SINGH v Minister for Immigration and Anor (No.2)

[2018] FCCA 1348

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 1348

Catchwords:
MIGRATION – Administrative Appeals Tribunal – medical treatment (visitor) (class UB) visa – application dismissed for non-appearance – application to reinstate proceeding – criterion 3001 – visa application to be made within 28 days of cessation of last substantive visa – application made more than five years after cessation of last substantive visa – no prospect of success.

Legislation:

Migration Act 1958, ss. 347, 348, 353, 357A, 360, 362B, 363, 368
Migration Regulations 1994, subclass 602 of Schedule 2, criterion 3001 of Schedule 3

Applicant: ARASHDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 623 of 2017

Judgment of: Judge Riley

Hearing date: 3 May 2018

Date of last submission: 3 May 2018

Delivered at: Melbourne

Delivered on: 3 May 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent:	Emily Wilde
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Clayton Utz

ORDERS

1. The application in a case filed on 26 April 2018 seeking reinstatement of the proceeding filed on 28 March 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the application in a case filed on 26 April 2018 fixed in the sum of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 623 of 2017

ARASHDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 3 May 2018. The applicant filed an application for extension of time and leave to appeal on 11 May 2018. Chambers ordered a transcript of the reasons for judgment on 18 May 2018. Auscript provided the transcript of the reasons for judgment on 21 May 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 24 May 2018.

1. This is an application to reinstate a proceeding.  The substantive proceeding was an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The matter was listed for a show cause hearing on 17 April 2018.  The applicant did not attend on that occasion, and the application was dismissed for non-appearance.

2. Nine days later, on 26 April 2018, the applicant filed an application to reinstate the proceeding.  He said in his affidavit in support of the application to reinstate that:

   a)the hearing on 17 April 2018 was listed for 9.30am;

   b)he mistakenly thought the hearing was listed for 11.30am; and

   c)he arrived at court at about 11am.

3. In his oral submissions to the court today, the applicant said that he misplaced his original documents and arrived at the court at 11.30am, only to discover that his application had been dismissed.

4. The court noted that chambers had sent an email to the applicant on 15 March 2018 notifying him that the matter remained listed for hearing on 17 April 2018 at 9.30 am, but that the matter had been re-docketed to me rather than remaining in the docket of Judge Jones.  The applicant told the court that he did not read that email. The applicant did not take any issue with the email address to which the notice of change of judge was sent. 

5. The Minister said that he had sent to the applicant by email written submissions which included the date and time of hearing.  The Minister submitted that, even if the applicant had misplaced his hardcopy documents, he still would have had access to his email to check the date and time of the hearing.  That submission also applies with equal force to the email sent by chambers to the applicant.

6. It seems to me that the applicant’s explanation for his non-appearance on 17 April 2018 is inadequate.  While it is understandable that people can lose documents, it is not difficult to telephone the court to check important details such as the time of a hearing.  It is also to be expected that people will check their emails when they have given an email address to the court as a means by which they can be contacted.

7. In this case the delay in filing the reinstatement application was short, only nine days. Delay does not weigh heavily in the balance. 

8. The Minister conceded that he would suffer no significant prejudice by the application being reinstated.

9. In relation to the prospects of success, the applicant relied on his application and also on written submissions that he filed on 31 October 2017, possibly with the assistance of a lawyer. The applicant did not wish to say anything to the court today to supplement the grounds in the application or the written submissions. 

10. The first ground in the application filed on 28 March 2017 is as follows:

    Given that the Applicant has communicated his intention to appear at the hearing, the Tribunal did not act reasonably in exercising its discretion under s 362B of the Migration Act 1958 (Cth) by proceeding to determine the Applicant’s application in his absence.

11. This ground concerns a response to a hearing invitation that the applicant sent to the Tribunal on or around 7 February 2017.  It is in the court book at page 64.  It indicated that:

    a)the applicant would attend the Tribunal hearing;

    b)he needed a Punjabi interpreter; and

    c)he did not wish the Tribunal to take oral evidence from anyone else. 

12. The applicant did not appear at the Tribunal hearing.  The court book shows that, as well as the applicant obviously receiving the hearing invitation, there were two SMS messages sent by the Tribunal to the applicant, one on 24 February 2017 and one on 2 March 2017, reminding him that he had a hearing before the Tribunal on 3 March 2017.

13. The Tribunal noted that the applicant did not attend the hearing. The Tribunal did not give reasons for deciding under s.362B of the Migration Act 1958 (“the Act”) to finally determine the matter. However, in the circumstances of this case, it seems to me that it was open to the Tribunal to proceed in that way and that no reasons were required. For the reasons explained below, the Tribunal made the only decision it could have made.

14. Moreover, it cannot be said that the Tribunal did not act reasonably in determining the matter in the applicant’s absence when the applicant had indicated that he would attend.  He had been sent two reminders and simply did not appear on the day.  There is no indication that the applicant communicated to the Tribunal that he needed an adjournment for any reason, such as illness or incapacity.  I am not satisfied that ground 1 has any prospect of success.

