Heer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 5258

Heer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5258 (18 December 2020)

Division: GENERAL DIVISION

File Number:           2020/6215

Re:Amit Kumar Heer  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis 

Date:18 December 2020

Place:Brisbane

The Applicant failed to appear either by telephone or by a representative at the final hearing of this matter listed on 11 December 2020. In accordance with the power vested in this Tribunal by section 42A(2)(a) of the Administrative Appeals Tribunal Act (1975) (Cth), the Tribunal dismisses this application without proceeding to review the decision of the Respondent’s delegate dated 22 September 2020.

..............................[sgd]..........................................

Senior Member Theodore Tavoularis

Catchwords

PRACTICES AND PROCEDURES – migration – where applicant failed to appear – application of section 42A(2) of the Administrative Appeals Tribunal Act 1975 – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

18 December 2020

INTRODUCTION AND TIMELINE:

1. This application sought review of a decision of a delegate of the Respondent made on 22 September 2020, involving a refusal to grant the Applicant a Student (Temporary) (Class TU) visa (“the visa”).

2. The interlocutory stages of this proceeding followed a mostly usual and unremarkable path towards a finally listed hearing originally scheduled for Thursday 3 and Friday 4 December 2020. It is helpful to provide a dot point summary of the matter’s progression through the interlocutory and pre-hearing phases leading to the above-mentioned finally listed hearing date:

   ·the first Case Management Telephone Directions Hearing (“CMTDH”) was scheduled for 16 October 2020 at 10:30am;

   ·the Applicant was duly notified about the listing details for this CMTDH by way of a listing notice emailed to him on 12 October 2020;

   ·via a representative called “Kalra”, the Applicant notified the Tribunal on 15 October 2020 at 3:27pm via email that he was unable to attend the CMTDH. He provided a medical certificate purportedly demonstrating his incapacity to participate in the CMTDH and otherwise requested a rescheduling of the CMTDH;

   ·the CMTDH was rescheduled for 21 October 2020 at 10:30am;

   ·the Tribunal duly notified the Applicant’s representative about the rescheduled date for the CMTDH scheduled for 21 October 2020 on 16 October 2020;

   ·the Tribunal sought to commence the rescheduled CMTDH at 10:30am on 21 October 2020. However, the Applicant’s representative could not be contacted and the CMTDH was not able to commence as per the rescheduled time and date;

   ·consequently, the Tribunal forwarded an urgent email to the Applicant’s nominated email address notifying him that the Tribunal would stand down the CMTDH until approximately 12:00pm on that day (i.e 21 October 2020) at which time the Tribunal would be proceeding with the CMTDH and, if necessary, without an appearance by or on behalf of the Applicant;

   ·the Applicant responded to the Tribunal’s abovementioned email and made himself available for the CMTDH which proceeded from 11:10am to 11:36am on 21 October 2020;

   ·Directions were made by the Tribunal consequent upon the CMTDH that proceeded on 21 October 2020. One of those directions reflected the parties’ agreement that the final hearing be conducted by way of video conference and that the said final hearing be listed for 3^rd and 4^th December 2020;

   ·the said Directions also contained the usual and necessary orders relating to the filing of certain material by the parties by stipulated dates;

   ·pursuant to the said Directions, the Applicant was required to file and serve his material by 13 November 2020. No material was filed and served by the Applicant at any stage during this proceeding;

   ·the Tribunal contacted the Applicant on 18 November 2020 and explained the importance of him complying with the Directions made at the CMTDH on 21 October 2020;

   ·The Tribunal then listed a Telephone Directions Hearing on 20 November 2020 and the Applicant was duly notified of the Listing notice on 18 November 2020. The Applicant appeared on the line briefly, however while the other parties were being dialled in had subsequently disconnected and was unable to be reached again;

   ·The Tribunal then listed a further Telephone Directions Hearing on 23 November 2020 and the Applicant was duly notified of the Listing notice on 20 November 2020. The Applicant did not appear and the Directions made at the CMTDH on 21 October 2020 remained in force;

