Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from the transcript)

LEE J 1 Before the Court is an application filed on 19 August 2020 by which an extension of time and leave to appeal is sought against orders made on 21 July 2020 by a judge of what was then known as the Federal Circuit Court of Australia, published as Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1984 (J). 2 The relevant background to the matter before the Federal Circuit Court is set out in the primary judgment: J [2]-[13]. None of the matters identified in those paragraphs is in issue on appeal. It suffices to note for present purposes that Mr Shrestha, a citizen of Nepal, was granted a Student (Temporary) (Class TU) (subclass 500) visa on 1 August 2016. On 30 July 2018, a delegate of the Minister cancelled Mr Shrestha's visa pursuant to s 16(1)(b) of the Migration Act 1958 (Cth) (Migration Act) for failure to comply with condition 8202 of Sch 8 of the Migration Regulations 1994 (Cth), which relevantly required that the visa holder be enrolled in a registered course. 3 On 7 July 2018, Mr Shrestha applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate's decision. On 26 September 2019, the Tribunal invited Mr Shrestha to attend a hearing scheduled on 14 October 2019. Neither Mr Shrestha, nor his representative, responded to the invitation, and no appearance was made at the hearing. On the same day, the Tribunal dismissed the application pursuant to s 362B(1A)(b) of the Migration Act without further consideration of the application or the information before it. 4 Two days later, on 16 October 2019, the applicant's representative emailed the Tribunal explaining that the applicant was sick on the day of the hearing and requesting a later hearing date. In support of this request, the applicant's representative provided two medical certificates, one dated the day before the hearing before the Tribunal, and the other on the day of the hearing. The certificates were in the briefest of terms, and merely stated that the applicant had a "medical condition" and was "unfit for studies" and "unfit for work/study". 5 On 29 October 2019, the Tribunal, after being satisfied that the applicant had received notice of the initial hearing, proceeded to refuse to grant the applicant reinstatement and confirmed its original decision to dismiss the application pursuant to s 362B(1A)(b) of the Migration Act on account of the applicant's non-attendance. 6 On 25 November 2019, the applicant commenced proceedings in the Federal Circuit Court, seeking judicial review of the Tribunal's decision of 29 October 2019. In short, the primary judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal, and dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court of Australia Rules 2001 (Cth). 7 The decision of the primary judge was, of course, interlocutory and as a consequence, the applicant was required to file an application for leave to appeal within 14 days: s 24(1A)(1) of the Federal Court of Australia Act 1976 (Cth). As it turned out, the applicant was late in filing his application by approximately a fortnight; hence, the matter has come before me as an application for an extension of time to seek leave to appeal from the judgment of the Federal Circuit Court. 8 The evidence on the application consists of one affidavit which explains that, at the time the application was to be filed, the applicant was: PSHYCHOLOGICALLY EFFECTED AND AS THIS TIME IS COVID-19 WHERE MOST OF THE LAWYER DIDN'T WANTED TO TAKE MY CASE AND I DIDN'T KNOW MUCH ABOUT LODGEMENT (Capitalisation and errors in original). 9 Needless to say, in determining whether to grant an extension of time, the Court has a discretion that must be exercised judicially and in accordance with the overarching purpose of civil litigation in this Court. The exercise of the discretion requires the balancing of different and often conflicting interests in accordance with the particular circumstances of the case. The delay was a short one and the applicant has provided some explanation for it. The Minister, with respect correctly, does not point to any prejudice that might have been suffered because of the delay. Essentially, the question comes down, as it does in so many cases of this type, to the underlying merits of the proposed appeal. 10 The merit of any proposed appeal should be considered at a "reasonably impressionistic level": DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 (at 500-501 [101] per Collier, Rangiah and Derrington JJ). I have had the opportunity of reviewing the record below and I do not consider on any final hearing anything more could have been said than that which was said during the course of the application for an extension of time. In dealing with the approach to the application, I have had regard to the cases usefully collected by Thawley J in BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 (at [22]-[25]). The grounds of the application are identified as follows: Grounds of application 1. MEDICAL REASON WERE OVERLOOKED 2. PSYCHOLOGICAL REASONS WERE NOT GIVEN PREFERENCES (Capitalisation and errors in original). 11 The grounds of appeal in the draft notice of appeal are as follows: Grounds of appeal 1. MY MEDICAL REASONS WERE OVERLOOKED BY ADMINISTRATIVE APPEAL TRIBUNAL AND FEDERAL CIRCUIT 2. I WAS ALWAYS A GENUINE STUDENT BUT WEREN'T GIVEN ANY STUDENT RIGHTS (Capitalisation and errors in original). 12 The proposed grounds of appeal reflect arguments that were before the primary judge. The primary judge held that no arguable case of jurisdictional error arose for the purposes of the show cause application. In answer to a contention below that the "medical issue was not considered" (which reflects ground one of the draft notice of appeal), the primary judge held, in my view correctly, that the assertion that the Tribunal did not consider the medical issue was wrong in fact and was plainly considered in the decision: see J [19]. When the applicant was originally invited to a hearing before the Tribunal, the invitation stated the following as to what the applicant would need to do if he could not attend the scheduled hearing: If you seek to adjourn your hearing for a medical reason, you must provide a doctor's certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. 