FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCA 1816

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s oral application for an adjournment be refused.

2.    The application for leave to appeal filed 24 May 2018 be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before me is an application for leave to appeal from the decision of the Federal Circuit Court in Singh v Minister for Immigration & Anor [2018] FCCA 1388 delivered on 14 May 2018. In that matter, the primary Judge dismissed Mr Singh’s oral application for a six-month adjournment at a show cause hearing in relation to his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) and ordered that the application for judicial review be summarily dismissed. In its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate and where relevant, Minister) made 16 July 2015 to refuse to grant Mr Singh a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (student visa) pursuant to the Migration Act 1958 (Cth) (Migration Act).

2    The show cause hearing before the primary Judge was interlocutory in nature and therefore leave of this Court is required to commence an appeal: see r 44.12 of the Federal Circuit Court Rules 2001 (Cth) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background

3    On 20 April 2015, Mr Singh applied to the Department of Immigration and Border Protection (Department) for a student visa. On 21 April 2015, the Department wrote to Mr Singh asking him to provide further information in support of his student visa application, which Mr Singh subsequently supplied.

4    On 16 July 2015, the delegate informed Mr Singh via email through his registered migration agent that his student visa application had been refused. In its decision, the delegate stated that he was not satisfied Mr Singh met “the legal requirement in clause 572.223(1)(a)” in Sch 2 of the Migration Regulations 1994 (Cth) (Migration Regulations). That clause, known as the “genuine temporary entrant criterion”, provides that:

(1)    The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

(a)    the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)    the applicant’s circumstances; and

(ii)    the applicant’s immigration history; and

(iii)    if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)    any other relevant matter; …

5    In forming his view, the delegate made, inter alia, the following observations:

    This was Mr Singh’s fifth application for student visa.

    This would bring his total time in Australia on temporary visas to approximately 11 years.

    Mr Singh was only enrolling in low level, low cost certificates.

    He had previously undertaken extensive studies, completed a diploma and engaged in 18 months of practical experience in his chosen industry, so a further two years of study in a similar course would not likely be of significant benefit.

    The timing of this student visa application coincided with the expiry of Mr Singh’s previous student visa and his latest enrolment was made only three days prior to lodging his current student visa application.

6    The delegate inferred that Mr Singh was “using the student visa program to maintain residency in Australia.” The delegate critically found, in relation to Mr Singh, that:

… given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.

7    In the notification refusing Mr Singh’s student visa, the delegate explained that the decision could be reviewed at the Tribunal.

8    On 3 August 2015, the Tribunal received an application for review of the delegate’s decision. On 12 April 2017, the Tribunal wrote to Mr Singh, again through his registered migration agent, inviting him to attend a hearing. On 24 April 2017 and 1 May 2017, the Tribunal sent SMSs to Mr Singh’s mobile telephone reminding him of the date of the impending hearing that was scheduled for 2 May 2017.

9    In its hearing records for 2 May 2017, the Tribunal noted Mr Singh was a “no show” as at 11.24 am. Later that day at 4.09 pm, the Tribunal received an email from Mr Singh with the subject “Doc” and no message in the body of the email. Attached was a document that appeared to be a medical certificate issued by Dr T Verghese of Union Medical Centre Springvale in Victoria, that materially read:

…

Monday, 1 May 2017

This is to certify that I have today examined:

Mr Sarabjit Singh

[Address omitted]

In my opionionSarabjit [sic] will be unfit for work duties from

30/7/17 to 5/5/17 inclusive

…

[signed]

10    At 5.59 pm, Mr Singh’s registered migration agent emailed the Tribunal, further stating:

…

This afternoon 4 PM I have received email from Mr Singh about illness and did not turn up for the hearing, I kindly request to re schedule the hearing and inform us same

My apoligies to you, as client has responded to me very late.

Please find the letter for the doctor which is attached to this email

…

(Errors in original.)

The email attached the same medical certificate Mr Singh had earlier sent to the Tribunal.

11    On 3 May 2017, the Tribunal wrote to Mr Singh and informed that it had decided to dismiss the application for review because he failed to attend the scheduled hearing. The Tribunal provided the following non-appearance decision dated the previous day:

The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 2 May 2017 at 9.30 a.m., but did not appear at the scheduled time and place. No request for adjournment of the hearing was received. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

In its letter, the Tribunal noted that Mr Singh could apply for reinstatement before 17 May 2017.

12    Having received no such application for reinstatement, the Tribunal wrote again to Mr Singh on 19 May 2017 and attached a copy of its full statement. At [5] the Tribunal noted:

There has been no further communication from the applicant or his representative since their receipt of that dismissal decision and the advice accompanying it that the applicant had until 17 May 2017 to apply for reinstatement of the application. The Tribunal is satisfied that the notification complied with the statutory requirements.

13    Accordingly, the Tribunal at [6] confirmed its decision to dismiss the application without further consideration for want of appearance and thus affirmed the decision of the delegate that was under review.