   ·the Tribunal contacted the Applicant on 30 November 2020 and confirmed that he understood the final hearing of this Application was scheduled for, and would be proceeding on, 3 and 4 December 2020. The Applicant confirmed that he would be in attendance by telephone;

   ·on 30 November 2020, the Tribunal forwarded a written reminder to the Applicant to file and serve any material he sought to rely on by the last possible date which was 30 November 2020.[1]

   [1] Note: Sections 500(6H) and 500(6J) of the Migration Act 1958 (Cth) stipulate that the Tribunal can only have regard to information presented orally in support of an Applicant’s case at the hearing of a matter if that information was set out in a written statement given to the Tribunal and to the Respondent on or before two business dates prior to the commencement to the hearing. The hearing of the instant application was originally listed for 3 and 4 December 2020. Accordingly, the last date on which the Applicant could file any material upon which he sought to rely was Monday, 30 November 2020 which is two clear business days before 3 December 2020.

   THE FIRST HEARING: 3 AND 4 DECEMBER 2020

3. The hearing of the instant application was originally listed before me to run for two days comprising 3 and 4 December 2020.

4. At 10:03am, the Tribunal made contact with the Applicant who indicated his readiness to proceed with the hearing on that day, 3 December 2020. The Tribunal then made contact with an interpreter that had been requested by the Applicant for the purposes of interpreting his oral evidence to be given at the hearing. Both the Applicant and the interpreter were duly affirmed.

5. Given that the Applicant filed absolutely no material prior to the hearing, he had little or no evidence in chief to lead. I then called on the Respondent’s representative to put any questions in cross-examination to the Applicant.

6. At the commencement of the cross-examination, the Respondent’s representative asked the Applicant whether he had hard copies of the section 501G Documents and Respondent’s Tender Bundle relevant to this matter before him. These section 501G Documents and Respondent’s Tender Bundle represent a not insubstantial amount of written material amounting to some 3298 printed pages in total. It transpires that although the Respondent had forwarded the section 501G Documents and Respondent’s Tender Bundle to the Applicant in accordance with the Directions dated 21 October 2020, the Applicant did not have them before him.

7. It became apparent that it would be very difficult and cumbersome to conduct the hearing without the Applicant having the section 501G documents and Respondent’s Tender Bundle before him. In the circumstances, I thought it appropriate to adjourn the hearing for just over a week to Friday 11 December 2020 to allow the Respondent to forward a hard copy of the section 501G Documents and Respondent’s Tender Bundle to the Applicant.

8. The Applicant (via his interpreter) nominated a street address to which the said section 501G documents could be delivered to him. To be absolutely clear, this address was interpreted and otherwise confirmed by the interpreter on behalf of the Applicant. There can be no question that the Applicant (1) wanted a hard copy of the section 501G Documents and Respondent’s Tender Bundle delivered to him at this address and (2) consented to adjournment of the final hearing to 11 December 2020.

9. It goes without saying that the Respondent’s representative likewise consented to the adjournment of the hearing to 11 December 2020. I directed the Respondent’s representative to provide the section 501G Documents and Respondent’s Tender Bundle to the Applicant on the basis that she could later demonstrate proof of delivery of those documents to him.

10. Subsequent enquiries I have made satisfy me that a hard copy of the subject section 501G and Respondent’s Tender Bundle documents were duly delivered by the Respondent to the Applicant’s nominated address. I am satisfied that the Applicant has received the section 501G Documents and the Respondent’s Tender Bundle.

    THE ADJOURNED HEARING: 11 DECEMBER 2020

11. I commenced the adjourned final hearing at 10:00am on 11 December 2020. In accordance with the Applicant’s standing request, the Tribunal made contact with the interpreter and had the interpreter standby until such time as the Tribunal could make contact with Applicant.

12. Despite repeated attempts between approximately at 10:00 am and 10:30am on 11 December 2020, the Tribunal was not able to made contact with the Applicant on his nominated telephone number. The following exchange then transpired between me and the Respondent’s representative:

    SENIOR MEMBER:    Yes, good morning. May I have your appearance, please, for the record?

