Bhullar v Minister for Immigration (No. 2)

[2013] FCCA 350

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHULLAR v MINISTER FOR IMMIGRATION & ANOR (No. 2) [2013] FCCA 350

Catchwords:
MIGRATION – Judicial review application dismissed when applicant did not attend hearing – application to set aside that order of dismissal – power of the Court to make setting aside order – refusal of application.

Legislation:
Migration Act 1958 s.476
Federal Magistrates Court Rules 2001 R.13.03C, 16.05

Cases cited:
Taylor & Taylor (1979) FLC 90-674
The Queen v Forbes; Ex parte Bevan (1972) 127 CLR 1
Cameron & Cole (1944) 68 CLR 571
Commissioner of Police & Tanos (1958) 98 CLR 383

Applicant: KANWAR NAVDEEP SINGH BHULLAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 185 of 2012

Judgment of: Judge Lindsay

Hearing date: 21 March 2013

Date of Last Submission: 21 March 2013

Delivered at: Adelaide

Delivered on: 21 March 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Mr d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application to set aside the Judgment of 11 February 2013 constituted by the Application in a Case filed on 28 February 2013 is refused.

2. The applicant pay the respondent’s costs of and incidental to this application fixed in the sum of $400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 185 of 2012

KANWAR NAVDEEP SINGH BHULLAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 11 February and pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001, I dismissed the judicial review application, pursuant to s.476 of the Migration Act 1958 (“the Act”), which the applicant had filed.  The hearing date which had been fixed when the matter was before the Registrar on 19 September 2012, Registrar Christie was 11 February 2013.  The applicant was in attendance at that hearing with an interpreter.  The application was dismissed on 11 February 2013, essentially because the applicant was not in attendance and was not there to promote his application.

2. The application related to a decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister to refuse the applicant’s request for a visa, which was described in my brief reasons of 11 February 2013, in a shorthand way, as an application for a spouse visa.  The delegate’s decision or the core of it was that the applicant and his sponsor, the holder of the principle visa, were not in a spousal relationship.  

3. The Tribunal found that it had no jurisdiction to deal with the application for the review of the decision of the delegate because it was filed out of time.

4. Notwithstanding the fact that the applicant was not in attendance, I took the opportunity to satisfy myself that the applicant had received, in a way authorised by the Act, notice of the delegate’s decision and I was assisted in doing that by the very detailed written argument that was provided by Mr d’Assumpcao on behalf of the Minister. That was provided notwithstanding the applicant had not, himself, pursuant to his obligations following upon the orders of the Registrar, filed any outline of submission himself.

5. The applicant has subsequently filed an Application in a Case on 28 February 2013, asking for my decision of 11 February 2013 to be set aside.  In the Affidavit filed in support of that application, he says:

   The reason for myself missing the court date was a miscommunication with my migration.  As I live in a small town I collect my mail from a post box, as I hardly receive any mail I did not check it for a long time.  On one occasion I received letters which I immediately passed onto my migration agent.  The last letter I received was for my hearing date I forwarded the letter to my agent. He advised me that my hearing date was on the 13^th February 2013 but it was actually on the 11^th of February as a result of this I missed my court hearing because of miscommunication with my agent.

   I am appealing to you to please give me the opportunity and chance to present myself.

6. When he was before me on 12 March 2013 in respect of that application, it had not been served on the representative of the Minister and I adjourned it to today to enable service to be effected.  I am not satisfied it has yet been served but notwithstanding that, perhaps somewhat fortuitously, Mr d’Assumpcao is here, in any event.  I also indicated, on that day, that is, on 12 March 2013, when he appeared with his interpreter, that I regarded it as a very important aspect of his application to set aside the Judgment, that he provide some evidence from the migration agent corroborating his assertions as to his forwarding the letter from the Court advising of the date to the agent, which letter was itself only a confirmation of what he would have heard at the hearing before the Registrar in September.  I said that he should consider providing some corroboration in the form of sworn evidence from the agent that what he says occurred did occur, that is, that he forwarded the letter with the date to the agent and then the agent misadvised him as to the actual date.

7. I am sceptical of that account; I indicated the basis of my scepticism on the last occasion.  The agent was not representing the applicant at the time; he did not appear for the applicant at the directions hearing before the Registrar and the applicant has confirmed today that throughout the duration of the application for the visa, the agent has been acting for him only on an ad hoc basis.  There is no evidence from the agent today and the applicant has explained that in terms of the agent’s unwillingness to attend because of unpaid fees.

