Ponnaganti v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 571
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ponnaganti v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 571
File number(s): SYG 3265 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 14 June 2023 Catchwords: MIGRATION – Application for reinstatement following dismissal for non-appearance at final hearing – where applicant sought adjournment numerous times before final hearing Legislation: Migration Act 1958 (Cth) ss 116, 360, 362B, 379C, 379G
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 6.01, 13.06, 17.05
Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 14 June 2023 Place: Sydney The Applicant: In person Solicitor for the Respondents: Mr F Rush of Sparke Helmore ORDERS
SYG 3265 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAKSHMAN KUMAR PONNAGANTI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
14 june 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application in a proceeding filed on 11 May 2023 (reinstatement application) is dismissed.
3.In addition to order 2 made on 18 April 2023, the applicant must pay the first respondent’s costs and disbursements of, and incidental to, the reinstatement application fixed in the amount of $2,500.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of s 35.13 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before me is an application in a proceeding filed on 10 May 2023 (reinstatement application) by which the applicant seeks to set aside orders of this Court dismissing an application to show cause filed on 23 November 2018 (originating application) with the effect that said application would be reinstated and proceed to a further and final hearing. That dismissal, on 18 April 2023, was ordered pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). By the originating application, the applicant sought review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 October 2018, which affirmed a decision of a delegate of the Minister (delegate) to cancel the applicant’s subclass 573, Higher Education Sector Visa, under s 116(1)(b) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The background to this matter is primarily derived from the written submissions filed for the Minister on 11 April 2023 in relation to the substantive application, but does not appear to be in dispute.
The applicant, a citizen of India, was granted the visa on 26 November 2014 to study a Masters of Technology (Software Engineering) (Court Book (CB) 61 and 65). That visa had an expiry date of 15 March 2017 (CB 61). Condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) applied to that visa and required the applicant to be enrolled in a full-time registered course (CB 91).
Section 116(1)(b) of the Act provides that the Minister may cancel a visa if they are satisfied the visa holder has not complied with a condition of the visa.
On 3 November 2016, a delegate of the Minister issued to the applicant a Notice of Intention to Consider Cancellation of the visa (NOICC) (CB 1 to 6). The NOICC informed the applicant that there may to be grounds for cancellation of his visa under s 116(1)(b) of the Act because it appeared he may not have complied with condition 8202(2)(a) (CB 2). The NOICC described the condition and informed the applicant that a review of Provider Registration and International Students Management System (PRISMS) records revealed he had not been enrolled in a full-time registered course of study since 9 November 2015 (CB 3).
On 11 November 2016, the applicant’s migration agent responded to the NOICC on his behalf (CB 7 to 54). By that written response, it was claimed that the University at which the applicant was studying had cancelled his enrolment because he failed to pay his fees. The applicant claimed to have not realised he had to pay his fees in the University break between October 2015 and March 2016 and that his grandmother’s cancer diagnosis took an incredible toll on him and left him with no energy or motivation. The applicant also said that he had sought support from a psychologist, and had enrolled in a “simpler course” (CB 54).
On 17 November 2016, the delegate made the decision to cancel the applicant’s visa pursuant to s 116(1)(b) of the Act on the basis that he did not comply with condition 8202(2)(a) (CB 61 to 67). The delegate found, on the basis of the PRISMS records, that the applicant had not been enrolled in a registered course of study between 9 November 2015 and 30 October 2016 (CB 63). The delegate was satisfied the grounds for cancelling the visa outweighed those for not cancelling the visa (CB 67).
On 23 November 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 68 to 69). The applicant again, appointed his migration agent as his authorised representative and provided her email address as being his nominated email address at which to receive correspondence. The applicant also provided a mobile telephone number by that application as being the method of contacting him by telephone.
