Singh v Minister for Immigration and Border Protection
[2018] FCA 1261
•23 August 2018
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2018] FCA 1261
Appeal from: Application for leave to appeal: Singh v Minister for Immigration and Border Protection [2017] FCCA 1961 File number: NSD 1513 of 2017 Judge: MARKOVIC J Date of judgment: 23 August 2018 Catchwords: MIGRATION – application for leave to appeal decision of the Federal Circuit Court of Australia – application dismissed. Legislation: Federal Court of Australia Act 1976 (Cth) S 24(1A)
Migration Act 1958 (Cth) ss 360, 360A, 362B
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Rawson Finances Pty Ltd v Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Date of hearing: 2 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: Mr F Santisi Solicitor for the Applicant: Michael Vassili Barristers and Solicitors Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 1513 of 2017 BETWEEN: SANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
23 AUGUST 2018
THE COURT ORDERS THAT:
1.The application for leave to appeal filed on 1 September 2017 be dismissed.
2.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an application for leave to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing the applicant's application for judicial review of a decision of the second respondent (Tribunal) pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCRules): Singh v Minister for Immigration and Border Protection [2017] FCCA 1961 (Singh). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant a Skilled (Residence) (Class VB) visa (Visa).
The order dismissing the proceeding in the Federal Circuit Court was interlocutory: see r 44.12(2) of the FCC Rules. Therefore the applicant requires leave to appeal from the orders made in that court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
BACKGROUND
On 29 June 2010 the applicant applied for the Visa.
The subclass relevant to the Visa was Subclass 886. This meant that the applicant was required to satisfy the requirements of cl 886.213 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) which required that "[t]he applicant has competent English". Regulation 1.15C set out the meaning of “competent English”. At the relevant time it provided:
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”
On 30 October 2015 a delegate of the Minister refused to grant the Visa. The delegate was not satisfied that the applicant had competent English and thus found that he had not met the requirements of cl 886.213.
On 12 November 2015 the applicant applied to the Tribunal for review of the delegate's decision.
On 24 February 2017, by letter sent by email to the applicant's migration agent, the Tribunal invited the applicant to attend a hearing on 20 April 2017 at 9.30 am which was to be conducted by telephone as the applicant resided in Canberra and the Tribunal was located in Sydney (Hearing Invitation). The Hearing Invitation asked the applicant to confirm that the mobile telephone number he had previously provided to the Tribunal was his preferred number. It also informed the applicant that he should be available for a period of up to two hours from the scheduled starting time of the hearing.
On 24 February 2017 by email sent at 2.43 pm the applicant's migration agent responded to the Hearing Invitation advising that the applicant had booked an IELTS test for 4 March 2017 and confirming that the mobile number referred to in the Hearing Invitation was "the right number".
On 11 and 19 April 2017 at 11.00 am the Tribunal sent SMS reminders to the applicant on the mobile number referred to in the Hearing Invitation in the following terms:
Reminder – Your AAT hearing is on 20/04/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
On 20 April 2017, the day of the scheduled hearing, the Tribunal attempted to contact the applicant on the mobile telephone number set out in the Hearing Invitation on four occasions between 9.18 am and 10.23 am. The applicant did not answer any of these calls, contact the Tribunal either before or on the day of the hearing to seek an adjournment of the hearing, nor contact the Tribunal prior to it making its decision to explain why he had not been available to take the calls.
As the applicant did not appear at the hearing the Tribunal decided to proceed to make a decision on the review.