8. It is not entirely clear to me whether the unpaid fees relate to this phase of the matter or an earlier phase of his dealings with the migration department but in any event, what the applicant said today only intensifies my concerns as to the truthfulness of this account.  I regard it as implausible that, firstly, the applicant would forward to the migration agent the letter of notification of date; secondly, that in any event does not explain his not having regard to the date which was provided when he was personally in attendance before the Registrar; thirdly, there is no explanation as to why he would not have made some notation, whether it a diary or otherwise, of the hearing date before he forwarded it to the agent; and fourthly, there is no explanation and no basis on which I can infer any reason why the agent would misinform him as to the date.

9. Taken together, it is, in my view, a highly implausible account. The other matter that concerns me is whether there would be any utility in setting the judgment aside; in other words, whether there would be any basis for assuming that there was anything that was arguable in terms of the identification of a jurisdictional error associated with the decision of the Tribunal. The decision of the Tribunal was a narrow one, in the sense that it was based upon the Tribunal’s view as to the effect of the notice provisions of the Act as they relate to the delegate’s decision and as to the circumstance that the application to the Tribunal was filed out of time.

10. The applicant was given an opportunity to adumbrate what his arguments would be, in relation to that, if the Judgment was set aside. I gave him that opportunity because there was nothing that had been filed, prior to February, which indicated what that argument might be. There is nothing that he has put to me that suggests that the Tribunal misunderstood its obligations to conduct the review and in particular, misunderstood the effect of the operation of the provisions of the Act relating, firstly, to the notice of the delegate’s decision and how it is given and secondly, as to the unavailability of a discretion to extend the time, the application to the Tribunal having been filed out of time. They are the two matters which I think are important to the exercise of the discretion and I should note that I regard each of them individually as matters that would require the refusal of the application to set aside. And manifestly, that being the case, the aggregate significance of those matters persuades me that the discretion should not be exercised in the applicant’s favour.

11. I am proceeding on the basis that the application to set aside is properly brought in the sense that there is such a power in the Court to set aside the judgment. The narrow answer to that is Rule 16.05 of the Federal Magistrates Court Rules 2001 which provides that

    (1)The court may vary or set aside its judgment or order before it has been entered.

    (2)The court may vary or set aside a judgment or order after it has been entered if:

    (a)     the order is made in the absence of a party…

12. There are some other circumstances given in which that can happen.  So there is a rule.  As far as I can ascertain, the rule is not made in reliance on any specific provision of the Federal Magistrates Act 1999 and that might raise the issue of whether the rule is something that is beyond the rule making power of the Court.  I do not express any view about that because I take the view, in any event, that independently of the operation of the rule, the Court has an inherent jurisdiction to set aside a judgment made in such circumstances. 

13. I rely in that regard on the decision of the High Court in Taylor & Taylor (1979) FLC 90-674. The relevant application to set aside in that case arose from the finalisation of property proceedings in the Family Court in the absence of a party when the party had not been given notice of the hearing. The decision of Gibbs J, as he then was, includes a discussion of the inherent jurisdiction of the Court to set aside a judgement in such circumstances.

14. There is reference to an earlier High Court decision of The Queen v Forbes; Ex parte Bevan (1972) 127 CLR 1 and that is a discussion that occurs at page 78,590. In that case Menzies J said at p 7:

    “Inherent jurisdiction” is the power which a court has simply because it is a court of a particular description.  Thus the Courts of Common Law without the aid of any authorising provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt.  Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction.  If such a provision is to be considered as conferring more than is actually expressed, that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction”, which, as the name indicates, requires no authorising provision.

15. There is also reference to the decision of the High Court decision of Cameron & Cole (1944) 68 CLR 571 at 589 where Rich J says:

    It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against who a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.

16. To a similar effect is the decision of the Commissioner of Police & Tanos (1958) 98 CLR 383 at page 393 in the joint Judgment of Dixon CJ and Webb J said that:

    It is a deep rooted principle of the law that before anyone can be punished or prejudiced in her personal property by any judicial or quasi judicial proceeding, he must be forwarded an adequate opportunity of being heard.

17. I am satisfied this Court has an inherent jurisdiction to entertain an application to set aside a judgment made in the absence of a party and I am also satisfied that there is nothing either in terms of the Federal Magistrates Act1999 or in terms of the Migration Act1958, which is the Act conferring jurisdiction to deal with these substantive proceedings is in any way inconsistent with this Court having such an inherent jurisdiction.

18. I am satisfied as to the jurisdiction to entertain the application.  For the reasons given however, I am not satisfied that it is appropriate to exercise my discretion to set the decision of 11 February 2013 aside. 

19. The Application in a Case was simply in terms of orders sought said “requesting another court hearing”.  I have interpreted that as an application to set aside the judgment of 11 February 2013.  But the application is refused

20. I order accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Date:  23 May 2013