On 6 September 2018, the Tribunal invited the applicant (via his authorised recipient) to attend a hearing scheduled for 19 October 2018 (CB 74 to 77). The hearing invitation was sent by email to the email address of the applicant’s authorised representative as nominated in the review application. The invitation complied with the relevant requirements of the Act in the following ways:
(a)it was sent to the applicant by email to the last email address provided to the Tribunal by the recipient in connection with the review pursuant to s 379A(5)(b);
(b)the invitation afforded the applicant a period (in excess) of the prescribed period of notice of the hearing required by s 360A(4);
(c)the applicant was told of the effect of s 362B (namely, the consequences of the failure of the applicant to appear before the Tribunal); and
(d)the invitation informed the applicant of the time, date and location of the hearing, as required by s 360A(1) of the Act.
On each of 12 and 19 October 2018 respectively, SMS hearing reminders were sent by the Tribunal to the mobile phone telephone number provided in the application. Information in the Court Book shows that the SMS messages failed to be delivered (CB 92). The applicant did not respond to the hearing invitation and failed to attend the hearing before the Tribunal on 19 October 2018 (CB 79 to 81 and 87 at [9]). On 24 October 2018, the Tribunal proceeded to make a decision pursuant to s 362B(1A)(a) of the Act, without taking any further action to enable the applicant to appear before it.
The Tribunal’s decision
The Tribunal set out the background to the matter and identified the documents received by the Department in response to the NOICC (CB 86 to 87 at [3] to [7]). The Tribunal noted that the applicant had apparently not been enrolled in a registered course since 9 November 2015 (CB 87 at [6] to [7]).
The Tribunal recorded that the applicant did not appear at the scheduled hearing to which he had been validly invited in accordance with s 379A(5) of the Act, noting that he had not responded to that invitation. The Tribunal observed that the applicant was sent two separate SMS reminders about the hearing and was put on notice that if he did not attend, and an adjournment was not granted, it might make a decision without further notice. In those circumstances, the Tribunal decided to make a decision without taking any further action to enable the applicant to appear before it pursuant to s 362B(1)(a) (CB 87 at [8] to [9]).
The Tribunal outlined the requirements of condition 8202 of Schedule 8 to the Regulations and found, on the basis of the Department’s records and the applicant’s response to the NOICC confirming he had not been enrolled since the end of 2015 until his enrolment in late October 2016, that he was not enrolled in a registered course and therefore had not complied with condition 8202(2) (CB 87 to 88 at [10] to [13]).
The Tribunal proceeded to consider the exercise of the discretion to cancel the visa (CB 88 at [14]). The Tribunal had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ (CB 88 at [14]).
The Tribunal reasoned that the purpose of the applicant’s travel to, and stay in, Australia was to study, but he had neither been studying for a substantial period of time (CB 88 at [15]) nor demonstrated any compelling need to remain in Australia. The Tribunal found that these factors supported the visa cancellation (CB 88 at [17]).
The Tribunal recorded there was no information before it that the applicant had breached any of his other visa conditions, and gave this factor limited weight in favour of non-cancellation (CB 88 at [18]).
In relation to the degree of hardship which may be caused, the Tribunal found the applicant was likely to be disappointed if his visa was cancelled, but found that without any information to demonstrate what hardship the applicant might face, this factor did not favour a decision other than cancellation (CB 88 at [19] to [20]).
Turning to the circumstances in which the ground for cancellation arose, the Tribunal found that the applicant’s claimed lack of awareness about the deadline to pay his enrolment fees was disingenuous, and did not accept he would not be aware of the due date for his enrolment fee (CB 89 at [22]). While the Tribunal accepted his grandmother’s illness would be distressing, it noted there was very little detail about why he could not subsequently enrol in a course of study, nor explanation as to why he did not return to India to be with her, given his concern and claim to have felt helpless in Australia (CB 89 at [23]). The Tribunal did, however, give these circumstances a little weight in support of non-cancellation (CB 89 at [24]).
The Tribunal found there was no evidence the applicant had been uncooperative towards the Department, and found this weighed against the exercise of discretion to cancel the visa (CB 89 at [26]).
