Khondoker v Minister for Immigration

[2012] FMCA 355

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHONDOKER v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 355

MIGRATION – Application in a Case made pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (Cth) – whether applicant’s explanation for non-attendance at final hearing was satisfactory – whether grounds of substantive application have merit – application dismissed.

Federal Magistrates Act1999 (Cth), s.64
Acts Interpretation Act 1901 (Cth), s.25C

Khondoker v Minister for Immigration & Anor [2012] FMCA 250
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Applicant: REZAUL KARIM KHONDOKER

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2633 of 2011

Judgment of: Emmett FM

Hearing date: 24 April 2012

Date of Last Submission: 24 April 2012

Delivered at: Sydney

Delivered on: 24 April 2012

REPRESENTATION

Counsel for the Applicant: Mr R Chia

Appearing for the Respondents: Mr M Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application in a Case filed on 17 April 2012 is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $500.

NOTE A: The bundle of relevant documents identified as ‘the Court Book’ and filed on 19 December 2011 was tendered by the first respondent and marked Exhibit “1R”. 

NOTE B: The affidavits of the applicant, affirmed 17 April 2012, 23 April 2012, were read.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2633 of 2011

REZAUL KARIM KHONDOKER

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised From Transcript)

1. By Application in a Case filed on 17 April 2012 the applicant sought orders setting aside orders made by me on 20 March 2012 dismissing the applicant’s proceeding commenced by way of application filed on 17 November 2011 by failure of the applicant to appear at the scheduled final hearing of the matter.

2. At the time of the scheduled hearing, I gave reasons for the orders made in Khondoker v Minister for Immigration & Anor [2012] FMCA 250, which are as follows:

   “1. On 17 November 2011, the applicant filed an application for judicial review of a decision of the Migration Review Tribunal dated 21 October 2011. The applicant then attended a directions hearing before me on 14 February 2012, at which, inter alia, I set the matter down for hearing today at 12 noon. It is now 1.25pm and the matter has been called outside and there is no appearance by or on behalf of the applicant.

   2. I note that at the directions hearing on 14 February 2012, Mr Young of counsel appeared for the applicant. Subsequently, Mr Young informed the Court that he no longer continued to act for the applicant. There has been no other Notice of Appearance filed on behalf of the applicant as to any other legal representation.

   3. The applicant seeks an adjournment of today’s hearing on the basis of a letter dated 18 March 2012 to the first respondent’s solicitor, and also sent to the Court, stating that he is presently in Bangladesh and is seriously ill.

   4. The letter, set out here in full, states:

   ‘Dear Madam,

   Re: Rezaul Karim Khondoker v Minister for Immigration and Citizenship

   SYG 2633/2011

   I refer to the above named matter. I am the applicant in the proceedings. I am in Bangladesh and cannot come right now as I am seriously ill. I hope I will be at Sydney on or before 1 April 2012.

   On the above basis I respectfully seek an adjournment on 20 March 2012.

   Please find enclosed a medical certificate herewith for your consideration.

   Should you have any queries regarding this matter please feel free to contact the undersigned.

   Yours faithfully,

   Rezaul Karim Khondoker’

   5. The medical certificate attached to the letter is dated 17 March 2012 and states as follows:

   ‘The applicant’s application is opposed by the first respondent - the application for an adjournment is opposed by the first respondent on the basis that the applicant has failed to provide a sufficient explanation as to why he should be entitled to an adjournment this morning.’

   6. The medical certificate says no more than that the applicant was unfit to continue his usual occupation and did not give any explanation as to what, in fact, is the medical condition that would prevent the applicant from attending Court today. Nor does the medical certificate make any reference to today’s proceedings and why it is that the applicant’s medical condition would prevent him from travelling to attend today’s scheduled hearing.

   7. Further, the applicant has not filed any document in accordance with the directions made on 14 February 2012, which included an amended application giving complete particulars of each ground of review relied upon, evidence by way of affidavit and submissions to be filed 14 days before the hearing.

   8. The solicitor for the first respondent submits that in the circumstances the applicant has demonstrated a disinterest in participating in prosecuting his application. His decision to go overseas was unknown, and whilst the letter says that he hopes to be back on or before April 2012, the letter gives no explanation or reassurance that, in fact, there is a ticket booked and that he is presently to return to Sydney on a particular date. Nor does it provide any explanation for the reason why he has not been able to comply with the directions of the Court.

   9. In the circumstances I am not satisfied that the reasons given by the applicant in seeking an adjournment of today’s hearing are satisfactory and, accordingly, the applicant’s application for an adjournment is refused.

   10. In the circumstances, there being no appearance by the applicant at today’s scheduled hearing, the proceeding before this Court commenced by way of application filed on 17 November 2011 is dismissed with costs pursuant to r.1303C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the applicant’s failure to appear at today’s scheduled hearing.”

