Harsev v Minister for Immigration
[2018] FCCA 1301
•7 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARSEV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1301 |
| Catchwords: MIGRATION – Application to reinstate application dismissed for non-attendance – no satisfactory explanation for non-attendance – conceded applicant has an arguable case – balancing of competing considerations – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.16.05 |
| Cases cited: BLJ16 v Minister for Immigration and Border Protection [2018] FCA 525 |
| First Applicant: | HARSEV |
| Second Applicant: | SIDAK AUJLA |
| Third Applicant: | MANJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1983 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 April 2018 |
| Date of Last Submission: | 11 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2018 |
REPRESENTATION
| The Applicants: | Ms Harsev (In Person) |
| Counsel for the First Respondent: | Mr Rogers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicants pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1983 of 2014
| HARSEV |
First Applicant
And
SIDAK AUJLA
Second Applicant
And
MANJIT SINGH
Third Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
By an application in a case dated 6 March 2018, the first applicant (who effectively acts for all of the applicants, who are family members) seeks to set aside orders made by the Court on 28 February 2018.
The orders were made in the absence of the applicant, and accordingly, it is open to her to apply, as in substance she does, pursuant to r. 16.05 of the Federal Circuit Court Rules, to have the orders set aside.
The application was dismissed for the non-attendance of the applicant. In her affidavit in support of this application, the applicant deposes that on 28 February 2018 at 9.38, she contacted the Court registry and spoke to a lady, informing her that she was terribly ill and had a fever. She informed the person to whom she spoke that she was feeling very sick and could not attend court. She requested that the hearing
be postponed to perhaps the afternoon or the following day. She was informed that an email would be sent to the Judge informing about this request. She assumed the matter was postponed and she would
be contacted again by telephone or email.
Prior to contacting the Court, she had sent an email to Ned Rogers
at 9.31 am requesting an adjournment on the grounds that she was unwell, to which she received a generic response saying that
Mr Rogers was on leave.
That email is exhibit H2 to the applicant’s affidavit and relevantly reads:
“I am unable to attend the hearing today due to health issues. My submissions are all ready. I can copy and scan to you and to the court. Pls provide me with another date of hearing.”
The transcript of the hearing on 28 February 2018 is annexed to the affidavit of Antonietta Guerra affirmed 9 April 2018. It reveals that the message actually received by the Court (transcript page 2 ) was:
“Good morning. The applicant called to advise the court that she will not be attending her hearing that is listed this morning, 28 February 2018 at 10.15 am, due to ill health. She will also be faxing through some documents.”
The documents to which reference was made is a facsimile message dated 28 February 2018 at 10.48 am, which goes to detail the applicant’s time in Australia, and traverses the alleged fraud perpetrated by S and S Migration, which lies at the heart of her original claims. It should be noted that the three applicants other than the first applicant are wholly dependent upon the result of her own visa application.
The matters to be considered in an application of this sort have recently been summarised by Moshinksy J in BLJ16 v Minister for Immigration and Border Protection [2018] FCA 525 at [2] as follows:
The principles applicable to an application for reinstatement were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. The discretion
to reinstate requires consideration of three factors and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow from the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the Court is empowered to grant; and
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application.
In order to understand the nature of this application, it is appropriate
to traverse, albeit briefly, some of the relevant procedural history.
On 29 September 2014, the applicant applied in this Court for judicial review of a decision of the Migration Review Tribunal. The matters raised all went to the fraud by S and S Migration. On 17 December 2014, Registrar Caporale made orders setting the matter down for trial and ordered the applicants to file and serve an amended application if they were so advised. They did not do so.
The matter came on for hearing on 12 April 2016 before the Court
as presently constituted, and judgment was handed down on 15 June 2016, dismissing the application. It should be noted that the dismissal of the application was on the basis that the matters sought to be agitated constituted merits review and did not disclose jurisdictional error. No finding as to the credit of the applicants was made.
By consent, in May 2017 an appeal to the Federal Court was resolved on the basis that the matter would be remitted to this Court to be determined according to law (see annexure H4 to the applicant’s affidavit affirmed 6 March 2018).
No party has at any stage raised with the court any objection to my hearing this matter upon remittal, and although when the matter came on for recent hearing I did not remember that the matter had involved the successful appeal, I have looked at my earlier decision and am satisfied that a reasonable and informed observer would not conclude that I would bring a mind unopen to persuasion as to the merits of the claim. Accordingly, I am proceeding to hear and determine it.
On 8 November 2017, the matter came before the court and both parties were represented. I set the matter down for hearing on
28 February 2018. Once again, orders were made for the applicants to file any amended application, but this has not occurred.
On 14 February 2018, the first respondent’s submissions were filed.
I note that at paragraph 6, they required the applicant to attend for cross-examination on the trial date. I further note that at paragraphs 13 to 19 of those written submissions, the second respondent set out, inter alia, a history of delay on the applicant’s part from time to time in her interactions with the department that extended the matter from November 2011 until May 2012.
