Federal Circuit and Family Court of Australia
(DIVISION 2)
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
File number(s): PEG 294 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 25 January 2022 Catchwords: PRACTICE AND PROCEDURE – application to set aside orders made in the absence of the applicants – two instances of non-appearance – whether arguable case on judicial review of the substantive application – whether Administrative Appeals Tribunal had jurisdiction to hear application for review – whether applicants have given sufficient explanation for second non-appearance – where bare medical certificate – overarching civil practice and procedure provisions - whether any delay in making application to set aside – whether prejudice to the Minister
MIGRATION – Judicial review - Administrative Appeals Tribunal decision – citizens of Bhutan – refusal of Subclass 187 (Regional Employer) visa – late application for review – finding of no jurisdiction – whether arguable case of jurisdictional error
MIGRATION – PRACTICE AND PROCEDURE – where Tribunal found it had no jurisdiction to hear application for review – whether Tribunal obliged to afford applicants procedural fairness by way of hearing concerning whether Tribunal had jurisdiction
WORDS AND PHRASES – “must” – “purposes of receiving documents” – “undue”
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 7, 8, 174, 190, 217, 230, 231
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth)
rr 1.04, 1.07Federal Court of Australia Act 1976 (Cth) s 37M(2)
Migration Act 1958 (Cth) ss 65, 66, 140, 338, 347, 474, 476, 477, 494, 494B, 494C, 494D
Migration Regulations 1994 (Cth) Sch 2, cl 187.233
Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
Alam v Minister for Home Affairs [2019] FCA 389
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175;
(2009) 83 ALJR 951; (2009) 258 ALR 14Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263;
(1990) 93 ALR 1Australian Competition and Consumer Commission v
Air New Zealand Ltd ( No 3) [2012] FCA 1430Benissa v Minister for Immigration and Border Protection [2016] FCA 76; (2016) 150 ALD 276
CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335; (2016) 162 ALD 631
CEJ15 v Minister for Immigration and Border Protection [2019] FCCA 1038
CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492; (2019) 78 AAR 373
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651; (2010) 84 ALJR 479; (2010) 75 ATR 794; (2010) 267 ALR 12
John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314Khan v Minister for Immigration & Anor [2019] FCCA 701
Lejmanoski v University of Western Australia
[2013] FMCA 75Luck v Chief Executive Officer of Centrelink
[2015] FCAFC 75Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1426Minister for Home Affairs v Parata [2021] FCAFC 46; (2021) 284 FCR 62
Minister for Immigration & Multicultural Affairs v
Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Patel v Minister for Immigration and Citizenship
[2012] FCA 145Plaintiff S157/2002 v Commonwealth [2003] HCA 2;
(2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619
Re Refugee Review Tribunal & Anor;
Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625
Singh v Minister for Immigration and Border Protection [2016] FCA 108Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267; (2017) 156 ALD 284
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Singh v Official Trustee in Bankruptcy [2008] FMCA 521
Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515;
(2009) 108 ALD 470Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383
SZEYK v Minister for Immigration and Citizenship
[2008] FCA 1940SZFDE v Minister for Immigration and Citizenship
[2007] HCA 36; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510SZOBI v Minister for Immigration and Citizenship
[2011] HCATrans 347SZOBI v Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151; (2010) 119 ALD 233
SZUFS v Minister for Immigration and Border Protection [2015] FCA 991
SZUFS v Minister for Immigration (No 2) [2015] FCCA 545
Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 53 ALD 32; (1998) 159 ALR 405
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCCA 1872Zubair v Minister for Immigration & Anor
[2017] FCCA 2905Division: Division 2 General Federal Law Number of paragraphs: 125 Date of hearing: 20 October 2021 Place: Perth Applicants: Appeared in person via videolink Counsel for the First Respondent: Ms C Allen Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 294 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YONTEN ZANGMO
First Applicant
SONAM TOBGAY
Second Applicant
UGYEN WANGCHUK DORJI (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
25 JANUARY 2022
THE COURT ORDERS THAT:
1.The applicants’ application in a case filed on 30 August 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
This is an application in a case by the applicants filed on 30 August 2021 to set aside
(“Set Aside Application”) orders made on 9 August 2021 (“Dismissal Orders”) by the Court, then the Federal Circuit Court of Australia, but continued in existence with effect from
1 September 2021 as the Federal Circuit Court and Family Court of Australia (Division 2): Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), s 8(2).
The Dismissal Orders dismissed, for non-appearance, an application by the applicants’ for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application sought judicial review of a
31 August 2020 decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse the first applicant,
Ms Yonten Zangmo (“Ms Zangmo”) a Subclass 187 (Regional Employer Nomination) visa (“187 Visa”) under s 65 of the Migration Act.
The second, third, fourth and fifth applicants in the Judicial Review Application are
Ms Zangmo’s husband and children (the children are minors) respectively, and their positions in relation to the Judicial Review Application are dependent upon the grant or refusal of
Ms Zangmo’s 187 Visa: Migration Act s 140(1); see also Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619; Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 53 ALD 32; (1998) 159 ALR 405.
For convenience the applicants will hereafter generally only be referred to by reference to the first applicant, Ms Zangmo.
The Dismissal Orders are relevantly as follows:
1.The originating application filed 5 October 2020 be dismissed for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
2.
The Applicants to pay the First Respondent’s costs in the sum of $6500 by
9 September 2021.
LITIGATION HISTORY OF THIS MATTER
Two earlier judgments
The earlier litigation history of this matter is set out in two earlier judgments,
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCCA 1744 delivered on 22 July 2021 (“Zangmo (No 1)”) and Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1872 delivered on 9 August 2021 (“Zangmo (No 2)”). Both judgments were delivered
ex tempore and revised from the transcript.
First Hearing and Zangmo (No 1)
In Zangmo (No 1) at [4]-[17] per Judge Lucev the factual matters relating to the first hearing were set out as follows:
4The Judicial Review Application was filed on 5 October 2020, supported by an affidavit which simply repeats the 12 grounds in the Judicial Review Application and does not annexe the Tribunal Decision. The Tribunal Decision does appear, as it almost always does, in the Court Book. Ms Zangmo does not require an interpreter.
5 On 29 October 2020 an order was made by Registrar Carlton, and that order required Ms Zangmo to file and serve any amended Judicial Review Application by 3 December 2020, also to file by 3 December 2020 any additional evidence upon which Ms Zangmo intended to rely, and by 14 days prior to the hearing Ms Zangmo to file and serve written submissions in support of the Judicial Review Application. No amended Judicial Review Application has been filed, no affidavits have been filed, and no written submissions have been filed by Ms Zangmo. And certainly in relation to the written submissions Ms Zangmo is in default of the Registrar’s order.
6On Wednesday 21 July 2021 at 1.06 pm Ms Zangmo emailed Chambers and in her email indicated that she sought an adjournment of today’s hearing. She stated the following:
I am writing this email to ask for a sincere apology for failing to attend my court hearing at 10 am on 22 July 2021, Thursday, since I have been experiencing flu-like symptoms such as sneezing, cough and runny nose. Kindly accept my sincere apology. I will be highly obliged to you for the same.
which the Court took to be a request for an adjournment.
7 The Court responded at 3:12 pm on Wednesday, 21 July 2021 in the following terms (and copied to the Minister’s lawyers):
Ms Zangmo
I refer to your request for adjournment of the hearing listed on Thursday, 22 July at 10 am received today.
Request For Adjournment:
Please be aware that if you are seeking an adjournment of your matter for hearing tomorrow, you will need to file an affidavit with attached dated medical certificate to explain your absence from tomorrow’s hearing by email to the Perth Registry. Please email [and the Perth registry’s address is set out].
Please find further information and relevant form at [and the relevant website for the form is set out].
Attending By Video
If you wish to attend the hearing by video link, His Honour has indicated that he will grant you leave to do so. Please confirm by way of reply to this email if you would like to proceed by video link.
8
The Court also notes that this morning at 8.11 am the Minister’s lawyers wrote to
Ms Zangmo, indicating that if Ms Zangmo intended to apply for an adjournment she should provide up-to-date medical documentation, setting out the Minister’s position with respect to medical certificates, the basis for that position, and that the
Minister may seek to have the application dismissed if Ms Zangmo did not attend and did not provide a sufficiently detailed medical certificate, and confirming that there would be an appearance for the Minister at today’s hearing by Mr Chan. The email is as follows:
Dear Ms Zangmo,
As indicated by his Honour’s Associate, if it is your intention to apply for an adjournment, please provide your most up to date medical documentation to the Court as soon as possible in the manner specified in the Associate’s email.
For your information, the Minister’s position with respect to medical certificates that justify an adjournment is that the certificate should:
- Identify the specific medical condition;
- State why that condition prevents you from attending a 2-hour court hearing, including a hearing by telephone or video. For clarity, the Minister would oppose an adjournment based on a medical certificate that merely identifies you as being unfit for work;
- Cover the period in which the adjournment is sought for;
- State clearly the name and contact details of the medical practitioner who authored the certificate, as the Minister may request that the doctor be called to give evidence.
The Minister’s above position is based on the cases of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and Singh v Minister for Immigration and Border Protection [2016] FCA 108.
If you do not provide a sufficiently detailed medical certificate and you do not attend the hearing today, the Minister may seek that your application be dismissed in your absence.
…
9At approximately 8.50 am this morning there was filed in the Perth Registry an affidavit by Ms Zangmo, the terms of which are as follows:
1. I have been experiencing flu like symptoms such as sneezing, cough and runny nose.
2. Subsequently I am of the view that it will be threat to the public health safety and myself if I attend the Court.
3. I would like to excuse myself in attending the Court on Thursday
22 July 2021 at 10.00am10There was also a medical certificate filed (it was not specifically annexed to the affidavit, but the Court will take it as having been annexed in the circumstances) from a Doctor Olateju Jinadu, which simply says:
This is to certify that Mrs Yonten Zangmo is unable to work from 22.7.2021 to 23.7.2021 inclusive due to a medical condition.
