Han v Minister for Immigration (No.2)
[2006] FMCA 1251
•28 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAN v MINISTER FOR IMMIGRATION (No. 2) | [2006] FMCA 1251 |
| PRACTICE & PROCEDURE – MIGRATION – application to set aside judgment pursuant to FMCR 16.052(a) – principles to be applied – no reasonable excuse for failure to attend. |
| Migration Act 1958 Federal Magistrates Court Rules 2001, r.16.05(2) |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 |
| Applicant: | PING KE HAN |
| Respondent: | MINISTER FOR IMMIGRATION |
| File Number: | BRG772 of 2005 |
| Judgment of: | Jarrett FM |
| Hearing date: | 21 August, 2006 |
| Date of Last Submission: | 21 August, 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 28 August, 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A J Torbey & Associates |
| Counsel for the Respondent: | Ms Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
I ORDER THAT
the orders made on 6 February, 2006 be set aside;
the applicant pay the respondent’s costs of and incidental to the application filed on 14 June, 2006 to be agreed between the parties and failing agreement to be fixed by the court at the finial hearing of this application;
the Migration Review Tribunal be joined as a second respondent to these proceedings;
I DIRECT THAT
the applicant file and serve an amended application setting out the grounds of his application and the orders he seeks no later than 4.00pm on 11 September, 2006;
the respondent file and serve any amended response she may be advised to file and a bundle of relevant documents no later than 4.00pm on 25 September, 2006;
the application be listed for hearing for no more than half a day at 10.00am on 23 October, 2006;
the applicant file and serve a written outline of argument on or before 4.00pm on 2 October, 2006;
the respondent file and serve a written outline of argument on or before 4.00pm on 16 October, 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG772 of 2005
| PING KE HAN |
Applicant
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
By his application filed on 14 June, 2006 the applicant seeks an order that my orders made on 6 February, 2006 whereby I dismissed the applicant’s application for review of a certain decision of a Migration Review Tribunal be set aside. The applicant’s outline of submissions identifies that his application is made pursuant to rule 16.05(2) of the Federal Magistrates Courts Rules 2001 (“FMCR”).
Background[1]
[1] The following facts are ascertainable from the applicant’s affidavit filed on 15 August, 2006 and the documents annexed thereto
The applicant was born in China, but is presently living in Australia. On 11 March, 2005 he applied for a Student Visa (Class TU, subclass 573). On 29 June, 2005 a delegate of the Minister determined that the application was unsuccessful and the visa was refused.
The decision was recorded in a letter dated 29 June, 2005 and addressed to the applicant at 9 Tequila Street. Calamvale, Qld. That address was the applicant’s residential address when he made application for the visa and was notified by him (in the application for the visa) as his address for correspondence.
On 3 August, 2005 the applicant lodged an application for review of the delegate’s decision by a Migration Review Tribunal. By the application, he appointed a registered migration agent as his representative.
On 15 November, 2005 the Tribunal wrote to the applicant’s authorised recipient enclosing the Tribunal’s decision record. The Tribunal’s decision was made on 15 November, 2005. The Tribunal decided that the application for review was ineligible for consideration because it was not made to the Tribunal within the prescribed period under s 347 of the Migration Act 1958.
The Tribunal’s reasons record:
5. On 9 August 2005, the Tribunal invited the review applicant to comment and provide further information in writing on the eligibility of this application. A Commonwealth Statutory Declaration was received on 5 September 2005. The review applicant states:
“I did not receive the decision of DIMIA until 2 August 2005, when I went to the office of DIMIA Brisbane.
I talked to a male officer there and I can’t remember his name now. He handed over to me a copy of the letter from Brisbane General Client Services dated 29 June, 2005. He told me that the deadline to lodge a review in MRT was 06/08/2005.
The officer also stated that they had sent the letter to me. But I have never received the said letter.”
The De1egate’s letter states:
If you remain in Australia and you have not lodged your application for review, and you do not hold another visa, you will become an unlawful non-citizen on 06/08/2005 and therefore be liable detention and removal.”
6. Records from the Department show that the review applicant’s visa was refused on 29 June 2005. The refusal notification letter was sent to the review applicant’s nominated address for correspondence. As the decision was posted to an address in Australia, the review applicant is taken to have been notified on 8 July 2005, this being 7 working days after the date of the notification letter in accordance with subsection 494C(4) of the Act.
7. The Tribunal finds that the review applicant was required to give his application for review to the Tribunal within 21 calendar days after the day when the delegate notified him of the decision. The last day within the prescribed period that the visa applicant could have made the application for review was 29 July 2005. The review applicant did not give the application for review to the Tribunal until 3 August 2005.
8. The application was not lodged within 21 calendar days from the day that the visa applicant was notified of the delegate’s decision and is therefore not made within time.
The “Commonwealth Statutory Declaration” referred to in the tribunal’s reasons is not in evidence before me.
