Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 290
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 290
File number(s): MLG 1052 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 22 March 2023 Catchwords: MIGRATION LAW – application for reinstatement – dismissal for non-attendance – consideration of whether it is in the interests of the administration of justice to grant application – where attendance at incorrect location accepted as a reasonable explanation for non-attendance at hearing and prejudice to the Minister can be alleviated by costs order – balanced against lack of reasonable prospects of success of applicant’s substantive application for review of Registrar’s decision – where applicant’s visa application was not accompanied by Australian Federal Police criminal history check as required by the Migration Regulations 1994 (Cth) – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 17.05
Migration Regulations 1994 (Cth), cl 485.213
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 22 March 2023 Place: Melbourne Counsel for the Applicants: The First Applicant appeared in person on behalf of the First and Second Applicants Solicitor for the First Respondent: Mr J Simpson of Clayton Utz ORDERS
MLG 1052 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVNEET KAUR
First Applicant
HARMANJIT SINGH BOPARAI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
Deputy chief JUDGE MERCURI
DATE OF ORDER:
22 MARCH 2023
THE COURT ORDERS THAT:
1.The applicants’ application for reinstatement filed on 20 December 2022 be dismissed.
2.The applicants pay the first respondent’s costs fixed in the sum of $1,000.
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).
EX TEMPORE REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
INTRODUCTION
Before the court is an interlocutory application filed by the first applicant[1] on 16 December 2022, in which she effectively seeks the reinstatement of her application for a review of the registrar’s decision.
[1] Hereafter referred to as ‘the applicant’.
PROCEDURAL BACKGROUND
Briefly, by way of procedural background, the applicant’s application for judicial review of a decision to refuse her visa application was determined by a judicial registrar on 29 September 2022.
Application for review of the registrar’s decision on 6 October 2022
The applicant filed an application for a review of the registrar’s decision on 6 October 2022.
That review application was listed for hearing before me on 20 October 2022. On that occasion the applicant did not attend court and the matter was adjourned to 14 November 2022.
On that date, namely, 14 November 2022, the applicant again did not appear and the review application was dismissed for non-appearance.
First application for reinstatement on 22 November 2022
The applicant filed an application for reinstatement on 22 November 2022, essentially seeking that her review application be reinstated. The application for reinstatement was listed for hearing on 13 December 2022.
When the matter was called on, on 13 December 2022, the applicant again did not attend court and the reinstatement application was dismissed for non-appearance.
Second application for reinstatement on 16 December 2022
On 16 December 2022, the applicant filed a second application for reinstatement which was listed before me today. The applicant appeared today and represented herself.
The applicant stated that on 13 December 2022, she did attend court, but was late to the hearing as she had attended the wrong court building by mistake. By the time she found the correct court building and courtroom, the matter had been dealt with and her application dismissed for non-appearance.
In relation to her non-appearance on 14 November 2022, the applicant provided an affidavit filed on 22 November 2022, in which she stated that she had asked her ex-husband to attend court on her behalf at that time as she was ‘mentally stressed out’, and that she had understood that he would do this. She also told the court that she was in the process of separating at that time and that was also another reason for her not attending.
APPLICATION FOR REINSTATEMENT
The court has the power to set aside a judgment or order after it has been entered if, among other things, it was made in the absence of a party.[2] This would effectively permit the court to reinstate the applicant’s application for a review of the judicial registrar’s decision. The principles which the court must consider in deciding whether to set aside an order dismissing an application for non-appearance are well-settled.
[2] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 17.05(2).
In essence, the court has a broad discretion, but in exercising that discretion must effectively consider whether it is in the interests of the administration of justice to make the orders sought, and that includes considering the explanation for the non-appearance, whether there is any prejudice to the other party and whether the applicant has a reasonably arguable prospect of success in the substantive application.
Explanation for non-appearance in November and December 2022
In terms of the explanation for non-appearance both on the December and November dates, I accept the applicant attended the wrong court on 13 December 2022, and that this is a reasonable explanation for her non-appearance prior to the matter being disposed of. I am also prepared to accept the applicant’s explanation as to why she did not attend the initial hearing in November 2022.
Prejudice to the Minister
As to prejudice, whilst there is some prejudice to the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) of numerous attendances in this matter, that prejudice can be alleviated by a costs order in the Minister’s favour.
Prospects of success of substantive application
However, for the following reasons, the applicant has no reasonable prospects of success in the substantive application and, therefore, in my view, it is not in the interests of the administration of justice to reinstate the applicant’s application for a review of the registrar’s decision.
As stated, the substantive application is a review of a registrar’s decision to summarily dismiss the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). As such, the substantive review application would proceed by way of a hearing de novo, that is, the court would need to consider the Minister’s summary dismissal application afresh.
In summary, the Minister relies upon his written submissions filed in the review application, and essentially states that the applicant’s substantive application has no reasonable prospects of success. As I say, for the following reasons I agree.
Application for visa on 13 August 2017
The applicant applied for a visa on 13 August 2017. No evidence of any application to the Australian Federal Police (‘AFP’) for a criminal history check was provided together with the application.
Indeed, in her submissions today the applicant conceded that that was the case, although she says that this was because she was under a mistaken belief that she did not need to do so at that time and that she could provide the criminal history check later.
On 6 October 2017, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy clause 485.213 of the Migration Regulations 1994 (Cth) (‘the Regulations’), which relevantly provides:
(1) When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
The applicant sent an email on 7 October 2017, in which she said that she had applied for a police check on 28 August 2017, but had not submitted it.[3] This was after the delegate’s decision and just before the applicant filed her application for a review before the Tribunal.
[3] Court book at page 32.
Application for review in the Tribunal on 14 October 2017
The applicant sought a review of the delegate’s decision by application made on 14 October 2017 before the Tribunal, and attached to that application for review was a copy of the first applicant’s national police certificate dated 28 August 2017.
In written submissions to the Tribunal, the applicant’s representative also conceded that the applicant had not applied for the police check on or before 13 August 2017, but rather had applied on 27 August 2017, and said that this was due to a genuine mistake on her part. The applicant has been consistent in this proposition. The applicant’s representative also provided a receipt of the first applicant’s AFP check dated 27 August 2017.
The applicant attended a hearing before the Tribunal on 18 March 2018, and after that hearing the Tribunal confirmed the delegate’s decision and found that the applicants each applied for a police check after applying for the visa, and therefore the applicants did not satisfy the requirements of subclauses 485.213(1)(a) and (b) of the Regulations as there was no evidence accompanying the visa application that the applicants had applied for the AFP checks within the 12 months immediately before the applications were made.
The only issue in this case is whether the applicant’s visa application was accompanied by evidence that the applicants had applied for the police check as required by clause 485.213 of the Regulations in the 12 months prior to the visa application. That issue is an objective and temporal one.
Even if there is some flexibility as to what ‘accompanied by evidence’ means, that flexibility is not infinite and it certainly does not extend to providing evidence after the decision by the delegate was made.
In this case, as I say, the application for a visa was made on 13 August 2017. The applications for police checks were lodged on 20 and 17 August 2017, but no evidence was provided of such applications having been made until 7 October 2017, after the delegate’s decision.
In those circumstances, there is no jurisdictional error in the Tribunal’s decision to affirm the delegate’s decision and the applicant does not have reasonable prospects of success in their review application.
CONCLUSION
For these reasons, I therefore dismiss the applicant’s application filed on 16 December 2022.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 22 March 2023
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