TRIBUNAL DECISION
The Tribunal noted that:
(1)the applicant was represented in relation to the review by his registered migration agent;
(2)on 24 February 2017 the Tribunal invited the applicant to appear before it on 20 April 2017 to give evidence and present arguments;
(3)in the Hearing Invitation the Tribunal asked the applicant to provide evidence that he has competent English and requested that he confirm his mobile number for the purpose of conducting the hearing by conference call as the applicant resided in the Australian Capital Territory;
(4)the Hearing Invitation was sent to the applicant's authorised recipient at the email address provided to the Tribunal;
(5)the Tribunal received a response confirming it had the correct mobile telephone number and providing evidence that the applicant had booked to sit an IELTS test on 4 March 2017;
(6)at the time of the scheduled hearing the Tribunal attempted to phone the applicant four times between 9.18 am and 10.23 am using the mobile number provided with the review application and confirmed by the applicant as the correct number but the applicant did not answer his phone; and
(7)the applicant had not contacted the Tribunal seeking a postponement of the hearing or explaining why he did not answer his phone at the scheduled hearing time.
The Tribunal was satisfied that the applicant was invited to appear before it to give evidence and present arguments in accordance with s 360 of the Migration Act 1958 (Cth) (Act) and that the applicant was sent a notice setting out the date and time on which he was scheduled to appear pursuant to s 360A of the Act. The Tribunal was satisfied that the applicant received notice because it received a response to the Hearing Invitation on the same day that it was sent. The Tribunal also noted that the applicant was sent SMS reminders of the hearing date. The Tribunal noted that the applicant did not appear before it on the scheduled day, at the scheduled time of the hearing. At [9] of its decision record the Tribunal said:
Where an applicant is invited under section 360 to appear before the Tribunal and the applicant does not appear at the scheduled time, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it (section 362B). The applicant responded to the hearing invitation indicating that he would take part in the hearing by conference telephone but he did not answer his mobile phone. He has not sought a postponement of hearing. The Tribunal will therefore not use its discretion to reschedule the applicant’s appearance (subsection 362B(2)). The Tribunal will now proceed to make a decision on the review without taking further action to allow or enable the applicants to appear before it.
The Tribunal then turned to consider the application before it and concluded that the delegate's decision should be affirmed. In doing so, the Tribunal noted that the only issue was whether the applicant had competent English as required by cl 886.213 and referred to the definition of "competent English" included in reg 1.15C of the Regulations. The Tribunal also noted that the applicant had not provided evidence that he had competent English by the date of the primary decision and that he had not provided any further evidence to it demonstrating that he had the required English language proficiency.
The Tribunal thus found that the applicant had not demonstrated that he had competent English as defined in reg 1.15C and that it followed that he did not meet the requirements of cl 886.213 of Sch 2 to the Regulations and did not satisfy the criteria for the grant of the Visa.
THE FEDERAL CIRCUIT COURT PROCEEDING
The applicant raised a single ground of review in the Federal Circuit Court set out at [23] of Singh as follows:
1. That Department of Immigration and Border protection had refused my Skilled (Residence) (Class VB) Subclass 886 visa application. I lodged review application with Administrative Appeal Tribunal (AAT). AAT had affirmed the Department's decision to refuse the visa application. AAT has affirmed Department's decision (See attached Annexure A). I believe AAT made Judicial error which needs to be rectified.
Before the primary judge the applicant relied on his affidavit affirmed on 27 July 2017 (July Affidavit) which was also in evidence before me. In his affidavit the applicant relevantly said that:
(1)he was due to give evidence before the Tribunal on 20 April 2017 but that "he was sleeping at the time because [he] was sick" and that he "was unable to appear because [he] was experiencing migraine headaches, fatigue and dizziness";
(2)he called the Tribunal on 21 April 2017 "to advise them of [his] medical condition, however, they advised [him] that they could not find [his] record". A copy of an invoice for the applicant's mobile phone which covered the period 20-21 April 2017 was annexed to his affidavit;
(3)it was open to the Tribunal to reschedule his appearance or to "delay making a decision until [it] considered the reason for [his] non-appearance"; and
(4)in about July 2017 he was diagnosed as suffering from hyperthyroidism and severe iron deficiency which he said explained the symptoms he had been suffering. Copies of medical certificates dated 18 May 2017 and 23 and 26 July 2017 were annexed to the affidavit.
