Capila v Minister for Home Affairs
[2018] FCCA 2037
•26 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAPILA & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2037 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal dismissing review application on account of the applicants’ non attendance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.360, 362B, 362C,379A Migration Regulations 1994 (Cth) |
| First Applicant: | FRANCIS CAPILA |
| Second Applicant: | AYEZA CAPILA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 612 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2018 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms M Perotti of Sparke Helmore |
INTERLOCUTORY ORDERS
The adjournment application is refused.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the substantive application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 612 of 2018
| FRANCIS CAPILA |
First Applicant
| AYEZA CAPILA |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The first applicant, Mr Capila, seeks judicial review of a decision of Administrative Appeals Tribunal (Tribunal) made on 1 February 2018. The Tribunal on that day confirmed an earlier decision made on 17 January 2018 to dismiss a review application on account of the non-attendance of the parties.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 July 2018.
On 22 January 2016, Mr Capila applied for a Temporary Work (Skilled) (subclass 457) visa.[1] By emails transmitted on 14 November 2016 and 11 January 2017, the Minister’s Department invited Mr Capila to comment on adverse information.[2] There was no response to this invitation. On 9 February 2017, a delegate of the Minister refused to grant the subclass 457 visa because Mr Capila was not the subject of an approved nomination and therefore did not satisfy clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth).[3]
[1] Court Book (CB) 1 – 12
[2] CB 100 and 110
[3] CB 119 – 122
On 12 February 2016, the second applicant (Ms Capila) applied for a Temporary Work (Skilled) (subclass 457) visa as a member of Mr Capila’s family unit.[4] By email transmitted on 31 March 2016, the Minister’s Department requested additional information from her.[5] The Minister’s Department also invited Ms Capila to comment on adverse information by email transmitted on 14 November 2016.[6] No response was provided to this invitation. On 9 February 2017, a delegate of the Minister refused to grant the subclass 457 visa because Mr Capila was found not to have met the primary visa and Ms Capila therefore did not satisfy clause 457.321.[7]
[4] CB 18 – 24
[5] CB 31 – 32
[6] CB 105 – 108
[7] CB 129 – 132
Tribunal proceedings
On 28 February 2017, the applicants applied together for review in the Tribunal.[8] In that application, they appointed their “sponsor” as their representative and provided the sponsor’s email address for the purpose of communication with the Tribunal.[9] Mr Capila also provided a personal email address[10] and mobile number.[11]
By email transmitted to the applicants’ representative on 14 September 2017, the Tribunal informed the applicants that their nominated occupation (vocational education teacher) had been removed from the list of eligible skilled occupations.[12] Again by email transmitted to the applicants’ representative, on 20 November 2017, the Tribunal invited the applicants to attend a hearing scheduled on 13 December 2017.[13] The Tribunal sent SMS hearing reminders to Mr Capila’s mobile on 6 December 2017 and 12 December 2017. The applicants did not appear at the hearing. Nor did they otherwise contact the Tribunal.
[12] CB 148 – 150
[13] CB 152
On 17 January 2018, the Tribunal dismissed the application under s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act).[14] The Tribunal was satisfied that the applicants were properly invited to a hearing in accordance with s.360 and s.379A(5) of the Migration Act. The Tribunal considered that the invitation had not been returned to sender, that it sent two SMS hearing reminders and that the applicants gave no satisfactory reason for non-appearance.
[14] CB 163
By email transmitted to the applicants’ representative the same day, the Tribunal notified the applicants of the dismissal decision and informed them that they might apply for reinstatement of the application by 31 January 2018.[15]
[15] CB 160
On 1 February 2018, the Tribunal confirmed the decision to dismiss the application.[16] The Tribunal recorded that it notified the applicants of the dismissal decision in accordance with s.362C(5) and advised them that reinstatement of the application could be sought within fourteen days. Because the applicants did not apply for reinstatement of the application within the fourteen-day period, the Tribunal was required to confirm the dismissal decision.
[16] CB 167
The present proceedings
These proceedings began with a show cause application filed on 8 March 2018. The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book lodged on 27 April 2018.
There is one ground of review advanced in the judicial review application:
Failed to take into account relevant considerations.
At the outset of today’s hearing, Mr Capila applied for an adjournment. He had e-lodged in the registry yesterday afternoon an application in a case with a supporting affidavit. In essence, Mr and Ms Capila wish to travel to the Philippines for an extended period in order to assist the guardian of their son, who is facing significant health issues.
As I explained to Mr Capila, if I were persuaded that the principal application advanced an arguable case of jurisdictional error by the Tribunal, I would be sympathetic to the adjournment application in as much as it would be open to the Court to fix a final hearing date to accommodate the applicants’ travel plans. On the other hand, if there is no arguable case of jurisdictional error, there would be no point in a final hearing and the adjournment application would fall away.
In my view, there is no merit in the judicial review application.
The Tribunal found, and the available material does not contradict its finding, that the applicant was properly invited under s.360 of the Migration Act to appear at a hearing on 13 December 2017. The invitation stated that if the applicants did not attend the hearing, the Tribunal might dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing five business days and one business day before the scheduled hearing. The applicants failed to appear.
Mr Capila told me from the bar table that he and his wife were aware of the hearing invitation but chose not to attend because they were depressed and, in his words, had decided to “end the case”. He conceded that no adjournment had been sought from the Tribunal. The applicants did not request reinstatement of the review application on being notified of the dismissal decision, and the confirmation decision on 1 February 2018 necessarily followed.
I can see no arguable case of jurisdictional error in relation to the procedure followed by the Tribunal. I agree with the Minister’s submissions.
The applicants seek review of the confirmation decision only.
The application raises one ground of review, which contends that the Tribunal failed to take relevant considerations into account. The sole ground of review is unparticularised and does not establish jurisdictional error in the confirmation decision.
The Tribunal properly notified the applicants of the dismissal decision under s.362C(5) and informed them that they might apply for reinstatement of the application within fourteen days. In circumstances where the applicants did not apply for reinstatement, the Tribunal was required to confirm the dismissal decision. A confirmation decision under s.362B(1E) is non-discretionary. No jurisdictional error is apparent.
Moreover, as the Tribunal informed the applicants, on 14 September 2017, the Minister removed their nominated occupation of vocational education teacher from the list of eligible skilled occupations.[17] Clause 457.223(4)(aa) requires that the nominated occupation be specified in the relevant instrument for regulation 2.72(10)(a) or (aa) at the time when the Tribunal makes its decision. In those circumstances, the applicants’ review application was doomed to fail and that any error (which is neither apparent or conceded) could not be said to have affected the outcome.
[17] See IMMI 17/040
Conclusion
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the adjournment application be refused and that the substantive application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Capila did not oppose a costs order in principle but indicated that he may need to pay by instalments. He currently holds a student visa and his funds are limited.
I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 30 July 2018
0
4