Sikari & Anor v Minister for Immigration & Anor (No.2)

[2019] FCCA 1341

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIKARI & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 1341

Catchwords:
MIGRATION – Administrative Appeals Tribunal – reinstatement application –whether explanation for failure to appear satisfactory – whether substantial grounds for judicial review have reasonable prospects of success – no apparent jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140E, 140GB, 338

Migration Regulations 1994 (Cth), Reg.4.02

Cases cited:

AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598

CAL15 v Minister for immigration and Border Protection [2016] FCA 1344

Singh v Minister for Immigration and Border Protection [2018] FCA 186

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Stretton [2016] FCAFC 11

Kaur v Minister for Immigration and Border Protection [2016] FCA 132

SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940

First Applicant: MITA ASHISH SIKARI

Second Applicant: SIKARI ASHISH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3659 of 2016

Judgment of: Judge Emmett

Hearing date: 20 May 2019

Date of Last Submission: 20 May 2019

Delivered at: Sydney

Delivered on: 20 May 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Aaron Moss
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3659 of 2016

MITA ASHISH SIKARI

First Applicant

SIKARI ASHISH

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case, filed on 1 April 2019, the applicant seeks, inter alia, orders setting aside the Orders made by me on 20 March 2019. Those Orders dismissed the proceeding commenced by way of application, filed on 20 December 2016, by reason of the failure of the applicant to appear at that scheduled hearing. 

2. In support of her Application in a Case, the applicant filed an affidavit in which the applicant makes further complaints about the Administrative Appeals Tribunal's decision dated 23 November 2016 (“the Tribunal”) and states that the reason that she could not attend the hearing before me was because her “legal fees for elected solicitor and barrister weren’t enough”.

3. Of particular relevance in the application before the Court today are the applicant's explanation for her failure to appear at the hearing and the prospects of success of her substantive application. In relation to the issue of prejudice, the Minister accepts that the granting of the application for reinstatement would not appear to result in any immediate prejudice to the Minister and was not a prejudice that could not be cured by an adjournment or order for costs. However, the mere absence of prejudice is not a sufficient basis to grant the relief sought (see AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 per McKerracher J at [42]).

4. In relation to the applicant's explanation for her non-appearance, the applicant tendered to the Court today a tax invoice and receipt for a hospital attendance on 20 March 2019. Those documents were marked Exhibit 1A. 

5. The applicant also said that an agent had written that the applicant could not attend the hearing because she did not have enough money for her solicitor and barrister. 

6. In the circumstances, I accept the explanation of the applicant for her non-appearance to be in accordance with the evidence she has produced of her attendance at Auburn Hospital on 20 March 2019. Such explanation is a satisfactory explanation for the applicant’s failure to appear at the scheduled hearing on 20 March 2019.

7. The Minister submitted that in this case the absence of prejudice to the Minister weighs neutrally in the interests of justice, neither supporting nor detracting from the application for reinstatement.

8. The background of this matter is accurately summarised in the first respondent’s submissions as follows:

   “Procedural Background

   6. The Procedural History of the substantive Application, and the events preceding it, was set out in the March Submissions at [5]-[27], and the Minister repeats and adopts those matters here.

   7. In summary, the Applicants are citizens of India and applied for Temporary Work Visas (Class UC, subclass 457) on 13 July 2016. On 17 June 2016, the Delegate refused to grant the Applicants the visas sought, on the basis that the First Applicant was not, at that date, “the subject of an approved nomination” as required by cl 457.223(4)(a) of sch 2 to the Regulations.

   8. On 13 July 2016, the Applicants applied to the Tribunal seeking review of this decision.

   9. On 23 November 2016, the Tribunal decided that it did not have jurisdiction to determine the Applicants' Applications for Review. Relevantly, the Tribunal found that the First Applicant was not “sponsored by an approved sponsor” at the time of applying to the Tribunal, nor was any review of any sponsorship decision concerning the First Applicant pending at that date.

   10. Accordingly, the Tribunal found that the Delegate's decision was “not a reviewable decision” as the conditions of s 338(2)(d) of the Act were not satisfied.

   11. On 20 December 2016, the Applicants filed an Application in this Court, seeking review of the Tribunal's decision. The Application was listed for a First Court Date before Registrar Morgan on 4 May 2017. On that date, orders were made:

   (a) setting the matter down for final hearing before the Court at 10.15am on 20 March 2019;

   (b) granting the Applicants leave to file and serve any amended application, and evidence on which they wished to rely, on or before 15 June 2017; and

   (c) requiring the Applicants to file and serve written submissions 14 days before the scheduled hearing date (namely, on or before 6 March 2019).

   12. Notably, Order 15 of the 4 May 2017 Orders provided “[i]n the event there is no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice”.

   13. Order 15 was reinforced by Notation C in those orders, which stated “[i]t is the responsibility of each party to ensure that they know the location of the court room where the matter is to be heard”.

   14. The Applicants did not file any Amended Application, evidence, or written submissions, nor did they take any other steps taken in relation to the proceedings prior to hearing of the matter.