At paragraph 30 of the written submissions, it was noted that the Tribunal had said at CB103-104 at paragraph 25:
“By early 2012 the applicant had only managed to complete 4 units of a Certificate III course which she had commenced almost 3 years earlier. The applicant did not take any steps to seek to apply for another student visa. She did not seek legal advice. She did nothing to rectify the problem despite knowing that S and S Migration must have engaged in some suspect practices, she did not seek to withdraw her unmeritorious application for a visa subclass 485. She did not advise the Department of Immigration that she could not be granted the visa because she did not have a positive skills assessment. She prosecuted the application at first by doing nothing between February 2011 (when it was lodged) and November 2011 when she received an email from the Department of Immigration, and then for another 6 months by promising to provide further documents to the Department of Immigration. Finally, she sought review of the refusal to this Tribunal, thus prolonging her stay in Australia by a further 2 years, in full knowledge that she could not be granted a visa.”
I would note that the last sentence is not perhaps fair to the applicant because she was entitled to seek a review to the Tribunal, and the delay in that process was not her fault.
I note further that at paragraph 43, the first respondent submitted:
“Alternatively, if the Court finds that the decision of the Tribunal was affected by jurisdictional error, the Minister submits that it should exercise its discretion to refuse to grant the applicant the relief that she seeks. At a time when the applicant must have been aware that the visa application contained false or misleading statements, she took no steps to withdraw the application or alert the department of the conduct of S and S Migration. Instead, she sought to take advantage of that conduct and prolong her stay in Australia by making requests for extension of time in which to provide documents to the department.”
As earlier indicated, when the matter was called on on 28 February 2018, I dismissed the application for the non-appearance of the applicant. That was the course urged upon me by the first respondent. I note that at transcript page 3 I said:
“I mean, this is manifestly unsatisfactory. Here we are – it may or may not be that she’s ill, but it’s all rather…it seems to me, on the day. We don’t have a doctor’s certificate…I won’t go too far; it may yet turn out that she has a valid explanation. But we will worry about that when it’s presented.”
Following notification of the dismissal of her application, the applicant filed her application in a case, as earlier indicated, in a prompt fashion on 6 March 2018. I have already referred to the explanation that she has provided in her affidavit as to why she did not attend. In her oral submissions at Court (which did not generally take the matter further), the applicant referred to depression and tendered various medical reports as part of a large bundle of papers (exhibit A1). None of these records explain the applicant’s non-attendance, and indeed, none of them appear to indicate depression.
In my view, the explanation for the applicant’s non-attendance
is utterly unsatisfactory. She was sufficiently well to be able to email the first respondent and contact the Court, requesting, on her version of the events, an adjournment till noon or possibly the next day. That is not, prima facie, consistent with being “terribly ill and had a fever”
or “very sick and cannot attend Court”. No medical certificate has been provided. Nobody at the Court or in the office of the first respondent told her that the matter had been adjourned. She was aware that she was required to attend for cross-examination. Although the applicant said she would forward documentation, and has indeed done so, none of this provides any medical evidence to support the applicant’s assertion that she was unwell.
The next matter to consider is prejudice to the respondent, and the Minister readily concedes that there is no prejudice.
The Minister goes on to concede that the applicants may have an arguable case on judicial review because the matter has been remitted to the Court by the Federal Court for determination according to law. The applicants are conceded to have an arguable case that the Tribunal’s decision was affected by jurisdictional error because the applicant was a victim of fraudulent conduct by S and S Migration.
Nonetheless, as the first respondent submits, paragraph 16 of the written submissions filed opposing this interlocutory application:
“It is clear that even if the applicant was initially the victim of fraud by S and S, she conducted herself in such a way as to take advantage of that fraud to prolong her stay in Australia. Even if she was previously innocent of involvement in any fraud by
S and S, it is clear that prior to the visa being refused, she was aware that S and S had made an application for a skilled visa on her behalf. Notwithstanding that knowledge, she sought further time to provide documents in support of the application to delay the decision-making process.”
Passages in the AAT transcript (annexed to the affidavit of Antonietta Guerra affirmed 8 February 2018) at pages 13 to 15 clearly support this proposition.
At this stage of the exercise, there is no question of making a final evaluation of the success or otherwise of the applicant’s application.
It is a matter, as Moshinsky J said, of deciding whether the applicant has a reasonably arguable prospect of success on the substantive application. While the applicant has said from the start and continues to say that she is the innocent victim of fraud by S and S, the materials taken as a whole to my mind suggest that, at the very least, her argument faces considerable difficulty. Her conduct as described immediately above, in my view, would militate against the prospects of success in any event.
The Court has to balance all the competing considerations and form
a view as to whether it is in the interests of justice to set aside the earlier orders and reinstate the substantive application. The applicant well knew that she was required for cross-examination at the trial date. She effectively adjourned it of her own motion. She is not inexperienced by now in legal proceedings, and would know that she had no power to do so. Her explanations are, absent medical evidence, utterly unsatisfactory and self-serving. They are at the very least indicative of a pattern of delay and prevarication, which, in my opinion, suffuses the materials as a whole. The applicant elected not to attend trial and in my view, particularly given my reservations about her prospects of success, it is not appropriate in the interests of justice to set aside the orders previously made.
The application in a case will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 7 June 2018
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