11The Court, in response, emailed Ms Zangmo at 9.18 am this morning and indicated that:
In light of the affidavit and medical certificate emailed to chambers this morning from the applicant (see attached), the applicant will have leave to appear via Microsoft Teams for the hearing today at
10 am.12The Court then set out instructions as to the use of Microsoft Teams, and also joining the matter by telephone, and some additional procedural matters, and confirmed that the matter would proceed at 10.00 am today and invited
Ms Zangmo to contact Chambers (and a telephone number was provided)
if she had any questions or experienced any difficulties.13At 9.37 am Ms Zangmo responded to the email from Chambers as follows:
With regards to attending via Microsoft meeting, I have little or no knowledge about IT. I would rather prefer attending in person when I am completely well from these sicknesses.
14The Court responded to this email at 9.46 am and indicated to
Ms Zangmo that in the circumstances it considered it appropriate that she appear by telephone and gave her a dial-in number and a conference ID to be entered when prompted on the dial-in number, and then indicated how she would be connected and be able to take part in the hearing. The Court also indicated that should Ms Zangmo be unable to dial the Court in this manner, the Court would telephone her using the most current telephone number on file.15When the matter was called this morning, there was no appearance by Ms Zangmo. The Court had the matter called outside and there was still no appearance by Ms Zangmo. The Court notes in that respect that
Ms Zangmo lives in South Perth, which is probably less than
10 minutes from the Courtroom across the Swan River, and the Court therefore had the matter called outside lest Ms Zangmo had determined in the interim to attend the hearing.16Ms Zangmo not appearing, the Court then had Ms Zangmo called by telephone on the number which appears on the Originating Application, and which also appears on her affidavit, that the Court has already referred to, which was filed this morning. The Court also notes that Chambers’ staff endeavoured to ring Ms Zangmo prior to the hearing a number of times, and that both when she was rung prior to the hearing and also during an adjournment in the hearing she did not answer, or the telephone number that was rung did not answer.
17The Court has been left in a position where Ms Zangmo has simply not appeared, either in person, by video link, or by telephone.
In circumstances where her affidavit evidence indicates that the only reason that Ms Zangmo is not attending is because she considers that there would be a threat to public safety and herself if she attended the Court in view of her present illness, she has been offered alternatives, and those alternatives do not involve attendance at Court, but she has refused the offer of a Microsoft Teams hearing and has not taken up the invitation to attend by telephone, nor answered her telephone when rung.Thereafter, the Court referred to:
(a)
the unsatisfactory nature of the bare medical certificate provided by Ms Zangmo, referring to a line of authority including Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905 at [7] per Judge Lucev (“Zubair”), NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 (“NAKX”),
and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”):
Zangmo (No 1)at [18]-[20] per Judge Lucev;
(b)
applicable principles in relation to adjournments: Zangmo No 1 at [21]-[23] per
Judge Lucev,
before concluding at Zangmo (No 1) at [24]-[25] per Judge Lucev as follows:
24The Court, having regard to all of the circumstances, in particular the requirement to ensure a just outcome … , the alleged illness
(and notwithstanding the bareness of the medical certificate and the failure to indicate why it is that the applicant could not attend the hearing by any of the alternative means proposed or offered by the Court), and the fact that no submissions have been filed by Ms Zangmo, nevertheless observes that these proceedings have not been protracted proceedings, unlike some of the migration proceedings presently on foot in the Melbourne Registry of the Court: see, for example, Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 and
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCCA 1550. This is the first occasion on which the matter has been listed for final hearing.
25 The Court also notes that the matter would be in better order if the Court were to adjourn for a short period to enable:
(a) Ms Zangmo to recover;
(b) Ms Zangmo to file submissions;
(c)the Minister to respond to those submissions so that the Court is in a position where it has proper written submissions from both parties; and
(d)Ms Zangmo to become familiar, if necessary, with the information technology which would allow her to appear by video link, but also to again give her the option to appear in person or by telephone.
Consequently, on 22 July 2021, the Court made the following orders:
1.The hearing of the matter be adjourned to 2 pm AWST/3.30 pm ACST on
9 August 2021 and that the Applicants have leave to appear at the adjourned hearing by any of the following means:
(a) in-person;
(b) by video link through Microsoft Teams; and
(c) by telephone.
2. The costs of today’s adjournment be reserved.
3. The Applicants file and serve a written outline of submissions by 4pm on
30 July 2021 in relation to:
(a) the originating application for review of the Tribunal decision; and
(b) the costs of today’s adjournment.
4. The First Respondent may file and serve any further written outline of submissions by 4pm on 6 August 2021 including submissions as to the costs of today’s adjournment.
Second Hearing and Zangmo (No 2)
Ms Zangmo filed no submissions prior to the adjourned hearing on 9 August 2021:
see Order 3 of 22 July 2021 Orders.
In Zangmo (No 2), having set out the background, the Court then dealt with the factual matters relating to the adjourned, or second, hearing of the Judicial Review Application as follows at [11]-[24] per Judge Lucev:
11That brings the Court to today. Today at 9.39 am Ms Zangmo sent an email to the Chambers of the presiding judge, the terms of which were relevantly as follows:
I am extremely sorry for not attending my last court appearance due to the contagious sickness. Today, I am writing to you to inform you that I am not fully recovered from the same symptoms. This flu like symptoms have been clinging on to me for the past several weeks. Hence, I am of the view that it will be threat to the public health safety and myself. Also my deep apologies for inability to attend via voice as well as video conferencing due to fever, sneezing and runny nose.
Kindly accept my deep apology. I will be really thankful for your understanding and consideration.
Please find enclosed the affidavit and medical certificate for your ready reference.
12 Ms Zangmo also caused to be filed today, an affidavit, in terms as follows:
1.I have been experiencing flu like symptoms such as sneezing, cough and runny nose for a whole week this week, and have not been able to prepare my submissions.
2.Subsequently I am of the view that it will be threat to the public health safety and myself if I attend the Court.
3.I would like to excuse myself in attending the Court on 9 August 2021 at 2pm AWST as well as excuse myself from telephone conferencing due to high fever and coughing.
4. I am seeking final and last adjournment with my apologies.
13The Court notes that the affidavit sworn today was, or was purported to be, sworn before a Justice of the Peace, presumably sometime earlier today,
and sometime before it was filed on or about 9.39 am – or at least attached to the email which was sent in at 9.39 am. And also annexed to that email was another bare medical certificate, bearing, as the Minister’s lawyer has pointed out, today’s date. The Court also notes that it is from a different practitioner to the practitioner who provided a bare medical certificate on the last occasion, that is 22 July 2021. The bare medical certificate provided today is for today’s date only as to Ms Zangmo’s unfitness, again, simply for work, and there is no indication as to any unfitness on the part of Ms Zangmo by the relevant medical practitioner for a day other than today. Ms Zangmo does, in her affidavit, refer to a slightly more extended period of illness but the Court will address this later in these Reasons for Judgment.14It is also apparent from paragraph three of Ms Zangmo’s affidavit that she does not wish to appear by telephone.
15The Court pauses to observe that by 9.39 am this morning, a person who is apparently unfit for work was able to, seemingly see a medical practitioner, prepare an affidavit, and have the affidavit sworn before a Justice of the Peace, and write an email to the Court endeavouring to explain why it was that she seeks not to appear today. The Minister responded to the 9.39 am email from Ms Zangmo by email to Chambers at 10.29 am relevantly as follows:
We confirm that the Minister opposes any adjournment of today’s hearing. As with the previous medical certificate, the most recent certificate does not provide sufficient detail to justify an adjournment because it:
- Does not identify the specific medical condition;
-Does not state why the unspecified medical condition prevents the applicant from attending a 2-hour court hearing, including a hearing by telephone or video. Rather, it simply states that the applicant is unfit for work;
-Does not identify the applicant’s purported symptoms of “high fever and coughing”. The certificate would appear to contradict the applicant’s narrative of her severe symptoms given she was certified as unfit for work for only one day, namely today; and
-Does not state why the applicant would be “unfit for work” today, when she was able to attend a medical examination today to obtain the certificate.
In the event that the applicant fails to appear at today’s hearing, whether by telephone, video or otherwise, the Minister will seek for the matter to be dismissed in her absence. Dismissal would be justified in the circumstances because, as has frequently been observed in the Courts, instances of last minute adjournment applications based on questionable medical evidence are on the rise in Migration matters, which is a “most unfortunate trend and a complete waste of the Court’s time and resources”: see Singh [2014] FCCA 2537 at [10];
Singh [2015] FCA 138 at [18]-[22].16 The Court responded to the emails from both Ms Zangmo and the Minister by indicating that the matter remained listed for hearing today at 2 pm AWST and that the Court had had regard to Ms Zangmo’s circumstances and considered it appropriate that Ms Zangmo appear by telephone at the hearing, and provided a number on which she was able to dial in to attend the hearing and indicated that should she be unable to dial in, the Court would telephone her on the most current telephone number it had for her. The Court’s response to both Ms Zangmo and the Minister’s lawyers was relevantly as follows:
RE: PEG294/2020 – ZANGMO v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Mr Chan, I confirm receipt of your correspondence below
[this being the Minister’s response of 10:29am].Please note that the matter remains listed for 2pm AWST today.
His Honour has had regard to the applicant’s circumstances and considers it appropriate that Ms Zangmo be contacted by telephone at the hearing.
The Applicant can dial [the Microsoft Teams telephone dial-in number] and, when prompted, enter the Conference ID (…).
You will then be connected and admitted to the virtual lobby and can take part in the hearing by telephone.Should the Applicant be unable to dial the Court in this manner, the Court will telephone the Applicant on their most current phone number on file.
17 When the matter was called outside of the Court today, there was no appearance by Ms Zangmo and that, in the circumstances, is probably unsurprising.
