Singh v Minister for Home Affairs

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.