Kumar v Minister for Immigration and Border Protection
[2019] FCA 157
•7 February 2019
FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration and Border Protection [2019] FCA 157
File number: VID 1239 of 2018 Judge: O'CALLAGHAN J Date of judgment: 7 February 2019 Catchwords: MIGRATION – application for an extension of time – application refused Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Kumar v Minister for Immigration and Border Protection and Anor [2018] FCCA 2448 Date of hearing: 7 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Mr Cunynghame of Sparke Helmore ORDERS
VID 1239 of 2018 BETWEEN: JATIN KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
7 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for extension of time be dismissed.
2.The applicant pay the first respondent’s costs to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
These reasons for judgment were made ex tempore at the hearing on 7 February 2018 and accompany the orders set out above.
On 27 September 2018 the applicant filed an application in this court for an extension of time within which to appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia, (the Federal Circuit Court), made on 5 September 2018 and published as Kumar v Minister for Immigration and Border Protection and Anor [2018] FCCA 2448. The applicant had been required by rule 36.03 of the Federal Court Rules 2011 (Cth) to file and serve a notice of appeal by 26 September 2018, being 21 days after the date when the judgment and orders of the primary judge had pronounced the orders. The applicant was required to file and serve written submissions by 24 January 2019, but has not done so.
At the commencement of the hearing this morning I asked the applicant, who appeared without the benefit of a legal representative, whether he wished to say anything in support of his application. The applicant requested an adjournment of the hearing of this application in order to permit him to retain a lawyer. I declined to grant that application because the applicant had only approached a lawyer with a view to assisting him in that regard yesterday. Having declined that application I afforded the applicant an opportunity to say anything in substance about his application, but he declined to do so.
APPLICATION FOR AN EXTENSION OF TIME
The first respondent, (the Minister) concedes that the application for an extension of time, relating only to a one day delay, should be dealt with by focusing on the merits of the proposed grounds of appeal. That concession is properly made. In the scheme of things, one day is hardly of any consequence, and the Minister does not point to any prejudice that might result from the granting of the extension sought. However, for reasons that I will now give, the proposed grounds of appeal are without merit and the application for an extension of time will, accordingly, be refused.
BACKGROUND
I will now turn to consider the factual background to the application. The applicant is a citizen of India. He arrived in Australia in March 2014 as the holder of a Higher Education Sector visa (subclass 573) (the HES visa). That HES visa was cancelled on 31 October 2014. On 18 February 2015 the applicant applied for a Partner (Temporary) class UK (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa (partner visa). That application was made more than 28 days after his student visa was cancelled.
Regulation 820.21 of the Migration Regulations 1994 (Cth) (the Regulations) provides as follows:
820.21 Criteria to be satisfied at time of application
[…]
(2) An applicant meets the requirements of this subclause if:
[…]
(d) in the case of an applicant who is not the holder of a substantive visa — either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Schedule 3 criteria 3001 requires an application to be made within 28 days of holding a substantive visa. The application having been made more than 28 days after the holding of the HES visa, the partner visa could only be granted if the applicant could establish “compelling reasons” for doing so.
The applicant claimed, before a delegate of the Minister charged with the task of determining whether to grant the partner visa, that compelling reasons existed, in substance, because at the relevant times his partner had been suffering from depression and other health issues and that he was not able to study at that time. The delegate considered that evidence, among other things, and on 30 October 2015 refused to grant to the applicant the subclass 820 visa (and subclass 801 visa). The subclass 820 visa was refused on the basis that the delegate was not satisfied that the applicant met the schedule 3 criteria contained in the regulations. The subclass 801 visa was refused because the applicant did not hold, and never had held, a subclass 820 visa at the time of decision, which was a requirement for the grant of a subclass 801 visa.
On 16 November 2015 the applicant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision to refuse to grant him the subclass 820 visa. On 21 January 2016 the Tribunal wrote to the applicant inviting him to attend a hearing on 19 February 2016. The invitation indicated that arrangements had been made for the hearing to be conducted by video link from Brisbane to Sydney, as the Tribunal Member was in Sydney. The invitation letter continued:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or information before us.
On 28 January 2016 the applicant wrote an email to the Tribunal saying that he would not be able to attend the hearing due to his financial situation. On 29 January 2016 a representative of the Tribunal spoke to the applicant and told him that the hearing would take place in a Magistrates Court building in Queensland. The applicant told the representative that he lived in Melbourne and it would, accordingly, be difficult for him to attend the hearing in Queensland. The applicant was told, during that same conversation, that the Tribunal would organise a hearing in Melbourne instead.
On 1 February 2016 the Tribunal wrote to the applicant in response to his request for a postponement of that hearing. The letter advised that the Tribunal hearing would take place at the Tribunal in Melbourne. That letter contained the same language as the 21 January 2016 letter, set out above, about the need for the applicant to notify the Tribunal if he was unable to attend that hearing.
On 12 February 2016 the Tribunal sent the applicant an SMS reminding him of the scheduled hearing date and time. Five days later, on 17 February 2016, the applicant sent to the Tribunal a medical certificate which asserted that the applicant was unfit to work between 17 February 2016 and 21 February 2016. The applicant noted on the bottom of that medical certificate that he had had bad back pain and may not attend the hearing on 19 February 2016.
