IMPRAPAI v Minister for Immigration - [2005] FMCA 1712

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IMPRAPAI v MINISTER FOR IMMIGRATION

[2005] FMCA 1712

MIGRATION – Application to review decision of delegate of the respondent – whether orders made dismissing application for review in absence of applicant should be set aside.

Migration Act 1958, ss.47, 65
Migration Regulations 1994,
Federal Magistrates Court Rules 2001, rr.16.05, 13.03A(c)

Taylor v Taylor (1979) 143 CLR 1
Lie v Minister for Immigration & Multicultural Affairs [2001] FCA 1448

Applicant:

PUNTHIP IMPRAPAI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG252 of 2005

Judgment of:

Barnes FM

Hearing date:

16 November 2005

Delivered at:

Sydney

Delivered on:

16 November 2005

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the application pursuant to rule 16.05 of the Federal Magistrate Court Rules is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG252 of 2005

IMPRAPAI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed on 25 October 2005 which I take to be pursuant to Rule 16.05 of the Federal Magistrates Court Rules2001 seeking that an order made by this Court on 10 August 2005 dismissing an application for review of a decision of a delegate of the respondent pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 be set aside.
The background to this application is that on 1 September 2003, the applicant applied to the respondent's Department for a Skilled Independent Overseas Student Resident (Class DD) (Subclass 880 visa). On 2 October 2003 a delegate of the respondent wrote to the applicant informing her that the application was invalid because it did not meet the criteria prescribed by Item 1128CA of Schedule 1 to the Migration Regulations requiring that she submit satisfactory evidence of having undergone a medical examination from the appropriate health body and evidence of a criminal record check from the Australian Federal Police obtained in the 12 months preceding the application.
The applicant made a further application to the Department for such visa by letter from her migration agent dated 16 October 2003 which was stamped and received 20 October 2003. The letter stated that at the time the applicant decided to lodge her application for residence in Australia “she had sent to the Federal Police for personal check form 1101. Unfortunately, her mail was misplaced. In regarding her health examination, she contacted Health Services Australia for appointment, but she could not get the early date and also she had to postpone (for a reason stated)”. The letter asked the Department to reconsider and accept her application.
By letter dated 23 October 2003 a delegate of the Department notified the applicant that this application was invalid because it did not meet stated criteria in Item 1128CA. Relevantly, there was no evidence of a criminal record check (although it appears that there was evidence of a health check), and also the applicant did not hold a substantive visa at the time of application (her student visa having ceased on 31 August 2003) and had been an unlawful citizen since 31 August 2003.
The applicant filed an application in this court on 31 January 2005. That application sought review of the decision of 2 October 2003 (that is, the first decision of the delegate). That is made clear, not only by the reference to the date of the notification of the decision, but also from the applicant's claim that her application was returned as invalid for not providing a criminal record check and health check. She contends that that was beyond her control.
The applicant attended a directions hearing on 11 February 2005. Orders were made requiring the respondent to file and serve a green book by 25 March 2005, for the filing of the documents. The matter was listed for hearing on 18 May 2006. The solicitors for the respondent wrote to the applicant on 26 May 2005 in response to a letter which the applicant had sent to the Court stating she had not received the green book by 25 March 2005 and seeking further time to file and serve an amended application. The Registrar agreed and noted that the applicant was to write to the respondent's solicitor informing them of an extension of time to 15 June 2005 for the applicant to file and serve an amended application.
The respondent's letter of 26 May 2005 was addressed not only to a Marrickville address for service provided on the third page of the application of 31 January 2005. The applicant had also filed a notice of address for service on 5 April 2005 which confirmed that her address for service was this Marrickville address. It appears this address was the address of the applicant's migration agent. The respondent’s solicitors noted that the applicant had been served with a copy of the court book by letter dated 21 April 2005 sent to the address for service. It enclosed a further copy of the court book. Importantly the letter also notified the applicant that the respondent had filed a notice of motion seeking summary dismissal of her application and enclosed by way of service a copy of the notice of motion. It advised of the date and time and place of the hearing of the notice of motion (10 August 2005) and suggested that the applicant seek legal advice.
On 9 August 2005 a written submission from the applicant was filed with the court addressing the respondent's notice of motion seeking. In that submission it was stated that the applicant's application for a visa was made on 1 September 2003 and that the applicant wrote to the Department explaining that the health check and the police check would be sent later. The submissions also referred to the orders that were made by consent at the directions hearing in this court and contended that the green book had not been served. However the submissions acknowledged that a letter had been received in relation to the notice of motion on 10 August 2005. The written submission from the applicant provided the same Marrickville address and sought that the motion for summary dismissal be set aside and that the matter proceed to a final hearing in 2006.
However there was no appearance by the applicant on 10 August 2005. Her application for review of the delegate's decision was dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
The applicant has now filed an application seeking reinstatement of her application. In her affidavit in support, the only matter that she addresses is a claim that the detail of her application to the court is true. She has provided no explanation for her failure to appear. In light of that, and as the applicant was self represented, she was given the opportunity to give oral evidence to the Court in relation to her failure to appear. She told the Court that she did not know she had to come to Court on 10 August 2006 as she had not received any document to let her know that she had to come to Court. However she agreed that she had had an agent to help her and that all her documents and all information was supposed to be sent to the Marrickville address (which was her agent's address). She sought the sympathy of the Court and asked that there be a hearing in 2006.
The Court has power under Rule 16.05(2) of the Federal Magistrates Court Rules 2001 to set aside an order made dismissing an application, relevantly, where the order is made in the absence of the applicant. The power is expressed in general terms. It is a discretionary power. It is clear that in this case the respondent does not consent to the orders being set aside. Hence it is necessary for the Court to consider whether it is appropriate to exercise its discretion. The power must be exercised judicially and with caution, although it is not so narrow or exceptional as to be virtually non-existent. An order may be set aside where it is in the interests of justice to do so, Taylor v Taylor (1979) 143 CLR 1.
Factors to be taken into account are the reasons for non-appearance and whether the applicant is able to show that, by accident or without fault on her part, the order was made in circumstances that warrant the exercise of the discretion. It is also relevant to consider whether setting aside any order would be futile, whether there is an arguable case or question raised by the applicant in her review application. As was said by Emmett J in Lie v Minister for Immigration & Multicultural Affairs [2001] FCA 1448 in refusing to set aside a dismissal for non-appearance, it was relevant to take into account the fact that nothing indicated that the applicant had any prospect of establishing any ground for review of the decision in question.
In this instance, the applicant states that she was not aware of the hearing of the notice of motion on 10 August 2005 despite the fact that the notification from the respondent's solicitor’s was sent to the correct address for service and despite the fact that submissions were filed on her behalf on 9 August 2005 specifically addressing the notice of motion and acknowledging awareness of the hearing on 10 August 2005.
It appears that the applicant's complaint is that she was not made aware of the court date of 10 August 2005 by her migration agent on whom she chose to rely in connection with these proceedings. She told the Court her address for service was the Marrickville address of her agent and, indeed, she had confirmed that in a notice of address for service filed on 5 April 2005.
The applicant has not established that there has been any accident or other reason why the Court should form the view that she was not properly notified of the hearing on 10 August 2005 at her address for service. Nonetheless, taking the applicant's case at its highest and giving her the benefit of the doubt in relation to whether she was personally aware of the date for hearing of the notice of motion, I have considered her prospects of success in the application for judicial review. Even if it could be said that her failure to attend on 10 August 2005 was accidental or without fault on her behalf, it is relevant to have regard, as part of all the circumstances, to whether it would be futile to set aside the orders that were made on that date.
As indicated, the applicant sought review of the decision of a delegate of the respondent made on 2 October 2003. That decision was made on the basis that the application for a visa was invalid because it failed to meet criteria specified in Item 1128CA of Schedule 1 to the Migration Regulations 1994. The solicitor for the respondent has provided the court with a copy of the version of Item 1128CA in force for the period between 28 August and 23 September 2003, (that is covering the date of application by the applicant).
In relation to the relevant legislative framework, I note the operation of sections 46, 47 and 65 of the Migration Act 1958, and the Migration Regulations 1994, in particular Regulations, 2.03, 2.04 and 2.07.
The requirements of a valid application for the class of visa for which the applicant applied are set out in Schedule 1 to the Migration Regulation Item 1128CA. At the time of application (which is the relevant time) the applicable part of that item (paragraph 3(d)) was as follows:
Application must be accompanied by satisfactory evidence that: (i) the applicant has undergone a medical examination, for the purpose of the application carried out by [a specified person]; and
(ii)for an applicant who is at least 16 years old - during the 12 months immediately before the day when the application is made, the Australian Federal Police completed a check of criminal records in relation to the applicant.
The delegate found that the applicant did not meet these requirements. The applicant does not dispute that she did not provide satisfactory evidence that she had undergone a medical examination or that the Federal Police had completed a check of criminal records at the time of her application on 1 September 2003. Indeed, this is confirmed by the letter from the applicant's migration adviser dated 16 October 2003 to the Department confirming that the applicant had sent for a police check but her mail was displaced and that she had not had her health examination which she had postponed. Moreover, the decision of

