Pham v Minister for Home Affairs
[2019] FCCA 786
•29 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHAM v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 786 |
| Catchwords: MIGRATION – Application in a case to reinstate – substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether there is a satisfactory explanation for non-appearance – whether the substantive application raises an arguable case – whether the substantive application has prospects of success to warrant reinstatement in the interests of justice – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 360, 476 Federal Circuit Court Rules 2001 (Cth), rr.2.05, 2.07B, 16.05 Evidence Act 1995 (Cth), s.160 Migration Regulations 1994 (Cth), reg.1.15A, Sch 2, cls.820.211(2), 820.221 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Autodesk Inc and Anor v Dyason and Ors (No.2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270 |
| Applicant: | THI THANH THAO PHAM |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3296 of 2018 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 March 2019 |
| Date of Last Submission: | 14 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2019 |
REPRESENTATION
| Representative for the Applicant: | Ms Yu |
| Solicitors for the Applicant: | TQH Lawyers and Consultants |
| Representative for the Respondents: | Ms S Lloyd |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application in a case made on 8 January 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3296 of 2018
| THI THANH THAO PHAM |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 8 January 2019 by Ms Thi Thanh Thao Pham. On 26 November 2018 Ms Pham filed an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 October 2018 which affirmed the decision of the Minister’s delegate not to grant her a Partner (Class UK) visa (“the visa”).
On 20 December 2018 a Registrar of the Court dismissed the substantive application for reason of Ms Pham’s non-attendance before the Court on that date. Ms Pham now seeks reinstatement of her substantive application.
The evidence before the Court is as follows:
(1)Ms Pham’s affidavit of 26 November 2018 (annexing the Tribunal’s decision);
(2)Ms Pham’s affidavit of 8 January 2019; and
(3)The affidavit of Jessica Ellen Gaik Mei Lim of 7 March 2019.
Although not stated by Ms Pham in her AIC, the application to reinstate her case seeks to rely on r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) (see her written submissions at [1]). That is, that given that the Registrar’s order (dismissing her substantive application) was made in her absence, the Court may set aside this order.
The relief sought by Ms Pham now is discretionary. Such exercise of discretion must be done reasonably, and with some caution, given the competing interests. On the one hand sits the public interest in the finality of litigation. On the other the interests of the administration of justice. In particular whether, taking into consideration all of the relevant circumstances presented, there is a real dispute to be heard in the substantive application such that the interests of justice require it to be heard (Autodesk Inc and Anor v Dyason and Ors (No.2) [1993] HCA 6 per Gaudron J at [1] and [18])
In this light I agree with the Minister (with reference to MZYEZv Minister for Immigration and Citizenship [2010] FCA 530) that the matters for consideration in the current case are:
(1)Whether there is a reasonable explanation for Ms Pham’s absence from the Court event at which her application was dismissed.
(2)The length of the delay in making the application for reinstatement.
(3)Whether the substantive application raises an arguable case for the relief sought, or has such prospects of success that the interests of justice call for the reinstatement.
Although, the question of prejudice to the Minister may generally be a matter for consideration, the Minister does not assert prejudice in the current case.
At the hearing of the AIC Ms Pham was represented by counsel. The Minister was represented by a solicitor.
The Non-Attendance
The history of Ms Pham’s case before the Court is set out in the Minister’s written submissions. I note for the purposes of this judgment [14] – [18] of the Minister’s written submissions:
“14. The applicant sought judicial review of the Tribunal’s decision by an application to show cause filed on 26 November 2018. At the time of filing the matter was issued a return date for a directions hearing on 20 December 2018, such fixture being recorded on the filing cover page appended to the application.
15. The proceedings were commenced by the applicant herself and she provided both a postal address and an email address for service.
16. On 4 December 2018 the solicitors for the first respondent wrote to the applicant (see affidavit of Jessica Ellen Gaik Mei Lim affirmed 7 March 2019 (Lim Affidavit) at [5] to [6]) inter alia reminding her of the upcoming Court date and that if she did not appear, that the first respondent would seek dismissal for want of appearance.
