FEDERAL COURT OF AUSTRALIA

Singh v Minister of Home Affairs [2019] FCA 88

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

NICHOLAS J:

1    Before me is an appeal brought by the appellant (“Mr Singh”) against a judgment of the Federal Circuit Court of Australia made on 27 August 2018 dismissing his application for judicial review of a decision of the second respondent (“the Tribunal”) dated 27 June 2016. By its decision, the Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) refusing the appellant a Medical Treatment (Visitor) (Class UB) visa.

2    Mr Singh was not legally represented before the primary judge or before me, although he was assisted by an interpreter. The grounds of review upon which he relied before the primary judge are set out at [10] of her Honour’s reasons. The two grounds relied upon were as follows:

1.    The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequences Tribunal decision is not a decision at all in law.

2.    My point is that having missed the invitation letter , the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.

(errors in original)

3    The primary judge noted that Mr Singh did not file any amended application or written submissions at trial. In oral submissions made to her Honour, Mr Singh contended that the Tribunal did not provide him with a hearing. I will say more on this topic shortly. But I should first note that Mr Singh did not challenge any of the findings made by the Tribunal in relation to his application for a medical treatment visa including, in particular, the finding that he did not satisfy the criteria relevant to the grant of such a visa.

4    Mr Singh’s application for a medical treatment visa was made on 22 April 2016. The criteria that had to be met to obtain a medical treatment visa in respect of an application lodged at that time were set out in the Subclass 602 – Medical Treatment in Schedule 2 of the Migration Regulations 1994 (Cth) (“Regulations”).

5    Relevantly, clauses 602.212(1) and (6) and 602.213(3), (4) and (5) provided:

602.212

(1)    The requirements in one of subclauses (2) to (8) are met.

…

Unfit to depart

(6)    All of the following requirements are met:

   (a)    the applicant is in Australia;

   (b)    the applicant has turned 50;

   (c)    the applicant has applied for a permanent visa while in Australia;

(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

   (e)    the applicant has been refused the visa;

(f)    the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

602.213

…

(3)    Subclauses (4) and (5) apply if:

   (a)    the applicant was in Australia at the time of application; and

(b)    the applicant did not hold a substantive temporary visa at that time; and

(c)    the requirements described in subclause 602.212(6) are not met in relation to the applicant.

(4)    The last substantive temporary visa held by the applicant was not:

(a)    a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

(b)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(5)    The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

6    Clause 3001 (referred to in clause 602.213(5)) relevantly provided:

3001

(1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

...

(c)    if the applicant:

(i)    ceased to hold a substantive … visa on or after 1 September 1994; or

(ii)    entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    the day when the applicant last entered Australia unlawfully; or

7    The Tribunal made five key findings (none of which were challenged before the primary judge) relevant to the application of these provisions:

    Mr Singh did not meet the requirements of cl 602.212(6).

    Mr Singh’s application for a medical treatment visa was not made until 22 April 2016, which was more than 28 days after his last substantive visa lapsed.

    The last substantive visa held by Mr Singh expired on 15 March 2012.

    Mr Singh did not hold a substantive temporary visa at the time of his application.

    The last substantive temporary visa held by Mr Singh was not a Subclass 403 or 426 visa.

8    On the basis of these findings the Tribunal concluded that Mr Singh did not satisfy the requirements of cl 602.213.

9    Although the Tribunal did not expressly identify in what particular respects Mr Singh did not meet the requirements of cl 602.212(6), there could be no suggestion that he did if only for the reason that his application for the medical treatment visa and his application for review showed that he was born in 1982 and had not turned 50.

10    Returning now to the grounds for review relied upon by Mr Singh before the primary judge, the Tribunal recorded at [4]-[7] of its reasons:

4.    On 7 June 2016, the Tribunal wrote to the applicant and invited him to appear before the Tribunal at 2.00pm on 27 June 2016 to give evidence and present arguments relating to the issues in his case. The letter indicated that if he did not attend the scheduled hearing the Tribunal could make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before the Tribunal. The letter was sent to the applicant by email on 7 June 2016.

5.    The Tribunal did not receive the Response to Hearing Invitation form as requested. On 20 June 2016, the Tribunal sent the applicant a reminder of the hearing on 27 June 2016 by SMS message to his mobile telephone. The Tribunal did not receive a response. On 24 June 2016, the Tribunal sent the applicant another reminder of the hearing on 27 June 2016 by SMS message to his mobile telephone. The Tribunal did not receive a response.

6.    The applicant did not attend the hearing scheduled at 2.00pm on 27 June 2016. He did not contact the Tribunal to explain his non-attendance or to request a postponement of the hearing.

