Patel v Minister for Immigration
[2020] FCCA 360
•26 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 360 |
| Catchwords: MIGRATION – Application for judicial review – Temporary Business Entry (Class UC) (Subclass 457) Visa – jurisdictional error – applicants failed to attend Administrative Appeals Tribunal hearing and application was dismissed – application in a case for summary dismissal – reasonable prospects of success of application – application summarily dismissed – costs. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Assal v Department of Health, Housing & Community Services [1992] EOC 92-409 |
| First Applicant: | SUNAINA RAKESH PATEL |
| Second Applicant: | RAKESH MADHUSUDAN PATEL |
| Third Applicant: | SAUMYA RAKESH PATEL |
| Fourth Applicant: | HARVISHI RAKESH PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 193 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 10 February 2020 |
| Date of Last Submission: | 10 February 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 26 February 2020 |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Solicitors for the Applicants: | N/A |
| Counsel for the Respondents: | Natalia Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The application for judicial review filed 18 May 2018 is dismissed pursuant to the provisions of rule 13.10 of the Federal Circuit Court Rules 2001 and section 17A of the Federal Circuit Court of Australia Act 1999.
The Applicants pay the First Respondent’s costs in the sum of five thousand two hundred dollars ($5,200.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 193 of 2018
| SUNAINA RAKESH PATEL |
First Applicant
| RAKESH MADHUSUDAN PATEL |
Second Applicant
| SAUMYA RAKESH PATEL |
Third Applicant
| HARVISHI RAKESH PATEL |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Applicant
REASONS FOR JUDGMENT
Introduction
These proceedings concern an application, made by the respondent, for summary dismissal of the applicants’ claim for judicial review of a decision made by the Administrative Appeals Tribunal[1] on 23 April 2018.
[1] Hereinafter referred to as the Tribunal
I should point out that it is not the function of this court to determine the applicant’s claim for the Temporary Business Entry (Class UC) (Subclass 457) Visa (the Visa). Rather, the task for the court is to examine whether the AAT correctly applied the legislative provisions applicable to the applicant’s non-appearance and properly exercised the jurisdiction conferred upon it to dismiss their application.
Background
The applicants applied for the Visa on 25 October 2015 and the first applicant, Ms Patel, was nominated the position of Café or Restaurant Manager by her sponsor employer, Olive Green Kitchen Pty Ltd. Ms Patel’s husband and two children, the second, third and fourth applicants respectively, also applied as members of her family unit.
The nomination of the first applicant by Olive Green Kitchen was refused by the delegate of the Minister for Home Affairs[2] on three occasions, on 24 November 2015, on 11 December 2015, and on 30 March 2017. This was on the basis that the sponsor business would not have the financial capacity to pay the applicant and that her position as a Café or Restaurant Manager was not considered genuine, as the description of her work duties did not sufficiently match those of a Restaurant Manager according to the Migration Regulations 1994 (Cth)[3] and the associated Industrial Classification of Occupations.
[2] Hereinafter referred to as the delegate
[3] Hereinafter referred to as the Migration Regulations
Therefore, as the first applicant was not the subject of an approved nomination pursuant to clause 457.223(4)(a) of the Migration Regulations, the application for the visa was dismissed.
As a result, two applications for review were lodged; one by Ms Patel on 18 May 2018 in relation to her visa application, and another by her sponsor, Olive Green Kitchen, on 30 April 2018 in relation to the nomination refusal. These proceedings concern the former but they obviously remain dependent on one another.
Both applications for review of the delegate’s decisions were heard in a combined hearing on 5 April 2018. The migration agent for the applicants attended the hearing but the applicants did not, their explanation being that the first applicant was to attend a medical appointment on that day to begin cancer treatment.[4]
[4] See Court Book at page 145
Their applications were dismissed due to their non-appearance. It was found that the applicants had not provided a sufficient reason as to why they could not attend on the hearing date; evidence of the medical appointment was considered insufficient. The applicants were given a chance to reinstate their application by 20 April 2018 but failed to do so. On 23 April 2018, the decision was confirmed. This is the decision that is subject to the applicants’ application for judicial review.