The Tribunal acknowledged that if the applicant’s visa was cancelled, and he left Australia while on a Bridging visa or unlawful, he may be subject to Public Interest Criterion 4014. However, it found this possibility would be brought about by the applicant’s own action and that the seriousness of his breach outweighed the difficulties the applicant might face returning to Australia (CB 89 at [28]). The Tribunal also found there was no evidence before it that any international obligations would be breached as a result of the cancellation of the visa, and therefore, gave this factor no weight (CB 90 at [29]).
Considering the applicant’s circumstances as a whole, the Tribunal concluded that the visa should be cancelled, and affirmed the decision under review (CB 90 at [32] to [33]).
PROCEEDINGS IN THIS COURT
On 23 November 2018, the applicant applied to this Court for judicial review of the delegate’s decision and raised the following two grounds of review:
1. The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant consideration.
a. The Applicant applied for a review of his decision. As there was no consistency in processing time of the review application, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.
b. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account that the applicant was unable to attend the hearing at the Tribunal.
c. The Second Respondent did not consider that the applicant’s circumstances and the fact that they had not received the communication from the Tribunal regarding the hearing date.
2. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not provide the applicant with an opportunity to reschedule the hearing date due to a lack of communication between the applicant and the Tribunal.
By the originating application, the applicant provided a particular Gmail address as being his email address for service in these proceedings (Gmail). The matter was initially docketed to another Judge of this Court, who has since retired. On 17 December 2018, a Registrar of the Court made orders by consent for the preparation of the matter for hearing. By those orders, the applicant was granted leave to amend his application on or by 18 February 2019. He did not do so. The matter was stood over for a callover before a Registrar of the Court on 18 February 2020, on which date the matter was further adjourned to a fixture to be advised.
The proceedings were later transferred to the Central Migration Docket until when, on 6 December 2022, the proceedings were docketed to me. On that date, I made orders in Chambers listing the matter for hearing before me at 10.15 am on 18 April 2023. Among those orders was an additional grant of leave to the applicant to amend his application by 14 March 2023. No amended application was filed in time, or at all. Additionally, those orders required the applicant’s written outline of submissions to be filed 14 days before the hearing, namely, on or by 4 April 2023. No submissions were filed by or for the applicant either.
Adjournment requests
On 6 December 2022, when the matter was listed for hearing, a listing notice and a copy of the orders made on that day were sent to the parties by email. A copy of that email was tendered for the Minister at the reinstatement hearing.[1] In relation to the applicant, the listing notice was sent to the Gmail address he had provided by the originating application, being a valid address for service pursuant to r 6.01(6) of the Rules.
[1] see [40(a)] below
On 23 March 2023, the applicant wrote to the Court, seeking an adjournment of the final hearing (first adjournment request). A copy of that email was tendered for the Minister at the reinstatement hearing.[2] By the first adjournment request, the applicant said that he wanted his hearing postponed and that:
Unfortunately, due to unforeseen circumstances, I am unable to attend this hearing as scheduled and would require the hearing to be postponed.
[2] see [40(b)] below
The first adjournment request was refused on the basis that no detail had been provided as to why the applicant could not attend the hearing.[3] Refusal of the first adjournment request was conveyed to the parties by email from my Associate.
[3] see [40(c)] below
On 15 April 2023, the applicant sent an email to the Court again requesting a postponement of the hearing (second adjournment request). He stated he was “not well and have been tested COVID-positive”. Four photographs were attached to the email, which can be described as follows:
(a)An EFTPOS receipt for $14.95 from Homebush Pharmacy dated “14 APR 23”;
(b)a COVID-19 rapid antigen testing strip showing a red line against “T” and “C”; and
(c)two photographs of a COVID-19 Ag Self-Test kit (packaging and contents respectively).