The primary judge noted that the issue before the court was whether the grounds of the application raised an arguable case for relief by the applicant. The primary judge referred in detail to the applicant's evidence noting that:
(a)all of the medical certificates relied on by the applicant post-dated the scheduled Tribunal hearing and none of them said anything about the applicant's capacity as at 20 April 2017 to phone the Tribunal or receive a call from the Tribunal to participate in the hearing: Singh at [39]-[47];
(b)the applicant's telephone account showed that he made two calls on 21 April 2017 at 4.10 pm and 4.18 pm to the Tribunal's general telephone number; and
(c)the evidence before the court was that the Tribunal made its decision on 20 April 2017 at 12.20 pm. Pursuant to ss 368(2) and 368(2A) of the Act a decision on the review is taken to have been made by the making of a written statement on the day and at the time the written statement is made, after which the Tribunal has no power to vary or revoke a decision: Singh at [48]-[50].
The primary judge found that on the applicant's own evidence, by the time he attempted to contact the Tribunal, it had no power to vary or revoke its decision. His Honour found that the Tribunal's decision was sent to the applicant by email to his authorised representative on 21 April 2017 at 2.18 pm and there was nothing in the applicant's evidence to say that his representative did not receive that correspondence at that time: Singh at [51]-[53].
The primary judge found that the applicant's ground lacked merit. His Honour noted that the applicant was invited to a hearing pursuant to s 360 of the Act; there was no evidence that indicated that the Tribunal did not comply with its statutory and regulatory requirements in giving the applicant notice of the hearing; when the applicant did not appear, the Tribunal exercised the discretion available to it pursuant to s 362B(1A)(a) of the Act to make a decision on the review without taking further action to enable the applicant to appear before it; and the capacity of the Tribunal to consider the exercise of the discretion to proceed in the absence of the applicant was enlivened: Singh at [59]-[62].
After noting that the exercise of the statutory discretion such as the one exercised by the Tribunal in the case before him had to be reasonable, the primary judge found that the Tribunal had "provided an 'intelligible justification' for the exercise of its discretion" and that "it was reasonably open to the Tribunal to proceed in the way it did": Singh at [63]-[67].
At [74] the primary judge said:
As to the Tribunal’s ultimate decision, it was clear that to be granted the visa, the applicant was required by the Regulations to provide evidence that he had “competent English”. The Tribunal’s finding that he had not done so, was reasonably open to it in the circumstances before it.
The primary judge concluded that there was no arguable case of jurisdictional error in the Tribunal's decision and dismissed the application pursuant to r 44.12 of the FCC Rules.
THE APPLICATION FOR LEAVE TO APPEAL
The Applicant raises the following two grounds in his draft notice of appeal accompanying his application for leave to appeal:
1.The primary judge erred by not recognizing that the Tribunal constructively failed to perform a review.
Particulars
The Tribunal failed to contact the appellant's authorised representative to determine why the appellant had not shown up. This simple step was a reasonable one to take in the circumstances. All correspondence should have been directed to the agent and not to the appellant.
2.The primary judge erred by taking into account an irrelevant consideration.
Particulars
a. The primary judge focused incorrectly on the missing specificity of the medical reports (detailed data on health of the applicant on April 20, 2017) rather than accepting them as being prima facie evidence that the client was not well during the relevant period.
b. The medical record of 18 May 2017 indicates that the appellant has "severe vitamin D, iron and b12 deficiencies all simultaneously" and then goes on to specify that the appellant "does complain of various such symptoms from time to time".
c. If the primary judge was concerned about the specificity of the report, the primary judge could have allowed the self-represented applicant an opportunity to seek a more detailed report without disadvantage to the Minister.
In supplementary submissions filed on 2 March 2018, just prior to the hearing of the application, and as developed orally at the hearing, the applicant raised a further ground, which I will refer to as ground three. That ground argued that the Tribunal’s power under s 362B to proceed to determine the matter was not enlivened because the Tribunal could not be satisfied that the applicant did not appear at the hearing.
