FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 138

THE COURT ORDERS THAT:

1.    The application for leave to appeal the decision of the Federal Circuit Court is dismissed with costs in the amount of $2,000.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    The applicant, Mr Indervir Singh, seeks leave to appeal from the decision of the Federal Circuit Court (the FCC) dismissing his application for judicial review from a decision of the Migration Review Tribunal (the Tribunal). By its decision, the Tribunal affirmed the decision of an authorised delegate of the First Respondent to refuse to grant him a Skilled (Provisional) (Class VC) (subclass 485) (Skilled Graduate) visa (the skilled visa). The applicant contends that the decision below miscarried on the ground that the Federal Circuit Court proceeded summarily to dismiss his application under r 13.03C of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) in circumstances where he was sick and unable to attend the hearing, and that it ought to have found that the Tribunal’s decision is invalid by reason of a failure to afford him a fair opportunity to appear.

2    Rule 13.03C provides that the Federal Circuit Court has a discretion among other things to dismiss an application where the applicant is absent from a hearing (subr (1)(c)). Under that rule, the Court may relevantly also adjourn the hearing (subr (1)(a)), order that there is not to be any hearing unless the proceeding is again set down for hearing or any other steps that the Court directs are taken (subr (1)(b)), or proceed with the hearing generally or in relation to any claim for relief in the proceeding (subr (1)(e)). The Court below identified only r 13.03C as the basis upon which the application was dismissed and not the subrule. However, it is apparent from the fact that the Court dismissed the application purely on the ground of the applicant’s failure to appear, and did not embark upon any consideration of the merits of the application for judicial review, that it relied upon subr 13.03C(1)(c). As such, the Minister rightly submitted that leave to appeal is necessary under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) because the decision below is interlocutory: Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 at [20]-[22] McKerracher J (following Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]-[5] (Bromberg J)).

(1)    BACKGROUND

3    The criteria for the grant of the skilled visa to be satisfied at the time of decision is prescribed pursuant to s 31(3) of the Migration Act 1958 (Cth) (the Act) by reg 2.03 and Part 485.2 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly cl 485.213 of Sch 2 to the Regulations prescribed a primary criterion to be satisfied at the time of application that the applicant demonstrate that he meets the “Australian study requirement”. Reg 1.15F provides that a person satisfies the “Australian study requirement” if the applicant satisfies the Minister that he or she has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course (or courses) that is registered, conducted in English, was completed within a specified time frame, and was undertaken by the applicant while in Australia as a holder of a visa authorising the applicant to study.

4    The applicant arrived in Australia on 18 July 2009 as the holder of a Vocational Education and Training Sector (subclass 572) student visa and is currently the holder of a bridging visa pending the final determination of these proceedings. He applied for the skilled visa on 15 September 2011. In his application he nominated “nurseryperson” as his skilled occupation and stated that he had completed a “Diploma of Horticulture” at the Imperial College of Trade which he purportedly undertook from 5 August 2009 to 15 August 2011. However, the applicant failed to provide any evidence with the application to substantiate his claim to have undertaken the diploma. Nor did he provide any such evidence subsequently.

5    On 23 January 2013, the Delegate refused the grant of the skilled visa under s 65(1)(b) of the Act because cl 485.213 was not met. On 13 December 2015, the Tribunal refused his application for review on the ground that there was insufficient evidence before it to find that the course of study the applicant claimed to have completed satisfied the “Australian study requirement” set out in subreg 1.15F(1). Accordingly, the Tribunal found that he failed to meet the criterion prescribed by subclause 485.213 for the grant of a subclass 485 visa.

6    The application for judicial review in the Court below was refused. The hearing in the Court below was scheduled for 10:00 am on 14 October 2014 but the applicant did not appear. At about 10:30 am the Court unsuccessfully attempted to contact the applicant on the mobile phone number stated on the application for review. In all of the circumstances, the Court below nonetheless proceeded to dismiss the application summarily under r 13.03C of the FCC Rules.

(2)    APPLICATION FOR AN ADJOURNMENT

7    Mr Singh’s application for leave to appeal was initially set down for hearing before me on 23 February 2015 at 10:15 am. However, Mr Singh applied by facsimile for an adjournment shortly before 10:00 pm on Sunday, 22 February 2015. The applicant stated simply that he was unable to attend the court hearing and attached his medical certificate. The “Certificate of Sickness” was wholly inadequate to support the application for an adjournment, stating only that he is suffering from “medical condition” and is “unfit for work” from 22-25 February 2015. It did not explain why he was unable to attend the court hearing, identify the nature of the medical condition, or even disclose the identity of the medical practitioner and his or her qualifications.

8    Nonetheless and notwithstanding what appears to be a pattern of non-appearance by the applicant in matters pertaining to his visa application, I considered it fair to give the applicant the opportunity to remedy the deficiencies in his evidence in support of his adjournment application and relist the matter to 26 February 2015. Counsel for the Minister also acknowledged that if the matter were relisted to 26 February 2015 he would not suffer any prejudice save as to costs. In the circumstances, I therefore made orders adjourning the hearing that day, and requiring the applicant to file and serve evidence of the medical condition that is said to have prevented him from attending the hearing on 23 February 2015 such as a medical report from his treating medical practitioner (the identity of whom should be disclosed) attached to an affidavit or statutory declaration sworn or affirmed by either the applicant or his treating medical practitioner. The orders also noted that if he did not appear at the hearing on 26 February 2015, his application for leave to appeal may be heard and determined in his absence on that day, including the making of any orders as to costs.

