Kaur v Minister for Immigration

[2018] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2380

Catchwords:

MIGRATION – Application for reinstatement – where Applicants did not appear for final hearing – where Applicants did not appear for hearing of the application for reinstatement – where substantive application has no reasonable prospects of success – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.13.03C

Migration Regulations 1994 (Cth), cls.500.211, 500.217

First Applicant: VEERPAL KAUR

Second Applicant: GURJANT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 683 of 2017

Judgment of: Judge Hartnett

Hearing date: 22 August 2018

Delivered at: Melbourne

Delivered on: 22 August 2018

REPRESENTATION

The Applicants: No appearance

Solicitor acting as Counsel for the First Respondent: Ms Bensted

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application in a case filed 23 July 2018 is dismissed pursuant to r.13.03C(1)(d) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicants pay the costs of the First Respondent in the sum of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 683 of 2017

VEERPAL KAUR

First Applicant

GURJANT SINGH
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court this day is an application in a case filed by the First Applicant wherein the Applicant seeks a re-instatement of her earlier proceedings. 

2. The First and Second Applicants’ earlier proceedings were concluded by dismissal order made on 17 July 2018 in circumstances where neither of the Applicants appeared on the hearing of the application. The Court made orders dismissing the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The Court further made an order for the Applicants to pay the costs of the First Respondents fixed in the sum of $5000.

3. The Court added notations to the orders of 17 July 2018. Those matters noted were as follows:-

   “A.The order made by Judge Lucev on 10 May 2018 referring the proceedings to the Melbourne Registry of the Court;

   B.The notice of listing dated 22 May 2018 sent to each of the parties by the Court;

   C.The email of today’s date, 17 July 2018, from Ms Bensted to the Applicants advising of the hearing in Melbourne and notifying the parties as to the inaccuracy of a cover letter forwarded by the solicitors for the First Respondent accompanying the First Respondent’s submissions in the matter, that inaccuracy being the requirement of an attendance by either party at the Perth Registry this day;

   D.The Court has telephoned the Perth Registry this day between 11.30 am and 12 noon to ascertain whether there was any attendance by the Applicants at that Registry this day and there was not;  and

   E.The Applicants have failed to attend at the hearing this day having being called outside the courtroom around 11.30 am and again around 12 noon.”

   On 23 July 2018, the First Applicant filed the interlocutory application in a case that the Court has before it.  In that application in a case under the heading “Orders sought”, the Applicant included the following:-

   “I am the applicant in this matter.  I had my hearing on 17 July 2018, which I didn’t attend, because I was forget that day.  Now I am requesting you please re-open my file.  Its my humble request for you.” 

   (Errors in original).

4. The application in a case is supported by an affidavit sworn by Ms Kaur on 23 July 2018.  Ms Kaur said in that affidavit, simply:-

   “I want re-open my file Agian [sic].”

5. The matter was listed for hearing this day at 9.45am. The Applicants were called outside the courtroom for the hearing of the matter at approximately 9.52am, 10.31am and 10.33am.  There was no response to the call. Ms Bensted appeared on behalf of the First Respondent throughout that period of time. 

6. In the absence of any appearance by either of the Applicants, the First Respondent sought dismissal of the application pursuant to r.13.03C(1)(d) of the Rules, and an order for costs in the sum of $800. The Court acceded to the application of the First Respondent.

7. Not only did the Applicants, or either of them, not attend the hearing this day, but there was not placed before the Court by the Applicant or Applicants any reasonable excuse for their failure to attend today’s hearing nor the substantive application hearing which preceded it. 

8. The substantive application itself has no reasonable prospects of success to justify any re-instatement application.  The grounds of review are set out in the substantive application and are as follows:-

   “1) RESPONSE TO NATURAL JUSTICE WAS NOT CONSIDERED.

   2) THE DETAILS WERE NOT COMPLETED IN ERROR.”

   Both grounds are insufficiently particularised so as to be meaningful.  On that basis alone, they fail.  Additionally, no jurisdictional error is apparent in the Administrative Appeals Tribunal’s (‘the Tribunal’)  process or in the decision of the Tribunal dated 9 November 2017, which affirmed a decision of a delegate of the First Respondent not to grant the Applicants a student visa.  

Background

1. On 10 March 2017, the First Applicant applied for a student (Class TU) (subclass 500) visa (‘the visa’).  The Second Applicant applied for the visa on the basis that he was a member of the First Applicant’s family unit.  In answer to a question on the application form, the First Applicant answered that she had never been convicted of an offence in any country. 

2. The Tribunal identified that the determinative issue on review was whether the First Applicant satisfied Public Interest Criterion (‘PIC’) 4020. The Tribunal was already satisfied the First Applicant was enrolled in an advanced diploma of business and that she, accordingly, met cl.500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

3. Having regard to the Applicant’s evidence, the Tribunal found the Applicant did not satisfy PIC4020(1). The Tribunal found the Applicant knowingly provided false or misleading information to a question in the visa application by not declaring information pertaining to a criminal conviction. The Tribunal found that information was relevant to consideration of whether the Applicant satisfied the character test referred to in PIC4020 (for the purpose of cl.500.217(1) of Schedule 2 to the Regulations).

4. The Tribunal proceeded to consider whether the requirements of PIC4020 should be waived and determined that they should not.  Those findings were clearly open to the Tribunal on the basis of the evidence before it.

5. The Tribunal complied with its statutory procedural obligations and no illogicality attended the decision.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  28 August 2018