    MS HARGRAVE:[2]      Ms Hargrave for the respondent.

    [2] Ms Lauren Hargrave, Lawyer, Messrs Clayton Utz, Representative of the Respondent

    SENIOR MEMBER:    Thank you very much. Good morning to you, Ms Hargrave. Ms Hargrave, with reference to the applicant I will note formally for the record that in terms of trying to contact him that yesterday, Thursday 10 December 2020, this tribunal sent an email to the applicant reminding him about the hearing today and its details in terms of time of commencement.

    This tribunal also sent an SMS reminder to the applicant yesterday in the same terms. Further, yesterday this tribunal made two telephone calls to the applicant reminding him of the details of today's hearing. None of those communications made yesterday, or sought to be made yesterday, 10 December, were responded to by the applicant.

    Today, 11 December 2020, this tribunal sent a further email reminder to the applicant seeking to remind him of the details of today's hearing. In addition, up to this point where I have commenced the hearing on a formal basis, this tribunal had this morning made two telephone calls to the applicant seeking to alert him and remind him about the details of today's hearing.

    I further note for the record that none of those communications sought to be made by this tribunal to or with the applicant today, 11 December, have been responded to by the applicant. Further to that, Ms Hargrave, I'll point out for you that we have an interpreter booked of course on the chance that the applicant was going to appear, we don't have the applicant on the line but the applicant - sorry, we don't have the interpreter on the line but the interpreter  is available for use if the applicant were to make himself available for the hearing.

    So as we currently speak it's only yourself, myself and my associate on this Teams meeting.

    So in a procedural sense that's all I had, Ms Hargrave. Now, in terms of conducting the hearing; how did you propose that we proceed today?

    MS HARGRAVE: Thank you, Senior Member. We propose it would be appropriate to dismiss the application for the applicant's non-appearance under section 42A(2)(a) of the AAT Act. We're happy to provide further reasons on this if it would assist or the further options; do you have any views in relation to that?

    SENIOR MEMBER: Well, I'm mindful of the tribunal's power pursuant to section 42A(2)(a) of the AAT Act, that's one option. The other option is section 42A(5) of the AAT Act. In my view the matter this dismissible [sic], or this application is dismissible, this morning on either of those two grounds. I'm mindful that under the former ground, that is 42A(2)(a) the tribunal can, upon application by the applicant, reinstate the matter should the applicant approach the tribunal with any such request or application.

    I'm also mindful that if the tribunal were to dismiss it pursuant to section 42A(5) the further complication for the applicant in that circumstance is that he would have to apply to the Federal Court for reinstatement, the tribunal wouldn't be able to reinstate the matter if it were dismissed under 42A(5). As I understand it that is the ambit of the tribunal's dismissal power this morning.[3]

    [3] Transcript, 11/12/2020, page 2 lines 1-47 and page 3 lines 1-11

    DISPOSITION AND DECISION

13. I am satisfied that (1) the Tribunal has made all reasonable and appropriate attempts to contact the Applicant for the purposes of his appearance at the adjourned final hearing on 11 December 2020 and (2) the Applicant has failed to appear at the said adjourned hearing.

14. In accordance with the power vested in this Tribunal pursuant to section 42A(2)(a) of the Administrative Appeals Tribunal Act (1975) (Cth) I:

    ·find that the Applicant is a party to a proceeding before this Tribunal in respect of an application for a review of a decision;

    ·find that the Applicant is not the person who made the decision sought to be reviewed;

    ·find that the Applicant has failed to appear either in person or by a representative at the adjourned final hearing of this matter on 11 December 2020; and

    ·dismiss the instant application numbered 2020/6215 without proceeding to review the decision of the Respondent’s delegate made on 22 September 2020.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..................................[sgd].........................................

Associate

Dated: 18 December 2020

Date of hearing:

11 December 2020

Applicant:

No appearance by the Applicant
(or any representative of the Applicant)

Solicitors for the Respondent

Ms Lauren Hargrave, Lawyer, by video conference

Clayton Utz Lawyers