Chand and Anor v Minister for Immigration and Anor (No.2)
[2006] FMCA 1789
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAND & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1789 |
| MIGRATION – Visa – Special Eligibility (Residence) (Class AO) visa – Migration Review Tribunal – Application for review of MRT decision affirming decision of a delegate of the Minister not to grant visas – where applicants did not attend court on hearing date and application dismissed for non-attendance. PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment after applicants failed to appear – whether sufficient explanation advanced – whether reinstatement futile. |
| Migration Act 1958 (Cth), ss.357A, 359A Migration Regulations 1994 (Cth) cl.832.21 Federal Magistrates Act 1999 (Cth), s.8 Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05 |
Chand v Minister for Immigration & Anor [2006] FMCA 1632 referred to.
SZCPY v Minister for Immigration [2004] FMCA 646 followed
SZBRB v Minister for Immigration [2004] FMCA 285 followed
Applicant S329 of 2003 v Minister for Immigration & Anor (No.2) [2006] FMCA 303 followed
| First Applicant: | SANJEEV KANT CHAND |
| Second Applicant: | PRITIKA KANT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2512 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 November 2006 |
| Date of last submission: | 27 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2006 |
REPRESENTATION
| Applicants: | In person |
| Solicitor for the Respondent: | Ms Rayment |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2512 of 2006
| SANJEEV KANT CHAND |
First Applicant
| PRITIKA KANT |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to set aside an order made on 24th October 2006 dismissing an application for review of a decision of the Migration Review Tribunal because the Applicants had not attended Court.
The Applicants seek to have their application reinstated and a fresh date set for a Final Hearing of their application on its merits.
Background
The Applicants, who are brother and sister, applied to the Tribunal on 28th June 2005 for a review of a decision of a delegate of the Minister not to grant a close ties visa. The Tribunal made its decision on 5th July 2006 affirming the decisions under review, that the Applicants were not entitled to be granted Special Eligibility (Residence) (Class AO) visas.
The Applicants then sought judicial review of that decision.
An application was filed on 7th September 2006 accompanied by an affidavit. The application came before the Court for the first time on the morning of 9th October 2006. There was no appearance by or on behalf of the Applicants. The solicitor for the Respondent Minister did not seek an order dismissing the application at that stage but instead sought that the matter be listed for hearing in the reasonably proximate future.I listed the application for Final Hearing on 24th October 2006, made directions for the preparation of a Court Book, granted leave to file an amended application and also made directions about filing a Response. The First Respondent Minister complied with the directions that I had made. A Court Book was prepared, a Response was filed and the Applicants were made aware of the Minister’s attitude towards the hearing. An outline of submissions was prepared and filed in this Court on 18th October.
The Applicants did not answer when the matter was called at 10:00am on 24th October 2006. I stood the matter down in the list. At 10:33a.m., when there was still no appearance by the Applicants or anyone on their behalf, I dismissed the application for non-appearance by the Applicants, under the provisions on Rule 13.03A(c) (Chand v Minister for Immigration & Anor [2006] FMCA 1632).
Application to set aside the earlier order
The Applicants filed an application to set aside the order on
13th November 2006. The application is accompanied by an affidavit by each of the Applicants, sworn or affirmed (the attestation clauses do not say which) on 3rd November 2006.The affidavit of the First Applicant sets out the reason for the Applicants’ non-attendance in paragraph 2:
I could not attend the direction hearing on the 9 October 2006 because we had the family tragedy and that is my very close family died and we were very sad and were our families. I could not advise the respective authorities because of the sudden death of our family member and we were in terribly shocked. I could not think at that situation. However I did attend the hearing on October 24 2006 but by the time I came to the court it was 11:00am and was at the time advised that the case was dismissed given that I was not present at the time. I immediately called the Respondent’s Solicitor by the name of MELISSA JOLLEY and she did advised us that the case has been dismissed.
