SHINE v Minister for Immigration
[2020] FCCA 2807
•20 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHINE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2807 |
| Catchwords: MIGRATION – Temporary Graduate Class VC, Subclass 485 visa – adjournment. |
| Legislation: Migration Act 1958 (Cth), s 65. |
| First Applicant: | SEELIYA PUTHENPURACKAL SHINE |
| Second Applicant: | JOHN SHINE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2114 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 15 September 2020 |
| Date of Last Submission: | 15 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 October 2020 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | No appearance |
| Counsel for the First Respondent: | Mr A. Cunynghame |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The proceeding is adjourned to 10.00am on Wednesday, 14 October 2020.
By 4.00 pm on Friday, 9 October 2020, the applicants file and serve any amended application, any further affidavits and any submissions on which they intend to rely.
Order that the applicant pay the costs of the first respondent of and incidental to this day, fixed in the sum of $1,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2114 of 2018
| SEELIYA PUTHENPURACKAL SHINE |
First Applicant
| JOHN SHINE |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from ex tempore reasons)
By application dated 20 July 2018, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal, made on 21 June 2018, affirming a decision of a delegate of the first respondent (Minister), refusing to grant the first applicant a Temporary Graduate Class VC, Subclass 485 visa, pursuant to section 65 of the Migration Act 1958 (Cth) (Act). The Tribunal also affirmed a decision of the Minister respecting the second applicant (being the first applicant’s husband) that he did not satisfy a criterion that he was a “member of the family unit of a person who holds a Subclass 485 visa”. His application for a Temporary Graduate Class VC, Graduate Work, Subclass 485 (Skilled – Graduate) visa was therefore also refused.
The essential issue which arises in this application turns upon whether the application for the visa was accompanied by evidence that within three years before the date of lodging the application, the first applicant had undertaken a language test, as required by the applicable Ministerial instrument, IMMI 15/062. The visa application was made on 25 August 2017 and the relevant test results were dated 16 August 2014.
Before the Tribunal, the first applicant agreed that she had not undertaken the requisite English language test in the period of 36 months before the date on which her application was lodged. As the first applicant could not satisfy the primary criteria for the visa her husband, as secondary applicant, could not meet the requisite criteria either.
I will not rehearse the background to the matter, other than to identify the applicable procedural history.
On 28 July 2018, the applicants filed an application for judicial review of the Tribunal’s decision, together with an affidavit affirmed by the first applicant, to which she exhibited a copy of the reasons and adduced some further evidence, which I have considered. By their application, the applicants indicated that no interpreter was required. On 24 August 2018, a response was filed on behalf of the Minister, in which an order was sought for dismissal of the application, on the basis that the Tribunal’s decision was not affected by jurisdictional error, and that the applicant invited a merits review of the Tribunal’s decision.
On 10 December 2019, orders were made by consent, vacating a directions hearing. On 11 December 2019, certain orders were made by consent, including that the application be listed for a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001. Orders were made affording the applicants opportunities to file any amended application, affidavits and submissions. Despite those opportunities, no amended application, submissions, or further evidence has been filed. In those circumstances, the Minister’s submissions were responsive to the matters set out in the application and affidavit.
When the matter was called on for hearing this day, the first applicant appeared. She informed the Court that although she had prepared “a document”, this had been stolen from her car in June 2020, and for that reason, she was unable to present her “evidences”. When asked whether she had informed the solicitors for the Minister of this development, I understood that the Minister had been informed in substance that the first applicant intended to appear this day, and that she had asked for “more time”, without specifically indicating whether that “more time” was for the purpose of allowing her to prepare any amended application, submissions, or evidence – or otherwise to prepare the matter of hearing. I infer that no mention was made of the car break-in.
As raised with the solicitor advocate for the Minister, it is a matter of particular difficulty when dealing with self-represented litigants, to ensure that they are afforded a proper opportunity to put the arguments before the Court which they would wish to rely upon in support of their application. Contextually, a number of matters should be noted.
First, where the Court provides a hearing date to one party, it does so necessarily to the detriment of others. There are many litigants in this Court who have urgent matters, and are entitled to have them heard with all due dispatch. When a party is in a position to present their argument, but has not prepared their material, a question must arise whether they have been afforded an adequate opportunity to do so.
Secondly, in this case, the procedural history outlined above would suggest that the applicants have taken no substantive steps in the period, July 2018 – September 2020, to prepare any amended application, affidavits or submissions in support of their application for judicial review.
Thirdly, it is a matter of commonplace that many litigants in this Court now appear self-represented. The fact that a party does not have a lawyer does not, in or of itself, in every case, suffice to justify the conclusion that a matter should be adjourned.
Fourthly, in my view, the matters submitted by the first applicant in this matter are less than persuasive. In particular, I am most troubled at the belated nature of the submission that the first applicant’s car had been “broken into” and that a document had been taken, and that now, months later, it is said that for this reason, the matter is unable to proceed.
As Mr Cunynghame correctly observed, there is absolutely no evidence before the Court in support of the matters relied upon by the applicant. Moreover, the first applicant, building upon the suggested break-in to her motor vehicle, now seeks to rely upon the current Covid-19 pandemic as compelling the conclusion that she will not be able to obtain “the evidences”, or to take the steps that are necessary in order to have the matter prepared for trial.
In my view, in the context of this case and the circumstance that so little has happened in a period of over 2 years, I am loath to allow the matter to drift on interminably. Parties have an opportunity to prepare their litigation, but it is not for the Court to ensure that they do so.
I am prepared to afford the applicants a further limited opportunity to prepare their case, but it will be a matter for them whether or not they do that. I am not prepared to allow the matter to be adjourned on the basis that the world must wait until Covid-19 has come to an end, so that the first applicant, as she would have it, is then in a position to collect her “evidences” and be in a position to prepare the matter for hearing.
I record Mr Cunynghame’s formal objection to the adjournment, but in my opinion, in all the circumstances, the fairest thing which should be done for all parties is to allow a brief adjournment.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Associate:
Date: 20 October 2020
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