FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2013] FCA 1353

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2013] FCA 1353

CORRIGENDUM

1.    A second order should be added to the Court orders. Order 2 should read “The applicants pay the first respondent’s costs fixed in the sum of $6,270.00.

Associate:

Dated:    12 March 2014

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Circuit Court of Australia (“the FCC”), which dismissed the appellants’ application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

background and claims

2    The appellants are citizens of India. On 11 March 2011 the first appellant applied for a Skilled (Provisional) (Class VC) visa. The application included his partner, the second appellant. It is a requirement for the grant of this visa that the first appellant’s skills have been assessed by the relevant assessing authority as suitable for that occupation. In his visa application, the first appellant nominated the date of the skills assessment as 24 January 2010. On 23 April 2012 a delegate of the first respondent (“the Minister”) refused to grant the visa because the first appellant had not provided evidence of a successful skills assessment. The first appellant sought merits review of the decision before the Tribunal.

the tribunal’s decision

3    The appellants were invited to appear before the Tribunal and give evidence but did not appear at the hearing. The reasons of the Tribunal record that before the hearing commenced, an officer of the Tribunal made several attempts to contact the appellants but were unable to do so. In the circumstances, and pursuant to s 362B of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking any further action to enable the appellants to appear before it. The Tribunal affirmed the delegate’s decision to refuse to grant the visa in the absence of any evidence before it that the first appellant had obtained a successful skills assessment.

the proceedings in the FCC

4    In the FCC the appellant advanced the following ground in his application:

Skills assessment of a Cook from [Trades Recognition Australia].

The 485 visa application was made on by lodgement of a skills assessment with TRA (for a cook). The decision to grant a 485 [visa] required a positive or successful skills assessment from TRA. At the time of decision from [the Minister’s delegate] I was not able to provide them with a successful TRA skills assessment. I was also not able to provide positive skills assessment of cook from TRA to the [Tribunal]. I have now new work experience and will be applying for new skills assessment with the TRA as a cook again.

5    The hearing before the FCC was listed for 2.15pm on 7 August 3013. On 5 August 2013 the first appellant made a written application for an adjournment of the proceedings in which he stated that:

Last week I have fall down from my apartment’s stairs and I got fracture at right side of my back, and on my right leg and have some swelling on my right shoulder and I can’t sit or stand for long time and the doctor suggested me to have complete rest. It’s hard for me to travel [to] Melbourne at his situation (sic) so can you extend my hearing for next available date. If you want me to send doctor’s medical certificate I can get it from my doctor and send it to you. I didn’t get it before because I was thinking I will be fine until [the day of the hearing]. But unfortunately I am not.

6    On 6 August 2013 at 11:17am, the Judge’s associate wrote to the first appellant via email advising that a copy of the medical certificate must be provided by the appellant on that day.

7    On 6 August 2013 at 1:50pm, the appellant sent an email to the Judge’s associate advising that he had tried but could not get an appointment with his doctor that day or with any of the other doctors and that the first available appointment with his doctor was on 7 August 2013 at 3:15pm. He provided details of his appointment which included the doctor’s name, the time, and location of the appointment.

8    On 6 August 2013 at 2:27pm, the Judge’s associate advised that unless the appellant could substantiate the medical conditions claimed by way of an appropriate medical certificate by 4:30pm, the matter would remain listed on 7 August 2013.

9    No further correspondence was received by the FCC and the appellants did not attend the hearing.

10    On 7 August 2013 the FCC delivered an ex tempore decision refusing the adjournment and dismissing the judicial review application on the merits.

the appeal proceeding

11    By notice of appeal filed on 27 August 2013 the appellant relied on the following grounds:

I fell down from my apartment’s stair few days before from my hearing and I sent fax to the Court and explain them my conditions and Court said they need my medical certificate and I explained them I can send them in morning of 7 Aug. But they said they need it 4pm by 6 Aug. I was unable to get that on 6 Aug.

