Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 1010

FEDERAL CIRCUIT COURT OF AUSTRALIA

Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1010

File number(s):

SYG 1683 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

4 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination Visa, permanent subclass RN, subclass 187, Regional Sponsored Migration Scheme –  Application for re-instatement of proceedings – the application for reinstatement is dismissed.

Legislation:

Migration Act 1958 (Cth) ss 357, 359

Federal Circuit Court Rules 2001 (Cth) r 13.03(C)(1)(c)

Cases cited:

Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929

Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 639

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & AAM17 & Anor [2021] HCA 6

MZYEZ v Minister for Immigration and Citizenship [2010], FCA 530

Number of paragraphs:

17

Date of last submission/s:

4 May 2021

Date of hearing:

4 May 2021

Place:

Parramatta

Solicitor for the Applicants:

The Applicant appeared in person.

ORDERS

SYG 1683 of 2019

BETWEEN:

GUL ZAIB JAVED

First Applicant

AMNA ZAHID

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	4 MAY 2021

THE COURT ORDERS THAT:

1.The application for reinstatement is dismissed. 

2.The Applicants’ are to jointly and severally pay the First Respondent’s costs fixed in the amount of $600.00.

REASONS FOR JUDGMENT
(As revised from the transcript)

JUDGE HUMPHREYS

1. This is judgement in the matter of Gul Zaib Javed & Anor (No 2) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor. Reasons for judgment in this matter are being given orally, following the decision of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & AAM17 & Anor [2021] HCA 6.

2. The applicant has also been advised that if he would like a copy of this judgment in writing, he will need to send an email to chambers and a written copy will be provided to him.

   INTRODUCTION 

3. On 14 February 2018, the first applicant applied for a Regional Employer Nomination Visa, permanent subclass RN, subclass 187, Regional Sponsored Migration Scheme.  The second applicant is the spouse of the first applicant.  The visa was refused by the Department of Immigration (“the Department”) on the basis that it was unable to establish contact with the nominated employer sponsor.  The first applicant, unsuccessfully, sought merits review at the Administrative Appeals Tribunal. The first applicant then, on behalf of both applicants’, sought judicial review in this Court. 

4. The matter was listed for hearing on a number of occasions in 2020 and 2021.  On each occasion the first applicant sought to adjourn the hearing on the basis that he was unfit to attend Court. Various medical certificates were supplied, to support the application for an adjournment.  On 26 February 2021, the Court dismissed the application pursuant to

   
   

   r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), due to the non-appearance of the applicant; (see: Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 639).

5. It is to be noted, that on 26 February 2021, no medical evidence was provided to indicate that the first applicant was unfit to attend Court, either in person, or by telephone.  This judgment should be read in conjunction with the previous judgment, as it sets out the full history of the matter.  On 14 March 2021, the applicants’ filed an Application in a Case, seeking that the orders made on 26 February 2021 be set aside, and various procedural orders be made for the matter to be prepared for hearing on a date to be fixed.  In effect, the applicants’ sought a reinstatement of their matter.  The application for reinstatement was opposed. 

   THE BASIS OF THE CURRENT APPLICATION.

6. In an Affidavit affirmed by the first applicant on 17 March 2021, he deposes inter alia, that:  “He was not assisted by a migration agent – he was not assisted by a migration agent who was a representative of the company as well”.  As a result:  “I was not aware my nomination was lodged.  In relation to the issue of why I could not attend the hearing, I respectfully submit, that I was sick, and experiencing significant symptoms of anxiety, which prevented me from representing me, on the day of the hearing.  I was not in the mind of a reasonable person.  And I, in fact, submitted the medical report from a qualified medical practitioner, Dr Shuo Zhao of Sydney Doctors.  Dr Zhao provided his medical opinion, confirming that I suffer from anxiety and mood swings.  Dr Zhao indicates that I was not in the right frame of mind representing myself in an adversarial hearing.  I submitted the evidence, and the doctor’s report as evidence of my request for a postponement and confirm my inability to attend the hearing”.

   CONSIDERATION.

7. The principles that a Court should apply, where there is an application to reinstate a matter have been conveniently set out in MZYEZ v Minister for Immigration and Citizenship [2010], FCA 530 at [7]. There are three discretionary factors.  Firstly, whether there was a reasonable excuse for the parties’ absence when the proceedings were struck out.  Secondly, the existence in nature of any prejudice that might flow to the other party, 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 order.  Thirdly, whether the applicant has a reasonably arguable prospect of success in the substantive application.  If not, there is no purpose in reinstating. 