On 9 December, 2005, the applicant filed an Application for Review of the Tribunal’s decision made on 15 November, 2005. The grounds sought to be agitated are set out in the application as follows:
1. It is submitted that the Applicant was denied procedural fairness because the MRT failed to take into consideration that the Applicant was not at fault for the delay. The reason the Applicant was not at fault for the delay is because the Department of the Minister for Immigration and Multicultural and Indigenous Affairs (DIMIA) had failed to notify (sic) Applicant of their decision. The Applicant had to physically go to the office of DIMIA to obtain the record of the decision.
2. Furthermore, it is submitted that the MRT had failed to take into consideration the fact that when the Applicant went to the DIMIA office, he was incorrectly informed of the date for review.
3. It is therefore submitted that due to the above reasons which were beyond the Applicant’s control, he was late in his Review Application.”
The application seeks an order that the “decision of the MRT made on 15 November, 2005 to affirm the decision under review not to grant the applicant a Student (Temporary)(Class TU) Higher Education Sector visa be quashed.”. No such decision, of course, was made by the Tribunal.
The application was listed for directions on 6 February, 2006. It appears to have been filed by the applicant personally because his name appears at the foot of the application. His address as it appears in the foot of the application is 22 Devonlea Street, Eight Mile Plains, Qld. That is his residential address[2]. His address for service, however, is an address at Durack. That appears to be the address of his migration agent.
[2] see paragraph 6 of his affidavit filed on 15 August, 2006
On 6 February, 2006, the matter came before me on its first court date. The applicant did not appear, but the respondent did. The respondent urged me to deal with the matter summarily. I dismissed the application pursuant to FMCR 13.10. I concluded that there was no prospect of the application for review succeeding. The applicant has appealed my decision given on 6 February, 2006, but the hearing of that appeal is now awaiting the outcome of this application.
The Applicant’s Contentions
The applicant contends that I should set aside my previous orders pursuant to:
a)FMCR 16.05(2)(a) – because it was given in his absence;
b)FMCR 16.05(2)(b) – because it was obtained by fraud;
c)FMCR 16.05(2)(c) – because the order is interlocutory.
Fraud
I will deal with this application first. In my view, no fraud in obtaining the orders now sought to be set aside has been demonstrated on the part of the respondent. It is unclear how it is said that the fraud arises. That is surprising given that allegations of fraud should be clearly and precisely articulated. In his outline of argument, counsel for the applicant puts case in the following way:
5. The respondent filed an affidavit sworn by Carla Julian Polson which stated that on instructions there is no reasonable cause of action and summary judgment was sought.
6. In granting summary judgment the court presumably relied upon the assertion by the Migration Review Tribunal as follows (see paragraph 4 of the reasons for decision)
As the decision was posted to an address in Australia, the review applicant has taken to have been notified on 8 July, 2005.
7. However, that is not evidence which would establish summary judgment as in order to invoke the deeming provisions of s.494B(4) & s. 494C(4) of the Migration Act there must be proof of posting. Counsel wrote to the respondent seeking proof of postage in accordance with s.494C and was supplied with an unsworn draft of an affidavit by the decision maker Samantha Baldey (see attached).
8. That affidavit states that she has no recollection of actually posting the original notice of decision. The respondent was invited to provide proof of how compliance with s.494B(4) is proved. The affidavit states that Ms Baldey ‘would have placed the envelop’ in a ‘mail basket trolley’.
9. This is not evidence that the letter was posted. Presumably the respondent department has no system of bar-coding to record outgoing mail and no other entry or system to ensure that mail actually makes it to the post. Apparently there is not even a mail book.
10. Mr Han’s two affidavits state that he never received the letter in the post.
11. The respondent can not prove that the letter containing the notice of decision was posted. The only inference this court can draw is that the letter did not make it into the ‘mail basket trolley’ to the post.
12. It follows that that the deeming provision in s. 494C(4) of the Migration Act can not apply. It is surprising that the respondent did not provide an affidavit to this court earlier. Ms CarIa Polson in her affidavit to this court did not reveal what her ‘instructions’ were, but one assumes they were consistent with the affidavit of Ms Baldey. It is equally surprising that the MRT, when faced with an assertion from a review applicant that he did not receive the letter in the post, that the MRT itself did not ask the respondent department, how it could be proved that the letter was posted.
The difficulty with the applicant’s argument is that Ms Polson did not swear “that on instructions there is no reasonable cause of action and summary judgment was sought” as asserted by the applicant’s counsel. Rather, what she swears is[3]:
2. I am instructed, on the basis of the information currently in the possession of the Respondent, to file and serve a Response because the Respondent contends that no reasonable cause of action is shown and the pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 this matter should be dismissed without proceeding to a final hearing.
[3] affidavit of Carla Jillian Polson filed 19 January, 2006
In my view, Ms Polson swore something quite different to that alleged of her. The allegations of fraud are ill-founded. There is nothing in the assertion that the decision of 6 February, 2006 was obtained by fraud.
