PARIYAR v Minister for Immigration

[2019] FCCA 2389

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARIYAR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2389

Catchwords:
PRACTICE AND PROCEDURE – MIGRATION – Application to set aside orders made by Registrar on first court date for non-appearance by the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1), 16.05

Migration Act 1958 (Cth), ss.38(2)(d), 140GB, 347, 476, 477, 494B, 494C

Migration Regulations 1994 (Cth), rr.2.75, 4.10(1)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl.457.223(4)(a)

Applicant: BIKASH PARIYAR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 236 of 2019

Judgment of: Judge Manousaridis

Hearing dates: 10 July 2019; 22 August 2019

Date of Last Submission: 22 August 2019

Delivered at: Sydney

Delivered on: 22 August 2019

REPRESENTATION

Applicant appeared in person on 10 July 2019 but not on 22 August 2019.

Solicitors for the Respondent: Ms K Gawidziel of Australian Government Solicitor

ORDERS

1. The application in a case filed by the applicant on 7 March 2019 is dismissed. 

2. The applicant pay the first respondent’s costs set in the amount of $3,737.

3. The name of the first respondent be changed to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

4. The first respondent is to cause a sealed copy of these orders together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth) to be served on the applicant by sending the those documents to the applicant’s email address specified in his application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 236 of 2019

BIKASH PARIYAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. Before me today is the resumption of a part-heard application in a case filed by the applicant on 7 March 2019. By that application in a case the applicant is seeking an order that the orders made by a Registrar of this Court on 28 February 2019 dismissing the application be set aside. The Registrar dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) because the applicant did not appear before the Registrar. Although not stated in the application in a case, the application to set aside the Registrar’s orders is made or, at least, I have taken it as having been made under r.16.05(2)(a) of the FCC Rules.

2. The application which the Registrar dismissed was an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) that the 35-day period provided for by s.477(1) of the Act for applying for a remedy in relation to a decision of the second respondent be extended. I will refer to the second respondent as “the Tribunal”. The Tribunal’s decision in relation to which a remedy under section 476 of the Act is intended to be sought if an order under s.477(2) is made, is a decision the Tribunal made that it did not have jurisdiction to consider an application for review the applicant lodged with the Tribunal in relation to a decision made by a delegate of the first respondent, who I will refer to as “the Minister”, not to grant the applicant a Temporary Business Entry (Class UC) visa, and I will refer to that as “the 457 visa”. The reason the Tribunal gave for finding it did not have jurisdiction is that the applicant lodged his application for review more than 21 days after the applicant was notified of the delegate’s decision.

3. Before I consider the principles that I must apply it will be useful if I first set out the facts and the statutory scheme out of which this application arises, and also the procedural history. One matter that I should note at this stage, however, is that, although the applicant appeared when the matter came first before me on 10 July 2019 for hearing, and the matter was adjourned to today’s date, the applicant has not appeared today. I will say something more about that date and its significance later in these reasons.

4. I then turn to the background and it is as follows. 

Background

1. On 28 August 2017 the applicant applied for the 457 visa. To have been entitled to the grant of that visa, the applicant had to satisfy, among other things, the requirements prescribed by clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), namely, that: (a) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Migration Act 1958 (Cth)(Act); (b) the nomination was made by a person who was a standard business sponsor at the time the nomination was made; and (c) the approval of the nomination has not ceased, as provided for by reg.2.75 of the Regulations.

2. On 26 July 2018 the delegate decided not to grant the applicant the visa because the applicant was not the subject of an approved nomination and, for that reason, did not satisfy the requirements of cl.457.223(4)(a) of schedule 2 to the Regulations. A matter that is relevant to note is that in its letter to the applicant dated 26 July 2018 the delegate said: “There is no right of merits review for this decision.” The basis of that statement appears to be s.38(2)(d) of the Act. In any event, notwithstanding that statement, the applicant applied to the Tribunal for a review of the delegate’s decision.

3. Assuming the delegate’s decision was a “Part 5-reviewable decision” the applicant’s application to the Tribunal would have been subject to s.347 of the Act. That section subjects an application to the Tribunal for review to a number of requirements. Relevant is the requirement prescribed by s.347(1)(b), namely, that the application had to be made within the prescribed period, such a prescribed period ending no later than 28 days “after notification of the decision”. The period for making an application for review is prescribed by reg.4.10(1)(a) of the Regulations. It is a period that “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on the notice is received.”

