FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCA 723

ORDERS

THE COURT ORDERS THAT:

1.    The oral application for dismissal of the proceeding pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) is rejected.

2.    The Application for an extension of time is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the First Respondent, either as assessed or agreed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, Mr Manjinder Singh, is a citizen of India.

2    In February 2015, a delegate of the Minister for Immigration and Border Protection refused to grant Mr Singh a Partner visa under the Migration Act 1958 (Cth) (the “Migration Act”). The delegate was not satisfied that Mr Singh and his sponsor, Ms Jennifer Bamford, were in a “genuine and continuing” relationship as required under s 5F(2)(c) of the Migration Act. Part of the reasoning of the delegate included reliance upon an inconsistency (for example) between a claim made by Mr Singh that his parents were “very eager to see us as [a] couple” and an interview conducted in India when the father and mother maintained that their son had “never been married”.

3    An application to review the delegate’s decision was filed with the Administrative Appeals Tribunal (the “Tribunal”) in March 2015. Mr Singh was invited to attend a hearing before the Tribunal on 7 March 2016. He was also advised by the Tribunal that it was “unable to make a favourable decision” on the information before it and that the Tribunal wished to take evidence from both the Applicant and his sponsor. But that hearing date was adjourned on the application of Mr Singh because he was in India. The hearing was rescheduled to 21 March 2016. On that date Mr Singh failed to appear before the Tribunal and the Tribunal dismissed the proceeding pursuant to s 362B(1A)(b) of the Migration Act. Mr Singh then applied to reinstate the proceeding. In April 2016 the Tribunal declined to reinstate the proceeding.

4    Review of the Tribunal’s April 2016 decision was sought. On 1 August 2018, the Federal Circuit Court of Australia dismissed the proceeding: Singh v Minister for Immigration & Border Protection [2018] FCCA 2063. On 26 September 2018, Mr Singh filed in this Court an Application for an extension of time. Although that Application seems to be misconceived to the extent that it states it is made “under rule 31.02 to lodge an application for an order of review under ADJR Act”, it is more properly to be regarded as an application seeking an extension of time in which to appeal from the decision of the primary Judge. The decision of the primary Judge is not an “administrative decision” susceptible of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “Judicial Review Act”).

5    The Applicant failed to appear when the proceeding was called on for hearing before this Court. The proceeding was stood down from 11.00am to 11.15am to provide the Applicant an opportunity to arrive and further stood down again to 11.30am. The Applicant failed to appear. The First Respondent, the Minister, appeared by Counsel. The Second Respondent filed a Submitting Notice, save as to costs.

6    The Respondent Minister filed a Notice of objection to competency directed to any application that may be made pursuant to s 11 of the Judicial Review Act. Given the non-appearance of the Applicant, at the outset of the hearing Counsel for the Minister also applied pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”) to have the matter dismissed.

7    The Application pursuant to r 35.33 is rejected. The Application for an extension of time is nevertheless to be refused and the proceeding dismissed. It is unnecessary to resolve the objection to competency.

Rule 35.33

8    Rule 35.33 of the Federal Court Rules provides in part as follows:

Absence of a party

(1)    If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a)    if the absent party is the applicant:

   (i)    the application be dismissed; or

   (ii)    the application be adjourned; or

   (iii)    the hearing proceed only if specified steps are taken; or

(b)    if the absent party is the respondent:

(i)    the hearing proceed generally or in relation to a particular aspect of the application; or

    (ii)    the hearing be adjourned; or

    (iii)    the hearing proceed only if specified steps are taken.

(2)    If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)    setting aside or varying the order; and

(b)    for the further conduct of the proceeding.

For the purposes of r 35.33(1), it is r 35.14 which assumed relevance.

9    Rule 35.33 confers a discretionary power upon the Court to dismiss an application for an extension of time where a party fails to attend.

10    There is no explanation as to why Mr Singh has failed to appear. The Court is satisfied that he was notified of the scheduled hearing date. He was notified of that date by the Registry of this Court in an email to his solicitors, as then acting, and reminded of the scheduled hearing date when the solicitors for the Respondent Minister served their outline of submissions on him personally on 4 February 2019. There has been no communication by Mr Singh with the Registry, or with those representing the Minister, requesting any adjournment of the hearing or foreshadowing that he may not appear.

