FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 921

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal from the Federal Circuit Court of Australia filed on 20 April 2017 is taken to be an application for leave to appeal.

2.    The application for leave to appeal is dismissed.

3.    Jitender Singh must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

1    These are reasons for orders made on 9 August 2017

2    By a notice of appeal filed on 20 April 2017, the applicants (Mr Jitender Singh and members of his family unit, Mrs Manisha and Mr Rehaan Kamboj) sought to appeal from the judgment and orders made by a judge of the Federal Circuit Court of Australia on 31 March 2017: see Singh v Minister for Immigration [2017] FCCA 931. The primary judge dismissed their application for judicial review of a decision of the Administrative Appeals Tribunal made on 3 March 2016 to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) visa.

3    Mr Singh applied for the visa in the “direct entry” stream to work in the nominated position of systems (security) analyst (ANZSCO 261112) on 17 October 2014. The related nomination application was lodged by Digital Cloud Systems Pty Ltd (the sponsor) on 16 October 2014. The delegate refused to grant the visa because Mr Singh did not meet cl 187.233 of Sch 2 of the Migration Regulations 1994 (Cth) because the position to which the application related had not been approved at the time of the delegate’s decision.

4    The primary judge dismissed the applicants’ application for judicial review pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) for non-appearance and ordered that the Minister’s costs be fixed in an amount of $6,825. Rule 13.03C(1) provides the Federal Circuit Court with a number of options if a party to a proceeding is absent from a hearing; if the absent party is an applicant, r 13.03C(1)(c) permits the Court to dismiss the application.

Grounds

5    The three grounds set out in the notice of appeal are (as written):

1.    In response to the application of Regional Sponsor Migration Scheme, the case officer requested for certain documents to further process the file on the basis of updated documents, which also includes (1) The roles and responsibilities letter for the nominated position and (2) The Employment contract of the company with the candidate. My immigration agent attached these documents in the file but he submitted the same documents in the candidate visa file instead of the Nomination file of the company. And he supplied all the documents to the case officer except from these two. And after waiting the given date of 28 days, the case officer again requested for the above mentioned documents from the agent but the agent responded that in the visa file not the nomination file. So finally, on the basis of the current information, the case officer took the decision on the file.

2.    After the decision, my employer and I decided to go for the appeal against the decision after the discussion with the agent because they recommended that these are not very strong point to refuse the file. Therefore, the nominator and I filed the MRT in Perth registry. And we have prepared the case but at the time of hearing, the Employer could not attend the hearing date by some reasons. I did not know that until I went to the hearing for my file and the hearing officer put this into my knowledge. And when the nomination MRT was refused, hence the visa MRT was refused.

3.    Then I decided to appeal in the higher court and I got the hearing date for 24th march 2017 but I got the notification of date change by the department for 29th March 2017. Unfortunately, I was seriously ill during that time and I requested for the extension because I was in the hospital. But they gave me the date for 31st March 2017 when I was still not okay to attend the registry and got the negative result again. I e-mailed the registry from the hospital that if they can give me the date after even a couple of weeks but it is my bad luck that they gave me date just after one day when I was still in the hospital. But I wanted to prove myself in front of the judge. I could not even got a chance to present myself and put my opinion on my file. I have very strong grounds to prove the case. Can I please request that if I could get another chance to present myself with all the documents I have prepared and still gathering.

The hearing and nature of application

6    The Minister filed written submissions and was represented at the hearing by his legal representative. Mr Singh filed no written submissions. He appeared at the hearing.

7    The Minister submitted, and I accept, that the orders made by the primary judge were interlocutory in nature and accordingly leave to appeal is required. Further, although the applicants did not file an application for leave to appeal, the Court may treat the notice of appeal as an application and a draft notice of appeal: see Singh v Minister for Immigration and Citizenship [2013] FCA 199 per Mansfield J at [23]-[24] relying (at [23]) on NAOU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 406. I determined that the notice of appeal should be taken to be an application for leave to appeal and that I would treat the grounds as a draft notice of appeal.

8    The Court has a general discretion to consider whether leave to appeal should be granted. Leave will generally not be granted unless the decision from which appeal is sought is attended with sufficient doubt to warrant its reconsideration and 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. These considerations are related. I accept the Minister’s submission that if the proposed appeal is doomed to fail, the application for leave to appeal should not be granted.

