Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 364
•7 April 2022
FEDERAL COURT OF AUSTRALIA
Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 364
Appeal from: Patel & Anor v Minister for Immigration & Anor [2020] FCCA 1104 File number: VID 342 of 2020 Judgment of: O'BRYAN J Date of judgment: 7 April 2022 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – where appellants did not appear – where no arguable point of appeal arose – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 362B, 476
Federal Court Rules 2011 (Cth) r 36.75
Migration Regulations 1994 (Cth) Sch 2 cl 572.223
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 7 April 2022 Counsel for the Appellants: The Appellants did not appear Counsel for the First Respondent: C McDermott Solicitor for the First Respondent: Mills Oakley
ORDERS
VID 342 of 2020 BETWEEN: KALPANA PRAKASHKUMAR PATEL
First Appellant
PRAKASHKUMAR KESHAVLAL PATEL
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth).
2.The appellants pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
Introduction
This is an appeal from orders made by a judge of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia ((Division 2)) on 13 May 2020 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 August 2016. By that decision, the Tribunal confirmed its earlier decision, made on 27 July 2016, dismissing an application for review of decisions of a delegate of the first respondent (the Minister) made on 29 June 2015 refusing to grant the appellants Student (Temporary) (Class TU) Subclass 572 visas under the Migration Act 1958 (Act). The Tribunal’s decision was made under s 362B(1E) of the Act. By s 362B(1F) of the Act, the effect of the Tribunal’s decision was that the delegate’s decision refusing to grant the visas was taken to be affirmed.
The appellants are citizens of India and are wife and husband. They were not legally represented before the Tribunal, the Federal Circuit Court or this Court.
The appellants did not appear at the hearing of the appeal today.
The first respondent sought an order dismissing the appeal, with costs, pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) by reason of the appellants’ failure to appear. I made that order in the hearing and informed the first respondent that I would provide reasons during the course of the afternoon. These are my reasons for making the orders.
I considered it appropriate to make an order dismissing the appeal for two reasons. First, no explanation was provided by the appellants for their non-appearance prior to the hearing. Second, no arguable point of appeal arises from the written materials that have been filed on the appeal.
Absence of explanation prior to hearing
I am satisfied that the appellants had proper notice of the hearing. The appeal was filed on 25 May 2020. Timetabling orders were made on 10 June 2020, with relevant dates being dependent on the hearing date. In circumstances where the appellants were not legally represented and required the assistance of an interpreter, the Court determined that the appeal should be listed for hearing in open court when it was possible to do so, rather than via digital technology.
On 17 January 2022, the parties were notified by email that the appeal was listed for hearing at 10.15 am today.
On 8 March 2022, the Minister filed and served an appeal book containing the record below and an outline of submissions in accordance with the Court’s timetabling orders.
The appellants have failed to file submissions in support of their appeal.
On 28 March 2022, the parties were notified by email that the appeal would be heard in open court in Melbourne.
On 6 April 2022, the Court sent an email to the appellants confirming that the hearing of the appeal would proceed at 10.15am today and giving details of the location of the court room.
In those circumstances, I am satisfied that the appellants were given adequate notice of the hearing, did not appear and failed to provide an adequate explanation for their non-appearance prior to the hearing.
No arguable point of appeal arises
The material filed on the appeal disclosed the following background.
On 5 March 2015, the first appellant applied for a Student Temporary (Subclass 572) visa. The second appellant was included in the visa application as a secondary visa applicant.
On 29 June 2015, a delegate of the Minister refused to grant the visa because the delegate was not satisfied that the first appellant was a genuine applicant for entry and stay as a student under cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 17 July 2015, the appellants applied to the Tribunal for review of the delegate’s decision.
On 20 August 2015, the appellants attended a hearing before the Tribunal.
On 23 June 2016, the Tribunal wrote to the appellants and informed them that it had considered the material before the Tribunal but was unable to make a favourable decision on that material. The Tribunal invited the appellants to appear at a second hearing on 26 July 2016 to give evidence and present arguments in relation to the issues identified in the letter. The letter included the following information about non-attendance:
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 the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The Tribunal’s records disclose that an SMS text message reminder was issued to the first appellant’s mobile number on 25 July 2016 ahead of the second hearing.
The appellants did not attend the scheduled hearing on 26 July 2016 and the Tribunal dismissed the application under s 362B(1A)(b) of the Act by reason of the non-appearance (without considering the merits of the application).
On 27 July 2016, the Tribunal wrote to the appellants informing them of the decision dismissing the application and that the appellants may apply for reinstatement of the application by 10 August 2016.
The appellants did not apply for reinstatement of the application and, on 11 August 2016, the Tribunal confirmed the dismissal of the application as required by s 362B(1E) of the Act.
On 12 August 2016, the Tribunal sent a copy of its decision of 11 August 2016 to the appellants.
On 8 September 2016, the appellants lodged an application and accompanying affidavit in the Federal Circuit Court seeking judicial review of the Tribunal’s decision under s 476 of the Act.
The grounds of review stated in the application were as follows (errors in original):
1.The Tribunal failed to comply with section 368 of the Migration Act 1958 (the Act) in that it failed to record its decision.
2.The Tribunal failed to consider that the delegate engaged in conduct which amounted to jurisdictional error in that its decision that the applicant was not a genuine temporary entrant was unreasonable or illogical.
3.That the Tribunal erred in not considering that the delegate misconstrued the requirements of clause 572.223(1)(a) of…
4.The Tribunal engaged in conduct which amounted to jurisdictional error that it failed to consider; on balance, all relevant factors in assessing the applicant as a genuine temporary entrant.
The primary judge concluded that the appellants had not demonstrated jurisdictional error in the Tribunal’s decision, whether on their stated grounds of review, or otherwise upon consideration of the Tribunal’s reasons. As to ground one, the primary judge concluded that the Tribunal had complied with s 368 by recording its decision (PJ at [25]). As to the remaining grounds, the primary judge concluded that the grounds of review were misconceived because the Tribunal dismissed the application for non-appearance without considering the merits of the application, whereas the grounds of review were directed to the merits of the application (PJ at [29] and [32]). In circumstances where the appellants were unrepresented before the Court, the primary judge also considered whether the decision of the Tribunal to dismiss the application for non-appearance was legally reasonable in the circumstances of the case. The primary judge considered that the decision was legally reasonable having regard to matters including (at PJ [40]-[45]):
(a)the appellants were validly notified of the hearing scheduled for 26 July 2016;
(b)the appellants did not provide a response to the notification of the hearing date;
(c)the appellants were sent a reminder of the hearing date;
(d)the appellants were validly notified of the dismissal proceeding and had an opportunity to reinstate the application;
(e)the appellants failed to apply to reinstate.
By their notice of appeal filed on 25 May 2020 in this Court, the appellants raise a single ground of appeal:
There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).
This ground of appeal was not raised before the primary judge. Accordingly, the appellants require leave to raise it on appeal. The ground has no relationship with the decision of the Tribunal and is wholly without merit. For that reason leave would be refused.
The appellants have not filed written submissions in support of the appeal, or taken any other step to prosecute the appeal.
Conclusion
I therefore dismissed the appeal with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate:
Dated: 7 April 2022
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