Babar v Minister for Home Affairs

[2019] FCCA 1752

FEDERAL CIRCUIT COURT OF AUSTRALIA

BABAR & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1752

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Temporary Business Entry (class UC) or Temporary Work (skilled) (subclass 457) visa – show cause – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Federal Circuit Court Rules 2001 (Cth).

Cases cited:

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383

Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30

MZAJQ v Minister for Immigration & Anor [2015] FCCA 593

Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; 84 ALJR

612; 269 ALR 233

SZUTB v Minister for Immigration & Anor [2015] FCCA 1383; 298 FLR 6

First Applicant: USMAN BABAR

Second Applicant: SHAZIA USMAN

Third Applicant:  UMER USMAN

Fourth Applicant:  HASAN USMAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1961 of 2017

Judgment of: Judge Mercuri

Hearing date: 20 February 2019

Date of Last Submission: 20 February 2019

Delivered at: Melbourne

Delivered on: 28 June 2019

REPRESENTATION

Advocate for the applicants: In person

Solicitors for the applicants: None

Advocate for the respondents: Mr Van Der Westhuizen

Solicitors for the respondents: DLA Piper

ORDERS

1. The applicants’ application filed on 11 September 2017 be dismissed.

2. The applicants pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1961 OF 2017

USMAN BABAR

First Applicant

SHAZIA USMAN

Second Applicant

UMER USMAN

Third Applicant

HASAN USMAN

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the tribunal”) dated 14 August 2017 by which the tribunal affirmed a decision of the delegate to the first respondent, the Minister for Home Affairs (“the delegate”) not to grant the applicants a Temporary Business Entry (class UC) or Temporary Work (skilled) (subclass 457) visa (“the visas”). The tribunal confirmed its earlier decision made on 7 June 2017 to dismiss the review application based on the applicants’ failure to attend at the scheduled hearing.

2. By orders made by consent in chambers on 16 May 2018, this matter was listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) to be held on 20 February 2019.

Background

1. The applicants are all citizens of Pakistan. The first and second named applicants are adults and married to one another. The third and the fourth named applicants are their children.[1]

   [1] Court book pages 1 to 5.

2. On 27 April 2015, the applicants applied for subclass 457 Temporary Work (skilled) visas.[2]  In the application, the applicants advised that they had the assistance of a migration agent and requested that any communications should be sent to their migration agent at ‘[email protected]’.[3]

   [2] Court book pages 1 to 15, 17.

   [3] Court book pages 7 to 8.

3. On 6 May 2015, the applicants’ migration agent lodged a submission and further supporting documentation in support of the applicants’ application.[4]

   [4] Court book pages 20 to 71.

4. On 8 May 2015, the department requested further information from the applicants.  This request was communicated by email addressed to ‘[email protected]’.[5]

   [5] Court book pages 73 to 89.

5. On 3 June 2015, the applicants, via their migration agent:

   a)advised the department that a new nomination had been lodged in respect of the applicants;[6] and

   b)provided the further information requested.[7]

   [6] Court book page 90.

   [7] Court book pages 94 to 291.

6. On 18 June 2015, the department invited the applicants to comment on information relevant to their visa applications.  This letter again was sent to the applicants’ nominated email address at ‘[email protected]’.[8]

   [8] Court book pages 292 to 295.

7. In the letter of 18 June 2015, the department relevantly stated:

   One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination.  Your prospective employer, ANSAAR PTY LTD ATF JN FAMILY TRUST, does not have an approved nomination for you at this time.  As a result, your visa application is unlikely to be successful.

   …

   In the absence of an approved nomination from your prospective sponsor, you can either:

   ·provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination); or

   ·withdraw your application in writing; or

   ·provide comment or any other information which you think is relevant in response to this adverse information.[9]

   [9] Court book page 292.

8. On 5 August 2015, the department advised the applicants that their visa application had been refused.[10]  It was noted that notwithstanding the opportunity provided to the applicants to provide further comment in relation to the apparent absence of an approved nomination, no response was received by the department as at the date of the decision. The delegate concluded that:

   As the primary applicant is not the subject of an approved nomination at the time this application is being decided, I am therefore not satisfied that paragraph 457.233(4)(a) has been met.[11]

   [10] Court book pages 297 to 303.