On 17 February 2016 the Tribunal wrote to the applicant advising that it had rescheduled the hearing to 4 March 2016. That letter again contained the same statement reminding the applicant that if he was unable to attend that hearing he should advise the Tribunal as soon as possible. On 26 February 2016, and then again on 3 March 2016, the Tribunal sent to the applicant’s mobile telephone SMS reminders advising him of the date and time of the hearing scheduled for 4 March 2016. The Tribunal did not receive responses to those messages. The applicant did not attend the hearing on that scheduled hearing day, namely 4 March 2016.
On 11 March 2016 the Tribunal wrote to the applicant telling him that because he had failed to attend the hearing scheduled on 4 March it had decided to dismiss the application for review. It provided the applicant with a copy of the statement of its decision in that regard. The applicant was informed that he could apply to the Tribunal, in writing, for reinstatement of his application by 29 March 2016. The applicant did not respond to the Tribunal’s letter dated 11 March 2016, and at no time made any application for reinstatement of his application.
On 1 April 2016 the Tribunal wrote to the applicant confirming its decision to dismiss the application for review. The Tribunal’s reasons read as follows:
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 October 2015 to refuse to grant to the applicant, Mr Jatin Kumar, a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).
2. On 9 March 2016 the tribunal dismissed the application under s.362B(1)(b) of the Act as Mr Kumar did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. Mr Kumar was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). Mr Kumar was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. As Mr Kumar did not apply for reinstatement of the application within the 14 days (sic) period, the tribunal must confirm the decision to dismiss the application.
DECISION
5. The tribunal affirms the decision under review.
On 6 April 2016 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The hearing took place before the primary judge on 5 September 2018. The primary judge, in her reasons, had regard to the arrangements made to accommodate an accessible location for the applicant to attend the Tribunal, the adjournment of the hearing due to his apparent medical condition, the applicant’s failure to attend the hearing, the SMS notices, and his failure to appear before the Tribunal together with the fact that the applicant did not seek reinstatement of his application.
In essence, the primary judge found that the applicant had given no satisfactory explanation for his non-appearance at the hearing and that no medical evidence had been provided to substantiate his claim that he was ill and unable to attend. The primary judge noted that all of the Tribunal’s correspondence with the applicant was by way of email and SMS messages. The emails, and there was no dispute about this, were sent to the email address that the applicant had provided to the department, and that was the same address that the applicant had used to communicate with the department. The primary judge found that the Tribunal was “proactive in attempting to remind the applicant about the scheduled hearing.” The primary judge found that the applicant’s grounds of application did not identify any jurisdictional error.
The grounds of appeal proposed to be made in this court, should the application for an extension of time be granted, are unconventional, which is entirely understandable in circumstances where the applicant has not been assisted by a lawyer. The proposed grounds of appeal, as counsel for the Minister submitted, resemble a submission which variously asserts that the Tribunal should have taken into account the applicant’s exceptional circumstances, and that the Tribunal should have contacted the applicant when he failed to appear at the Tribunal hearing, noting his poor health.
The applicant contends, doing the best one can and putting the case at its highest for the applicant, in the proposed grounds of appeal that the Tribunal should have contacted him or his partner before the hearing date because he fell sick. That is simply not consistent with the facts. As the primary judge noted at [35] of her reasons, and as my recitation of the facts above shows, the Tribunal was proactive in reminding the applicant about the scheduled hearings, including by the sending of the SMS reminders. It is difficult to imagine what else the Tribunal could or ought to have done in that regard.
The applicant next contends that he should have been given a second chance but, as the factual history recorded above shows, he was given a second chance.
The applicant next contends, putting the purported ground of appeal at its highest, that there was no evidence before the primary judge that the Tribunal had made attempts to call the applicant or his partner. Again, as the undisputed facts recorded above and relied upon by the primary judge show, there is ample evidence of that very thing.
The applicant next contends that the primary judge did not “assess his case against the case laws.” The following decisions are then cited: Waensila v Minister for Immigration and Border Protection [2015] FCCA 2276, Bains v Minister for Immigration and Citizenship (2012) 205 FCR 217, Berenguel v Minister for Immigration and Citzenship (2010) 84 ALJR 251, and Boyake-Danquah v Minister for Immigration, Citizenship and Multicultural and Indigenous Affairs 116 FCR 557.
Insofar as that may be taken to be a ground of appeal it cannot succeed because it is wholly unparticularised. I also note that it was not a contention raised before the primary judge and that the applicant would need leave to rely on the ground in any event. But the ground has no merit to it, and the cases that the applicant cites are irrelevant here in circumstances where the applicant was afforded, by the Tribunal, the opportunity to reinstate his application and he declined to do so. In those circumstances, the Tribunal did not err in dismissing it, but was bound to do so (see s 362B(1E) of the Migration Act 1958 (Cth).
For those reasons, none of the purported grounds of appeal remotely suggests appellable error. I have no alternative, therefore, but to dismiss the application for extension of time, with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 19 February 2019
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