   15. On 13 March 2019, the Minister filed the March Submissions. A copy of the email serving these submissions on the Applicants, notifying them again of the hearing date and indicating that if they did not attend that hearing, the Minister may seek to have the matter dismissed with costs, was tendered at the hearing on 20 March 2019 and marked Exhibit IR.

   16. On 14 March 2019, the Minister served a bundle of authorities on the Applicants, and a copy of letter serving these submissions on the Applicants, which repeated the information relating to the hearing of the matter, was tendered on 20 March 2019 and marked Exhibit 2R.

   17. The Applicants did not appear at the scheduled date, place and time of the final hearing. As set out in the Non-Appearance Reasons:

   (a) neither the Minister's solicitors, nor the Court, received any correspondence from either of the Applicants, whether to seek an adjournment or for any other reason; and

   (b) the matter was called outside the Court on at least two occasions, to no response.

   18. In those circumstances, the Court considered that it was appropriate, to make orders in the form sought by the Minister, dismissing the proceedings pursuant to r l3.03C(1)(c) of the FCC Rules, with an order that the Applicants pay the Minister's costs fixed in the scale amount of $7,206.”

9. The first respondent's solicitor has also helpfully summarised the applicable principles in considering a reinstatement application as follows:

   “Applicable Principles

   22. It is well-established that the Court's power to set as ide or vary orders made in the absence of a party, under r 16.05(2)(a) of the FCC Rules, grants a “broad”, “unfettered statutory discretion” to the Court which is to be “exercised judicially having regard to all of the circumstances”.

   23. Notwithstanding the broad nature of this discretion, Ryan J in MZYEZ set out the following principles, which the Federal Circuit Court has adopted as a general guide to the relevant factors which are to be considered in reinstatement applications:

   [7] In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement

   (emphasis added)

   in this connection, a party’s absence is analogous to a party’s failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party’s favour where there is little or no prospect of that party’s succeeding on the substantive claim: see Gallo v Dawson (No 2) (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 319 - 320.

   24. To these considerations may also be added, where relevant, case management considerations and the impact of granting the reinstatement on the allocation and waste of “scarce Court resources”.

   25. Furthermore, as other judges of this Court have identified, it is “[i]nherent in the conferral of a discretionary power is an assumption that some applications may be refused”.”

10. In relation to the approach to be taken in considering the prospects of success of the substantive application in a reinstatement application, I note the comments of Mortimer J in CAL15 v Minister for immigration and Border Protection [2016] FCA 1344 at [5] and [6] as follows:

    “5. However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.

    6. The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.”

11. The applicant was unrepresented before this Court.

12. I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and reach different findings or conclusions. I also explained to the applicant that, having accepted her explanation for her failure to appear as satisfactory, the only issue before this Court is whether or not the decision of the Tribunal appeared to have been made according to law or is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

13. The applicant's grounds of review of her substantive application are as follows:

    “1. I am the applicant seeking judicial review of the decision from the AAT refusing to revoke the decision by the DIBP to not grant me a 457 Work Visa.

    2. Annexed hereto and marked ‘A’ is the copy of the decision from the AAT, dated 23 November 2016.

    3. I believe I have not been assessed properly and wish to appeal to the Federal Circuit Court to have a fair hearing.

    4. The judicial review was based on facts and circumstances beyond my control but ended up with me being punished and being required to leave Australia where I have established myself.

    5. Thus I wish to have my actual situation assessed based on procedural fairness.”

14. In the applicant's affidavit provided in support of her Application in a Case, the applicant expanded on those complaints as follows:

    “3. AAT has failed to serve the documents in proper manner

    4. AAT and DIBP have failed to do correspondences incorrectly and insufficiently

    5. the Tribunal denied the applicant the right to representation to assist the applicant in presenting my case properly and adequately

    6. The applicant was not aware of the way in which the Migration Review Tribunal processes applications nor was she in a position to properly present the facts on which she relied

    7. The Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application

    8. In this respect, the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the Tribunal.

    9. The Tribunal denied the applicant procedural fairness and natural justice in not giving me the opportunity to properly consider my legal position, given my limitation in the legal system

    10. The Tribunal failed to determine the applicant's application for review according to the law, in taking a view of the migration act and regulations. That was unnecessarily limited and constructed and which fitted the Tribunal Member's personal view rather than a comprehensive view of the relevant law

    11. The Tribunal Member therefore regarded the Applicant's as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness

    12. The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant's actual circumstances

    13. Had the Tribunal given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant's case for review. I applied for a Temporary Business Entry (Class UC)

    14. I believe that I would be eligible to be granted for a Temporary Business Entry (Class UC) visa application.

    15. I respectfully submit that AAT has failed in considering natural justice and procedural fairness, and further has not given thorough consideration of my latest Business Nomination Approval.”

15. The applicant was invited to say whatever she wished in support of her grounds. The applicant's complaints all arose from the fact that she was not invited by the Tribunal to attend a hearing before it.