17. That application was dismissed on 20 December 2018, pursuant to Rule 13.03C(1)(c) of the Rules, for reason of the applicant’s unexplained failure to appear at the first Court date directions hearing.
18. On 8 January 2019 the applicant filed an application in a case by way of solicitors. That application in a case and the affidavit of the applicant in support affirmed 8 January 2019 were not served, however an email was sent seeking the first respondent’s consent to reinstatement.”
Ms Pham’s affidavit of 8 January 2019 relevantly states:
“1. I am the Applicant in proceeding Ref: SYG3296/2018.
2. I do not own a computer and had relied upon support to assist with the lodgement of the application.
3. I did not expect to receive any Court correspondence via email hence I did not check.
4. The first correspondence received was on 24 December 2018 regarding the dismissal of my application where I immediately engaged TQH Lawyers & Consultants forthwith.”
No other evidence on this issue was proffered by Ms Pham who now appears with legal representation.
Before the Court Ms Pham submitted, through her counsel, that, in effect, she left the matter of her substantive application in the hands of her lawyer. She submitted that for this reason she was unaware of the Court event before the Registrar on 20 December 2018. That lawyer was not identified before the Court.
As I noted with Ms Pham’s counsel, the Court can only proceed on the evidence provided. While I accept that counsel was making submissions in light of what she said were instructions given to her, it remains that the applicant was on her own evidence, represented by a firm of solicitors since 24 December 2018 (see [4] of the applicant’s affidavit filed 8 January 2019) and now counsel.
There is no evidence before the Court, nor was there any application to proffer any evidence, to the effect that Ms Pham was legally represented at the time of the making of her substantive application, and up to, and including 20 December 2018.
Importantly, at the time of making her affidavit of 8 January 2019 in which Ms Pham seeks to explain the reason for her non-attendance, she was represented by a firm of solicitors, and the affidavit is said on its face to have been prepared by a lawyer. There is nothing in this affidavit to say that Ms Pham did not attend before the Registrar on 20 December 2018 because she was unaware of the Court event, because she left the matter of the substantive application in the hands of her lawyer.
The oral submissions therefore, did not arise from any evidence before the Court (despite opportunity to provide that evidence), and therefore cannot be accepted as providing a reasonable, or adequate, explanation for the non-attendance.
A number of elements emerge from Ms Pham’s affidavit evidence and relevant submissions made on her behalf during the hearing of the AIC.
What remains (given what is set out above), is that implicit, and explicit in her submissions, is the assertion that she did not attend before the Registrar on 20 December 2018 because she was unaware that her application had been listed for that day.
The reason she advances for this, in her evidence, is that she does not own a computer, relied upon support from some unidentified source to lodge the application, and did not expect to receive correspondence from the Court by email. Therefore, she “did not check” (presumably her emails).
Ms Pham’s explanation can only be described, in the circumstances, as inadequate, in some sense implausible, and certainly as the Minister submits, not “persuasive”.
The substantive application to the Court was as stated on its face, prepared by Ms Pham herself. There is no evidence from Ms Pham to say that it was filed with the Court other than by herself (see further below).
I have regard to the Court’s own records. In a “NOTICE OF FILING AND HEARING” prepared by the Court’s Registry, and inserted as the first page of the application to the Court, the following information appears.
The application was lodged electronically on 26 November 2018 at 7:09:53pm. It was accepted for filing under the Court’s Rules. Under the Rules this would have been the next working day (r.2.05(3)(b)). Under the Rules the notice, in the circumstances of an electronic filing, becomes a part of the application (see r.2.07B(2)).
The Rules also require a Registrar to make one copy of the application document (r.2.07B(1)(c) with the notice referred to in r.2.07B(1)(a) and (b), and to electronically send that document to the email address stated in the cover sheet of the application to the Court (r.2.07B(1)(e)(i)).
There is no evidence from Ms Pham that the Registrar did not comply with the requirements of the Court’s Rules. That is, there is no evidence that the Registrar did not send the notice of the date and time and place of the Court event (of 20 December 2018) to Ms Pham’s email address.
Her evidence (prepared with legal assistance) is that she was not aware of the date because she “did not check” her emails.
