Khosa v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 999
•11 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khosa v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 999
File number(s): MLG 317 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 11 October 2024 Catchwords: MIGRATION– decision of the Administrative Appeals Tribunal - cancellation of visa - subclass 855 (Skilled-Independent) - non-appearance by or on behalf of the applicant pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Migration Regulations 1994 (Cth) ss 107, 375A, 476
Cases cited: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 16 September 2024 Date of hearing: 16 September 2024 Place: Melbourne Solicitor for the Applicant The applicant did not appear Solicitor for the Respondents Ms Stone, Australian Government Solicitor ORDERS
MLG 317 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP SINGH KHOSA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
11 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The application filed 8 February 2019 is dismissed pursuant to rule 13.06 (1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $5,300.00.
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).
REASONS FOR JUDGMENT
JUDGE CORBETT
This proceeding was listed for a final hearing before the Court at Melbourne at 10.00am on 16 September 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
References to “CB” pages in these reasons are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
On 8 February 2019, the applicant filed an application (Application) for judicial review pursuant to s 476 of the Migration Act1958 (Cth) (Act) of a decision of the Administrative Appeals Tribunal (Tribunal) dated 10 January 2019 (Decision). The Tribunal affirmed the decision of a delegate of the first respondent to cancel the applicant’s Skilled (Residence) (Class VB) subclass 885 (Skilled -Independent) visa (Visa).
In the Application, the applicant listed three grounds of review, as follows:
1.Unreasonableness
2.Procedural fairness
3.Inadequate considerations
No further particulars of the grounds were provided by the applicant and there was no attempt to amend the Application before the hearing. The applicant filed an affidavit affirmed 8 February 2019 in support of the Application, however, no further affidavits were filed despite an order by the Court on 20 March 2024 requiring the applicant do so on or before 5 April 2024.
The applicant is a citizen of India who entered Australia in February 2007 on a Student visa. The applicant first applied for the Visa on 16 April 2009 (CB 13–24).
The application for the Visa included a letter from the applicant dated 26 August 2008 (CB 32) stating that he had completed all compulsory modules, as well as numerous electives in order to have a comprehensive knowledge in automotive mechanical technology. It also stated that the applicant had undertaken work as an apprentice with “S S Car Care” and enclosed a letter from the employer confirming the number of hours worked with “S S Car Care”, specifying the tasks undertaken day-to-day and the tools and equipment with which he had worked. The letter stated that the applicant was a fully competent motor mechanic (CB 33–37).
On 14 June 2013, the Visa was granted by a delegate of the Minister (CB 41).
On 4 July 2014, the Minister sent the applicant a notice pursuant to s 107 of the Act notifying him that a delegate intended to consider cancelling the Visa on the basis that the skills assessment provided by the applicant was obtained by false information and a bogus document (CB 47-55).
On 5 August 2014, the applicant provided a detailed statement to the delegate in response to the notice pursuant to s 107 of the Act. In that statement, the applicant claimed that statements made by the proprietor of S S Car Care about his lack of experience and work history were a fabrication. He claimed that his application for the Visa was accurate and that he had completed all necessary qualifications and experience (CB 62-7).
On 14 August 2014, a delegate of the Minister cancelled the Visa (CB 100–15).
On 22 August 2014, the applicant filed an application for review to the Migration Review Tribunal (MRT) (CB 116–17).
On 5 June 2015, the MRT delivered written reasons for decision (CB 234 – 46) affirming the cancellation of the Visa. The MRT considered evidence given by the applicant at a hearing held on 23 February 2015, and evidence given by the applicant’s then girlfriend who was a solicitor. At the hearing, the applicant conceded that he had not worked for “S S Car Care” and that the information upon which he had obtained the Visa was false (CB 236-7). The MRT considered each of the criteria identified in r 2.41 of the Migration Regulations 1994 (Cth) (Regulations), including the applicant’s current circumstances and remorse.
The applicant then sought judicial review of the MRT decision.
On 18 August 2017, Judge McNab (as he then was) made orders by consent quashing the MRT decision due to a failure by the MRT to disclose information provided to it and the delegate, pursuant to a s 375A certificate (Certificate) issued by the Minister to the Tribunal under the Act (CB 247-8).
The application for review was remitted to the Tribunal to be decided in accordance with law.
On 10 January 2019, the Tribunal re-heard the application for review and the applicant appeared and gave evidence. On 11 January 2019, the Tribunal delivered written reasons in which the member affirmed the Decision to cancel the Visa (CB 263 –71). It is from that Decision that the applicant sought judicial review by this Court.
TRIBUNAL’S DECISION
The Decision records the disclosure of the Certificate pursuant to s 375A of the Act (CB 264 [3]) and invited the applicant to comment and make submissions regarding the validity of the Certificate. The Tribunal also considered the relevant law (CB 264-6 [4],[17]) and subsequently considered afresh each of the discretionary grounds identified in r 2.41 of the Regulations (CB 266-70 [20]–[48]). The Tribunal placed considerable weight on the applicant’s conduct in the provision of bogus documents and false statements to the delegate in his application for the Visa (CB 270-1[49]–[51]).
Whilst it is unnecessary to consider the merits of the application (and the Court has not done so), the Court notes that there is nothing in the Decision that appears inherently “unreasonable”, nor is there anything that appears to disclose a lack of procedural fairness by the Tribunal or the absence of consideration of a material fact to disclose “jurisdictional error”. The absence of proper particulars of the grounds of review could itself be the basis of dismissal (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] and WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] per Judge Lucev).
PROCEEDINGS IN THIS COURT
At the hearing in this Court on 16 September 2024, the first respondent was represented by Ms Stone, solicitor.
The applicant was called three times outside the Court, however by 10.15am, there was no appearance by or on behalf of the applicant.
I am satisfied that the applicant was notified of the hearing date by the Court at the email address nominated by him in the Application and other Court documents.
I was informed by Ms Stone that a notice of listing for hearing was sent to the parties by the Court on 12 August 2024. The notice identified the time, date and place of the hearing. Ms Stone informed the Court that she had not received any recent correspondence from the applicant.
In the circumstances, Ms Stone sought an order that the Application be dismissed for non-appearance pursuant to r 13.06 (1)(c) of the Rules. Additionally, the first respondent’s costs of the proceeding fixed in the sum of $5,300.00 and an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
In support of the Application for dismissal, the Court Book prepared on behalf of the first respondent was tendered and marked exhibit “R1”, together with an affidavit of Michelle Elizabeth Stone affirmed 29 April 2024 marked exhibit “R2”. The affidavit of Ms Stone deposed to the service of the outline of written submissions on behalf of the first respondent and the service of a copy of the Court Book on 17 April 2024 and 17 May 2022 respectively.
CONCLUSION AND ORDERS
The Court is satisfied that the applicant was notified of the hearing date, time and place. The applicant was served with the Court Book and written submissions of the first respondent and did not appear at the final hearing.
The Court is also satisfied that the costs order sought by the first respondent is reasonable and appropriate in the circumstances and is less than the applicable scale under the Rules.
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The application for judicial review filed 8 February 2019 is dismissed pursuant to rule 13.06 (1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $5,300.00.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 11 October 2024
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