Kancharla v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 497
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kancharla v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 497
File number: MLG 3525 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 16 June 2023 Catchwords: MIGRATION LAW – Partnership Visa – Applicant did not appear at the Tribunal – Dismissal of application without any further consideration of the application or information before the Tribunal – Applicant did not apply for reinstatement of application within prescribed period – Tribunal confirmed the decision – Tribunal notified the Applicant in accordance with the statutory requirements – No failure to give the Applicant an opportunity to be heard – Application dismissed – Order against lawyer for costs thrown away in circumstances of lawyer’s default in meeting obligations under the Rules causing adjournment Legislation: Migration Act 1958 (Cth) ss. 360, 362, 362B, 362C, 368A, 379A, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 9.03, 22.06
Cases cited: Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 624
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
Khancharla v Minister for immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 383
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
MZXLW v Minister for Immigration and Citizenship [2007] FCA 912
SZEKQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 390
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submissions: 7 June 2023 Date of hearing: 10 May 2023 and 7 June 2023 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 3525 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VENKATESWARA RAO KANCHARLA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
16 June 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $5000.00.
3.Ms Noeline Smart pay the First Respondent’s costs thrown away because of the adjournment on 10 May 2023 fixed in the amount of $1,160.00.
4.Order 3 be stayed until further order.
AND THE COURT NOTES THAT:
A.Ms Noeline Smart of Sky Legal has until 4:00 pm on 23 June 2023 to contact my chambers if she wishes to be heard on any matter arising from Order 3.
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
JUDGE CHAMPION:
INTRODUCTION AND SUMMARY
By an application filed 22 November 2018, Mr Venkateswara Kancharla (Applicant) seeks judicial review of an Administrative Appeals Tribunal (Tribunal) decision pursuant to s. 476 of the Migration Act 1958 (Cth) (Act).
Pursuant to s.362B(1A)(b) of the Act, the Tribunal dismissed the Applicant’s application for review of a decision of a delegate of the Minister (Delegate) after the Applicant did not attend the Tribunal hearing scheduled for 4 October 2018 (non-appearance decision). The Applicant did not apply to have the review application reinstated and the Tribunal confirmed its decision to dismiss the application on 22 October 2018 pursuant to s.362B(1E) of the Act (confirmation decision).
The judicial review application will be dismissed for the reasons set out below.
BACKGROUND
The Applicant is a citizen of India and is currently 37 years old (CB2).
He arrived in Australia on 18 November 2008 on a Student Visa (Subclass 572). The Applicant was subsequently granted another student visa until it ceased on 6 January 2011.
The Applicant subsequently applied for a combined Partner (Temporary) (Subclass 820) visa and Partner (Permanent) (Subclass 801) visa (Partnership Visa) on 13 March 2014 on the basis of his relationship with an Australian citizen (CB1–30).
DELEGATE DECISION
On 17 January 2017 the Delegate refused to grant the Partnership Visa (after the Tribunal had remitted an earlier decision for reconsideration). The Delegate was not satisfied that the Applicant was in a relationship with the Australian citizen (CB471).
TRIBUNAL DECISION
On 2 February 2017 the Applicant applied for review of the decision of the Delegate (CB494–95).
On 17 September 2018 the Tribunal invited the Applicant to attend a rescheduled hearing on 4 October 2018 via email to his representative in accordance with s. 360 of the Act (CB518). The Tribunal attached an information sheet (Information Sheet). The Information Sheet contained information on the consequences of non-attendance, including that in the event of the Applicant’s non-attendance, the Tribunal could dismiss the application without any further consideration of the application or information before the Tribunal. Two text messages were sent to the Applicant on 26 September 2018 and 3 October 2018 respectively, reminding the Applicant of the scheduled hearing (CB522–23).
