Sran v Minister for Immigration
[2020] FCCA 333
•20 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SRAN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 333 |
| Catchwords: MIGRATION – CITIZENSHIP AND MIGRATION – Migration – Review of decisions – judicial review – grounds of review – unreasonableness. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases cited: Li v Minister for Immigration & Anor [2017] FCCA 2326 |
| First Applicant: | AMANDEEP SINGH SRAN |
| Second Applicant: | MANDEEP KAUR DHILLON |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 931 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 18 February 2020 |
| Date of Last Submission: | 18 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 20 February 2020 |
REPRESENTATION
| The Applicants in person with a Punjabi interpreter |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 28 October, 2019 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 931 of 2019
| AMANDEEP SINGH SRAN |
First Applicant
| MANDEEP KAUR DHILLON |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal made on 25 September, 2019 which confirmed its earlier decision made on 9 September, 2019 to dismiss an application for review of a decision of a delegate of the first respondent not to grant the first applicant a Student (Temporary) (Class TU) (Subclass 500) visa (visa). The second applicant sought the grant of a visa to her as a member of the first applicant’s family unit.
The application was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). The issue for determination is whether the application raises an arguable case for the relief claimed: r.44.12(1). The applicants are confined to the relief sought and the grounds mentioned in the application for review: r.44.13(1). If the Court is not satisfied that the application raises an arguable case for the relief claimed, it may dismiss the application.
On 4 December, 2019 a registrar made orders that required the applicants to file written submissions to support this application. Despite that direction the applicants have not filed any written submissions. I have written submissions from the first respondent. The second respondent enters a submitting appearance.
Background
The first applicant is a citizen of India. He arrived in Australia on 18 November, 2008 as a dependant on a Student (Temporary) (Class TU) (Subclass 573) visa. The first applicant became the holder of a student visa and a bridging visa prior to being granted a skilled (subclass 457) visa between 31 December, 2013 and 31 December, 2017.
On 30 December, 2017 the first applicant applied for the visa the subject of these proceedings. On 18 April, 2018 a delegate of the first respondent refused to grant the visa on the basis that the first applicant did not meet cl.500.212 in Schedule 2 of the Migration Regulations 1994 (Cth). The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily.
On 9 May, 2018 the first applicant applied to the second respondent for review of the delegate’s decision. On 21 August, 2019 the second respondent invited the first applicant to attend a hearing to give evidence and present arguments scheduled for 6 September, 2019.
At 11:36pm on 5 September, 2019 the second applicant requested an adjournment of the hearing for two to four weeks because the first applicant had been suffering from back pain, depression and anxiety. A medical certificate dated 3 September, 2019 accompanied the request and stated that the first applicant had a medical condition and would be “unfit for work/school” from 3 to 17 September, 2019. At 9:37am on 6 September, 2019 (the hearing date), the second applicant wrote to the second respondent confirming that the first applicant was unable to attend the hearing and requesting an adjournment of between two and four weeks. The applicants did not otherwise appear at the hearing.
On 9 September, 2019 the second respondent dismissed the application for review pursuant to s.362B(1A)(b) of the Act because the applicants did not appear at the hearing. The second respondent emailed the applicants notifying them of the dismissal and advised that they could apply in writing for reinstatement within 14 days.
On 23 September, 2019 the first applicant applied for reinstatement and submitted further medical evidence (some of which was dated in 2015) in support of the request.
On 25 September, 2019 the second respondent confirmed its decision to dismiss the application. In doing so, the second respondent:
a)found that the first applicant was invited to attend a hearing pursuant to s.379A(5) of the Act which was scheduled to proceed on 6 September, 2019 at 9:30am;
b)referred to the email that the second applicant sent to the second respondent at 9:37am, after the scheduled commencement of the hearing, confirming that the first applicant was aware of the hearing;
c)referred to the request for an adjournment that was made and the medical certificate was attached which stated that the first applicant was suffering from a medical condition and would be unfit for work/school;
d)noted that the medical certificate made no reference to the ability of the first applicant to attend the hearing.
