FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 574

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    This judgment concerns two applications. The first is an application made by email, and received by me yesterday, to adjourn the hearing today of an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 12 February 2016, dismissing an application for review to that Court. The second is that application for leave to appeal.

2    The application for review before the Circuit Court concerned a 14 October 2015 decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a Medical Treatment (Visitor) (Class UB) visa.

3    The application for review was dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) because the primary judge was not satisfied that the application for review had raised an arguable case for the relief claimed. His Honour also refused an application for an adjournment, which I will address shortly. Rule 44.12(2) states: “To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory”.

4    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that an appeal should not be brought from an interlocutory judgment unless the Court or a judge gives leave to appeal. The present application for leave to appeal is brought under r 35.11(a) of the Federal Court Rules 2011 (Cth).

5    When the matter was called for hearing today, the applicant did not appear. I decided to determine the substantive application ex parte and also to give reasons for refusing the adjournment application that was originally made and refused yesterday. It was possible that if the applicant had appeared today he would have renewed that adjournment application, but when the matter was called on for hearing just before 10.25 am, he did not appear. His name was called three times outside the courtroom but he did not appear.

6    Ten minutes after the scheduled time for the hearing had elapsed, I received submissions from the solicitor for the Minister as to the course I should take. I now commence giving this judgment at about 10.35 am. I will conclude after a period of time which will have given the applicant ample time in which to appear.

Yesterday’s adjournment application

7    Yesterday morning, the solicitors for the Minister sent an email to my associate attaching an email from the applicant sent the previous night by which an adjournment of today’s hearing was sought. The Minister’s email indicated that this application was not opposed. There was no indication, though, of consent. It was essentially left to the Court to decide whether or not an adjournment was justified.

8    The attached email from the applicant sent at 10.12 pm on 17 May 2016, that is, the day before yesterday, contained hearing details, including the time, date and courtroom as follows:

Hi sir

NAME        SANDEEP SINGH

ADDRESS    [street address]

EMAIL        [email address]

FILE NO.    NSD288/2016

DATE        19 MAY 2016

TIME        10:15AM

REASON    HEARING

PRESIDING OFFICER(S) :-    JUSTICE BROMWICH

LOCATION:    COURT ROOM 19A , LAW COURT BUILDING QUEEN SQUARE , SYDNEY

9    The email from the applicant was a reply to an earlier email to him from the solicitors for the Minister sent on Thursday of last week, 12 May 2016. The email from the Minister’s solicitors:

(a)    enclosed sealed copies of the Minister’s outline of submissions and list of authorities;

(b)    reminded the applicant that the matter was listed for hearing today before me and identified the courtroom number; and

(c)    advised, in the last sentence, that if the applicant did not attend, the Minister’s solicitors may seek to have the matter dismissed (with costs) for non-appearance, which is what happened today.

10    The body of the applicant’s email was sent at 10.12 pm on 17 May 2016 and stated in block capital text (grammar, spelling and punctuation as in original):

I AM NOT ABLE TO ATTEND THIS HEARING BECAUSE MY HEALTH IS NOT GOOD , ACTUALLY I AM REALLY SICK AT A MOVEMEANT . SO I ATTACH MY MEDICAL CERTIFICATE WITH MY AFFIDAVITE . PLEASE GIVE ME ANOTHER HEARING DATE. I WILL REALLY THANKFUL FOR THAT .

YOUR THANKFUL

SANDEEP SINGH

17-O5-2016

11    Attached to the applicant’s email was an affidavit from him to which was annexed what appeared to be a medical certificate. The affidavit did not itself refer to seeking an adjournment. The attached document headed “Medical Certificate”, with a typewritten letterhead of Dr Naveed Shaukat including an address in Wentworthville, is dated 14 May 2016, that is, three days earlier. The text of that document is as follows:

This is to certify that I have examined Sandeep Singh today, and I confirm that he will be unfit for attending work or any activities due to his mental health condition from 14/5/16 to 14/6/16 inclusive. He will be Reviewed

12    The “medical certificate” is signed and indicates that Dr Shaukat is a doctor at the Wentworthville Medical Centre. Beneath his signature is a stamp with Medicare provider number details. For present purposes, I am prepared to assume the authenticity of the document and proceed on the basis that it is what it purports to be.

