Sandhu v Minister for Immigration

[2014] FCCA 1760

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1760

Catchwords:
MIGRATION – Application under rule 16.05(2)(a) of the Federal Circuit Court Rules to set aside decision to dismiss application – no reasonable explanation for failure to attend hearing – no arguable case of error on part of Tribunal – application dismissed.

Legislation:

Federal Circuit Court Rules2001 (Cth), rule 16.05(2)(a)

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), Schedule 4, 4020(1)

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: SUKHPRIT SINGH SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1753 of 2013

Judgment of: Judge Whelan

Hearing date: 19 June 2014

Date of Last Submission: 19 June 2014

Delivered at: Melbourne

Delivered on: 19 June 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms J Randall-Smith

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application in a Case filed 29 May 2014 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,000.00.

NOTATION:

A.The costs payable by the Applicant pursuant to Order 2 herein are in addition to the costs ordered to be paid by the Applicant pursuant to Court Order dated 20 May 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1753 of 2013

SUKHPRIT SINGH SANDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction:

1. What the Court is being asked today is to set aside an order that was made on 20 May 2014, dismissing an Application (“the substantive application”)[1] for review of a decision by the Migration Review Tribunal (“the Tribunal”). This application says that the Applicant is seeking to have the matter reinstated because he did not turn up on the hearing day because he did not know what date the case was being heard.[2] In an affidavit in support of that application, the Applicant says, “I did not remember the date of my hearing date because I called to federal Court few times for asking hearing date they didnt get response”.[3] The Applicant says he then came to the Court on

   
   

   29 May 2014 and had been told that the matter had been heard on

   
   

   20 May 2014.

   [1] Application filed 21 October 2013.

   [2] Application in a Case filed 29 May 2014.

   [3] Affidavit of Sukhprit Singh Sandhu filed 29 May 2014, at p.1.

2. The Applicant also filed a statement in support, which goes essentially to the merit of the decision made by the Tribunal. In his substantive application, the Applicant sought a judicial review of a decision of the Tribunal of 18 September 2013, which affirmed a decision of a delegate of the Minister to refuse the Applicant a skilled working visa.[4] 

   [4] Application filed 21 October 2013.

Background

1. The Applicant is an Indian national who arrived in Australia originally on a student visa in October 2006. He applied for a skilled visa on

   
   

   21 May 2009.

2. The Minister’s delegate refused the application for the visa on

   
   

   31 January 2012, on the basis that the Applicant did not satisfy the requirements of the Migration Regulations 1994 (Cth)
   (“the Regulations”). In particular, the Applicant did not comply with the requirements of Public Interest Criterion 4020(1) of the Regulations.[5] In essence, that requires that there be no evidence before the Minister, that the Applicant has given or caused to be given to:

   [5] Migration Regulations 1994, Schedule 4, 4020(1).

   ·The Minister;

   ·The Tribunal; or

   ·

   To a relevant assessing authority, which would include

   
   

   Trades Recognition Australia (“the TRA”),

   a bogus document or information that is false or misleading.

3. The Applicant applied to the Tribunal for a review of the delegate’s decision on 20 February 2012. On 6 June 2013, the Tribunal wrote to the Applicant and the letter, which is contained at pages 58 and 59 of the Court Book,[6] invited him to comment or respond to certain information which the Tribunal considered could be a reason or part of a reason for affirming the decision by the delegate. The information, in particular, related to an employment reference, which it was contended was fraudulently produced or procured; and to the fact that:

   ·That reference had been provided to the TRA in order to obtain a positive skills assessment; and

   ·A letter had been written to the Applicant on 15 August 2011, asking him to comment on those same allegations, but he had not responded.[7]

   [6] Court Book filed 31 January 2014.

   [7] Court Book filed on 31 January 2014 at pp.58-59.

4. The Applicant was also invited to attend a hearing which was originally scheduled for 10 July 2013. On 9 July 2013, the Applicant wrote to the Tribunal seeking to reschedule the hearing date due to illness, which the Tribunal agreed to. On 1 August 2013, the Tribunal wrote to the Applicant, noting that he had not provided any comment or response in reply to the letter previously sent on 6 June 2013, and that he had therefore lost his entitlement to a hearing. The Tribunal however invited the applicant to provide any comment or response to the information by 16 August 2013.[8]

   [8] Ibid at p.68.

5. On 23 September 2013, the Tribunal made its decision. The Tribunal found that the Applicant had lost his entitlement to a hearing by reason of having failed to respond to the s.359A invitation. The Tribunal accepted that a work reference issued to the Applicant was fraudulently produced or procured and that the Applicant had provided that reference to the TRA in order to obtain a skills assessment. The Tribunal therefore found that the Applicant had given or caused to be given to the Minister a bogus document. The Tribunal was therefore not satisfied that the applicant was able to meet the Public Interest Criterion 4020(1) and therefore was not entitled to be issued with the visa which he sought.[9]

   [9] Ibid at pp.71-75.