15. Ground 2 in the application filed on 28 March 2017 is that:

    The Tribunal failed to invite the Applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review. As a result the Tribunal did not comply with its obligations under s 360(1) of the Migration Act 1958 (Cth).

16. This ground is patently false.  The court book contains the hearing invitation at page 53.  It was dated 6 February 2017 and invited the applicant to attend a hearing on 3 March 2017. The applicant, in fact, as I have mentioned, responded to the hearing invitation. There is no substance to this ground.  It has no prospect of success.

17. Ground 3 in the application filed on 28 March 2017 is as follows:

    In the light of the foregoing the Tribunal fell into jurisdictional error by failing to comply with Section 357A of the Migration Act (Cth).

18. Section 357A of the Act is an exhaustive statement of the natural justice hearing rule. Section 357A of the Act was not breached in this case because the Tribunal gave the applicant an opportunity to appear before it by inviting him to a hearing. The applicant chose not to avail himself of that opportunity. Moreover, s.362B of the Act provided a clear legislative mandate for the course followed by the Tribunal. The legislation, in effect, deprived the applicant of any further opportunity to appear before the Tribunal as he failed to appear. Ground 3 does not have any prospect of success.

19. Ground 4 in the application filed on 28 March 2017 is as follows:

    The Tribunal has breached Sections 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by is failure to act in a way that is fair and just.

20. Section 357A has already been discussed. Section 348 of the Act provided that the Tribunal is obliged to review a decision if an application is properly made to it. The Tribunal did review the decision. It set out its reasons for not acceding to the application.

21. Section 353 of the Act provided that the Tribunal is not bound by technicalities, legal forms or rules of evidence and is required to act according to the substantial justice and merits of the case. It seems to me that the Tribunal in this case complied with that requirement.

22. The Tribunal noted that, in this case, the applicant had applied for a subclass 602 medical treatment visa. The Tribunal said the issue in the case was whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994 (“the Regulations”).  One of those criteria is criterion 3001, which required that the application for a medical treatment visa be made within 28 days of the relevant day.  The relevant day was defined as the last day on which the applicant held a substantive visa.  In the present case the applicant applied for the visa on 5 December 2016.  His last substantive visa, which was a higher education subclass 573 visa, ceased on 15 March 2011. That was about six years before the applicant applied for the medical treatment visa.  Consequently the applicant did not meet criterion 3001. Ground 4 does not have a reasonable prospect of success.

23. Ground 5 in the application filed on 28 March 2017 is that:

    The Tribunal has breached Section 368 of the Migration Act by its failing to provide proper reasons for its decision and the findings on material questions of fact on which the decision was made.

24. The Tribunal set out the material issue, which was that the application was made well in excess of 28 days from the relevant day.  That was sufficient.  Ground 5 is not reasonably arguable.

25. Ground 6 in the application filed on 28 March 2017 is that:

    The Tribunal failed to properly consider all the Schedule 3 regulations of the Migration Regulations 1994 and enquire if the applicant had any compelling reasons for the grant of the visa. 

26. The Tribunal was not required to consider all of the Schedule 3 criteria. Clause 602.213(3) of Schedule 2 of the Regulations provided that:

    Subclauses (4) and (5) of cl.602.213 of the Regulations apply if:

    (a) the applicant was in Australia at the time of the application; and

    (b) the applicant did not hold a substantive temporary visa at that time; and

    (c) the requirements described in subclause 602.212(6) are not met in relation to the applicant.

27. In this case, the applicant was in Australia at the time of the application and he did not hold a substantive visa at that time. The applicant did not meet the requirements in cl.602.212(6) of Schedule 2 of the Regulations because he had not turned 50, as required by subparagraph 602.212(6)(b), at the time that he made the application. He was only 36 at that time. Therefore, cl.602.213(4) and (5) of Schedule 2 of the Regulations applied.

28. Subclause 602.213(4) of Schedule 2 of the Regulations provided that:

    The last substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

    The applicant’s last substantive visa was not such a visa.

29. However, the applicant also needed to satisfy subclause 602.213(5) of Schedule 2 of the Regulations, which provided that:

    The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

    That meant that the applicant had to satisfy each of those criteria.  If he did not satisfy any one of them, he could not qualify for the medical treatment visa. 

30. Criterion 3001(1) of Schedule 3 of the Regulations required that:

    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

31. Criterion 3001(2) of Schedule 3 of the Regulations relevantly provided that:

    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    …

    (c) if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; …

    …

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    …

32. The applicant last held a substantive visa on 15 March 2011. Consequently, when he applied for the visa on 5 December 2016, it was much more than 28 days after his last substantive visa had ceased. Consequently, the applicant did not satisfy criterion 3001 and it was unnecessary for the Tribunal to consider criteria 3003, 3004 or 3005 of Schedule 3 of the Regulations.

33. Criterion 3001 of Schedule 3 of the Regulations did not give any discretion. It did not provide any scope for the Tribunal to consider whether there were compelling reasons for the grant of the visa.