11    Of relevance to both the exercise of the discretion conferred by r 35.33 and the discretion to extend time are the merits of the proposed appeal. It is the absence of merit which dooms Mr Singh’s application to failure. The preferable course, however, is not to dismiss the proceeding for want of attendance but to proceed to consider the application for an extension of time in his absence. The resolution of that application may provide some assurance to Mr Singh that his proceeding has been resolved by reference to such merits as the application may have rather than simply because he failed to appear: cf. SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [9] to [10] per Flick J. Cited in: Patel v Minister for Immigration and Border Protection [2015] FCA 1221 at [5] per Edelman J.

Section 362B, the Tribunal decision & the Federal Circuit Court

12    Section 362B of the Migration Act provides in part as follows:

Failure of applicant to appear before Tribunal

Scope

(1)    This section applies if the applicant:

   (a)    is invited under section 360 to appear before the Tribunal; but

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A)    The Tribunal may:

(a)    by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

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

Reinstatement of application or confirmation of dismissal

(1B)    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.

(1C)    On application for reinstatement in accordance with subsection (1B), the Tribunal must:

(a)    if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or

(b)    confirm the decision to dismiss the application, by written statement under section 368.

…

(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

(notes omitted)

In relation to matters that come before it, the Tribunal is relevantly required to “act in a way that is fair and just”: s 357A(3) of the Migration Act. Section 360(1) then provides that, subject to the section itself, the Tribunal “must invite the applicant to appear … to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

13    In refusing to reinstate the application which had been dismissed in March 2016, the Tribunal in its reasons for decision in April 2016 set forth the fact that Mr Singh had applied for review of the delegate’s decision and that his proceeding had been previously dismissed and continued on as follows:

4.    The review applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

5.    The applicant wrote to the Tribunal on 31 March 2016 stating that he was ill on the day of the hearing, which was scheduled a day after his return from India. The Tribunal notes that the hearing was postponed at the applicant’s request and having regard to his travel plans. The applicant presented to the Tribunal a medical certificate from Berala Medical Clinic. The Tribunal has had regard to that evidence but considers it inadequate to explain the applicant’s non-appearance. The medical certificate is dated 21 March 2016 and refers to the applicant receiving ‘medical treatment’ (the nature of which is unspecified) and being unfit to continue his usual occupation / study. There is nothing in that document indicating the applicant was unfit to appear before the Tribunal and give evidence. The Tribunal hearing does not require the applicant to engage in his usual occupation or study.

6.    The Tribunal is also mindful that the applicant made no effort to contact the Tribunal on the day of the hearing, or for ten days subsequent to the hearing, to advise that he was ill. In the Tribunal’s view, if the applicant planned to participate in the hearing but was genuinely ill and unable to due to his illness, he would have made contact the Tribunal, and could have easily done so by phone or email, to advise of his illness. His failure to do so may suggest that the applicant’s reference to his illness is a more recent invention.

7.    The Tribunal does not consider that the evidence presented by the applicant adequately explains his non-appearance because it does not indicate that the applicant was incapable of participating in the hearing.

8.    The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

On its face, this decision of the Tribunal in April 2016 seems to be an unexceptional exercise of its power conferred by s 362B(1C)(b). Although there may be some uncertainty as to the date of the notice provided with respect to the March 2016 decision, the notice required by s 362C was in fact given.

14    Before the Federal Circuit Court, Mr Singh nevertheless contended that the Tribunal’s April 2016 decision should be set aside either because:

    the power under s 362B(1A)(b) was exercised “unfairly and arbitrarily”; or

    the Tribunal had “failed to apply procedural fairness in the applicant’s matter”.