On 17 April 2023 at 10:06am, my Associate emailed the parties and advised that in the absence of proper evidence in support of the second adjournment request, it was refused and the hearing would proceed and a Microsoft Teams link would be circulated in advance of the hearing to enable the applicant to participate remotely, if required.[4]
[4] see [40(d)] below
At 1:45pm on 17 April 2023, the applicant emailed my Associate making a further request to postpone the hearing (third adjournment request). That email was tendered by the first respondent at the reinstatement hearing.[5] That email attached a statutory declaration dated 17 April 2023, which was also tendered at the reinstatement hearing.[6] By that statutory declaration, the applicant stated (errors in original):
I am not feeling well, I was COVID-19 positive. so, plz postpone my hearing.
[5] see [40(e)] below
[6] see [40(f)] below
At 1:51pm on 17 April 2023, my Associate sent an email to the parties requesting that the solicitor for the Minister indicate the Minister’s position in relation to the third adjournment request, in light of the statutory declaration. By reply email at 3:43pm, the solicitor for the Minister said the following:
We are instructed to oppose the applicant’s request for an adjournment of tomorrow’s hearing for the reasons essentially the same reasons already explained by her Honour as set out in the emails below.
Namley [sic], the Minister agrees that any adjournment application should be supported by probative evidence. The Minister does not consider that the evidence provided to date demonstrates that the applicant himself has tested positive to COVID-19. Further, the statutory declaration provided by the applicant is not probative evidence in relation to whether he is fit to attend the hearing.
Namely, the Minister does not consider that either the initial material provided or the applicant’s statuary declaration is evidence which demonstrates whether and if so, why a medical condition would prevent him from participating effectively in the hearing, including by MS Teams: NAKX v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 per Lindgren J at [6].
At 4:01pm on 17 April 2023, my Associate emailed the parties and confirmed that despite the third adjournment request the matter remained listed for hearing and advised that the parties should appear via the Microsoft Teams link that had been provided.
On 18 April 2023, there was no appearance by, or for, the applicant in the Microsoft Teams forum (or at Court). On that occasion, the Minister’s solicitor sought dismissal for non-appearance. After considering that application, I acceded to it for the reasons which I gave and which took into account the aforementioned background, the history of adjournment requests made by the applicant and the lack of probative evidence, including that the applicant had not provided any medical evidence, let alone anything which would rise to the required level prior to the hearing: see NAKX v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 per Lindgren J at [6].
Ultimately, the application was dismissed, pursuant to r 13.06 of the Rules.
Reinstatement application
On 11 May 2023, the applicant filed the reinstatement application pursuant to r 17.05 of the Rules, together with an Affidavit made by him in support. I listed the matter for a directions hearing on 18 May 2023 before me to make orders for the preparation of the reinstatement application for hearing. At that directions hearing, I listed the reinstatement application for hearing before me on 14 June 2023 at 10.15am.
Among the orders made at the directions hearing was that the applicant must file and serve written submissions in support of the reinstatement application 14 days before the hearing, namely, on or by 31 May 2023. The applicant did not file any documents by that date, or at all. The Minister filed written submissions as ordered.
The applicant has appeared before me today in person. The Minister is represented by a solicitor.
Reinstatement principles
Pursuant to r 17.05(2)(a) of the Rules, the Court has the discretion to set aside orders made in the absence of a party. It is a matter for the Court to determine whether to exercise such discretion. The Court’s discretion on a reinstatement application ordinarily requires consideration of the following three factors (which are not exhaustive) and whether, on balance, they tend for or against the reinstatement (MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J at [7]):
(a)whether the applicant has provided a reasonable excuse for his non-attendance at the hearing at which his application was dismissed;
(b)whether the applicant’s substantive proceedings would have reasonable prospects of success if the proceedings were reinstated. Even where a reasonable excuse for a failure to appear exists, the Court will not exercise its discretion in the defaulting party’s favour if there is little or no prospect of that party succeeding on the substantive proceeding; and
(c)the existence and nature of any prejudice to the Minister.
These factors were explained to the applicant at the outset of the hearing and he was then re-prompted to address them in turn throughout at the hearing before me this morning. The applicant’s Affidavit in support of the reinstatement application was read without objection. The applicant was not required for cross-examination.
