Sharma v Minister for Immigration

[2018] FCCA 2398

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2398

Catchwords:
MIGRATION – Application for reinstatement following a dismissal of the proceeding – where Applicant appeared initially and failed to reappear when the matter was recalled – application dismissed for non-appearance.  

Legislation:

Migration Act 1958 (Cth), s.362B

Migration Regulations 1994 (Cth), r.13.03C

Applicant: AMAR SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1474 of 2017

Judgment of: Judge Hartnett

Hearing date: 21 August 2018

Delivered at: Melbourne

Delivered on: 21 August 2018

REPRESENTATION

The Applicant: Appearing in person initially and then failing to appear when the matter was re-called.

Solicitor acting as Counsel for the First Respondent: Ms Jackson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application in a case filed 26 July 2018 is dismissed for non-appearance pursuant to r.13.03C(1)(d) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1474 of 2017

AMAR SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. On 10 July 2017, the Applicant applied to the Court for review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 31 May 2017, which dismissed the Applicant’s application for a Student Temporary (Class TU) (Subclass 572) visa (‘the visa’), in circumstances where the Applicant failed to appear at the scheduled Tribunal hearing. The Tribunal had, on 16 June 2017, confirmed its decision to dismiss the Applicant’s application for the visa.

2. By orders made by Registrar Ryan on 21 March 2018, the judicial review application was listed for hearing on 29 June 2018 at 10.00am.

3. On 29 June 2018, there being no appearance by or on behalf of the Applicant, the Court ordered as follows:-

   “(1) The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules (2001) (Cth).

   (2) The Applicant pay the costs of the First Respondent fixed in the sum of $3,667.”

4. Thereafter, the Applicant filed an application in a case on 26 July 2018, seeking the following orders:-

   “1. That the order made to dismiss my judicial review application on 29^th June 2018 in my absence is to be set aside.

   2. That the order is to be made to reinstate the hearing of the matter.

   3. That the order is to be made accord me procedural fairness in my case.”

5. The Applicant’s application in a case was supported by an affidavit affirmed by the Applicant on 26 July 2018. In the affidavit of evidence the Applicant, relevantly, affirmed:-

   “1. On the day of my hearing, I arrived Court on time and enquiry at the counter for the Court number.

   2. There was a communication gap in understanding the Court room No and mistakenly I reached to wrong Court.

   3. After speaking to the Court clerk and discovering that I am in wrong Court.  I rush to the correct Court but I was late and my name was already called.

   4. I would request the honourable Court to give me a fair chance to represent my case and set aside the notice served on me…”

   (Errors in original).

6. The Applicant’s application in a case was listed for hearing this day, 21 August 2018.  The Applicant appeared in person; Ms Jackson appeared for the First Respondent.  The matter was listed with many other matters. It was stood down to be heard during the course of the morning.  Thereafter, the Applicant was called outside the Court, at the following times, with the Applicant failing to answer the call, and no appearance being forthcoming from the Applicant.  Those times were 10.22am, 10.32am, 10.45am, 11.02am, 11.28am, 11.57am, 2.10pm, and 2.42pm.

7. Both Ms Jackson and the Associate in the courtroom tried to locate the Applicant in the Commonwealth Courts building, but to no avail.  Ms Jackson’s office also telephoned the Applicant at 10.36am as to his whereabouts, and the imminent hearing of the matter. The Applicant indicated to Ms Jackson’s office that he thought the matter was being heard later that day. He was told to return immediately back to the Court. He agreed to do so. The Applicant had not returned to the Court.

8. In essence, the Applicant left the building, to not return. He also failed to make himself available by telephone, or any other means to progress his hearing.

9. In these circumstances, the Minister sought the dismissal of the application in a case and an accompanying costs order in the sum of $1,000.  The Court made orders dismissing the proceedings for non-appearance and awarded costs in favour of the First Respondent.

Background

1. The Applicant was granted his most recent Student (Class TU) (Subclass 572) visa onshore on 30 April 2012, which was valid until 14 April 2014.  On 14 April 2014, he lodged an application for a Student (Class TU) (Subclass 572) visa.  At the time of initial assessment, the Department of Immigration and Border Protection (‘the Department’) was not satisfied the information included in the application was sufficient to enable a full assessment of the application.

