Singh v Minister for Immigration and Border Protection

1. The appellant's application to adjourn the hearing of his appeal be dismissed.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs fixed in the sum of $2,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 4 September 2018. His Honour dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had, on 30 June 2015, affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, made on 19 September 2013, to refuse the grant of a Skilled (Residence) (Class VB) subclass 885 visa to the appellant. 2 An indispensable criterion to be met for the grant of the visa was that the appellant have "competent English": cl 885.213 in Pt 885 of Sch 2 of the Migration Regulations 1994 (Cth) at the relevant date. That in turn required him to have achieved, in a test conducted not more than two years before the day upon which he applied for the visa, what is known as an IELTS test score of at least six for each of four test components addressing speaking, writing and listening: reg 1.15C of the Regulations. He failed to establish that he had met those criteria to the satisfaction of the delegate. 3 The appellant applied for merits review by the Tribunal on 2 October 2013. An initial adverse Tribunal decision was set aside and the review application remitted for reconsideration. The second Tribunal again affirmed the delegate's decision. That only occurred after the Tribunal gave the appellant many opportunities to demonstrate that he had met the English language test criteria. Those opportunities were given by correspondence dated 17 November 2014, at a hearing on 7 January 2015, and by correspondence sent on 19 February 2015 and on 26 May 2015. The only information that was received, attached to an email sent by the appellant to the Tribunal on 5 June 2015, indicated that he had not achieved the necessary test result in a test conducted on 10 April 2015. 4 On 9 June 2015, the Tribunal wrote to the appellant and gave him a final opportunity to provide evidence of meeting the "competent English" criterion by 23 June 2015, failing which a decision would be made on the review. On 12 June 2015, the Tribunal received confirmation that the results of a re-marking of the failed 10 April 2015 test had been provided to the appellant. No further test results were furnished to the Tribunal, supporting an inference that the re-marking did not produce the necessary result. In any event, the Tribunal was not provided with information by which it could be satisfied that the "competent English" criterion was met. On 30 June 2015, the second Tribunal affirmed the delegate's decision. 5 On 20 July 2015, the appellant applied for judicial review of the second Tribunal's decision to the Federal Circuit Court. That application was dismissed on 4 July 2018. The grounds of review and the primary judge's conclusions upon them may be briefly stated. His Honour (at [12]) summarised the grounds as follows: The grounds pleaded include matters which are not capable of judicial review by the Court and are repetitive in substance. The matters which the applicant would appear to have sought to raise were that: a) the Tribunal prejudged his case; b) he had not been given enough time to successfully sit an English language test; c) the IELTS testing bodies deliberately under-marked; and d) the Tribunal ought to have considered his IELTS tests as a group rather than individually because, if taken as a group, he had passed every category at least once to the necessary level. 6 The Minister's submissions accurately summarise the primary judge's consideration of the grounds of review that were before his Honour as follows at ([27]-[32]): The primary judge held that the Tribunal did not simply "rubberstamp" the decision of the Delegate. It reached the same conclusion as the Delegate, having given the Appellant a reasonable opportunity to demonstrate that he met the competent English criterion. The Appellant gave sworn evidence at the FCC hearing that prior to the Tribunal's decision and after he had been given a final deadline to provide information (on 9 June 2015), he had a telephone conversation with his case officer at the Tribunal. He had requested further time to sit another test and that request was refused. The primary judge noted there was no material before the Court which corroborated this evidence. Moreover, the Tribunal recorded at [14] of its decision record that it had not received any further requests from the Appellant after the request for an extension which was granted on 9 June 2015. Ultimately, the primary judge determined that he did not need to make a decision on that issue (albeit noting that if he did, he would be inclined to find that the Appellant was mistaken in his recollection). The primary judge observed that the only jurisdictional error which could be disclosed was an unreasonable refusal of additional time to sit a further test. The primary judge held that any such refusal was not a decision affected by legal unreasonableness in light of the accommodation which the Appellant had already been given by the Tribunal (i.e. providing the Appellant more than one extension of time to provide the requisite information). The primary judge also rejected the Appellant's allegations that his test was under-marked, as there was no evidence in support of such a claim. Finally, the primary judge rejected the Appellant's contention that the Tribunal ought to have considered his multiple IELTS test results collectively as that was not the relevant requirement for the grant of a Skilled visa. For the reasons summarised above, the primary judge dismissed the application for judicial review. 7 By a notice of appeal filed on 13 July 2018, the appellant raises the following sole ground of appeal: His Honour Judge Cameron dismissed my application on 4 July 2018. I dispute his decision and strongly hope that the Federal Court will reconsider my application as I was married on 31 October 2015 and I have a daughter born 17 July 2017 and my application before the Tribunal and His Honour did not meet some technical requirements but my visa should be granted as I have met the requirements. 8 The appellant did not comply with orders made on 4 September 2018 that he file and serve written submissions no later than 10 working days before the hearing of the appeal, that is to say by 31 January 2018. Instead, and without even the courtesy of letting the Minister or the Court know, he went to India on 25 January 2019, it seems for medical treatment. At no stage before leaving Australia was any attempt made to vacate or adjourn the appeal hearing, yet he must have known well before leaving that he would not be in Australia for the hearing of his appeal. 