7.    In these circumstances, the Tribunal has decided to proceed to make a decision on the review.

11    As to the Tribunal’s decision to proceed to make a decision on the review (in the absence of Mr Singh) the primary judge reviewed the evidence of the electronic communications sent by the Tribunal to Mr Singh which are referred to in [5] of the Tribunal’s reasons. Her Honour found that by operation of s 379(C)(5) of the Migration Act 1958 (Cth) (“the Act”), Mr Singh was taken to have received the relevant invitation which was sent to the email address nominated in his application at the end of the day on which it sent. It followed that Mr Singh was taken to have received the hearing invitation on 7 June 2016, and that the Tribunal’s power to proceed pursuant to s 362B of the Act was enlivened.

12    The primary judge also considered the reasonableness of the Tribunal’s decision to proceed under s 362B in the absence of Mr Singh. Her Honour said at [20]-[22] of her reasons:

[20]    Nonetheless, as the First Respondent acknowledged, such power is discretionary and should be exercised reasonably. I accept that, as was submitted for the First Respondent, in this case the Tribunal’s discretion was exercised reasonably. I note in that respect that the Tribunal not only sent the invitation to the email address provided by the Applicant, but it also sent two SMS reminders of the scheduled hearing to the mobile telephone number the Applicant had provided in the review application. The Applicant had not engaged with the Tribunal by way of providing written submissions or in any other way.

[21]    There is nothing in the circumstances of this case to suggest legal unreasonableness (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30). Insofar as it was suggested in the Minister’s written submissions that there was no suggestion that the hearing invitation was “returned unclaimed”, this hearing invitation was not sent by mail. However there is no evidence that there was any issue in relation to transmission of the email.

[22]    This is not a case in which the Tribunal should have taken further steps to contact the Applicant after he failed to appear at the hearing, whether analysed in terms of legal unreasonableness or otherwise.

13    Her Honour concluded, correctly in my view, that even if Mr Singh did not receive the electronic communications sent to him by the Tribunal, it did not follow that it made a jurisdictional error. In oral submissions made to me on the appeal, Mr Singh did not dispute that the Tribunal sent the email communications and was unable to explain why they did not come to his attention.

14    The second ground for review relied upon by Mr Singh before the primary judge focused on s 359A of the Act (mistakenly referred to by Mr Singh as s 424A but which is in equivalent terms). Her Honour said at [28]-[29]:

[28]    The Applicant does not identify any particular information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review such as to enliven a s.359A(1) obligation. It is also well-established that the obligation to provide particulars of information under this provision only applies to information which the Applicant did not give for the purposes of the application for review (see s.359A(4)(b)). The Tribunal relied on the delegate’s decision record to identify the “relevant day” for the purposes of cl.3001. Accordingly this information was within the s.359A(4)(b) exception as information that the Applicant gave to the Tribunal by providing it with a copy of the delegate’s decision record.

[29]    If this is intended to be a contention that the Tribunal was obliged to put its provisional reasoning to the Applicant for comment, the Tribunal is not under an obligation to put its provisional reasoning to an applicant for comment under s.359A of the Act. Further, such reasoning does not amount to information which in its terms constitutes a rejection, denial, or undermining of the Applicant’s claims in the sense considered in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609. Ground 2 is not made out.

15    Neither Mr Singh’s grounds of appeal or his oral submissions engage with her Honour’s reasons much less identify any error in them. In particular, Mr Singh has not identified, nor does there appear to me to be, any information of the kind described in s 359A(1) that was not within the exception created by s 359A(4)(b).

16    In this Court, Mr Singh’s grounds of appeal assert:

1.    The Federal Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Act;

2.    The Tribunal failed to exercise its jurisdiction: it was an error for the Tribunal to assess the application without allowing applicant to present his arguments; and

3.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

17    The first and second of these grounds have already been considered by reference to the terms in which they were advanced before the primary judge. I am not satisfied that her Honour has made any error in her consideration of Mr Singh’s complaint that he was denied the benefit of appearing before the Tribunal. As to the third ground, it does not identify any legal or factual errors in the reasons of the Tribunal that were raised before the primary judge.

18    During the course of the hearing of the appeal, Mr Singh was invited by me to identify any legal or factual errors in the reasons of the Tribunal, but he did not do so. In substance, he submitted to me that he wished to be given another opportunity to appear before the Tribunal to explain why he should be granted the medical treatment visa that he seeks.

19    In my view, the primary Judge was correct to conclude that Mr Singh failed to identify any jurisdictional error in the Tribunal’s exercise of its discretion. The appeal will be dismissed with costs.

Associate:

Dated:    11 February 2019