23 October 2003 that the applicant’s second application was invalid had regard to the fact that she had not, as at that date provided evidence of a criminal record check (although this decision also took into account the fact that her student visa had ceased on 31 August 2003 and hence the applicant failed to meet two other criteria in Item 1128CA, not holding a substantive visa and having been an unlawful non-citizen at a time within the six months immediately prior to the application.)
In these circumstances, where the applicant does not dispute that she failed to meet applicable criteria and where there is no suggestion by the applicant (or indication in the material before the Court) that the delegate erred in any way in the decision that was made on 2 October 2003 that the application was invalid for the reasons that the delegate gave, I am satisfied that it would be futile to set aside the orders that were made dismissing the applicant's application for review. No arguable case or question is raised by the applicant or by the material before the Court. Nor is any prospect of her establishing any ground for review of the decision of the delegate of 2 October 2003 apparent.
Having considered all of the circumstances in the material before me, I am not persuaded that this is an appropriate case in which to exercise my discretion to set aside my orders under Rule 16.05. It would be futile to reinstate the applicant's application as it has not been demonstrated nor is it apparent that she has any arguable case. Thus it is not in the interests of justice to set aside the orders of 10 August 2005.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful there is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount of $600 which is sought is appropriate.

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

Associate:

Date: 1 December 2005