9 At 3.53 am on 12 February 2019, two days before the scheduled appeal hearing on 14 February 2019, the appellant emailed the Court registry in the following terms (verbatim): Dear sir or madam , I am writing this letter regarding my case in federal court of Australia. I got my hearing listed for 14 Feb 2019 however, I had my nose surgery done this week from overseas and doctor advised me to have bed rest for one week to stop bleeding and avoid dust. so I am requesting to honourable court if, I can get new court date to represent my case and attend the court hearing. Thanks so much for your time Jaspreet singh 10 The Sydney registry emailed the appellant back twice as follows, both on 12 February 2019: (1) At 11.15 am: Dear Mr Singh, You should notify the Minister's legal representative to see if the Minister is agreeable to an adjournment. If the Minister does not agree, you will need to make adjournment application in Court on 14 February 2019 and be able to provide medical evidence to support the application. Kind regards David (2) At 12.24 pm: Dear Mr Singh, Further to the email below, please note that, regardless of whether the Minister agrees, an adjournment application needs to be made either at or prior to the appeal hearing date (Friday, 15 February 2019), supported by affidavit or oral evidence, together with any documents relied upon. The deponent (the person making the affidavit) must be available at Court for cross-examination. No assumption should be made that any such application will succeed or that the appeal hearing will not proceed as listed. If any adjournment application that is made is not granted, the appeal will proceed at the appointed time of 2.15 pm on Thursday, 14 February 2019. Kind regards David For NSWDR 11 In the early hours on the day of the appeal hearing, 14 February 2019, the appellant again emailed the Court registry in the following terms (verbatim): Good morning, I am sending my medical certificate .pls attach for new court date .thanks 12 The document attached to that email was in the form of a medical certificate dated 11 February 2019, on its face from the Chikitsa Ear, Nose and Throat Hospital at an address in Amritsar, India. The handwritten contents were as follows: TO WHOM IT MAY CONCERN This is to certify that Mr. Jaspreet Singh 32y M/A is suffering from sino-nasal polyposis with CRS. He is advised surgery after a short course of medication for 1 week to 10 days. After surgery he had to avoid air travel for another 20 - 25 days. 13 It should be noted that this document stated on its face "Not for Medico Legal Purpose". 14 The Minister opposed the adjournment application, pointing to the notice that the appellant had of the likely and later confirmed appeal hearing dates. In summary, since September 2018, the appellant has been on notice that this appeal would be heard in the period from 4 February 2019 to 1 March 2019. By an email sent to the appellant by the Court's registry on 11 January 2019, he was informed that the appeal would be heard before me at 2.15 pm on 14 February 2019. 15 I dismissed the appellant's adjournment application because I did not consider that any sufficient basis had been established for the appeal to be adjourned. As I previously observed in Gulati v Minister for Immigration and Border Protection [2017] FCA 255 at [14] (repeated in Ahmad v Minister for Immigration and Border Protection [2018] FCAFC 199 at [4]): The third factor reinforcing my view that this is an insufficient and unacceptable means by which a scheduled hearing before this Court should be adjourned arises from clear authority from the New South Wales Court of Appeal in similar circumstances in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [3]-[6]; followed in Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [34(3)]. AHB indicates that, in considering an application to adjourn the hearing of an appeal, an appeal court will not ordinarily act on a "formulaic document" but rather will usually require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court. That is especially so when a matter was fixed for hearing some considerable time ago and its presence in the list has prevented other matters being listed for hearing. 16 Following the dismissal of the adjournment application, I decided that a hearing of the appeal should take place in the absence of the appellant. 17 The Minister applies for the appeal to be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). The Minister relies upon his written submissions and also upon an affidavit filed in support of a fixed costs application that he also makes. The Minister submits: (1) By the sole ground of appeal, the appellant merely seeks to invite this Court to engage in a fresh assessment of his eligibility for the grant of the visa, without identifying any potential legal error on the part of the primary judge. (To that I might add that no antecedent and undetected error on the part of the Tribunal is identified beyond, perhaps, what was asserted below.) (2) For the grant of the visa, the appellant was required to meet the requirements under Pt 885 of Sch 2 to the Regulations at the time of the Tribunal's decision. (3) The Tribunal affirmed the delegate's decision in circumstances where he had not satisfied the competent English criterion under cl 885.213 and reg 1.l5C of the Regulations. In so doing, the Tribunal noted that some five years had passed since the appellant made his application. During that period, the Tribunal had allowed the Appellant additional time to sit an IELTS test and have the results of that test re-marked. (4) The appellant's contention that he has "met the requirements" for the grant of the visa has no support and is contrary to the facts as found by the Tribunal, that being its role. (5) The factual chronology of the appellant's case and the Tribunal's decision record demonstrate that despite having sat multiple IELTS tests in the past, the appellant did not achieve a score of at least six in each of the four components in a single test. (6) To the extent that the appellant seeks to allege that the Tribunal ought to have considered multiple IELTS tests together, such an approach is contrary to authority: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651 at [73]-[74]. (7) The appeal ought to be dismissed because the sole ground of appeal fails to identify any appellable error said to have been committed by the primary judge. It should not be left to this Court on appeal to itself review the reasons for decision of the primary judge and attempt to identify any appellable error. It is not the role of this Court, as the appellant seems to assume, to consider whether he "met the requirements" for the grant of the visa but rather to determine whether error was committed by the primary judge. None has been demonstrated. 18 I agree with each of those submissions. The appeal is utterly devoid of merit and should be dismissed with costs. As already noted, the Minister seeks a fixed costs order. The affidavit relied upon identified costs in a range from $2,347 (being about 65% of the Minister's professional costs) to $2,708 (being about 75% of the Minister's professional costs), with a midpoint of $2,528. I consider that amount to be a reasonable estimate of what the assessed costs would be, rounded down to $2,500. 19 The orders of the Court are: (1) The appellant's application to adjourn the hearing of his appeal be dismissed. (2) The appeal be dismissed. (3) The appellant pay the first respondent's costs fixed in the sum of $2,500. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.