The applicant’s Affidavit in support of the reinstatement application was read by him. The Court Book was received into evidence and marked Exhibit “1R”. The following documents were also tendered for the Minister:
(a)Exhibit “2R” – email from Court to parties annexing listing notice and orders made on 6 December 2022;
(b)Exhibit “3R” – email chain dated 23 March 2023 from applicant to Court seeking adjournment and response from Court to parties;
(c)Exhibit “4R” – email chain dated 14 and 15 April 2023 from Sparke Helmore to applicant and from applicant to Court and Minister’s attaching 4 colour photographs and seeking adjournment;
(d)Exhibit “5R” – email from Court to parties in response to Exhibit “4R”;
(e)Exhibit “6R” – email from applicant to Court and Minister’s solicitors attaching statutory declaration (see [40(f)] below); and
(f)Exhibit “7R” – statutory declaration made by the applicant on 17 April 2023 in Parramatta.
Explanation for non-attendance and delay
The applicant’s explanation for his non-attendance on 18 April 2023 is set out in his Affidavit filed in support of the reinstatement application. By that Affidavit, the applicant makes a number of assertions of error by the Court and alleges (with errors in original) that the Court did:
Not consider my attempt to provide evidence of the compelling and compassionate circumstances that evolved due to this matter. I have been affected by psychological and mental illness with the ongoing stress and anxiety, such as, I have developed depression and have been seeing a doctor regarding my illness. Further to this, I have been taking medication to assist with my mental condition.
The Minister submitted that the above statement is not a satisfactory explanation for the applicant’s non-attendance at the hearing. Further, the Minister relies on the applicant having made three requests for the hearing to be adjourned, none of which raised mental health as being a basis upon which an adjournment was sought. As such, the first respondent says the Court cannot be criticised in the manner he suggests for “not considering” his attempt to provide such evidence. Even if it is accepted that the applicant was suffering from mental health issues, there is no evidence explaining how those issues prevented his attendance at the hearing. These assertions are said to not provide an adequate explanation for the non-attendance. I agree for the reasons that follow.
The alleged COVID-19 condition was not addressed in the applicant’s Affidavit. However, the Minister makes the following submissions in relation to the applicant’s claim to have had COVID-19 as at the time of the hearing, saying that it is not a satisfactory explanation because the material sent to the Court does not demonstrate:
(a)whether it was the applicant who had tested positive for COVID-19;
(b)when the rapid antigen test (which is the subject of the photographs which form Exhibit “4R”) was purchased or taken;
(c)even if the applicant did have COVID-19, the dates on which that was; and/or
(d)why the applicant was unfit to participate in the hearing due to feeling unwell, including by Microsoft Teams.
Further, the Minister relies upon the applicant having apparently been well enough to attend Parramatta the day before the hearing to execute his statutory declaration,[7] noting his address on the statutory declaration was in Homebush.
[7] see [40(f)] above
Even accepting that the applicant had COVID-19 on the day of the hearing (which is in considerable doubt based on the material before me) I do not consider that this, without more, is a satisfactory explanation for his non-participation in the hearing. The claim is not supported by any probative medical evidence and the Court had enabled him to appear remotely by Microsoft Teams, which opportunity he did not take.
In those circumstances, there has been no reasonable explanation for his non-attendance. Accordingly, this factor weighs against reinstatement.
When asked at hearing to address the question of the explanation for delay, the applicant gave several different explanations. Firstly, he reiterated that he had COVID-19 as at the time of the hearing. He said that after that he had been “feeling a little bit sick”. The applicant submitted that he was not working and as a result that he did not have any money. When asked, the applicant was unable to explain the correlation between any impecuniosity and an inability attend the hearing on 18 April 2023. The applicant said that he had felt “very tense” and had essentially “not felt up to” attending the hearing. In relation to the renewed assertion that the applicant had COVID-19 and also noting that the statutory declaration, which forms Exhibit “7R”, is expressed in the past tense, saying that the applicant was COVID-19 positive, I sought to explain to the applicant that the materials which had been advanced before the Court on 15 April 2023, and which form Exhibit “4R”, do not demonstrate that the applicant himself had COVID-19.
