Singha v Minister for Immigration

[2018] FCCA 618

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGHA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 618

Catchwords:
MIGRATION – Application for reinstatement – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s compelling circumstances and evidence – whether the Tribunal failed to afford the applicant procedural fairness – whether to exercise discretion to set aside orders – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)

Migration Act 1958 (Cth), s.375A

Migration Regulations 1994 (Cth), cls.602.212, 602.213 of sch.2, criterion 3001 of sch.3

Applicant: DIPAK SINGHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 463 of 2017

Judgment of: Judge Smith

Hearing date: 24 January 2018

Date of Last Submission: 24 January 2018

Delivered at: Sydney

Delivered on: 24 January 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S He, Mills Oakley

ORDERS

1. The application in a case filed on 20 December 2017 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 463 of 2017

DIPAK SINGHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is not a citizen of Australia.  There is some confusion in the evidence about which country he is a citizen of and, indeed, what his exact identity is.  Nevertheless it is clear that he travelled to Australia on a passport in the name of Dipak Singha which is the name he bears in this application.  When he entered Australia on 22 August 2013, the applicant held a visitor visa in that name which expired on 22 September 2013.  He subsequently applied for a protection visa but that application was unsuccessful. 

2. On 24 June 2016, the applicant applied for a Medical Treatment (Visitor) (Class UB) visa.  That application was refused by a delegate of the Minister.  The applicant applied to the Administrative Appeals Tribunal for review of that decision.  On 25 January 2017, the Tribunal made the decision to affirm the decision of the delegate.  I will return to the reasons of the Tribunal’s decision in due course.  The applicant then applied to this Court for judicial review of the Tribunal’s decision.  That matter was subject to a number of directions and ultimately set down for hearing on 16 October 2017.

3. The applicant did not attend the hearing at that time and the application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). On 16 November 2017, the applicant applied for an order reinstating the matter pursuant to r.16.05(2) of the Rules. That matter was listed before the Court on 5 December 2017. However, the applicant did not attend at that time, and once again, that application was dismissed pursuant to r.13.03C(1)(c).

4. On 20 December 2017, the applicant filed another application for reinstatement, this time seeking to set aside the order made on 5 December 2017. In effect, what the applicant wants to do is to set aside the order made in his absence on 16 October 2017. The applicant attended the matter today and has made submissions in support of his application. This Court has power under r.16.05(2) of the Rules to set aside a judgment or order after it has been entered if it was made in the absence of a party.

5. This power, and similar powers in other courts, have been considered on many occasions.  The power clearly exists in order to afford procedural fairness to an applicant.  Generally speaking, there are three matters which are relevant to the exercise of the power:  first, there is a reasonable explanation for the applicant’s absence at the trial or hearing; secondly, there are material arguments available to the applicant that might reasonably lead to the making of an order different to the order sought to be set aside; and thirdly, there is no prejudice to the party with the benefit of the orders that cannot be adequately addressed by the Court.

6. In respect of the third matter, the only real prejudice to the Minister in this case would be one concerning costs and that can be readily dealt with by an order.  For that reason, it is not a matter which would weigh against the applicant in this application. 

7. The applicant says that he did not attend the hearing on 16 October 2017 because he was sick.  In his affidavit, the applicant says that he had “been suffering from several medical conditions”.  He does not indicate precisely what those conditions were.  The applicant does say that he “was too sick to walk and was not in a position to attend the hearing” and that his leg had “swelled up and was under treatment”. 

8. The applicant said that he was advised by his doctor that he would be unfit for any activities, even to attend the Court from 11 October 2017 to 11 November 2017; that he had been suffering from depression due to problems with his wife; and that family issues had contributed to a great extent to the deterioration of his health.  In addition, the applicant said that his mental state did not allow him to concentrate on day-to-day activities. 

9. Before the Court is a medical certificate dated 11 October 2017 in the following terms (without alteration):

   Mr Champak Barua[1] (Dipak Singha) has a medical condition and will be unfit to attend court from 11/10/2017 to 11/11/17 inclusive. 

   Mr Champak Barua will be suitable for normal occupation from 12th November 2017

   Please do not hesitate to contact me, if needed.

   [1]I note this is one of the other names used by the applicant.

