Kumar v Minister for Home Affairs
[2019] FCCA 1400
•24 May 2019
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 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 set out in the Minister’s outline of submissions filed on 22 March 2019.
Mr Kumar is a male citizen of India born on 18 March 1989.[1] He arrived in Australia in April 2009.[2]
[1] Court Book (CB) 34
[2] CB 118
Mr Kumar lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Subclass 801 visa on 21 March 2012.[3]
[3] CB 49
On 17 January 2014 a delegate of the Minister (delegate) granted the Subclass 820 visa.[4]
[4] CB 133
On 13 November 2014 Mr Kumar provided information in support of his application for the Subclass 801 visa.[5]
[5] CB 137 to 140
On 13 February 2015 the delegate invited Mr Kumar to comment on adverse information that did not support the application for the Subclass 801 visa.[6] On 13 March 2015 Mr Kumar responded to delegate's invitation.[7]
[6] CB 165
[7] CB 191
On 8 April 2015 the delegate refused the Subclass 801 visa application on the basis that Mr Kumar failed to satisfy Public Interest Criterion (PIC) 4020.[8]
[8] CB 206
Mr Kumar applied for review of this decision to the Tribunal. On 3 March 2016 the Tribunal remitted the application for reconsideration on the basis that Mr Kumar was not required to meet PIC 4020.[9]
[9] CB 233
On 29 September 2016 the delegate invited Mr Kumar to comment on adverse information, being that the sponsor advised the relationship was contrived and that Mr Kumar was not the biological father of their child.[10]
[10] CB 258
On 15 December 2016 the delegate refused the application for the Subclass 801 visa on the basis that Mr Kumar was not in a genuine relationship with the sponsor and did not meet clause 801.221 of the Migration Regulations 1994 (Cth).[11]
[11] CB 263
On 27 December 2016 Mr Kumar applied to the Tribunal for review of the delegate's decision and advised that he was represented by a registered migration agent from Global Visa Help.[12]
[12] CB 286 to 287
On 2 March 2018, the Tribunal sent Mr Kumar an invitation to attend a hearing scheduled for 22 May 2018 at 10.00am. The Tribunal sent the invitation to Mr Kumar’s representative’s email address as provided on his application.[13]
[13] CB 314
On 15 and 21 May 2018, the Tribunal sent SMS reminders to Mr Kumar’s mobile number.[14]
[14] CB 325
On 22 May 2018 Mr Kumar did not attend the hearing,[15] and on the same date, the Tribunal dismissed the application pursuant to s.362B(1A)(b) of the Migration Act.[16]
[15] CB 326
[16] CB 332
Notification of this decision, and Mr Kumar’s rights to apply for reinstatement within 14 days, was sent by email to Mr Kumar’s migration agent on the same date. The email attached information which described the effect of s.362B(1B)-(1F) as required by s.362C(6) of the Migration Act.[17]
[17] CB 330-335
Mr Kumar did not seek reinstatement of his application under s.362B(1B) and did not make any contact with the Tribunal.
On 6 June 2018 the Tribunal confirmed its dismissal of the application pursuant to s.362B(1E) of the Migration Act[18] and notified Mr Kumar on 7 June 2018.[19]
[18] CB 342
[19] CB 338
The present proceedings
The matter was listed for a show cause hearing before me on 29 March 2019. At that time, Mr Kumar did not attend in person but the Court was successful in contacting him by telephone. The detail of what occurred on that day is set out in the transcript of the hearing, which I obtained and placed on the Court file.
Essentially, Mr Kumar told me that he had travelled to Melbourne to visit a friend and was still there at that time. He told me that he had become unwell and was unable to drive back to Sydney to attend the scheduled hearing. He provided to the Court a medical certificate, [20] which was provided by Dr Mahmood Al Nadeem, which certified that Mr Kumar was unfit for his usual occupation between 25 March 2019 and 29 March 2019.