18 When Ms Zangmo did not appear in person, and bearing in mind that she had not phoned in on the telephone dial in number provided by the Court, the Court, during a short adjournment, had Ms Zangmo called by telephone on the number which appears on the originating application, which also appears on the affidavit filed today that the Court has already referred to – or which was attached to the email sent in today - a call which elicited no answer. The Court has, as it was on 22 July 2021, been left in a position where Ms Zangmo has simply not appeared either in person or, on this occasion by video link or by telephone, as offered in the Orders made on 22 July 2021.
19 Once again, in circumstances where the affidavit evidence indicates that the only reason Ms Zangmo has not attended is because of the illness and her assertion that it might constitute a threat to public safety if she attended, and where those alternatives offered do not involve attendance at Court,
the Court notes that those alternatives provided a proper alternative means for a person in these circumstances to attend the hearing.20 The Court also notes – slightly out of sequence – that Ms Zangmo,
at 12.13 pm this afternoon, emailed Chambers and set out a three point assertion as to why she ought not to have to appear today and also why the bare medical certificate is sufficient and seemingly suggesting what the Court ought to do in terms of having her medically examined.21 The 12:13 pm email from Ms Zangmo was relevantly as follows:
The fact is that I have been very sick and could not do anything simply and I am telling the truth.
1.In general, all medical clinics have a typical way of issuing medical certificates, mostly "unfit for work", and they don’t illustrate detailed medical conditions due to privacy as well as other factors.
2. If the Court orders a very detailed medical examination I will be willing and happy to do so by the specialists.
3.I am not trying to avoid the Court hearing and have no reason to avoid it. Simply, I am very sick and can not do it.
At this stage I am not fit for even attending a telephone conference, probably it could be Covid 19 or delta variant….
22 It suffices, once again, to observe that the medical certificate (by a different medical practitioner on this occasion to the medical certificate produced on the first occasion that this matter was listed for hearing) provided by
Ms Zangmo, is unsatisfactory in that it does not say why she cannot attend Court and certainly does not indicate why it is she could not attend virtually or by telephone and, as the Minister’s lawyer has correctly stated, simply does not indicate what condition she is said to be suffering from, any symptoms that she might have, or any treatment that she might be undergoing which might affect her capacity to attend a Court hearing.23 The Court notes that Ms Zangmo has not filed her submissions which were due to be filed 14 days prior to hearing, originally, so that would have been on or before 8 July 2021. Nor has she taken up the opportunity afforded by the Registrar’s Orders of 29 October 2020 to file and serve any amended application, or any affidavit containing additional evidence, which she was required to do by 3 December 2020. For the second time she has now failed to file submissions, as she was more recently required to do by the Court’s Orders of 22 July 2021, wherein Order 3 required those submissions to be filed by 30 July 2021. In respect of neither occasion is there any evidence that at the relevant time Ms Zangmo was ill or incapacitated in a manner which would prevent her from filing those submissions. Specifically with respect to the submissions due to be filed by 30 July 2021 as ordered by the Court, Ms Zangmo’s 9 August 2021 affidavit at paragraph 1 refers to her having been:
Experiencing flu like symptoms such as sneezing, cough,
and runny nose for a whole week this week and have not been able to prepare my submissions.24 Assuming that that was a reference, the affidavit having been sworn today, to last week, that is the week commencing 2 August 2021, that does not explain in any way shape or form why the submissions which were required to be filed by 30 July 2021 were not filed. …
In Zangmo (No 2) the Court then:
(a)dealt with the principles concerning adjournments: at [24]-[30] per Judge Lucev;
(b)said it was cognisant of a backlog of several thousand migration cases dating back to 2015 in the Sydney and Melbourne Registries of the Court not yet allocated to a Judge of the Court for hearing, and the allocation of those cases to Judges in other Registries for hearing: at [31] per Judge Lucev;
(c)made the following further observations: at [32] per Judge Lucev;
…
(a)Ms Zangmo has twice failed to attend in person, electronically or telephonically, the two hearings which have been listed for final hearing on
22 July 2021 and today;
(b) on both occasions, Ms Zangmo has:
(i)requested an adjournment at late notice, metaphorically at the “last minute”; and
(ii)supported her adjournment request on each occasion by a bare medical certificate;
(c)her assertion that this is the way doctors typically issue medical certificates does not assist her given the state of the authorities that the Court has referred to. The federal courts require doctors to explain in detail why it is that a person cannot attend: see, for example, the authorities cited at [29] and [30] above (which were also cited in Zangmo (No 1) at [18]-[19] per Judge Lucev);
(d) it is not for the Court to order a very detailed medical examination of
Ms Zangmo by a specialist in order to justify any action that it takes. It is for Ms Zangmo to provide that evidence to the Court in proper form, a position that she is well aware of by reason of:(i)correspondence from the Minister prior to the first hearing and set out in Zangmo (No 1) at [8] per Judge Lucev [that correspondence is set out in full at [5] above]; and
(ii)the Court’s judgment in Zangmo (No 1) in [18]-[20] per Judge Lucev, citing Zubair and the cases therein referred to: as to which see [29]-[30] above;
(e)there is no evidence that Ms Zangmo has undertaken a COVID-19 test nor any assertion that Ms Zangmo actually has COVID-19 or that she is actually in isolation. The Court notes firstly that there is presently no lockdown in Western Australia or any particularly onerous restrictions in relation to COVID-19 that the Court is presently aware of other than the usual admonitions as to social distancing, washing of hands, and the voluntary, if people are so minded, wearing of masks. Secondly, the Court notes in particular that:
(i)assuming that the doctor concerned did issue the medical certificate today as a consequence of an examination of Ms Zangmo, that she has been out and about attending a doctor’s surgery today;
(ii)that a Justice of the Peace has witnessed her affidavit, the usual requirement being that that be done “before” the witness, which means in person before the witness (that is the Justice of the Peace): Transport Workers’ Union of Australia v Wesfarmers Kleenheat Gas Pty Ltd trading as Kleenheat (1993) 73 WAIG 2480;
and which means that before 9.39 am this morning, Ms Zangmo has been out in the community and seen at least two people and attended a doctors’ surgery;
(f)Ms Zangmo has been capable of preparing an affidavit, having it witnessed, and organising a doctor’s appointment, all of which appear to have been done quite professionally, particularly the preparation of the typed affidavit, and also corresponding with the Court on two occasions earlier today, and yet she says she is not well enough to attending a hearing, even by telephone,
(g)the Court is under significant pressure to hear and determine the outstanding Sydney and Melbourne migration cases that it has referred to above, and that pressure extends to judges in other Registries, including the Perth Registry, who, in the last month, have been dealing with those Melbourne cases dating from as early as 2015 and who will continue to do so, it appears, well into the future;
(h)in the context of the pressure on the Court to hear and resolve the migration cases referred to above, this matter has now been listed for a second time for final hearing and for the second time the final hearing has not proceeded to a determination of the judicial review application because of a “last minute” request for adjournment by Ms Zangmo;
(i)if the matter were to be subject to further adjournment now, it would not be able to be heard by the Court, at least as presently constituted until the first week of March 2022. That is a further delay of some seven months and there would be no guarantee that Ms Zangmo would then attend or would file written submissions and, in those circumstances, further delay is not tolerable;
(j)the Court notes, again, that Ms Zangmo has not filed submissions on either occasion when ordered to do so, namely, by the Registrar on 29 October 2020 and by the Court on 22 July 2021, and there is no medical evidence indicating any illness in respect of the due dates for the filing of those previous submissions which would indicate that Ms Zangmo was not able to file them by the due dates;
(k)Ms Zangmo also, the Court notes, failed to file written submissions when invited to do so by the Tribunal in relation to its finding that it had no jurisdiction to hear the application to the Tribunal for merits review and the Court refers to the Tribunal decision: CB 70 at [4];
(l) in all the circumstances:
(i)Ms Zangmo has been given an adequate opportunity to present her case both by way of submissions, twice, and appearance, twice, and has failed to avail herself of any of the opportunities so provided. It is not for the Court to ensure that Ms Zangmo makes best use of the opportunities provided to present her case: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383; CEJ15 v Minister for Immigration and Border Protection [2019] FCCA 1038 at [18(b)] per Judge Lucev;
(ii)further delay in the hearing of this matter is neither tolerable nor appropriate; and
(iii)further wastage of public resources, both of the Court’s resources and of Commonwealth’s resources (and, ultimately, therefore the taxpayers’ resources by reason of the Minister’s ongoing involvement), is neither tolerable nor appropriate, notwithstanding that to some extent the Minister’s cost in the proceedings may be recoverable;
(m) that in all the above circumstances, the interest of justice as between the parties: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14, and the interest of the administration of justice, which include the management of the proceedings by the Court: Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM, do not warrant a further adjournment of these proceedings.
(n)that Ms Zangmo would not be prejudiced to an undue degree by these proceedings being dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for non-appearance because, pursuant to r 16.05(2)(a) of the FCC Rules, she can apply to set aside a non-appearance dismissal order, but would, of course, be required to file appropriate material in relation thereto in order to justify the setting aside of such an order, as well as persuading the Court that the merits of the case on an appropriate level of assessment justified the setting aside of the dismissal non-appearance order: Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521 at [19] per Lucev FM.
(d)concluded, at [33] per Judge Lucev, that:
33 In the circumstances set out above the Court is of the view that:
(a) no adjournment should be granted to Ms Zangmo;
(b) the matter should be treated as one of non-appearance;
(c) as a consequence of (b), there will be an order pursuant to
r 13.03C(1)(c) of the FCC Rules dismissing the matter for non-appearance;(d)it follows that Ms Zangmo should pay:
(i) the costs of the adjournment on 22 July 2021; and
(ii) the costs of today’s final hearing.
and accordingly made the Dismissal Orders: see [1] and [3] above.
SET ASIDE APPLICATION AND HEARING
Orders sought
On 30 August 2021, Ms Zangmo filed the Set Aside Application seeking orders as follows:
1.An order or Judgement made in the absence of me on 9 August 2021 should be overturned and quashed, or Applicant shall be given another fair hearing in due course and manner in future date.