As detailed at [27] above, attached to the email which forms Exhibit “4R” is an array of photographs, which I previously explored as part of the dismissal decision. In essence, there are three photographs which show the same matching background. The first is an EFTPOS receipt for a Homebush Pharmacy purchase. However, I agree with the Minister that there is nothing to indicate that the purchase was made by the applicant, nor does the EFTPOS receipt specify at all what item/s was purchased. That photograph has a black background. The two other photographs with a black background are the packaging for a COVID-19 rapid antigen test, together with a picture of what seems to be the unused contents of that box. A fourth photograph, which has a completely different background, is a photograph of a used COVID-19 rapid antigen test showing a positive result.
However, and as I indicated to the applicant at the reinstatement hearing, there is nothing before the Court to demonstrate that the test in the photographs was a test taken by him such that the Court could be satisfied that the applicant had COVID-19 at the time of the hearing.
In relation to the suggestion by the applicant’s Affidavit that he had mental health issues, while I acknowledge that there is some material in the Court Book surrounding the Tribunal hearing that indicated that the applicant had previously experienced some depression, there is no material before me to explain that the applicant was suffering from any such issues in 2023. Nor is there any evidence to show, that such issues prevented him from attending the hearing. I also note that among the multiple explanations and adjournment requests that were made by the applicant as the hearing advanced in this matter, mental health was not raised as one of those explanations. It is something which has been raised for the first time in the Affidavit in support of the reinstatement application, without corroborating medical evidence.
I accept the submission of the Minister that, to the extent that the applicant relies on his having felt unwell on the day of the hearing, there is no evidence to show that he, himself, had COVID-19, nor any other ailment. The evidence does seem to indicate that the applicant felt well enough to travel around greater Sydney. When I asked the applicant about the circumstances surrounding the making of the statutory declaration the applicant said that he had gone to his friend’s house for this, and that his friend’s house was in Harris Park. The statutory declaration records that it was made in Parramatta. The applicant says that Parramatta and Harris Park are adjacent to one another. That may well be so, but whatever the circumstances surrounding the making of the statutory declaration, the applicant concedes (albeit from the bar table) the he was travelling around Sydney at that time. There is no explanation given, let alone a persuasive one, as to why it is that the applicant was able to attend to that task but was so unable to participate in the hearing that he could not attend at least by some remote means. Given that he was travelling in Sydney, I am not persuaded the applicant felt either so contagious, or so unwell, that he could not leave his house. The applicant also did not attend the hearing by Microsoft Teams, despite this option having been facilitated by the Court.
In all of the circumstances of this case, I find the applicant’s explanation for his non-attendance at the hearing, is not reasonable. It is to be viewed in the context of a series of attempts to have this matter adjourned, and the fact that the explanation offered is now additional to those which were proffered in support of those various adjournment requests made in advance of the hearing. The Minister submits, and I accept, that the explanation should also be viewed in the context of the applicant having not engaged with the Tribunal nor attending the Tribunal’s hearing and having, essentially failed to participate in these proceedings by not filing any amended application or any written submissions including when he was ordered to do so.
In all the circumstances of this case, the applicant’s explanation for non-attendance, as now proffered, is not reasonable or persuasive and this weighs against reinstatement.
Period of delay
The period between the proceedings being dismissed and the applicant making the reinstatement application was approximately three weeks’ time. There is no specific explanation for the applicant as to why it took him that period in order to seek the reinstatement, other than what he said from the bar table today, which was that he did not know which processes to follow. The delay, while brief, weighs against reinstatement.
The period of delay in seeking the reinstatement is not extensive, but there is no evidence before the Court as to how long any alleged recovery period took. There does not seem to have been particular diligence or haste to have the matter reinstated, and this, additionally, weighs against reinstatement being granted.
