FEDERAL COURT OF AUSTRALIA

Singha v Minister for Home Affairs [2018] FCA 999

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement pursuant to the immediately preceding direction, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

5.    Within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

6.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    On 1 February 2018, the applicant filed an application under s 39B of the Judiciary Act 1903 (Cth) for relief in relation to a decision of the Federal Circuit Court of Australia made on 24 January 2018, dismissing with costs an application under r 16.05 of the Federal Circuit Court Rules 2011 (Cth) (FCCA Rules) for reinstatement of proceedings. Rule 16.05(2)(a) provides a discretionary power in the Federal Circuit Court to vary or set aside its judgment or order after it has been entered if the order was made in the absence of a party.

2    The Federal Circuit Court proceedings were an application for judicial review of a decision of the Administrative Appeals Tribunal made on 25 January 2017, which affirmed a decision of the delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Background

3    The applicant arrived in Australia on 22 August 2013 using a passport in the name of Dipak Singha. When he appeared before the Tribunal, the applicant produced a passport issued by the People’s Republic of Bangladesh on 13 July 2016 in the name of Barua Champak. He also produced a NSW driver’s licence in that name. He claimed Barua Champak was his true identity. Nothing turns on those facts in this application.

4    When the applicant arrived in Australia on 22 August 2013, he held a visitor visa, which expired on 22 September 2013. He subsequently applied for a protection visa but the application was not successful.

5    On 24 June 2016, the applicant applied for a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). A medical treatment visa may be granted to a person seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The criteria for the grant of the visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth).

6    Clause 602.213 of Schedule 2 sets out the criteria which applied to applicants who were in Australia at the time of the relevant visa application. As at the date of the applicant’s visa application, cl 602.213(5) applied to the applicant such that he needed to satisfy criteria 3001, 3003, 3004 and 3005 in Schedule 3 to the Regulations.

7    Clause 3001(1) of Schedule 3 provided that an application for a medical treatment visa is valid if it is made “within 28 days after the relevant day”, as defined in subclause (2). The “relevant day” for the applicant was the last day on which he held a substantive visa. The last substantive visa he held was the visitor visa that expired on 22 September 2013. The applicant applied for the medical treatment visa on 24 June 2016, more than two years outside of the prescribed period. The applicant did not satisfy cl 3001(1), and accordingly, did not meet the requirements of cl 602.213(5) of Schedule 2. It followed that he did not qualify for the grant of a medical treatment visa. On that basis, the Tribunal affirmed the Minister’s decision not to grant the visa.

8    Clause 602.213 of Schedule 2 and criteria 3001 of Schedule 3 were considered by Perram J in Sayadi v Minister for Immigration and Border Protection [2014] FCA 1235. His Honour noted that the applicant in that case was not eligible for a visa on the basis of his failure to apply within the prescribed period, and that the Minister was bound to refuse his application without the exercise of any discretion: at [18]. His Honour noted that the applicant’s case was “inevitably affirmed” by what was then the Migration Review Tribunal: at [19]. His Honour held that the Federal Circuit Court was correct to conclude that the application for judicial review could not succeed. Clause 602.213 of Schedule 2 and clause 3001 of Schedule 3 were relevantly in the same form.

Federal Circuit Court

9    The applicant applied to the Federal Circuit Court for review of the Tribunal’s decision. The Federal Circuit Court proceedings were set down for hearing on 16 October 2017. On 12 October 2017, the applicant sent a facsimile to the court requesting an adjournment of the hearing. The facsimile included the following:

I like to bring at your kind attention that I am currently very sick. I have been suffering from several medical conditions. I am too sick to walk. I have been undergoing treatment for last two weeks. I am not in a situation to attend the hearing on current scheduled date.

I request your honour to reschedule my hearing date at least after 8 (eight) weeks from the current date.

I have attached a medical certificate from my treating doctor Dr Md Zahidul Haque as evidence of my sickness.

10    The medical certificate of Dr Haque, which was annexed to the facsimile, was dated 11 October 2017. It was in the following terms:

Mr Champak Barua (Dipak Singha) has a medical condition and will be unfit to attend court from 11/10/2017 to 11/11/2017 inclusive.

Mr Champak Barua will be suitable for normal occupation from 12th November 2017

Please do not hesitate to contact me, if needed.