On 13 May 2019, Mr Patel, the second applicant, wrote to the court and the respondents, attaching a medical certificate, to notify them that his wife, the first applicant, was in poor health and requested that the hearing of 28 June 2019 be adjourned.[5]
[5] See annexure NAM-1 of the affidavit of Ms Milutinovic filed 12 November 2019
At the directions hearing on 28 June 2019, Mr Patel confirmed that his wife had passed away on 14 May 2019. As a result, the applicants’ related application for judicial review in relation to their business sponsor, Olive Green Kitchen Pty Ltd, was dismissed, as the first applicant was the sole owner and shareholder of the business sponsor and her death had caused the business to cease trading.
Mr Patel continued with the current application for judicial review, in this court, although he has not filed any documents since 18 May 2018, when the original application for judicial review was filed. He has not had legal representation to date.
In the original initiating application filed on 18 May 2018, the applicants set out the following grounds of review:
“1. I hereby request the court to accept my application against the decision made in AAT on 23/04/2018.
2. We applied for Employer Sponsored subclass 457 temporary visa with Olive Green Kitchen for a position as a Restaurant Manager. Unfortunately, the delegate of the Minister refused the application because of business financial in capacity to pay for the position. However, it was not the case and I am still working for the Restaurant on the same position since then and have been paid full time wages throughout my job tenure.
3. We applied to AAT but the migration agent did not provide sufficient documents and also did not send us any information regarding hearing of AAT date and times. On the day he went to attend hearing himself and did not request for any extension or adjournment, as we the applicants were not there to represent our case. In addition, it was very unfortunate that the director in India could not receive the call from AAT member. Hence our case got refused once gain though I am still working at the same position as restaurant Manager till date.
4. Therefore we request the Honourable Judge to reconsider our case because we strongly feel that the judgment lack natural justice and jurisdictional error of not considering my genuine job as Restaurant Manager with the employers in question. And we are paying heavily in terms of our career due to the mistake done by agent by not informing us about AA T hearing where we could have the opportunity to prove our claims and contribution and genuine need of the position in the business and could have satisfied the member by giving appropriate evidences and arguments.”
In support of this application, the first applicant deposed an affidavit setting out the same grounds as those in the initiating application. The applicants essentially claim that the Tribunal erred in their decision to confirm the delegate’s decision regarding the financial incapacity of the business and whether the first applicant’s position was genuine. Further, they claim that their migration agent was responsible for their non-appearance at the hearing of 5 April 2018.
In their response filed 20 June 2018, the respondents claim that the applicants have failed to establish any jurisdictional error in the Tribunal’s decision. At the hearing of 28 June 2019, the matter was set down for final hearing before me.
The current application
On 18 May 2018, the respondent filed an application seeking the summary dismissal of the applicant’s application on the basis that it had no reasonable prospects of succeeding. In addition, the respondent seeks an order for costs. The applicants oppose the application, which was heard on 10 February 2020.
It is the respondent’s position that the second applicant’s application cannot succeed because the primary applicant for the Visa, Ms Patel, is deceased and her employer sponsor has ceased trading. The respondent’s submissions and supporting affidavit indicate that they contacted Mr Patel on numerous occasions, requesting that he discontinue the application on the basis that it could not succeed.[6]
[6] See affidavit of Ms Milutinovic filed 12 November 2019
Further, the respondent submits that remitting the decision back to the Tribunal would be futile given that the application for the Visa is unable to succeed in circumstances where the applicant for the temporary business visa is deceased and the sponsor employer has ceased trading.
This is because the approval of the Visa is subject to an approved nomination under section 140GB of the Migration Act 1958 (Cth),[7] which was refused by the delegate and the Tribunal. As mentioned, the judicial review proceedings in relation to that nomination have been dismissed.
[7] Hereafter referred to as the Migration Act
Furthermore, the Visa that is the subject of these proceedings was removed in 2018 when the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 was passed. Therefore, since no nomination has been approved for the applicants to date, and the applicants are unable to obtain an approved nomination in the future, the respondents submit that the applicants are prevented from being able to satisfy clause 457.223(4)(a) of the Migration Regulations, which essentially provides that the grant of the Visa is dependent on an approved nomination.