In determining whether leave to appeal should be granted the Court should have regard to whether the primary judge's decision is attended with sufficient doubt to warrant its reconsideration; and presuming the decision is wrong, whether substantial injustice would be suffered by the applicant if leave to appeal were refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Decor). Given the use of the conjunctive “and”, the Decor test is cumulative and is not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139 at [5].
Having considered the proposed grounds of appeal, I am not persuaded that the primary judge’s decision is attended by sufficient doubt to warrant its reconsideration by this Court.
Ground one
By proposed ground one the applicant alleges that the primary judge erred by not finding that the Tribunal constructively failed to perform a review because it failed to contact his authorised representative to determine why the applicant had not shown up. The applicant supplemented this ground by reference to what he described as the primary judge’s failure to consider the vague nature of the notice and the fact that calls stopped at 10.23 am when he was requested to be available for a two hour period from 9.30 am until 11:30 am.
The applicant submitted that the primary judge erred because it was not open to the Tribunal to conclude that the applicant did not appear at the scheduled time because the time period had not been fully exhausted and because it failed to contact the applicant's migration agent before exercising its discretion under s 362B(1A)(a) of the Act. The applicant therefore submitted that the Tribunal's exercise of its discretion was legally unreasonable and that the primary judge ignored relevant matters and incorrectly found that the Tribunal's exercise of discretion was legally reasonable.
There is a legal presumption that a statutory power will be exercised reasonably: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [63] (per Hayne, Kiefel and Bell JJ). The parties were agreed on the principles to be applied in determining whether a statutory power has been exercised reasonably. It is clear that “there is an area within which a decision-maker has a genuinely free discretion”: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton) at [56] citing Li at [66]. The evaluation of whether a decision was made within permitted boundaries must be conducted by reference to the terms, scope and purpose of the relevant statute and is a task of characterisation: Stretton at [11]. On a review for unreasonableness the Court examines whether a reasonable tribunal could come to the decision actually made or the conclusion reached. That is, whether the decision was within the range of decisions that a reasonable tribunal could make: Stretton at [21]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] and [135].
The Tribunal's determination to proceed to make a decision on the review does not lack an "intelligible justification". The Tribunal exercised its discretion in the circumstances recorded in its decision record and as found by the primary judge. Simply because the Tribunal could have called the applicant's migration agent to determine why the applicant had not appeared or could have made additional calls beyond those made up to 10.23 am, as alleged by the applicant, does not make its exercise of the discretion to proceed to make a decision on the review without doing so unreasonable. The applicant’s migration agent, who was located in Sydney, did not state that he would be appearing, he only confirmed the applicant’s mobile phone number. Further, it is the applicant who must appear: see s 362B(1) of the Act. It is not evident how making additional calls to the applicant after 10.23 am would have affected the outcome. In the circumstances, including the matters set out at [7]-[10] above, the Tribunal's decision was within the range of decisions that could reasonably have been reached and the primary judge’s conclusion in that regard is not attended by sufficient doubt to warrant its reconsideration.
Ground Two
By this proposed ground the applicant alleges that the primary judge took into account an irrelevant consideration by incorrectly focusing "on the missing specificity of the medical reports … rather than accepting them as being prima facie evidence that the client was not well during the relevant period". The applicant also alleges that the primary judge "could have allowed the [applicant] an opportunity to seek a more detailed report".
The applicant submitted that the primary judge incorrectly observed that the three medical certificates he relied on said nothing about his health on 20 April 2017 or his capacity to have called the Tribunal to advise of his alleged ill health. The applicant further submitted that they were not certificates but reports which recorded his health historically and around the relevant time and that if he did not see the doctor on the day in question it would be difficult for the doctor to provide a report on that day. He contended that they were reports intended to inform the Federal Circuit Court generally about his health and what can occur and therefore it could not be said that the material before the Federal Circuit Court did not establish that the applicant was unfit to participate in the Tribunal hearing.
The applicant submitted that the real issue was that the primary judge concluded that the decision was open when in fact it was not open and that, by dealing with the medical issue, his Honour failed to conclude on the real issue that the decision to dismiss the review was unreasonable.