11    On 13 October 2017, the Federal Circuit Court registry telephoned the applicant to inform him of the Judge’s decision to proceed with the hearing on 16 October 2017. The applicant failed to appear at the hearing. The Federal Circuit Court dismissed the application for judicial review in the applicant’s absence pursuant to r 13.03C(1)(c) of the FCCA Rules, which gives the court power to dismiss an application if the applicant is absent from a hearing. On 16 November 2017, the applicant applied under r 16.05(2) of the FCCA Rules for an order reinstating the proceedings. That reinstatement application was listed for hearing on 5 December 2017. The applicant failed to appear at the scheduled hearing, and the Federal Circuit Court dismissed the application for reinstatement in the applicant’s absence pursuant to r 13.03C(1)(c) of the FCCA Rules. The applicant explained that he did not receive notification of that hearing and I accept what he says.

12    On 20 December 2017, the applicant filed a further application for reinstatement to set aside the court’s orders of 5 December 2017, and in effect to set aside the earlier orders of 16 October 2017 dismissing the substantive application, namely the application for judicial review of the Tribunal’s decision. This second reinstatement application was listed for hearing on 24 January 2018. The applicant attended that hearing and made submissions in support of his application.

13    In considering whether to exercise the discretion under r 16.05(2) to set aside the orders made in the applicant’s absence, the court considered three matters.

14    First, his Honour addressed the question of prejudice to the Minister and found this did not weigh against the exercise of the discretion: at [6].

15    Secondly, his Honour considered the applicant’s explanation for his absence at the hearing on 16 October 2017. This included consideration of the applicant’s affidavit and the medical certificate annexed to the facsimile, which had been sent to the court on 12 October 2017. The content of the affidavit before the Federal Circuit Court was relevantly the same as the content of the affidavit filed in this Court on 1 February 2018. His Honour found that the medical certificate was unsatisfactory because, amongst other things, it did not explain the medical condition from which the applicant suffered or why he was unable to attend court. Nevertheless, his Honour accepted that the applicant had a swollen leg and was under treatment at the relevant time: at [11]. His Honour found that there were factors weighing, to some extent, in favour of the applicant, and to some extent, against him with respect to the second issue, namely his explanation for his absence from the hearing on 16 October 2017.

16    Thirdly, his Honour considered whether there was sufficient merit in the substantive application to warrant making an order setting aside the order made on 16 October 2017. His Honour considered this to be the “critical factor”: at [12]. The applicant advanced various submissions in support of the substantive application and its merit. His Honour stated at [14]: “The difficulty with all of those grounds and complaint is that the applicant was never in a position to satisfy the criteria for the grant of the visa which he had sought”, referring to the criteria in cl 602.213(5) of Schedule 2 and cl 3001 of Schedule 3 to the Regulations, which prescribed a 28-day period within which a medical treatment visa application could validly be lodged. His Honour stated at [17]:

The Tribunal’s findings were based upon the applicant’s own evidence about the visas that he held on the date of his application in his unsuccessful application for a protection visa. It proceeded on a correct understanding of the requirements of the criteria for the grant of the visa and the decision to affirm the delegate’s decision was inevitable on the basis of those findings. For those reasons, none of the substantive grounds raised by the applicant, either in his affidavit, orally today, or in his application, have any prospect of success.

17    Accordingly, notwithstanding there was some explanation for the applicant’s failure to attend the hearing on 16 October 2017, the Federal Circuit Court declined to exercise the discretion in r 16.05(2)(a) on the basis that any such exercise of discretion would be futile because the substantive application would be bound to be dismissed: at [19].

The Present Application

18    The applicant applies to this Court for relief under s 39B of the Judiciary Act 1903 (Cth) against the decision of the Federal Circuit Court to dismiss the reinstatement application. This Court has no jurisdiction to hear an appeal from that decision. However, it does have original jurisdiction to entertain applications for constitutional writs: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [10]-[11] (the Court).

19    The Minister submitted that this Court did not have jurisdiction to issue a writ of certiorari absent a basis for the grant of mandamus or prohibition. However, I have proceeded on the basis that this Court does have such jurisdiction, at least in a matter which is brought in this Court’s original jurisdiction (and not the subject of a remitter from the High Court): EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 218 FCR 316 at [49]-[55] (per Dowsett J, with whom North and Bromberg JJ agreed); Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302 at [29] (per Katzmann J, with whom Dowsett and Tracey JJ agreed); DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [42] (the Court). A writ of certiorari is available for jurisdictional error and for non-jurisdictional error of law on the face of the record: DMI16 at [42]. It is not necessary to dwell on what comprises the record because on any view there is no error here, whether jurisdictional or otherwise.