[20] Exhibit A1
While that certificate, on its face, was inadequate in that it was silent as to Mr Kumar’s fitness to drive or attend Court, I gave him the benefit of the doubt and adjourned the show cause hearing until 2 April 2019. At that time, there was, once again, no attendance by Mr Kumar, but once again, the Court was successful in contacting him by telephone. The detail of what then occurred is contained in the transcript of the resumed show cause hearing on 2 April 2019, which I obtained and placed on the Court file.
Essentially, Mr Kumar told me that he was still in Melbourne, still unwell and still not able to drive back to Sydney. Mr Kumar read to me a further medical certificate from Dr Al Nadeem, which certified that Mr Kumar was unfit for his usual occupation on 2 April 2019 only. That was tendered in court today and is Exhibit A2. That certificate, like the first, was inadequate in that it did not speak to Mr Kumar’s fitness to drive or attend Court.
I formed the view at that time that Mr Kumar may be malingering and, in any event, I was not satisfied with his explanation for his failure to attend court. For those reasons, I dismissed the show cause application on account of Mr Kumar’s non-attendance. His Application in a Case is therefore presented in order to discharge the dismissal and cost orders.
The affidavit by Mr Kumar filed in support of his Application in a Case is not persuasive. Apart from attaching a copy of my orders and earlier documents relating to the proceedings, there is nothing in it to persuade me that the orders I made should not have been made.
I invited oral submissions from Mr Kumar this morning. He told me that he seeks some more time to contact his wife, with whom he has had no contact apparently for a considerable period of time. That appears to be his principal object in the present Application in a Case.
In my view, Mr Kumar has not advanced a persuasive case to disturb the orders I made on 2 April 2019. Even if he had, however, there is no legal merit in the show cause application and, for that reason, the present Application in a Case should be dismissed.
The merit of that application is dealt with in the Minister’s submissions. I agree with those submissions concerning the grounds of review advanced.
Ground 1
Ground 1 complains that Mr Kumar’s mental health concerns were not taken into consideration.
This ground cannot be sustained as s.362B(1A)(b) does not require the Tribunal to further consider the application or the information before it.
The Tribunal’s powers were enlivened under s.362B after Mr Kumar’s non-appearance at the hearing and that the Tribunal’s exercise of its discretion was reasonable in the circumstances.
Tribunal’s power under s.362B
Mr Kumar was invited to a hearing before the Tribunal scheduled for 22 May 2018, by letter dated 2 March 2018, pursuant to s.360 of the Migration Act.[21]
[21] CB 314-324
The hearing invitation dated 2 March 2018 complied with the requirements set out in s.360A of the Migration Act:
a)on 15 December 2016 Mr Kumar applied for review of the delegate's decision and listed his representative’s email address for correspondence.[22] On 2 March 2018 the Tribunal sent an email to Mr Kumar’s representative, inviting Mr Kumar to attend the hearing;[23] and
b)the hearing invitation advised that if he failed to attend the hearing the application could be dismissed,[24] and a document entitled “Information about hearings - MR Division”, which provided further detail regarding dismissal of applications, was attached. [25]
[22] CB 287
[23] CB 314
[24] CB 317
[25] CB 320
In circumstances where Mr Kumar was invited to attend a hearing in accordance with the statutory requirements of the Migration Act, the Tribunal’s power under s.326B(1A) was enlivened when Mr Kumar failed to attend the hearing.
Reasonableness of exercise of discretion under s.362B
Although the Tribunal was empowered to make a decision in the manner which it did, this power is discretionary and should be exercised reasonably. In the circumstances of this case, the Tribunal’s discretion was exercised in a reasonable manner noting that Mr Kumar had not otherwise engaged in the review and the Tribunal sent SMS reminders to Mr Kumar’s mobile number which did not register as failed.[26] Pursuant to the High Court’s decision in Minister for Immigration v SZVFW,[27] the Tribunal acted reasonably in deciding to proceed to make a decision without making any further attempt to make contact with Mr Kumar where the statutory procedure for inviting Mr Kumar to appear has been complied with and Mr Kumar failed to appear without explanation.[28]
[26] CB 325
[27] [2018] HCA 30
[28] See SZVFW at [67]-[71] per Gageler J; see also at [8]-[9] per Kiefel CJ and [120]-[122] per Nettle and Gordon JJ and at [140]-[141] per Edelman J
When Mr Kumar failed to apply for reinstatement within 14 days of the s.362B(1A)(b) decision, the Tribunal was bound to confirm the decision to dismiss the application under s.362B(1E) of the Migration Act. It had no discretion in this regard.
