Hettiarachchige v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 871

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hettiarachchige v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 871

File number:

MLG 1452 of 2020

Judgment of:

JUDGE YOUNG

Date of judgment:

19 April 2021

Catchwords:

MIGRATION – application to reinstate – where the Registrar dismissed the application for non-appearance at a directions hearing – whether there is a satisfactory explanation for non-appearance – whether it is in the interests of justice to warrant reinstatement – application allowed.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to refuse to grant a Temporary Business Entry (Class UC) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal denied the applicant procedural fairness by failing to exercise its discretion to adjourn the matter – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 65, 363(1)(b)

Migration Regulations 1994 (Cth) sch 2 cl 457.223(4)(a)

Federal Circuit Court Rules 2001 (Cth) rr 13.03C, 16.05

Number of paragraphs:

28

Date of hearing:

19 April 2021

Place:

Darwin

The Applicant:

Appearing on his own behalf

Solicitor for the First Respondent:

Ms Stokes of Australian Government Solicitor

ORDERS

MLG 1452 of 2020

BETWEEN:

CHINTHAKA RUWAN KUMARA HETTIARACHCHIGE

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	19 APRIL 2021

THE COURT ORDERS THAT:

1.Pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) the orders of Registrar Carlton dated 14 October 2020 are set aside.

2.The Application filed on 4 May 2020 is dismissed.

3.The Applicant pay the costs of the First Respondent in the fixed sum of $3,604.00.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

Reinstatement Application

1. This is an application pursuant to rule 16.05 of the Federal Circuit Court Rules2001 (Cth) to reinstate an application made to this Court for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal).

2. A Registrar of the Court dismissed the application pursuant to rule 13.03C of the Federal Circuit Court Rules2001 (Cth) because the applicant failed to appear at a directions hearing on 14 August 2020.

3. The applicant has filed an affidavit. The substance of the affidavit asserts that he engaged in an email exchange with a solicitor from the Australian Government Solicitor, Mr Waldron, in the lead-up to the directions hearing on 14 October 2020. The purpose of the email exchange was to attempt to agree on consent orders for the directions hearing.

4. The substance of what the applicant says in his affidavit is that he understood that consent orders would be made and he would therefore not be required to attend the directions hearing. That certainly would have been the case if orders had been agreed, but they were not, as the applicant states in his affidavit.

5. The applicant was not cross-examined on his affidavit. To the extent that what he says is plausible, I accept his evidence.  In particular, in his affidavit, supplemented by oral submissions, the applicant stated that notwithstanding the email exchange with Mr Waldron, he believed he did not actually have to attend on 14 October 2020.

6. An affidavit from Mr Waldron filed on 19 April 2021 annexes the email exchange with the applicant.  It is clear that on 7 October 2020 Mr Waldron sent an email to the applicant proposing that he agree to consent orders. On 12 October 2020 the applicant indicated he disagreed with those consent orders.  On the same date, later in the day, Mr Waldron wrote to the applicant again.  The applicant replied, repeating that he would not agree to the orders. Mr Waldron completed the exchange by writing to the applicant.  I will not repeat the entirety of the letter but Mr Waldron said:

   Should you not agree to these orders, you should attend the upcoming telephone directions hearing.

7. The applicant said that he did not receive that email.  In cross-examination it was put to Mr Waldron that that was the case.  Mr Waldron said that he had not received any indication that the email had not been delivered.

8. I am ready to accept that the email was not received by the applicant, as he asserts. However, the previous emails would have made it clear to all lawyers, and probably most people, that the applicant was not relieved of the obligation to attend the directions hearing by telephone, which was the proposal set out in the email.  Nevertheless, the applicant said that he did not believe he needed to attend the directions hearing.

9. I am prepared to accept that, as a matter of fact, the applicant did not realise he needed to be present. I have come to this conclusion by taking into account his lack of fluency in English, which appears to be apparent from his submissions to me, and his lack of familiarity with Court processes.

10. I do not consider that his conduct in not appearing at the directions hearing was reasonable, rather, it was unreasonable.  However, given the fact I have found that, as a layperson, the applicant persuaded himself that he did not need to appear, I accept that there is an explanation for failing to appear.

11. Having regard to the matters I have mentioned, I propose to reinstate the application.  I do so notwithstanding the very serious reservations I have about the merits of the application.  However, the Minister does not suggest there is any prejudice in reinstating the application. Further, having regard to the matters personal to the applicant that I have mentioned, I consider that it is in the interests of the administration of justice that I reinstate the application.