The second respondent found that as the medical certificate did not address the ability of the first applicant to attend the second respondent’s hearing in circumstances where the first applicant was advised in the hearing invitation letter about how to deal with the situation of being unable to attend the hearing on medical grounds, there was no satisfactory reason for the applicants’ non-appearance at the hearing. The second respondent dismissed the application without further consideration of the application or information before it.
The applicants applied to have the application reinstated. The second respondent dismissed that application and it is that decision that is the subject of the review application presently before me. The second respondent:
a)found that the applicants had been properly notified of the dismissal decision in accordance with s.362C(5) and their right to apply to have the application reinstated;
b)found that the first applicant had applied for reinstatement within the 14 day period;
c)referred to the further medical certificate provided by the applicants in support of the first applicant’s non-attendance at the hearing which stated that the first applicant had low back pain, was seen on 3 September, 2019 and was given a medical certificate for two weeks because of his low back pain issues;
d)considered a radiology report provided in which the radiologist’s impression that the first applicant had minor discogenic degeneration;
e)accepted that the first applicant was suffering from low back pain;
f)noted that the issue was the first applicant’s ability to participate in a hearing;
g)observed that the initial medical certificate failed to address the ability of the first applicant to attend the hearing and the new medical certificate also failed to address the ability of the first applicant to attend the hearing;
h)recorded that:
i)the hearing invitation advised the first applicant that if he wished to have the hearing adjourned on medical grounds, he must provide a medical certificate certifying that he is unable to attend and give oral evidence and the certificate must indicate when the medical practitioner considered that he will be able to attend the hearing and give oral evidence.
ii)The first applicant was aware of the hearing and failed to appear;
iii)the new medical certificate did not contain sufficient explanation for the applicants’ inability to attend the hearing. It also did not address the ability of the applicants to attend the hearing via telephone when this option was specifically drawn to the applicants’ attention in the hearing invitation;
iv)the first applicant was able to use a device to send the email to the second respondent seeking reinstatement and did not accept that the first applicant was incapable of participating in a hearing by telephone.
The second respondent was not satisfied that the first applicant could not have attended the hearing. It was not persuaded that reinstatement of the application was warranted. The second respondent confirmed the dismissal decision.
The grounds of review
The applicant’s grounds of review are in the following terms (errors in the original):
1. I came to Australia on student visa as secondary applicant in 2008 which I changed to primary student visa in 2013 and remained a genuine student since then by completing all the courses that I was enrolled in.
2. After the completion of the studies, I applied for the extension for the student visa to pursue my further study but the request was denied by the case officer of Department of Home Affairs.
3. They failed to consider my genuine intentions to study in Australia was denied without law and Facts.
4. Then I applied for the AAT for the further review on my case and second respondent sent me invitation for hearing on 6th September 2019 at 9:30am but I was unable to attend it due to medical reasons as I was suffering from pain, depression and Anxiety disorder.
5. I had sent a medical certificate to tribunal which clearly mentioned that I was unfit to attend the hearing but the member didn’t accept my medical certificate by asking that it’s was not explained well.
6. second respondent made a jurisdiction error before coming to the conclusion and the decision was made on the hearsay evidences and was not according to any law and facts.
7. Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact.
10. The appellant’s application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.
11. Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia.
I accept the first respondent’s submission that grounds one, two, four and five are not proper grounds of review, but rather provide a narrative and need not be considered further.
Ground three could be construed as an attack upon the delegate’s decision, in which case, it is not within this court’s jurisdiction: Migration Act 1958 (Cth) s.476(2) and s.476(4). To the extent that it is a complaint that the second respondent did not consider the merits of the application before it and instead dismissed the application, the ground overlaps with the balance of the grounds in the application and I will consider it along with the remaining grounds.
