Kaur v Minister for Immigration and Border Protection

1. The appeal be dismissed under r 36.75 of the Federal Court Rules 2011 (Cth).
2. The appellants pay the first respondent's costs of the appeal, fixed in the sum of $2,178. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA), dismissing an application for judicial review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), to affirm the decision of a delegate of the respondent Minister not to grant the first appellant's application for a Skilled (Graduate) (Temporary) (Class VC) subclass 485 visa (the visa). The visa was refused on account of the first appellant's failure to meet public interest criterion 4020. The appellants, who are husband and wife, are both nationals of the Republic of India. The first appellant, Ms Manpreet Kaur, was the primary visa applicant, and the visa status of the second appellant, Mr Surinder Singh, is contingent on the success of the first appellant's visa application. The judgment of the primary judge has the citation Kaur & Anor v Minister for Immigration and Border Protection & Anor [2016] FCCA 778. 2 The Minister advised the Court on 10 August 2017 that the first appellant had departed Australia and no longer held a visa that would entitle her to return. Although the appellants have not made either written or oral submissions in support of their appeal, the appellants have not sought to discontinue their appeal by filing a notice of discontinuance in accordance with Form 126, as provided in r 36.73 of the Federal Court Rules 2011 (Cth) or in any other way. The appeal therefore remains on foot. 3 The appellants did not appear at the hearing today, 22 August 2017. The Minister, who had earlier filed written submissions, applied for the appeal to be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules, on this basis. In support of this application, the Minister filed an affidavit of Ms Melinda Anne Jackson, a lawyer employed by AGS with responsibility for the day-to-day conduct of the matter on the Minister's behalf. Ms Jackson also appeared for the Minister today. Her affidavit was stated to have been affirmed on 15 August 2017 and was read on the Minister's application. 4 In the affidavit, Ms Jackson deposed that she had become aware that an officer of the Department of Immigration and Border Protection (Department) had identified that, according to the Department's Integrated Client Services Environment (ICSE) database, the first appellant had departed Australia on 23 May 2016. A screenshot of the Department's movement records relating to the first appellant was annexed to the affidavit. Ms Jackson also deposed that the ICSE visa record data maintained in respect of the first appellant indicated that her Class WB, Subclass 020 visa (known as a "Bridging Visa B") had ceased on 23 May 2016 and that accordingly the first appellant had no present right of re-entry to Australia. 5 Rule 36.75(1)(a)(i) relevantly provides that, if the appellant is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that the appeal be dismissed. I consider it appropriate to proceed in the appellants' absence as contemplated by r 36.75 of the Federal Court Rules, bearing in mind the above-mentioned circumstances as well as those mentioned hereafter. 6 By letter dated 12 April 2016, sent by email and by post to the parties, the Court notified the parties in this matter that it was anticipated that the Court would hear the appeal in Melbourne during the sitting period 1 - 23 August 2016. On 2 May 2016, Registrar Josan advised the parties by email that, as this appeal raised similar issues to those raised in matters to be heard by a Full Court of the Federal Court at the end of that month, the Court did not propose to list this appeal for hearing at that stage. The Full Court of the Federal Court delivered judgement in the matters to which Registrar Josan referred on 17 October 2016: see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (Singh); and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 (Gill). 7 On 10 May 2017, Registrar McCormick issued directions in order to prepare the appeal for hearing. In her affidavit, Ms Jackson deposed that on 12 May 2017 an AGS lawyer sent an email to the last known email address for the first appellant, inviting the first appellant to discontinue the appeal. 8 On 12 July 2017, the Court notified the parties by email that the matter had been listed for hearing at 10.15am on Tuesday 22 August 2017. A further email was sent by an AGS lawyer to the first appellant on 26 July 2017, requesting she advise the Minister if she wished to discontinue her appeal. This email incorrectly advised that the hearing was listed for 22 July 2017, but this seems unlikely to have misled the appellants, given the other correspondence. 9 On 8 August 2017, my Associate emailed the first appellant noting that she had not filed submissions in accordance with the directions made by Registrar McCormick. The email reminded the appellant that it was important she attend the hearing on 22 August 2017 and requested that she confirm receipt of the email. On 11 August 2017 my Associate emailed the parties again, reminding the first appellant that the matter was listed for hearing today (22 August 2017), and advising that if she did not attend the Court may proceed in her absence. 10 The first appellant has not responded to the emails of the Court, nor, it seems, to the emails of the Minister's legal representatives. 11 The first respondent noted in his submissions that this matter might be affected by the decisions of the Full Court of this Court in Singh and Gill, to which reference was made earlier in these reasons, but also submitted that relief would be futile given that the first appellant has departed Australia. Judgments in Singh and Gill were delivered after the judgment of the primary judge, which is the subject of this appeal. The first respondent conceded that the primary judge failed to perform the analytical exercise required by the Full Court in those cases. The first respondent further stated in written submissions that, in different circumstances, he would submit that the judgment of the FCCA should be set aside and the matter remitted to that Court, to allow the proper analytical exercise to be completed. In the circumstances of this case, however, the first respondent submitted, and I accept, that this would not be appropriate because the first appellant has departed from Australia and it seems unlikely that she will be seeking to give any evidence relevant to this analytical exercise in future. 12 As Ms Jackson noted in oral submissions today, it is plain that the appellants have not engaged in the Court process; and they have neither filed written submissions in accordance with the orders of the Court nor appeared at the hearing of their appeal. The Court and the Minister have made numerous attempts to communicate with the first appellant, without success and the Department movement records indicate that the first appellant is no longer in the country. 13 In the circumstances to which I have referred, I am satisfied that it is appropriate to proceed in the appellants' absence as contemplated by r 36.75 of the Federal Court Rules. Accordingly, I would dismiss the appeal pursuant to r 36.75(1)(a)(i) of those Rules and order that the appellants pay the first respondent's costs, in an amount fixed in the sum of $2,178. 14 The success of any application, which might be subsequently made, to set aside these orders would depend on an exercise of discretion and, amongst other things, this would involve consideration of whether there was an acceptable explanation for the failure to attend the hearing and the strength of the appellants' case on the appeal if the order dismissing the appeal were to be set aside. In the latter regard, it might be thought that the decisions in Singh and Gill could provide the appellants with a tenable basis for challenging the judgment of the primary judge. A further matter, which attracts attention, is that the even-numbered pages of the Tribunal's decision record are missing from both the appeal book filed in this Court and the Court book filed in the FCCA. In the circumstances of this case, where it appears that the first appellant is no longer in Australia, it is unnecessary to comment further. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.