FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2014] FCA 937

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1    This is an application pursuant to r 36.05(1) of the Federal Court Rules 2011 (Cth) in which the applicant seeks an extension of time within which to file a notice of appeal from the decision of the Federal Circuit Court of 22 May 2014 in Singh v Minister for Immigration & Anor [2014] FCCA 1411. In that decision the Federal Circuit Court dismissed with costs the applicant’s application for adjournment of the hearing and dismissed an application for review of a decision of the Migration Review Tribunal (“Tribunal”) for want of appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2011 (Cth).

2    The Minister has submitted that the decision of the Federal Circuit Court was interlocutory in nature, having been dismissed due to a lack of appearance, and that as a consequence the application for an extension of time should properly be regarded as an application for an extension of time to seek leave to appeal, as opposed to an extension of time to appeal.

3    The Minister opposes the grant of an extension of time to seek leave to appeal on the basis that no purpose would be served granting an extension of time as any application for leave to appeal would be bound to fail.

Background

4    The applicant is a citizen of India and arrived in Australia on 28 March 2008 holding a student visa. He was granted a further student visa on 1 June 2010. This visa was valid until 10 September 2012. The applicant applied for a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (“Migration Act”) on 9 September 2011. The application for this visa is the subject of these proceedings.

5    The delegate of the Minister refused to grant the visa on 21 October 2011.

6    On 15 November 2011, the applicant applied to the Tribunal for review of the delegate’s decision. In his application to the Tribunal, the applicant listed details for the appointment of a representative, Mr Gagandeep Singh.

7    By letter dated 29 May 2013 the Tribunal wrote to the applicant’s authorised representative at the address provided, inviting the applicant to appear before the Tribunal on 24 June 2013. The letter invited the applicant to provide any information or documents which he considered relevant to the review, including:

The notice sent to you by your education provider certifying that you did not achieve satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (commonly referred to as a “section 20 notice”.

You are also invited to provide the following:

A certificate of enrolment as required by cl 572.222, or evidence that you are currently enrolled in, or are the subject of a current offer of enrolment in a registered course as set out in cl 572.231.

8    Extracts of clauses 572.222 and 572.231 were also included in the letter.

9    On 24 June 2013 the applicant sent a facsimile to the Tribunal stating that:

I will not be able to attend my MRT hearing scheduled today due to my ill health. I will appreciate if I could seek extension for my MRT hearing.

10    A medical certificate stating that the applicant was receiving medical treatment for the period 19 June 2013 to 26 June 2013 was attached to the facsimile.

11    In a letter dated 27 June 2013 the Tribunal wrote to the applicant’s authorised representative advising that the Tribunal had rescheduled the hearing to 10 July 2013. The Tribunal contacted the applicant’s authorised representative by telephone to inform him of the postponement.

12    On 10 July 2013, the applicant sent a facsimile to the Tribunal seeking a further postponement of the Tribunal hearing. The applicant advised that he was “out of the country visiting his father who was sick in India for 25 days”. The applicant provided a copy of his travel itinerary indicating that he would be returning to Melbourne on 15 August 2013. The applicant also provided a copy of a medical certificate from the Memorial General & Eye Hospital for a Mr Jagir Singh (who is presumably the applicant’s father) dated 5 January 2013.

13    The applicant was granted a further postponement of the Tribunal hearing to 26 August 2013, which the applicant’s authorised representative was advised of by letter dated 25 July 2013.

14    Neither the applicant nor his authorised representative appeared at the hearing before the Tribunal on 26 August 2014.

15    After concluding that it had taken all steps available to offer the applicant an opportunity to appear before it and to provide evidence in relation to the review, the Tribunal decided to proceed to make a decision in accordance with s 362B(1) of the Migration Act.

16    The Tribunal identified the issue for determination as whether the applicant met the enrolment requirements for a student visa. Subject to limited exceptions, which did not arise, clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Migration Regulations 1994 (Cth) (“Regulations”) require that at the time of decision an applicant must be enrolled in a course of study that is a principal course and is of a type specified for the relevant subclass at the time of application.

17    The Tribunal found that there was no evidence before it to support a finding that the applicant was enrolled in or had a current offer of enrolment in any relevant course of study. It followed that the requirements of clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations were not met. The Tribunal found further that there was no evidence the applicant met the criteria for any other Class TU visa.