3. These reasons centred around the failure of the applicant to satisfy the Court that a medical certificate sent through from the applicant in Bangladesh to the Court the night before the hearing was a sufficient explanation to support the applicant’s application for an adjournment of the hearing.

4. In support of the orders sought in the application today, the applicant read two affidavits, the first affirmed by him on 17 April 2012 and the second affirmed by him on 23 April 2012.

5. The Minister’s solicitor, Mr Alderton, objected to both affidavits in circumstances where the applicant was not available for

   
   

   cross-examination. Mr Alderton directed the Court’s attention to s.64 of the Federal Magistrates Act1999 (Cth) (“the Act”), which states that where a person does not appear as a witness to be cross-examined with respect to matters in an affidavit, the Court is to give the matters such weight as the Court thinks fit in the circumstances.

6. In this particular case, the application and the affidavit, filed on 17 April 2012, were not served upon the first respondent, and indeed were not received by the first respondent until yesterday.

7. The applicant is represented today by Mr Chia, of counsel, who was instructed last Thursday. The affidavit, affirmed on 23 April 2012, requires leave of the Court to be filed. I propose to give leave to the applicant to file that affidavit in Court. However, I will consider the evidence of the applicant in both his affidavits in the context of s.64 of the Act.

8. The substance of the evidence in those affidavits is that the applicant was aware at the directions hearing on 14 February 2012 that he would be overseas having an operation on or around 20 March 2012. At the directions hearing on 14 February 2012, the matter was set down for hearing on 20 March 2012. There was no objection or issue raised by the applicant’s legal representative on that occasion that that date would in any way be inconvenient to the applicant. I note that the applicant himself acknowledges that he had not told his legal representative that he did not intend to be in Australia on or around that time.

9. The later affidavit, affirmed on 23 April 2012, annexe various medical certificates. I am prepared to accept that the applicant was undergoing some medical treatment in Bangladesh at around the time of the hearing. However, the applicant also deposes that he knew that his case had been set down for hearing on 20 March 2012.

10. I note that at the directions hearing on 14 February 2012, various directions were made by me, including a direction that the applicant notify the Court and the first respondent of any change of address for service or contact details immediately upon any such change.

11. On his own evidence, the applicant knew at the time of that directions hearing that he was intending to leave Australia to go to Bangladesh for some period of time. He failed to comply with the direction to notify the Court and the first respondent with further contact details prior to his departure. Further, on his own evidence as stated above, the applicant failed to tell his legal representatives. I regard that conduct by the applicant as to raise a serious question as to the commitment of the applicant to ensuring that his matter would proceed to a final hearing. As I stated in Khondoker v Minister for Immigration & Anor [2012] FMCA 250, the applicant failed to comply with any of the directions made by the Court on 14 February 2012.

12. Mr Chia has come to Court today on behalf of the applicant without a draft amended application in a form that can be properly considered. However, Mr Chia did outline for the Court the grounds that an amended application may raise.

13. Those proposed grounds were as follows:

    a)Whether or not, at the time of making his visa application on 30 June 2008, the applicant in fact made a valid application for a subclass 487 visa, despite the fact that on the face of the application it was an application for a subclass 885 visa. Mr Chia’s argument centres around various subsequent correspondence between the applicant and the Department of Immigration and Citizenship (“the Department”) about the mistake the applicant says that he made relating to the lodging of that visa.

    b)The decision of a differently constituted Migration Review Tribunal made on 4 January 2011 operated in some way as an issue estoppel against the first respondent. I note that, by consent, that decision was set aside and the matter remitted to the Migration Review Tribunal for determination according to law. Mr Chia submitted that the reasons for that remittal may be relevant and that the applicant wished an opportunity to explore those reasons. It is difficult to contemplate how those reasons could be relevant to identifying a jurisdictional error on the part of the Tribunal decision, the subject of this proceeding and none was identified by Mr Chia.

    c)There was an error in the delegate’s decision made on 19 February 2009 that contained an error relating to the statement of the law. Mr Chia submitted that, in the event that the applicant succeeded on its first ground that the delegate was required to consider the applicant’s application as if for a subclass 487 visa, then the decision of the delegate made on 19 February 2009 amounted to a refusal of the application for a visa and was therefore a Migration Review Tribunal reviewable decision.

14. Mr Chia also referred the Court to the principles in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 in support of the submission that in considering the prospects of success, the Court should regard those prospects as so far fetched that the applicant could not possibly succeed, before refusing the applicant an opportunity to have his substantial case heard.