13    In my view, the process and evidence, including the medical certificate described above, is an insufficient and unacceptable means by which a scheduled hearing before this Court should be sought to be adjourned. My views in this regard are reinforced by three factors. The first factor is the lack of merit in the underlying application which is addressed in more detail below. Put shortly, the applicant cannot, on any view of the matter, succeed in his proposed appeal. It follows that in this case the discretion to grant leave to appeal has no practical content because there is no proper basis to exercise the discretion in the applicant’s favour. Any delay in the hearing cannot make any difference to the outcome and will only result in further costs being unnecessarily incurred. While such a clear situation is not a prerequisite for denying an adjournment, it is a powerful, if not overwhelming, consideration in this case.

14    Secondly, an application for an adjournment was made in substantially the same terms to the primary judge, also just before the hearing in that Court over three months ago. My associate asked the solicitors for the Minister to furnish a copy of the medical certificate that was before the primary judge. That was provided to me in Court today. I admitted that prior medical certificate as an exhibit. That medical certificate is in substantially identical terms to the medical certificate forwarded to my associate yesterday.

15    There are some immaterial differences between the medical certificate before the primary judge and the medical certificate relied upon by the applicant in this Court. Importantly, the operative sentence, apart from the additional words “He will be Reviewed” is the same, except that the dates were different. Then, as now, the medical certificate was produced a short time before the hearing with dates straddling the hearing date during which the applicant was “unfit for attending work or any activities …”.

16    There is nothing before me to suggest that anything was done to address any underlying medical condition that may exist, or to obtain any proper medical evidence of its effects. This indicates to me that the application to this Court may have been no more than a delaying tactic in the face of the inevitable failure of the present application, although I cannot be sure of that. More importantly, it indicates that if there was any genuine medical reason for the matter not to proceed, there was ample opportunity to obtain evidence of it. Instead, a bare medical certificate without any reference to the proceedings at all was produced late on the night before the eve of the hearing.

17    The third factor reinforcing my view that this is an insufficient and unacceptable means by which a scheduled hearing before this Court should be adjourned arises from clear authority from the New South Wales Court of Appeal in similar circumstances in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [3] – [6]. AHB indicates that, in considering an application to adjourn the hearing of an appeal, an appeal court will not ordinarily act on a “formulaic document” but rather will usually require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant’s inability to attend Court. That is especially so when a matter had been fixed for hearing some considerable time ago and its presence in the list has prevented other matters being listed for hearing.

18    For those reasons, I refused the adjournment application yesterday and adhere to that position today.

The application for leave to appeal

19    The discretion to grant leave to appeal in s 24(1A) of the FCA Act is unfettered. However, the Full Court in Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 at 399 – 400 accepted a line of authority as to the general guidance to be applied which a court should normally accept in the exercise of the discretion. That guidance comes down to two tests: first, whether in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and secondly, whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong.

20    The two tests are not in separate compartments but are cumulative and also bear on each other so that the degree of doubt which is sufficient in one case may be different from that required in another. There will continue to be cases raising special considerations and, accordingly, a court should not regard its hands as tied by the guidance in the two tests. There has been no special consideration suggested as applying in this case and none is apparent.

21    The grounds of the present application for leave are as follows:

1.    His Honour Judge Street gave me an order but not a judgment yet.

2.    His Honour Judge Street failed to give me the opportunity to postpone the hearing because I was sick and did not have a legal representative to help me.

3.    I provided medical evidence and His Honour denied me natural justice.

22    The affidavit of the applicant in support of the application for leave to appeal annexed a draft notice of appeal which states two grounds of appeal as follows:

1.    I appeared before Judge Street on 12 February 2016. I provided medical evidence and asked that my hearing be postponed because of my sickness. His Honour decided not to postpone and he made an order to dismiss my case.

2.    I do not agree with his decision to dismiss my case as I was unfit to talk and argue my case and I was denied natural justice because my hearing was not postponed.

23    The body of the applicant’s affidavit in support of the leave application contained additional grounds as follows:

3.    I ask the Federal Court of Australia to accept my application because His Honour Judge Street denied me the opportunity to postpone my hearing because of my sickness and I was not able to defend my case properly and my legal language is limited.

