DONA v Minister for Immigration and BORDER PROTECTION

[2014] FCCA 266

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 266

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 44.12

Applicant: SHANIKA DONA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent MIGRATION REVIEW TRIBUNAL

File Number: SYG 2748 of 2013

Judgment of: Judge Emmett

Hearing date: 14 March 2014

Date of Last Submission: 14 March 2014

Delivered at: Sydney

Delivered on: 14 March 2014

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondent: Ms Michelle Stone (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2748 of 2013

SHANIKA DONA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

First Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 7 November 2013, be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), by reason of the failure of the applicant to appear at today’s scheduled hearing.  The applicant sought judicial review of a decision of the Migration Review Tribunal (“the MRT”), dated 15 October 2013. On 27 November 2013, the first respondent filed a response asserting that the decision of the MRT was not affected by jurisdictional error. 

2. In support of the first respondent’s application this morning, the solicitor for the first respondent, Ms Stone, read the affidavit of Veneta Gotem, affirmed 6 March 2014, and filed in Court today. 

3. Ms Gotem’s affidavit annexed a copy of a letter, dated 5 March 2014, sent to the applicant at the applicant’s address for service, annexing a copy of the first respondent’s submissions. The letter also reminded the applicant of the date, time, reason, and location of today’s scheduled hearing, and informed the applicant that if the applicant did not attend, that the first respondent would be seek to have the matter dismissed with costs for non-appearance.

4. Ms Gotem’s affidavit also annexed a copy of a document which I accept as evidence that the letter was in fact sent to the applicant.

5. The applicant attended a directions hearing before me on 18 February 2014. On that occasion, I explained to the applicant that the grounds of her application made bare, unparticularised assertions and, by themselves, did not disclose a complaint capable of review by this court. I explained to the applicant that the rules of this Court provide that an application may be dismissed where the grounds of an application do not disclose an arguable case. 

6. I also explained to the applicant at the directions hearing the cost consequences that may flow to her if she proceeded with her application and was unsuccessful. The applicant confirmed that she wished to continue with her application. Accordingly, at the request of Ms Stone, the matter was set down for a show cause hearing, pursuant to r.44.12 of the Rules, today at 12pm.

7. The applicant was given leave at the directions hearing to file and serve an amended application giving complete particulars of each ground of review relied upon, by 4 March 2014, together with any further evidence and submissions in support of the application. No documents have been filed by the applicant, either in accordance with those directions or otherwise.

8. There has been no communication received by the applicant seeking an adjournment of today’s hearing or for any other reason, either by the Court or by the first respondent. The matter was listed for hearing today at 12pm; it is now 1:15pm. The matter has been called outside as recently as five minutes ago.

1. I am satisfied that the applicant was aware of today’s hearing and, for whatever reason, has chosen not to attend.

2. The first respondent was also directed to file and serve submissions. On 5 March 2014, the first respondent filed and served its submissions in accordance with that Order. Inter alia, those submissions address the background of the matter, the applicant’s claims, the MRT decision and the grounds of complaint, a copy of which was annexed to an affidavit filed by the applicant on 7 November 2013 in support of his application, and submissions for a show cause hearing. For the sake of completeness, they are as follows: 

   “Introduction
   1. This is an application filed in the Federal Circuit Court[1] under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the Act) seeking relief in the form of constitutional writs against the decision of the Migration Review Tribunal (MRT) dated 15 October 2013.  The MRT affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Partner (Migrant) (Class BC) visa.

   [1] on 7 November 2013

2. The first respondent contends that the application fails to raise an arguable case for the relief sought and should be dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), with costs.

Background
3. On 25 November 2008 the applicant applied for a Partner (Migrant) (Class BC) visa.[2]  The applicant entered Australia on 9 May 2009 as the holder of a Spouse (Provisional) visa, granted to her on 28 April 2009.[3]

[2] CB 1

[3] CB 101

4. Following the grant of the Spouse (Provisional) visa to the applicant, the applicant submitted various further documents in support of her application for a Partner visa.  The first respondent's Department also issued a number of requests to the applicant, for additional information.  

5. The first respondent's Department invited the applicant to attend an interview with respect to her visa application,[4] and conducted a home visit with respect to the application.[5]  On 3 August 2011, the applicant was issued with a written invitation to comment on certain adverse material arising out of the interview and home visit.[6]

[4] CB 232

[5] CB 279

[6] CB 310

6. A delegate of the first respondent refused the applicant's Partner visa application on 10 October 2011. [7] The delegate relied, inter alia, on adverse material obtained at the home visit and interview, as well as resulting from certain inquiries conducted by the first respondent's Department.

[7] CB 328

7. The applicant sought review of the delegate's decision by application to the MRT lodged on 26 October 2011. [8]  The applicant submitted the delegate's decision record to the MRT, with her review application.[9]
8. The MRT wrote to the applicant by facsimile letter dated 13 August 2013, inviting the applicant to attend a hearing before it.[10]  The applicant did not attend the hearing.[11]  By decision dated 15 October 2013, the MRT affirmed the decision under review, refusing to grant the applicant a Partner visa.

[8] CB 347

[9] CB 368

[10] CB 391

[11] CB 398

9. The MRT was not satisfied the applicant was the 'spouse' of the sponsor and not satisfied the parties were in a genuine and continuing relationship. It found the applicant did not satisfy cl. 100.211 of the Migration Regulations 1994 (Cth).
Application before the Court

10. The applicant relies on an application filed on 7 November 2013.  As at the date of preparation of these submissions the first respondent has received no amended application, additional affidavit evidence, or written submissions, by the applicant.
Consideration

11. The applicant was validly invited to an MRT hearing.  The hearing invitation complied with the requirements of the Act as to form and dispatch (see sections 360A and 379A).  Specifically, the hearing invitation:

11.1 Gave the applicant notice of the day on which, and the time and place at which, the applicant was scheduled to appear: section 360A(1).
11.2 Was given to the applicant by the method in section 379A(5): section 360A(2)(a).

11.2.1 The hearing invitation was sent by fax on 13 August 2013 to the applicant's migration agent at fax number 02 9280 2030.  
11.2.2. This was the same fax number provided on the MRT review application form, which appointed the migration agent as the applicant's representative.[12]
11.2.3 The MRT application form requested that correspondence in relation to the application be sent to the migration agent, who the applicant nominated as her authorised recipient.[13]

[12] CB 350

[13] CB 351

11.3 Gave the applicant in excess of the prescribed period of notice, of the scheduled hearing: section 360A(4). 

11.3.1 The hearing invitation letter was dated 13 August 2013. The hearing was scheduled for 8 October 2013: Migration Regulations 1994 (Cth) reg. 4.21(4)) .

11.4 Contained a statement of the effect of section 362B.  That is, the invitation letter warned the applicant that should she fail to attend the hearing the MRT may make a decision on the application without taking further action to allow the applicant to appear before it.

12. When the applicant did not attend the hearing, the MRT was entitled to proceed pursuant to section 362B.  That is regardless of the fact that the applicant returned an affirmative response to the hearing invitation indicating she and her representative would attend.  There was no obligation on the MRT to take some further step, when they both failed to attend the hearing: see, for example, SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295.

13. The MRT otherwise complied with its procedural obligations pursuant to Division 5 of Part 5. 

14. The application to the Court makes bare assertions of error.  Absent any particulars whatsoever, the grounds of review are incapable of a meaningful response.”

1. In the circumstances, the orders sought by Ms Stone are appropriate, and the application commenced by way of application filed on 7 November 2013, should be dismissed with costs, pursuant to rule 13.03C(1)(c) of the Rules, by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date:         26 March 2014