34. Consequently, ground 6 in the application has no reasonable prospect of success.

35. Ground 7 in the application filed on 28 March 2017 is that:

    The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it. 

36. The Tribunal did not have to consider the totality of the evidence before it.  Once it reached the conclusion that the applicant did not satisfy a mandatory criterion, it was unnecessary for the Tribunal to consider any other material.  Consequently, ground 7 has no reasonable prospect of success.

37. The applicant swore an affidavit in support of his application that merely attached the Tribunal’s decision. 

38. However, the applicant did file written submissions on 31 October 2017 that contained some additional arguments. 

39. The first argument, at paragraph 2.1, is that the Tribunal made a jurisdictional error:

    … by reason of its failure to properly consider the applicant’s ‘Response to the hearing invitation’ and adjourn the hearing pursuant to s.363 of the Migration Act 1958 (Cth) (the Act), instead reaching a finding in the applicant’s absence.

40. This ground has already been considered. The Tribunal was within power in proceeding to determine the matter under s.362B of the Act. This argument does not have a reasonable prospect of success.

41. The applicant then said in paragraph 2.2 of his submissions that:

    … the Tribunal’s decision was affected by jurisdictional error because of its failure to exercise its discretion reasonably and its failure to consider and determine if there were any compelling circumstances within the meaning of the Act and Migration Regulations 1994 was unreasonable and plainly unjust.

42. As discussed, the Tribunal did not have a discretion.  Criterion 3001 did not permit the Tribunal to consider compelling circumstances.  The criterion simply needed to be met.  Therefore paragraph 2.2 of the applicant’s submissions does not raise a reasonably arguable ground.

43. Paragraph 2.3 of the applicant’s submissions said that the Tribunal made a jurisdictional error:

    …by its failure to provide procedural fairness and act in a way that was fair and just as required by section 357A of the Act.

44. However, as discussed, the applicant was given the opportunity to appear before the Tribunal but chose not to. There is nothing in the Tribunal’s procedure in this case that could be described as unfair, given the provisions of the Act.

45. In relation to s.357A of the Act, the applicant said that the Tribunal failed to come to a conclusion that was fair and just. However, in view of criterion 3001 of Schedule 3 of the Regulations, the only decision that the Tribunal could have come to was the one that it did.

46. The applicant said in paragraph 5 of his submissions:

    The Tribunal erred in its finding that the applicant indicated that he would attend the hearing.

47. The applicant referred to the response to hearing invitation at CB59.  The applicant said that the “yes” and “no” boxes under the question:

    Will you take part in the hearing scheduled for 3 March 2017?

    were not ticked.  However, the applicant referred to the wrong pages in the court book.  The response to hearing invitation at CB59 is blank.  That was the copy the Tribunal sent to the applicant.  The response to hearing invitation at CB67, and following, is the one that the applicant completed and returned to the Tribunal. It clearly indicated that the applicant would attend the hearing.

48. The applicant also said that he had not ticked either “yes” or “no” to the requirement for an interpreter. However, the document at CB67 shows that the applicant clearly ticked the box indicating that he did require an interpreter. 

49. The applicant’s contention was that, because he had not indicated that he would be attending the hearing on 3 March 2017, the Tribunal ought to have adjourned the hearing pursuant to s.363 of the Act. The applicant did not say that he asked for an adjournment. There is no evidence that he did. In those circumstances, there was no obligation on the Tribunal to grant one. Moreover, the balance of this argument completely misapprehends the facts of the case. The applicant did in fact indicate that he would attend the hearing.

50. The applicant then said in paragraph 8 of his submissions that the Tribunal failed to consider the applicant’s health, and whether there were any compelling circumstances that would require it to exercise its discretion. The applicant said, further, that the Tribunal’s exercise of discretion was unreasonable and beyond power. However, as discussed, the Tribunal in this case had no discretion. Criterion 3001 of Schedule 3 of the Regulations simply had to be met. It was not a criterion that allowed for the consideration of compelling circumstances. These arguments have no prospect of success.

51. The applicant, finally, said that the Tribunal was in breach of s.357A of the Act by its failure to provide the applicant with an opportunity to be heard. However, as discussed, the Tribunal did give the applicant an opportunity to be heard. It invited him to a hearing which he said he would attend. It sent him to two SMS messages reminding him of the hearing. However, the applicant chose not to attend. It seems to me that this ground has no prospect of success.

52. It is abundantly clear that the decision the Tribunal came to was the only decision that it could have come to. In those circumstances, even if the Tribunal had made some jurisdictional error, it would be futile to remit the matter to the Tribunal.

53. There would be no prejudice to the Minister in reinstating the application filed on 23 March 2017, and the delay in bringing the reinstatement application was short. However, taking into account the applicant’s inadequate explanation for his non-appearance on 17 April 2018, the negligible prospects of success of the applicant’s grounds, and the futility of remitting the matter to the Tribunal, it is clear that the application for reinstatement should be dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 24 May 2018