   [11] Court book page 301.

9. The delegate also concluded that the secondary applicants did not satisfy the requirements of clauses 457.223 or 457.321.[12]

   [12] Court book page 302.

10. On 20 August 2015, the applicants applied to the tribunal for review of the delegate’s decision and appointed a registered migration agent in their application.[13]  Again, the applicants indicated that they were represented by a migration agent and noted their email contact details as ‘[email protected]’.[14]

    [13] Court book pages 304 to 306.

    [14] Court book pages 305 to 306.

11. The department acknowledged receipt of this application by letter dated 20 August 2015, in which they relevantly said:

    Please note that the validity of your application has not yet been assessed.  We can only review a decision if a valid application for review has been made.  You will be advised if it appears that your application may not be valid.[15]

    …

    It is important that you… tell us immediately if you change your contact details (such as your… email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details.  If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice...[16]

    [15] Court book page 316.

    [16] Court book page 316.

12. On 1 September 2015, the applicants’ representative made a further written submission on the applicants’ behalf and enclosed a copy of the appeal against the nomination application.[17]

    [17] Court book pages 323 to 332.

13. By letter dated 2 May 2017, the applicants were invited to attend a hearing on 7 June 2017 before the tribunal. The letter provided information of the location of the hearing, the date, time and the following note:

    If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us…[18]

    [18] Court book page 339.

14. In addition, the department’s case notes indicate that the applicants were sent a reminder SMS about the hearing scheduled for 7 June 2017.  An SMS was sent to the first applicant’s nominated mobile number on 31 May 2017 at 11:00am.[19]

    [19] Court book page 347.

15. On 6 June 2017 at 9:26am, the applicants’ migration agent sent an email to the ‘National Registry Mailbox’ advising that she had ‘not received instructions to act or appear or attend tomorrow’s hearing for Mr Babar.  You may need to contact Mr Babar directly in relation to this matter.’[20]

    [20] Court book page 348.

16. Also on 6 June 2017 at 11:00am, the first applicant was sent a further SMS reminder about the scheduled hearing on 7 June 2017.[21]

    [21] Court book page 347.

17. On 7 June 2017, the applicants failed to attend the scheduled hearing. A notice of withdrawal of the appointed representative was not filed, nor did the first applicant respond to any of the SMS reminders sent to him. The tribunal dismissed the applicant’s application pursuant to section 362B(1A)(b) of the Migration Act 1958 (Cth) (“the Act”) at the hearing.

18. Notification of the tribunal’s decision and information regarding the applicants’ right to reinstatement was sent by email to the applicants’ migration agent on the same day of the hearing.[22]

    [22] In accordance with sections 362C(5) and 379G(1)(b) of the Migration Act 1958 (Cth).

19. Neither the applicants nor their migration agent sought a reinstatement of their application and they did not otherwise make any contact with the tribunal.

20. On 14 August 2017, the tribunal confirmed its dismissal decision.[23]

    [23] Court book pages 370 to 374.

21. On 11 September 2017, the applicants filed the application for review of the tribunal’s decision in this court.

The tribunal’s reasons

1. In its decision record in respect of the non-appearance decision, the tribunal noted that:

   a)the applicants had been invited to appear before the tribunal on 7 June 2017;

   b)the applicants did not appear at the schedule time and place;

   c)having reviewed the file, the tribunal was satisfied that:

   i)the applicants had been properly notified of the hearing;

   ii)the invitation had not been returned to sender; and

   iii)two separate SMS reminders had been sent directly to the first applicant; and

   d)no satisfactory reason had been provided for the applicants’ non-appearance. 

2. In those circumstances, the tribunal dismissed the applicants’ application without further consideration of the application or the information before the tribunal.[24]

   [24] Court book page 367.

3. In the decision record of the Confirmation Decision, the Tribunal noted that the applicants have been notified of the Non-Appearance decision and had also been advised of their right to seek to have the review reinstated.  As the applicants had not sought to have the review application reinstated, it concluded that ‘the Tribunal must confirm the decision to dismiss the application.’