The absence of the Applicant
Recently I have had cause to consider in some detail the principles that should be applied when considering an application to set aside an order or judgment given in the absence of a party[4]. There is nothing in the arguments addressed to me in this matter that causes me to change my view about those matters. In my view the principles to be applied on an application under FMCR 16.05(2)(a) might be summarised as follows:
[4] Cochrane & Michjalow [2006] FMCA fam 450
a)The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b)There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under FMCR16.05(2)(a), namely:
i)a reasonable explanation for the applicant's absence at the trial or hearing;
ii)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii)no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
c)Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i)whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii)delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii)the conduct of the applicant since the judgment or order sought to be set aside was made.
The only evidence as to the applicant’s failure to appear before me on 6 February, 2006 is in his affidavit filed by leave on 21 August, 2006. In that affidavit he swears:
1.
I found all of the court proceedings very confusing.
I thought I had retained Mr Nguyen to act for me, but there is a dispute about this. I am 20 years of age and I have never had any experience with the courts in Australia or China.
2.He did not tell me the hearing was on and I was not aware of the hearing on 6 February, 2006.
That is the only evidence. There are no further particulars, nor any corroboration from Mr Nguyen deposing to a difficulty or confusion in instructions. The applicant plainly knew of the first court date because he filed the application and the date is marked on its face. To assert that he did not know of the date just cannot be right.
In my view, he does not demonstrate a reasonable explanation for his failure to appear on 6 February, 2006. His application, insofar as it relies upon FMCR 16.05(2)(a) cannot succeed.
Interlocutory Order
It is clear, I think, that an order summarily dismissing a claim or a defence pursuant to FMCR 13.10 is interlocutory in nature[5]. Thus, it follows that such an order may be set aside pursuant to FMCR 16.05(2)(C).
[5] Rana v University of South Australia [2004] FCA 559; Gauci v Kennedy [2006] FCA 869
I was not addressed on the principles to be applied in cases relying upon FMCR 16.05(2)(c). It seems to me, however, that whilst the discretion cast upon the court by that rule is unfettered in its terms, it must be exercised judicially. It might also be the case that the matters relevant to the exercise of the discretion vary depending upon whether the order sought to be set aside effectively disposes of the matter or is merely procedural in nature.
The order sought to be set aside in the present case disposes of the applicant’s application if it is allowed to stand (subject to appeal). In these circumstances, it seems to me relevant to consider matters not unlike those relevant to a consideration of an application under FMCR 16.05(2)(a). The failure to appear will not be if particular significance, save as to costs. What is of more weight is whether the applicant has a material argument, which if heard on its merits might lead to orders different to those sought to be set aside. The question of prejudice to the respondent will also arise.
The decision of the Tribunal was expressed as follows:
The Tribunal finds that the review applicant was required to give his application for review to the Tribunal within 21 calendar days after the day when the delegate notified him of the decision. The last day within the prescribed period that the visa applicant could have made the application for review was 29 July 2005 upon a finding that the applicant had 21 days from
The Tribunal must have been satisfied that the applicant was notified of the decision on 8 July, 2005 and that the letter of 29 July, 2005 was, in fact, sent. The findings of the Tribunal in those respects are set out in paragraph 6 of the reasons:
6. Records from the Department show that the review applicant’s visa was refused on 29 June 2005. The refusal notification letter was sent to the review applicant’s nominated address for correspondence. As the decision was posted to an address in Australia, the review applicant is taken to have been notified on 8 July 2005, this being 7 working days after the date of the notification letter in accordance with subsection 494C(4) of the Act.
The reasons for decision make it plain that the Tribunal relied upon the records of the Department for its findings of fact. It acknowledged that the applicant claimed not to have received the letter of 29 June, 2005 from the Department, but found, nonetheless that he was notified of the decision. Proof of actual receipt by the applicant of the delegate’s decision is not necessary[6].
[6] Xie v MIMIA [2005] FCAFC 172 at [13] – [14]
To succeed in his application for review, the applicant must show a jurisdictional error. An error of fact might show jurisdictional error if it can be categorised as a jurisdictional fact.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 the Full Court summarised the position at [53]:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
"Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error."
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 per McHugh J
In the present case, no error of law is demonstrated. At best, the applicant might demonstrate that the Tribunal’s finding of fact that the relevant letter was posted (see paragraph 6 of the reasons) is erroneous. In my view, such a fact is arguably a jurisdictional fact and if error can be demonstrated, an order different to the order sought to be set aside might, although not necessarily, be made.
The respondent did not submit that she would suffer any particular prejudice if the orders of 6 February, 2006 are set aside. Plainly any prejudice can be met by an order for costs. The failure of the applicant to appear on the first court date has led, in my view, to the necessity for the current application. The respondent should have the costs of this application.
Conclusion
For the foregoing reasons I make the orders set out at the commencement hereof.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 28 August 2006
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