16. However, the Tribunal determined that it did not have jurisdiction to consider her application for review on the basis that the decision to refuse the applicants’ subclass 457 visas is not a reviewable decision in accordance with s.338(2)(d) of the Migration Act 1958 (Cth) (“the Act”) and reg.4.02(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”)

17. The decision of a delegate of the first respondent (“the Delegate”) made on 17 June 2016 determined that the applicant did not have an approved sponsor, either at the time of application or at the time of decision, and therefore, did not meet cl.457.223(4)(a) of the Regulations.

18. Clause 457.223(4)(a) of the Regulations provided for the mandatory requirement that the applicant have an approved nominator in accordance with s.140GB of the Act, inter alia, in order to meet the criteria of the visa for which the applicant had applied, namely, the subclass 457 visa.

19. Section 338 of the Act provides that the Tribunal only has jurisdiction in respect of reviewable decisions. In Singh v Minister for Immigration and Border Protection [2018] FCA 186, Derrington J explained that one of four conditions must exist for the decision to be a “Part 5-Reviewable decision”. Those conditions are as follows:

    “(a) under s 338(2)(d)(i):

    (i) where, at the time the review application is lodged, the visa applicant is identified in an approved nomination made by a standard business sponsor, or

    (ii) where, at the time the review application is lodged, the visa applicant is identified in a nomination application which has not yet been decided by the Department;

    (b) under s 338(2)[(d)](ii) - where at the time the review application is lodged, the employer seeking to nominate the visa applicant has an application for review pending before this Tribunal, either:

    (i) in relation to a decision to refuse the employer the status of standard business sponsor, or

    (ii) in relation to a decision to refuse the standard business sponsor an application for approval of a nomination application relating to the visa applicant.”)

20. The Tribunal found that there was no evidence before it that at any relevant the time applicant satisfied any of the above criteria.

21. In those circumstances, the Tribunal concluded that the Delegate's decision was not a reviewable decision in accordance with s.338(2)(d) of the Act and reg.4.02(1)(a) of the Regulations. Accordingly, the Tribunal determined that it did not have jurisdiction to review the Delegate's decision.

22. In circumstances where the Tribunal does not have jurisdiction, the Tribunal is not required to invite the applicant to come to a hearing. 

23. The failure of the Tribunal to invite the applicant to a hearing in respect of which the Tribunal has correctly determined that it does not have jurisdiction, cannot be affected by jurisdictional error of any complaint about procedural fairness or natural justice.

24. Accordingly, that finding by the Tribunal is without error and none of the applicant's complaints can affect the correctness of that decision.

25. To the extent that the applicant made further general complaints that the Tribunal failed to determine her application according to law, I note that in the course of its decision record, it is apparent that the Tribunal exercised its discretion to invite the applicant to comment upon the difficulties that she faced in her application.

26. The Tribunal wrote to the applicant on 27 September 2016 inviting her to comment on whether a valid application for review had been made by 11 October 2016. The Tribunal noted that the applicant requested an extension of time to respond and the Tribunal granted that request requiring response by 25 October 2016. The Tribunal then noted the applicants did not respond to the Tribunal's invitation by that date and, accordingly, proceeded to make its decision.

1. The Tribunal found that at the time the application for review was lodged on 13 July 2016 the applicant was not identified in a nomination that was approved or pending and there was not a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act or a decision not to approve the nomination under s.140GB of the Act.

2. It was that finding that led the Tribunal to find that the requirements of s.338(2)(d) of the Act were not met and that, accordingly, the Tribunal did not have jurisdiction. As stated above, that finding by the Tribunal is correct.

3. In relation to the exercise of discretion by the Tribunal, the Tribunal granted the request by the applicant allowing a further two weeks to comment on whether her application for a review was valid. I further note that the Tribunal's decision was not, in fact, made until 23 November 2016.

4. In the circumstances, the Tribunal properly exercised its discretion in granting the applicant time to respond. The Tribunal properly exercised its discretion reasonably and according to law in granting the applicant further time (see Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J).

5. To the extent that the applicant's affidavit makes various complaints about a failure to comply with procedural fairness, as stated above in these Reasons, the Tribunal was not required in the circumstances to invite the applicant to attend a hearing. All the applicant's complaints appear to stem from that fact. In SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [34] per Bennett J, stated as follows:

   “34.Was the third Tribunal obliged to invite the applicant to appear to give evidence and present arguments relating to his application pursuant to s 425 of the Act? If there was no RRT-reviewable decision, there was no “decision under review”. It follows that the third Tribunal was under no such obligation. I note that Barnes FM has concluded that no such obligation arises where the Tribunal finds that it has no jurisdiction (SZHMM v Minister for Immigration [2008] FMCA 343; SZHOK v Minister for Immigration [2008] FMCA 1104) or in relation to the preliminary issue of whether the Tribunal has jurisdiction (SZEAC v Minister for Immigration [2007] FMCA 1552).”

   (Emphasis added)

6. Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdictional error, none is apparent on the face of the Tribunal's decision record and none has been identified by the applicant.

7. In the circumstances, the applicant's substantial application for judicial review of the Tribunal's decision has no or no reasonable prospects of success such that her application for judicial review should be reinstated.

8. Accordingly, the applicants’ Application in a Case, filed on 1 April 2019, should be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 May 2019