Prejudice
In terms of the question of prejudice, the applicant was asked to explain to the Court any matters that he wished to raise in relation to the situation or consequences which might befall him if the matter were not reinstated, such that the Court could understand the question of prejudice from his perspective. The applicant said that he had no submissions to make.
The Minister does not claim to be prejudiced if the matter were to be reinstated, beyond the usual consideration that there is a public interest in the finality of administrative decision-making. The fact that such prejudice is usual does not diminish it and, in the circumstances of this case which I have already outlined above including the context in which the proceedings were dismissed following the applicant’s non-attendance after making multiple adjournment attempts, that prejudice is a legitimate consideration. Conversely, if the proceedings were not to be reinstated they are, in this Court at an end and the applicant will have lost the opportunity to agitate the proposed grounds of review. Overall, and depending on the assessment of those proposed grounds, I presently find this factor to be neutral in an overall evaluation.
Prospects of success of substantive application
Turning then to the merits of the proposed grounds of review, I took the applicant through the grounds one at a time and asked him to tell me whatever he wished to say in relation to them and in particular, their arguability. In terms of whether the merits of the proposed grounds warrant reinstatement, whether grounds have a reasonable prospect of success in the substantive proceeding they are usually to be assessed at an impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was) and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475.
Ground 1
The first ground of the originating application was read to the applicant, and he was asked to say what he wished in support of it, and anything else in relation to why he says it is sufficiently arguable as to warrant reinstatement. When asked to speak to this ground, the applicant said that he was using another mobile telephone number. As a result, the applicant says that he did not receive the hearing reminders from the Tribunal. I took the applicant to pages 68 and 69 of the Court Book. The applicant conceded that the mobile number which appears at CB 69 was, in fact, his mobile telephone number at the time he applied to the Tribunal, but that he had later changed his mobile telephone number by the time of the Tribunal hearing.
I explained to the applicant that it was his obligation if he had changed his contact details during the process of the Tribunal review, to update those details with the Tribunal.
On the materials before the Court, it appeared that the Tribunal complied with its procedural fairness obligations under Part 5, Division 5 of the Act. In circumstances where the applicant was validly invited to attend a hearing under s 360 of the Act (as outlined at [9] above), and failed to appear, the Tribunal had power under s 362B(1A) of the Act to either:
(a)make a decision on the review without taking any further action to enable the applicant to appear; or
(b)dismiss the application without any further consideration.
The Tribunal opted to proceed under s 362B(1A)(a) of the Act and in so doing, appears to have complied with the requirements under s 362B of the Act.
The Tribunal’s discretion to proceed under s 362B must be exercised reasonably: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. However, this does not require the decision to be one that is advantageous to the person subject to that decision: SZVFW (supra) at [15] per Kiefel CJ and at [96] per Nettle and Gordon JJ. Further, it will be a rare case where the Court would find the exercise of a discretionary power to be unreasonable where the reasons demonstrate a justification for the exercise of that power: SZVFW at [84] per Nettle and Gordon JJ.
The material before the Court appears to support an assessment that the Tribunal’s exercise of its discretion to proceed pursuant to s 362B(1A)(a) in this case was not legally unreasonable. The Tribunal’s reasons demonstrate a justification for the exercise of that power. There is no obligation to further contact an applicant exists either expressly or impliedly in the statute and the Tribunal’s decision was not one that no decision-maker could have reasonably made. That is particularly so in circumstances where:
(a)the applicant did not respond to the Tribunal’s hearing invitation;
(b)two SMS hearing reminders were sent to the applicant’s mobile phone number, albeit unsuccessfully;
(c)the applicant failed to attend the Tribunal hearing; and
(d)the applicant failed to update his contact details and to communicate with the Tribunal about the reasons for his non-attendance.
The Court is willing to accept that the applicant may not have received the hearing invitation. Relevant to this ground of review, is s 379G of the Act which provides:
Authorised recipient
(1) If:
(a) a person (the applicant ) applies for review of a Part 5-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient ) authorised by the applicant to receive documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(1A) For the purposes of subsection (1):
(a) paragraph (1)(a) is taken to also apply to an application for review of a Part 5-reviewable decision where the application is not properly made under section 347; and
(b) in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under that section).