13 In dealing with the application to reinstate the application for review, the Tribunal stated: 5. In his request for reinstatement dated 16 October 2019, the Applicant stated that he 'was very sick on the day of the hearing that's why I couldn't attend the hearing'. He further requested that the hearing, which he did not attend, be adjourned until a later date. In support of his application for reinstatement, he attached two separate medical certificates, dated 13 October 2019 and 14 October, respectively. Both medical certificates are authored by different doctors from the same medical clinic, Auburn Health Care Centre. Dr Wu was the author of the certificate dated 13 October 2019 and Dr Ragavan was the author of the certificate dated 14 October 2019. Both certificates state that the Applicant 'has a medical condition and will be unfit for work/study' on the day on which the certificate was issued. Nothing further is said in the certificates. 6. The medical certificates do not provide a satisfactory explanation for the Applicant's failure to attend the hearing on 14 October 2019. The medical certificates do not say he was so incapacitated that he could not attend a hearing either in person or by telephone. The certificates are otherwise vague and inadequate as providing a reasonable foundation for the Applicant's reinstatement application to be granted. 14 In my view, it was clearly open to the Tribunal to form the view it did on the basis of the medical material before it. As Thawley J explained in BXD17 (at [35]): The critical question is whether the applicant was prevented from attending court or participating effectively in a court hearing. Where an applicant's case is that she is unable to attend or participate meaningfully in a hearing by reason of a medical condition, such an applicant must provide some basis for the court to conclude that the medical condition does indeed prevent her attendance or effective participation. The most obvious way to do so is to furnish medical evidence to the effect that the relevant medical condition exists and has the effect of preventing the attendance or effective participation of the applicant. The weight to be afforded such evidence depends on its particular content. A report which explains why the relevant medical practitioner holds the opinion that the medical condition prevents the applicant attending or participating is likely to be afforded more weight than a report which contains mere ipse dixit. A report which just states a conclusion, if admissible, may be of little or no weight. The report in the present case did not state that the applicant was unable to attend, and nor did it state that she was unable to participate meaningfully at a hearing. It follows that it also did not explain why the applicant would not be able to attend or participate meaningfully. Similar issues were addressed in Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]-[14], per Murphy J. 15 After considering the two medical certificates, the Tribunal was under no obligation to accept the applicant's explanation for his non-attendance as stated in the certificates, given their lack of satisfactory explanation for his inability to participate effectively in a hearing. 16 As the Minister correctly submits, the Tribunal's conclusion that it was not appropriate to reinstate the applicant's visa was open to it on the material before it, and this fell within the "decisional freedom" of the Tribunal. The reasons provide a reasonable and intelligible justification for that decision: see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (at 171 [62] per Allsop CJ, Griffiths and Wigney JJ) and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2018) 249 CLR 332 (at 367 [76] per Hayne, Kiefel and Bell JJ). It follows that the primary judge was correct to find there was no arguable case of jurisdictional error by the Tribunal in the circumstances. 17 As noted above, proposed ground two asserts that the applicant was a "genuine student" and was not given "any student rights". Again, the primary judge was correct to conclude that the assertion of this fact did not bear upon the validity of the Tribunal's decision: see J [21]. In any event, the Tribunal was not required to consider further the application or the information before it once the power to dismiss the application under s 262B(1A)(b) of the Migration Act was enlivened. 18 Further, to the extent that it might be thought that there may be some disquiet that, during the course of this long process, there has been no engagement with the underlying facts, it is worth noting the following by way of conclusion. 19 The applicant does not dispute that, when the delegate purported to cancel the applicant's visa in July 2018 for a failure to comply with condition 8202 of Sch 8 of the Migration Act, there had, in fact, been non-compliance with his visa conditions as the applicant had not been enrolled in a registered course since November 2017. Considering the significant length of time of the non-compliance, no argument has been articulated as to why it was not open for the Minister, or the Tribunal, to be satisfied the grounds for cancelling the visa outweigh the reasons for not cancelling the visa. Accordingly, I do not consider that there is any real or substantial basis for questioning the lawfulness of the underlying decision. 20 In all the circumstances, it does not appear to me that this is a case where an extension of time ought to be granted. The application must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.