   …

10. That medical certificate is entirely unsatisfactory.  It does not explain what the medical condition which the applicant suffers is, or why that means that he was unable to attend Court for the period of a month.  It may be noted that the medical certificate is dated 11 October 2017, a date upon which the certificate says that the applicant was unable to attend Court.  This indicates, however, that the applicant was able to attend a medical centre and brings into question the validity of the opinion that the applicant would not be able to attend Court.

11. It is not clear what expertise or experience the doctor was bringing to bear in determining that the applicant was unable to attend Court because of the said medical condition.  It does not state, for example, that the applicant or that the doctor was aware of what was required in order for an appearance at Court.  Clearly enough, the applicant was able to travel at least some distance.  Nevertheless, I accept that during the period 11 October 2017 to 11 November 2017, the applicant had a swollen leg and was under treatment.  I do not accept that he was too sick to walk.  I do not accept that the other conditions referred to in his affidavit presented a sufficiently reasonable excuse for him not to have attended the hearing on 16 October 2017.

12. Those findings weigh, to some extent, in favour of the applicant, and to some extent against him.  In those circumstances, it appears to me that the critical factor is whether there is sufficient merit in the substantive application to warrant an order setting aside the order made on 16 October 2017.  In his submission today the applicant said, in respect of the Tribunal’s decision, that his complaint was that he was sick and so why did the Tribunal not accept his visa application.  In his affidavit, the applicant sets out two grounds.

13. First is that the Tribunal failed to consider the compelling reasons for waiving criterion 3001 of the Migration Regulations 1994 (Cth); and secondly, it did not consider his evidence and reasons for applying for a medical treatment visa. The grounds in the application, which appear to have been drafted by a lawyer, are more detailed and include, as well as the matters raised by the applicant, denial of procedural fairness, failure to act in the applicant’s best interests, failure to consider all the circumstances of the case, and error of law in not advising the applicant about a certificate purportedly issued under s.375A of the Migration Act 1958 (Cth) (s.375A certificate).

14. The difficulty with all of those grounds and complaint is that the applicant was never in a position to satisfy the criteria for the grant of the visa which he had sought.  The Tribunal explained the operation of the relevant criteria in [14] of its reasons as follows:

    Clause 602.213 applies to applicants who were in Australia at the time the visa application was made.  It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met.  These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

15. The Tribunal held at [15] that the applicant did not meet cl.602.212(6) of sch.2 to the Regulations, that the applicant did not hold a substantive temporary visa at the time of the application, and the last such visa held was not a subclass 403 or 426 visa. In the circumstances it reasoned, correctly, that the applicant must meet the sch.3 criteria. Before explaining the Tribunal’s reasons in respect of those criteria, I note that there is no power or provision in the Regulations to waive the requirement to meet the sch.3 criteria for this subclass of visa. For that reason, a number of the arguments relied upon by the applicant and his advisors are misconceived (see cl.602.213(5)).

16. The Tribunal considered criterion 3001 which required that the application for the visa must have been lodged within 28 days of the relevant day.  The relevant day was the day on which the last substantive visa ceased, namely, September 2013.  As the application for the medical treatment visa was lodged on 24 June 2016, that is, more than two years after the substantive visa had ceased, criterion 3001 was not satisfied.  For that reason, the applicant did not satisfy cl.602.213 and did not satisfy the criteria for the grant of the medical treatment visa.

17. The Tribunal’s findings were based upon the applicant’s own evidence about the visas that he held on the date of his application in his unsuccessful application for a protection visa.  It proceeded on a correct understanding of the requirements of the criteria for the grant of the visa and the decision to affirm the delegate’s decision was inevitable on the basis of those findings.  For those reasons, none of the substantive grounds raised by the applicant, either in his affidavit, orally today, or in his application, have any prospect of success.

18. I should note, in addition, that the references to denial of procedural fairness and to the s.375A certificate cannot overcome either the inevitability of the decision made by the Tribunal or the fact that on the evidence before me the applicant was given every opportunity to present his case. According to [13] of the Tribunal’s decision, the information referred to in the s.375A certificate was not relevant to the issues in the case and therefore any error concerning that certificate could have had no impact upon the decision.

19. Taking the merits of the case into account, even though there was some basis for the applicant’s failure to attend at the hearing on 16 October 2017, I consider that the discretion in r.16.05(2)(a) of the Rules ought not to be exercised. Such an exercise would be futile because the application would be bound to be dismissed. For that reason, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:   19 March 2018