KAUR v Minister for Immigration

[2015] FCCA 1777

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1777

Catchwords:
MIGRATION – Refugee Review Tribunal – proceeding dismissed for
non-appearance – application for reinstatement – reasonable prospects of success – proceeding reinstated.

Legislation:
Federal Circuit Court Rules, r.13.03C(1)(c)

Cases cited:
Collector of Customs (NSW) v Brian Lawler Automotive (1979) 41 FLR 338; (1979) 2 ALD 1; (1979) 24 ALR 307

First applicant: SANDEEP KAUR

Second applicant: AMANDEEP SINGH

Third applicant: DILSAHEB SINGH GARCHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 784 of 2014

Judgment of: Judge Riley

Hearing date: 11 June 2015

Date of last submission: 11 June 2015

Delivered at: Melbourne

Delivered on: 11 June 2015

REPRESENTATION

Counsel for the first applicant: The first applicant appeared in person

Solicitors for the first applicant: The first applicant was not represented

Counsel for the second applicant: The second applicant appeared in person

Solicitors for the second applicant: The second applicant was not represented

Counsel for the third applicant: The third applicant did not appear

Solicitors for the third applicant: The third applicant was not represented

Advocate for the first respondent: Christopher McDermott

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The orders made on 30 April 2015 be set aside.

2. The proceeding filed on 29 April 2014 be reinstated.

3. The matter be listed for final hearing on 14 July 2015 at 10.00am.

4. The applicants file and serve any affidavit and written submissions on or before 30 June 2015.

5. The first respondent file and serve any affidavit and written submissions on or before 7 July 2015.

6. The parties’ costs of today be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 784 of 2014

SANDEEP KAUR

First applicant

AMANDEEP SINGH

Second applicant

DILSAHEB SINGH

Third applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to reinstate an application to review a decision of the Migration Review Tribunal (“the tribunal”). The matter was listed for hearing on 30 April 2015. On that occasion the applicants did not appear. The matter was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules. 

2. The applicants applied for reinstatement on 27 May 2015.  They said in their supporting affidavit that they did not have the money to pay a lawyer to appear for them on 30 April 2015.  They said that, since then, they had borrowed some money and wanted to get a lawyer to represent them. 

3. In court today the applicants were unrepresented.  They said that they had tried to find some lawyers but they all asked for too much money.  They sought further time to be able to find a lawyer within their budget. 

4. I am not satisfied that the applicants’ explanation for their

   
   

   non-attendance is sufficient.  Many people appear before this court without legal assistance.  Their claims that they will be able to find a lawyer are unconvincing.  If they had been able to afford a lawyer, it seems likely that they would have had a lawyer appear for them today. 

5. In any event, the more significant issue is whether it is reasonably arguable that there is a jurisdictional error in the tribunal’s procedure or decision. 

6. The applicants applied for a skilled graduate visa.  The Department of Immigration wrote to the applicants on 21 May 2012 noting that they applied for a skilled graduate visa and asking for further information to be provided.  That letter also said that the applicants could withdraw their application in writing.  The letter was responded to by a lawyer.  The lawyer, Mr Italiano, said by email on 4 June 2012 that he was acting for the applicants.  He said that his clients were victims of fraud.  He said that the application was not valid and that the applicants had not intended to apply for a skilled graduate visa.  Mr Italiano sought additional time to provide evidence of the fraud. 

7. The first applicant provided to the Department a statutory declaration made on 9 June 2012 in which she said that:

   a)she had intended to obtain an extension for her student visa;

   b)the agent she approached, S & S Migration, told her that he would assist her to get a visa that would enable her to work full-time;

   c)he took $2,500 from her credit card;

   d)he did not mention anything about a Trades Recognition Australia Assessment;

   e)she did not see the agent again;

   f)she did not see the application that was made in her name;

   g)she went to the agent’s office later but there was a lock on the door;

   h)she went there several times but always found that the office was closed;

   i)she was later contacted by the Department which said that she had provided a bogus document and false and misleading information;

   j)she then sought advice from Mr Italiano;

   k)she subsequently discovered that the agent had lodged an application on her behalf without identifying himself as her agent; and

   l)contrary to the documents contained in the application, she had never undertaken a skills assessment and had not completed a course at Baxter Institute. 