In her substantive application to the Court Ms Pham provided both an email address and a residential address for service.
Ms Pham provided her email address to the Court. There is now no explanation whatsoever from Ms Pham as to why she did not expect to receive correspondence in this matter by email. Particularly as it is clear that the email address comprises the four parts of her own name ([email protected]).
Having made the substantive application to the Court (on 26 November 2018) it is not unreasonable to expect that even an unrepresented applicant would take reasonable steps to check her own email address, even using another person’s computer for that purpose. Ms Pham electronically filed her application. She provided an email address. On her own evidence she did not check her email address, until nearly one month later. This is not a reasonable explanation for her non-attendance before the Registrar.
As the Minister submits, Ms Pham was not relieved of her obligation, and certainly not relieved of the reasonable expectation, having provided an email address, to diligently prosecute her own proceeding.
Further, the evidence before the Court is that Ms Pham was also sent correspondence by post by the Minister’s solicitors dated 4 December 2018 (see [5] of the affidavit of Ms Lim). That letter, annexed at “JL1” (see pages 5 – 13 of the affidavit of Ms Lim), amongst other things, provides notice of the Court event before the Registrar at 10:15am on 20 December 2018 (see page 8).
Ms Pham’s evidence makes no reference to not having received correspondence at the residential address for service, or any difficulties in receiving correspondence at that address. Noting it was the address for service she herself provided. On the evidence of Ms Lim, the letter was sent by prepaid post.
In the circumstances I agree with the Minister that Ms Pham has not rebutted the presumption that she received that letter on the seventh working day after it was sent (s.160(1) of the Evidence Act 1995 (Cth)).
This in all the circumstances above also makes her contention that she was unaware of the Court event implausible.
Before the Court, counsel for Ms Pham also sought to argue (contrary to the assertion that she left matters in the hands of her lawyer) that Ms Pham was not legally represented at the time of the making of her substantive application. On what is before the Court I accept that submission.
But that still does not relieve a layperson from prosecuting their own case. It did not require legal training for Ms Pham to take reasonable steps to prosecute her own case by monitoring the date for the next Court event. Noting, that on what is before the Court, and consistent with the submissions she now makes, she made the application to the Court herself.
Ms Pham’s counsel also submitted that Ms Pham’s level of English language skills was, in effect, limited. She pointed to her being represented by a registered migration agent before the Tribunal and that the Tribunal itself recorded in its decision record (at [5]) that the Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.
This is countered by Ms Pham’s own affidavits filed with her substantive application to the Court, and in support of her AIC. The affidavits were made by Ms Pham on 26 November 2018 and 8 January 2019 respectively. The signature on each occasion is witnessed by a different, police officer. However the interpreter’s jurat as provided for on both affidavit forms remains blank.
As set out above I accept that the applicant was not legally represented at the time of the making of the first affidavit (that accompanied her substantive application). However, she was legally represented (on her own evidence) at the time of the making of the second affidavit.
In either case the reasonable presumption that arises is that Ms Pham did not require the assistance of an interpreter in giving her evidence in English. The level of English demonstrated in both affidavits is such that I do not accept the submission that a lack of English proficiency contributed to her non-attendance before the Registrar.
Ms Pham’s counsel also submitted that Ms Pham gave evidence (at [2] of the affidavit of 8 January 2019) that she relied upon support to assist with the “lodgement of the application”. This says nothing about a lack of English capacity such as to not understand the Court’s notice, or correspondence sent to her by the Minister. Her evidence is that she had support in the “lodgement” of the application, not its preparation. Even that remained unsatisfactorily explained before the Court.
In all, therefore, no reasonable or satisfactory explanation for the non-attendance has been provided.
Delay In Making the AIC
The length of the delay in making the AIC is the period from 20 December 2018 to 8 January 2019 given the intervening holiday period I do not regard this as being of such significance in the circumstances such as to argue against the reinstatement.
The Substantive Application
Ms Pham’s counsel conceded that the grounds of the substantive application cannot succeed. I agree. They are mere unparticularised assertions:
“1. The AAT failed to consider relevant considerations and review in a way required by the law (further particulars will be provided once Tribunal file is obtained.
