Thanthrige v Minister for Immigration

[2018] FCCA 640

FEDERAL CIRCUIT COURT OF AUSTRALIA

THANTHRIGE v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 640

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.362B

Applicant: THARAKA SUPIN FERNANDO WATTORU THANTHRIGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 331 of 2017

Judgment of: Judge Riethmuller

Hearing date: 7 February 2018

Date of Last Submission: 7 February 2018

Delivered at: Melbourne

Delivered on: 7 February 2018

REPRESENTATION

Solicitors for the Applicant: PLS Lawyers

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,842.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 331 of 2017

THARAKA SUPIN FERNANDO WATTORU THANTHRIGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 24 January 2017 in which the Tribunal dismissed the applicant’s application to review a decision of a delegate not to grant him a Partner visa. 

2. The applicant is a male citizen of Sri Lanka who arrived in Australia on 18 February 2013 holding a student visa.  The student visa ceased in March of 2016.  Later that month the applicant applied for a partner visa.  In July 2016 the application was refused by a delegate of the Minister.

3. On 23 July 2016 the applicant applied to the Tribunal for review of the delegate’s decision.  The applicant was invited to attend at a hearing before the Tribunal on 5 January 2017 to give evidence and present arguments.  In December of 2016 the applicant notified that he would be so attending.

4. On 5 January 2017 the applicant telephoned the Tribunal and said that he was ill and requested a postponement of the hearing that day.  The applicant said he would submit a medical certificate that day after seeing a doctor.

5. The person who spoke to the applicant made a file note (see Court Book p.176) and advised him that they would get the member’s instructions and asked for a telephone number in case the member decided to hold the hearing by telephone.  The applicant said that he would like to consult with his lawyer first about any telephone hearing.  A file note later that morning at 9.04am was made of a further telephone call regarding his request for an adjournment.  The applicant said on that occasion that he had a cold, and that he wished to have his hearing postponed.  The applicant was advised he would need to get a medical certificate clearly stating that he was too sick to attend the hearing in person or by phone, and not simply a document saying he was suffering from an illness.

6. The applicant did not attend, and he provided a pro forma medical certificate simply stating that he was unable to work for 5 and 6 January.  That medical certificate was provided at 6.43pm on 6 January 2017.  It is in the form commonly referred to in the cases in this court and the Federal Court where adjournments are sought on the basis of a medical certificate that simply says somebody is unfit for their normal work duties, rather than addressing whether they are too ill to attend a hearing.

7. The Tribunal member, on the applicant not attending at the hearing, dismissed the application under s.362B of the Migration Act 1958.  The member did specifically consider whether or not the adjournment request should be granted, saying:

   The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 5 January 2017 at 10 am, but did not appear at the scheduled time and place.

   On 5 January 2017 at 8.43 am the applicant called the Tribunal and requested a hearing postponement on the basis that he was unwell. When asked by a Tribunal officer to do so, the applicant undertook to submit a medical certificate that day. At 8.46 am the Tribunal received an email message from the applicant confirming that he could not attend the hearing because he was sick. At 9.04 am a Tribunal officer spoke to the applicant by telephone about his hearing postponement request, and offered a phone hearing by way of an alternative hearing option. The applicant claimed that he was too sick to participate in a phone hearing. When asked the general nature of his illness, the applicant claimed that he had a cold. The Tribunal officer reiterated that in order for the Tribunal to further consider his hearing postponement request, he should provide a medical certificate as soon as possible. The applicant was further advised that unless he was notified that the Tribunal had agreed to a postponement, the hearing would proceed that day as scheduled.

   The review applicant did not provide a medical certificate on 5 January 2017, as he undertook to do, or subsequently. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

8. The member had the medical certificate drawn to their attention by the staff of the Tribunal, and declined to reopen the case (if that were possible), no doubt as a result of the fact that the medical certificate did not address the evidence required to justify the applicant’s non-attendance.  The applicant was notified of this on 9 January 2017.

9. As this was a decision under s.362B of the Act, the applicant had 14 days to apply to have it set aside. This was also notified to the applicant in information about the dismissal of his application, which appears at Court Book p.184.

10. It does not appear that the applicant did applied to have the decision set aside in accordance with those provisions and the decision was later affirmed.  In these circumstances, I am not persuaded that the Tribunal made a judicially reviewable error in concluding that they were not satisfied on the material that an adjournment should be granted.

11. In the circumstances, I therefore dismiss the application of the applicant.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 March 2018