4.    I ask the Honourable Federal Court to give me the chance to lodge this review as I have been denied an opportunity to defend my case properly.

5.    His Honour Judge Street had medical report before him and he ignored it.

24    There is nothing before me by which the applicant has addressed the substance or prospects of success of his underlying judicial review application in the Circuit Court. For the reasons that follow, that is not surprising. I have read the reasons of the Tribunal and of the primary judge, and I have also had regard to the Minister’s written and oral submissions.

25    The applicant’s last-held substantive visa was a student visa which expired on 15 March 2011. The applicant applied for a Medical Treatment (Visitor) (Subclass 602) visa on 9 June 2015, that is over four years after the expiry of his student visa. There is nothing before me to suggest that he has ever held any other substantive visa in the intervening period.

26    One of the criteria for the grant of the visa that the applicant sought is in clause 602.213 of the Migration Regulations 1994 (Cth). Subclause 602.213(5) provides that, amongst other things, the applicant must satisfy item 3001 of Schedule 3 of the Migration Regulations. Item 3001 of Schedule 3 relevantly provides (emphasis added):

3001

(1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a)    if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

(b)    if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

(c)    if the applicant:

(i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii)    entered Australia unlawfully on or after 1 September 1994;

whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    the day when the applicant last entered Australia unlawfully; or

(d)    if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

(i)    the day when that last substantive visa ceased to be in effect; and

(ii)    the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

27    What is apparent from item 3001 is that an otherwise valid application has to be made within 28 days after, in this case, the last day when the applicant held a substantive visa. That is, the applicant needed to apply for the visa he now seeks within 28 days of 15 March 2011. He did not make that application until 9 June 2015, over four years later. In those circumstances, as would be expected, the delegate refused the visa, because the applicant was incapable of satisfying cl 602.213 and item 3001 of Schedule 3 of the Migration Regulations.

28    The Tribunal’s reasons are short but very clear as to why the applicant could not succeed in this merits review and could not be granted the visa he sought. Paragraphs 6 – 13 of the Tribunal’s reasons are as follows (emphasis added):

6.    The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies the requirements of cl.602.213.

The applicant’s visa status and related requirements

7.    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.

8.    In the present case, the applicant does not meet cl.602.212(6), did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005.

Is criterion 3001 met?

9.    In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision. Clause 3001(2)(c)(i) and (iii) apply to the applicant as there is no evidence before the Tribunal to indicate that he entered Australia unlawfully on or after 1 September 1994. The ‘relevant day’ is therefore the last day when the applicant held a substantive visa.

10.    The applicant gave evidence to the Tribunal that the last substantive visa he held was a Student visa which expired in 2011. This is consistent with the evidence on the Department’s file which indicates that the last day when he held a substantive visa (Student visa) was 15 March 2011. Accordingly, the Tribunal finds that the relevant day is 15 March 2011.

11.    The Tribunal finds that a valid application for a Medical Treatment visa was made on 9 June 2015. As the visa application was not made within 28 days of the relevant day (15 March 2011), the Tribunal finds that the applicant does not satisfy criterion 3001. As he does not satisfy criterion 3001, the Tribunal does not consider it necessary to consider whether he satisfies the criteria in 3003, 3004 and 3005.

12.    For the reasons given above, the Tribunal finds that the applicant does not satisfy cl.602.213.

13.    Based on the findings above, the applicant does not meet the requirements for the grant of the visa. Therefore, the decision under review must be affirmed.

29    By an application filed on 12 November 2015, the applicant sought judicial review of the decision of the Tribunal, dated 14 October 2015. The grounds of the application were as follows:

(1)    The Administrative Appeals Tribunal refused my application for medical treatment visa simply as I do not meet the Criteria of lodging my application within 28 days.

(2)    The Tribunal made an error of law by not taking into consideration my compelling and compassionate circumstances and denied me the opportunity to receive medical treatment because of Schedule 3.

(3)    I ask the Honourable Court to reconsider the application because Schedule 3 should be waived if there are compelling and exceptional circumstances and my circumstances were not considered by the Tribunal.