2. A review of the Provider Registration and International Student Management System (‘PRISMS’) indicated that the Applicant had been enrolled in a number of courses during his time in Australia as a student.  Those courses as set out in the delegate of the Minister’s decision of 30 October 2014, were as follows:-

   a)Certificate IV in Business;

   b)Diploma of Business;

   c)Certificate III in Automotive Mechanical Technology;

   d)Diploma of Management;

   e)Certificate III in Hospitality;

   f)Certificate IV in Hospitality;

   g)Certificate III in Commercial Cookery;

   h)Diploma of Hospitality; and

   i)Certificate IV in Commercial Cookery.

3. On 15 April 2014, the Department sent an email to the Applicant that included a request for comment on his study history in Australia in relation to the Genuine Temporary Entrant (‘GTE’) criterion. In particular, the Applicant was required to comment on his study history since his arrival in Australia, his reasons for choosing to undertake the courses specified in his application, as well as demonstrate significant ties to his home country.  The Applicant responded to that email with an email to the Department on 14 May 2014. Having examined the submitted documents and statements of the Applicant, as well as other documentary evidence, the delegate had regard to the following considerations, as set out in the decision of the delegate of 30 October 2014:-

   “You have been the holder of a Student visa (as a primary applicant) since 26 November 2010.  From the mentioned date, you have been enrolled in 9 courses (including 3 current enrolments).  You have provided evidence of completion for the following courses:  Certificate IV in Business dated 8 February 2012 and Diploma of Management dated 25 November 2013.  Therefore, in almost 4 years as a student in Australia you have only completed two vocational level courses with the highest completed course being at the Diploma level. Both courses were no more than 6 months in duration. This indicates a lack of academic progress and achievement over a significant period of time.

   A review of the course subjects undertaken by you indicate you have studied (or had enrolments to study in) the following subject streams; business, automotive mechanical technology, management, hospitality and commercial cookery.  There therefore appears to be limited study consistency in the courses undertaken and no clear progression within one or more related subject streams.”[1]

   [1] Court Book filed 3 April 2018, 92.

4. The delegate concluded that the delegate was not satisfied that the Applicant genuinely intended a temporary stay in Australia.  The delegate stated:-

   “…I am concerned you are using the Student visa program to circumvent permanent migration programs and maintain ongoing residence.  As such, I am not satisfied you are a genuine applicant for temporary entry and stay as a student.”

5. The Applicant sought review of the delegate’s decision in the Tribunal.  By correspondence of 7 April 2017, the Tribunal invited the Applicant to attend a hearing on 31 May 2017 at 9.30am at a location indicated, with the Applicant being told specifically:-

   “If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.  A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal.  If the Member confirms the dismissal, the decision under review is taken to be affirmed.”

6. Neither the Applicant nor the Applicant’s authorised representative attended the hearing on 31 May 2017.  The Tribunal had, prior to that time, also sent two text messages to the Applicant’s mobile, on 24 and 30 May 2017 respectively.  No response to the hearing invitation was received.

7. By non-appearance decision of 31 May 2017, the Tribunal dismissed the review application under s.362B(1A)(b) of the Migration Act 1958 (Cth) (‘the Act’) without any further consideration of the application. It notified the Applicant of the non-appearance decision and his right to reinstatement via email to his authorised representative on 1 June 2017.

8. As the Applicant did not apply for reinstatement by 15 June 2017 (or at all), the Tribunal confirmed its decision to dismiss the review application on 16 June 2017, under s.362B(1E) of the Act. The Tribunal notified the authorised representative of the Applicant of the confirmation decision by email.

9. The First Respondent submitted this day that the Applicant’s application for judicial review, filed on 10 July 2017, did not raise an arguable case.  The Court concurs with that submission. The Applicant’s first ground of review, in his initiating application, provided no particulars of what errors the Applicant said the Tribunal committed. To that extent it was meaningless. The Applicant’s second ground of review did not allege any jurisdictional error in the Tribunal’s decision. The second ground simply offered an explanation as to why the Applicant could not be contacted.

10. The Court accepts the Minister’s submission that the Tribunal acted lawfully and reasonably in dismissing the application for failure to appear and in confirming that decision. The Tribunal exercised its discretion reasonably, that is, its discretion to proceed under s.362B(1A)(b) of the Act to dismiss the review application, and the Tribunal was empowered to affirm its decision under s.362B(1A)(b) of the Act pursuant to s.362B(1E) of the Act.

11. Had the Applicant appeared to prosecute his case there would have been no proper basis on which to re-instate the proceedings as they had no prospect of success.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 29 August 2018