Basnet v Minister for Home Affairs
[2019] FCCA 3046
•24 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BASNET v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3046 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal by Tribunal for non appearance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error although immaterial legal error established – orders made in the absence of the applicant – history of non engagement in proceedings – no application for reinstatement to be filed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Datta v Minister for Home Affairs & Anor [2019] FCCA 2604 |
| Applicant: | SURUCHI BASNET |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 607 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K Evans of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
No application for reinstatement under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) is to be accepted for filing.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
THE COURT NOTES THAT:
The Minister’s legal representative undertakes to serve a sealed copy of the Court’s orders made today on Ms Basnet at her last known address for service by ordinary pre-paid post.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 607 of 2019
| SURUCHI BASNET |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
I have before me a show cause application filed on 4 April 2019 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 February 2019 and confirmed on 5 March 2019.
In the first decision, the Tribunal dismissed the review application on account of the non-attendance by the applicant, Ms Basnet, and in the second decision, the dismissal decision was confirmed on account of the failure by Ms Basnet to seek reinstatement.
Ms Basnet’s judicial review application only seeks review of the confirmation decision, although that might have been overcome by amendment. Procedural orders were made giving the opportunity for amendment of the application, but no amendment has been made. It would follow that Ms Basnet would also now need a significant extension of time if she sought to review the initial dismissal decision.
Background facts in this matter are otherwise set out in the Minister’s outline of submissions filed on 17 October 2019.
On 1 November 2016, Ms Basnet lodged an application for employer nomination (subclass 186) visa (visa).[1] Ms Basnet applied for the visa on the basis of her employment as a software engineer sponsored by Python Technologies (sponsor).[2]
[1] Court Book (CB) 1
[2] CB 6
On 7 November 2017, a delegate of the Minister (delegate) wrote to Ms Basnet inviting her to comment on information that the nomination application lodged by the sponsor had been refused and that accordingly, there was “no possibility” of her visa application being approved. The Minister’s Department informed Ms Basnet that if she did not withdraw her visa application within 28 days after receipt of the letter, then her visa application would be refused.[3]
[3] CB 60
On 12 December 2017, the delegate refused to grant Ms Basnet the visa.[4]
[4] CB 64
On 31 December 2017, Ms Basnet lodged an application with the Tribunal for a merits review of the delegate’s decision.[5] The application indicated that Ms Basnet was represented by a registered migration agent, Jamil Shah, and she provided the email address [email protected] for the purpose of receiving correspondence. Ms Basnet also provided her own phone number.[6]
[5] CB 70
[6] CB 70-71
On 5 December 2018, the Tribunal wrote to Ms Basnet requesting that she provide information, namely whether she was the subject of an approved nomination or whether there was a pending application for review of a decision to refuse the nomination. The invitation requested a response from Ms Basnet by 19 December 2018.[7] Ms Basnet did not respond to the request.
[7] CB 77-78
On 15 January 2019, the Tribunal extended to Ms Basnet an invitation to attend a hearing scheduled on 8 February 2019.[8] The invitation was sent by email to [email protected]. On 1 and 7 February 2019, the Tribunal sent reminders to Ms Basnet about the hearing, via SMS to Ms Basnet’s own mobile number provided in the application for review.[9] Ms Basnet did not respond to the hearing invitation and failed to attend the hearing.[10]
Tribunal decision
[8] CB 80-87
[9] CB 103
[10] CB 88
Dismissal decision
After Ms Basnet failed to appear on 8 February 2019, the Tribunal proceeded, on 13 February 2019, to dismiss the application for non-appearance without any further consideration of the application or the information before it, under s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) (dismissal decision).[11]
[11] CB 95, [3]
In its reasons for the decision, the Tribunal recorded that Ms Basnet was invited to attend the hearing and was notified that if she did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or the information before it.[12]
[12] CB 95, [1]
The Tribunal was satisfied that the invitation was made in accordance with s.379A(5) of the Migration Act and that no satisfactory reason for Ms Basnet’s non-appearance had been given. The Tribunal also identified that the invitation to attend the hearing was not returned to sender and two separate SMS reminders were sent to Ms Basnet personally, respectively five business days and one business day prior to the hearing.[13]
[13] CB 95, [2]
Confirmation decision
Ms Basnet did not contact the Tribunal or apply for reinstatement within the prescribed 14 day period (i.e., by 28 February 2019).[14]
[14] CB 102, [4]
In a decision dated 5 March 2019, the Tribunal confirmed its decision to dismiss the application (confirmation decision).[15]
[15] CB 101-102
The Tribunal was satisfied that Ms Basnet had been notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons of the decision, in accordance with s.362C(5) of the Migration Act. Further, the Tribunal found that she had been advised that reinstatement could be sought within 14 days, after which time the dismissal decision would be confirmed in the absence of any application for reinstatement.[16]
[16] CB 102, [3]
The Tribunal found that Ms Basnet did not apply for reinstatement of her application within the 14 day period and therefore, it must confirm the decision to dismiss the application.[17]
[17] CB 102, [4]-[5]
The present proceedings
The matter came before me for a show cause hearing this morning. On that occasion, there was no appearance by or on behalf of Ms Basnet. The matter was called and there was no answer to the call.
There is no explanation for Ms Basnet’s failure to attend this morning. I accept from exhibit R1 that Ms Basnet has been reminded of her need to attend court this morning by correspondence from the Minister’s solicitors. She has also been put on notice of the potential consequences of non-attendance.
