Sharma & Anor v Minister for Immigration & Anor
[2017] FCCA 966
•12 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 966 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal for non appearance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: AXI15 v Minister for Immigration & Anor [2016] FCCA 947 AXI15 v Minister for Immigration [2016] FCA 1316 AZAFB v Minister for Immigration [2015] FCA 1383 BZAHM v Minister for Immigration [2015] FCA 675 Minister for Immigration v SZFHC [2006] FCAFC 73 Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888 |
| First Applicant: | MINA SHARMA |
| Second Applicant: | BINOD LAMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3014 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2017 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3014 of 2016
| MINA SHARMA |
First Applicant
| BINOD LAMA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 October 2016. On that day, the Tribunal confirmed an earlier non-appearance decision made on 20 September 2016. As the Tribunal noted in its confirmation decision, it was required to confirm the earlier dismissal decision because the applicants had not sought reinstatement of their application. Background facts are otherwise conveniently set out in the Minister’s outline of submissions filed on 5 May 2017.
On 5 March 2015, Ms Sharma applied for a Temporary Work (Skilled) (Subclass 457) visa with Vertex Print Pty Ltd (the prospective sponsor) as the prospective sponsor.[1] Ms Sharma’s husband, Mr Lama, was included as a secondary visa applicant.[2] Ms Sharma appointed a migration agent as her representative.[3]
[1] Court Book (CB) 1-13
[2]CB 3
[3]CB 5
On 29 May 2015, Ms Sharma was invited to comment on adverse information, namely that her prospective sponsor did not have an approved nomination which meant that her visa application was unlikely to be successful.[4] Ms Sharma was allowed 28 days to respond to this information.
[4] CB 49-52
On 5 June 2015, Ms Sharma’s representative informed the Department that Ms Sharma did not wish for her application to be withdrawn and asked the Department to finalise the application.[5]
[5] CB 53
On 8 July 2015, the delegate of the Minister (delegate) refused to grant Ms Sharma’s Subclass 457 visas because she was not satisfied that Ms Sharma met cl 457.223(4)(a) as Ms Sharma was not the subject of an approved nomination.[6]
[6] CB 55-62
The Tribunal proceedings and decision
On 10 July 2015, Ms Sharma applied for a review of the delegate’s decision.[7] She appointed the same migration agent to represent and assist her in connection with that review[8] and provided a copy of the delegate’s decision with that application.[9]
[7] CB 64-65
[8] CB 65
[9] CB 65; Item 14(b) of CB index.
By a letter dated 20 July 2015, the Tribunal invited the applicants to comment on the validity of their application.[10] The Tribunal informed Ms Sharma that in order to make a valid application for the review of the decision to refuse to grant a Subclass 457 visa, Ms Sharma must be sponsored by an approved sponsor[11] or there must be a pending application for review of a decision not to approve the sponsor as a standard business sponsor.[12] The Tribunal indicated that it was of the view that the application was not valid because at the time the review application was lodged, there was no approved nomination nor was there a pending sponsorship.
[10] CB 75-78
[11] s.338(2)(d)(i) of the Migration Act 1958 (Cth) (Migration Act)
[12] s.338(2)(d)(ii): CB 77
On 20 July 2015, Ms Sharma’s agent informed the Tribunal that the sponsor was seeking review in association with a nomination refusal currently being reviewed by the Tribunal.[13] Ms Sharma’s agent attached a copy of the acknowledgment of application letters from the Tribunal in respect of the prospective sponsor’s review application.[14]
[13] CB 79
[14] CB 81-82
By a letter dated 24 August 2016, the Tribunal invited the applicants to attend a hearing scheduled before it on 20 September 2016.[15] The invitation appears to have complied with the requirements of s.360, and was sent to the applicant’s appointed representative on 24 August 2016[16] in compliance with ss.379A(5) and 379G of the Migration Act. In accordance with s.379C(5) of the Migration Act, the invitation was taken to have been received by the applicants that same day. The invitation also complied with the requirements of ss.360A and 379A and provided a period of notice in excess of the prescribed period.[17]
[15]CB 83-90
[16] (CB 83)
[17] The applicant was deemed to have received the invitation on 24 August 2016 and the prescribed period of 14 days in reg 4.21(4)(b)(i) ended on 7 September 2016.