Ground six asserts that the second respondent made a ‘jurisdiction error’ because the decision was made on hearsay evidence and not according to the law and facts. These grounds cannot be made out. The facts upon which the second respondent acted were uncontroversial. They consisted of the findings I have set out above about the notification of the hearing date given to the applicants, the applicants’ request for the adjournment, and the applicants’ non-appearance. The findings made by the second respondent about those matters were plainly open and indeed, were the only findings open on the material before it.
Ground seven contends that the second respondent erred by dismissing the application without providing extra time. In my view, this is an argument that the tribunal’s refusal to adjourn the application was, in the circumstances, unreasonable.
As the first respondent submits:
a)it is well established that the second respondent’s exercise of its discretion to proceed pursuant to s.362B must be exercised reasonably: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30;
b)a reasonable exercise of such discretion does not require the decision to be one that is advantageous to the person subject to that decision: SZVFW at [15] and [96]; and
c)it will be a rare case in which the Court will find that the exercise of a discretionary power was unreasonable where the reasons demonstrate a justification for the exercise of that power: SZVFW at [84].
In my view, there was nothing legally unreasonable about the way in which the second respondent proceeded. Section 362B(1A)(b) was clearly engaged in the circumstances. The basis upon which the applicants sought to adjourn the proceedings was carefully considered by the tribunal. The evidence tendered by the applicants for that purpose was considered by the second respondent. The second respondent was correct to observe that the medical evidence provided by the applicants made no reference to the first applicant’s ability to participate in a hearing before the second respondent. The first applicant was clearly on notice about how to deal with the situation of being unable to attend the hearing on medical grounds.
The first respondent has drawn my attention to Li v Minister for Immigration & Anor [2017] FCCA 2326 at [35]-[36] where Judge Driver observed that (citations omitted):
34. Subsection 362B(1B) of the Migration Act states that, if the second respondent dismisses an application for non-appearance, the applicant may, within 14 days after receiving notice of the decision under s.362C, apply to the second respondent for reinstatement of the application. Under s.362B(1C), if an applicant applies for reinstatement, the second respondent must:
(a)if it considers it appropriate to do so—reinstate the application, and give appropriate directions, by written statement under s.362C; or
(b)confirm the decision to dismiss the application, by written statement under s.368.
35. Section 362B does not provide any criteria that must be taken into account by the second respondent when deciding whether to reinstate the application or to confirm the decision to dismiss the application. However, the second respondent's discretion whether to reinstate the application or to dismiss the application is subject to the requirement that the discretion be exercised reasonably, in the sense contemplated in Minister for Immigration v Li.
36. The question of whether a second respondent exercised its discretion reasonably is fact specific.
Further, I was referred to Singh v Minister for Immigration and Border Protection [2018] FCAFC 184, Colvin J observed that:
29. When s.362B(1C) says that on an application for reinstatement the second respondent must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the second respondent to form an opinion or make an assessment as to whether reinstatement is ‘appropriate’ having regard to all of the circumstances advanced to support reinstatement. In such a context, the word ‘appropriate’ connotes two aspects: fitness and propriety. That is, in order to be ‘appropriate’, something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaurdron, McHugh and Gummow JJ that:
The phrase 'considers … appropriate' indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.
30. Relevantly for present purposes, the use of the word 'appropriate' requires the second respondent to make an assessment of all of the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the second respondent could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification.
The second respondent’s reasons reveal that it considered the applicants’ request for reinstatement and the reasons he gave for non-attendance. It considered the medical evidence, including the new medical material put before, analysed it and reached a conclusion about its value in the application.
I accept the first respondent’s submission that the second respondent’s decision to confirm the dismissal cannot be said to be unreasonable. The second respondent’s conclusion that it was not appropriate to reinstate the application was open to it and its reasons provide an evident and intelligible justification for that decision.
Grounds ten and eleven do not advance the application.
Conclusion
The application does not raise an arguable case for the relief claimed in it. In those circumstances it is appropriate that the application be dismissed pursuant to r.44.12(1)(a). Costs should follow the event. The first respondent seeks an order in the amount fixed by schedule 1 to the Federal Circuit Court Rules. That sum is appropriate.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 20 February 2020
2
3
4