Farhana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 156
•15 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farhana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 156
File number(s): SYG 1310 of 2019 Judgment of: JUDGE STREET Date of judgment: 15 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Subclass 187) Visa – where the applicants failed to appear at the previous hearing before the Court – application for reinstatement of proceedings – no satisfactory reason given for the applicants’ failure to appear – whether the originating application disclosed relevant error by the Tribunal – no utility in reinstating proceedings – application for reinstatement dismissed Legislation: Migration Act 1958 (Cth) s 362B(1A)(a)
Migration Regulations 1994 (Cth) cl 187.233
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 15 October 2021 Place: Sydney Solicitor for the applicants: First applicant, in person Solicitor for the first respondent: Mr C O’Sullivan, Australian Government Solicitor ORDERS
SYG 1310 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAHMAN FARHANA
First Applicant
ANM WAHID ULLAH BHUIYAN
Second Applicant
MASTER TAHSEEN BHUIYAN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
2.The application in a case filed on 8 September 2021 is dismissed.
3.The first and second applicants pay the first respondent’s costs fixed in the amount of $2,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
This is an application for a reinstatement of proceedings that was filed on 8 September 2021. The proceedings were dismissed on 17 August 2021 for the failure of the applicants to appear at the hearing.
At the commencement of the hearing today, the Court explained to the first applicant the nature of the issues in respect of the reinstatement hearing. The first applicant’s explanation for failing to attend the hearing on 17 August 2021 was that she had a COVID-19 test. The first applicant’s explanation for the failure to attend Court is completely unsatisfactory.
Background
In relation to the merits of the originating application, the first applicant claims that she did not have a fair hearing, because she was not able to attend the Administrative Appeals Tribunal (“the Tribunal”).
The first applicant is a national of Bangladesh and applied for a Regional Employer Nomination (Subclass 187) Visa (“the Visa”) on 4 June 2017. The first applicant is the wife of the second applicant, and the third applicant is a child in respect of whom there has been a litigation guardian order made.
It is apparent from the Tribunal’s record that the first applicant was the subject of a refusal by a delegate of the first respondent (“the delegate”) on the 26 November 2018. The delegate refused the grant of the Visa because the first applicant’s nomination in respect of the application had been withdrawn by the employer.
In those circumstances, the first applicant was on notice of the need for an approved nomination. To make it even clearer, the Tribunal wrote to the applicant on 29 March 2019, identifying that the nomination had been withdrawn and inviting the applicants to respond. The applicants did provide a response. Accordingly, the Tribunal invited the applicants, as it was required to under the statute, to attend a hearing on 2 May 2019. That invitation to attend the hearing was sent to the email address identified in the first applicant’s application for review.
The applicant responded to the invitation and provided a medical certificate, seeking an adjournment. Accordingly, by letter dated 2 May 2019, the Tribunal invited the applicant to attend a hearing on 17 May 2019. The invitation was, again, sent to the first applicant’s email address as identified on the application for review.
The Tribunal
On 17 May 2019, the applicants failed to appear before the Tribunal at the hearing.
It is apparent from the Tribunal’s records and the Tribunal’s decision that there was no response to the invitation to a hearing sent on the 2 May 2019. It is also apparent that the applicants were on notice that, if they did not attend, the Tribunal may proceed to make a decision in their absence.
The Tribunal identified the applicants’ failure to appear, and identified that no request for an adjournment of the hearing was received by the Tribunal. The Tribunal also identified two SMS reminders sent to the applicants in respect of the hearing, and found that there was no satisfactory reason why the applicants had not appeared.
It was in those circumstances that the Tribunal, under s 362B(1A)(a) of the Migration Act 1958 (Cth) (“the Act”), decided to proceed to make a decision. In the circumstances identified, it was reasonable for the Tribunal to do so. The applicants were clearly on notice of the hearing. The Tribunal had earlier complied with its statutory obligations in respect of the invitation to hearing.
The Tribunal identified that the first applicant was not the subject of an approved nomination and that, accordingly, the first applicant did not meet the criteria under cl 187.233 of the Migration Regulations 1994 (Cth) (“the Regulations”). Consequently, the Tribunal affirmed the decision of the delegate under review.
Before the Court
These proceedings were commenced on 29 May 2019. At the hearing, the first applicant asserted that she did have an approved nomination, but that she could not provide it to the Tribunal because it proceeded with the hearing without her.
There is not a jot of evidence put on by the first applicant, either to the Tribunal or before this Court, to support that assertion. The first applicant had an opportunity to put on an amended application, affidavit evidence and submissions as a result of the orders made by a Registrar on 20 June 2019. The first applicant’s assertion that she had an approved nomination is simply not credible. There is no evidence to support that assertion.
On the evidence before the Court, the applicants could not possibly succeed before the Tribunal without an approved nomination. For the same reasons, the applicants could not succeed before this Court. The first applicant’s assertions of having an approved nomination is unsupported by and any evidence and does not identify any arguable case on the merits.