20    In his originating application, the applicant claimed he was denied procedural fairness by the Federal Circuit Court. In his affidavit affirmed on 30 January 2018, the applicant also made two complaints in relation to the Tribunal’s decision. At [4] and [5] of his affidavit, the applicant said:

4.    I state the Administrative Appeals Tribunal erred for its failure to consider the compelling reasons for waiving 3001 criteria in respect of my not holding a substantive visa.

5.    The Tribunal erred not considering my evidence and reasons for applying for a sub-class 602 visa.

21    As to the assertion of a denial of procedural fairness in the Federal Circuit Court, the applicant stated in his originating application:

a)    The applicant applied for a Medical Treatment Visa in Australia. The applicant sent a medical certificate dated 11 October 2017 sent on 12 October 2017 to the Federal Circuit Court Registry to defer the hearing on medical ground.

b)    Despite submitting the medical certificate, Judge Smith made an order on 16 October 2017 dismissing the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

c)    Judge Smith in the Federal Circuit Court made an order on 5 December 2017, dismissed the application for reinstatement pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The applicant was denied of procedural fairness.

d)    Judge Smith in the Federal Circuit Court gain [sic] made an order on 24 January 2018 dismissing the application in a case filed on 20 December 2017. The applicant was again denied of procedural fairness.

22    In his affidavit affirmed on 30 January 2018, the applicant stated (at [6]-[16]):

6.    Federal Circuit of Australia invited me to attend a hearing on 16 October 2017 at 2:15 p.m. in relation to my application SYG463/2017 in the Court.

7.    During that time, I had been suffering from several medical conditions.

8.    I was too sick to walk and was not able to attend the hearing.

9.    My leg swelled up and was under treatment.

10.    I was advised by doctor that I shall be unfit from any activities even to attend the court from 11/10/2017 to 11/11/2017.

11.    I have been suffering from depression due to problems with my wife.

12.    The family issues have been contributing to a great extent for deteriorating of my health conditions.

13.    My mental state does not allow me to concentrate in my day to day activities.

14.    I did not attend at the hearing on 16/10/2017 due to my health conditions.

15.    I have attached herewith a letter from doctor from Dr Zahidul Haque dated 11 October 2017 as evidence of my health conditions which prevented me from attending at the hearing in the Federal Circuit of Australia on 16 October 2017.

16.    I request Honourable Federal Circuit Court [sic] Judge to consider my circumstances that prevented me from attending the hearing at the Court and give me an opportunity to attend another hearing granting sufficient in the Federal Circuit of Australia in relation to my application to review the decision of the Administrative Appeals Tribunal refusing my application for a subclass 602 visa.

23    The applicant was not denied procedural fairness in the Federal Circuit Court. He was afforded a proper opportunity to present his case on his application for reinstatement heard on 24 January 2018. He availed himself of that opportunity. Nor was he denied procedural fairness earlier. The Federal Circuit Court considered the applicant’s arguments carefully, fully and fairly.

24    As the Federal Circuit Court observed, the applicant’s medical certificate was unsatisfactory. It did not explain the nature of the applicant’s medical condition nor why it prevented his attendance at the hearing. It contained no reasons for the opinions expressed: see BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35]; Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]-[14].

25    The Federal Circuit Court was entitled to give no weight to the medical certificate.

26    The Federal Circuit Court accepted that there were some matters which favoured the applicant, including that he had a swollen leg and was receiving treatment, but considered that the application for reinstatement should be refused because there was simply no prospect of success in the substantive application. That conclusion was correct – see Sayadi at [18]. The Federal Circuit Court clearly understood the nature of its jurisdiction and the relevant legal principles. There was no error in its reasoning.

27    The applicant claimed that the Tribunal erred in failing to consider the compelling reasons for waiving compliance with the requirements of cl 3001 of Schedule 3 to the Regulations, which as I have said required the application for a visa to be lodged within 28 days. The Tribunal and the Federal Circuit Court correctly concluded that there was no power or provision in the Regulations to waive this requirement. The Tribunal’s decision was correct. The applicant’s substantive case to the Federal Circuit Court was bound to fail. The decision of the Federal Circuit Court not to exercise its discretion to reinstate the proceedings was clearly correct.

Conclusion

28    No basis has been shown for the relief sought and the application is, accordingly, dismissed with costs.

Associate:

Dated:    29 June 2018