Uppal v Minister for Immigration

[2014] FCCA 1087

FEDERAL CIRCUIT COURT OF AUSTRALIA

UPPAL & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1087

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error – application dismissed – no matter of principle.

Legislation:

Migration Act 1958 (Cth)

First Applicant: RAVINDER SINGH UPPAL

Second Applicant: RAJWINDER KAUR UPPAL

Third Applicant: HARSHPREET KAUR UPPAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 283 of 2013

Judgment of: Judge Simpson

Hearing date: 9 May 2014

Date of Last Submission: 9 May 2014

Delivered at: Adelaide

Delivered on: 9 May 2014

REPRESENTATION

The Applicants: In Person

Counsel for the Respondents: Mr S McDonald

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for judicial review filed on 2 October 2013 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3,326.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 283 of 2013

RAVINDER SINGH UPPAL

First Applicant

RAJWINDER KAUR UPPAL

Second Applicant

HARSHPREET KAUR UPPAL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. I have before me an Application for Judicial Review of a decision of the Migration Review Tribunal (“the Tribunal”).  On 17 September 2013 the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa. 

2. The application for the visa was made on 23 May 2011.  The primary applicant for the visa was Ravinder Singh Uppal.  The secondary applicants were Mr Uppal’s wife, Rajwinder Kaur Uppal, and his daughter, Harshpreet Kaur Uppal. 

3. A requirement for the grant of the visa was that each of the applicants satisfy public interest criterion 405.  The relevant aspect of that criteria that needed to be complied with was that they undertake a medical assessment, as specified in the instrument.

4. None of the applicants provided evidence that they had undertaken a medical and x-ray examination.  Nor even that they, or any of them, had made an appointment for such an examination.  The Tribunal did not have any evidence that was needed to satisfy that criterion.

5. The Tribunal sent a letter to the applicants dated 20 August 2013 warning the applicants that if they did not attend the scheduled hearing the Tribunal might make a decision without taking any further action to allow them to appear before it.

6. None of the applicants appeared before the Tribunal at the scheduled hearing on 17 September 2013.  The Tribunal was not advised that the applicants could not attend.  No application was made to the Tribunal for adjournment of the hearing. 

7. The Tribunal proceeded on 17 September affirming the decision of the delegate.

8. As is invariably the case, the respondent has prepared a very helpful Outline of Submissions.  I refer in particular to a paragraph in that Outline that summarises the respondent’s reasons for submitting that the Tribunal did not commit jurisdictional error in proceeding to deal with the matter. 

9. Before I deal with the respondent’s reasons, I mention that there were two affidavits that were relied upon by the applicants.  These affidavits substantially repeat what was contained in the ground of review.  The ground of review states verbatim as follows:

   “MRT refused my review application stating that I don’t satisfy PIC 4005(1)(AA).  Member asked himself question that at the time of decision applicant should have undergone medical check-up to satisfy public health criteria.  Further it claimed that Tribunal has not received any proof that medical has been done.  I had booked the medicals and my booking case no for myself is 6264527, my wife Rajwinder Kaur Uppal is 6265444, and daughter Harshpreet, Kaur Uppal is 6265453.  Medical booking officer told us that now medicals are online and as you have booked for medicals its on the online system and DIAC can access these records.  I already complied with the MRT request and booked medicals before I go through it they refused my application.  They did not even wait for medicals to be done.  This clearly shows there is “jurisdictional error” in MRT decision.”

10. Returning to the respondent’s submissions as to why they say that the Tribunal was entitled to proceed to determine the application and that in the circumstances no jurisdictional error occurred, they identify the following points:

    ·The finding that the Tribunal was not satisfied that the applicants satisfied public interest criterion 4005 was the only conclusion open to the Tribunal on the material available to it, and in any event was factually correct;

    ·The applicants had been informed that the material before the Tribunal did not support a conclusion that they satisfied public interest criterion 4005;

    ·The applicants had been warned by the Tribunal that if they failed to attend at the hearing then the Tribunal might proceed to determine the application for the visa in their absence, but made no attempt to attend;

    ·The applicants had made no request either for an adjournment of the scheduled hearing or for the Tribunal to defer the making of its decision; and

    ·The applicants had been on express notice of the need to arrange and attend medical examinations since at least April 2012, and had been reminded of that requirement in both in May 2012 and August 2013.

11. These statements are clearly correct and provide a complete answer to the applicant’s case. 

12. This is not a case where there has been jurisdictional error.  There has been no contravention of any requirement of procedural fairness.  The applicant had been given a reasonable opportunity to provide the required evidence, to seek an adjournment of the hearing, or deferral of the making of the decision in order to allow them an opportunity to obtain the necessary evidence.  They failed to do so.

13. In the circumstances, the application should be dismissed.

14. I make the orders to be found at the beginning of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 28 May 2014