2. That the AAT failed to take in evidence or give sufficient weight to the commitment of the relationship.
3. That the AAT considered evidence which outh to have been excluded or alternatively give in consequential weight.”
[Errors in the original.]
The grounds of the substantive application do not in the circumstances raise any arguable case such that they argue that it is in the interests of justice to reinstate the substantive application.
Other Issues
However, Ms Pham’s counsel raised two other issues which she submitted do reveal potential jurisdictional errors in the Tribunal’s decision. Ms Pham asked the Court to reinstate her application such that these two issues can be fully argued.
It is relevant to the exercise of the Court’s discretion to note the following delay. On her own evidence Ms Pham engaged lawyers in this matter on 24 December 2018. Yet with legal representation she waited until 13 March 2019 (the day before the hearing of the AIC) to raise new proposed grounds of review.
There was no explanation from Ms Pham, let alone evidence to support any such explanation, as to why, if there were reasonable arguments to be raised which indicated jurisdictional error in the Tribunal’s decision, they were not, given the legal representation, raised sooner. That unexplained delay also weighs against the exercise of the discretion in her favour.
In any event, the proposed “grounds” also lack merit such as to call for the reinstatement of the substantive application.
Some background is necessary to understand Ms Pham’s proposed grounds. Ms Pham did not take issue with the Minister’s submissions as to the background facts relevant to the substantive application:
“3. The applicant, a female citizen of Vietnam, arrived in Australia on 12 June 2015 as the holder of a Visitor (subclass 600) visa.
4. On 10 September 2015, the applicant applied for a Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa.
5. On 28 June 2017, a delegate of the first respondent refused to grant the applicant a Partner (Temporary) (class UK) (subclass 820) visa and Partner (Residence) (class BS) (subclass 801) visa.
6. Considering the available information and evidence, the delegate was not satisfied that the evidence demonstrated that the applicant was the spouse or de facto partner of the sponsor for the purpose of sections 5F and 5CB of the Migration Act 1958 (Cth) (the Act).
7. On 12 July 2017, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision, attaching a copy of that decision to her application to the Tribunal.
8. On 16 October 2018, the applicant appeared before the Tribunal via vide link to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.
9. On 30 October 2018, the Tribunal notified the applicant of its decision made on 26 October 2018 to affirm the delegate’s decision.
10. In its reasons, the Tribunal accepted that the applicant and sponsor were validly married for the purposes of the Act (at [23]).
11. However, the Tribunal concluded that the evidence did not support a finding that the applicant and sponsor pooled their financial resources and shared day to day expenses (at [30]). Further, the Tribunal accepted that the parties shared a mailing and delivery address in Ballina in 2015 and 2016, however concluded that on the evidence, the parties had not established a joint household together as a spousal couple (at [37]).
12. The Tribunal was not satisfied that the applicant and sponsor were recognised as a genuine married couple by family, friends and the wider community (at[42]). Further, the Tribunal concluded that the applicant’s claims regarding her plans for a future life with the sponsor to be unconvincing (at [50]).
13. Accordingly, the Tribunal concluded that the applicant and sponsor were not in a “married relationship” for the purpose of section 5F(2) of the Act, and therefore did not satisfy clauses 802.211(2)(a) or 820.211 of the Migration Regulations 1994 (Cth) (Regulations).”
In written submissions the first proposed “ground” was an assertion that the Tribunal failed to take into account relevant evidence, and that this reveals jurisdictional error. Initially the submission relied on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Per Gaudron J at [41] for that proposition. I note that in oral submissions this was, without explanation for the difference, said to be a failure to take into account a relevant consideration.
Subsequently however, the argument appeared to be a failure to consider a claim said to have been made by Ms Pham to the Tribunal. She relies on such authorities as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 75 ALD 630 for that proposition.
The first part of the submission does not assist in circumstances where it was not made clear what statutory obligation bound the Tribunal to consider the claimed relevant consideration.
