Bernard v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 429
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bernard v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 429
File number(s): PEG 22 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 9 May 2023 Catchwords: MIGRATION – Dismissal for non-appearance where applicant intentionally disconnected from online forum mid-hearing Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06 Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 5 and 9 May 2023 Place: Sydney The Applicant: In person via Microsoft Teams (5 May 2023);
No appearance (9 May 2023)Solicitor for the Respondents: Ms E Bennett of MinterEllison ORDERS
PEG 22 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FANUEL BERNARD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
9 MAY 2023
THE COURT ORDERS THAT:
1.The application filed on 17 February 2022 is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant must pay the first respondent’s costs and disbursements, of and incidental to, these proceedings fixed in the amount of $5,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
These proceedings were commenced by an application to show cause filed on 17 February 2022, by which the applicant seeks to review a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 April 2021, affirming a decision of a delegate of the first respondent refusing to grant the applicant a further Working Holiday Temporary Class TZ (Subclass 417) visa (visa).
Background
On 12 February 2019, the applicant, a citizen of France, applied for a subsequent visa, as part of which application he declared he had worked from 3 September 2018 to 22 December 2022 for DJ & D Jasper Trading Trust (business).
On 15 October 2019, the Department of the first respondent was informed by an employee of the business that the applicant was never employed at the company.
On 6 March 2020, the applicant applied for his third subclass 417 visa (CB 22 to 33). Attached to that application were 30 payslips purporting to be from the business (CB 36 to 65).
On 14 April 2020, the applicant was invited to comment on adverse information (CB 70 to 74) being that:
(a)the Department believed he had given, or caused to be given, to the first respondent, a bogus document or information that was false or misleading;
(b)accordingly, the applicant may not satisfy the Public Interest Criterion (PIC) 4020, a mandatory criterion for the grant of a subclass 417 visa, pursuant to paragraph 417.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations); and
(c)the particulars of the false or misleading information were as follows (CB 72 to 74):
(i)on 12 February 2019 the applicant applied for a previous visa and, by that application, declared that he had undertaken work in the Agriculture industry between 3 September 2018 and 22 December 2018, specifically in the employ of the business;
(ii)the owner of the business had provided contrary information, namely that the applicant had never been employed by the business; and
(iii)that the applicant had also claimed to have been employed by the business in his application for the visa.
The applicant did not respond to the invitation within time, or at all.
On 20 January 2021, a delegate of the Minister refused to grant the applicant a subclass 417 visa on the basis the applicant did not satisfy PIC 4020 and, because he had not raised any compassionate or compelling circumstances for the purpose of PIC 4020(4), accordingly found that the requirements of PIC 4020(1) should not be waived. The delegate found the applicant did not meet paragraph 477.221(2)(b) of the Regulations (CB 76 to 84).
The Tribunal’s decision
On 8 February 2021, the applicant applied to the Tribunal seeking review of the delegate's decision (CB 93 to 97).
On 19 November 2021, the Tribunal invited the applicant to appear at a hearing on 21 January 2022 (CB 130 to 133).
On 7 January 2022, the Tribunal wrote to the applicant informing him that the key issue for it to determine was whether he had provided a bogus document or false or misleading information to the Department. The Tribunal informed the applicant that PIC 4020 may be waived if there are (CB 159 to 160):
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
On 20 January 2022, the applicant provided the Tribunal with various payslips from different employers (CB 178 to 185).
On 21 January 2022, the applicant appeared before the Tribunal, with the assistance of an interpreter in the French language, to give evidence and present oral arguments (CB 190).
Tribunal decision
On 21 January 2022, the Tribunal made an oral decision affirming the decision under review (CB 198). On 1 April 2022, the Tribunal reduced that oral decision to writing. By that decision, the Tribunal set out the history of the matter and the applicable law, including the reasons why the delegate found PIC 4020 was engaged (at CB 202 to 203 at [5] to [17]).
The Tribunal noted that on 7 January 2022 it wrote to the applicant explaining the waiver provision of PIC 4020 (at CB 204 at [19] to [20]). The Tribunal highlighted that the letter made clear to the applicant that he was expected to be in a position to address the waiver provisions at the hearing (CB 204 at [21])
The Tribunal summarised the information provided in the applicant's subclass 417 visa application including his claims that he was employed by the business, and that he had worked on a farm in Cunderdin, Western Australia (CB 204 at [23] to [25]). The Tribunal noted that the applicant had provided numerous pay slips of his purported employment by the business (CB 204 at [25]).