The respondent submits that the secondary applicants also fail to satisfy clause 457.321 of the Migration Regulations on the basis that the first applicant cannot satisfy the primary criteria for the Visa set out in clause 457.223(4)(a).
The respondent’s submission, therefore, is essentially two-pronged; firstly, there was no jurisdictional error committed by the Tribunal in their non-appearance decision of 5 April 2018, and secondly, the application is futile in practical terms and so cannot succeed even if it was remitted back to the Tribunal.
The applicants have not filed any documents in relation to this application, although Mr Patel did have a chance to address it at the hearing on 10 February 2020. Mr Patel’s response to questions from me indicated that he understood the grounds raised by the respondent in relation to the futility of the applicants’ claim but still sought to pursue his claim in the hope that he would be able to obtain the Visa for his family.
Ultimately, the determination of the application in a case and whether the applicants’ claim has any reasonable prospects of success falls to me.
The legislative basis for the application
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
“(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
Rule 13.10 of the Federal Circuit Court Rules 2001 reads as follows:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[8] The case “must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court …”[9] In Webster v Lampard[10] the High Court said as follows:
“The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.”
[8] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 per Weinberg J at 415 [12]
[9] Dey v Victorian Railway Commissioners (1949) 78 CLR 62
[10] Webster v Lampard (1993) 177 CLR 598 at 602
In McKellar Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
“… a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.”[11]
[11] Ibid at 416 [18]
Particular care must be taken in respect of applications for summary dismissal in cases in which the applicant concerned is self-represented. Such persons are very often at a significant disadvantage because of a lack of legal knowledge and an ignorance of pleading practices. As such, they may experience difficulty in properly formulating otherwise valid legal claims because of a lack of legal vocabulary and capacity to identify salient legal issues and express them in appropriate form.
However, whilst caution is appropriate, in a summary dismissal application, the court is not to ignore the interests of the other party concerned. In Morton v Mitchell Products[12], Sackville J said as follows:
“Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which he otherwise might have done.”
[12] Morton v Mitchell Products [1996] FCA 828
In appropriate cases, the court should not shy away from summarily dismissing applications, which have no tenable grounds as it is in the public interest that unmeritorious cases be dismissed sooner rather than later. In Travers v New South Wales[13] Lehane J affirmed the view of the former President of the Human Rights & Equal Opportunity Commission, Sir Ronald Wilson, who said as follows in Assal v Department of Health, Housing & Community Services:[14]
“It is in the public interest, as well as the interest of both parties, that the hearing of a complaint which is clearly showing to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power … in circumstances where that exercise is clearly warranted.”
[13] Travers v New South Wales [2000] FCA 1565
[14] Assal v Department of Health, Housing & Community Services [1992] EOC 92-409 at 78,900
Lehane J added, in Travers:
“That is especially so, perhaps, in this court where an unsuccessful litigant if proceedings are protracted, may face what can be the considerable burden of a costs order.”
These considerations are all relevant to the present proceedings. The applicants are unrepresented. They have no apparent legal training. The first applicant prepared her own application and affidavit material.
As a consequence of their own efforts and the amount of time that has been available to them, I consider that the applicants have been given an adequate opportunity to put their case, as they see fit. They are not to be placed at an advantage, over a represented person, in respect of the presentation of a case, which is otherwise unmeritorious.
Rather, the court should act to prevent unrepresented parties from falling into the traps or pitfalls, in litigation, to which a represented person would be alerted, particularly in regards to legal technicalities in regards to such matters as pleadings. However, this obligation does not extend to allowing an unmeritorious application to continue unchecked. That would not be in the public interest or fair to the parties concerned.