The Non-Appearance Decision
The Applicant did not attend the scheduled hearing on 4 October 2018. Following the hearing invitation, neither the Applicant nor his representative contacted the Tribunal to seek an adjournment of the hearing before 4 October 2018. The Tribunal made the non-appearance decision on 4 October 2018 (CB533–34). The Tribunal held as follows (CB534, [7]):
In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal acted in accordance with s. 362B(1A)(b) of the Act. It set out its reasons for exercising the discretion to proceed without further consideration of the application. It was satisfied that the invitation for the hearing had been sent to the representative’s email address, that the Applicant had been properly notified of the hearing, and that there had been no request for a postponement of the hearing (CB534, [4] – [5]).
The Confirmation Decision
By letter dated 5 October 2018 sent to his representative’s email address, the Applicant was notified of the non-appearance decision (CB527–30). The Tribunal informed the Applicant that: “you may apply to us, in writing, for reinstatement of the application by 19 October 2018” (CB529). The Tribunal sent necessary documents which described the effect of sections 362B(1B) to (1F) including notifying the applicant that “if you fail to apply for reinstatement within the 14-day period, we must confirm the decision to dismiss the application” (CB530–31).
The Applicant did not apply for reinstatement within 14 days (by 19 October 2018) nor otherwise contact the Tribunal after the non-appearance decision was made.
On 22 October 2018 the Tribunal made the confirmation decision whereby it confirmed the decision to dismiss the application (CB539). In making the confirmation decision, the Tribunal acted in accordance with s. 362B(1E) of the Act.
JUDICIAL REVIEW APPLICATION
By an application filed on 22 November 2018, the Applicant seeks judicial review of the confirmation decision (CB 540–46). I treated the application as an application in respect of both the non-appearance decision and the confirmation decision.
Despite orders made on 18 September 2020 which provided the Applicant until 28 days before the hearing to file and serve any amended application, supplementary court book and/or written outline of submissions, the Applicant has not filed any further documents in support of his case.
The Applicant seeks judicial review on three grounds. I have sequentially dealt with the three grounds below.
CONSIDERATION
In oral submissions to the Court the Applicant submitted that he regretted not attending the hearing at the Tribunal. Further, he said that his reasons for not attending the Tribunal were a result of the fact that he was in a stressful situation in his personal life. He acknowledged that he had not communicated that fact of his non-attendance to the Tribunal.
Ground 1: Did the Tribunal fail to notify the Applicant of the non-appearance decision in accordance with legislative requirements?
Ground 1 is as follows:
That the Tribunal made jurisdictional error as it failed to consider the s362C(5)
Particulars
The Tribunal erred in not considering 368A1(d)(a)(b)
Read beneficially, by Ground 1 the Applicant appears to contend the notification of the non-appearance decision was invalid because it did not comply with the relevant legislative requirements. The reference to s. 368A is unclear.
The notification of the non-appearance decision made on 4 October 2018 met statutory requirements. I note the Tribunal:
(a)sent notification within time: the Tribunal sent notification of the non-appearance decision within 14 days of the it being made on 4 October 2018: s. 362C(5)(a);
(b)It sent notification to the Applicant by one of the methods permitted in s 379A (namely, by email): s. 362C(5)(b) and s. 379A(5)(b);
(c)sent notification to the right place: the notification was sent to the Applicant’s last email address: s. 379A(5)(d); and
(d)sent necessary accompanying documents: the Tribunal sent a statement describing the effect of subsections 362B(1B) to (1F), and notified the Applicant of his ability to apply for reinstatement and the effect of not doing so: s. 362C(6) (CB530–31).
Ground 1 has not been made out.
Ground 2: Did the Tribunal breach any statutory requirement in s.362B(1A)(b) of the Act?
Ground 2 is as follows:
The Tribunal erred in failing to consider that the delegate was imparting its own observation and knowledge without any basis in law and fact.
Particulars
The delegate at page 2 of the decision stated that “Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
Whether the Applicant appeared before the Tribunal on the day on which, or at the time and place at which, the Applicant was scheduled to appear is a question of fact: MZXLW v. Minister for Immigration and Citizenship [2007] FCA 912, [12]. The Applicant makes no meaningful challenge to the fact that he did not appear at the Tribunal on 4 October 2018. As a result, the Tribunal acted in accordance with its statutory powers under s. 362B(1A)(b).