The first applicant also maintained that it was unfair or unjust for the Tribunal to proceed to make a decision without her. In circumstances where it is apparent that the applicants had been properly invited to attend a hearing, where there had already been an earlier adjournment at the request of the first applicant, where the applicants had been notified of the adjourned hearing date, where the first applicant failed to take any step to explain why she could not attend the hearing, and where the first applicant was sent two SMS reminders, it was not unfair, unjust or unreasonable for the Tribunal to decide to proceed to determine the matter under s 362B(1A)(a) of the Act.
It was the first applicant’s own conduct that was responsible for her failure to attend the hearing before the Tribunal. The assertion that she was unable to do so is not supported by any relevant evidence. The first applicant’s oral submissions fail to identify any reasonable argument as to the Tribunal’s decision or review being the subject of error and in substance invite impermissible merits review.
The Grounds
The Grounds in the application are as follows:
Ground 1
1.The Administrative Appeal Tribunal (Migration (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicants’ REN visa (Sub Class 187 of Class RN) rejection by the Minister’s delegate.
Ground 2
2.The manner in which the tribunal dealt with the application and the applicants was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
Ground 3
3.The second respondent has denied the applicant's natural justice and procedural fairness pursuant to s362A (the applicant entitled to have access to written materials before Tribunal).
Ground 4
4.The second respondent has wrongly exercised its power of s362B(l)(b) of the Migration Act 1958.
a.On the day of the hearing (17/05/2019) around at 9.07 Hour in the morning the Applicant phoned the Tribunal and have notified an official about the reason of her non-appearance on the scheduled time and date. The Tribunal officer has noted down the information and has promised that the Tribunal will get back to her which has never happened until the final decision (22/05/2019). Hence the Tribunal is in breach of s360(1) of the Migration Act.
Ground 5
5.The applicants claim that the Tribunal was preoccupied and that was why they were denied natural justice and procedural fairness when the Tribunal formed the view about the applicants before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate's decision.
Ground 6
6.The applicants were deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicants whose interest has adversely affected by the decision as it did not given the opportunity to present their case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
Ground 1
In relation to Ground 1, this appears an invitation to merits review. Where the first applicant did not have an approved nomination before the Tribunal at the time of the hearing, she could not succeed. No arguable case of error is made out by Ground 1.
Ground 2
In relation to Ground 2, this appears to, again, disagree with the Tribunal proceeding to determine the matter where the first applicant failed to appear. The applicants were properly invited to appear before the Tribunal. It was reasonable, in the circumstances identified above, for the Tribunal to proceed to determine the matter. The assertion that the Tribunal did so without an impartial mind is unsupported.
There is no evidence to suggest that the Tribunal did other than approach the review with an open mind, reasonably capable of persuasion as to the merits. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent or impartial mind to the determination of the matter on its merits. No arguable case of relevant error is disclosed by Ground 2.
Ground 3
In relation to Ground 3, for the reasons already identified, the exercise of power by the Tribunal to proceed to determine the matter was reasonable in the circumstances. No arguable case of relevant error is disclosed by Ground 3.
Ground 4
In relation to Ground 4, this, again, appears to be a disagreement with the Tribunal proceeding to determine the matter in circumstances where the applicants had failed to appear, failed to contact the Tribunal to explain why they were unable to appear, and had failed to respond to the two SMS messages. There was no erroneous exercise of discretion. No arguable case of relevant error is disclosed by Ground 4.
Ground 5
In relation to Ground 5, the assertion of a denial of procedural fairness or natural justice is again, apparently, based on the first applicant’s failure to attend before the Tribunal when she was invited to do so. On the material before the Court there was no denial of natural justice or procedural fairness in the circumstances of this case. It was reasonable for the Tribunal in the circumstances of this case to proceed to decide the matter where the applicants had been properly invited to attend and had failed to do so.
There is no basis to support the assertion that the Tribunal’s decision was cut and pasted from the delegate’s decision. On the face of the material before the Court, the Tribunal conducted a review as required under the Act. No arguable case of jurisdictional error is disclosed by Ground 5.
Ground 6
Ground 6, again, appears to be a repetition of the assertion of the denial of natural justice and procedural fairness because the applicants failed to attend the hearing. In the circumstances of this case where the applicants had been properly invited, where they had been sent two SMS messages, and where the applicants failed to contact the Tribunal to provide an explanation of the need for an adjournment, it was reasonable for the Tribunal to proceed to determine the matter. No arguable case of relevant error is disclosed by Ground 6.
Further, the Court is satisfied that there would be no utility in reinstating these proceedings as the first applicant did not have an approved nomination and could not possibly have succeeded before the Tribunal. In these circumstances, the Court is satisfied that there would be no utility in reinstating these proceedings. That is because, on the merits, the first applicant has no reasonable argument that the Tribunal’s decision is the subject of error, either raised orally on in the Grounds in the application.
Accordingly, the application in a case filed on 8 September 2021 is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 October 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 9 November 2021
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