18    On 27 August 2013, the Tribunal affirmed the delegate of the Minister’s decision not to grant the applicant the visa. The applicant was notified of the Tribunal’s decision by letter dated 28 August 2013.

19    On 6 September 2013, the applicant’s authorised representative wrote to the Tribunal by facsimile advising that “due to some medical issue my client needs to fly offshore last night.” The authorised representative requested that the Tribunal provide an extension until the applicant’s return. The facsimile also attached a copy of the applicant’s ticket confirmation and a medical certificate for Mr Jagir Singh dated 26 August 2013.

20    On 12 September 2013, the Tribunal wrote to the applicant’s authorised representative advising that the Tribunal had already made its decision on 27 August 2013. The Tribunal noted in its letter that once it has made a decision under the Act, it becomes functus officio and has no power to take any further action on the review.

Application to the Federal Circuit Court

21    The applicant filed an application in the Federal Circuit Court for judicial review of the Tribunal’s decision on 23 September 2013.

22    On 22 May 2013, the day on which the application was scheduled for hearing, the applicant wrote to the Federal Circuit Court by email, attaching a medical certificate which stated:

Receiving medical treatment for the period from 20/05/2014 to 24/05/2014

He will be unfit to attend his usual occupation

23    The Federal Circuit Court treated the applicant’s email as an informal application for an adjournment. The judge below concluded that having regard to the facts and circumstances of the case, including the fact that the medical certificate did not provide any details as to the nature of the applicant’s medical condition, the medical certificate was insufficient to explain the applicant’s absence and inability to appear or seek leave to appear by telephone or video.

Application to this Court

24    The applicant’s application for an extension of time to file his notice of appeal (or seek leave to appeal as submitted by the Minister) relies on the following ground, stated in the applicant’s affidavit accompanying the application, affirmed 17 June 2014:

Because I received letter on 13/June/2014 aff that to only after I had send email on 12 June 2014 regarding the same. I did not get retuifte [sic] time of 21 days.

(Errors in original.)

25    The draft notice of appeal filed 17 June 2014 contains the following grounds:

1.    Appealing against the Federal Circuit decision.

2.    Review of the MRT decision

Decision of primary judge

26    In relation to the application before the Court below, the learned primary Judge stated at [3] in the judgment below:

The grounds that the applicant pursues in his application appear on their face to indicate a desire to challenge the merits of the Tribunal’s decision stating that “I have all the evidence of [sic] to prove that, I am genuine student.”

27    Relevantly his Honour continued:

7.    In his email which is somewhat difficult to read due to the punctuation, or lack thereof, he says:

My name is Lakhbir Singh and my file number is MLG 1565/13 .My hearing date is 0n 22 may 2014 and I got my mostly all documents but from last 2 weeks I am not feeling well and it is very hard for go to Melbourne on long travel .i am going to attached my medical certificates and that certificate as well when immigrations apply section 20 on me but on that time I gave them my evidence and they allow to me for continue study but when I applied my student visa they refused because they said you did not complete your pervious study but that already has been cleared so I have already completed diploma in hospitality management .i was good student in study and I want to continues my study in advanced diploma in business and then I am going for degree as well for bright future so please can I get any next hearing date.

(Errors in original.)

8.    He supports this email with a scan of a medical certificate from a doctor in Wodonga which simply says that he is “RECEIVING MEDICAL TREATMENT FOR THE PERIOD FROM 20/05/2014 TO 24/05/2014” and then goes on to say “He will be unfit to attend his usual occupation”. No details of what the medical condition is nor why it would be such so as to prevent him from appearing or at the very least seeking leave to appear by telephone or video from presumably Wodonga where the medical certificate seems to have been issued.

9.    In this case I have regard to the decisions of the Full Court of the Federal Court in NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 and the decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. In these cases the Full Court and Justice Lindgren found that such certificates were inadequate to properly found an adjournment application or, on the best reading of those decisions for the applicant, they were at least decisions where medical certificates in similar terms were insufficient to persuade the courts on those previous occasions on the facts of the particular cases.