It is possible that Ground 2 is also a contention that the Tribunal’s statutory discretion under s. 362(1A)(b) was not reasonably exercised. The statutory discretion under s. 362(1A)(b) must be exercised reasonably. In its reasons, the Tribunal noted: “a hearing invitation had been sent to the Applicant’s nominated representative’s email address; the invitation had not been returned to sender; there had been no request for a postponement of the hearing; and that two separate SMS reminders had been sent to the Applicant” (CB533–34, [3] –[6]). There was an evident and intelligible foundation for the Tribunal’s decision to proceed as it did. The Tribunal’s statutory discretion was reasonably exercised.
Ground 2 has not been made out.
Ground 3: Did the Tribunal fail to give the Applicant an opportunity to be heard as explained in the High Court’s decision in Bhardwaj?
Ground 3 is as follows:
The Tribunal failed to consider applying the case of a majority of the Full Court of the Federal Court in […] MIMA v Bhardwaj [2000] FCA 789 failure to give a review applicant an effective opportunity to be heard.
I infer that by Ground 3 the Applicant intends the Court to focus on the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597. Bhardwaj is readily distinguishable from the current case. In Bhardwaj, by reason of an administrative error, a communication from the Applicant that he was ill and unable to attend the hearing did not reach the Tribunal. By reason of that administrative error, the Tribunal affirmed the Delegate’s decision to cancel the applicant’s visa (the first decision). When after that first decision was made, the Tribunal learned of the administrative error it convened a second hearing and made a second decision. The Tribunal had always intended to accord the applicant procedural fairness and conduct a substantive review of the Delegate’s decision. The administrative error which led to the first decision did not prevent it from making the second decision. In Bhardwaj, Gleeson CJ held at [15]:
In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.
In this case, unlike Bhardwaj, the Applicant did not communicate to the Tribunal that he would not attend the scheduled hearing on 4 October 2018. After the non-appearance decision, he did not seek to reinstate his application by contacting the Tribunal within 14 days being an opportunity which the statute provided. The Tribunal acted in accordance with statutory processes set out in s. 362B(1A)(b) and s. 362B(1E).
Ground 3 has not been made out.
CONCLUSION
The non-appearance decision involved the exercise of a discretionary power available to the Tribunal to progress a review application in circumstances where the Applicant, having been properly notified of the hearing, failed to appear at that hearing: Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 624 at [44]. Relatedly, in the absence of any request by the Applicant for reinstatement, the Tribunal had no lawful ability to do otherwise than to make the confirmation decision: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10].
The application must be dismissed, with costs. I have fixed costs at $5,000.00 as sought by the Minister, which is less than the scale in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Costs thrown away as to previous adjournment
There is one residual issue as to costs thrown away arising from the previous adjournment of this matter.
On 10 May 2023 this matter was adjourned. I published reasons in Kancharla v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 383. In summary, Mr Kancharla who appeared on his own behalf on 10 May 2023 submitted and provided documents which indicated that his lawyers had only told him that they intended to withdraw on 8 May 2023, two days prior to the hearing.
An issue arose as to whether the Applicant’s lawyer had withdrawn without giving not less than 7 days’ notice to the applicant of an intention to do so in accordance with r. 9.03 of the Rules.
I reserved the First Respondent’s costs thrown away by reason of the adjournment. The First Respondent seeks costs thrown away by reason of the adjournment on 10 May 2023 fixed in the amount of $1,160.00. There is an issue as to whether any order for costs should be made against the Applicant or against his previous lawyer.
Rule 9.03(2) is as follows:
9.03 Withdrawal as lawyer
[…]
(2) However, a lawyer may not file or serve a notice of withdrawal without leave of the Court unless the lawyer has, not less than 7 days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.
Rule 22.06(1) is as follows:
22.06 Order for costs against lawyer
(1)The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
Rule 22.06(2)(d) of the Rules provides that:
(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
[…]
(d) to do any other act necessary for the hearing to proceed.
Ms Smart, the Applicant’s previous lawyer, lodged a “Notice of Ceasing to Act” form with the Court on 8 May 2023 which was accepted for filing on 9 May 2023 (the day before the matter was listed for hearing).