8. The delegate of the Minister rejected the application.  The reasons for that decision include the fact that the first applicant did not have competent English.  The reasons do not address the issue of the alleged fraud. 

9. The applicants then applied for review by the tribunal.  In doing so, the applicants were represented by Mr Italiano.  The tribunal conducted a hearing which appears to have lasted about 10 minutes.  The tribunal rejected the application.  The reasons for that were primarily that the first applicant did not have competent English.  The tribunal decided that it was not necessary to consider the further question of whether she met the skills assessment criterion. 

10. The tribunal noted that the first applicant had claimed that she had been a victim of migration fraud.  The tribunal also noted, in paragraph 18 of its reasons, that Mr Italiano had submitted that the tribunal lacked jurisdiction due to the alleged fraud of S & S Migration.  The tribunal said that it had considered these submissions but said that no detailed submissions or evidence was provided by the applicant. The tribunal did not acknowledge that there had been a statutory declaration made by the applicant on 9 June 2012. 

11. The application to this court filed on 29 April 2014 said that:

    a)the applicant was not satisfied with the decision of the tribunal;

    b)the applicant had been a victim of fraud by S N S Migration;

    c)the agent had applied for the visa without informing the applicant; and

    d)the agent had put misleading information in the application.

12. The Minister submitted that there was no jurisdictional error.  The Minister submitted that it was open to the tribunal to find that there was a valid application before it.  The Minister submitted that, even if the delegate’s decision had been invalid, the tribunal still had jurisdiction to consider that decision on the principle in Collector of Customs (NSW) v Brian Lawler Automotive (1979) 41 FLR 338; (1979) 2 ALD 1; (1979) 24 ALR 307.

13. The question for the court today is whether the applicants have a reasonably arguable case.  It seems to me that the applicants do have a reasonably arguable case that there was jurisdictional error on the part of the tribunal.  The tribunal said that there were no detailed submissions or evidence before it.  In fact, there was what I would consider to be detailed evidence in the form of the statutory declaration made by the first applicant on 9 June 2012. 

14. The Minister submitted that that was not a jurisdictional error that went to the consideration of the visa criteria.  However, that does not appear to me to be the issue.  If the tribunal had fully considered the evidence that was before it, it is possible that the tribunal would have concluded that the visa application to the Minister was invalid. It is possible that the tribunal would then have set aside the delegate’s decision.  If the tribunal had done that, it is possible that the delegate would have decided that the application was vitiated by fraud. Alternatively, the applicants could, at that point, have withdrawn their application.

15. I note that the applicants were put on notice at the outset and before the delegate’s decision that they could have withdrawn their application.  That is obviously what they should have done if their claims are true.  However, the fact that they did not follow that course does not necessarily mean that there was no jurisdictional error on the part of the tribunal. 

16. The Minister has also said there is no utility in sending the matter back to the tribunal.  However, for the reasons already explained, there is a possibility that remitting the matter to the tribunal could result in a positive outcome for the applicants.

17. The Minister has also said that the difficulties that the applicants would face in applying for another visa if the visa refusal remains on their record could be overcome on another application in another place at another time.  However, that does not appear to me to be sufficient reason to not do what ought to be done in this case at this time.

18. Although the applicant’s reasons for not appearing in the court on

    
    

    30 April 2015 are inadequate, it seems to me that the possibility of there being a jurisdictional error in the tribunal’s reasons for decision is sufficiently arguable for the proceeding to be reinstated.  There will be an order to that effect.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  29 June 2015