No response was received from the applicants or their representative and the applicants failed to attend the scheduled hearing.[18]
[18] CB 91
The Tribunal elected to exercise the power in s.362B(1A)(b) to make a written statement under s.362C to dismiss the application without any further consideration of the application or information before it, which it did on 20 September 2016.[19]
[19] CB 96
The Tribunal noted in its “non-appearance decision” record[20] that the review applicants were invited under s.360 of the Migration Act to appear before the Tribunal but did not appear at the scheduled time and place. As no satisfactory reason for the non-appearance had been given, the Tribunal decided to dismiss the application without further consideration of the application or information before the Tribunal.
[20] CB 96
Notification of the Tribunal’s decision dismissing the application was sent by email to the applicants’ representative on 21 September 2016.[21] Accordingly, the applicants were taken to have received that notification that same day by reason of s.379C(5).
[21] CB 92-95
Pursuant to s.362B(1B) of the Migration Act, it was open to the applicants to apply to the Tribunal for reinstatement of their application. They had 14 days after receiving notice of the decision under s.362C to apply for such reinstatement. Section 362B(1B) relevantly provides:
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
The letter dated 21 September 2016 informed the applicants that they may apply, in writing, for reinstatement of the application by 5 October 2016 setting out why they failed to appear at the hearing.[22]
[22] CB 94
On 11 October 2016, the Tribunal confirmed its decision to dismiss the application. The Tribunal found that the applicants had been notified of the dismissal decision and were given a copy of the written statement setting out the decision and reasons for the decision, in accordance with s.362C(5).[23] The Tribunal found that the applicants had not applied for reinstatement of the application within 14 days after receiving notice of the decision.[24]
[23] CB 102, [3]
[24] s.362B(1B): CB102, [4]
Present proceedings
These proceedings began with a show cause application filed on 2 November 2016. The applicants continued to rely upon that application. It is supported by a short affidavit filed with it. That affidavit simply identifies the applicants and attaches the Tribunal decision. The only evidence I have before me is the court book filed on 1 March 2017. Only the Minister filed submissions for today’s hearing in accordance with procedural orders made by a registrar.
The Minister concedes that the dismissal decision is also a decision that may be the subject of a judicial review application made pursuant to s.476 of the Migration Act. Sections 362C and 477(3)(b) of the Migration Act clearly contemplate that a dismissal decision is a migration decision capable of being challenged.
If the applicants wished to seek that this Court make orders for constitutional writs in respect of the dismissal decision, they would require an extension of time within which to do so. They were notified of that decision on 21 September 2016 (through their authorised representative)[25] and are therefore beyond the 35 day time limit within which to bring proceedings challenging that decision.
[25] CB 92-96
As the applicants have sought judicial review of the confirmation decision within time, the Minister would not oppose the granting of an extension of time within which to seek relief in respect of the dismissal decision.
I discussed with the applicants in oral argument the assertion that the Tribunal decision is effected by procedural unfairness. I explained to them that the Tribunal had no option but to confirm the earlier dismissal decision because the applicants had not sought reinstatement of their application following the dismissal decision. I inquired of the applicants whether there was any issue relating to the earlier dismissal decision. Ms Sharma told me from the bar table that she and Mr Lama had not received the Tribunal’s hearing invitation, and that is why they did not attend the Tribunal hearing.
She also told me that they did not receive the Tribunal’s notification of the dismissal decision, and that is why they did not seek reinstatement. It is apparent from the court book that both the Tribunal’s hearing invitation and its notification of the dismissal decision were sent to the applicants’ nominated migration agent at the correct email address. The applicants assert that their agent did not inform them either of the hearing or of the dismissal of the application. There was nothing to indicate that the agent did not receive the notification.