In this context, the onus is on the respondent to establish that the applicants do not have an arguable case to put before the court. The onus to be discharged is a high one, as the respondent must establish:
“… a high measure of satisfaction in the court that the proceedings are of a character that they should be dismissed.”[15]
[15] See Paramasivam v Wheeler & Ors [2000] FCA 1559 per Moore J
In Ebber v Human Rights & Equal Opportunity Commission[16] Drummond J summarised the level of material, which the claimant needed to muster, in order to defeat an application for summary dismissal. His Honour said as follows:
“A complainant must therefore have at the outset of the inquiry into his complaint sufficient material, it need not be legally admissible evidence, … to show that he has more than a remote possibility of a well-founded claim if he is to defeat an application for summary dismissal of the case that can be made out at the start of the inquiry.”
Application of the legal provisions of the Migration Act and the Migration Regulations to the circumstances of the case and the application for summary dismissal
[16] Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 at 468
In determining the respondent’s application for summary dismissal, I must determine whether the applicant’s application for judicial review has reasonable prospects of success. The applicants’ grounds of review essentially identify three issues with the Tribunal’s decision that they claim caused them some form of procedural unfairness;
·The delegate was incorrect in concluding that the sponsor business did not have the financial capacity to pay the first applicant;
·The applicants’ migration agent failed to notify them of the hearing date and time before the Tribunal and did not request an extension of time on their behalf at the hearing; and
·The conclusion made by the delegate, and confirmed by the Tribunal, that the first applicant’s position was not genuine was a form of jurisdictional error.
The respondent submits that these grounds do not specify any actual jurisdictional error in the Tribunal’s decision, as follows:
·The applicants’ objections to the findings of the delegate are outside of the ambit of this court’s jurisdiction for judicial review;
·The applicants’ objections to the findings of the delegate in relation to the sponsor were already the subject of other judicial review proceedings which have been dismissed;
·The applicants’ grounds concerning the failure of the migration agent to notify the applicants of the hearing date and time cannot succeed as the Tribunal complied with its obligations to attempt to notify the applicants of such details; and
·The applicants’ ground that the Tribunal’s decision to confirm the delegate’s decision in relation to the genuineness of Ms Patel’s position was affected by jurisdictional error cannot be made out for the same reason as above.
The legal principles applying to applications of this type are complex. I will do my best to explain them. In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did.
Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Administrative Appeals Tribunal.
For these reasons, I consider that the grounds of review, insofar as they relate to either the delegate’s substantive findings regarding Ms Patel’s sponsor or the related judicial review proceedings regarding the same issue, are outside of this court’s jurisdiction for claims of judicial review. I am only able to assess the Tribunal’s decision to dismiss the applicants’ application in their absence to determine whether it was somehow procedurally unfair to the applicants or, in other words, affected by jurisdictional error. I cannot assess the merits of the applicants’ claim, this is outside of the court’s jurisdiction for review.
The applicants’ migration agent was notified via email, pursuant to section 360 of the Migration Act, of the date, time and place of the hearing before the Tribunal of 5 April 2018.[17] The notification was sent on 14 March 2018, which complies with the prescribed notice period of 14 days prior to the hearing pursuant to section 360A(4) of the Migration Act and regulation 4.21 of the Migration Regulations.
[17] See Court Book at pages 139-143
Further, the notification sent to the applicants contained a statement that alerted the applicants to the fact that their application could be dismissed pursuant to section 362B of the Migration Act if they did not appear.[18]
[18] See Court Book at page 143
The applicants did not attend that hearing, at the date and time indicated to their migration agent. As a consequence, pursuant to the provisions of section 362B of the Act, if an applicant, who has been invited to attend before the Tribunal pursuant to section 360, fails to appear on the scheduled time, the Tribunal has a discretion to make a decision on the review issue without taking any further action to allow or enable the applicant to appear before it.
On the day and time scheduled for the hearing, at the direction of the presiding member, a Tribunal officer telephoned the applicants’ agent and attempted to telephone Mr Jamail Singh, a director of the sponsor employer. However, there was no response to this call. The applicants’ migration agent did not ask the Tribunal for an adjournment. In these circumstances, the Tribunal determined to finalise the review application pursuant to the power referred to it under section 362B(1A)(b).
