Panth v Minister for Home Affairs

[2020] FCCA 1640

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANTH & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1640

Catchwords:
MIGRATION – Application for adjournment of judicial review of a decision of the Administrative Appeals Tribunal to refuse the applicants a Subclass 485 visa – where the applicants claim the migration agent representing them at the time never received notification of the Tribunal hearing – where the matter has been adjourned twice part heard to allow applicants to consider the issue of subpoena to oblige the migration agent to appear before the Court – where the applicants have not issued a subpoena and the migration has not appeared – application for adjournment is dismissed.

Legislation:

Migration Act 1958 (Cth), s.379A

First Applicant: UMA PANTH

Second Applicant: RAMESH SHARMA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 94 of 2018

Judgment of: Judge Young

Hearing dates: 13 February 2020, 5 & 12 June 2020

Date of Last Submission: 12 June 2020

Delivered at: Darwin

Delivered on: 12 June 2020

REPRESENTATION

The first Applicant: In person

The second Applicant: In person

Counsel for the First Respondent: Ms N. Milutinovic

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application for adjournment is refused.

2. Judgment is reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 94 of 2018

UMA PANTH

First Applicant

RAMESH SHARMA

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made in relation to an application for a visa by the applicants.  The grounds of review essentially are that the applicants did not receive any notification of the hearing by the Tribunal in circumstances where the applicants were represented by a migration agent at material times.  It was asserted that the Administrative Appeals Tribunal denied the applicants procedural fairness by proceeding to dispose of the matter in their absence after their failure to attend the scheduled hearing.

3. The Minister has relied upon copies of an email directed towards the applicants’ migration agent advising of the hearing and has tendered a copy of an email sent to the agent on 2 January 2018, giving notice of the proposed hearing on 13 February 2018. The notice does appear to comply with the requirements in the Migration Act for notification of a hearing.

4. There is no evidence that the email was rejected or returned and the Minister relies upon, factually, the court drawing an inference that there is nothing to indicate:

   a)That the notice was not given to and received, in due course, by the migration agent.

   b)The Minister also relies on the provisions of the Migration Act, particularly section 379A and associated sections to assert that those sections create an irrebuttable deeming of adequate service on the applicants.

5. When the matter first came before me on 13 February 2020 as the applicants unfolded their argument I suggested to Ms Panth that if her case was that the migration agent, Mr Joshi, had never received notification, then it would be necessary to produce an affidavit from Mr Joshi.  I also told her that if he was reluctant to appear she would need to consider the issue of subpoena to oblige him to appear, whether by telephone or otherwise.  When the matter came back before me on 5 June 2020 the applicants had filed an affidavit from Mr Joshi which, handwritten, simply said:

   I did not receive any email for Uma Panth and Ramesh Sharma from Immigration from their subclass (485) visa on my email inbox when I was representing them as an immigration agent.

   That is all it said.

6. When the matter came on last week, seven days ago on 5 June, Ms Milutinovic for the Minister indicated, as she had previously indicated to the applicants, that she wished to cross-examine Mr Joshi on that affidavit.

7. Ms Panth gave evidence on 5 June that until seven or eight days before, on 27 May, she had been under the impression that Mr Joshi would make himself available to be cross-examined by telephone and he had indicated that to her prior to 27 May.  She said, on 27 May, Mr Joshi told her for the first time that he was not willing to make himself available.  That narrative was, essentially, unchallenged by the Minister and I accept it as truthful. 

8. The applicants sought an adjournment at that stage to give a subpoena to Mr Joshi.  The adjournment application was not dealt with on 5 June because we ran out of time, with the matter being set down for two hours in the morning and even though I was able to continue in the afternoon the matter was adjourned for a week.  In the interim the applicants have not sought the issue of a subpoena to Mr Joshi.  Had there been an application, I would have made an order for the short service of a subpoena.  That did not occur. 

9. What did occur was that Mr Joshi sent a letter to my chambers and apparently Ms Panth was aware of this letter.  She told me that Mr Joshi said that he would write but she had not seen the letter.  She has, in fact, now seen it.  The letter says:

   This is to confirm that I will not be able to attend the hearing (in person or online) as I suffer from anxiety disorder (GAD – Generalised Anxiety Disorder). 

   Situations like court settings or being called upon to address in any settings has always been a trigger for my anxiety since 2013 from the time I was involved in a bitter family court case with my ex-wife for the custody of my children that lasted for almost five years.

   I have already stated in my affidavit what I need to say in regards to this case and I have nothing more to add.  

   I have attached an old letter from my treating psychologist.  If you need a current one I will be able to provide it too.  I do have other psychologist reports on my condition.  If need be, happy to provide them to the court. 

   Sorry for the inconvenience. 

   Thanking you,

   Rajesh Joshi.

10. There is a report dated 18 April 2016 attached to that email headed Confidential Psychological Report that refers to Mr Joshi.  It says, and I quote:

    Mr Rajesh Raj Joshi was referred by his treating doctor (Dr Subhash Verma) for assistance in addressing symptoms of anxiety and depression.  I have seen Mr Joshi on thirteen (13) occasions. 

    Diagnosis: Adjustment disorder with mixed anxiety (in early remission).

11. The letter goes onto talk about Mr Joshi being overworked.  There is nothing in the letter to suggest that Mr Joshi would be unable to appear by telephone to be cross-examined and I am not satisfied that any of that material provides a reasonable excuse for his refusal to give evidence.  I am satisfied from reading that material that Mr Joshi has not a satisfactory explanation for absenting himself and that the most likely explanation is he does not wish to cooperate with the court processes. 

12. I did, today, cause my associate to telephone Mr Joshi at the number we had and again there was no answer from that number so Mr Joshi has successfully evaded giving any evidence.  What is to be inferred from that is a matter that I will deal with in the substantive proceedings. 

13. In relation to the adjournment application, given that this is the third occasion the matter has been listed, Mr Joshi has refused to cooperate, and that the applicants have not sought the issue of subpoena, certainly, since 27 May when it became apparent that Mr Joshi was not going to cooperate, I see no basis for adjourning the matter further.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 19 June 2020