Heng v Minister for Immigration

[2018] FCCA 265

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 265

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – show cause application dismissed by a registrar when the applicant failed to appear at the first court date – application for reinstatement dismissed.

Applicant: LONG AN HENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3083 of 2017

Judgment of: Judge Driver

Hearing date: 6 February 2018

Delivered at: Sydney

Delivered on: 6 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Evans of Mills Oakley

INTERLOCUTORY ORDERS

1. The application in a case filed on 28 November 2017 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3083 of 2017

LONG AN HENG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application in a case filed on 28 November 2017.[1]  The applicant, Mr Heng, seeks the reinstatement of a judicial review application filed on 5 October 2017.  That application had been dismissed by a Registrar on 15 November 2017 when Mr Heng failed to attend the first court date directions in the substantive application.

   [1] Lodged on 24 November 2017

2. The reinstatement application is supported by an affidavit filed with it.  Mr Heng was cross-examined on that affidavit. 

3. I also have before me Mr Heng’s affidavit filed with his principal application and two emails[2] tendered after the cross-examination of Mr Heng. 

   [2] Collectively exhibit R1

4. I accept Mr Heng’s evidence as to why he failed to attend court on 15 November 2017. 

5. The judicial review application had been allocated a return date of 6 November 2017. 

6. During the weekend previous to that day, the courts at Queens Square had been affected by water damage.  When Mr Heng attended the court building on 6 November 2017, he was turned away because the building was closed.  He was invited to go to a different building, which Mr Heng understood was the Court in Goulburn Street.  He says he went there but there was no hearing there either.  He was advised to go home and await an email.  He claims he received no email and was unaware of the rescheduled first court date directions on 15 November 2017. 

7. Two emails were sent to Mr Heng.  The first was sent by the court Registry on 7 November 2017 at 4.58 pm.  That advised Mr Heng of the rescheduling of the first court date directions to 2.15 pm on Wednesday, 15 November 2017 in the court here at William Street. 

8. The email was sent to the address of [email protected] as well as to others.

9. Mr Heng says that that was not his email address, but was an address of a friend who he had arranged to monitor communications for the purposes of the proceedings.  It is possible that the address used by the Registry was incorrect, because the email address, given in the substantive application, did not contain the “.au” suffix. 

10. The second email was sent by the Minister’s solicitors on 10 November 2017 at 9.21 am.  This was sent precisely to the address given in the principal application.  That email confirmed the rescheduled first court date directions on 15 November 2017 at 2.15 pm, although a location was not stated.

11. It is possible that even if that email was received by Mr Heng’s friend, Mr Heng himself did not become aware of it. 

12. In his application in a case, Mr Heng provided a different email address as well as a different physical address for service.  He told me that these addresses are his own and not those of his friend. 

13. The circumstances, as detailed by Mr Heng in his evidence, and the testing of that evidence under cross-examination, persuades me that he has provided a reasonable explanation for his non-attendance at Court on 15 November 2017.  Nevertheless, as discussed with Mr Heng during the course of oral argument, it would, in my view, be futile to reinstate the principal application. 

14. The decision of the Administrative Appeals Tribunal (Tribunal) annexed to Mr Heng’s affidavit, accompanying his principal application, discloses that the Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Heng a medical treatment visa.

15. Mr Heng had been invited to a hearing before the Tribunal, in relation to his visa application, but he did not attend.  

16. The Tribunal found that Mr Heng did not satisfy the principal criteria for the medical treatment visa because he did not hold a substantive temporary visa at the time of the application.  This meant that Mr Heng had to satisfy the Schedule 3 criteria in order to obtain the visa. 

17. As the Tribunal found, at [12] of its reasons, Mr Heng did not satisfy criterion 3001 because the visa application had not been lodged within 28 days of the relevant day, which was the day on which Mr Heng last held a substantive visa.  Indeed, he had last held a substantive visa some five years before applying for the medical treatment visa. 

18. Mr Heng has not, before me, disputed those findings.  He simply says that he was sick and that was why he applied for the visa. 

19. I am left with the firm view that Mr Heng could not qualify for the visa he seeks and the reinstatement of his principal proceedings would be futile. 

20. I will order that the application in a case filed on 28 November 2017 be dismissed.

21. In consequence of the dismissal of the application in a case, the Minister seeks an order for costs in the sum of $500.  Mr Heng indicated that he would pursue other options, presumably in relation to his visa.

22. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     8 February 2018