Cheema v Minister for Immigration and Border Protection
[2017] FCA 1311
•3 November 2017
FEDERAL COURT OF AUSTRALIA
Cheema v Minister for Immigration and Border Protection [2017] FCA 1311
Appeal from: Cheema v Minister for Immigration & Anor [2017] FCCA 1618 File number: VID 701 of 2017 Judge: MORTIMER J Date of judgment: 3 November 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court decision – no grounds of appeal specified – no compliance with programming orders by appellant – no appearance by appellant – whether any error of Federal Circuit Court reasons apparent to this Court – appeal dismissed Legislation: Migration Act 1958 (Cth), s 362B
Federal Court Rules 2011 (Cth), r 36.75
Date of hearing: 3 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr A Yuile Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make save as to costs ORDERS
VID 701 of 2017 BETWEEN: USMAN IQBAL CHEEMA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
3 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal on a lump sum basis, fixed at $3,500.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)MORTIMER J:
This is an appeal against orders made by the Federal Circuit Court on 8 June 2017 dismissing the appellant’s application for judicial review. The reasons of the Federal Circuit Court were not published until 11 July 2017 by which time the appellant had already lodged his notice of appeal. That notice contained no specific grounds of appeal. Although the appellant stated in his notice of appeal and supporting affidavit that particulars would be provided after the Federal Circuit Court reasons had been published, that has not occurred.
The appellant did not attend the hearing of the appeal today. He has not complied with any of the Orders made in relation to the filing of material for the appeal. And despite considerable efforts made both by my chambers and by the Minister’s legal representatives to contact him, no further development of his appeal grounds has been forthcoming. The efforts made to contact the appellant by my chambers began with the first standard communication to the parties about the appeal on 11 October 2017. As no reply was received from the appellant, this was followed up with a further email on 24 October 2017. Further, on 27 October 2017 my executive assistant rang the appellant’s mobile number and left a message for him informing him where she was calling from and what it was about. That was followed up by a further telephone call on 30 October 2017 which was not answered but went to voicemail and a message was left. On the same day the appellant was sent a letter via express post including copies of the relevant documents in relation to his appeal. On 1 November 2017, my chambers emailed the Minister’s legal representatives to see what contact they had had.
The Minister sought and was granted leave to file in Court an affidavit of Nicola Esti Caon affirmed 3 November 2017 in which Ms Caon deposed to the attempts made by the Minister’s legal representatives to contact the appellant. Ms Caon deposed to correspondence sent to the appellant at the postal and email addresses given in his notice of appeal. She deposed to a listing notice also being sent by way of registered post to that address. She deposed that at least some of the correspondence was returned to Sparke Helmore with a “return to sender” notice on it. She deposed to various attempts by telephone to contact the appellant and deposed that on one occasion the mobile telephone number was answered but the person who answered it then hung up after being informed that the caller was calling from Sparke Helmore, acting on behalf of the Minister.
She deposed that various messages have been left on the voicemail of the mobile phone provided by the appellant and no calls appear to have been returned. I accept Ms Caon’s evidence that more than adequate efforts have been made to contact the appellant.
I turn now to set out the history of this matter which brings it to an appeal before this Court. The judicial review application before the Federal Circuit Court concerned a decision of the Administrative Appeals Tribunal in relation to the refusal of a temporary student visa to the appellant. A delegate of the Minister had refused his application for a visa on 30 September 2014 on the basis the delegate was not satisfied the appellant was a genuine temporary entrant. On review before the Administrative Appeals Tribunal, the Tribunal had put the appellant on notice through an invitation letter dated 11 February 2015 that the Tribunal needed to see a copy of the current certificate of enrolment held by the appellant and documents showing he was currently enrolled in a course or had an offer of enrolment in a course. The letter also invited the appellant to attend a hearing on 27 March 2015.
The appellant did not respond to the Tribunal nor did he provide the information the Tribunal had requested. The evidence before the Court on this appeal demonstrates the Tribunal attempted to contact the appellant to remind him about the review hearing and the need to provide information. The Tribunal sent SMS reminder messages to the appellant’s mobile number as provided by him in his application to the Tribunal but received no response. This narrative is reminiscent of the Court’s attempts, and the attempts by the Minister’s legal representatives, to contact the appellant in relation to this appeal. The appellant did not attend the Tribunal hearing on 27 March 2015. The Tribunal decided to proceed to make a decision on the application without adjourning the hearing or giving the appellant any further invitation to attend. Section 362B of the Migration Act 1958 (Cth) confers a discretionary power of this kind on the Tribunal.
The Tribunal wrote to the appellant on 30 March 2015 informing him that it had made its decision and had affirmed the delegate’s decision. In its reasons the Tribunal noted its invitation to the appellant, the lack of any response by him, the absence of any explanation for his non-attendance, and the absence of any evidence of current enrolment in an applicable course, which was a necessary precondition to the grant of the visa sought.
The appellant sought judicial review of the Tribunal’s decision. He did attend the Federal Circuit Court hearing of his judicial review application. His application raised four grounds, each of which the Federal Circuit Court dealt with. The Federal Circuit Court also dealt with two points raised by the Minister, quite properly, which might have been seen as tending in favour of the grant of the relief sought by the appellant. In that sense although the appellant was self-represented he had the benefit of the Minister alerting the Federal Circuit Court to submissions that may have assisted his application.
Those two points related first to the Tribunal’s use of records from the Department’s PRISM system and second to the Tribunal’s exercise of its discretion under s 362B to proceed to a decision without hearing from the appellant. The latter in particular was a clear question of law arising on the material. There is no error apparent to this Court in the approach taken by the Federal Circuit Court and indeed there is no specific error alleged by the appellant as I have noted.
Whether the appeal is examined on a substantive basis taking into account that the appellant is self-represented and with the Court looking for itself at the Tribunal decision and at the Federal Circuit Court reasons, or at the level of the appellant’s non-appearance and/or alternatively his failure to identify any specific ground of appeal, in any of these ways the result is the same. The appeal must be dismissed.
No jurisdictional error is apparent from the way in which the Tribunal dealt with the appellant’s review and the Federal Circuit Court was correct to so decide. This appeal could also have been dismissed on the basis of non-appearance under r 36.75 of the Federal Court Rules 2011 (Cth) but I prefer to deal with it on a substantive basis as I indicated to the Minister’s counsel.
The appeal will be dismissed with costs. The Minister sought and was granted leave to rely on a second affidavit by Ms Caon deposing to the lump sum costs figure sought by the Minister. I accept Ms Caon’s evidence on this matter and consider the sum sought by the Minister is appropriate.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 9 November 2017
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