The second part of the submission appeared to be the basis for the point pressed. It is certainly the case that the Tribunal could commit jurisdictional error if it failed to consider a claim either expressly made or clearly arising from the circumstances presented. This would include a substantial argument raised either by a submission, or in evidence, before the Tribunal.
In that light, the argument appeared to be as follows. The issue to be determined by the Tribunal in the circumstances presented to it was whether Ms Pham (who was an applicant for a partner visa) and her sponsor for the visa were “spouses” for the purposes of the Act. That is, as that term is defined in s.5F of the Act.
The importance of this to Ms Pham’s application to the Tribunal was that to be granted the partner visa, and given cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the MigrationRegulations 1994 (Cth), Ms Pham had to satisfy the delegate, and then relevantly the Tribunal, that she was the spouse of the visa sponsor.
I interpose to note that the Tribunal was specifically required to consider whether Ms Pham and the visa sponsor were in a “married relationship” (s.5F(2)).
Ms Pham’s argument directed attention to [51]–[52] of the Tribunal’s decision:
“51. The Tribunal advised the applicant, pursuant to s.359AA of the Act, that it had information that could contribute to the decision under review being affirmed, and that that information was in the decision of November 2014 by a Member of the then Migration Review Tribunal to remit the decision to refuse her another Visitor visa. Specifically, the applicant had provided sworn testimony at a hearing of the MRT that she received income from accounting work as well as a hairdressing business in Vietnam; that she was genuinely intending to visit Australia temporarily to spend time with her sister; and that she would return to Vietnam for family reasons: she had a husband and two young children in Vietnam whom she cared for. The MRT Member accepted the applicant’s claim that her husband would be looking after her hairdressing business and caring for her children, both then aged under ten, during her temporary absence.
52. The Tribunal advised the applicant that the information was relevant because it indicated that she had provided untruthful information and evidence to the Department and the Tribunal, and this raised doubts about her credibility. The Tribunal advised the applicant she could seek an adjournment and consult with her representative, and seek extra time, before providing a response to the information. The applicant did not seek an adjournment, or further time.”
Ms Pham then directed attention to what was said to be her response to what the Tribunal had put to her at the hearing pursuant to s.359AA of the Act (see [53] of the Tribunal’s decision record):
“53. The applicant acknowledged that she had been dishonest in her dealings with the Department and the MRT. She acknowledged that her sister sponsored her for her second Visitor visa so she could ‘develop the relationship’ with the sponsor. Asked again when she separated from her first husband, she stated that she ‘could not recall’. She stated that she gave ‘incorrect answers’ because she ‘just wanted to come here’. She stated that she does not want to return to Vietnam; that she wants stay here with her husband; that she wants to obtain residence; and that she wants to bring her children here and ‘have a good life’.
[Error in the original.]
Ms Pham’s submission was that (at [54] of the Tribunal’s decision record) the Tribunal found that her relationship with the visa sponsor was “contrived from the outset”.
The Tribunal’s jurisdictional error was said to be that in making that finding the Tribunal did not consider her evidence (which she gave at the Tribunal hearing) which was that she had applied for the visitor visa for the purpose of developing the relationship with the visa sponsor.
Further, that she had a desire to stay in Australia with her husband. I note for the sake of clarity that that is the visa sponsor, not the husband she referred to in the visitor visa application who was said to be in Vietnam with her two small children.
It is to be noted, again, that in relation to her AIC, Ms Pham is not required to establish that the Tribunal’s decision is affected by jurisdictional error. Rather that there is some reasonable argument that the interests of justice call for the reinstatement of the substantive application.
However, even in that light Ms Pham’s argument lacks merit. Ms Pham’s attack on the Tribunal’s reasoning misunderstands the focus, and relevant reasoning of the Tribunal.
The central and critical finding in the Tribunal’s analysis is that Ms Pham’s relationship with the visa sponsor was “contrived from the outset”.
This finding was based on a number of different factors. Those included, as the Tribunal made clear at ([54] of the decision record), the findings (relevant to and arising from the definition of “spouse” as it appears at s.5F of the Act, and with reference to s.5F(3), reg.1.15A (see [22] of the Tribunal’s decision record) that the parties never “pooled their resources; established a joint household; functioned socially as a married couple; or saw the relationship as long-term” (at [54] of the Tribunal’s decision record).
