Kaur v Minister for Immigration - [2020] FCCA 2610

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2610

Catchwords:
MIGRATION – Show cause application – temporary student visa – where delegate not satisfied applicant was a person who genuinely intended to remain in Australia temporarily – where applicant notified of hearing – where applicant advised she would proceed before Tribunal – where applicant failed to appear before Tribunal for hearing – where applicant failed to apply for reinstatement within 14-day limitation period – applicable principles – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.67, 68
Migration Act 1958 (Cth), ss.65, 352, 357A, 360, 360A, 361, 362B, 362C, 379A, 379G, 426A, 476.
Migration Regulations 1994 (Cth), cl.573.223
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:

Applicant:

HARPREET KAUR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1949 of 2018

Judgment of:

Judge A. Kelly

Hearing date:

16 September 2020

Date of Last Submission:

16 September 2020

Delivered at:

Melbourne

Delivered on:

23 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr C. Oldham

Solicitors for the Applicant:

Mr Hargobind Singh Jholl

Solicitor advocate for the Respondents:

Ms F. Lay

Solicitors for the Respondents:

Mills Oakley

ORDERS

Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to r 44(1)(a) of the Federal Circuit Court Rules 2001, the amended application dated 4 September 2020 be dismissed.
The applicant pay the costs of the first respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1949 of 2018

HARPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2610
Decision Date: 23 September 2020

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by the applicant, Ms Kaur, against the Minister for Immigration. The dispute arose from the Administrative Appeals Tribunal's decision to dismiss Ms Kaur's application for review of a delegate's decision regarding her temporary student visa. The delegate had not been satisfied that Ms Kaur genuinely intended to remain in Australia temporarily.

The primary legal issue before the court was whether the Tribunal's decision to dismiss Ms Kaur's application for review due to her non-appearance at the scheduled hearing, and its subsequent confirmation of that dismissal, were lawful. This involved considering whether Ms Kaur had been afforded procedural fairness and whether the Tribunal had correctly applied the relevant provisions of the Migration Act 1958 (Cth) and associated regulations concerning non-appearance and the process for seeking reinstatement of an application.

The court found that Ms Kaur had been properly notified of the hearing and advised of the consequences of non-attendance, including the possibility of dismissal without further consideration. The Tribunal had also provided clear information regarding the 14-day period within which an application for reinstatement could be made, and the consequence of failing to do so. Despite Ms Kaur later providing an affidavit stating she was unwell with influenza on the day of the hearing, the court noted that this explanation was not provided to the Tribunal at the time, nor did it suggest any other reason for her non-appearance or lack of awareness of the hearing. The court concluded that the Tribunal had acted within its powers and that the applicant had not been denied procedural fairness.

Consequently, the court dismissed Ms Kaur's application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 13 June 2018, the Tribunal dismissed the application for review (non-appearance decision) and confirmed that decision on 5 July 2018 (confirmation decision). The Tribunal gave reasons for each of those decisions (Reasons). On 14 June 2018, the Tribunal notified the applicant’s agent of its non-appearance decision and informed her that she could apply for reinstatement of her application but that the application must be made before 28 June 2018. An information sheet provided to the applicant informed her that if she failed to apply for reinstatement within the 14-day period, the Tribunal must confirm the decision to dismiss the application. The applicant did not apply for reinstatement of the application for a merits review of the delegate’s decision. On 5 July 2018, the Tribunal notified the applicant’s agent of its confirmation decision made on that date. The applicant was provided copies of the Reasons for each of the Tribunal’s decisions. By its non-appearance decision dated 13 June 2018, the Tribunal noted:a)the applicant had been invited to appear before the Tribunal under s 360 of the Act, and advised that if the applicant ‘did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before the Tribunal’: [1];b)the applicant had been sent two SMS reminders: [2];c)upon there being no appearance and having reviewed the file, the Tribunal was satisfied the applicant had been properly invited to a hearing in accordance with s 379A(5): [3];d)detailed submissions had been filed by the applicant’s agent together with a completed hearing form confirming the applicant’s intention to appear at the scheduled hearing: [4];e)no explanation had been given for the non-appearance: [4];f)the Tribunal decided to dismiss the application without further consideration of the application: [5]. By its confirmation decision dated 5 July 2018, the Tribunal found that:a)the applicant had been notified of the decision to dismiss her application and provided a copy of the decision and the reasons for that decision;b)the applicant was advised that ‘reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for a reinstatement within the 14 day period would result in confirmation of the dismissal decision’: [3];c)as the applicant had not applied for reinstatement of the application within the 14 day period, ‘the decision under review is taken to be affirmed’: [4]. On 5 July 2018 (being the date of the Tribunal’s confirmation decision), the applicant filed an application for judicial review of the Tribunal’s non-appearance decision together with an affidavit sworn by the applicant to which she exhibited a copy of the Reasons for that decision and deposed that on 13 June 2018, she had been unwell with influenza and unable to get out of bed. Her affidavit did not suggest any other reason why she had not attended the hearing or seek to suggest that she was not aware of the scheduled hearing date.

Ratio Decidendi

Legal Principle Established

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