DSR16 v Minister for Immigration and Border Protection

Application for adjournment 5 Normally, the Court would be slow to refuse an adjournment or to dismiss an application for non-attendance when the reason advanced for that circumstance is the ill health of an applicant. However, the circumstances in this case indicate that the Court should act with some circumspection before acting on the basis of the Applicant's telephone call to the Registry this morning. Those circumstances lie in the history of the Applicant's applications for visas. 6 The Applicant is a national of India who arrived in Australia in April 2009 on a Student (TU-571) visa. That visa was in effect until 11 January 2010. 7 On 6 January 2010, the Applicant applied for a Student (TU 571) visa. That application was refused and the Applicant then sought review of the refusal by the former Migration Review Tribunal. That application was unsuccessful. The Applicant then lodged an application for judicial review of that decision in the FCC and, on that application being unsuccessful, sought leave to appeal to this Court. That application for leave to appeal was dismissed in 2013, as was a subsequent application to reinstate the proceedings. Following that, the Applicant sought Ministerial intervention on 30 December 2013 but was informed on 15 August 2014 that that request was unsuccessful. 8 On 11 September 2014, the Applicant lodged an application for a protection visa. The Applicant was asked to attend an interview with a Departmental officer concerning that application on 22 September 2015. On 17 September 2015, he sought postponement of the interview on the basis that he had suffered a fall. The Departmental record shows that the Applicant was told that he would need to provide a detailed medical certificate. Despite then saying that he would attend the interview, the Applicant did not do so. 9 Subsequently, on 29 September 2015, the Minister's delegate notified the Applicant that his application for a protection visa had been unsuccessful. The Applicant then applied to the Tribunal for a review of the delegate's decision and in connection with that application was invited, under s 425 of the Migration Act 1958 (Cth) (the Act), to appear before the Tribunal at a hearing on 1 November 2016. The Applicant did not attend that hearing. 10 On 27 October 2016, the Applicant had notified the Tribunal that his legal representative was not in Australia and sought deferral of the hearing. The Tribunal member declined to defer the hearing until at least the notice of appointment of a migration agent had been filed with the Tribunal. No such notice was filed. Accordingly, on 2 November 2016 the Tribunal member made a non-appearance decision, pursuant to s 426A(1A)(b) of the Act. When the Applicant, despite having been informed of his rights to seek reinstatement of the application, did not seek that reinstatement, the Tribunal member, on 23 November 2016, affirmed the delegate's decision to dismiss the application for the protection visa. 11 The Applicant then lodged an application in the FCC for judicial review of the Tribunal's decision. On the written application, he wrote under the heading "Final Orders Sought by the Applicant" this: I got application refused by DIBP and AAT. I wanted to lodge another application so I can get the protection visa to stay here. I could submit more documents to success my application. Thanks. 12 The Applicant's grounds of application were stated as follows: To relodge my application so I can stay here. Couldn't able to go back in to my country. It's bit risky to live there again now so I request a judge please re-open my application again. Thanks. 13 In the affidavit in support of the application, the Applicant deposed: I got application refused by AAT so I am lodging to application to Court to have a look my application again. So if U please give me a date so I can bring more document to success my application. 14 Despite having been given proper notice of the hearing, the Applicant did not appear before the FCC on 15 September 2017. As will be seen, he later attributed his non-attendance to the illness and subsequent death of his father. The FCC Judge then dismissed the application, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). 15 The 14 day period for the commencement of an application in this Court for leave to appeal against that decision, fixed by r 35.13 of the FCR, expired on 29 September 2017. The Applicant did not file an application within that period. Hence, the present application for an extension of time in which to appeal. It is in his application to this Court that the Applicant provides the explanation for his non-attendance before the FCC on 15 September 2017: On 15/09/2017 I missed the Court hearing because of father. He was in hospital and I couldn't reached to Court for the hearing. So if you please give me new date, it would be great. Thanks. 16 Three aspects of this explanation may be noted. First, the Applicant had not provided the FCC with any notice in advance of the hearing that he would not be able to attend. Secondly, he does not explain why he did not answer any of the three telephone calls made by the FCC Judge's Deputy Associate on the day of the hearing, with each of those telephone calls going through to his message bank. Thirdly, the Applicant attributed his inability to attend to the hospitalisation of his father. 17 Thus, today is the fourth occasion arising from the Applicant's application for a protection visa on which he has not attended an interview or a hearing, with the previous three occasions being the interview with the Minister's delegate, the hearing before the Tribunal, and the hearing before the FCC. 18 There is still further relevant history in the proceedings arising out of the Applicant's application for a student visa. I will not give the citations for the decisions of this Court in relation to the litigation arising out of that application because to do so would be to disclose the Applicant's identity and thereby frustrate the purpose of the use of the anonymous designation for his name. It can be taken, however, that the Applicant knows of the decisions to which I am referring. 19 The first decision in this Court concerning the Applicant records that in the proceedings before the MRT concerning the Applicant's application for a student visa, the Applicant's agent had requested further time in which the Applicant could put forward information in support of his claim, because his mother was terminally ill and the Applicant was arranging to travel urgently to India to see her. The agent also told the MRT that the Applicant's mother and father had separated and that this was causing him further difficulties. In the light of this information, the MRT postponed the hearing. At the next hearing before the MRT, the Applicant sought a further postponement this time because his grandmother was "unfit". The MRT reasons also recorded that it had been told that the Applicant's parents had divorced, or at least separated, in 1992 and that the Applicant's father had died about two months later. 