2.An order made in the absence of me on 9 August 2021 ought to be set aside under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).
Ms Zangmo’s affidavits
Ms Zangmo also filed an affidavit at the same time as the Set Aside Application on
30 August 2021 stating as follows:
1.On 9 August 2021, hearing date, I have been experiencing flu like symptoms such as sneezing, cough and runny nose for a whole week this week, and have not been able to prepare my submissions, and subsequently I was of the view that it will be threat to the public health safety and myself if I attend the Court.
2.I did request to excuse myself in attending the Court on 9 August 2021 at 2pm AWST as well as excuse myself from telephone conferencing due to high fever and coughing.
3. I was seeking final and last adjournment with my apologies.
4.However, the Court made a decision without my presence, and I am of the view that it is unfair and unreasonable to proceed the hearing without my attendance, despite my request to adjourn due to potential Covid 19 like symptoms
5.I am of the view that an order or Judgement made in the absence of me on
9 August 2021 should be overturned and quashed, or Applicant shall be given another fair hearing in due course and manner in future date. And furthermore, an order made in the absence of me on 9 August 2021 ought to be set aside under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).
On 19 October 2021 at 3.01pm Ms Zangmo emailed to the Chambers of the presiding judge a further affidavit, dated 19 October 2021 (“19 October 2021 Affidavit”), which stated as follows, without alteration:
1.On 9 August 2021, hearing date, I was experiencing flu like symptoms such as sneezing, cough and runny nose for a whole week this week, and have not been able to prepare my submissions, and subsequently I was of the view that it will be threat to the public health safety and myself if I attend the Court.
2.I did request to excuse myself in attending the Court on 9 August 2021 at 2pm AWST as well as excuse myself from telephone conferencing due to high fever and coughing.
3. I was seeking final and last adjournment with my apologies.
4.However, the Court made a decision without my presence, and I am of the view that it is unfair and unreasonable to proceed the hearing without my attendance, despite my request to adjourn due to potential Covid 19 like symptoms
5.I am of the view that an order or Judgement made in the absence of me on 9 August 2021 should be overturned and quashed, or Applicant shall be given another fair hearing in due course and manner in future date. And furthermore, an order made in the absence of me on 9 August 2021 ought to be set aside under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).
6.Solicitors for Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, as well as Judge Lucev, claimed that my medical certificate was not sufficiently illustrating in details and my failure to do submission in time, and finally issued a Judgement in a form of "non-appearance dismissal order"
7.I hereby would like to apply to set aside above non-appearance dismissal order for following reasons:
1)I did mention in my email to the Court, prior to hearing,
that 1. in general, all medical clinics have a typical way of issuing medical certificates, mostly "unfit for work", and they don't illustrate detailed medical conditions due to privacy as well as other factors. Even further I did mention that 2. If the Court orders a very detailed medical examination I will be willing and happy to do so by the specialists, which normally require GP's recommendation letter (referral letter), which furthermore should be addressed by the Court or at least brief form of order. I am of the strong view that if a foreigner like me simply visit to GP and explain all of those situation anyone can easily envisage almost impossible task to convince each doctor up to the specialists who can indeed issue extremely detailed opinion letter stipulating the facts such as why I am not able to do attend the Court and even can not do teleconferencing and which symptom prevents me from doing these pertaining to symptoms that I might have, or any treatment that I might be undergoing which might affect her capacity to attend a Court hearing or teleconferencing in addition to the fact that there be my incapability to perform MS Teleconferencing.
2)I am a merely a member of general public who can not control and procure all these specific procedures to be qualified to get right medical certificate mentioned /described in nonappearance dismissal order above.
3)Furthermore, due to sickness for a long time, I could not prepare submission properly, especially since I have been unrepresented all times
4)Due to recent pandemic, most of social activities and functioning of entities such as hospital and clinics, even legal practitioners and solicitors, sometimes even Justice of Peace people, have been shrunken and restricted recently which were impacting my preparations as well.
5)I further disagree, with all due respect, as to "the bare medical certificate provided today is for today's date only as to Ms Zangmo's unfitness, again, simply for work, and there is no indication as to any unfitness on the part of Ms Zangmo by the relevant medical practitioner for a day other than today. Ms Zangmo does, in her affidavit, refer to a slightly more extended period of illness but the Court will address this later in these Reasons for Judgment." since most of medical practitioners will do this way stating 'unfit for work" and it is virtually impossible for them to issue extremely detailed explanation due to not only privacy issue but also the fact that there is no such operational system in their small clinics.
6)Therefore, in the light information provided above, below assertions done by Solicitor for Immigration Minister were unsustainable and erroneous blinded by passion to generalise (even it could be potentially prejudicial and excessive interpretation based upon Solicitor's hunch or inference) my intention by using unfound and unactuated circumstances of some people's delaying tactics to stay in this country for couple of more months, for the sole purpose of dismissal of my case in unfair manner. Assertions done by Immigration Minister's Solicitor even on prima facia look almost level of respiratory specialists' jobs since measurement, as an example, of "why the unspecified medical condition prevents the applicant from attending a 2-hour court hearing, including a hearing by telephone or video" would be very specific examination process and require pre-booking of such tests and examinations.
7)I am of the strong view that Solicitor for Immigration Minister did use "unfit for work" as almost level of mockery, whilst it is very common terminology used by the clinics where their patience's rights and privacy must be protected, and keep erroneously utilising this aspect in order to nullifying validity of my medical certificate. I understand somewhat the Solicitor for Immigration Minister was trying to say that this medical certificate was not enough, but in that case the Court should have given me more time by adjourning the hearing with Courts specific instruction or order at least to show it to the GP and respiratory specialists to arrange correct forms to identify whether I was indeed deep trouble in attending court or and do teleconferencing by Microsoft system.
Assertions were namely:
- Does not identify; the specific medical condition;
-Does not state why the unspecified medical condition prevents the applicant from attending a 2-hour court hearing, including a hearing by telephone or video. Rather, it simply states that the applicant is unfit for work;
- Does not identify; the applicant's purported symptoms of "high fever and coughing". The certificate would appear to contradict the applicant's narrative of her severe symptoms given she was certified as unfit for work for only one day, namely today; and
- Does not state why the applicant would be "unfit for work" today, when she was able to attend a medical examination today to obtain the certificate.
I would like to reserve serious concerns as to improper "jumping to a conclusion" style of the Solicitor for Immigration Minister when he/she said "Dismissal would be justified in the circumstances because, as has frequently been observed in the Courts, instances of last minute adjournment applications based on questionable medical evidence are on the rise in Migration matters, which is a "most unfortunate trend and a complete waste of the Court's time and resources": see Singh [2014] FCCA 253 7 at [10]; Singh [2015] FC4 138 at [18]- [22].
I completely disagree with Solicitor's view without showing any proof that my case is belonging to so-called "unfortunate trend"
I would like to assert that this is unfounded and erroneous decision without any evidence.
8) I refer to "Ms Zangmo has been capable of preparing an affidavit, having it witnessed, and organising a doctor's appointment, all of which appear to have been done quite professionally, particularly the preparation of the typed affidavit, and also corresponding with the Court on two occasions earlier today, and yet she says she is not well enough to attending a hearing, even by telephone" and I am also of the strong view that my preparation of Affidavit SHOULD NOT contradict my health condition since it was my last and minimal attempt to prevent my case from being dismissed, which in the only way to express my wish to get an adjournment. There was no other way and if I called the Court it would have not been accepted by Court front officer's saying I should submit an affidavit and medical certificate. I know.
8. I further refer to " (i) if the matter were to be subject to further adjournment now, it would not be able to be heard by the Court, at least as presently constituted until the first week of March 2022. That is a further delay of some seven months and there would be no guarantee that Ms Zangmo would then attend or would file written submissions and, in those circumstances, further delay is not tolerable" but I do not see why it can not be 22 March 2022 if such an enormous cases are delayed and accumulated under this Covid 19 era since this could be one persuading factor where the Court see this as the merits of the case on an appropriate date like 22 March 2022.
9.I would be grateful if the Court entertains the idea of having another proper Court hearing on 22 March 2022 or so for natural justice and fairness, since core matter for this judicial review was for the judicial assessment whether AAT has properly evaluate my circumstances where I did not receive Decline Letter (which resulted in passing deadline for AAT, which makes the case of "No Jurisdiction") due to the fact that my RMA did NOT inform me since that RMA did not check his email (he told me he forgot) and now he denies everything maybe simply to protect his interest, maybe his RMA license, but I can present the below screenshot where all emails from Immigration Department did go to his personal email address, namely … [email deleted, hereafter “Kingtex Email”] as you can see. To my memory all other people in that office were honest and hard working including all solicitors and owner of the business except this RMA called Mr [name deleted]. Probably it could be pure humane mistake by that RMA. But now it is not important to argue who is wrong or bad since recent "long" pandemic makes me lose even prospective employer who proposed the job and gave me that nomination, (they are and will NOT supporting this application even if I can win in this litigation due to long time passed) and now I am asking the Court to order to return this case to the Immigration Department allowing another 6 months to find another employer and apply for a new nomination pending current 187 permanent residency application stayed on the basis of all these mistakes and unfortunate situation of Covid 19.
[Here, Ms Zangmo’s affidavit contained a screenshot of her IMMI account, undated.
This screenshot displayed the list of correspondence sent by the Department of Home Affairs and the relevant email addresses to which the correspondence was sent.]10. Finally I would like to seek an Court order to either
- Do rehearing on 22 March 2022 or so, OR
- Do return this case back to Immigration Department to give me more time to find another employer to apply for a new nomination (which is requirement for applying for 187 Visa -Permanent Resident Permit) pending currently declined 187 visa alive and be stayed after 187 Visa reinstatement.
The hearing of the Set Aside Application proceeded at 2.00pm AWST on 20 October 2021.