In the ordinary course, I would have acceded to the Minister’s request for the application to be dismissed on account of Ms Basnet’s non-attendance. Several factors, however, persuade me that the more appropriate course is to deal with the substance of the application in her absence.
First, the history of the proceedings in the Tribunal indicates a failure to engage with the review. Secondly, an issue of some interest arises in the circumstances of this matter, about which I am unaware of any precedent and about which some utility may flow from the Court giving reasons. Thirdly, I do not think it would be appropriate in this case for the Court to contemplate a later application for reinstatement under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). I will explain why that is so.
The judicial review application contains two grounds of review:
1.That the Member in the AAT erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them insofar as;
i.Summarily dismissing the Application;
ii.Failing to assess and consider the matter on its merits without the Applicant’s attendance.
2.That the Member in the AAT erred in law and therefore fell into jurisdictional error by dismissing and not re-instating the matter and therefore denying the Applicant procedural fairness.
A legal issue arises, either from those grounds or from the matter generally, because of Ms Basnet’s failure to respond to a request for information issued by the Tribunal. In short, the Minister concedes and I accept that because the Tribunal was precluded from inviting Ms Basnet to a hearing, its discretion to dismiss the review application on account of her non-attendance was not enlivened. [18] Notwithstanding that error, however, it does not go to jurisdiction and even if it did the Court would exercise its discretion to withhold relief because any remittal to the Tribunal would be futile because the only decision open to the Tribunal was to affirm the delegate’s decision.[19]
[18] Section 362B(1A)(b)
[19] SZBYR v Minister for Immigration (2007) 81 ALJR 1190
The Tribunal’s power to dismiss the application for non-appearance was not enlivened because in failing to respond to the Tribunal’s written request for information provided pursuant to s.359 of the Migration Act, Ms Basnet lost her entitlement to attend a hearing pursuant to s.360(2)(c) and (3) of the Migration Act. Accordingly, by the combined operation of ss.359C(2), 360(2)(c) and 360(3), the Tribunal was precluded from inviting Ms Basnet to attend a hearing. As a result, the Tribunal’s power to dismiss the matter under s.362B was never enlivened.
Notwithstanding that an error was made by the Tribunal, relief would be refused in the exercise of the Court’s discretion on the basis of futility. Neither do I accept that the error made by the Tribunal goes to jurisdiction. It could hardly be said that Ms Basnet was deprived of the possibility of a successful outcome before the Tribunal when only one outcome was possible.
The only decision open to the Tribunal was to affirm the delegate’s decision and Ms Basnet was not denied an opportunity to address the determinative issue in the review. By its letter sent pursuant to s.359 of the Migration Act, the Tribunal requested information from Ms Basnet to show that she was the subject of an approved nomination and put her on notice that in the absence of an approved nomination for the position identified in her visa application, Ms Basnet would not meet the requirements for the grant of the visa.
Ms Basnet did not provide any evidence that she was the subject of a nomination. There is otherwise no evidence that Ms Basnet was at any relevant time the subject of an approved nomination for the visa. Clause 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) required that the position to which the application related must have been the subject of an application for approval of nomination and, that the nomination had been approved and not subsequently withdrawn. Because the nomination made by the sponsor in respect of Ms Basnet had not been approved, the only decision the Tribunal could reach was that she did not meet the requirements of clause 186.223.
Therefore, even if the Tribunal had proceeded to make a decision on the evidence before it (as opposed to inviting Ms Basnet to attend a hearing and proceeding as it did), the only decision open to it would have been to affirm the delegate’s decision.
In Singh v Minister for Immigration[20] at [88]-[89], the Full Federal Court held that the words in clause 187.233 (which related to the subclass 187 Regional Sponsored Migration Scheme) that a “position nominated in an application for approval that seeks to meet the requirements of” regulation 5.19 refer to a factual event, namely, an employer nomination which was in fact made, and about which the applicant had made the required declaration in their visa application. The Court held that “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.
[20] [2017] FCAFC 105
At [89] the Court held that even a new nomination in respect of the same position made by the same employer could not be relied upon to meet the Schedule 2 criteria because the new nomination would not be the one in relation to which the declaration was made.
The language of clause 186.233 in relation to the subclass 186 Employer Nomination Scheme mirrors that in clause 187.233. Therefore, together with the commonality of the elements of the schemes under these two streams the principles espoused in Singh (although in relation to subclass 187 visas) equally apply to the requirements in clause 186.223 for the grant of a subclass 186 visa.[21]
[21] Datta v Minister for Home Affairs & Anor [2019] FCCA 2604, at [125]-[132]
Conclusion
In short, the error made by the Tribunal does not go to jurisdiction and, in any event, any remittal to the Tribunal would be futile because the Tribunal would be bound to affirm the delegate’s decision. It follows that the show cause application should be dismissed and I will so order.
I confirm that I consider that any application for reinstatement of that application on the basis of orders made in Ms Basnet’s absence would be inappropriate as a waste of judicial resources and I will in addition order that no application for reinstatement under rule 16.05 of the Federal Circuit Court Rules be accepted for filing.
The Minister further seeks an order for costs. I will order in addition that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I will in addition note the Minister’s undertaking to serve a sealed copy of the Court’s orders made today upon Ms Basnet at her last known address service by ordinary pre-paid post.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 October 2019
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