In making these findings the Tribunal did not find Ms Pham or the sponsor to be “credible witnesses”. In this the Tribunal “was not satisfied that the evidence provided by the parties was reliable or credible” (at [55] of the Tribunal’s decision record).
Both [54] and [55] appear in the Tribunal’s decision record under the heading of “Findings”. The “evidence” to which the Tribunal referred was to be found variously under the heading of: “Are the other requirements for a spouse relationship met?” ([24]–[53] of the Tribunal’s decision record).
Tribunal decisions are to be read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6). On a plain reading of the Tribunal’s analysis the Tribunal had regard to Ms Pham’s evidence, and the sponsor’s evidence, in making findings on each of the relevant elements: “Financial aspects of the relationship” (page 3 of the Tribunal’s decision record), “Nature of the household” (page 4 of the Tribunal’s decision record), “Social aspects of the relationship” (page 5 of the Tribunal’s decision record).
In the current case, Ms Pham refers to her evidence given to the Tribunal, and as the Tribunal has recorded that evidence at [51]–[52] and in particular at [53]. She asserts that the Tribunal did not consider her evidence that the visitor visa application was made for the purpose of developing her relationship with the sponsor and that she wanted to stay here with her husband (at [53]). This appears under the subheading of “Any other circumstances of the relationship” (page 7 of the Tribunal’s decision record).
The Tribunal’s adverse credibility finding (as expressed at [55]) is to be read in context as arising from all of the evidence that is set out in the Tribunal’s decision record from [24] to [53]. This includes the evidence which Ms Pham now says the Tribunal did not consider.
Specifically, the Tribunal found that Ms Pham “acknowledged that she had been dishonest in her dealings with the Department and the MRT” ([53] of the Tribunal’s decision record). It also noted that she “acknowledged that her sister sponsored her for her second Visitor visa so she could ‘develop her relationship’ with the sponsor” ([53] of the Tribunal’s decision record). Further, it noted that “she wants [to] stay here with her husband” ([53] of the Tribunal’s decision record).
The Tribunal did not overlook this evidence. It plainly took it into consideration. It was simply not persuaded by this evidence that Ms Pham was a credible witness, or otherwise that it assisted her in meeting the criteria for the grant of the visa.
In short, when the Tribunal’s reasoning as a whole is taken into account, the Tribunal gave weight to other evidence before it in preference to Ms Pham’s statements on which she now relies. It is important to note that contrary to the contention implicitly raised in Ms Pham’s submissions now, the Tribunal is not required to constantly repeat evidence to which it has already referred in its decision record, and on which it subsequently makes findings of fact later in the decision record. That is, in the current case, the Tribunal was not required at [54] to repeat what it had plainly set out at [53].
Although not raised by Ms Pham as part of her argument I note that the Tribunal’s adverse credibility finding was reasonably open to it on what was before it. The Tribunal’s reasoning, arising from the evidence which it identified, was logical.
In all, the first proposed “ground” lacks merit such that it argues for the reinstatement of the substantive application.
Ms Pham also raised a second issue on which she said she sought to rely hopefully, to reveal jurisdictional error in the Tribunal’s decision. Her submission was that the substantive application should be reinstated so that she could obtain a transcript from the audio of the Tribunal hearing to ascertain whether the Tribunal breached s.360 or s.359A or s.359AA of the Act.
Ms Pham also submitted that she should not be denied the opportunity to pursue this avenue given that if she had attended before the Registrar the Registrar would have, as she said usually happens, given her the opportunity to file further evidence, and an amended application.
Counsel for Ms Pham referred the Court to Shrestha v Migration Review Tribunal and Anor (“Shrestha”) ([2015] FCAFC 87, particularly at [50]). The argument was that Ms Pham should not be denied the opportunity to put her case before the Court. The Minister described Ms Pham’s proposal as “speculative”.
First, it is important to note this “issue” does not articulate an argument that arises from anything grounded in any assertion of any actual indication of jurisdictional error.