10.    When I turn to the facts and circumstances of this case and look at the matter as a whole it seems to me that this certificate is not sufficient to explain the applicant’s absence nor to properly found an adjournment application.

11.    In the circumstances I therefore refuse the application for an adjournment. As the applicant has not attended I therefore dismiss the applicant’s application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

Application to this Court

28    In this case the applicant has brought an application to extend the time in which to file a notice of appeal from the decision of the Federal Circuit Court below. The decision of this Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 sets out principles relevant to the exercise of the Court’s discretion to extend time in which to file a notice of appeal. The merit of the issues raised in the proposed substantive appeal is an important issue for consideration. In this case his Honour below refused an application for adjournment. The decision of a judge to adjourn a hearing is an interlocutory decision involving the exercise of judicial discretion: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]; Goldberg v Morrow [2004] FCA 1490 at [36]. A decision involving the exercise of judicial discretion will be set aside by an appellate court only in circumstances where some error has been made in exercising the discretion: House v The King (1936) 55 CLR 499 at 504.

29    In this case the applicant has brought an application to extend the time in which to file a notice of appeal from the decision of the Federal Circuit Court below. The decision of this Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 sets out principles relevant to the exercise of the Court’s discretion to extend time in which to file a notice of appeal. The merit of the issues raised in the proposed substantive appeal is an important issue for consideration. In this case his Honour below refused an application for adjournment.  The decision of a judge to adjourn a hearing is an interlocutory decision involving the exercise of judicial discretion: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]; Goldberg v Morrow [2004] FCA 1490 at [36]. A decision involving the exercise of judicial discretion will be set aside by an appellate court only in circumstances where some error has been made in exercising the discretion: House v The King (1936) 55 CLR 499 at 504.

30    The medical certificate produced to the Court below in respect of the adjournment sought simply stated that the applicant was receiving medical treatment and would be unfit to attend his usual occupation. His Honour below found that the medical certificate was inadequate to properly found an adjournment application. The authorities upon which his Honour relied, namely NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, amply support his Honour’s view. More recent authorities for this proposition include SZNRO v Minister for Immigration and Citizenship [2010] FCA 137 and SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210.

31    In my view no error is attendant upon the exercise of his Honour’s discretion to refuse an adjournment in these circumstances.

32    Further, and in any event, the decision below was an interlocutory decision in respect of which leave to appeal is required. In an application for leave to appeal against an interlocutory decision, relevant questions for consideration by the Court are:

    whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered; and

    whether substantial injustice would result if leave were refused, supposing the decision to be wrong (DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398).

33    Even if the question before the Court was whether the Court ought grant leave to appeal from the decision of the Federal Circuit Court on the merits of the case before that Court, and specifically in respect of findings made by the Tribunal, the correct answer would be to refuse such an application. This is because, on the material before the Court, there is no merit in the grounds of appeal set out in the draft notice of appeal filed by the applicant. I have formed this view in light of facts including:

    The applicant similarly failed to appear before the Tribunal, and in that case without explanation.

    The Tribunal was under no obligation to inquire as to the reasons why the applicant did not appear at the hearing: NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592.

    The Tribunal did, however, consider whether its letters notifying the applicant of hearing dates were correctly sent to the address of the applicant, and found in the affirmative.

    It was reasonable in the circumstances for the Tribunal to proceed to make a decision in accordance with s 362B of the Migration Act: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

    Clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations required the applicant to establish that he was enrolled in, or had a current offer of enrolment in, any applicable course of study. The Tribunal found that there was no evidence before it of this.

    The Tribunal also found that there was no evidence that the applicant met the criteria for any other type of Class TU visa.

34    The grounds set out by the applicant in the draft notice of appeal filed in these proceedings merely invite consideration of the decision of the Federal Circuit Court and the Tribunal. I am unable to detect any error in the decision of the Court below, or jurisdictional error of the Tribunal, warranting a finding in the applicant’s favour in this appeal.

Conclusion

35    The application in this Court is framed in terms of an application for an extension of time to appeal. In view of the lack of merit in the applicant’s substantive case, as well as the complete lack of merit in respect of the case for extension of time and the necessity for leave to appeal, the application should be dismissed with costs.

Associate:

Dated:    28 August 2014