In circumstances where Mr Kumar failed to appear before the Tribunal and did not apply for reinstatement, pursuant to s.362B(1A)(b) and s.362B(1E), it was open to the Tribunal to affirm the decision under review, without considering the information before it.[29]
[29] See Singh v Minister for Immigration & Anor [2015] FCCA 2814; SZTUU v Minister for Immigration [2015] FCA 886
Ground 2
Ground 2 asks the Court to consider the application with the full set of facts. In this regard Mr Kumar seeks impermissible merits review[30] and no arguable allegation of jurisdictional error has been made by Mr Kumar in respect of the Tribunal’s decision.
[30] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh & Gummow JJ)
Non-disclosure certificates
For completeness the Minister drew to the Court’s attention the existence of four non-disclosure certificates:
a)certificate one: issued under s.376 of the Migration Act dated 14 May 2015 which notifies the Migration Review Tribunal (MRT) (as it was previously constituted) that disclosure of the identified material, being folios 215 to 216 and 233 to 236 that cover correspondence within the Minister’s Department, would be subject to the MRT’s discretion;[31]
b)certificate two: issued under s.375A of the Migration Act dated 14 May 2015 which certifies that disclosure of information contained in folio 176 would be contrary to the public interest as it covers information which could lead to injury or damage to someone;[32]
c)certificate three: issued under s.375A of the Migration Act dated 5 January 2017 which certifies that disclosure of information contained in folios 215 to 216, 233 to 236 and 275 to 281, would be contrary to the public interest because internal departmental communications were subject to legal privilege and contain sensitive legal information and disclosure of the Minister’s Department’s investigative procedures may prejudice current and future investigations of a similar nature; and
d)certificate four: issued under s.376 of the Migration Act dated 5 January 2017 which certifies that disclosure of the material, being folios 287 and 288 that contain personal information relating to a person who is not a party to the application, would be contrary to the public interest.
[31] CB 228
[32] CB 229
The non-disclosure certificates were not disclosed to Mr Kumar. Notwithstanding, in the particular factual scenario of this matter, disclosure was in my view not required.
Judge Dowdy’s decision in Singh v Minister for Immigration and Anor[33] is relevant and applicable. In Singh, as in the present matter, the applicant failed to attend a hearing and the application was dismissed under s.362B(1E) of the Migration Act. Judge Dowdy considered the presence of a s.375A certificate and concluded that the certificate was not relevant to the dismissal decision as the application was never substantively dealt with. His Honour found that the documents covered by the certificate would have been entirely irrelevant and immaterial to the Tribunal’s exercise of its discretion as to whether or not to reinstate the application before it and could not have resulted in any practical unfairness.[34]
[33] [2018] FCCA 2063
[34] At [26]
Similarly, in this case, the existence of the non-disclosure certificates and the documents covered, could not have been material to the issue before the Tribunal in this decision, where that issue was confined to whether or not the Tribunal should exercise its discretion to dismiss the application. The present matter can be distinguished from the recent High Court decisions of Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration[35] for the reasons outlined in Singh, being that the matter was never substantively dealt with.
[35] [2019] HCA 3
Accordingly, in this matter, once Mr Kumar failed to appear and the Tribunal opted to exercise its discretion under s.362B(1A)(b), the only available outcome to the Tribunal was that the application be dismissed. Therefore, no jurisdictional error arises on account of the Tribunal not disclosing the existence of the certificates to Mr Kumar.
Conclusion
I will order that the Application in a Case filed on 13 May 2019 be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,000. I made an earlier costs order on 2 April 2019. The additional costs now sought would be a very substantial component of the solicitor and own costs incurred in dealing with the Application in a Case. In my view, a reasonable and proper party-party order in respect of the present application is a fixed costs award of $2,000. Mr Kumar did not wish to be heard on the issue of costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $2,000.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 May 2019
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