Kalinoviene v Minister for Immigration and Citizenship
[2012] FCA 305
•21 February 2012
FEDERAL COURT OF AUSTRALIA
Kalinoviene v Minister for Immigration and Citizenship [2012] FCA 305
Citation: Kalinoviene v Minister for Immigration and Citizenship [2012] FCA 305 Appeal from: Kalinoviene v Minister for Immigration & Anor [2011] FMCA 760 Parties: LIUDMILA KALINOVIENE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 1888 of 2011 Judge: NORTH J Date of judgment: 21 February 2012 Date of hearing: 21 February 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: Mr S Churches Solicitor for the Appellant: Audix Legal Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1888 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LIUDMILA KALINOVIENE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
21 FEBRUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1888 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LIUDMILA KALINOVIENE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
21 FEBRUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before the Court is an appeal from orders made by the Federal Magistrates Court on 6 October 2011. The federal magistrate dismissed an application for review of a decision of the second respondent, the Migration Review Tribunal, made on 8 March 2011. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellant and her son Partner (Temporary) (Class UK) visas.
The notice of appeal stated:
The Learned Federal Magistrate erred in law in finding that the Tribunal had not committed reviewable error in that it failed to allow the Appellant the opportunity to make response to the case against her, in the context of serious errors of fact in the case prepared against the Appellant.
The notice of appeal is obviously inadequate and fails to comply with the Federal Court Rules 2011 (Cth). The grounds of the appeal were explained in an outline of submissions filed by the appellant. However, these submissions did not enlighten the Court of the essential issues on the appeal.
The first respondent filed submissions in writing which had the effect of clarifying some of the issues referred to in the appellant’s outline. Indeed, at the commencement of the appeal, Mr Churches, who appeared as counsel for the appellant, explained that he was persuaded not to pursue some of the arguments set out in his outline as a result of the explanations and argument in the first respondent’s outline. That is, to say the least, an unusual circumstance. Nonetheless it had the effect that arguments concerning the operation of s 359A and s 359AA of the Migration Act 1958 (Cth) were not pursued.
In the end, the appellant’s only argument before the Court was over the failure of the Tribunal to adjourn the hearing scheduled for 11 February 2011. The notice of appeal did not specify the basis upon which the appellant contested the decision of the Tribunal to refuse the postponement. However, the appellant’s written submissions suggested that the denial of procedural fairness arose from the Tribunal’s refusal to adjourn in circumstances where a Medical Officer of the Commonwealth (MOC) had on 9 November 2011 reported that it was plausible that the appellant’s condition could be aggravated by attending the Tribunal and recommended that her condition be reassessed in a few months.
In the interests of justice and in order that the appellant not suffer as a result of the lack of preparation and attention to the requirements of the appeal process, the Court explored with Mr Churches various possible ways in which an argument of jurisdictional error might be formulated to accommodate this concern about the Tribunal’s decision. In the end, in light of the discretion vested in the Tribunal to refuse an adjournment, it became obvious that there was no viable argument open to the appellant. Yet again this conclusion was assisted by the cogent oral submissions made by Mr Reilly who appeared for the first respondent. Mr Reilly contended that the federal magistrate was correct in finding that it was not procedurally unfair for the Tribunal to refuse the appellant’s request for an indefinite adjournment having formed the view that there was no prospect that her condition would improve in the foreseeable future and having not received any disagreement from the appellant about this view.
In the face of those submissions and the resignation of the Court from any further attempt to formulate the case for the appellant, counsel for the appellant quite rightly accepted that there was no viable ground of appeal available in respect of the decision to refuse the adjournment of the hearing before the Tribunal.
It is to be hoped that this type of situation can be avoided in the future. It involves an unnecessary waste of time, energy and resources on the part not only of the forlorn appellant but also of the respondents and the Court.
In this case the appellant was represented by lawyers at each stage. Had some challenge been made to the form of the notice of appeal at an earlier stage the deficiencies in the arguments available to the appellant would have been exposed. If it lies in the scope of the first respondent’s capacity to isolate or to identify cases of such nature before they are listed for trial, then it would be useful if an application were made to strike out the matter or have the notice of appeal amended in order to avoid this situation.
The order of the Court is that the appeal is dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 27 March 2012
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