The Tribunal discussed the applicant’s alleged work for the business, and the applicant conceded he had never worked for the business and that the information in his application was untrue (CB 205 at [37]). The Tribunal considered the applicant's explanation for the false information, in particular (CB 205 to 206):
(a)the application was completed by a person named Rafik (at [38]);
(b)the applicant was not aware what information was provided by Rafik in the application but had not instructed him to include false or misleading information in it, or to provide bogus evidence (at [39]); and
(c)the applicant had paid Rafik $500 to complete the application (notwithstanding that Rafik supposedly owed the applicant $3,000 at the time) (at [40] and [42]).
The Tribunal asked the applicant about his evidence by which he claimed to have sent $500 to Rafik. The applicant said he had thrown away the receipts and had not reviewed the application before it was submitted (at [43]). The Tribunal found the applicant's evidence in this regard to be neither plausible nor persuasive (at [43]). The Tribunal recorded the applicant's oral evidence that Rafik had also prepared the bogus pay slips (at [46]) and considered the applicant's evidence about his claimed attempts to contact Rafik (CB 206 at [47]). The Tribunal found this evidence to be unpersuasive. Based on this and an adverse view formed as to the applicant’s credibility, the Tribunal took the view that it was the applicant himself who had submitted the application containing the false information, and that he had done so knowingly (CB 207 at [48]).
The Tribunal turned to consider whether there was any evidence supporting the waiver of PIC 4020 (see [10](a)and (b)] above). In doing so, the Tribunal (CB 207 to 208):
(a)considered the applicant's claim that Australia's interests would be affected by his departure because he had worked in critical industries that lacked workers (at [51]), and accepted that Australia is lacking in workers, but did not find this, in itself, to be compelling circumstances that affect the interests of Australians (at [52]);
(b)observed the applicant's claim that his current employer would be adversely affected by his departure, but found that it could not consider the interests of an entity (at [53]);
(c)considered the applicant's relationship with a friend named Khalid (at [54]), but observed that the applicant apparently did not even know his friend’s surname, nor have his telephone number. The Tribunal referred to the applicant’s claim that they would meet each other at a park because Khalid often attended the park in the afternoons (at [54] to [58]). The Tribunal found that the applicant had fabricated this evidence and was making it up as he went along (at [58]); and
(d)noted the applicant's evidence regarding the interests of another friend who was working in the mining industry and that his departure would impact his family adversely (at [59]).
As noted above, the Tribunal found the applicant not to be a credible witness, and that the he had given, or caused to be given, a bogus document (at [62]). In relation to whether to waive the requirements of PIC 4020, the Tribunal concluded that the applicant had not provided evidence that was either compassionate or compelling (at [64]). Accordingly, the Tribunal found that the applicant did not satisfy PIC 4020 and therefore had failed to meet the requirements of cl 417.221 of Schedule 2 to the Regulations (CB 208 to 209 at [67] to [70]).
Application to this Court
The applicant has been unrepresented since the commencement of the proceedings. On 28 April 2022, a Registrar of this Court made orders which, among other things, required that the applicant file and serve written submissions, any amended application and evidence upon which he wished to rely at least 28 days before the final hearing. The applicant did not file any documents in time or at all. After having been twice docketed to Judges in the Perth Registry, the matter was re-docketed to me on 22 March 2023, at which juncture I listed it for hearing on 5 May 2023. By correspondence to the parties on 23 March 2023 sent by my Chambers, notification was given to the parties that the matter would be listed before me today at 2.15pm AEST (which is 12.15pm AWST).
The matter was listed for hearing using the Microsoft Teams platform because the applicant remains in Western Australia, and the Court is presiding from Sydney. A link for the Microsoft Teams hearing was sent to the parties on 2 May 2023, including to the applicant at the Gmail address, given by him in the originating application.
The first hearing
The hearing commenced shortly after 2.15pm AEST on 5 May 2023 due to the fact that the interpreter had not yet connected to the Microsoft Teams hearing. An interpreter in the French language had been arranged by the Court because, notwithstanding that in the section of the originating application which provides for an applicant to indicate:
(a)whether they need an interpreter; and
(b)if so, in what language;
the applicant had ticked the “no” box. This was somewhat surprising, given that he appeared before the Tribunal with the assistance of an interpreter in the French language.
