Roy v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 903
Federal Circuit and Family Court of Australia
(DIVISION 2)
Roy v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 903
File number(s): SYG 249 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 187 visa – application dismissed for non-appearance – application for reinstatement. Legislation: Migration Act 1958 (Cth) s 359AA Cases cited: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Patel v Minister for Immigration and Border Protection [2015] FCA 881
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 21 October 2022 Date of hearing: 21 October 2022 Place: Parramatta Counsel for the Applicants: The First Applicant appeared for the Applicants Solicitor for the Respondents: Mr McCaughan of MinterEllison ORDERS
SYG 249 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SOURAV ROY
First Applicant
ANINDITA CHOWDHURY
Second Applicant
AHANA ROY (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.The application for re-instatement is dismissed.
2.The First Applicant is to pay the First Respondent’s costs, fixed in the amount of $1,000.00.
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).
REASONS FOR JUDGMENT
(as revised from transcript)JUDGE HUMPHREYS
introduction
This is an application for the reinstatement of an application for judicial review involving the first applicant, Mr Sourav Roy, and his wife and two children.
The applicants are citizens of Bangladesh. On 2 May 2016, the first and second applicant applied for a Regional Employee Nomination (Permanent) (Class RN) Subclass 187 visa (‘Regional Employer visa’). On 13 July 2017, the third and fourth applicants were added to the visa application. On 9 April 2018, a delegate of the Minister for Immigration (‘the delegate’) refused to grant the applicant’s their Regional Employer visa.
On 27 April 2018, the applicants filed an application to the Administrative Appeals Tribunal (‘the Tribunal’) for a merits review of the delegate’s decision. On 21 January 202, the Tribunal affirmed the decision of the delegate not to grant the applicants their Regional Employer visa.
The applicants now seek or sought judicial review of the Tribunal’s decision.
Reinstatement
The applicant is self-represented. When the matter came on before the Court on 8 August 2022, the Court dismissed the matter because the first applicant did not appear at the Final Hearing, which was listed at 9:30am. The applicant had provided the Court with an email in which he said that he was suffering from COVID. The Court attempted to ring the applicant on the day of the hearing, but he did not answer. There was no medical evidence before the Court that the applicant was unfit to participate in any hearing. , and in those circumstances the Court felt it appropriate to dismiss the matter. The applicant has now filed an application for reinstatement.
The law
The applicable legal principles in relation to an application for reinstatement was set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. A reinstatement is discretionary. The Court does not have to reinstate a matter, but there are three factors the Court needs to consider.
First of all, whether or not there was a reasonable excuse for the party’s absence when the proceeding struck out.
Second of all, the existence and nature of any prejudice that might flow to the other party, in this case, the Minister, and the extent to which that prejudice can be assuaged by an adjournment or an order for costs or other relief which the Court is empowered to order.
Thirdly, whether the applicant has a reasonably arguable prospect of success on the substantive application. If not, there is no purpose in reinstating the matter.
consideration
In terms of whether or not there was a reasonable excuse for the applicant not being present on the last occasion, as has been indicated, the matter was listed for Final Hearing. The applicant emailed the Court and said that he had COVID-19. Regrettably, no
tmedical evidence was provided. No medical evidence has been provided today to support the assertion that the applicant had COVID and was unable to participate in even a telephone hearing. In the absence of medical evidence to support the claim, this does not necessarily sway in favour of reinstatement. Had medical evidence been provided, which would have clearly indicated that the applicant was suffering from COVID and was unable to participate in a telephone hearing that then might have assisted the applicant in having the matter reinstated.In relation to the second matter, this is the existence and nature of any prejudice to the Minister, it is fair to say that the Minister quite properly concedes that no real prejudice flows, but that is not the end of the matter. There is an overriding principle that matters involving the review of the administrative decisions, including matters that relate to prerogative writs, there needs to be an end to that litigation as efficiently and as quickly as possible. That consideration, from the Court’s point of view, in this case where there was an application made to reinstate quite promptly, is neutral in relation to whether or not the matter should be reinstated.
The last matter that needs to be considered is whether or not there is a reasonably arguable case. It is not necessary for the Court to go through in the level of detail that would be required if this matter was the subject of a final hearing in relation to the applicant’s grounds or likelihood of success. What the Court needs to do is look at it from a reasonably impressionistic basis to see whether or not there is an arguable case.
The applicant provided me with some written submissions. The Court notes that this is the first time the Court has been provided with any written submissions. On the last occasion, there were no written submissions before the Court, notwithstanding the fact that the Court had actually ordered that written submissions in support of the case be provided. The applicant has been assisted in relation to the provision of these written submissions, and the Court has read them.