4. Section 494B of the Act specifies a number of methods by which an applicant may be notified of a Minister’s decision. One of those methods is that specified by s.494B(5) of the Act which relevantly consists of a Minister transmitting the document by: (a) fax; or (b) email; or (c) other electronic means to (d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents. Section 494C of the Act specifies the time at which the person to whom notification of the decision refusing to grant a visa has been given using the methods prescribed by s.494B of the Act is to be taken to have received the notification. Where notification has been given by the methods prescribed by s.494B(5) of the Act then, under s.494C(5), the person is taken to have received the document at the end of the day on which the document is transmitted.

5. There is no evidence before me other than the letter itself from the delegate to the applicant that the email address it specified in the letter is the last email address the applicant provided to the Minister for the purposes of receiving documents. There is nothing in the material that the applicant has filed, and there was nothing that the applicant said to me on 10 July 2019 which would suggest that the applicant claimed that this was not the email address he last notified to the Minister. I am satisfied it was the last email address the applicant notified to the Minister.

6. Assuming that is the case, the applicant is taken to have been notified of the delegate’s decision on 26 July 2018. The applicant therefore had 21 days including the day on which he is taken to have received the letter, to make an application to the Tribunal for review of the delegate’s decision. That day was 15 August 2018. He lodged an application on 19 October 2018. On 18 December 2018, after the Tribunal invited the applicant to make submissions, the Tribunal decided it did not have jurisdiction to review the delegate’s decision because the application was made more than 21 days after it found the delegate’s decision had been notified to the applicant.

7. On 6 February 2019 the applicant filed an application with this court for an order under s. 477(2) of the Act. The applicant was required to do so because he didn’t file an application for a remedy in relation to the Tribunal’s decision within the 35-day period prescribed by s.477(1). The matter was set down for a first court date on 28 February and, as I already noted, the applicant did not appear before the Registrar.

8. The application for a case first came before me for hearing on 10 July 2019. The applicant appeared without any legal representation. As is my usual practice, I informed the applicant of the facts that had led to his filing an application in a case and that application in a case being listed before me for hearing on 10 July 2019; the nature of the application that was before me; the issues that he needed to address; and the procedure. I proceeded to read evidence. I admitted into evidence the affidavit that the applicant filed in support of his application in a case, that being an affidavit made on 7 March 2019 and also the affidavit which the applicant filed with his application for an extension of time and that affidavit was made on 6 February 2019. I also read an affidavit made by Ms Dale Watson, a solicitor for the Minister. I gave a short adjournment to permit the applicant to read the affidavit of Ms Watson for himself, and also written submissions that the Minister had filed and had served on the applicant, I think on 9 July 2019.

9. I then asked the applicant to inform me why he did not attend the first court date. It is not necessary for me to set out in detail what the applicant said, but the gist of it is that he entrusted his affairs to an agent whom he identified as Eddie Kong. The applicant, at my invitation, informed me of his dealings with Mr Kong and the clear suggestion of what the applicant told me, at least from the bar table, was fraud. It also potentially suggested the applicant’s involvement in that fraud, and I do say potentially, and I make no finding about that. In any event, the end result of that was that I informed the applicant that if he wanted to rely on those matters, he needed to put on affidavit material, although I did, I think, warn the applicant that there might be some disadvantages in him doing so, having regard to what appears to be the allegations of fraud that he made. In any event, the end result of all of that was that I made orders adjourning the hearing part heard to 22 August 2019, which is today’s date ,and I made directions permitting the applicant to file further affidavit material by 7 August 2019. The applicant did not file any further material and, as I have noted, the applicant did not appear before me today. I have no doubt that the applicant was aware of today’s hearing because I made the orders adjourning the matter to today in court in the presence of the applicant.

10. When the matter was called and there was no appearance by or on behalf of the applicant, there was a question whether I had power to simply dismiss the proceeding for non-appearance by the respondent under r.13.03(1)(c) of the FCC Rules. Given that the matter was part-heard and evidence has been read, it was not clear to me that I had power simply to dismiss the proceeding. Instead, after having heard further brief submissions from Ms Gawidziel, for appeared for the Minister, I decided to deliver reasons on the merits of the application in a case. With that background I then next turn to the principles I should apply when considering the application in a case.