Federal Circuit Court proceedings

14    On 22 May 2017, Mr Singh filed an application for review at the Federal Circuit Court. He relied on the following statements that were taken to be grounds of review:

AAT decision is not acceptable. AAT dismissed my case on the ground of non appearance in hearing. Unfortunately, I was not well on hearing date and I could not attend the hearing nor inform AAT in the morning. However I have submitted medical certificate to member on same day, hearing day in the evening.

However member has given oral decision by dismissing my application, with holding the hearing AAT should have given me another chance of hearing to present myself and explain my situation in order to set aside my DIBP decision

AAT decision was not taken in fairly manner. AAT should have give another date

I am not happy with the decision of AAT. In decision, AAT didn’t consider my illness and my exceptional circumstances, which was beyond my control

(Errors in original.)

15    At the hearing in the Federal Circuit Court, Mr Singh appeared in person and the primary Judge noted that he “was not able to elaborate on the grounds set out in his application or put forward any other grounds of review” (see [21] of the primary judgment).

16    After considering the background of the case and the circumstances leading up to the Tribunal’s decision to dismiss the application, her Honour found at [7] that the matter was appropriately dismissed in accordance with s 362B(1A) of the Migration Act.

17    At [7], her Honour observed in relation to s 362B(1A):

… That subsection provided that, in circumstances where the applicant did not appear at the hearing:

The Tribunal may:

…

(b)    by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

Her Honour identified other provisions of the Migration Act relevant to the proceedings:

8.    Section 362C of the Act defined a non-appearance decision and set out various requirements relating to such decisions.

9.    Subsection 362B(1B) of the Act then provided that:

If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.

…

12.    Subsection 362B(1E) of the Act provided:

If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

13.    Subsection 362B(1F) of the Act provided:

If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

18    At [14], her Honour highlighted the critical conduct giving rise to the issue before the Court:

In the present case, the applicant did not apply for a reinstatement of his application. The Tribunal, on 18 May 2017, proceeded to confirm the decision to dismiss the application.

19    In respect of any reinstatement of the proceedings before the Tribunal, the primary Judge observed:

18.    The letter from the doctor was the medical certificate which had previously been provided to the Tribunal. At that point on 2 May 2017, the agent had not been notified of the dismissal. The agent did not, in terms, ask for a reinstatement of the proceeding.

19.    The Tribunal gave notice of the decision dismissing the applicant’s application by email on 3 May 2017 at 7:55am. The agent did not respond to that email and did not apply for reinstatement after receiving it. As the applicant did not make a reinstatement application after he was notified of the dismissal for non-appearance, the Tribunal proceeded on 18 May 2017 to confirm the dismissal decision.

(Emphasis added.)

20    In relation to the general operation of the migration legislation, Honour explained at [22] that:

The statutory scheme is straightforward but tight. The legislation requires the applicant within 14 days after receiving the notice of the decision to apply for reinstatement. In this case, the applicant did not apply for reinstatement within 14 days after receiving the notice of decision. Consequently, s.362B(1E) of the Act applied. That subsection is, as mentioned above:

If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

(Original emphasis.)

21    Ultimately, her Honour held that “the Tribunal had no option but to confirm the dismissal” and that it was “not arguable that the Tribunal made a jurisdictional error in either dismissing the application in the first instance, or in confirming the dismissal in the second instance” (at [23]), and in the circumstances, there was “no option but to dismiss the application” (at [24]).

In the Federal Court

Oral application for adjournment

22    As a preliminary issue, I will first address the oral application Mr Singh made at the hearing for a three-month adjournment which was opposed by the Minister. I understood Mr Singh sought the adjournment for the purposes of:

(1)    making instalments on the costs ordered against him at the Federal Circuit Court; and

(2)    engaging lawyers for assistance with his proposed appeal.

23    As to the first purpose, and I explained to the applicant at the hearing, the existence of outstanding costs is not relevant to his ability to conduct proceedings before this Court.

24    In relation to the second purpose, I note FQH17 v Minister for Immigration and Border Protection [2018] FCA 1771 in which Robertson J dealt with an application for adjournment made by an appellant at the commencement of a migration appeal from the Federal Circuit Court. His Honour considered the material before the Court, and found at [5] that even when the Court endeavoured to take the appellant’s material “at its highest”, there was nothing in the documentation to “suggest that the appellant would be in a different or better position if he was given more time in which to seek to secure legal representation.” I have undertaken the same exercise in the present matter and am not persuaded that, having had the benefit of reviewing the material before the Tribunal and primary Judge and their respective decisions, as well as the application and draft grounds of appeal before this Court, that there would be meaningful utility for the Court nor the parties in further adjourning the proceedings to allow Mr Singh time to engage legal practitioners.

25    Further, in Waris v Minister for Immigration and Border Protection [2018] FCA 1481, Logan J determined at [6] that “a lead time of six months is more than adequate time within which to prepare for the hearing of an application for leave to appeal” and refused to grant an adjournment that was sought at the substantive hearing in that matter. In the present matter, Mr Singh filed his application for leave to appeal on 24 May 2018, which was approximately six months before the date of this hearing. In my view, this is ample time in which Mr Singh could have prepared for the hearing or sought legal advice.