9    Since only Ground 3 deals with the primary judge’s decision, I will address it first.

Ground 3

10    The primary judge’s reasons indicate that applicants’ application was originally listed for hearing on 29 March 2017. On that day, Mr Singh sent the Court an email stating that he was unwell and in the Armadale Hospital. The matter was adjourned to 9 am on 31 March 2017. The primary judge noted that Mr Singh wrote to the Court approximately 45 minutes after being advised of this, requesting a further adjournment and stating that he might not be fit to appear on 31 March 2017. Mr Singh attached a discharge summary from the Armadale Health Service which referred to his history of intermittent central sharp chest pain but noted, among other things, that he had been haemodynamically stable throughout his stay and his “vitals” remained normal. He was referred to his general practitioner for further care.

11    The primary judge’s reasons report that at 9.03 pm on 30 March 2017, Mr Singh wrote to the Federal Circuit Court, advising that he had been badly sick, he had been to his doctor, he could not go to work and he had been referred for further chest tests “to find out about the pain case and to see if I had any heart problem”. Mr Singh advised that he was unable to attend the hearing because of the sharp pain and his health condition at the time. He attached a generic medical certificate which stated that he “will be unable to attend his work form 30/03/2017 to 31/03/2017”.

12    In considering whether he should adjourn the hearing on 31 March 2017, the primary judge noted that there was “some evidence”, given on a self-reporting basis, that Mr Singh suffered from chest pains. However, the discharge summary from Armadale Hospital indicated that he was content for his treatment to be limited to supervision by his general practitioner and over-the-counter analgesia. The generic medical certificate did not satisfy the primary judge that Mr Singh was unable to attend Court because it did not address why he might not be able to do so. The primary judge was not satisfied that Mr Singh had made out his case for an adjournment and therefore refused it.

13    After giving the above reasons for refusing Mr Singh’s application for an adjournment, the primary judge noted that: (1) an email from the Minister’s solicitors to Mr Singh advising him of the Court hearing had stated that if he did not attend, an application would be made to dismiss for non-attendance; (2) the matter was called outside both the courtroom in which the hearing was held and on the floor the matter was originally listed for at 9.05 am and 9.20 am; and (3) the Minister’s solicitor had conferred with his office and it had not received a call from Mr Singh explaining his absence. The primary judge was satisfied that Mr Singh was aware of the hearing and had been put on notice of the potential consequences of non-attendance. The primary judge found that in all of the circumstances there was no reason not to dismiss the proceedings.

14    During oral submissions at the hearing of his application for leave to appeal, Mr Singh agreed that the chronology of events was accurate but submitted that the primary judge erred because the hearing on 29 March 2017 was adjourned to 31 March 2017 before the primary judge had received, let alone had time to consider, the discharge advice received from Armadale Hospital and his request for a longer adjournment. He submitted that the primary judge gave insufficient weight to the medical evidence he supplied, being the Armadale Hospital discharge report and the medical certificate, in determining not to adjourn the hearing on 31 March 2017. Ground 3 indicates that Mr Singh characterises his illness as “serious”.

15    The Minister submitted that Mr Singh has not raised any matter which might establish that the primary judge acted on a wrong principle, that he allowed extraneous or irrelevant matters to guide or affect him, that he failed to take into account some material consideration or that his decision is unjust or unreasonable having regard to the facts as found by him: see House v King (1936) 55 CLR 499; HCA 40 at 504-505. The Minister submitted that the primary judge considered all of the medical evidence and the finding that the hearing on 31 March 2017 should not be adjourned was open to him to make for the reasons that he gave. In particular, a medical certificate that a person is “not fit to work” is not adequate to support a finding that a person is not fit to travel to court and participate in a hearing: see Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. I accept these submissions; the decision to refuse an adjournment on 31 March 2017 was open to the primary judge to make in his discretion for the reasons that he gave.

16    Further, no error has been demonstrated in the primary judge’s decision to dismiss the application under r 13.03C(1)(c) in the circumstances described in the primary judge’s reasons.

17    This ground does not warrant reconsideration on appeal.

18    As the primary judge’s decision was made without consideration of the merit of the application for judicial review made to the Federal Circuit Court, the appropriate course would have been for Mr Singh to apply under r 16.05(2)(a) of the Federal Circuit Court Rules to have the order made on 31 March 2017 set aside rather than to seek to appeal the decision to this Court. However, in order to avoid potential injustice, I will briefly consider whether Grounds 1 and 2 have any merit. They substantially reflect the grounds set out in Mr Singh’s application to the Federal Circuit Court.