Principles

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where … a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors and whether, on balance, they tend for or against the reinstatement.  Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530 at [7]

2. During the hearing before me on 10 July 2019 the applicant informed me he did not attend the first court date because he was unaware of that date. He said that the application had been filed by a Mr Kong. Whether that is true or not does not matter because the applicant had some responsibility to acquaint himself with what is happening in litigation which has been pursued in his name. The inadequacy of the applicant’s explanation, however, is not of any great moment because the real issue is whether the applicant would have reasonable prospects of obtaining an order under s.477(2) Act.

3. Whether or not an order is made under that subsection is a matter of discretion. The Court needs to be satisfied that it is necessary in the interests of the administration of justice that an order be extended. The Court looks at matters such as the extent of the delay, and the reasons why an application has not been made in time. But, as with the Court’s exercise of discretion under r.16.05(2)(a) of the FCC Rules, usually the most significant factor is whether the application discloses any reasonable arguable case. That requires me to direct my attention to the grounds stated in the application itself.

4. That application contains 12 grounds.  They are as follows:

   1)I am the applicant in this matter

   2)I have been declined by AAT which I am of the view the decision is erroneous and insufficient.  AAT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness.

   3)AAT has failed to serve the documents in proper manner.

   4)AAT and DIBP have failed to do correspondences incorrectly and insufficiently.

   5)THE TRIBUNAL DENIED THE APPLICANT THE RIGHT TO REPRESENTATION TO ASSIST THE APPLICANT IN PRESENTING MY CASE PROPERLY AND ADEQUATELY.

   6)The applicant was not aware of the way in which the Migration Review Tribunal processes applications nor was she in a position to properly present the facts on which she relied.

   7)The Tribunal failed to take into consideration some important procedural errors made by the Department in assessing the application.

   8)In this respect, the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the Tribunal.

   9)THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS AND NATURAL JUSTICE IN NOT GIVING ME THE OPPORTUNITY TO PROPERLY CONSIDER MY LEGAL POSITION, GIVEN MY LIMITATION AND THE LEGAL SYSTEM.

   10)THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT’S APPLICATION FOR REVIEW ACCORDING TO THE LAW, IN TAKING A VIEW OF THE MIGRATION ACT AND REGULATIONS. THAT WAS UNNECESSARILY LIMITED AND CONSTRUCTED AND WHICH FITTED THE TRIBUNAL MEMBER’S PERSONAL VIEW RATHER THAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW.

   11)The Tribunal Member therefore regarded the Applicant as being no different to any other Applicant who lodged an invalid application, and this constituted a failure to afford the Applicant procedural fairness.

   12)The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances.

   13)Had the Tribunal given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant’s case for review.  I applied for a Temporary Business Entry (class UC).

   14)I believe that I would be eligible to be granted for a Temporary Business Entry (class UC) visa application.

   15)I respectfully submit that MRT has failed in considering natural justice and procedural fairness, and further has not given a thorough consideration of my latest Business Plan Approval.

5. In the affidavit the applicant filed with his application, there is there set out additional grounds, although they seem, in substance, to repeat the grounds set out in the application.  

6. It is clear that none of the grounds engage with the actual reasons the Tribunal gave for finding it did not have jurisdiction.  None of the grounds, therefore, discloses any arguable case or, indeed, any case that the Tribunal was incorrect to find that because the application for review was made more than 21 days after the delegate’s decision that the Tribunal simply did not have jurisdiction for that reason to consider it. 

7. It is true the Tribunal assumed that the delegate’s decision would otherwise have been a Part 5 reviewable decision and, to that extent, it acted on an erroneous assumption. There is no arguable case however, that such erroneous assumption could possibly lead to this Court setting aside the Tribunal’s decision. That decision is that it had no jurisdiction. The delegate’s decision not being a Part 5 reviewable decision is simply, therefore, an alternative base upon which this Court could determine and find that the Tribunal did not have jurisdiction to review the delegate’s decision.

8. Given my finding that the applicant would have no arguable or any case for setting aside the Tribunal’s decision, it follows that the applicant did not have a reasonably arguable case for an order under s.477(2) of the Act. That, in turn, means that I am not satisfied that the discretion conferred on this Court by r.16.05(2)(a) of the FCC Rules should be exercised to set aside the Registrar’s orders dismissing the application. Accordingly, in a moment, I propose to make an order dismissing the application in a case.

9. Ms Gawidziel applies for an order for costs, and she applies that I set those costs in the amount of $3,737 being the scale amount. There is no reason why costs should not follow the event, and I propose to make an order for costs, and I am satisfied that the amount sought is reasonable.  The Minister also seeks an order that his name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and I will make that order in a moment.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  2 September 2019