Indeed, Ms Sharma told me from the bar table that when she rang her agent’s office to check progress with her application, she was told of the confirmation of the dismissal. Those allegations, if true, would suggest at least carelessness on the part of the agent. However, there is nothing to suggest any deliberate or fraudulent failure by the agent. Neither is there anything to suggest any fault by the Tribunal in its notification processes.
As the applicants were validly invited to appear before the Tribunal as required by s.360 of the Migration Act but failed to appear on the scheduled day and at the scheduled time and place, s.362B(1A) relevantly applied and the Tribunal was empowered to exercise the powers contained in s.362B(1A) without conducting further inquiries.[26] Subsections 362B(1) and 362B(1A) of the Migration Act are in the following terms:
[26] Minister for Immigration v SZFHC [2006] FCAFC 73 at [39], which was recently applied in BZAHM v Minister for Immigration [2015] FCA 675
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a)is invited under section 360 to appear before the Tribunal; but
(b) does not appear be fore the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
In circumstances where the applicants were validly invited to attend the hearing under s.360 and failed to appear, it was open to the Tribunal to exercise its discretion under s.362B(1A)(b) to dismiss the application without any further consideration of the application or information before it.[27] The Tribunal complied with its obligations under s.362C by notifying the applicants of this decision (and reasons for the decision) to dismiss the application and informed them that they had 14 days after notification of the decision to apply under s.362B(1B) to have the matter reinstated. No error is revealed in the Tribunal’s approach.
[27] Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888 at [34]
This leads me to conclude that this application is doomed to fail whether it is limited to the confirmation decision or whether it is extended to the initial dismissal decision. In that regard, I agree with the Minister’s submissions relating to the grounds of review.
The sole ground of review makes a vague allegation that the Tribunal erred by failing to “contact” the applicants in relation to the hearing. The applicants put the blame on their agent. Relevantly, the applicants were invited to attend a hearing by a letter dated 24 August 2016 sent to the applicants’ representative by email to the email address nominated in the application for review.[28] As the applicants appointed a representative to act on their behalf in connection with the application for review, the Tribunal was required to send the invitation to the representative and the applicants were taken to have received the invitation.[29]
[28] CB 83-90
[29] S.379G Migration Act
As the hearing invitation was transmitted by e-mail in accordance with s.379A(5) and 379C(5) provides that the applicants were taken to have been notified of the hearing invitation at the end of the date on which the document was transmitted (namely, 24 August 2016). The invitation also complied with the requirements of ss.360A and 379A and provided a period of notice in excess of the prescribed period.[30] There was no error in the Tribunal’s process in inviting the applicants to a hearing scheduled on 20 September 2016.
[30] The applicant was deemed to have received the invitation on 24 August 2016 and the prescribed period of 14 days in reg 4.21(4)(b)(i) ended on 7 September 2016.
Although there is nothing to indicate that the Tribunal attempted to contact further the applicants and/or their representative, I accept the Minister’s submissions that there was no obligation on the Tribunal to contact the applicants by alternative means[31] and the fact that they were represented before the Tribunal distinguishes the matter from AZAFB v Minister for Immigration [2015] FCA 1383 (AZAFB).[32] I note that the Minister formally submits that the decision in AZAFB is erroneous, and the better view of the law is that stated in Minister for Immigration v SZFHC [2006] FCAFC 73. Further, subsequent decisions have regarded AZAFB as not setting down a general principle that the Tribunal is required to make efforts to contact an applicant using telephonic means.[33]
[31] AXI15 v Minister for Immigration & Anor [2016] FCCA 947 at [15]-[16] (upheld on appeal in AXI15 v Minister for Immigration [2016] FCA 1316
[32] AXI15 v Minister for Immigration & Anor [2016] FCCA 947 at [15]-[16] (upheld on appeal in AXI15 v Minister for Immigration [2016] FCA 1316)
[33] See, for example, AXI15 v Minister for Immigration and Border Protection [2016] FCA 1316 at [9] (per Pagone J).
Conclusion
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth)(Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicants did not wish to be heard on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 May 2017
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