Notwithstanding her previously avowed objections to and difficulties with appearing by videolink or teleconference, Ms Zangmo at the hearing of the Set Aside Application appeared by videolink via Microsoft Teams, leave to appear by videolink having been granted to her earlier that day at 10.49am AWST at her emailed request.
At the hearing:
(a)the Minister objected to subparagraphs (1), (5) and (7) of [7] of the 19 October 2021 Affidavit because they purported to give evidence of the general practice of medical practitioners in issuing a medical certificate, and that Ms Zangmo was not qualified to give that evidence; and
(b)
the Court raised an issue with respect to [4]-[10] of the 19 October 2021 Affidavit
on the basis that these paragraphs were submissions rather than evidence.
The Court struck out [4]-[10] of the 19 October 2021 Affidavit on the basis that:
(a)Ms Zangmo was not qualified to give the evidence, insofar as those subparagraphs might be evidence, in subparagraphs (1), (5) and (7) of [7] of the 19 October 2021 Affidavit, as to the practice of medical practitioners; and
(b)[4]-[10] of the 19 October 2021 Affidavit generally because those paragraphs were submissions not evidence.
The Court did however indicate that it would give consideration to [4]-[10] of the
19 October 2021 Affidavit as submissions on behalf of Ms Zangmo insofar as the content thereof constituted submissions.
Consideration
Factors for consideration
The non-exhaustive list of factors which typically have informed consideration of an application to set aside entered orders made in the absence of a party include the following:
(a)that there is an adequate reason for the non-appearance;
(b)that there is no delay in making the application to set aside;
(c)whether the party in whose favour orders have been made would be prejudiced by a new hearing in any respect which could not be adequately compensated by a suitable award of costs or the giving of a security; and
(d)that there is an arguable case on the merits of the substantive application,
see Singh v Official Trustee in Bankruptcy (2008) FMCA 521 per Judge Lucev at [19];
[2015] FCCA 545 at [14] per
Judge Driver (affirmed in SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 at [18] per Reeves J).
SZUFS v Minister for Immigration and Border ProtectionIn CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 (“CAL15”) at [4] per Mortimer J the Federal Court observed that:
4 As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
To the non-exhaustive list set out at [18] above may now be added statutory case management considerations under the overarching civil practice and procedure provisions in s 190 of the FCFCOA Act, which are discussed further at [103]-[118] below.
Arguable case on the merits
It is convenient to consider first the question of whether there is an arguable case on the merits of the Judicial Review Application.
In CAL15 at [5]-[6] per Mortimer J the Federal Court observed that:
5However, 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.
6The 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.
An arguable case on the merits of the Judicial Review Application requires Ms Zangmo to establish that there is an arguable case of material jurisdictional error in the Tribunal Decision such that the Court might set aside the Tribunal Decision: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Background to the Tribunal Decision
The relevant background to the Tribunal Decision is as follows:
(a)
on 5 September 2017 Ms Zangmo applied for the 187 Visa:
CB 1-22 (“187 Visa Application”);
(b)
Centura Realty Pty Ltd (“Centura Realty”) were Ms Zangmo’s nominating employer and had made a nominating application for a position in which to employ her
(“187 Nomination Application”): CB 24;
(c)in the 187 Visa Application Ms Zangmo:
(i)appointed her migration agent as her authorised representative and nominated all Departmental correspondence to be sent to a specified email address (“Kingtex Email”): CB 10; and
(ii)
listed her personal address details as an address in Mosman Park
(“Mosman Park Street Address”);
(d)
on 13 December 2018 the Delegate refused the 187 Nomination Application
(“187 Nomination Refusal”), and notified Ms Zangmo of the 187 Nomination Refusal and invited to her comment thereon within 28 days (“December 2018 Invitation to Comment”): CB 24-27;
(e)the 187 Nomination Refusal notification to Ms Zangmo was emailed to the Kingtex Email address: CB 24 and 27;
(f)Ms Zangmo did not respond to the December 2018 Invitation to Comment: CB 37;
(g)on 24 January 2019 the Delegate’s Decision was:
(i)to refuse to grant Ms Zangmo the 187 Visa as the Delegate was not satisfied that she met cl 187.233(3) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) because Ms Zangmo was not the subject of an approved employer nomination: CB 31-41; and
(ii)emailed to the Kingtex Email: CB 45, and sent by post to the Mosman Park Street Address: CB 31 and 70, Tribunal Decision at [3];
(h)on 28 February 2019 Ms Zangmo applied to the Tribunal for review of the Delegate’s Decision: CB 42-45 (“Tribunal Review Application”);
(i)in the Tribunal Review Application Ms Zangmo listed the address details for correspondence from the Tribunal as an address in South Perth (“South Perth Street Address”), and an email address (“Migration Magic Email”): CB 44, with the same contact details having been given for Ms Zangmo personally: CB 42 (and the Court notes that the Migration Magic Email is different to the Kingtex Email included in the 187 Visa Application);
(j)
on 17 April 2019 the Tribunal sent an email to Ms Zangmo at the Migration Magic Email (“17 April 2019 Email”) indicating that the correspondence attached to the
17 April 2019 Email was in relation to the Tribunal Review Application: CB 59;
(k)the correspondence attached to the 17 April 2019 Email at CB 60-61was:
(i)addressed to Ms Zangmo at the Migration Magic Email; and
(ii)invited Ms Zangmo to comment by 1 May 2019 on the validity of the Tribunal Review Application (“April 2019 Invitation to Comment”) on the basis that it was not lodged within the required 21 day time limit, and was specifically as follows:
I am of the view that your applications are not valid applications as they were not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decisions. The primary decisions were posted to you on 24 January 2019 and, on the basis that 5 February 2019 was that date on which you are taken to have been notified, the last day for lodging applications for review was 26 February 2019. As the applications were not received until 28 February 2019, it appears to be out of time. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid applications has been made, you are invited to do so in writing, by 1 May 2019. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decisions and reasons.
(Original emphasis.)
(l)
Ms Zangmo did not respond to the April 2019 Invitation to Comment:
CB 70, Tribunal Decision at [4]; and
(m)
on 31 August 2020 the Tribunal Decision was that it did not have jurisdiction to review the Delegate’s Decision to refuse Ms Zangmo’s 187 Visa Application:
CB 70, Tribunal Decision at [6]-[7].
Tribunal Decision
The Tribunal Decision (at CB 70) was as follows:
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 24 January 2019 to refuse to grant Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 28 February 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.
Pursuant to s.347(1)(b of the Act and r.4.10 of the Migration Regulations 1994
(the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicated that the applicants were notified of the decision by letter dated 24 January 2019 and dispatched by post. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.
4.The Tribunal formed the preliminary view that it did not have jurisdiction because the applications for review were not received within the prescribed period for lodgement. The Tribunal wrote to the applicant on 17 April 2019 inviting submissions on this issue on or before 1 May 2019. The applicants have failed to do so.
5.The Tribunal finds that the applicants are taken to have been notified of the decision on 5 February 2019: s494C of the Act. Therefore, the prescribed period to apply for review ended on 26 February 2019.
6.As the applicants for review were not received by the Tribunal until 28 February 2019 it follows that the applications for review were made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
...
7.The Tribunal does not have jurisdiction in this matter.
Grounds of the Judicial Review Application
The Judicial Review Application has 12 grounds as follows:
1.AAT and ABF have failed to consider my case in accordance with Natural Justice and Procedural Fairness
2.AAT has failed to serve the documents in proper manner
3.
AAT and ABF have failed to do correspondences incorrectly and insufficiently
[the Court understands Ms Zangmo to mean the opposite and proceeds as though this is so]
4.THE TRIBUNAL DENIED THE APPLICANT THE RIGHT TO REPRESENTATION TO ASSIST THE APPLICANT IN PRESENTING HIS CASE PROPERLY AND ADEQUATELY;
5.The applicant was not aware of the way in which the AAT processes applications nor was he in a position to properly present the facts on which he relied
6.The Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application
7.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.
8.THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS AND NATURAL JUSTICE IN NOT GIVING HIM THE OPPORTUNITIY TO PROPERLY CONSIDER HIM LEGAL POSITION, GIVEN HIM LIMITATION IN THE LEGAL SYSTEM
9.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 CONSTRITED AND WHICH FITTED THE TRIBUNAL MEMBER’S PERSONAL VIEW RATHER THAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW
10.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;
11.The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances;
12.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.
Consideration – did the Tribunal have jurisdiction?
The first question to be decided is whether the Tribunal had jurisdiction to hear the
Tribunal Review Application.
Was the Delegate’s Decision sent to the correct address?
In large part the answer to whether the Tribunal had jurisdiction to hear the Tribunal Review Application turns upon whether the Delegate’s Decision was sent to the correct address.
In the 187 Visa Application at CB 10 Ms Zangmo authorised her migration agent to receive written correspondence on her behalf in relation to the Tribunal Review Application.
The relevant details at CB 10 are as follows:
(the mobile number of the migration agent is redacted and the email address is partially redacted, see [13] above.)
The Delegate’s Decision was both emailed to the Kingtex Email: CB 45, and posted to the Mosman Park Street Address: CB 31, both addresses having been provided by Ms Zangmo
in the 187 Visa Application. The Kingtex Email was the email address of the migration agent nominated by Ms Zangmo in the 187 Visa Application. The Court notes that in the Tribunal Review Application Ms Zangmo alleged that the Delegate’s Decision was “sent to the wrong address”: CB 44, but that assertion fails on the facts because the Delegate’s Decision was sent to the Kingtex Email Address, that being the nominated email address of Ms Zangmo’s migration agent.
Section 494D(1) and (2) of the Migration Act provide as follows:
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
Note:If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2)If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(Original emphasis.)
Because Ms Zangmo had appointed a migration agent, the migration agent was Ms Zangmo’s authorised recipient for the receipt of documents from the Department: Migration Act, s 494D.
Under s 494B(5)(b) and (d) of the Migration Act the Minister was able to transmit the Delegate’s Decision to Ms Zangmo’s migration agent by email.