6. On 21 October 2013, the Applicant lodged an application for judicial review, seeking an order that the decision of the Tribunal be quashed.  The only ground for the application stated was, “I am not saticifide [sic] with MRT decision on my application”.[10] On 18 December 2013, the Applicant signed a draft consent order which set his application down for hearing at 10.00 a.m. on 20 May 2014. On 19 December 2013, confirmation of that listing was sent to the Applicant at the address contained on his application. 

   [10] Application filed 21 October 2013 at p.3.

The First Respondent’s Submissions

1. The First Respondent, in submissions to the Court today, submits that the Applicant is required to establish, essentially, in this case, two things: 

   ·First, that he has a reasonable explanation for his failure to attend the Court on 20 May 2014; and

   ·Second, that there is merit in his application.

2. The First Respondent submits that it is for the Applicant to establish that it is in the interest of justice for his case to be reinstated. With respect to the merit of the Applicant’s case, the First Respondent submits that:

   ·There was no error in the Tribunal’s finding;

   ·There was no material before the Tribunal to satisfy it that the requirements of Public Interest Criterion 4020 of the Regulations were met; and

   ·There was no error in the Tribunal’s procedure.[11]

   [11] First Respondent’s Contentions of Fact and Law filed 12 May 2014, p.3 at paras.20- 21.

3. The requirements of s.359A(1) of the Migration Act 1958 (Cth)

   
   

   (“the Act”) were met by the Tribunal, and as the Applicant did not respond to the letter of 6 June 2013, there was no requirement on the Tribunal to allow the Applicant to appear before it to present any evidence or argument. Further, the only ground in the application itself alleges no error on behalf of the Tribunal; simply that the Applicant was not happy with the decision.

Conclusions

1. Where an application is dismissed for want of appearance by the applicant, the applicant is entitled to seek an order that the case essentially be reinstated. However, in those circumstances the onus is on the applicant to present a satisfactory explanation for his or her lack of appearance, and that there is an arguable case in the application for judicial review.

2. The matter has been expressed differently in different judgments before the Court, but essentially the requirement is to establish:

   ·That there was a reasonable excuse for the party’s absence from the hearing in which the proceedings were struck out;

   ·Whether there is any prejudice to the respondent, and I note that, in this case, the Respondent claims no prejudice; and

   ·Whether the applicant has a reasonably arguable prospect of success in the substantive application. 

   Essentially, there is no purpose in reinstatement if, should the matter be reinstated, there is no reasonable chance that the application will succeed.[12]

   [12] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530.

3. In this case, the Applicant signed a draft order by consent on
   18 December 2013 which specified that the matter was to be heard at 10.00 a.m. on 20 May 2014. That date was confirmed in a notice sent to him at the address contained on his application the following day. The Applicant told the Court today that he left Australia in the first week of January. I am not satisfied that the correspondence would not have, in the normal course of the mail, reached him prior to him leaving.

4. In any event, while I accept it is possible that he forgot the date of the hearing, I do not consider that to be a satisfactory explanation for his failure to appear. The Applicant has stated, more than once, to the Court today that this is a matter of his future and his career. It is reasonable to assume that he would have kept any document in relation to a Court hearing, and that he would have remembered the date, which was of such significance to his future.

5. The submissions in support of the application in a case raise issues concerning the merits of the Tribunal’s decision. They purport to argue before the Court, matters concerning the basis upon which the Tribunal made its decision. The Applicant was given the opportunity, on

   
   

   6 June 2013, to make those representations to the Tribunal and did not do so. In fact, on the basis of the letter of 6 June 2013, the Applicant had actually been invited to make such representations to the Department of Immigration and Citizenship (“the Department”) as early as 15 August 2011, and had not responded. Further, the Applicant’s submission raised no issue concerning any jurisdictional error on the part of the Tribunal.

6. The substantive application does not disclose any basis for error on the part of the Tribunal, only that the Applicant was dissatisfied with the outcome. It is not in the interest of justice to reinstate an application where there appears to be little prospect of success. There is little purpose in reinstatement of the application if it does not have a reasonable chance of leading to a different outcome. I am satisfied that the Tribunal complied with the provisions of s.359A of the Act in inviting the Applicant to comment on the matters which had caused the delegate to refuse the visa application.

7. The Applicant was given several opportunities by both the delegate and the Tribunal to respond to the allegations concerning the use of a bogus document to procure a positive skills assessment from the TRA. He chose not to do so. The Tribunal found that, on the information before it, the Applicant did not meet the Public Interest Criterion 4020(1) of the Regulations. It did so on the basis of unchallenged evidence provided by the Department concerning the obtaining of false work references for the purpose of using them to obtain positive skills assessments from the TRA.

8. Indeed, by the time the Tribunal dealt with the matter, the TRA had revoked the skills assessment referred to in the Applicant’s visa application. There was no jurisdictional error in the Tribunal’s finding or decision to affirm the delegate’s decision. For those reasons, the application under rule 16.05(2)(a) of the Rules for the setting aside of the order is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate:

Date:  6 August 2014