Sultan v Minister for Immigration

[2014] FCCA 2840

FEDERAL CIRCUIT COURT OF AUSTRALIA

SULTAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2840

Catchwords:
MIGRATION – Application for judicial review – applicant seeking student visa – required materials not forwarded to delegate or Tribunal – applicant not attending Tribunal – applicant seeking adjournment on grounds of ill health – medical material wholly inadequate – application facing very serious difficulties in any event – application dismissed.

Legislation:  
Migration Act 1958, s.359A

MZZGY v Minister for Immigration and Border Protection [2014] FCA 488
NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

Applicant: UMER SULTAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1970 of 2013

Judgment of: Judge Burchardt

Hearing date: 22 October 2014

Date of Last Submission: 22 October 2014

Delivered at: Melbourne

Delivered on: 12 December 2014

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application is dismissed. 

2. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1970 of 2013

UMER SULTAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing on 22 October 2014.  When the matter was called, the applicant did not appear.  Counsel for the first respondent informed the Court that on the previous afternoon the instructing solicitors for the first respondent had received a letter and medical certificate from the applicant seeking an adjournment.  Copies of those documents were tendered as exhibit R1, as was the respondent’s reply, exhibit R2, which I note was sent at 5.30 pm on 21 October 2014.  I infer that the email from the applicant was sent late in the afternoon. 

2. I indicated that I would decline the application for adjournment and hear the matter on its merits.  I heard brief argument from counsel, who was generally content to rely upon the written submissions filed. 

3. What follows are my reasons for not granting the adjournment, and, additionally, my reasons why the application must be dismissed. 

The Adjournment Application

1. The material relied upon by the applicant in support of his adjournment application, as noted, consists of a letter and a medical certificate.  The letter relevant says:

   “Dear Sir/Madam

   This is to confirm that my name is Umer Sultan and I would like to apply for an extension for my court hearing as I am not well and unable to attend the court hearing on 22 OCT, 2014.  I am suffering from severe back pain.  Attached is the medical certificate confirming the above.  It’s a sciatica pain in the sciatic nerve which has led to no movement in the body and I would like to request the concerned personnel to look into this matter and grant me an extension for my court hearing please.”

2. The medical certificate relevantly says:

   “To Whom It May Concern

   THIS IS TO CERTIFY THAT:

   Mr Umer Sultan (address omitted)

   is suffering from a medical condition and he will be unfit to perform his usual occupation from

   Tuesday, 21 October 2014 to Thursday, 23 October 2014, inclusive.”

3. In MZZGY v Minister for Immigration and Border Protection [2014] FCA 488, Davies J was faced with an almost identical certificate, albeit that her Honour did not have before her a letter of the character sent by the applicant in this case. Nonetheless, her Honour’s remarks at [13] are clearly apposite.

   “These documents were wholly inadequate to support an adjournment application.  The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed is insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court heading.  Furthermore, wholly unexplained was why it was left late the day before to seek the adjournment.  It is reasonable to infer that the late notice was deliberate, and intended to bring about the outcome of an adjournment by the short notice.  I accordingly refused the adjournment application, and proceeded to hear the appeal on its merits.”

4. I note that a Full Court of the Federal Court in NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [24]-[25] came to a very similar conclusion about a similarly inadequate medical certificate.

5. In this instance, the applicant has made a bare assertion that he is suffering from sever back pain.  The medical certificate does not confirm that this is the case.  The letter asserts: “It’s a sciatica pain in the sciatic nerve which has led to no movement in the body”, but this does not explain how it was that the applicant was able to attend upon his doctor to get a medical certificate.  There is no suggestion in the letter that the doctor had to come to the applicant.  Furthermore, the applicant was apparently sufficiently mobile and self-aware to be able to write the letter to the Court, in any event.  In my respectful view, the remarks of Davies J in MZZGY are entirely applicable here. 

6. That is not, however, the only matter which supports the proposition that it would be inappropriate to adjourn.  It was apparent, even on a brief reading of the written submissions filed by the first respondent, and of the application and affidavit in support, that the application would face very significant difficulties, in any event.  My preliminary impression to this effect has been strengthened by my study of the materials in greater detail.  

The Course of Events and the Tribunal’s Decision

1. On 30 August 2011, the applicant applied for a Student (Temporary) (Class TU) (sub-class 572) visa.  He appointed a migration agent to represent him during this process (see Court Book (“CB) 3-4). 