15    In reviewing the Tribunal’s decision, the primary Judge set forth the decision-making process which had led to the Tribunal decision and its reasons for decision. Of particular concern was the reliance placed by the Tribunal upon the medical certificate which had been provided and which stated that Mr Singh had been “examined and received Medical Treatment at our clinic … [and] will be unfit to continue his usual occupation/study”. The primary Judge then concluded (in part) as follows:

[19]    The approach of the Tribunal to the Medical Certificate was entirely consistent with decisions of numerous Judges in the Federal Court of Australia. In MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 at [7] Davies J said as follows:

[7]    No error has been demonstrated in the conclusion of the Federal Circuit Court that the Tribunal did not deny the appellant procedural fairness. The medical certificate which the appellant furnished to the Tribunal was in the following form:

In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive. (medical condition)

The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day…

The primary Judge went on to refer to a like decision of Thawley J in BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35].

The application for an extension of time & prospects

16    Before this Court, Mr Singh seeks to challenge the decision of the primary Judge on the sole basis that (without alteration):

1.    His Honour erred in failing to distinguish either decided cases which although on their surface appeared to support the Tribunal’s policy of giving little or no weight to a medical report in circumstances where it baldly stated a person’s unfitness to attend a tribunal hearing but gave little or no details of the medical condition underlaying the medical opinion of unfitness to attend, overlooked the constraints imposed on the medical pression by the universal ethical convention of the paramount need to protect the privacy of the patient at all the costs.

17    In presumably seeking to explain or expand upon this proposed Ground, the affidavit filed by Mr Singh in support of the present Application states in part (without alteration):

A.    No one approached me and said me that the medical certificate was deficient.

B.    The doctor did not invite me to insert details of my medical condition which is in any event a private matter between the doctor and myself.

18    It matters not for present purposes whether these two arguments were advanced in those terms before the primary Judge – but it would appear that they were not so advanced. The arguments are, in any event, without substance because:

    the forum in which any application for an adjournment should have been advanced was the Administrative Appeals Tribunal and Mr Singh elected not to appear before that Tribunal at the 21 March 2016 hearing – Mr Singh cannot elect to not appear before the Tribunal and thereafter seek to advance such criticisms as to the manner in which the Tribunal proceeded or the manner in which it made findings based upon the limited material available in circumstances where he could have addressed those criticisms during the course of the Tribunal hearing.

More importantly, and with attention focussed upon the April 2016 decision of the Tribunal now sought to be reviewed and the consideration given to the Medical Certificate in April 2016, when the Tribunal was then considering the application for reinstatement pursuant to s 362B of the Migration Act, the argument is without substance because:

    there was no reason in April 2016 to consider the March 2016 decision as anything other than a proper disposition of the proceeding brought by Mr Singh, albeit not having the benefit of his assistance; and

    the evidential basis upon which any factual basis for reinstatement of his application for review was to be resolved remained a matter for Mr Singh, it was a matter for him to adduce such evidence as he saw fit – perceived deficiencies in the evidence upon which he relied, including deficiencies in the Medical Certificate, thereafter remained a matter for the Tribunal to resolve.

Neither argument made by Mr Singh has merit in the circumstances of the present proceeding. There is no self-evident merit in a party failing to communicate with an administrative tribunal on the day of a scheduled hearing and thereby attempting to force upon the tribunal an adjournment simply by reason of his non-attendance and thereafter making a complaint when a decision is made not to reinstate his claims in circumstances where there is no adequate explanation for his failure to appear.

19    There was no procedural unfairness in the Tribunal proceeding to resolve Mr Singh’s application in his absence at the March 2016 hearing. Mr Singh elected not to then appear before the Tribunal. Having made that election, Mr Singh assumed the risk that the Tribunal may proceed to decide the application on the materials before it and without the benefit of such explanation or clarification as he could provide: cf. S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 (“S58 of 2003”). Ryan, Merkel and Conti JJ there observed with reference to the facts then before that Court:

[25]    In any event, whether an applicant has been accorded procedural fairness is not to be decided on a minute or fragmented examination of each step of the process by which a tribunal has arrived at its decision. In the present case, the appellant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh. He was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them. Conversely, his conduct left it open to the Tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa …

See also: MZWPN v Minister for Immigration and Multicultural Affairs [2006] FCA 807 at [12] to [13] per Kenny J (“MZWPN”).