12. I propose to set aside the orders of the Registrar made on 14 October 2020 including the substantive order dismissing the application and the orders for costs.

    Substantive Application

13. This is an application for judicial review arising out of a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the delegate) made on 20 April 2019 to refuse the applicant a Temporary Business Entry (Class UC) visa pursuant to section 65 of the Migration Act 1958 (Cth) (the Act).

14. The reason for the refusal was that the delegate was not satisfied that the applicant had met a relevant criterion. That is, the criterion in clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) which required the applicant to be the subject of an approved nomination from an employer.

15. The applicant sought a review of that decision and on 4 February 2020 appeared before the Administrative Appeals Tribunal (the Tribunal).  On 12 March 2020 he was invited to comment on adverse information that might be a reason for affirming the decision of the delegate.  The information provided was that the application for approval of a nomination by Char Bar Proprietary Limited (Char Bar), the applicant’s employer at the time, was refused.

16. The applicant did not respond to that invitation to comment and subsequently the Tribunal affirmed the decision of the delegate on 30 March 2020.

17. The applicant, first of all, made an application to the Federal Circuit Court for extension of time to lodge his application for judicial review.  The application was one day late. The applicant says that he had trouble with the lodgement of the application.

18. I propose to extend the time as I am satisfied, having regard to the lack of prejudice, the explanation, and the minimal delay, that it is in the interests of justice to do so.

19. The grounds set out in the application for judicial review are, and I read them in their entirety:

    1.   The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.

    Particulars:

    •The Tribunal failed to give sufficient weight to the applicant’s circumstances as to why he was not the subject of a current approved nomination.  The evidence before the Tribunal was that the applicant had a wage dispute with his previous employer and that he now works for a new employer as a chef.

    2.   The Tribunal denied the applicant natural justice and procedural fairness.

    Particulars:

    •The Tribunal failed to properly exercise its discretion pursuant to section 363(1)(b) of the Migration Act 1958 (Cth) so as to adjourn the review and to allow the applicant more time in which to demonstrate that he met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994 (Cth).

    •The Tribunal’s failure to exercise its discretion in the applicant’s favour amounted to a denial of natural justice and procedural fairness.

20. The applicant was not able to make reasonable submissions before me.  It is apparent the grounds have been drafted by some other person.  The applicant was not fluent in English, though his English was perhaps somewhat more than basic. He did not make any written submissions pursuant to this Court’s Orders. The applicant struggled to understand the issues despite my attempt to explain them to him and to discuss them with him.

21. In relation to Ground 1, the Tribunal was aware of the evidence that the applicant gave about the reason why Char Bar had not received an approved nomination.  The applicant said, and this is recorded in the Tribunal’s reasons, that he had a wage dispute with Char Bar and was now working for a new employer.

22. Given that the Tribunal gave no indication that it did not accept that explanation, it seems to me that it is not a question of weight. Rather, the real issue is that the criterion is mandatory. If there is no approved nomination pursuant to clause 457.223 of the Regulations, then the delegate and the Tribunal could not be satisfied that the requirements for the grant of a visa pursuant to section 65 of the Act were met.

23. Ground 1 shows no sign of recognising that. In my view, it is a ground that cannot succeed.

24. In relation to Ground 2, it was said that the Tribunal had a discretion pursuant to section 363(1)(b) of the Act to adjourn the application for review from time to time. It was said that the circumstances of this case enlivened the Tribunal’s requirement to consider exercising their discretion. Further, it said that the Tribunal’s failure to adjourn the matter to give the applicant time to meet the requirements of clause 457.223 of the Regulations constituted a denial of procedural fairness.

25. It appears difficult to argue that, but for the lack of an adjournment, the applicant may have had a prospect of success. This conclusion is reached due to circumstances of the matter as they are today, where the review decision was made more than a year ago (30 March 2020) and the applicant, as he submitted today, has not obtained an approved nomination from a new employer,

26. There is no evidence or indication in the reasons of the Tribunal that a request for an adjournment was made by the applicant.  On the contrary, the Tribunal noted that it received no response from the applicant in relation to its invitation to comment on the fact that the application for an approved nomination by Char Bar had been rejected.

27. In the circumstances, I am not satisfied that the applicant has been deprived of any real chance to advance an argument or been deprived of the possibility of a successful outcome in his application.  It seems evident to me that there was no proper basis for a review raised before the Tribunal, and none was sought.

28. That being the case, there was no denial of procedural fairness in the Tribunal not exercising its discretion to adjourn.  Accordingly, both grounds must fail. The application is dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       29 April 2021