2. At CB 9-11 an officer of the first respondent set out a request for various forms of information which were clearly directly applicable to the applicant’s visa application.  These related to the financial requirements, English language requirements and overseas student health cover required for the visa.  The request also noted at CB 12 adverse information to the effect that the applicant may not have been studying between 1 January 2011 and 31 July 2011.  It was pointed out that as the holder of a student visa, the applicant was required to maintain enrolment in a registered course approved for study for international students and also required to continue studying for the duration of his time during his stay in Australia. 

3. The request for information was sent to the applicant’s agent, at the agent’s nominated address. 

4. The applicant did not forward any of the requested information, either himself or through his agent.  Scarcely surprisingly, the delegate of the first respondent decided not to grant the applicant the visa he had sought.  The decision record is at CB 21-23.  The decision noted that there was insufficient information provided at the time of lodgement to satisfy the delegate that the applicant met the Schedule 5A criteria for his assessment level.  The decision noted that on 1 September 2011, an email was sent to the applicant’s agent requesting documentation to satisfy Schedule 5A criteria by the provision of documentation within 28 days and that, to date, no such documents had been provided. 

5. The applicant, with the assistance of his agent, then applied for review to the Migration Review Tribunal (“the Tribunal”). 

6. On 26 April 2013, the applicant’s agent notified the Tribunal of a change of address (CB 33).  On 14 June 2013, the Tribunal invited the applicant, by his agent, to attend a hearing on 26 July 2013, and to provide evidence in relation to his enrolment, academic achievements, health insurance and requirements of the Schedule 5A (CB 36-39). 

7. The applicant appointed a new representative on 23 July 2013.  The new representative requested an adjournment on 23 July 2013, on compassionate grounds, and this was granted. 

8. On 6 August 2013, the Tribunal invited the applicant to comment or respond pursuant to s.359A of the Migration Act 1958 (“the Act”), to information obtained from the Provider Registration and International Student Management System (“PRISM’s”) database that indicated he was not currently enrolled to study (CB 53-55). 

9. On 30 August 2013, the adviser responded to the s.359A letter, providing a certificate of enrolment for a Diploma of Marketing commencing on 16 September 2013 and ending on 16 March 2014 (CB 56-57).

10. On 12 September 2013, the Tribunal again wrote to the applicant via his agent inviting the applicant to attend a hearing at the Tribunal on 17 October 2013.  The letter repeatedly requests for information earlier made. 

11. The applicant failed to attend the hearing, and, indeed, did not respond to the hearing invitation itself.

12. In these circumstances, the Tribunal’s decision, which runs from CB 73-77, is likewise short. 

13. The Tribunal noted the requests for information (see paragraph 7, CB 74). 

14. The Tribunal noted the various notices sent to the applicant to attend the hearing or comply with the Act, clearly correctly.

15. The decision also noted, as once again was clearly correct, that the applicant had not met the evidentiary requirements for the assessment level for Subclass 572 that affected him.  The Tribunal said at paragraphs 22-23, CB 76:

    “22.  The applicant did not give the Tribunal evidence in relation to his English language proficiency, financial capacity or the “other requirements” as set out in Schedule 5A for his assessment level.  He did not attend the Tribunal hearing.  

    23.  On the basis of the above, the applicant has not given evidence in accordance with the Schedule 5A requirements for Subclass 572 and assessment level 4, and therefore does not satisfy cl.572.223.(2)(a)(i).”

16. The applicant’s application relevantly states:

    “My visa was refused because I did not attend the MRT hearing.  I was not/never notified of the date of hearing or invited for hearing.  Thus creating a jurisdictional error.  An error of law and against the principles of justice.”

17. The first thing to be said is that the failure of the Tribunal to adjourn was not unreasonable in the circumstances.  Correspondence had been sent to the applicant’s agent from time to time, and the applicant’s agent had on occasion responded.  It was, in these circumstances, entirely reasonable for the Tribunal to proceed, especially bearing in mind the applicant’s longstanding failure to provide the information requested.  There is no room for argument that the applicant, at least at the point when the delegate requested information, did receive the requests.  There is equally no question that the applicant’s agent received the material prior to the applicant going to Pakistan, and it is inconceivable that the applicant was not notified of the requests. 

18. Further, it is clear, as the first respondent’s submissions reveal, that the applicant was properly notified within the meaning of the Act and Regulations. No challenge for non-receipt is therefore available.

19. Further, again, to the extent that the applicant asserts that he failed to attend as a result of negligence on the part of his agent, this does not, in the circumstances of this case, constitute jurisdictional error.  Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [30]-[33].

20. In circumstances where the applicant has comprehensively failed to address the matters he was required to address in order to obtain his visa, it is clear that there is no jurisdictional error in the way in which the Tribunal proceeded.  It follows the application will be dismissed with costs. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  12 December 2014