26    Finally, I also note that the applicant had sought an adjournment of the proceedings in the Federal Circuit Court (which was refused by her Honour). The applicant appears to have a history of lack of preparedness for proceedings relevant to this application, notwithstanding that there has been no issue of adequacy of notice or time to prepare. I am not persuaded that any further adjournment would assist him, particularly in circumstances where the applicant has not provided any material to suggest that there is a prospect of him retaining lawyers in the near future.

27    For those reasons I refuse the adjournment. I will now proceed to consider the substantive application for leave to appeal.

Application for leave to appeal and draft notice of appeal

28    Mr Singh’s application for leave to appeal is based upon the following grounds:

1.    The Federal Circuit court made a decision without considering the substantial errors made by Administrative Appeals Tribunal in applying the relevant subclass 572.223 (1)(a) of schedule 2 of Migration Act

2.    I had a medical condition affecting my ability to represent my case pertaining to my visa refusal and I urged Federal court to consider that fact but Federal Circuit failed to act and dismissed my case disallowing me any opportunity to defend my case.

3.    The Federal Circuit Court errored in disregarding medical documents on file thus failed to accord me procedural fairness and natural justice.

(Errors in original.)

29    Mr Singh’s draft notice proposes the following grounds of appeal:

1.    The tribunal made a decision without considering all facts and information and disregarding the evidence it had on file

2.    The Tribunal failed to accord me, the applicants, procedural fairness and natural justice.

3.    The Tribunal erred in not having considered the fact that I have medical condition which was related to my visa

(Errors in original.)

Consideration

30    On 21 June 2018, Registrar McCormick made case management orders including that Mr Singh was required to file and serve a written outline of submissions in support of his application and in support of his proposed appeal. Mr Singh did not file any documents in compliance with the Registrar’s order. I therefore invited him to make oral statements at the hearing in relation to his application for leave to appeal.

31    In summary, Mr Singh essentially restated his grounds, submitting inter alia that in dismissing his review the Tribunal did not consider the facts of his case, he was denied procedural fairness, he had a medical condition that prevented him from presenting his case and he was confused about costs.

32    Ms Saunders for the Minister indicated the Minister would rely on his written submissions filed 8 November 2018.

33    In relation to the application for leave to appeal, this Court must be satisfied that:

(1)    Mr Singh has shown sufficient doubt as to the correctness of the primary Judge’s decision, assuming that judgment were wrong; and

(2)    Mr Singh would suffer substantial injustice if I were to refuse to grant leave to appeal to the Federal Court.

(See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.)

34    Ground 1 of the application alleges the primary Judge erred in not considering that the Tribunal erred in applying cl 572.223(1)(a) of Sch 2 of the Migration Regulations. Despite the fact that this ground was not advanced before the primary Judge, the decision on review at the Federal Circuit Court was the Tribunal’s decision to dismiss Mr Singh’s case for want of appearance. The Minister submitted that in the Tribunal’s decision, it did not, and was not required to, engage in consideration of Mr Singh’s eligibility for the student visa. I agree that this ground does not satisfy the Decor tests.

35    Grounds 2 and 3 of the application allege that the primary Judge failed to consider medical documents and that Mr Singh had a medical condition that impeded his ability to present his case. The grounds do not specify whether the medical condition affected Mr Singh’s proceedings at the Tribunal or in the Federal Circuit Court, or both. The Minister submitted that her Honour considered the medical documents provided to the Tribunal at [15]-[18] of the primary judgment and concluded that the Tribunal was still bound to dismiss the proceedings due to Mr Singh’s failure to apply for reinstatement. Should Mr Singh instead be claiming that the grounds relate to his request for an adjournment at the Federal Circuit Court, the Minister submitted that the primary Judge gave reasons at [1]-[2] for refusing the request, that no medical documentation was provided in relation to that request and therefore her Honour could not have erred in this respect. I also accept the Minister’s submissions as to grounds 2 and 3 and find that they do not satisfy the Decor tests.

36    In relation to the proposed grounds of appeal, the Minister submitted in summary that they are unparticularised allegations against the Tribunal in circumstances where the Tribunal was bound to dismiss Mr Singh’s application and confirm the decision under review in light of Mr Singh’s non-appearance. I agree that the proposed grounds lack merit and adopt the observations of O’Callaghan J in AMG17 v Minister for Immigration and Border Protection [2017] FCA 1477 at [10]:

… none of the grounds contended for can possibly succeed if leave were to be granted, because each one of them is founded on the misconceived notion that this Court has any jurisdiction to engage in merits review of the Tribunal’s decision. The Court does not have that jurisdiction: see by way of example only Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-7; and see also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [62] per Gilmour and Mortimer JJ, Logan J agreeing at [102] …

Conclusion

37    Mr Singh has not demonstrated that there is sufficient doubt attending the correctness of her Honour’s decision to warrant reconsideration, nor that he would suffer substantial injustice if leave to appeal is refused. Mr Singh’s proposed grounds of appeal have no merit. There is no utility in granting the leave sought.

38    It is therefore appropriate in these circumstances to make orders refusing Mr Singh’s oral application for adjournment and dismissing his application for leave to appeal. Costs should follow the event.

Associate:

Dated:    22 November 2018