Mr Chand, the First Applicant, gave oral evidence that his grandfather had died on 7th October, two days before the First Court Date on
9th October. He said that the family became really sad and did not know what to do. He agreed that he was aware that the application was before the Court on that day. When asked by the Court if he had told anyone that he would not be able to attend Court because there had been a death in the family, he said that he had told his uncle. He did not contact the Court or the lawyers for the Minister.Mr Chand explained that he and his sister had intended to attend Court on 24th October 2006 but their train was delayed. He said that he believed that the application was listed for hearing at 10:30am rather than 10:00am. He was shown a copy of the directions from the Court showing that the application was listed for hearing at 10:00am and a copy of a letter from the solicitors for the Minister referring to the hearing being at 10:00 a.m. and could not explain how he had come to believe that the hearing was not due to start until 10:30am. He told the court that their train was delayed but he did not telephone the lawyers for the Minister or the Court even though he had a mobile telephone.
Mr Chand told the Court that he needed more time to obtain the services of a solicitor. He said that they had consulted a solicitor, who was the person who witnessed their affidavits, but the solicitor was not acting for them because he was asking for more money. He told the Court that they went to see the solicitor after their case had been dismissed.
In cross-examination by Ms Rayment for the Minister, he agreed that he had not filed any written submissions about his case because he needed a solicitor who wanted more money. He confirmed that he had arrived late at court on 24th October and that he had telephoned the solicitor on the record, Ms Jolley, who by that time was back at her office, and she told him that the case had been dismissed.
Mr Chand was asked why the affidavits in support of the application to set aside the order were signed on the 3rd November but the application and affidavits were not filed until 13th November 2006. The Applicant explained that the solicitor was sick at the time and wanted more money. He did not tell them to go to the Court earlier.
The 13th November was the date the solicitor gave them the application and affidavits that they had signed on the 3rd November.In cross-examination, Mr Chand was asked what steps he had taken to obtain another lawyer. He said that he had called 5 or 6 lawyers but they were all asking the same amount as the solicitor they had originally consulted. In re-examination, the Applicant said that his plan to obtain legal representation was to go back to the same solicitor and see if he would act for them for less money.
As to the substantive case, Mr Chand said he arrived in Australia when he was 16 years old and had spent the two years up to his 18th birthday in Australia. He would like to start working because back in Fiji the living conditions were not very good.
The Second Applicant, Ms Pritika Kant, also gave oral evidence. She is the sister of the First Applicant and is 19 years of age. She said that if the orders of 24th October were set aside she would be able to apply for a student visa as she wanted to further her education. Her plan is to study pharmacy.
She said that she could not say much at the Tribunal hearing because her brother was the primary applicant and she was applying as a family member. As to legal representation, she stated firmly that they had spoken to Mr K but he was not willing to help them.
Principles to be applied
It is well established that, in considering an application for reinstatement, the Court must look not only at the circumstances which led to the party missing the hearing, but also at the merits of the substantive application. The principle was succinctly stated by Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646 at [12]:
Where there are no prospects for success on a substantive application, reinstatement would be futile, therefore an application for reinstatement ought to be refused. This approach was taken by Federal Magistrate Raphael in SZBRB v Minister for Immigration [2004] FMCA 285 where he refused to reinstate proceedings where the facts indicated there was no possible utility in reinstating and therefore he held that it would not be in the interests of justice to reinstate the matter.
More recently, in S329 of 2003 v Minister for Immigration & Anor (No.2) [2006] FMCA 303, Baumann FM noted that the court may consider setting aside an order made in the absence of a party. It is a discretionary exercise of power:
In exercising that discretion, the Court should consider at least:
a) The reasons for the failure to appear and
b) The prospects of success of the substantive application and
c) Whether any prejudice to the respondent is likely to occur.[1]
[1] [2006] FMCA 303 at [5]
I propose to consider all of those aspects.
Conclusions
For the Respondent Minister, Ms Rayment submitted that there were no grounds to set aside the decision. The Applicants have not given a satisfactory explanation of their failure to appear at the Court on the Final Hearing of the application. They did not telephone the Court or the lawyers for the Minister after the death of their grandfather.