20    A reasonable opportunity to be heard before the Tribunal – or the requirement to act in a way that is “fair and just” (s 357A(3) of the Migration Act) or the opportunity to appear and “give evidence and present arguments” (s 360(1) of the Migration Act) – does not impose on the Tribunal “the impossible task of ensuring that a party takes the best advantage of the opportunity”: cf. Sullivan v Department of Transport (1978) 1 ALD 383 at 403 per Deane J (Fisher J agreeing) (“Sullivan”). See also: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], (2000) 60 ALD 737 at 748 per Cooper J. Nor did the requirement to act in a manner that is “fair and just” require the Tribunal itself to make out his case: cf. Luu v Renevier (1989) 91 ALR 39 at 45 per Davies, Wilcox and Pincus JJ. And procedural fairness, or a requirement to act in a manner that is “fair and just”, “does not require an administrative decision-maker to alert an applicant each and every time the decision-maker proposes to form a view which does not reflect the most favourable interpretation of a single piece of evidence adduced by an applicant”: Williams v Minister for Immigration and Border Protection [2014] FCA 674 at [85], (2014) 226 FCR 112 at 136 per Mortimer J (“Williams”).

21    The Tribunal in March 2016 could not assume the “impossible task of ensuring that [Mr Singh took] the best advantage of the opportunity”: Sullivan (1978) 1 ALD 383 at 403 per Deane J (Fisher J agreeing).

22    Nor is any error exposed in the manner in which the Tribunal reached its decision in April 2016 to affirm the decision made on 21 March 2016 dismissing Ms Singh’s application. And the April 2016 decision, of course, was the decision sought to be reviewed before the Federal Circuit Court and by this Court.

23    There was no procedural unfairness in the Tribunal in April 2016 forming an assessment as to the adequacy of the medical certificate without further canvassing that issue with Mr Singh: cf. Williams [2014] FCA 674, (2014) 226 FCR 112. It remained a matter for Mr Singh to advance his application for reinstatement in such manner as he saw fit and by reference to such evidence as he considered appropriate.

24    There is no merit in any argument that the Tribunal gave the medical certificate “little or no weight” or otherwise erred in applying the approach previously adopted in S58 of 2003 or MZWPN. Unlike the present case, in which the power being exercised was a power to reinstate a proceeding which had been dismissed, the decisions in S58 of 2003 or MZWPN concerned the dismissal of a substantive claim. But common to the present proceeding is the proposition that it was open to the Tribunal to proceed to resolve Mr Singh’s application for reinstatement by reference to the documents he had placed before it, whatever the deficiencies in those documents may be. The certificate was, with respect, “bland” in its assessment as to the fitness of Mr Singh to attend the hearing. It was open to the Tribunal when considering the reinstatement application to form the view that the medical certificate was “inadequate to explain the applicant’s non-appearance”. Claims as to the privacy of communications between a patient and a medical practitioner do not explain the absence of any detail in a medical certificate as to why a patient is “unfit” or the manner in which any such “unfitness” may impair an ability to participate in an administrative hearing.

25    Nor is there any self-evident error in the manner in which the Tribunal in April 2016 exercised the power conferred by s 362B.

26    No error is exposed in the reasons of the primary Judge for rejecting the grounds of review then relied upon. Nor is any error exposed in the consideration given by the primary Judge to the “decided cases” and the manner in which the Tribunal in April 2016 considered the Medical Certificate.

27    Although this Court may, pursuant to r 36.05 of the Federal Court Rules, grant an extension of time in which to file a Notice of Appeal, it may refuse to do so where the arguments sought to be advanced are without sufficient merit: cf. SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 at [15] per Collier J. Such is the present case.

CONCLUSIONS

28    No appellable error is discernible in the manner in which the primary Judge proceeded. Nor is there any self-evident error in the Tribunal basing its decision to not reinstate the Application before it upon the evidential material available to it, including its reservations as to the utility of the Medical Certificate.

29    The Application for an extension of time is to be refused and the proceeding dismissed.

30    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The oral application for dismissal of the proceeding pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) is rejected.

2.    The Application for an Extension of Time is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the First Respondent, either as assessed or agreed.

Associate:    

Dated:    23 May 2019