12    The FCC’s reasons for refusing the adjournment were as follows:

[1]    The applicant in this matter… made a written Application on 5 August 2013 for an adjournment of the proceedings. In the Application he states a number of things:

•    First, that he had a fall last week;

•    Second, that he has various injuries, including a fracture to his back;

•    Third, that the doctor told him to have complete rest; and

•    Fourth, that he could send a medical certificate, which he could get from his doctor.

In response to that correspondence, the Court requested that a medical certificate be provided. The Applicant then indicated that he could not get an appointment with the doctor until the following day, which would be today’s date.

[2]    In the absence of a medical certificate, I have the following concerns about the contents of the Applicant’s letter:

•    First, if the injury occurred last week and the injuries were as significant as the Applicant maintains in his letter, then it is surprising to me that he had not immediately sought medical attention or had an X-rays or other medical examination prior to him sending his letter on 5 August 2013; and

•    Second, he refers in the letter to having “doctor’s advice” and to being able to ask the doctor for a medical certificate. He then responds, when the medical certificate is requested, by saying that he cannot get an appointment with the doctor. If all he had to do was request a medical certificate, then it appears to me that it would not have been necessary to have an appointment with the doctor.

I am not satisfied of the veracity of the contents of the correspondence, and on that basis I am not prepared to grant an adjournment of this Application.

13    The first appellant did not appear to argue his appeal nor did he take advantage of the opportunity provided by the Court to attend by telephone.

14    Mr McDermott, who appeared for the Minister, raised with the Court that there may be a question as to whether the decision of the FCC was interlocutory, requiring the appellant to obtain leave to appeal. Mr McDermott referred to the fact that FCC had proceeded with the application in the absence of an appearance by the appellants, as it may do under rule 13.03C(1) of the Federal Circuit Court Rules 2001 (Cth). The test for determining whether an appeal is interlocutory is whether the judgment finally determines the substantive rights of the parties and in this matter the application was not dismissed by the FCC in default of appearance but upon a determination of the merits of the application. Accordingly leave is not required. I would refuse leave in any event if required because, for the following reasons, an appeal would be futile.

15    An appellate court will rarely interfere with the exercise of a discretion by a judge to refuse an adjournment application, but will do so if the discretion has miscarried: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. The question of whether the discretion has miscarried directs attention to whether the decision to refuse the adjournment was not exercised judicially or was exercised upon a wrong principle or resulted in a gross injustice: House v The King (1936) 55 CLR 499. Some error must be shown in the exercise of discretion, so that the decision to refuse the adjournment is “unreasonable” in a legal sense. In the present case, I do not consider that the exercise of discretion did miscarry in refusing the adjournment request.

16    It was open on the material before the FCC to reach an adverse conclusion about the veracity of the contents of the correspondence. The first appellant was on notice that a medical certificate was required to support his adjournment request and was on notice that the matter would remain listed for hearing if a medical certificate was not provided by 4.30 pm the day before the hearing. The first appellant did not produce a medical certificate and did not attend the hearing. The FCC considered the first appellant’s explanation as to why he had not produced a medical certificate and his reasons for the adjournment request. The FCC set out its reasons for not accepting the truthfulness of those matters put by the first appellant and the FCC was entitled, absent a medical certificate, to disbelieve the first appellant that a medical condition prevented him from attending the hearing.

17    No other ground was advanced by the appellants in support of their appeal and this is sufficient reason to dismiss the appeal. I am, in any event, unable to discern any jurisdictional error in the Tribunal’s decision and I consider that the FCC was correct to dismiss the judicial review application for the reasons given. The first appellant was given full opportunity to put his case before the Tribunal and to produce evidence to substantiate that he satisfied the visa requirements. He did not take advantage of that opportunity and there was no evidence before the Tribunal to indicate that he did meet the visa requirements.

The appeal is dismissed.

Associate:

Dated:    13 December 2013