As submitted by the Minister this proposed ground is misconceived and does not identify or raise any sufficient doubt in the primary judge's reasons. There was no obligation on the primary judge to accept the medical certificates as prima facie evidence of the applicant's alleged ill health nor any obligation on the primary judge to give the applicant an opportunity to seek a more detailed report. Indeed the primary judge had adjourned the show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) on one occasion to permit the applicant to obtain further evidence which resulted in the filing of the July Affidavit annexing the medical certificates.
The primary judge made findings which were open to him in relation to the three medical certificates which the applicant relied on. There was no evidence before the primary judge to establish that the applicant was unfit to participate in the Tribunal hearing.
Ground Three
By this proposed ground the applicant alleges that the Tribunal could not be satisfied that he did not appear so as to enliven the discretion in s 362B. This ground was not raised before the primary judge.
The applicant submitted that there were any number of reasons why he might not have answered the Tribunal's calls, all of which should have been considered by the Tribunal. The applicant said that such reasons included: first, where a call is received and missed, if the number appears as private or in fact the recipient of the call can determine if the missed call was from the tribunal by reference to the telephone number; secondly, where the recipient of the call might be out of range, in particular in this case as the applicant was living in Canberra and thus some distance away; thirdly, the telephone could have been "playing up" on the day in question or out of battery; fourthly, there might have been telecommunication problems; and fifthly, the telephone might not have been answered for a number of other unspecified reasons.
The applicant submitted that, without further inquiry, the Tribunal was not entitled to assume that he had not appeared. He again contended that, in the circumstances, one of the things the Tribunal could have done was to contact his migration agent, which it did not do.
Section 362B of the Act applies if an applicant is invited under s 360 to appear before the tribunal but does not appear on the day on which, or at the time and place at which, the applicant is scheduled to appear: s 362B(1). Here, the applicant was invited to appear pursuant to s 360 of the Act. There was no dispute and, as the primary judge found at [60] of his reasons, there is no evidence to indicate that the Hearing Invitation did not meet the requirements of s 360A of the Act.
In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [34]-[35] the High Court of Australia relevantly said in relation to s 425 and s 426A(1) of the Act:
34 The consequence of failure to appear upon invitation under s 425 is spelled out in s 426A. This provides:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”
35 What is the content of the expression “does not appear” in para (b) of s 426A(1)? Certainly it is a jurisdictional fact upon which depends the occasion for the exercise of the decision-making power of the Tribunal given by the balance of the sub-section. …
Despite s 362B(1) being in slightly different terms, it is still the case that the question of whether or not the applicant appeared was a matter of jurisdictional fact for the primary judge to determine, which his Honour did. The applicant bears the onus of establishing the jurisdictional fact did not exist. He has failed to discharge that onus. The applicant simply did not put any admissible evidence before the primary judge, nor has he put any evidence before this Court, that would establish that the jurisdictional fact did not exist. Indeed the applicant’s evidence before the primary judge, was that he did not attend the hearing because he was asleep. I do not accept any of the various theories and suppositions that the applicant relies on to argue that the Tribunal could not have reached the necessary state of satisfaction to enliven the discretion in s 362B of the Act. None of those theories or suppositions establish that the applicant did or even could appear.
Other matters
In his supplementary submissions the applicant raised three additional matters. First, that he had been associated with Australia for a substantial period of time; secondly, that the application had been filed in the Tribunal in 2015 but was not dealt with until 2017 at which time it appeared to have been dealt with in some haste; and thirdly, his assertion that he had achieved the necessary English level by August 2017. None of these factors is relevant to the determination of this application which is guided by the principles set out at [26] above.
CONCLUSION
For those reasons, in my opinion, the primary judge’s reasons are not attended with sufficient doubt to warrant their reconsideration on appeal by this Court. The applicant’s application for leave to appeal should be dismissed and the applicant should pay the first respondent’s costs as agreed or taxed. I will make orders accordingly.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 23 August 2018
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