Second, as set out above Ms Pham was represented by a registered migration agent before the Tribunal (see [6] of the Tribunal’s decision record). There was no evidence from Ms Pham now (with the benefit of solicitors and counsel) let alone any explanation, as to why with the assistance of her migration agent she did not ask the Tribunal for a copy of the audio at the conclusion of the Tribunal hearing, or at some reasonable time thereafter.
Importantly, Ms Pham with legal advice could have done so as at 24 December 2018 or soon thereafter, and obtained a transcript of the Tribunal hearing. Even with the benefit of legal advice, Ms Pham came to the hearing of the AIC some 11 weeks later, and still asks for, in effect, more time to do what could have been reasonably done at an earlier time within that 11 week, time frame, despite, the holiday period.
Explicit in Ms Pham’s argument before the Court was the contention that the denial of this opportunity now to Ms Pham would, “be prejudicial to the applicant’s interests…[and] also could amount to a denial of procedural fairness.”
In my view there is no unfairness to Ms Pham in circumstances where the opportunity she now seeks was available to her since at least 24 December 2018 when she says she was legally represented, if not earlier.
Third, the circumstances in Shrestha are distinguishable from the current circumstances in important ways.
In Shrestha this Court summarily dismissed a substantive application, apparently pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth), in circumstances where the Minister did not seek that order (Shrestha at [9]). The Minister and the applicant in the circumstances of that case had agreed that the matter should have proceeded to a final hearing (Shrestha at [17]). This Court was made aware of this (Shrestha at [18]).
At the first hearing date in Shrestha the applicant’s solicitor did not appear, on the assumption that orders were to be made by consent, as had been previously agreed, that the matter would proceed to a final hearing ([19] at Shrestha).
The Court nevertheless directed that the matter be heard the following day. On that day the Court (at first instance) expressed the view to the applicant’s counsel that the grounds appeared to be “pro forma notice of appeal”, and that no jurisdictional error was apparent. (Shrestha at [20]).
Further, it is important to note that the grounds of the application in that case, contained a specific ground asserting, with particulars, a breach of s.359A and s.359AA of the Act.
That is not the situation in the current case. The Minister does not propose that the matter be set down for final hearing. To the contrary the Minister presses that the substantive application remain dismissed. The opportunity provided to Ms Pham was to have attended on 20 December 2018 and press her application at that time. She failed to do so. She now continues not to have provided a satisfactory explanation by way of evidence, for her non-attendance, in circumstances where she is legally represented, in contrast to a case (Shrestha) where the applicant did appear and was summarily denied that opportunity.
In short in Shrestha the exercise of the Court’s discretion (pursuant apparently to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth)) miscarried because an issue of substance had been identified and the applicant was denied the opportunity to argue it.
As the full Court made clear:
“50…In Spencer at [24], their Honours endorsed what was said in Agar v Hyde (2000) 201 CLR 552 at [57] (Agar):
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
51 The “certainty” of which the Court speaks in Agar is a certainty based on proper and sufficient material, having listened with a mind capable of persuasion to what the parties have had to say, rather than a certainty simply borne of some inner judicial conviction.”
In contrast to Shrestha, in the current case, Ms Pham does not allege any specific matter with particularity that calls to be heard. Rather, Ms Pham seeks to rely on some hypothetical, or speculative, ground without any basis to ground such speculation.
In any event as set out above if there was some basis to the speculation she has had ample time and opportunity (with legal assistance) to identify it.
In all therefore, no satisfactory or reasonable explanation for the delay in bringing forward this proposed “ground” has been provided. The “grounds” of the substantive application lack merit. The one identified proposed “ground” lacks merit. The other proposal (the hypothetical ground) is in the realm of baseless speculation. Ms Pham has had the opportunity to articulate, or even indicate some ground of substance. She has failed to do so.
Conclusion
In the current case Ms Pham has not provided a satisfactory explanation for her non-attendance before the Registrar on 20 December 2018. With legal representation she has not taken the opportunity in the time available to her to raise proposed grounds of relevant merit. In all therefore, the application to reinstate should be refused. I will make an order dismissing the AIC.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 March 2019
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