4. The Tribunal therefore confirmed the decision to dismiss the application.

Grounds of review

1. The applicants raised three grounds of review in their application to this court:

   1.In our appeal to the AAT we were not given an opportunity to present our matter to the Tribunal. There is a lack of procedural fairness because we have not had a chance to speak or write about anything to the Tribunal to help our case.

   2.We also had a pending nomination matter at the Tribunal, but we weren’t given chance to comment on that matter either.

   3.We request to be given an opportunity to explain our case and our reasoning of our matter to a court or tribunal as we never got a chance to explain, so we hope this court can help give us the right to a fair hearing.

2. In essence, the applicants assert that:

   a)they were not given an opportunity to be heard;

   b)they had a pending nomination before the tribunal but were not given an opportunity to comment on that; and

   c)they seek an opportunity to explain their position at a fair hearing.

3. At the beginning of the hearing, when asked what submissions he would like to make in support of his application, the first applicant said:

   I want to say only … I’m fully qualified and I have provided all my documents and degree.  I did masters in economics and I have a very sound background in marketing and sales and business and I’m not sure… why I was rejected.[25]

   [25] Transcript page 2 at line 44 to page 3 at line 2.

4. As noted above, orders were made on 16 May 2018 which, among other things, permitted the applicants to file and serve an amended application and written submissions.  No such material was filed. 

5. It was submitted on behalf of the delegate that the applicants were afforded procedural fairness and further, that the tribunal had a discretionary power to dismiss the application for non-appearance without further consideration. Moreover, once satisfied that the applicants had been invited to attend a hearing in accordance with the Act, the tribunal’s power under section 326B(1) was enlivened when the applicants failed to appear.[26]

   [26] First respondent’s written submissions filed 6 February 2019 at paragraph [21].

6. The delegate quite properly conceded that the discretionary power to dismiss was one which ought to be exercised reasonably, but argued that in the circumstances of this case, the tribunal exercised its discretion in a reasonable manner.[27] 

   [27] First respondent’s written submissions filed 6 February 2019 at paragraph [22].

7. The delegate referred to the decision of AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 (“AZAFB”), but said that this case was distinguishable.  In AZAFB, North ACJ found that in circumstances where the applicant:

   a)had previously engaged in the review process;

   b)had provided a mobile telephone number; and

   c)had not appeared in response to an invitation to attend a hearing;

   it was legally unreasonable not to at least attempt to contact the applicant by telephone before exercising its discretion under section 426A.[28]

   [28] AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 at [26].

8. It is noteworthy that in AZAFB, the applicant changed address and had notified the department of that change although he had not notified the tribunal. It appears that the change in address led to the applicant’s non-attendance at the hearing.  The court concluded in AZAFB that the tribunal’s decision to proceed in the absence of the applicant was legally unreasonable. 

9. In this case, by comparison, the tribunal sent two SMS text message reminders to the first applicant’s mobile telephone confirming the date for the hearing, the first on 31 May 2017 and then a second one on 6 June 2017 after receiving an email from the applicant’s nominated representative.  No response was received to either message. I am satisfied that the facts of this case are distinguishable from the facts in AZAFB.

10. The delegate also relied upon the High Court decision in Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 (“SZVFW”) where the tribunal’s discretion was considered under section 426A of the Act.[29] As noted by the delegate, both section 426A and 362B of the Act have been amended since the facts which gave rise to SZVFW occurred.  Both provisions now permit the tribunal to dismiss an application rather than simply proceed to determine it on its merits.  This distinction however, does not alter the applicability of the reasoning of the High Court in SZVFW to the present case. 

    [29] Section 426A is the analogous provision to section 326B.

11. As noted by Kiefel CJ:

    The reasons overlook that it is the intention of the scheme of the Migration Act that the Tribunal be permitted to consider the exercise of its powers under s 426A if those preconditions are met.

    In this case those preconditions were met.  The invitation required by s 425 was given by one of the methods specified in s 441A, as s 425A requires.  Moreover, s 441C has the effect that a person is deemed to have received a document given by one of the methods so specified.  There was nothing before the Tribunal to suggest ot he contrary of hat state of affairs.  It was entitled to proceed to consider the exercise of its powers under s 426A.

