Kumar v Minister for Home Affairs - [2019] FCCA 1400

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1400

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal dismissal due to non appearance – applicant failing to attend two show cause hearings in person – dismissal due to non appearance – application for reinstatement dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 375A, 376, 477

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3

Minister for Immigration v SZVFW [2018] HCA 30

Singh v Minister for Immigration and Anor [2018] FCCA 2063

Applicant:

SANJEEV KUMAR

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1822 of 2018

Judgment of:

Judge Driver

Hearing date:

24 May 2019

Delivered at:

Sydney

Delivered on:

24 May 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr S Valliappan of DLA Piper

INTERLOCUTORY ORDERS

The Application in a Case filed on 13 May 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $2,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1822 of 2018

SANJEEV KUMAR

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

I have before me an Application in a Case filed on 13 May 2019. By that application, the applicant, Mr Kumar, seeks, in effect, the setting aside of orders made by me on 2 April 2019 dismissing his show cause application under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and making an order for costs. The application is supported by an affidavit by Mr Kumar filed with his Application in a Case.
The substantive application was filed on 29 June 2018 and sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal made two decisions. The first decision was a dismissal decision made on 22 May 2018 when Mr Kumar failed to attend the hearing to which he was invited. The second decision was made on 6 June 2018 and confirmed the first decision.
The show cause application as filed by Mr Kumar only sought review of the confirmation decision. That could hypothetically have been overcome by an amended application. The application was also defective in that, while certiorari was sought, mandamus was not. That was corrected in court by me today in consultation with Mr Kumar. I proceed on the basis that, if the show cause application were reinstated, Mr Kumar would have the opportunity to amend it to seek review of the dismissal decision of the Tribunal, as well as the confirmation decision of the Tribunal, subject to an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Migration Act).
The background to the principal proceedings is…

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: [2019] FCCA 1400
Decision Date: 24 May 2019

CaseChat Overview and Summary

In *Kumar v Minister for Home Affairs*, heard before Driver J of the Federal Court of Australia, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The AAT had dismissed the applicant's application for review due to their failure to appear at two scheduled "show cause" hearings. Subsequently, the applicant's application for reinstatement of their AAT application was also dismissed.

The central legal issue before the Court was whether the AAT had erred in law by dismissing the applicant's application for review on the basis of their non-appearance at the show cause hearings, and thereafter, in dismissing the application for reinstatement. This required the Court to consider the AAT's powers and obligations under the *Administrative Appeals Tribunal Act 1975* (Cth) and relevant procedural rules when an applicant fails to attend hearings.

Driver J found that the AAT had not erred in law. The Court reasoned that the AAT had provided the applicant with adequate notice of the hearings and the consequences of non-attendance. The applicant's failure to attend both hearings, without providing a satisfactory explanation or seeking an adjournment, meant that the AAT was entitled to proceed with the dismissal of the application for review. The subsequent dismissal of the reinstatement application was also found to be within the AAT's powers, given the lack of a compelling reason to overturn the initial decision. The Court affirmed that the AAT's procedural discretion was exercised appropriately in these circumstances.

Orders