On 9 May 2023 my Chambers contacted Ms Smart via email requesting confirmation as to whether she had served a notice of intention to withdraw on the Applicant in accordance with r. 9.03(2) of the Rules. Ms Smart promptly emailed my Chambers on 9 May 2023 (9.20am) confirming she had complied with r. 9.03(2) of the Rules.
On 10 May 2023 when the Applicant during the hearing submitted that he was not so notified, and that he learned of his lawyer’s intention to withdrawal only on 8 May 2023, my Chambers again contacted Ms Smart requesting that she provide a copy of any notice of intention to withdraw she provided to the Applicant. Ms Smart did not respond to that email. A notation to the orders on 10 May 2023 which adjourned the matter until 7 June 2023 provided that Ms Smart be provided with a copy of the orders made on 10 May 2023.
Lawyers for the First Respondent emailed Ms Smart on 5 June 2023 and noted that if Ms Smart did not appear at the adjourned hearing on 7 June 2023 to address the relevant issue and provide evidence of her compliance with r. 9.03 they would seek an order that costs thrown away be paid by Ms Smart personally: Exhibit R1.
The Applicant has attended court and provided evidence (telephone screenshots) and submissions that Ms Smart only notified him of her withdrawal on 8 May 2023. Following her first email dated 9 May 2023 (9.20 am), in which she asserted that she had complied with the Rules, Ms Smart has not responded to communications from my Chambers as to her compliance with the Rules or attended court (despite invitation) to put any submissions which contest her former’s client’s account. As a result, on the basis of the material before me I am satisfied that Ms Smart only notified the Applicant that she intended to withdraw as the Applicant’s lawyer on or about 8 May 2023, two days before the matter was last scheduled for hearing. The effect of her not serving a notice of intention to withdraw not less than 7 days before filing her notice of withdrawal per r. 9.03(2), combined with the timing of her withdrawal on 8 May 2023, was that the Applicant had no opportunity to prepare himself or obtain alternative representation for the hearing on 10 May 2023, resulting in the adjournment.
Rule 22.06(2)(d) provides that a lawyer may be in “default” if a hearing may not proceed conveniently because the lawyer has unreasonably failed to do any other act necessary for the hearing to proceed. In my view, Ms Smart’s failure to serve a notice of intention to withdraw on the Applicant not less than 7 days before filing her notice of withdrawal as required by r. 9.03(2) and withdrawing one or two days before the hearing was an unreasonable failure in the absence of an explanation. If there is a reasonable explanation, Ms Smart has not provided that explanation to the Court despite being given an opportunity to do so. The result was that the 10 May 2023 hearing had to be adjourned because the Applicant did not have sufficient time to make necessary alternative arrangements for the hearing to proceed.
The Court ought to proceed with caution and discretion before making a personal costs order: SZEKQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 390, [20]. Further, the primary object of such an order is not to punish the lawyer but to protect the client who has suffered and to indemnify the party who has been injured: SZEKQ, [16]. The backlog of migration cases in the Court’s list is well-known. An adjournment of a matter in this way results in costs thrown away and inconvenience for other litigants waiting for their cases to be heard. One discernible purpose of rule 9.03(2) which requires the service of a notice of intention to withdraw not less than 7 days before filing the notice of withdrawal is to permit the person for whom the lawyer acts time to make alternative arrangements. Ms Smart’s default in this case did not permit her former client to make alternative arrangements and necessitated the adjournment of the matter on 10 May 2023. It is appropriate that there be a personal costs order because of the costs occasioned by Ms Smart’s late withdrawal without prior notice of intention being given to her client in time for him to make alternative arrangements. I note I have still not heard from Ms Smart. Because the court ought to proceed with caution, I propose to make a notation to the orders to give Ms Smart 7 days in which to advise my Chambers if she wishes to be heard on the matter, in which case the matter will be relisted solely as to that issue. I will stay the order as to costs against her personally until further order. If Ms Smart does not notify my Chambers that she wishes to be heard within 7 days, the stay on the personal costs order will be lifted.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 16 June 2023
0
7
0