    It is difficult to see how it might be concluded that the decision that the Tribunal then made – not to make further contact with the respondents and adjourn its hearing for that purpose – was unreasonable. [30]

    [30] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 at [7]–[9].

12. After discussing the concept of legal unreasonableness, Kiefel CJ further stated:

    …the Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. …Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is no to be exercised in a way which would be contrary to the others.[31]

    [31] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 at [13].

13. Importantly, Kiefel CJ also noted that the ‘requirement to be implied in a provision such as s. 426A, that a decision-maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it.’[32] Ultimately, the conclusion reached by Kiefel CJ was that the tribunal’s decision to exercise its discretion under section 426A was not affected by jurisdictional error.[33]

    [32] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 at [15].

    [33] See also Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 at [68]–[70] per Gageler J; [97] and [118]–[123] per Nettle and Gordon JJ.

14. In this case, as set out above, the applicants advised the department and the tribunal that they were being assisted by a registered migration agent.  All correspondence between the applicants on the one hand and the department and tribunal on the other was exchanged with the nominated registered migration agent.  All correspondence was sent to that registered migration agent via the nominated email account.

15. Indeed, the tribunal was required to send correspondence to the applicants via the registered migration agent pursuant to section 379G. Section 379G(2) of the Act relevantly provides:

    If the Tribunal gives a document to the authorised representative, the Tribunal is taken to have given the document to the applicant.

16. In this case, in addition to notifying the applicants via the nominated registered migration agent, the tribunal also sent the applicant an SMS text message reminder regarding the scheduled hearing.  No response was received prior to the tribunal making its decision.

17. As stated above, the tribunal exercised the discretion conferred upon it by section 326B which relevantly provides:

    (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.

    (1A)  The Tribunal may:

    (a)…

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

    (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. 

    …

    (1E)If the applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the Tribunal must 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.

18. Section 360 of the Act provides that ‘the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review’ in certain circumstances. The tribunal gave notice in accordance with section 360 by letter dated 2 May 2017.[34] The notice given complied with the requirements in section 360A. Importantly, it gave the notice by email, complying with section 379A(5). The period of notice exceeded the prescribed period of notice.

    [34] Court book page 338.

1. Notwithstanding having been given appropriate notice, the applicants did not attend the hearing.  Moreover, as noted above, not only did the tribunal give written notice by email, but it also sent two reminder SMS text messages directly to the first applicant.  No response was received to these.  Whilst it is conceded that the applicants’ registered migration sent an email saying that she did not hold instructions to ‘act or appear or attend’ the scheduled hearing, the applicants failed to notify the tribunal at any stage if they in fact had withdrawn authorisation for the migration agent to act on their behalf or, importantly, receive information on their behalf.

2. It is notable that the applicants have not provided any reason for their failure to attend the hearing, or indeed their failure to seek to have the application for review reinstated within the specified timeframe.

3. As noted, this matter was listed for a show cause hearing. The Court’s power under rule 44.12(1)(a) of the Rules is in the form of summary dismissal.[35] As such, it is a power which ought to be exercised with caution.

   [35] MZAJQ v Minister for Immigration & Anor [2015] FCCA 593 at [13] per Whelan J, SZUTB v Minister for Immigration & Anor [2015] FCCA 1383; 298 FLR 6 at [10] per Smith J, and see also French CJ and Gummow J in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 at [24].

4. Having said that, in this case, I find that it was reasonably open to the tribunal to exercise its discretion under section 362B and that in dismissing the applicants’ claim for non-appearance, the tribunal did not act in a legally unreasonable manner.

5. Moreover, having made a decision to dismiss the applicants’ claim for non-appearance, the tribunal was required to confirm the decision in circumstances where the applicants had not availed themselves of the ability to seek to have the applications reinstated within the prescribed timeframe.

6. For these reasons, the applicant has not established an arguable case that either the non-appearance decision or the confirmation decision was affected by jurisdictional error. 

7. For each of these reasons, I find that:

   a)the applicants’ application ought to be dismissed pursuant to rule 44.12(1)(a) of the Rules; and

   b)the applicants ought to be ordered to pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 28 June 2019