9    The court file discloses that the orders were sent to Mr Singh by Express Post on Monday, 23 February 2015, and the tracking receipt states that the orders were delivered at 10:46am on Tuesday, 24 February 2015. No further evidence to explain his non-attendance at the hearing on 23 February 2015 was received. Mr Singh also did not appear at the hearing on 26 February 2015 which began a little late affording Mr Singh more time in case he was running late.

10    In addition, I note that no written submissions were filed by the applicant despite orders from the Registrar made on 3 November 2014 providing for the applicant to file and serve a written outline of submissions no later than 10 days before the hearing. However, detailed written submissions were filed and served by the Minister opposing the grant of leave to appeal in accordance with the Registrar’s orders.

11    In all of the circumstances, I considered that Mr Singh had been provided with ample opportunity to appear and make submissions on his application for leave, and that it was appropriate to proceed to hear the application for leave to appeal on 26 February 2015 in his absence.

(3)     CONSIDERATION

12    I would emphasise at the outset that neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal’s decision to refuse to grant a visa to the applicant. The jurisdiction of the Federal Circuit Court is limited to considering only the legality of the Tribunal’s decision to refuse to grant the applicant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, in the event that leave to appeal were granted, this Court is required on an appeal from the Federal Circuit Court under s 24 of the FCA Act to consider whether there is error in the decision of the Court below. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant’s claims.

13    In determining whether or not to grant leave to appeal in the exercise of discretion, the primary considerations are whether, in all of the circumstances, the decision of the Court below is attended with sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result if leave were refused, assuming the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court). These considerations are not separate but bear upon each other.

14    The sole ground of appeal in the draft notice of appeal is as follows:

Federal Circuit court dismissed my case because I was sick and not able to attend hearing. I have faxed Court my Medical Certificate. MRT refused my review application stating that I don’t satisfy cl.485.213. Member asked himself question that at the time of application cl 485.213 states that applicant should have finished 2 years full time study in last 6 months before visa application. Further it claimed that Tribunal has not received any proof that study. I was sick and have medical certificate. Tribunal failed to contact me over the phone or arrange any other date for hearing. As tribunal failed to give me fair chance to appear its decision has “Jurisdictional Error”

15    It is not in dispute that the Tribunal hearing proceeded in the absence of the applicant. However I do not see any grounds for contending that in so doing the Tribunal could have acted in breach of its statutory obligations of procedural fairness or the requirements of the natural justice hearing rule at common law, even if that rule had not been effectively displaced by s 357A of the Act: SAEED v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [40]-[42] by analogy; Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; [2011] FCAFC 21 at [40] (Buchanan J). The Tribunal has power to make a decision on the review under s 362B of the Act without taking any further action to allow or enable the applicant to appear before it where, as here, the applicant has been invited to a hearing before the Tribunal under s 360 of the Act and fails to do so. In so providing, s 362B reflects the position at common law, the obligation of procedural fairness being discharged by the provision only to the person affected by the decision of an opportunity to be heard. There is no requirement that the person concerned in fact take advantage of that opportunity: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J).

16    In addition, the applicant was advised by the Tribunal of the need to ensure that his contact details were up to date, that if he was unable to participate in the hearing he should seek an adjournment as soon as possible for which very good reasons would be required, and that if he did not participate in the scheduled hearing, the Tribunal may make a decision without taking any further action to enable him or allow him to appear before it (Tribunal reasons at [8]-[11]). In addition, the Tribunal made five attempts at the time for which the hearing was set down to contact the applicant on the telephone number he had provided for the purposes of the review application (Tribunal reasons at [12]). In those circumstances, no breach of any statutory requirement of procedural fairness is apparent from the decision of the Tribunal.

17    Nor in any event do I see any error in the decision of the Court below in refusing what the primary judge correctly treated as an application for an adjournment, being a one page document headed “Henley Beach Physiotherapy” dated the day before the hearing. In order to establish error, it would be necessary for the applicant to establish that the exercise of discretion by the primary judge had miscarried in the sense identified in House v R (1936) 55 CLR 499 at 504-505, namely:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

18    However no such error is identified or apparent from the reasons of the Federal Circuit Court. First, the Court below had regard to the fact that the document from Henley Beach Physiotherapy was not a medical certificate from a medical practitioner, does not state that the applicant would be unable to come to Court to sit down and speak in Court, and does not explain what is meant by the opinion expressed that the applicant would be unable to work for the next three days. In so holding, his Honour considered the case to be closely analogous to that in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488. In that case, a late adjournment application was accompanied by similarly deficient documents. In the passage particularly relied upon by the Court below, Davies J held at [13]:

These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.

19    Secondly, the Court below also had regard to the failure by the applicant to turn up at the appointed time before the Tribunal.

20    The Court’s reasons for refusing the adjournment are unexceptional in my view and provide an ample basis for refusing the adjournment.

21    Finally, the primary judge stated at the end of his reasons at [10] that:

Unfortunately instances are on the increase of applicants in Migration matters failing to attend Court on the day listed but to instead at the last minute sending [sic] a note saying that, for health reasons, they are unable to attend court. This is most [sic] unfortunate trend and a complete waste of the Court’s time and resources.

22    In this regard, I do not read these observations as indicating that his Honour did not properly turn his mind to the individual circumstances of the case before him in deciding to refuse the adjournment application, but rather as properly identifying the difficulties which late applications of this kind may cause.

23    For these reasons the application for leave to appeal should be dismissed with costs. Costs should be set in the amount of $2,000 so as to include costs thrown away by reason of the late adjournment application.

Associate:

Dated:    4 March 2015