Thereafter, notification of the dismissal decision was sent to the applicants by email pursuant to section 362C(5) of the Migration Act. The applicants were required to be given notice of the decision pursuant to section 379C(5) within 14 days to allow them to apply to the Tribunal for a reinstatement of their application.
The applicants were notified on 6 April 2018 and were then given 17 days to reinstate their application, 3 days longer than they were required to be given.[19] They did not elect to do so. As a result, the decision was then confirmed on 23 April 2018, as the Tribunal was required to do pursuant to section 362B(1E) of the Migration Act. However, the Tribunal was required to exercise its discretion to dismiss the application reasonably.[20]
[19] Migration Act s. 362B(1B)
[20] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [8], [14]-[15]
In my view, this course of action was entirely open to the Tribunal. They gave the applicants ample notice of the hearing date, time and place, and, due to their non-appearance, dismissed the application as they were entitled to do. The migration agent replied to the notification email sent on 14 March 2018 and attended the hearing via telephone link, which clearly indicates he received the notification.
Furthermore, Ms Patel provided information to the Tribunal, via her agent, concerning her medical appointment on 5 April 2018, indicating that she too knew of the hearing date in question. The Tribunal also attempted to contact the director of the sponsor employer during the combined hearing to assist in the hearing of the applicants’ case, albeit unsuccessfully.
In essence, the Tribunal’s decision to dismiss the application was not legally unreasonable. Although Ms Patel provided medical evidence in advance for not attending the hearing,[21] it was insufficient to explain why she could not reschedule her appointment or why any of the other applicants could not attend the hearing on the day in question.
[21] See Court Book at page 145
Regarding the claims by the applicants that the migration agent did not alert them to the details of the hearing, the correspondence mentioned above indicate that not only was the applicants’ agent aware of the date and time, but Ms Patel was likely also aware of the hearing date and time.[22]
[22] See Court Book at pages 147-150
Even if the applicants were not aware due to some fault of their migration agent, there is insufficient evidence to suggest that the agent acted with any dishonest motivation such as to amount to a fraud on the applicants or the Tribunal. At most, the migration agent would be considered to have acted negligently, which does not result in a jurisdictional error on the part of the Tribunal.
Regarding the alleged futility of the applicants’ claim, the relevant sections of the Migration Regulations are clauses 457.223(4)(a) and 457.321, which essentially require that an approved nomination be obtained for a business skills visa to be granted.
In these circumstances, in my view, the application, pursued now by the secondary applicant, is futile and cannot succeed. The applicants have been unsuccessful in obtaining an approved nomination for the Visa and are now unable to do so, considering that the sponsor employer has now ceased trading and the Visa subject to these proceedings is no longer in force. Without being able to obtain an approved nomination, the criteria required to be satisfied for the grant of the Visa under clause 457.223(4)(a) cannot be fulfilled.
Furthermore, the first applicant’s tragic passing also prevents the criteria under regulation 457.321 from being satisfied and therefore, the current Visa application stands no chance of succeeding.
In my view, the applicants’ claim, given the circumstances, cannot succeed in any conceivable way. The requirements for the Visa cannot possibly be met given that the primary applicant is deceased and the sponsor employer, which is necessary to obtain an approved nomination for the Visa, has ceased trading.
In accordance with the remarks made by Lehane J in Travers, I cannot allow this application to continue as it would be not be in the interests of the parties to remit the decision back to the Tribunal in circumstances where there is no possibility of the decision being made differently.
In any event, even if these circumstances were not present, I do not consider that the Tribunal’s decision was affected by jurisdictional error and so the applicant’s claim cannot succeed.
For these reasons, I have come to the conclusion that the applicants’ application filed 18 May 2018 should be summarily dismissed pursuant to the provisions of section 17A of the Federal Circuit Court of Australia Act and Rule 13.10 of the Federal Circuit Court Rules on the basis that the applicants have no reasonable prospects of successfully prosecuting their application.
The respondent has also sought an order for costs in the amount of $5,200.00. I will order that the applicants pay the respondent’s costs in the amount of $5,200.00, which is less than the scale amount.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 26 February 2020
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