Dhaliwal v Minister for Immigration

[2015] FCCA 1114

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHALIWAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1114

Catchwords:
MIGRATION – Application to set aside orders made in absence of applicants – applicants requesting extension of time in any event – whether applicants have explained non-attendance – applicants’ substantive claims having no prospects of success – application dismissed. 

Legislation:  
Federal Circuit Court Rules 2001, r.16.05(2)(a)

Migration Regulations 1994, cl.485.213

First Applicant: JAGDEEP KAUR DHALIWAL

Second Applicant: ISSHU BEHAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 41 of 2014

Judgment of: Judge Burchardt

Hearing date: 16 March 2015

Date of Last Submission: 16 March 2015

Delivered at: Melbourne

Delivered on: 8 May 2015

REPRESENTATION

The Applicants: In person (assisted by an interpreter)

Counsel for the First Respondent: Mr Petrie

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The applicants’ application in a case pursuant to r.16.05 of the Federal Circuit Court Rules 2001 be dismissed. 

2. The applicants pay the first respondent’s costs 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 41 of 2014

JAGDEEP KAUR DHALIWAL

First Applicant

ISSHU BEHAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicants’ application in a case filed 30 January 2015 seeks to “re-open my case” and, in substance, asserts that an original hearing date on 16 March 2015 was followed by a decision made on 16 January 2015 without notice to the applicants. 

2. Although not stated in terms, this is clearly an application to set aside the orders made in the applicants’ absence pursuant to r.16.05(2)(a) of this Court’s Rules.

3. The first applicant’s affidavit in support, affirmed on 30 January 2015, asserts:

   “I want to reopen my case because we will not receive letter from lawyer and lawyer send me email on wrong e-mail address. 

   
   

   I was informed by court the hearing is on 16 of March 2015 (copy attached) [sic]”.

   (it should be noted that there is no document attached). 

4. For the reasons that follow, I do not think that the application to reinstate the proceedings should be granted. 

The procedural history of the matter

1. On 21 February 2013, the Migration Review Tribunal (“Tribunal”) handed down a decision by which the Tribunal affirmed a decision not to grant the applicants’ Skilled (Provisional) (Class VC) visas.  It should be noted that the first named applicant was, to all effects and purposes, the operative applicant, and the Tribunal referred to her as “the applicant” in its judgment.  I will do so also. 

2. The application for judicial review of the decision of the Tribunal was filed on 10 January 2014.  Plainly, an extension of time was required.  The affidavit in support listed three grounds for the extension which were:

   “1.I WAS GIVEN INCORRECT INFORMATION FROM FRAUD AGENT

   2.I AM A VICTIM OF SCAM RUN BY FAKE MIGRATION AGENT

   3.DUE TO FINANCIAL PROBLEM I APPLIED FOR MINISTERIAL INTERVENTION

   Please see further attachment A.”

3. The substantive grounds of application assert that the applicant was not happy with the Tribunal’s decision but do not otherwise take the matter, in my view, further. 

4. Attachment A asserts that the applicant:

   “Nearly finishing my study.  I went to migration agent S & S Migration.”

5. It goes on to assert that the agent asserted he would arrange a work visa for the applicant and applied for it, that she never applied herself and did not sign any paperwork.  Essentially, the affidavit eschews knowledge on the applicant’s part of the activities of her agent and puts the full blame for her failure to satisfy visa conditions upon the agent. 

6. Following a response filed on 23 January 2014, Registrar Allaway on

   
   

   2 April 2014, made orders by consent listing the matter for hearing on a date not before 10 November 2014.

7. The only other document filed thereafter, relevantly, was the written submissions of the first respondent filed on 9 January 2015. 

8. The Court made further orders on 23 December 2014 setting an amended timetable for the filing of documents and listing the matter for final hearing before Judge Vasta on 16 January 2015. 

9. On 16 January 2015 his Honour Judge Vasta heard the matter.  The applicant did not appear.  He dismissed the application for extension of time filed 10 January 2014 with costs. 

10. As earlier indicated, on 30 January 2015, the applicants filed the application in the case now before the Court. 

The Tribunal’s decision

1. The Tribunal’s decision records multiple failures on the part of the applicants to meet visa requirements for the visas sought.  The delegate had refused the application because the applicant had not provided evidence of meeting the Australian study requirement, or having competent English, or having obtained a suitable skills assessment for the grant of the visa or meeting the relevant Public Interest Criterion relating to health.  (See paragraph 3, Court Book (“CB”) 91). 