Upon the arrival of the interpreter in the Microsoft Teams forum, the hearing commenced. I explained to the applicant the role of the Court and the limitations on what the Court could decide. I also outlined the procedures that would be followed. In the course of identifying the documents before the Court, I asked the applicant whether he wished the Court to have regard to his Affidavit in support of the originating application. In response, the applicant started to make submissions using the interpreter and said:
I will be honest with you, your Honour…I made this second hearing to – because after my first hearing, I’m thinking a lot about what I do and why, and I think I made a big mistake on this four years ago now. I’m in Australia since five years and one month, I think. I never left the country because I love it, but – yes. I made a big mistake, and I apply for another hearing just to ask for – and apologise and just to assume my responsibility.
The applicant said that he had never left Australia and that he had:
…made a big mistake, and I apply for another hearing just to ask for – and apologise and just to assume my responsibility and just I assume the - - - So I just want to own up and take my responsibility. So I want to say sorry. That’s why I asked for this second hearing.
What then followed was approximately 10 minutes of discussion between the applicant and the Court to ascertain whether, by his reference to a “big mistake” the applicant intended to refer to the circumstances which led to the visa being refused (including the provision to the Minister of a false and misleading application or a bogus document) or to these proceedings. It also became apparent that the applicant’s reference to a “second hearing” was to the judicial review proceedings which he considered to be an extension of the Tribunal proceedings. The Court explained that penalty and fines played no part of these proceedings.
Ultimately, the applicant said that he considered that these proceedings had been a mistake and indicated that he may wish to discontinue them. The Minister’s solicitor, who was present in Court in Sydney submitted that if the applicant wished to discontinue the proceedings, this course would not be opposed by the Minister. The applicant then asked questions about the impact discontinuance would have on his visa and his ability to stay in Australia, following which he then appeared to change his mind in relation to whether or not he wished the proceedings to conclude without there being a hearing. When told of the consequences of each option, the applicant then indicated that he wished for the hearing to continue. At that stage, it was approximately 2.50pm AEST.
Accordingly, the Court resumed the process of identifying the evidence. The Court Book was received and marked Exhibit “1R” and the Affidavit of Sophie Elizabeth Edmondstone affirmed 13 March 2023 was read for the Minister.
I had the first ground of review in the originating application interpreted to the applicant by the interpreter. The applicant was asked what he wished to say about in relation to ground 1, but specifically, what evidence it was that he said the Tribunal had failed to consider. The applicant made submissions, all of which went to the merits of his case. He indicated that, as he has said at the Tribunal hearing, he had no idea what the process was for the second visa.
After seeking to clarify this, the applicant made detailed submissions about the fact that he had come with his friend to Australia and that his friend wanted him to leave his hometown to “teach me about life and English”. The applicant described the circumstances in which he stayed and worked in Australia for the first year and the company that he worked for. He said that he could not give further details because he had been manipulated. No further detail was provided to elucidate this. When the Court asked whether by this the applicant meant that he had not in fact applied to the Court for review, the applicant said that he had made the application to the Court himself, but what he was trying to say was that the circumstances surrounding his visa application were not of his making.
The applicant made submissions that he did not know what the Tribunal had failed to consider, and about his inability to work during the period in which there were COVID-19 lockdowns. He reiterated again that he had never left Australia.
It was at that juncture, having fully completed a submission and the interpreter having commenced interpreting it to the Court, that the applicant could no longer be seen in the Microsoft Teams forum, albeit his details remained on screen. This was at approximately 3.00pm AEST.
I took an initial view that the applicant’s departure from the Microsoft Teams forum was intentional, having regard to the following:
(a)the applicant had expressed a wish to discontinue the proceedings;
(b)he departed after having completed an oral submission as opposed, for example, to being mid-sentence;
(c)his camera was first turned off, so that he could not be seen, following which his profile then departed the forum some 30 seconds later; and
(d)he did not respond to the Court’s multiple requests as to whether he could hear, despite still being connected to the forum.
The same Microsoft Teams forum remained extant throughout the afternoon of the hearing so that the applicant could re-join it at any time (including during all adjournments). Upon the Court adjourning the first time, my Associate attempted to call the applicant on the telephone number provided by his originating application, in the presence of the Minister’s solicitor. The Court was informed that at 3.04pm AEST the telephone rang, but eventually went to voicemail. An email was also sent to the applicant by my Associate, with the Minister’s solicitor copied, at 3.06 pm. That email included, the link to the same Microsoft Teams forum and invited the applicant to re-join. The applicant did not do so. The Court resumed at 3.10pm before adjourning again briefly to enable the Minister’s solicitor to seek additional instructions as to next steps.