20 The hearing by the FCC of the application for judicial review of the MRT decision concerning the refusal of the student visa had been scheduled for 14 February 2013. However, on the previous day, the Applicant had left a letter at the Registry of the FCC indicating that he had received only the previous night information that his grandmother was ill and dying, and so he was leaving Australia to travel to India to see her. The Applicant confirmed that explanation in a later email addressed to the FCC. Acting on that information, the FCC adjourned the hearing. 21 The Applicant did not attend the adjourned hearing on 20 June 2013. Instead, by email of 14 June 2013, he sought a further postponement on the basis that his grandmother was in a serious condition in India, and he would be travelling back to India to support her. He also told the FCC that his parents had died "two years ago in [a] car accident". 22 Despite that explanation, the FCC Judge dismissed the Applicant's application for judicial review of the application concerning the student visa, pursuant to r 13.03C(1)(c) of the FCC Rules. 23 The Applicant then sought a re-opening of his proceedings in the FCC. On that re-opening, he acknowledged that he had not been absent from Australia on 20 June 2013, and had not travelled back to India as he had intimated. The FCC Judge considered that the Applicant's explanation for his non-attendance lacked credibility and dismissed the re-opening application. 24 The Applicant then filed in this Court an application for leave to appeal against the FCC decision. That application was listed for hearing in November 2013. However, eight days before the scheduled hearing, the Applicant sought a postponement of the hearing, saying that he had received news the previous evening that his father was in hospital and in a critical position and that it was necessary for him as the son to travel back to India to provide assistance and support. On that basis, the Court brought forward the hearing so that it could take place before the Applicant's foreshadowed departure. The Applicant did not attend that hearing. 25 The Court also noted evidence showing that the Applicant had not departed from Australia since February 2012 (when he had last entered Australia). This evidence undermined the Applicant's various claims of inability to attend hearings by reason of urgent travel back to India by reason of the ill health of relatives. 26 In summary, this is not the first occasion upon which the Applicant has sought at late notice a postponement of a hearing. It is a common occurrence in the Applicant's litigation. Furthermore, there are apparent inconsistencies in the explanations which the Applicant has provided. There have been inconsistencies about the time of the death of his father, that sometimes being said to have been in 1992, during the Applicant's childhood, and at another time, "two years ago in a car accident." Despite the previous assertions about his father's death, the explanation proffered for the Applicant's non-attendance in the FCC on 15 September 2017 was the illness of his father. 27 There are also inconsistencies in the accounts which the Applicant gave in connection with the previous proceedings in relation to his mother and grandmother. 28 In my opinion, these circumstances all indicate that the Court is justified in acceding to the Minister's submission that it should be cautious before proceeding on the basis of the uncorroborated explanation for his non-attendance which the Applicant now proffers. The Applicant was informed twice this morning that he should provide confirmatory evidence. I am satisfied in any event, that by reason of his previous experience, the Applicant would know that the Court does require confirmatory evidence in circumstances like the present. 29 I am also not satisfied that the Applicant has shown that an adjournment would have any point because, for the reasons which I will give shortly, I consider that the application for the extension of time and for leave to appeal is doomed to fail in any event. 30 It is also appropriate to take into account the prejudice to the proper administration of justice if the Court grants adjournments of hearings on other than a proper basis. In all these circumstances, I am not satisfied that the Applicant has shown a proper case for an adjournment. 31 Accordingly, the application for the adjournment is refused.

Application to dismiss the proceedings 32 I now turn to the Minister's application, pursuant to r 35.33(1)(a) of the FCR, that the application be dismissed by reason of the Applicant's non-attendance. 33 I repeat the matters that I have already mentioned relating to the circumstances of the Applicant's non-attendance. I am also satisfied that the application for an extension of time and for leave to appeal cannot succeed in any event. The grounds of the Applicant's application to the FCC to which I referred earlier do not show a ground upon which judicial review could have been granted. The Applicant says only that he wished to submit another application for a protection visa with more supporting documentation. A ground expressed in those terms does not indicate any basis upon which judicial review could be granted. Judicial review does not lie as a form of application for the reopening of proceedings in the Tribunal. It was not within the capacity of the FCC in the absence of a finding of jurisdictional error, to make an order having the effect of re-opening the proceedings in the Tribunal so as to give the Applicant the opportunity which he seeks. 34 For those reasons, although the Court would ordinarily be solicitous of a litigant who is unable to attend by reason of ill health, I am satisfied that in the particular circumstances of this case, dismissal of the application pursuant to r 35.33(1) is appropriate, and I make an order to that effect. 35 The Minister has sought an order for costs in his favour fixed in the sum of $1,756, being the figure shown in Sch 3 to the FCR. I am satisfied that it is appropriate to make an order for costs in the Minister's favour and that those costs should be quantified in the sum of $1,756. The formal orders of the Court accordingly are these: (1) The application for the adjournment of today's hearing is refused. (2) The application for the extension of time and for leave to appeal filed on 5 October 2017 is dismissed. (3) The Applicant is to pay the costs of the First Respondent of and incidental to the application which are fixed in the sum of $1,756. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.