Jha v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 92
Federal Circuit and Family Court of Australia
(DIVISION 2)
Jha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 92
File number(s): MLG 180 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 9 February 2023 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of India – refusal of Student visa
PRACTICE AND PROCEDURE – Where no appearance by applicant at final hearing – where applicant advised of final hearing by email – where no appearance at directions hearing – where calls to applicant unanswered – where no attempt to join videolink
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Act 1958 (Cth) ss 360, 362B, 362C, 476
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of last submission/s: 9 February 2023 Date of hearing: 9 February 2023 Place: Perth Counsel for the Applicant: No appearance Counsel for the First Respondent: Ms Harradine via CISCO Webex Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 180 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMITKUMAR AMARNATH JHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 24 January 2018 be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The applicant pay the first respondent’s costs fixed in the sum of $5,400 by 9 March 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
This is a matter in which the applicant, Mr Amitkumar Amarnath Jha (“Mr Jha”) has not appeared at the hearing listed for today. The application before the Court is one for judicial review (“Judicial Review Application”) filed on 24 January 2018 pursuant to s 476 of the Migration Act 1958 (Cth) Mr Jha. Mr Jha seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision”) made on 9 January 2018. That Tribunal Decision affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) not to grant Mr Jha a Student (Temporary) class TU Higher Education Sector subclass 573 visa (“Student Visa”).
The relevant background is that Mr Jha is a citizen of India who arrived in Australia as a holder of a student visa. He held various student visas over the course of 2008 to 2015. He was subsequently refused a temporary work visa and then in 2016 applied for the current Student Visa. The Delegate’s Decision was to refuse the Student Visa noting that Mr Jha, had undertaken, it would appear, no less than 17 separate courses in the time that he had been in Australia for 11 years, and the Delegate came to the view that Mr Jha did not meet the requirement that he intended genuinely to stay temporarily in Australia and found that Mr Jha was using the student visa program to prolong his stay in Australia.
Mr Jha applied to the Tribunal for review of the Delegate’s Decision. In so doing he completed the relevant form inputting his migration agent’s details and providing an email address, which the Court will refer to as the “Agent’s Email”. The Court also notes that a mobile telephone number ending in 518 was provided for the purposes of the Tribunal review application, and that was Mr Jha’s personal telephone number. Mr Jha was sent a hearing invitation by the Tribunal in the usual form (“Hearing Invitation”) and on 2 and 8 January 2018, that is, a week and a day prior to the Tribunal hearing which was set down for 9 January 2018, he was sent SMS reminders of the Tribunal hearing on the mobile number provided in the review application, which as the Court has indicated was his personal mobile telephone number.
Mr Jha did not respond to the Hearing Invitation and the Tribunal made a decision to dismiss (“Dismissal Decision”) his Student Visa application and sent advice of that to Mr Jha’s agent on the Agent’s Email. That advice sent on 9 January 2018, the same day as the Dismissal Decision, indicated that Mr Jha had a right to apply to reinstate the Student Visa application if he applied to the Tribunal within 14 days of receiving notice of the Dismissal Decision. Mr Jha did not do so and on 25 January 2018 the Tribunal, therefore, confirmed the Dismissal Decision and sent to Mr Jha’s migration agent on the Agent’s Email the Confirmation Decision and a notification of the Confirmation Decision to dismiss the Tribunal review application. The Tribunal’s Confirmation Decision in respect of the Dismissal Decision noted that Mr Jha was invited under s 360 of the Migration Act to appear before it.
The Tribunal also had sent SMS reminders to Mr Jha in the form the Court has indicated, being one on 2 January 2018 and one again on 8 January 2018. These were sent to Mr Jha on the mobile number provided in his review application. Mr Jha did not appear before the Tribunal at the scheduled time and place and the Tribunal was satisfied that he had been invited to the hearing, that there was no satisfactory reasons for the non-appearance and it was in those circumstances that it decided the Confirmation Decision to dismiss the review application and in the Confirmation Decision the Tribunal noted that the application before it was for the purpose of reviewing the Delegate’s Decision, noted that Mr Jha’s application had been dismissed under s 362B(1A)(b) of the Migration Act 1975 when he did not appear to give evidence or present arguments at the date and time for the scheduled Tribunal hearing on 9 January 2018.
The Confirmation Decision also noted that Mr Jha was notified of the Dismissal Decision and was given a written statement setting out the Dismissal Decision and the reasons therefore in accordance with s 362C(5), of the Migration Act, and that he was also advised with respect to reinstatement in the terms that the Court has already outlined and that he failed to apply for reinstatement and it, therefore, indicated that the Delegate’s Decision was taken to be affirmed, and it confirmed the Tribunal Decision to dismiss the review application.
Mr Jha then applied to this Court in the Melbourne Registry on 24 January 2018. It is unnecessary to say anything more with respect to that other than it is well-known that there have been significant delays in the Melbourne registry in listing migration matters of this type for hearing. Although this matter was listed initially for hearing in Melbourne, that hearing was then vacated, and almost three years after it was vacated it was allocated to a Judge in the Perth Registry of the Court for hearing. That was in November 2021, and in November 2021 Orders (“November 2021 Orders”) were made which included orders for Mr Jha to file and serve certain documents by 23 June 2022, which included any amended application and any affidavits and written submissions, and provided for the matter to be listed before the Court on 18 August 2022 by video link, and also noted that if Mr Jha did not appear at the final hearing the application may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (“GFL Rules”) Commonwealth.
Subsequently on 25 July 2022 the presiding Judge’s Chambers emailed the parties to advise that due to reasons associate with judicial hearing workloads and outstanding judgments, it was necessary to relist the final hearing in the matter to today. Yesterday, that is, 8 February 2023, detailed advice was sent to the parties, including Mr Jha, as to how to join today’s hearing. The Court also notes that the Minister has forwarded to Chambers a copy of an email sent to Mr Jha indicating that if he failed to appear, then the Minister would, as the Minister has, apply for dismissal of these proceedings for non-appearance. The Court also notes that Mr Jha failed to file any amended application, any affidavits or any written submissions as he was entitled to do pursuant to the Court’s November 2021 Orders.
The Court also notes that in addition to not endeavouring to join the hearing, that Mr Jha was sought to be contacted by the Associate on the telephone number being his personal telephone number ending in 518 immediately prior to the Court being called into session, and that calls to that number elicited no response other than that the number was not answering and that the caller should call again at a later time. In the above circumstances, the Court is satisfied that Mr Jha has had every opportunity to participate in this hearing.
Mr Jha also had every opportunity to participate in the Tribunal Hearing and to have the Tribunal’s Dismissal Decision set aside, but he has failed to do so, and has also failed to participate in today’s hearing before the Court, and in those circumstances the Court is satisfied that it is appropriate to exercise the discretion under r 13.06(1)(c) of the GFL Rules to dismiss the application for non-appearance, noting that that (dismissal for non-appearance) was a matter of which Mr Jha, was put on notice by reason of the November 2021 Orders where a note to the effect that the application may be dismissed for non-appearance was put on to the orders, and also noting that the Minister sent yesterday the email to which the Court has referred, that the application may be dismissed for non-appearance if Mr Jha did not appear today. In the circumstances there will be orders in the terms which the Minister seeks.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 13 February 2023
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