The First Applicant was still placing hope in the solicitor who they had consulted but the Second Applicant said that there was no hope that he would be acting for them.In addition, Ms Rayment submitted that the Applicants’ substantive application was unlikely to succeed. She submitted that the Applicants’ first ground was meaningless, that the second ground, alleging a breach of natural justice would not succeed due to the operation of s.357A of the Migration Act, and the third ground was misconceived.
In considering the Applicants’ explanation for their failure to appear, I note that neither of the Applicants attended Court on 9th October 2006 due to the death of their grandfather two days earlier. Whilst I am satisfied that the death of a close family member may well be a good reason for a failure to attend Court, the Applicants have not given a satisfactory explanation of their failure to advise any relevant person about their inability to attend. It would not have been hard to telephone the Court or the Minister’s solicitor. The First Applicant said that he told his uncle, but that does not take the matter any further. The Applicants were fortunate that the Minister’s solicitor did not ask the Court to dismiss their application when they did not appear on
9th October.The matter that requires an explanation is the Applicant’s failure to appear on the hearing date, 24th October 2006. There was no reason why either of them should have believed that the application was listed for hearing at 10:00am. The orders from the Court and the letter from the Minister’s solicitors clearly said 10:00am. In any event, they did not arrive at Court at 10:30am. The application was not dismissed until 10:33am. according to the reasons for judgment.[2]
[2] [2006] FMCA 1632 at [4]
If the Applicants’ train was in fact delayed, they should have telephoned the solicitor for the Minister, Ms Jolley. They had access to a mobile telephone and they used it to telephone Ms Jolley after the hearing.
It is hard not to form the view that the Applicants have not been serious in their efforts to prepare their case. It is surprising that they did not consult a solicitor until after their application had been dismissed.
A more prudent time to consult a solicitor about a matter so important as setting aside the decision of the Migration Review Tribunal would be before the Court proceedings were commenced rather than after they were dismissed.The solicitor concerned can hardly be criticised for declining to appear without being paid his fee. From the First Applicant’s evidence that other solicitors to whom he spoke all quoted the same figure, so it appears that the solicitor was quoting no more than the going rate for the work. The First Applicant’s plan to obtain the services of the first solicitor by asking him to perform the work for a smaller fee appears to be unrealistic. His sister conceded that the solicitor was not willing to act for them, at least on those terms.
I am not satisfied that the Applicants have advanced a reasonable explanation for their failure to attend Court on 24th October or that they have any realistic plan to obtain legal representation. I am not satisfied that they have taken any realistic steps to present their case in any more comprehensive way than it currently stands or are likely to do so in the future.
I turn now to consider the substantive application for review.
The Applicants applied for review of a decision of the Migration Review Tribunal dated 5th July 2006 and handed down on 24th July. The Tribunal affirmed the decision of a delegate, finding that the Applicants were not entitled to the grant of Special Eligibility (Residence) (Class AO) visas.The First Applicant is the primary applicant for the visa. He is 21 years of age and first entered Australia and most recently entered Australia on 2nd June 2001. At the time he turned 18 years of age he had spent a total of one year, ten months and 21 days in Australia. The two Applicants applied for Special Eligibility (Residence) (Class AO) (subclass 832) visas.
At the time that the Applicants lodged their applications, the criteria for a Subclass 832 (Close Ties) visa were set out in clause 832.21 of the Migration Regulations 1994. Relevantly, subclause 832.212 states:
(4) An applicant meets the requirements of this subclause if the applicant:
(a)first entered Australia before the applicant turned 18; and
(b) has never held either of the following:
(i)a student visa;
(ii) an entry permit, or a transitional (temporary) visa within the meaning of the Migration Reform (Transitional Provisions) Regulations, for the purposes of a course of study; and
(c) has turned 18; and
(d) before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia; and
(e) ceased to hold an entry permit or substantive visa before turning 18.