8. In relation to the first matter, being reasons for the absence of the applicants’ when the matter was struck out, these have been comprehensively set out in the previous judgment. The first applicant was clearly on notice that if he did not appear, the first respondent would seek to have the matter struck out. Further, the first applicant was clearly on notice that any further medical certificates, bearing in the mind, the matter had been adjourned on a number of occasions previously, needed to clearly state that the first applicant was unfit to attend Court, either personally or by telephone. 

9. Dr Zhao’s medical certificate is set out in full, at paragraph 19, of the previous judgment.  All that that medical certificate did, was affirm what the Court was already aware of, that the first applicant was suffering from anxiety and depression.  The medical certificate, at no point, stated that the first applicant was unfit to attend the Court, either by telephone or in person.  Further, the first applicant did not comply with Court orders that the medical practitioner should provide any evidence in Affidavit form.  For the reasons set out in the previous judgment, the Court is not as satisfied that there was a reasonable excuse for the absence of the applicants’ when the matter was struck out in February 2021.

10. In relation to the second matter, being the nature of any prejudice to the first respondent, the Court notes that a cost order was previously been made. The court is not yet aware as to whether or not it has been complied with.  The Court thinks not.  There was no certainty,  that if the matter was reinstated and unsuccessful, that any further cost order is capable of being complied with. Whilst there has been a concession, there was no specific prejudice to the Commonwealth in respect of the matter, there is a countervailing overarching all public interest, in the finality of administrative decisions.  In Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929, at [62], Gyles J, said the following:

    [62] It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation.   This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.

11. In Re Commonwealth of Australia, Ex parte Marks [2000] HCA 67, at [15], McHugh J stated:

    [15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

12. The Court is satisfied, notwithstanding the effect of the confirmation of the decision, to refuse the first applicant his visa, that the prejudice to him outweighs the prejudice to the first respondent, and that there is a need to be an end to the current litigation.

13. The final matter concerns the prospects of success if the application were to be reinstated.  Up until this point of time, the applicants’ relied on a single ground of appeal, being that “the Tribunal failed to exercise jurisdiction, by failing to consider all aspects of my claims”.  No written submissions were supplied in respect of that ground.  At paragraphs 23 to 24 of the previous judgment, the Court indicated that without forming a concluded view, that the applicant would have considerable difficulties in succeeding before the Court, as he could not meet an essential condition precedent for the grant of a Regional Sponsored Employers visa, in that, he did not have a Regional Sponsor Employer.

14. The first applicant has filed an Amended Application, with his Application of case, which sets out two new proposed grounds of application.  The sole previous ground is still relied upon.  The proposed new grounds of review, are that:

    Ground two

    The Tribunal failed to comply with s 359AA and/ ors 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

    Particulars

    The applicant's then representatives have advised the Tribunal on 30 July 2020 that they are not acting in the case and the Tribunal has an obligation to advise this information to the applicant and should have contacted the applicant to provide time to respond to the letter issued under section 359 {2) of the MA.

    Ground three

    The Second Respondent committed jurisdictional error not advising any existence of any certificate purportedly issued under s 375A of the Migration Act 1958 and failed to advise its validity.

15. The above grounds allege certain procedural irregularities in the matter, in which the Tribunal carried out its task.  Even if they were upheld, it would be futile to admit this matter back to the Tribunal for a reconsideration as the applicant cannot succeed.  As set out above, a necessary conditional precedent for the grant of a Regional Sponsored Migration visa, is that the applicant have, a Regional Sponsor Employer.  There is no evidence before the Court that the applicant did indeed have such a sponsor.  While there was a name of a sponsor, the Department was unable to contact the sponsor to confirm the sponsorship.

16. The application in these circumstances, simply cannot succeed, even if it was reinstated. There is no point reinstating the application, as it is futile. Even if the Court is wrong in this view, the Court is not satisfied of all the circumstances, bearing that in mind, that reinstatement is a discretionary matter, and the overall history of the matter, that the reasons for the non-attendance of the applicant when the matter that was dismissed, together with the prejudices that were suffered by the first respondent, in terms of the finalisation of the matters, outweigh the other discretionary issues that the Court should reinstate the matter. 

    CONCLUSION

17. Accordingly, the application for reinstatement is dismissed.

    Written reasons requested 11 May 2021 and published 12 May 2021.

I certify that the preceding eighteen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       12 May 2021