15. The first difficulty faced by the applicant is that I am by no means persuaded that the excuse offered by the applicant was reasonable in circumstances where the applicant took no step whatsoever to notify the Court or the first respondent of his change of contact details when he left for Bangladesh. That concern is only reinforced by the applicant’s own evidence that: he knew at the time of the directions hearing on 14 February 2012 that he did not intend to be in Australia on the date on which the matter was set down for hearing; he knew that the matter had been set down for hearing on 20 March 2012; and, he took no step to advise his legal representative, the first respondent or the Court of any change in his contact details or his known intention not to attend the hearing on 20 March 2012.

16. Essentially any success of the applicant in the proposed grounds 1 and 3 foreshadowed by Mr Chia, rests in the Court being persuaded that the application received by the Department on 30 June 2008 was in substance an application for a subclass 487 visa. Mr Chia has referred to various email correspondence between the Department and the applicant in support of that contention. It is summarised as follows:

    a)Exhibit 1R discloses that, following the filing by the applicant of the application received on 30 June 2008, the Department wrote to the applicant acknowledging receipt of the application and referring to the application as an application for a class VB subclass 885 skilled residents independent visa.

    b)On 19 November 2009 the Department wrote again to the applicant referring to his application for a class VB subclass 885 Skilled Residents Independent Visa, lodged on 30 June 2008 and requesting further additional information.

    c)Thereafter, flowed email correspondence from the applicant to an officer of the Department, commencing from the applicant on 3 December 2008 informing the Department, that he had made a mistake in identifying the subclass of his visa and that it should have been subclass 487 visa.

    d)On 3 December 2008, later the same day, the Department responded to the applicant and informed him that he would need to make a new application for the subclass 487 visa.

    e)On 4 December the applicant wrote again to the Department in response asking for information in relation to the documents required for lodging a subclass 487 visa application.

    f)On 5 December 2008, the Department emailed to the applicant giving him some information about applying for such a visa and informing him that he would need to make sure that he met the criteria for that visa. On 5 December 2008, the applicant responded to that email requesting that the Department make an exception in his case and allow the present application for the subclass 885 visa to be considered as an application for a subclass 487 visa.

    g)On 6 December 2008, the Department responded to the applicant essentially refusing that request and explaining to him the various criteria required for a subclass 487 visa.

    h)On 8 December 2008, the applicant responded to that email acknowledging that he erroneously applied for the wrong visa but again asking the Department to confirm if it was still possible for him to apply for subclass 487 visa; whether he had incurred any penalty, and, whether he needed to pay for the application of a subclass 487 visa in circumstances where he had already paid for a subclass 885 visa.

    i)On 8 December 2008, the Department responded to the applicant and provided him with a web link in order to assist him in understanding his obligations in relation to an application for a subclass 487 visa. That email also informed the applicant that, while his subclass 885 visa had not been finalised, he was still in a position to withdraw it; but he was not entitled to a refund and he would be required to pay the application fee for any other visa for which he may choose to apply.

17. There is no evidence of any response thereafter from the applicant to the Department.

18. In light of that evidence and in light of the application for the visa, received by the Department on 30 June 2008, there could be no other conclusion, other than that the applicant was applying for a subclass 885 application. The correspondence shows that he was informed that he could withdraw that application. There is no evidence to suggest that he ever did so or took any further step to seek to apply for a subclass 487 visa.

19. There is no evidence of any further attempt by the applicant to explore his obligations in making an application for a subclass 487 visa. In the circumstances, proposed ground 3 identified by Mr Chia depends on the Court finding that the application was in fact a subclass 487 visa application.

20. In support of that contention, Mr Chia referred the Court to s.25C of the Acts Interpretation Act 1901 (Cth) stating that only substantial compliance of an application for a subclass 487 visa was required. However, in my view the application is clear on its face and the correspondence only makes all the clearer the fact that the applicant was not withdrawing his application for a subclass 885 visa and at no stage made a subclass 487 visa application.

21. In those circumstances, Mr Chia’s proposed grounds 1 and 3 have no, or no reasonable, prospects of success.

22. Proposed ground 2 asserted that the setting aside of earlier and differently constituted Migration Review Tribunal’s decision by consent by reason of a jurisdictional error resulted in orders for remittal. Proposed ground 2 asserted that the appellant should be able to consider the reasons for those orders. As stated above, I do not accept that those orders, or the circumstances that brought about those orders, have any, or any reasonable, prospects of establishing jurisdictional error in the Tribunal’s decision, dated 21 October 2011, the subject of this proceeding.

23. I have given Mr Chia’s submissions on the proposed grounds, and their prospects of success, careful consideration. However, I note that there is no formal draft amended application before the Court and there has been no compliance whatsoever with any direction made by this Court by the applicant.

24. In all the circumstances, and in light of the failure of the applicant to provide a satisfactory explanation for his failure to appear, I am not persuaded that the orders sought in the Application in a Case should be made and accordingly that application should be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  10 May 2012