The Delegate’s Decision was therefore sent to the correct email address, that being the Kingtex Email address, by a prescribed means, namely, email.
Whether the Tribunal Review Application was filed within time
The next question for resolution is whether the Tribunal Review Application was filed within time.
The Delegate’s Decision was a reviewable decision under Pt 5 of the Migration Act, as defined in s 338(2) of the Migration Act. Section 347(1)(b) of the Migration Act relevantly provides that an application for review of a reviewable decision under Pt 5 of the Migration Act must be given to the Tribunal within the prescribed period. Section 347(5) of the Migration Act provides regulations made for the purposes of s 347(1)(b) of the Migration Act “may specify different periods in relation to different classes of Part-5 reviewable decisions”. For Pt 5 reviewable decisions under s 338(2) of the Migration Act, reg 4.10(1)(a) of the Migration Regulations prescribes that the period in which an application for review (here the Tribunal Review Application) “must” be made “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”. The use of “must” in reg 4.10(1) of the Migration Regulations specifies the requirements for the making of an application for review in imperative or mandatory terms, requiring strict compliance to invoke the jurisdiction of the Tribunal: Minister for Home Affairs v Parata [2021] FCAFC 46; (2021) 284 FCR 62 (“Parata”) at [11] per Charlesworth and Jackson JJ and [128] per Burley J
(see too Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340; at [24]-[27] per Judge Lucev (and the cases there cited)).
Ms Zangmo therefore had 21 days from the day of receipt of the Delegate’s Decision in which to file the Tribunal Review Application. In order to determine whether the Tribunal Review Application was filed within time it is therefore necessary to determine when it is that the Delegate’s Decision was received by Ms Zangmo.
Under s 494C(5) of the Migration Act, a document transmitted by email “is taken to have [been] received … at the end of the day on which the document is transmitted”. The Full Court of the Federal Court in SZOBI v Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151; (2010) 119 ALD 233 (“SZOBI”) at [59] per Bromberg J (with whom Stone and Jagot JJ agreed), said that s 494B(4) of the MigrationAct dealt with the sending and not the receiving of a document, and so the relevant provisions in ss 494B and 494C(5) of the MigrationAct are provisions which concern the date on which a document was sent, not the date on which it was received. In SZOBI the High Court refused special leave to appeal: SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347. The Federal Court in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335; (2016) 162 ALD 631 (“Calimoso”) indicated in relation to s 494C(5) of the MigrationAct that “end of the day” referred to therein does not mean the beginning of the following day.
Ms Zangmo is therefore taken to have received the Delegate’s Decision on the day it was sent, that is, on 24 January 2019: CB 31-41 and 45.
The Tribunal Review Application was filed on 28 February 2019. It was therefore filed 35 days after Ms Zangmo is taken to have received the Delegate’s Decision, and not within the 21 days prescribed by reg 4.10(1)(a) of the Migration Regulations.
Whether the Tribunal had jurisdiction
The Tribunal does not have power or discretion to extend the prescribed time in s 347 of the Migration Act or reg 4.10 of the Migration Regulations: Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] per Marshall J; Calimoso at [29] per Charlesworth J.
In circumstances where the Tribunal Review Application was 14 days out of time the Tribunal therefore had no jurisdiction to hear the Tribunal Review Application: Parata at [128]
per Burley J; Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426 at [14] per Jagot J.
It follows from the facts and law set out at [35]-[41] above that the Tribunal was correct to find (at CB 70, Tribunal Decision at [6]-[7]) that it had no jurisdiction to hear the Tribunal Review Application, and, subject to what follows hereunder, it is not arguable that the
Tribunal Decision is affected by jurisdictional error.
Delegate’s Decision sent to Mosman Park Street Address
The Court also notes that Delegate’s Decision was posted to the Mosman Park Street Address: CB 31, that address having been included in the 187 Visa Application by Ms Zangmo in her general contact details: CB 9.
The Minister submitted that the Mosman Park Street Address was “the last residential … address provided to the Minister by … [Ms Zangmo] for the purposes of receiving documents” under s 494B(4)(c)(ii) of the Migration Act. The Minister submitted that by dispatching the Delegate’s Decision to Ms Zangmo by post to the Mosman Park Street Address, s 494C(4)(a) of the Migration Act was engaged so that Ms Zangmo, was taken to have received the Delegate’s Decision seven working days after the date of the document.
The Delegate’s Decision and accompanying cover letter were posted to Ms Zangmo on
24 January 2019: CB 31-41 and 45. The Minister therefore further submitted that:
(a)
Ms Zangmo was taken to have received the Delegate’s Decision on 5 February 2019, and on that basis the last day to apply for review was 26 February 2019 (the Minister assuming for these purposes, but not otherwise conceding, that the Delegate’s Decision had not been received by Ms Zangmo (or, more correctly, her migration agent)
on 24 January 2019); and
(b)because the Tribunal Review Application was not filed until 28 February 2019, it was not lodged within time regardless of whether the Delegate’s Decision was sent by email (to Ms Zangmo’s migration agent) or by post (to Ms Zangmo), and therefore the Tribunal was correct in any event to conclude that it did not have jurisdiction to hear the Tribunal Review Application.
Given the Court’s finding at [42] above it is strictly unnecessary to consider the Minister’s submission on this point, however, it is the Court’s view that the submission cannot be accepted. That is because the address provided has to be one provided for the “purposes of receiving documents”: Migration Act, s 494B(4)(c)(ii). As noted at [29] above it was the Kingtex Email address of Ms Zangmo’s migration agent which was provided for the purposes of receiving documents. The Mosman Park Street Address provided by Ms Zangmo was simply her residential address provided because the 187 Visa Application requested residential address details: CB 9. Unlike the authorised recipient provisions in the 187 Visa Application:
see [29] above, there is nothing to indicate that the residential address provided in the 187 Visa Application is intended to be used for the “purposes of receiving documents”.
This is not a case like DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492; (2019) 78 AAR 373 (“DFQ17”) where the applicant nominated “myself” as the recipient of correspondence, and provided a postal address, but had no authorised recipient and did not provide an email address or authorise electronic means of communication, a set of circumstances from which it could only be inferred that the postal address was intended to be an address for the purposes of receiving documents: DFQ17 at [38] per Perram J (with whom Farrell J agreed at [67]), but rather this is a case where Ms Zangmo has indicated that documents from the Minister (here the Delegate) are “to be sent to a person acting on … [her] behalf, … [namely] a … migration agent”: DFQ17 at [38] per Perram J
(with whom Farrell J agreed at [67]). Thus, sending the Delegate’s Decision to the Mosman Park Street Address was not sending it to an address provided by Ms Zangmo for the
“purposes of receiving documents”. If, however, that conclusion is wrong, and the Mosman Park Street Address was an address provided by Ms Zangmo for the purposes of receiving documents, then the Minister’s submission at [44] above is correct, and the Tribunal once again had no jurisdiction because the Tribunal Review Application was filed out of time.
Notification of the Delegate’s Decision
The Minister, quite properly, dealt with a matter not raised by the Judicial Review Application, namely, whether the 24 January 2019 notification of the Delegate’s Decision complies with the requirement in s 66(2)(d)(ii) of the Migration Act to “state” the time within which the
Tribunal Review Application had to be made: DFQ17 at [59]-[65] per Perram J (with whom Farrell J agreed at [67]). The relevant template notification letter in DFQ17 was described as “piecemeal, entirely obscure and essentially incomprehensible”: DFQ17 at [62] per Perram J.
The 24 January 2019 notification of the Delegate’s Decision in this matter however uses a form of template notification letter ultimately approved by the Full Court of the Federal Court in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (“Singh 2020 FCAFC”), and which was held to state with sufficient clarity the time in which an application for review was to be made. In so doing, the 24 January 2019 notification of the Delegate’s Decision fully complied with the requirement in s 66(2)(d)(ii) of the Migration Act to
“state” the time within which the Tribunal Review Application had to be made.
The Tribunal’s procedural fairness obligations
In whole or part grounds 1, 4, 5, 6, 7, 8, 10 and 11 of the Judicial Review Application allege a denial of procedural fairness or failure to afford natural justice by the Tribunal in the hearing of the Tribunal Review Application.
Where the Tribunal has correctly concluded that it does not have jurisdiction the Tribunal’s procedural fairness obligations do not apply: this is “well settled” law: Alam v Minister for Home Affairs [2019] FCA 389 (“Alam”) at [29], citing SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (“SZEYK”) at [35] per Bennett J. In Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (“Benissa”) at [28]-[36] per Edelman J the Federal Court observed that:
28In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal’s decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
29Justice Bennett dismissed the applicant’s ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no “decision under review” ([34]).
30The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal’s conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a “hollow opportunity” ([39]).
31The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the “utility of extending any opportunity to be heard” was “elusive” and may well have been (using the phrase of Bennett J) “a hollow opportunity”. There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]).
32In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons.
33First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right.
34Secondly, and further supporting the reasoning of Bennett J, a “decision under review” within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a “decision…made under [the Act]”.
35Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
36Fourthly, the obligation in s 360 requires the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that “relate to” the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
In AAL17 the Federal Court had before it a request, made the afternoon before the listing date, to adjourn the hearing of an appeal, on the basis of a medical certificate which, in practical terms, is the same as the 9 August 2021 medical certificate, save that it was for a three day period of incapacity: AAL17 at [10] per Lee J. As to the medical certificate the Federal Court at AAL17 at [19] per Lee J observed as follows:
19I have set out above the adjournment request. In my view the medical certificate provided was wholly deficient in apprising the Court of the circumstances which would lead the Court to conclude that the appellant has an acceptable explanation for not appearing this morning. As I explained in a similar context in SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 (at [15]), a case where the appellant sought an adjournment due to back pains:
The medical certificates do not purport to address the critical question of whether, and if so why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX and Singh, I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone … I agree, with respect, with what Pagone J said in Singh (at [2]), namely that:
… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing.