30    There is no provision in the relevant visa criteria for taking into account “compelling and compassionate circumstances”, and there is no capacity to waive the requirements of Schedule 3.

31    The Circuit Court convened a show cause hearing, pursuant to r 44.12 of the Circuit Court Rules, to take place on 12 February 2016. At the hearing, when he was asked to make submissions in support of his application or in answer to the first respondent’s submissions, the applicant said he was very sick and was not in a position to participate further. He tendered the medical certificate to which I have already referred.

32    The Minister opposed this request for an adjournment, arguing that the applicant failed to disclose any arguable jurisdictional error, and accordingly an adjournment would be of no utility. His Honour accordingly refused the request for an adjournment. The Minister points out today that contrary to a complaint made by the applicant, he did not raise at that time the absence of legal representation, and seeks to raise that for the first time in this Court.

33    Following the hearing, the primary judge delivered an ex tempore judgment, ordering, amongst other things, that the application be dismissed, pursuant to r 44.12(1)(a) of the Circuit Court Rules. His Honour held that the applicant’s grounds failed to identify any arguable question of jurisdictional error. His Honour found that the Tribunal’s decision that the application did not meet the criteria under cl 602.213 was correct, and there was no discretionary ground to consider compelling or compassionate circumstances to waive the criteria.

34    The primary judge held that the provision of the medical certificate to the Court failed to explain why the applicant had not earlier conveyed the content of the medical certificate to the Minister. His Honour was satisfied that the applicant was able to participate meaningfully in the hearing and an adjournment would only unnecessarily add to unrecoverable costs and utilise limited Court time. His Honour was satisfied that this was an appropriate case in which to exercise the Circuit Court’s powers under r 44.12 of the Circuit Court Rules and made orders accordingly.

35    The Minister submits that the applicant has failed to show any doubt about the correctness of the decision of the primary judge and has failed to show that any substantial injustice would be suffered by the applicant if leave to appeal were refused. I agree. As the Minister points out, the task of the Circuit Court in dealing with the judicial review proceedings brought by the applicant was to determine whether the Tribunal’s decision was infected by jurisdictional error. As the Minister also points out, the task of this Court on appeal is to determine whether the judgment of the primary judge was affected by appellable error as a threshold question for the grant of leave to appeal.

36    The first ground of the application for leave to appeal states that the Circuit Court did not give the applicant a judgment. That is incorrect. The judgment of the primary judge is annexed to the affidavit from the Minister’s solicitor read today, and had been served on the applicant’s address for service. This ground not only reveals no jurisdictional error, but is factually wrong.

37    The second ground of the application for leave to appeal expresses disagreement with the Circuit Court’s decision not to grant the applicant an adjournment. It does not identify any error.

38    The third ground of the application for leave to appeal and the second ground of the draft notice to appeal both allege that the primary judge denied the applicant natural justice. Similarly, the grounds which appear in the applicant’s supporting affidavit claim that he was not provided an opportunity to defend his case. The Minister submits that those grounds cannot be made out for the following reasons:

(a)    the applicant appeared at the first court date, where orders were made which provided him an opportunity to file further evidence and submissions, but he did not avail himself of that opportunity;

(b)    the applicant was provided opportunities to make submissions in support of his application at the hearing, but chose to make no further submissions; and

(c)    the primary judge considered the applicant’s adjournment request and medical certificate provided at the hearing, however his Honour was satisfied that the applicant was able to participate in the hearing and that an adjournment would be of no utility, having regard to the merits of the application.

39    The Minister submits that in such circumstances it cannot be held that the applicant was denied natural justice or procedural fairness or the opportunity to advance his case, and that no error by the primary judge can be established. I agree.

40    The first ground of the draft notice of appeal is a statement of fact and is not capable of establishing any jurisdictional error. As the Minister points out, this ground takes issue with the merits of the Tribunal’s decision, and also the fact that the primary judge refused to grant him an adjournment.

41    There is no prospect whatsoever of any appeal in this Court succeeding. In those circumstances, there cannot be any injustice at all, let alone substantial injustice, in refusing leave to appeal.

42    The application for leave to appeal must be dismissed with costs.

Associate:

Dated:    21 June 2016