When the matter resumed, being reasonably satisfied that the applicant had not in the intervening period tried to reconnect, the Court excused the interpreter from the Microsoft Teams forum. The solicitor for the Minister sought that the matter be adjourned to a directions hearing in order to enable the applicant to reappear if, contrary to initial impressions, the disconnection from the hearing had not been intentional. At 3.37pm AEST the applicant had not sought to re-join the Microsoft Teams forum. Had the Minister’s solicitor asked that the matter be dismissed for want of appearance, that is something to which the Court might have acceded in the circumstances of this case. It was not appropriate that the matter be dismissed on a final basis, given that the applicant had not been heard in respect of ground 2 of his application and the Court could not even be satisfied that the applicant had concluded his submissions in respect of ground 1. In those circumstances, the Court considered that it would be premature for the Court to determine the matter on its merits and to dismiss the matter on a final basis.
However, the Court was satisfied that the course proposed by the Minister, namely that the matter go over for only a brief time. This was done to ensure that any mishap or technical difficulty which may have befallen the applicant might be explained, and that if the applicant did appear on the next occasion, there may be utility in setting the matter down for a further hearing, depending on the submissions of the parties at that time. Accordingly, the matter was listed for a directions hearing before me at 2.00pm AEST (midday AWST) on Tuesday, 9 May 2023.
The directions hearing
At the commencement of the directions hearing, an interpreter in the French language was present in the Microsoft Teams forum. The parties had been sent the link for the directions hearing on 8 May 2022, again to the applicant at the Gmail address provided by him in the originating application. The Minister’s solicitor was present in Court again also. The applicant was not present in the Microsoft Teams forum. Out of an abundance of caution, I had the matter called outside the courtroom which (unsurprisingly given the applicant resides in Perth) did not yield an appearance for the applicant either. The solicitor for the Minister tendered an email annexing a letter which were marked as a bundle as Exhibit “2R”.
The letter from Minter Ellison to the applicant which forms part of Exhibit “2R” was sent under cover of the email to him at 2.55 pm AEST on Monday 8 May 2023, being the day before the directions hearing. The letter included within it, details for the Microsoft Teams link for the directions hearing, together with instructions as to how to join the forum. The letter also said that in the event that the applicant did not appear, the Minister may apply to have the matter dismissed for non-appearance.
As at 2.06 pm AEST, the applicant had still not appeared in the Microsoft Teams forum. This further reinforced the Court’s preliminarily view, that the applicant’s disconnection from the Microsoft Teams forum at hearing on 5 May 2023 was deliberate. In the circumstances, the solicitor for the Minister seeks that the proceedings be dismissed pursuant to r 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), together with an order for costs in the amount of $5,900.
The applicant had the opportunity to conclude these proceedings by discontinuance up to (and including) the hearing of the matter. Instead, but choosing to undertake a “mic drop” out of the Microsoft Teams forum, he has caused a degree of inconvenience to the Minister and also to the Court, and the expenditure of further costs and resources. I am of the view that the costs scale which ought to be applied would be for a matter which has concluded at a final hearing. Had the applicant either continued with the intention he expressed at an early juncture in the hearing to discontinue, or stayed in the Microsoft Teams forum until the conclusion of the hearing, the matter could have concluded on 5 May 2023. Instead, by choosing the course he did, in the interests of procedural fairness (to him) the matter was listed on another date.
In the circumstances, the scale amount to which the Minister would be entitled in the ordinary course, would be $7,853. The Court provides a separate scale for matters which discontinue, the maximum amount of which is presently $5,497 albeit where an applicant discontinues mid-way through a final hearing there may be an argument to be made that the amount of work undertaken warrants the final hearing scale to be applied in any event. According, and subject to anything that the Minister may have wished to say in such a circumstance, the applicant might have exposed himself to a lesser costs amount.
In all of the circumstances of this case, I am satisfied that the proceedings should be dismissed. I will so order.
I am further satisfied that that the amount sought by the Minister, namely $5,900, which I note is unchanged from the amount the Minister was seeking if the matter had been dismissed last Friday, is an appropriate amount. It is also somewhat generous to the applicant, noting the matters set out at [39] above. A costs order will be made in this amount also.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 25 May 2023
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