Luck
In Luck the Full Court of the Federal Court dealt with applications for the adjournment of appeals based on Ms Luck’s health conditions, based on evidence which included a letter from a medical practitioner in which it was indicated that Ms Luck:
(a)had been referred for acute assessment for myocardial infarction;
(b)
was unable to cope with multiple daily tasks, including her litigation duties
(Ms Luck was involved in an array of litigation in the High Court and the Federal Court involving, amongst others, Centrelink, the Department of Human Services and
the Tribunal);
(c)had physical disabilities which periodically required her to use assistive technology such as digital note-taker; and
(d)had a post-traumatic adjustment disorder,
see Luck at [20] and [41] per Collier, Griffiths and Mortimer JJ.
In considering the adjournment applications the Full Court of the Federal Court in Luck had regard to:
(a)
how the grant or refusal of an adjournment would promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, including the objectives in s 37M(2) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) (which have an equivalent in identical terms in s 190(2) of the FCFCOA Act, which is set out at [105] below): at [42] per Collier, Griffiths and Mortimer JJ;
and
(b)earlier authorities dealing with the discretionary nature of adjournments, as follows at [43]-[46] per Collier, Griffiths and Mortimer JJ:
43These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”.
44In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).
45In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
46 The plurality in Aon expressed a similar opinion at [93]:
[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.
The Full Court of the Federal Court in Luck refused Ms Luck’s adjournment applications:
at [47] per Collier, Griffiths and Mortimer JJ, observing that:
(a)
her medical evidence was unpersuasive, not verified on affidavit, and did not reveal any medical conditions additional to, or worse than, those she had at the time she commenced further and ongoing litigation in the Federal Court and the High Court,
and did not specifically deal with how her medical conditions affected her ability to prepare for forthcoming appeals: at [48]-[50] per Collier, Griffiths and Mortimer JJ; and
(b)
the appeals should be heard and determined to ensure that the resources of the
Federal Court were not unduly consumed with the claims of one litigant over others, and to ensure that the Federal Court was able to effectively dispose of cases before it and to ensure that some finality can be achieved to claims made by Ms Luck:
at [52] per Collier, Griffiths and Mortimer JJ.
Precedents binding on this Court
The judgments in NAKX, Singh 2016 FCA, AAL17 and Luck, being judgments of a single judge of the Federal Court and Full Court of the Federal Court dealing with matters being considered by this Court are binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS
[2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733;
(2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australia Division)
v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [50]-[55] perJudge Lucev. Further, they have been regularly applied in the Federal Circuit Court and
Federal Magistrates Court (as this Court has formerly been styled): Singh FCA 2016 on no less than 18 occasions and NAKX on no less than 100 occasions: see LawCite (Australasian Legal Information Institute and consideration – 9 August 2021 non-appearance
9 August 2021 medical certificate
In this case the 9 August 2021 medical certificate (which the Court infers is plainly a pro-forma medical certificate) does not even extend to the minimal description given of the illnesses in NAKX. It identifies no “medical condition” from which Ms Zangmo was suffering and does not identify how any medical condition might have rendered Ms Zangmo incapable of attending the hearing in person, or more particularly by telephone.
Moreover, the 9 August 2021 medical certificate does not identify that Ms Zangmo was suffering from:
(a)the longer term illness which she alleged; or
(b)COVID-19, as she hints she may have been.
Even accepting the 9 August 2021 medical certificate at face value it does not support
Ms Zangmo assertions that she was suffering a longer term illness or that she may have had COVID-19. Suffering from a medical condition for one day is not a longer term illness.
In relation to COVID-19 the Court is prepared to infer that no medical practitioner would,
in August 2021 in a state then free from community transmission of COVID-19, have simply allowed a person suspected of having COVID-19 to go home and given them a bare not fit for work medical certificate for one day for a “medical condition”.
The Court also notes that Ms Zangmo ought to have been well aware by 9 August 2021 of the risk inherent in relying upon a bare medical certificate. Those risks were made clear to her by the:
(a)
Minister’s email of 22 July 2021 at 8.11am (set out in Zangmo (No 1) at [8] per
Judge Lucev and extracted at [5] above); and
(b)Reasons for Judgment in Zangmo (No1) at [18]-[20] per Judge Lucev referring to the unsatisfactory nature of bare medical certificates, including reference to relevant authorities such as NAKX and Luck.
The 9 August 2021 medical certificate was a bare medical certificate, and not one which provided meaningful material establishing why or how Ms Zangmo’s suffering from a medical condition would render her unfit to participate in the 9 August 2021 hearing.
As such it provided no adequate reason for Ms Zangmo’s non-attendance at the 9 August 2021 hearing.
Flu-like symptoms
The Court does not ignore the fact that Ms Zangmo says that she was suffering from flu-like symptoms during the week of the 9 August 2021 hearing: 19 October 2021 Affidavit at [1], and that she sought to excuse herself from a telephone appearance on 9 August 2021 by reason of “high fever and coughing”: 9 August 2021 Affidavit at [3]. Those did not however afford an adequate reason not to attend the 9 August 2021 hearing by telephone. And if, having appeared by telephone, it had become apparent to the Court that Ms Zangmo was in fact sufficiently unwell not to proceed with the hearing it might then had to have been adjourned:
see, for example, AAK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 310 where a hearing was adjourned where the applicant appeared by telephone from hospital and was found by the Court to be “very ill”:
at [10] per Judge Lucev. Otherwise, the 9 August 2021 hearing could simply have proceeded with Ms Zangmo appearing by telephone if she did not appear to be too unwell to appear.
Rather, Ms Zangmo simply took it upon herself not to appear, or to make any endeavour to appear, at the 9 August 2021 hearing, having done the same thing previously in relation to the 22 July 2021 hearing: see Zangmo (No 1) at [17] per Judge Lucev (extracted at [5] above),
and Zangmo (No 2) at [18] per Judge Lucev (extracted at [9] above). Thus even if Ms Zangmo was suffering from flu-like symptoms or high fever and coughing this did not afford her an excuse for failing to appear, or endeavouring to appear, by telephone. The Court is reinforced in that conclusion by Ms Zangmo’s actual activities on 9 August 2021 as set out in
Zangmo (No 2)at [15] per Judge Lucev (extracted at [9] above) whereby Ms Zangmo:
(a)attended upon a general practitioner;
(b)prepared the 9 August 2021 affidavit;
(c)attended upon a Justice of the Peace to have her signing of the 9 August 2021 affidavit witnessed; and
(d)communicated with the Court – electronically (by email) – to forward the affidavit, its attachments and her request for adjournment,
all by 9.39am.
The Court therefore finds that any flu-like symptoms or high fever or coughing suffered by
Ms Zangmo on 9 August 2021 did not provide an adequate reason for Ms Zangmo’s not appearing, or endeavouring to appear, by telephone at the 9 August 2021 hearing.
Court appointed specialist
Ms Zangmo has again suggested that if the Court wished to be satisfied that she was not fit to make an appearance on 9 August 2021 then the Court could have ordered her to see a
Court appointed medical practitioner. This submission misses the point. As was observed in Zangmo (No 2) at [32(d)] per Judge Lucev “ … it is not for the Court to order a very detailed medical examination of Ms Zangmo by a specialist in order to justify any action that it takes … ” in this matter. Rather, the onus was on Ms Zangmo to first lead evidence of matters pertaining to the grant of the indulgence that she was seeking, specifically a further adjournment of this matter, in order to endeavour to satisfy the Court to grant the adjournment.There is nothing in this submission which provides an adequate reason for Ms Zangmo’s
non-appearance on 9 August 2021.
Medical practice
Ms Zangmo submitted that the 9 August 2021 medical certificate was issued in accordance with the normal practice of private medical practitioners who did not, and could not be expected to, provide detailed medical certificates or reports to justify the non-appearance of a person at a court hearing. Further, she submitted that medical practitioners did not provide detailed medical certificates or reports because of “privacy”, by which she seemingly meant that they did so in order to keep private the “medical condition” suffered by the medical practitioner’s patient. Accordingly, she submitted, the 9 August 2021 medical certificate provided an adequate reason for her non-appearance at the 9 August 2021 hearing.
There was no evidence, expert or otherwise, to support these submissions, save perhaps for the 9 August 2021 medical certificate itself. In any event, the submissions are contrary to the law as prescribed by the Federal Court and binding on this Court: see [84]-[90] above,
citing NAKX, Singh 2016 FCA and AAL17, and thus, no matter what the usual practice of medical practitioners in issuing medical certificates might be (a matter about which there is a want of evidence), a person seeking to be excused from attendance at a hearing in the federal courts must provide a medical certificate or report that establishes why it is or how it is that the person suffering from a medical condition would be unfit to participate in a court hearing:
Singhat [2] per Pagone J; AAL17 at [19] per Lee J.
There is nothing in the Privacy Act 1988 (Cth), or otherwise in the law relating to privacy, which prevents a medical practitioner from preparing, and a person seeking to be excused from appearing from providing to a federal court, a medical certificate or report which establishes why it is or how it is that the person suffering from a medical condition would be unfit to participate in a court hearing. It is perhaps trite to observe that the internet is littered with legal sites which publish, for the whole world to see, judgments and decisions disclosing private, and sometimes graphic and distressing, detail of the medical conditions of persons seeking to persuade a court or tribunal to, for example, grant a remedy in negligence, award criminal or workers compensation, grant social security benefits, or reduce a criminal sentence.
The Court notes that in an appropriate case where a detailed medical certificate or report has been provided orders seeking to suppress the detail of the medical condition might be applied for, although the bar for granting suppression orders is high: FCFCOA Act, ss 230(1)(b)(i) and 231; Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651; (2010) 84 ALJR 479; (2010) 75 ATR 794; (2010) 267 ALR 12; at [30]-[31] and [42]-43] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; Australian Competition and Consumer Commission v Air New Zealand Ltd(No 3) [2012] FCA 1430 at [19]-[21] per Perram J; Lejmanoski v University of Western Australia [2013] FMCA 75 at [28] and [30] per Lucev FM.