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.
(3A) In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
Section 379G(1) mandates that the Tribunal give the applicant’s authorised recipient documents instead of giving them to the applicant. The applicant’s registered migration agent had been appointed as his authorised recipient and, as such, the Tribunal was required to correspond with her as opposed to with the applicant. The Tribunal did so, as is apparent from the correspondence which is contained at CB 75 to 77. Section 379C (5) of the Act has the effect that the applicant was deemed to have received the Tribunal’s application on 6 September 2019.
As already noted, to the extent that the applicant says he was unaware of the hearing, that is a matter between him and his migration agent. The Tribunal attempted to send hearing reminders to the applicant at the mobile number, but as has already been outlined, the applicant did not receive them because he had changed his mobile number and failed to inform the Tribunal of that fact.
In all the foregoing circumstances, I am not satisfied that ground 1 of the originating application has a sufficient prospect of success, such that it would warrant reinstatement for consideration at a final hearing.
Ground 2
The second ground of review in the originating application alleges that the Tribunal failed to consider why the applicant was unable to attend the hearing. When asked to speak to this ground, the applicant again said he did not know about the hearing, he did not know what happened, and he also did not check. As the Minister correctly submitted, there was no request made by the applicant to reschedule the hearing or to otherwise explain why it was that he might not be able to attend it. If that was because the applicant’s migration agent (being his authorised recipient) failed to inform him of the hearing then, again by reference to s 379G of the Act, this is not something on the material before the Court which is sufficiently arguable as giving rise to jurisdictional error. Further, fraud is not alleged.
In all the circumstances of this case, there does not appear to be any arguable basis upon which to contend that the Tribunal failed to take into account why the applicant did not attend. The Tribunal is not be required to speculate as to why an applicant had not attended. Similarly, it is not required to investigate. The Tribunal reminded the applicant by SMS to the mobile telephone number provided of the hearing. As noted above, the information in the Court Book indicates that the hearing reminders failed to transmit which is unsurprising because he had changed his mobile number and failed to tell the Tribunal. As such, I am of the view that ground 2 lacks a reasonable prospect of success.
Overall, I am not satisfied there is anything arising from the grounds of review which are sufficiently arguable that would warrant the proceedings being reinstated to enable those grounds to be fully ventilated and determined at a final hearing. This weighs against reinstatement.
CONCLUSION
In circumstances where the applicant’s explanation for non-attendance at the hearing before me is not reasonable or persuasive, where there is no satisfactory explanation for why the reinstatement was sought some weeks after the dismissal and where the merits of the proposed grounds are not sufficiently arguable, the factors weigh predominantly against reinstatement.
Given the lack of merit in the proposed grounds, my conclusion that the factor of relative prejudice to the applicant was neutral remains as earlier expressed.
Accordingly, in all of the circumstances of this case, the reinstatement application should be dismissed and I will so order.
COSTS
Consequent upon my dismissal of the reinstatement application, the solicitor for the Minister seeks an order that the applicant pay the Minister’s costs of and incidental to the reinstatement application fixed in the sum of $2,500. When asked whether or not the applicant wished to say anything in relation to whether costs should be paid and, if so, in what amount, the applicant said he had no submissions to make.
In all of the circumstances of this case I am satisfied that, in relation to the reinstatement application, costs ought follow the event. In relation to the reinstatement application, the parties attended a directions hearing before me at my order on 18 May 2023, following which the Minister complied with the Court’s order of mandatorily filing written submissions, which and the matter has proceeded to an oral hearing.
Having regard to the fact that the court scale presently provides for an interlocutory hearing amount of $4,189.38, I am satisfied that the lesser amount sought by the Minister is, in all the circumstances of this reinstatement application reasonable. I will make the additional costs order.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 30 June 2023
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