2. It should be noted that at the Tribunal hearing, the applicant confirmed that she had never completed her studies in Australia, (paragraph 18, CB 93).  The applicants raised the issue of migration agent fraud in that context. 

3. The Tribunal further noted at paragraph 19 that the applicant had sat an IELTS test in approximately 2010 but had only achieved scores of 5.  The applicant also confirmed that her skills had not been assessed by the relevant assessing authority as suitable for her nominated occupation and that she had never obtained a skills assessment.  She further confirmed at paragraph 21 that she had not undergone a health assessment to meet the Public Interest Criterion relating to health. 

4. In those circumstances, the Tribunal found that it was not satisfied that the applicant had completed a degree, diploma or trade qualification in the 6 months immediately before the application was made, and, therefore, did not meet the requirements of cl.485.213 of the Migration Regulations 1994.  This being a mandatory requirement, the Tribunal did not feel it necessary to consider the other criteria for the visa which also led to the delegate’s refusal of the application.

The matters the applicants need to address

1. It is well-established that in applications of this sort, the applicant must establish both a satisfactory explanation for her non-attendance at the hearing and that her case has arguable prospects of success. 

2. It is clear from the Court file that on 16 December 2014, the Court forwarded to the applicants at 16 Millawa Avenue, St Albans correspondence vacating a listing on 16 March 2015 and relisting the matter at 24 March 2015. 

3. On 19 December 2014, the Court again forwarded to the applicants at the same address, notice of listing for a mention on 23 December 2014 and listing the matter for hearing before Judge Vasta on 16 January 2015.  The notice expressly informed those receiving it that the final hearing listed before myself on 24 March 2015 had been vacated.  

4. The reasons for judgment delivered by Judge Vasta were forwarded to the applicants at 16 Millawa Avenue, St Albans on 27 January 2015, and, as earlier indicated, the applicants filed the application in the case on 30 January 2015.   

5. When the matter came before the Court, the applicants submitted (submissions were in the main made by the second applicant) that no information had been received.  They asserted they had never received the first respondent’s written submissions.  The necessity for an extension of time arose wholly from the misconduct of their agent.  They had never had a solicitor, and, in short, had not been aware of the listing in January 2015.  I received as exhibit A1 a notice sent by the Court (wrongly identifying the gender of the second applicant), on

   
   

   24 April 2014, listing the matter for 16 March 2015.  It was the applicants’ position that this was the only material received. 

6. The first respondent has filed an affidavit on 25 February 2015 of Christopher Edward Andrew Hibbard.  Mr Hibbard is a lawyer for the first respondent, and he deposed to posting a letter to the applicants at 16 Millawa Avenue, St Albans, Victoria, 3021, enclosing a copy of the orders made by the Court on 23 December 2014.  He also deposed to sending a letter enclosing a copy of the orders made by Judge Vasta on 16 January 2015 to the same address. 

7. In circumstances where there can be no doubt that the applicants received Judge Vasta’s reasons for judgment, because they moved promptly to set the orders that his Honour made aside, it is perplexing as to why the various documents sent to them at the same address previously had not been received.  

8. In the ultimate, it is not necessary for me to determine this aspect of the matter conclusively.  That is because the applicants’ prospects of success are, I regret to say, quite hopeless. 

9. As earlier indicated, the Tribunal had multiple reasons to reject the applicant’s application.  She did not meet the mandatory criterion relating to completion of study.  She did not, on her own version of the events, meet the time of application requirement of competent English.  She had never received a skills recognition assessment.  She had not, unfortunately, even attended to the health examination required. 

10. In these circumstances, in my view, it is not in the interests of the administration of justice to extend time to enable all the applicants to bring their application.  There is, therefore, simply no utility in setting aside the orders of Judge Vasta as the applicant’s substantive application for an extension of time is clearly hopeless and has no prospects of success because the applicants’ substantive case has no prospects of success. 

11. In the circumstances, therefore, and notwithstanding that the applicants were not present on 16 January 2015, and moved promptly when they were made aware of the orders made on that date, it is simply wholly inappropriate to grant the applicants the reinstatement of their proceeding that they seek.  The application will be dismissed with costs. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  8 May 2015