The Tribunal was not satisfied that Mr Chand met the requirement in subclause 832.212(4)(d), which provides that an applicant must, before turning 18, have spent the greater part of the period that the Minister regards as the Applicant’s formative years in Australia. Whilst the Minister’s solicitors, in a footnote to their written submission, point out that the Tribunal incorrectly referred to Subclause 832.212(4)(c)[3] it was clear from the wording that the Tribunal was referring to subclause 832.212 (4)(d).
[3] at Court Book 108
The Tribunal had regard to the Departmental Procedures Advice Manual (PAM 3) which provides that a person who has spent the greater part of his or her life in Australia between the ages of 5 and 18 may be regarded as satisfying the criterion in 832.212 (4)(d), although in other cases the period constituting the Applicant’s formative years would depend on the person’s particular circumstances. The Tribunal considered[4] that an assessment should not be based on mere mathematical calculation. The term “formative years” may be taken to mean those years in which the applicant formed a sense of identity and his or her place in the world.
[4] at Court Book 108
The Tribunal found that Mr Chand had spent one year, 10 months and 21 days in Australia before turning 18. The evidence showed that he had been educated in Fiji until the age of 16 and had completed his high school education in Australia. The Tribunal noted that he had played soccer in a local team and had an Australian girlfriend.
The Tribunal did not consider that those matters were sufficient to satisfy it that a period of less than two years spent in Australia prior to his 18th birthday could be deemed to be Mr Chand’s formative years.The Tribunal wrote to the First Applicant on 16th January 2006 under the provisions of s.359A of the Migration Act, seeking his comments about the information that he had only spent 21 months in Australia before reaching 18 years of age and advising him of the relevance of that information. The Tribunal also quoted the contents of Subclause 832.212.
The First Applicant replied briefly on 4th February 2006 and more fully on 21st February. The letter of 21st February contained two letters by way of character references. The Applicant wrote again on
22nd February 2006, making a three page submission. The Tribunal noted those letters and submissions.The Tribunal affirmed the delegate’s decision.
The Applicants have set out three grounds in their application filed on 7th September 2006. The first ground complains of jurisdictional error in that the Tribunal failed to take account of the relevant consideration and circumstances. No particulars are provided and the ground is no more than a bald assertion of an unspecified error. The Applicants’ first ground fails.
The second ground complains of procedural unfairness and a breach of natural justice in connection with making decisions. Again, the Applicants do not provide any particulars and I am unable to identify any procedural unfairness or other denial of natural justice.
The Applicants were invited to attend a hearing and attended.
The Tribunal appears to have considered the material that was submitted. The Tribunal also wrote to the First Applicant under the provisions of s.359A of the Migration Act. The Applicant replied and the Tribunal considered the letters and documents in reply. As there is no denial or procedural fairness or natural justice apparent on the evidence the second ground must fail.The Applicants’ third ground asserts that the Second Applicant,
Ms Kant, stayed in Australia for more than her formative years and satisfies the requirements of a visa. This is no more than an assertion and, in any event, is not relevant to the application. Ms Kant is not the primary applicant.There do not appear to be jurisdictional errors in the Tribunal decision. In my view, there are no reasonable prospects of success so far as the Applicants are concerned, and even if I were to be satisfied that the Applicants had made out a reasonable explanation for failing to attend Court until too late, reinstatement would be futile. I am not satisfied that the Cpplicants have a reasonable explanation.
The third matter to consider is whether reinstatement would prejudice the Respondent Minister. In my view there would be some small prejudice by way of delay and costs. This is not a matter of great significance compared to the other two matters.
It is rather regrettable that the solicitor for the Minister, after the Court has been in operation for over six years, should refer to “the Magistrates Court Rules” in her submission to the Court. It may have been a slip of the tongue. There are Courts called the Magistrates Court in several states and territories but they do not have any jurisdiction to deal with matters of this nature. The name of this court is the Federal Magistrates Court (Federal Magistrates Act 1999 (Cth) s.8(1)).
The application will be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 30 November 2006
0
3
4