Conclusion – whether adequate reason for non-appearance
In all the circumstances, and for the reasons, set out at [91]-[101] above the Court has concluded that Ms Zangmo did not have an adequate reason for not appearing at the 9 August 2021 hearing, and this factor must weigh quite heavily against the Dismissal Orders being set aside.
Case management and overarching purpose considerations
Setting aside the Dismissal Orders would mean that the Judicial Review Application would be reinstated to the Court’s list of matters to be heard. That requires the Court when determining how it ought to exercise its discretion on the Set Aside Application to consider case management issues and, in particular, the overarching civil practice and procedure provisions of s 190 of the FCFCOA Act.
Overarching purpose – civil practice and procedure provisions
With the coming into operation of the FCFCOA Act and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth)
(“GFL Rules”) there have been changes, effective from 1 September 2021, to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”.
Those changes alter somewhat the nature of the factors for consideration when deciding whether to set aside orders dismissing proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see [18] above.
The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
(Original emphasis)
The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a).
The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act
(and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules,
which provide:(a)in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b)in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that
“[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes an imperative or mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per
Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
It follows from the above that for the purposes of s 190 of the FCFCOA Act the factors for consideration in relation to whether to set aside the Dismissal Orders include whether setting aside the Dismissal Orders might:
(a)facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b)avoid undue delay, expense and technicality.
The factors in the preceding paragraph can, to some extent, be informed by earlier judgments concerning case management considerations, and might therefore include matters referred to in Luck at [43]-[46] per Collier, Griffiths and Mortimer JJ (citing Sali v SPC Ltd (1993)
67 ALJR 841; (1993) 116 ALR 625 and Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951;
(2009) 258 ALR 14) when considering essentially identical statutory provisions in
s 37M of the FCA Act, such as:
(a)the effect on the Court’s resources;
(b)the effect and possible detriment to other litigants in other cases awaiting listing for hearing before the Court; and
(c)
the choices made in the course of the litigation by the party seeking an indulgence
(and the consequences of those choices).
If the Dismissal Orders were to be set aside and this case were to be reinstated it would not now, in the ordinary course, be listed for hearing before late January or early February 2023. To list it before then would require it to be given special or priority treatment by way of over-listing, or the relisting and deferral of a presently listed hearing of another migration matter,
to the detriment of the parties (both the applicant and the Minister) to that other migration matter, which might well be a Melbourne or Sydney migration matter filed three to five years ago and which has been awaiting hearing for all of that time, and which, is now being heard in the Perth Registry of the Court. Regard must be had to the delays in listing hearings of judicial review migration applications in this Court, arising from the fact that there are several thousand migration judicial review applications which have been filed in the Melbourne Registry of this Court and which have not presently been allocated to a Judge of the Court for hearing,
many of which were filed upwards of three years ago and pre-date the COVID-19 pandemic. Those delays are both notorious and significant: Chief Judge powerful consideration
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J
The Court observes that:
(a)actions have consequences, and Ms Zangmo was given an opportunity to present her case both by way of submissions, twice, and appearance, twice, and failed to avail herself of the opportunities so provided. It is not for the Court to ensure that Ms Zangmo makes best use of the opportunities provided to present her case: Sullivan ALD at 403 per Deane J; CEJ15 at [18(b)] per Judge Lucev, or to give her an open-ended remit to carry on the proceedings in this matter; and
(b)further wastage of public resources, both of the Court’s resources and of Commonwealth’s resources, is neither tolerable nor appropriate, especially in circumstances where the Tribunal correctly concluded that it had no jurisdiction to hear the Tribunal Review Application,
and that these are matters, adverse to the grant of the Set Aside Application, which must also be factored into case management considerations when considering the over-arching civil practice and procedure provisions.
In all of the circumstances set out at [104]-[116] above, to reinstate this matter to the Court’s lists by setting aside the Dismissal Orders would be contrary to the objects of the over-arching civil practice and procedure provisions in s 190 of the FCAFCOA Act as it would:
(a)reinstate a matter in respect of which there is not a reasonably arguable case, and thereby it would not facilitate the just resolution of the dispute;
(b)cause further unnecessary and unwarranted delay in the resolution of the matter;
(c)result in the incurring of further costs for the Minister, but also expense to the taxpayer by the unnecessary wastage of the Court’s time and resources;
(d)cause inefficiencies by having another hearing, thereby causing delay in listing a hearing or hearings for another litigant or litigants.
In the circumstances, consideration of the objects of the over-arching civil practice and procedure provisions in s 190 of the FCAFCOA Act weighs heavily against the setting aside of the Dismissal Orders.
Whether delay in making the Set Aside Application
The length of time between the making of the Dismissal Orders and the lodgement of the
Set Aside Application is 21 days. No explanation whatsoever, whether on affidavit or in oral submissions, was given for that delay. That said, whilst the delay is not short, nor is it long or inordinate, and in all the circumstances this factor is probably neutral when it comes to assessing whether the Dismissal Orders ought to be set aside.
Whether the party in whose favour orders have been made would be prejudiced
At hearing the Minister, quite properly, indicated that there was no prejudice to the Minister which could not be cured by costs if a set aside order was made. This factor therefore weighs in favour of the Dismissal Orders being set aside, or at least does not weigh against them being set aside.
unrepresented applicants and the possibility of legal error
Having regard to the fact that Ms Zangmo is not legally represented, the Court has remained alert to the possibility that some form of arguable legal error in the Tribunal Decision not raised by Ms Zangmo might arise: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J. The Court notes that there is no evidence of any arguable jurisdictional error in the nature of a fraud on the Tribunal by a third party of the kind referred to in SZFDE v Minister for Immigration and Citizenship [2007] HCA 36; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE”), and insofar as Ms Zangmo complains about the conduct of her migration agent in relation to matters before the Delegate, if that be relevant (which in the Court’s view it is not), that conduct is at most mere negligence or inadvertence, and not a fraud upon the Tribunal: SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Save for that matter, and the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Tribunal Decision.
CONCLUSION
The Court has concluded that:
(a)
there is no arguable case on the merits of the Judicial Review Application,
and in particular that the Tribunal was correct to find that it had no jurisdiction to hear the Tribunal Review Application, and moreover there was not, and still is not,
a nominating employer, and that these findings weighs heavily against granting the
Set Aside Application;
(b)
consideration of the objects of the over-arching civil practice and procedure provisions in s 190 of the FCAFCOA Act weighs heavily against granting the
Set Aside Application;
(c)there was no adequate reason for Ms Zangmo’s non-appearance at the 9 August 2021 hearing, and that this finding weighs heavily against granting the Set Aside Application;
(d)
there was a delay of 21 days in making the Set Aside Application, but this factor is probably neutral when it comes to determining whether to grant the
Set Aside Application; and
(e)
there was no prejudice to the Minister which could not be cured by costs if the
Set Aside Application was granted, and this factor therefore weighs in favour, or at least does not weigh against, granting the Set Aside Application.
The Court has considered and weighed the above conclusions, and concluded that where there is no arguable case: see CAL15 at [4] per Mortimer J, no adequate reason for non-appearance, and where to grant the Set Aside Application would be contrary to the legislatively prescribed objects of the over-arching civil practice and procedure provisions, those factors significantly outweigh the contrary factors relating to delay and prejudice, and therefore the
Set Aside Application ought not to be granted.
ORDER
The Court will order that the Set Aside Application be dismissed.
COSTS
The Court will hear the parties as to costs
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 25 January 2022
SCHEDULE OF PARTIES
PEG 294 of 2020 Applicants
Fourth Applicant:
SONAM WANGYEL DORJI
Fifth Applicant:
JAMYANG THEOPELIJOR TOBGAY
- AGLC
- Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
- Case
- [2022] FedCFamC2G 25
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances surrounding the Tribunal's decision and Ms Zangmo's failure to respond to invitations to comment on the validity of her application. The court also assessed whether the Minister would be prejudiced by reinstating the Judicial Review Application and whether there was an arguable case on the merits of the substantive application. Additionally, the court considered statutory case management considerations under the overarching civil practice and procedure provisions in section 190 of the Federal Circuit and Family Court of Australia Act 2021.
Ultimately, the court concluded that Ms Zangmo had not provided an adequate reason for her non-appearance at the hearing, and this factor weighed heavily against setting aside the Dismissal Orders. The court also found that there was no arguable case on the merits of the substantive application, as the Tribunal's decision was based on valid grounds. Consequently, the court decided not to set aside the Dismissal Orders and dismissed the Set Aside Application.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Court did however indicate that it would give consideration to [4]-[10] of the 19 October 2021 Affidavit as submissions on behalf of Ms Zangmo insofar as the content thereof constituted submissions.Consideration Factors for consideration The non-exhaustive list of factors which typically have informed consideration of an application to set aside entered orders made in the absence of a party include the following:(a)that there is an adequate reason for the non-appearance;(b)that there is no delay in making the application to set aside;(c)whether the party in whose favour orders have been made would be prejudiced by a new hearing in any respect which could not be adequately compensated by a suitable award of costs or the giving of a security; and(d)that there is an arguable case on the merits of the substantive application,see Singh v Official Trustee in Bankruptcy (2008) FMCA 521 per Judge Lucev at [19]; [2015] FCCA 545 at [14] per Judge Driver (affirmed in SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 at [18] per Reeves J).SZUFS v Minister for Immigration and Border Protection In CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 (“CAL15”) at [4] per Mortimer J the Federal Court observed that:4 As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful. To the non-exhaustive list set out at [18] above may now be added statutory case management considerations under the overarching civil practice and procedure provisions in s 190 of the FCFCOA Act, which are discussed further at [103]-[118] below. Arguable case on the merits It is convenient to consider first the question of whether there is an arguable case on the merits of the Judicial Review Application. In CAL15 at [5]-[6] per Mortimer J the Federal Court observed that:5However, 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. 6The 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.