In terms of the particular matters that, first of all, ground 1, that the Tribunal failed to reschedule the hearing to have a face-to-face hearing and instead went ahead with Microsoft Teams. From the Court’s point of view, there is absolutely every entitlement of the Tribunal under the relevant sections of the Migration Act 1958 (Cth) (“the Act’) to hold a hearing in any manner that it thinks is appropriate, and that includes Microsoft Teams. These provisions provide for face-to-face, but also includes audio hearings. The mere fact that the hearing was not held face-to-face is not a matter that would warrant intervention by this Court on the basis of jurisdictional error.
Given the particular circumstances that Australia and the world has lived in over the past few years because of COVID-19, the use of electronic hearings has, in fact, become as much the norm as anything else in terms of face-to-face hearings and, in particular, in this Court, it is almost the norm now, at least in 50 per cent of matters, for them to be conducted electronically either through telephone or via Microsoft Teams.
Ground 2 is a suggestion the Tribunal failed to provide adequate procedural fairness to the applicants. The Court is not satisfied that that is made out. The requirements of the Tribunal in relation to procedural fairness are set out in Part 5, Division 5 of the Act. There is nothing before the Court that indicates that the Tribunal failed to undertake the relevant matters. In this case, the Tribunal complied with the procedures under s 359AA of the Act and the applicant was given time and, indeed, an extension of time to respond to information that was provided to him during the course of the hearing. There was no requirement on the Tribunal to provide all information of what it was aware of in advance of the hearing to enable the applicant to hear it.
The Court is satisfied the relevant procedures under s 359AA of the Act were complied with. There is no evidence to the contrary, such as a transcript, and no procedural fairness issue arose in relation to ground 2, and it has no merit.
Ground 3 contends that the Tribunal failed to ask relevant questions. The Tribunal had information that the applicant did not have a nomination from the relevant employer. The ground was, in fact, misconceived. The Tribunal had proof that the nomination of the particular employer had been refused. That being the case, it was in a situation whereby it was a one-off process and so the nomination related to a particular employer. That had been refused. There was then no requirement for the Tribunal to look any further than that, because having an approved nomination is an essential requirement under cl 187(2)(ii), (3) of Schedule 2 to the Migration Regulations 1994 (Cth). This clause sets out a number of criteria and they are cumulative. So each one has to be met. If any one particular criteria is not met, in this case, there was not an approved employer nominator, then the applicant cannot meet the criteria for the grant of the visa.
Ground 4 is not being pressed.
Ground 5 is an allegation the Tribunal failed to provide a further extension. The applicant states they advised the Tribunal the employer was willing to nominate and implicitly requested and extension. The Tribunal failed to provide any reason to refuse such a request. It was submitted that that was unreasonable. The Court is not satisfied that it was the case. The willingness of the nominator to re-nominate was actually irrelevant, because the Tribunal was required to perform the task based on the material that was before it. A refusal to postpone the decision was legally reasonable and the reasons for the refusal are contained in paragraphs 19 to 20 of the decision and disclose an evident and intelligible justification. The Tribunal was not required to postpone a hearing indefinitely: Patel v Minister for Immigration and Border Protection [2015] FCA 881 at [11].
The final matter, which is, in fact, probably the most important factor in this one, is this. Even if any jurisdictional error existed, it is submitted to the Court that it would have been futile to remit the matter back to the Tribunal for further consideration, because the Tribunal would be required to come to the same decision. A nomination for an Employer Nomination visa requires at the time of the decision there to be an approved employer nominator. In this case there was not.
The application for that sort of visa is specific to the particular employer and the nomination process. So the fact that the employer’s nomination was refused meant that the process could not go any further. It is a situation whereby, in this case, there is a lack of an approved nominated employer that this then is fatal to the entire proceedings, even if the Court was to find there was jurisdictional error, which it has not. The Court’s view is that the application must be dismissed, because it cannot be satisfied that there are reasonable grounds for the matter on the basis of the matters that have been put forward to the Court. The application cannot, and indeed could not, ever succeed in the particular circumstances where there was not an approved employer nominator.
So irrespective of whether or not the Court is satisfied as to whether or not the excuse for you not turning up was reasonable, it is satisfied that there was a fatal flaw in the substantive application. In those circumstances the appropriate course is to refuse the application to reinstate.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 21 October 2022
SCHEDULE OF PARTIES
SYG 249 of 2021 Applicants
Fourth Applicant:
ANAYA ROY
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