparticularised claim is one that ought rightfully be dismissed.  It might be that the applicant argues that the failure of the Tribunal to consider his personal circumstances, and those pertaining to his sponsoring partner, was unreasonable, or a denial of procedural fairness.  In my view, these arguments are misplaced, and cannot be sustained. To the extent the applicant says those matters were not considered, or that he was denied procedural fairness, that was a consequence of his own failure to appear at the Tribunal hearing.

30. There are two final matters to consider.  First, today before me, when I asked the applicant what he wanted me to do, he indicated that he wanted time to get his documents together, among other things.  I attempted to clarify with him what that meant, and asked whether he wanted me to send the matter to the Tribunal.  He confirmed this was what he wanted.  I did not understand the applicant to be asking me to adjourn today’s hearing to enable him to better prepare.  Had he made such a request, however, I would have refused it.  This application has been in this Court now for nearly two years.  The applicant has had ample opportunity to prepare for the day, that includes the opportunity to brief lawyers, or seek advice from lawyers, and to file submissions.  He did not take any of those steps, as at today’s date, and in those circumstances I would not have granted an adjournment.

31. Finally, the Minister drew to my attention the fact that the Tribunal had before it non-disclosure certificates, purportedly issued under section 375A of the Act. The Minister says that the certificates are likely invalid, though were nevertheless before the Tribunal when it proceeded to deal with the application, and that there is no evidence the Tribunal ever disclosed the existence of the certificates to the applicant. This failure to disclose the existence of the certificate to the applicant does not, in my view, give rise to any jurisdictional error. That is because any failure to disclose the certificates was not material to the ultimate outcome.

32. In this matter, as I have outlined above, the dismissal decision and the confirmation decision arose because of the applicant’s non-appearance at the hearing.  There was not any consideration by the Tribunal of the substantive issues relating to the applicant’s application.  The documents covered by the certificates were not relevant to issues to do with the applicant’s non-appearance, and it was the applicant’s non-appearance that ultimately led to the outcome the applicant now complains about.

33. For all of these reasons, I am satisfied there has not been any jurisdictional error.  I will dismiss the application for review, and I award costs to the Minister.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date:         17 July 2020