Grounds 1 and 2

19    In essence, Ground 1 asserts that the migration agent failed to provide to the Department of Immigration and Border Protection documents in support of the nomination application which it requested. The documents had been supplied to the migration agent by Mr Singh’s sponsor.

20    Mr Singh submitted that this error should be taken into consideration as the case officer said that the documents requested were erroneously submitted in his visa application file, not the nomination application file.

21    The Minister submitted that this ground could not succeed for three reasons. First, the Federal Circuit Court had no jurisdiction to review the decision of the delegate which was a primary decision: see ss 476(2)(a) and 476(4) of the Migration Act 1958 (Cth). Second, Mr Singh had no standing to make an application for review by the Tribunal of the delegate’s decision in relation to the nomination application because that application was made by the sponsor: see s 478(a) of the Migration Act. Third, the decision made by the Tribunal was the only decision open to it on the evidence before it. I accept these submissions: any appeal based on Ground 1 would be doomed to fail. The information required to satisfy cl 187.233 of the Migration Regulations had not been supplied to the Department and, as a result, the sponsor’s nomination application had not been approved. Further, Mr Singh told the Tribunal at the hearing that the sponsor had withdrawn the nomination (see Ground 2 below).

22    Ground 2 varies slightly from the ground of the application to the Federal Circuit Court in that the ground of the application to the Federal Circuit Court states that “the Employer did not want to fight the appeal, but afterwards he was ready”. It also says that “the MRT case officer acknowledged me that the Employer did not turn up but he did not withdraw the MRT Nomination”.

23    The Tribunal’s decision record in relation to the sponsor’s nomination application indicates that the sponsor did not attend the hearing and no request for adjournment was made, even though on 18 January 2016, the Tribunal wrote directly to the sponsor advising that it was unable to make a favourable decision on the information it had before it alone and inviting the employer to the hearing: [4], [10]-[12]. The delegate’s decision record indicated that the sponsor’s nomination did not satisfy r 5.19(4) of the Migration Regulations because there was no job description/duty statement and therefore the delegate could not be satisfied that the nominated position met the required skill levels and because no employment contract was provided, the delegate could not be satisfied that the nominee would be employed for two years in full-time employment without an express exclusion of extension: [18]. The Tribunal also wanted to ask questions about the nature of the tasks to be performed in the nominated position: [19]. The Tribunal therefore affirmed the delegate’s decision.

24    In relation to Mr Singh’s application, the Tribunal’s decision record notes that to meet the criterion in cl 187.233, (among other things) the person who will employ Mr Singh must be the person who nominated him and that the nomination has been approved and not subsequently withdrawn: [11]. The decision record at [13] records that the decision in relation to the sponsor’s nomination application was refused by the Department. The decision record at [14] states:

At the hearing, the Tribunal put to the applicant, in accordance with the procedure under s 359AA of the [Migration] Act, that without an approved nomination, the applicant would not meet necessary criteria to satisfy cl. 187.233 (specifically cl.187.233(3)) for the grant of the visas and that the application would, on that basis, be unsuccessful. The applicant did not require additional time to respond and conveyed to the Tribunal that he understood and accepted that in such circumstances, it would not be open for the visa applications to be successful given this is one of the requirements. The applicant also told the Tribunal that Mr Paulose Doss of the nominator employer, Digital Cloud Systems Pty Ltd, had told him that the nomination for the position had been withdrawn. The applicant told the Tribunal that he had received an e-mail from Mr Doss to that effect. The Tribunal accepts the applicant’s oral evidence in this regard.

25    Mr Singh confirms that that is what he told the Tribunal. He says that the different contention in his application to the Federal Circuit Court is based on information he received after the Tribunal hearing.

26    Ground 2 has no merit. In its terms, it is a simple recitation of facts. I accept the Minister’s submission that the Tribunal relied on information provided by Mr Singh which was given genuinely and the fact that he found out later that the information was wrong reveals no jurisdictional error by the Tribunal. The ground also raises no appealable error by the primary judge.

Conclusion

27    Mr Singh’s application for leave should be dismissed since it raises no ground on the basis of which there can be sufficient doubt that the primary judge’s decision was wrong. In my view, an appeal on the proposed grounds would be doomed to fail so no injustice results from refusing leave. Leave to appeal is refused and the application is dismissed. Mr Singh must pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    15 August 2017