Varsi v Minister for Home Affairs

1. The interlocutory application filed by the applicant on 28 February 2019 be dismissed.
2. The applicant pay the first respondent's costs of the interlocutory application as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 Before me is an application filed by the applicant on 28 February 2019 pursuant to r 36.75(2)(a) of the Federal Court Rules 2011 (Cth) (Rules) to set aside the order made by this Court on 1 February 2019 pursuant to r 36.75(1)(a)(i) of the Rules dismissing his appeal. 2 On 14 March 2019 I made orders at a case management hearing listing the application for hearing today. During the case management hearing the applicant appeared by telephone and it was made clear, in the course of discussion between the Court and the parties that, first, the first respondent (Minister) sought the earliest possible hearing date of the applicant's application to reinstate; and secondly, that the applicant would be required to be present at the hearing for cross-examination by the Minister. At that time an order was also made for the applicant to file and serve any affidavits in reply to the evidence relied on by the Minister by 28 March 2019. 3 On 5 April 2019 the applicant wrote to the Court seeking an adjournment of today's hearing to a date four to five days later because he had travelled to his home town in India in order to "attend a funeral of [his] grandfather, who along with [his] other three family members met with fatal accident last month". In his email to the Court the applicant explained that he returned to India on 16 March to attend his grandfather's funeral. It also seems that on the day he wrote to the Court his uncle passed away and the applicant said that he would have to attend his uncle's funeral on 8 April 2019, but would depart for Australia on 9 April 2019 and arrive on 11 April 2019. 4 The application for an adjournment is opposed by the Minister. For the reasons that follow, I will not adjourn the hearing of the applicant's application as requested. Before proceeding to explain why that is so, it is necessary to set out a short chronology. 5 The applicant commenced this proceeding by the filing of a notice of appeal in the South Australian registry of the Court on 13 June 2018. 6 On 21 August 2018 the applicant sought a transfer of the proceeding to the Court's New South Wales registry and indicated that he would be unavailable during the November 2018 Full Court sitting period as he would be travelling to India. 7 On 17 September 2018 orders were made by consent transferring the proceeding to the New South Wales registry and, I understand, the parties were informed that the matter would be listed for hearing in the November 2018 appellate sitting period. The parties were subsequently informed that the appeal was listed for hearing on 15 November 2018. 8 On or about 25 October 2018 the applicant sought an adjournment of the hearing of the appeal until February 2019 on the basis that he was travelling to India for his wedding and would be away from November 2018 until February 2019. The Minister opposed the request for the adjournment and on 1 November 2018 the matter came before me for determination of the application for an adjournment. At that time the applicant appeared by telephone from Brisbane. Over the opposition of the Minister I made orders vacating the hearing of the applicant's appeal listed on 15 November 2018 and listing it for hearing on 1 February 2019 at 10.15 am before me in Sydney. I also ordered the applicant to file and serve a notice of change of address for service setting out his current address for service by 5.00 pm on 6 November 2018. 9 On 1 February 2019 the applicant's appeal was listed for hearing. The applicant failed to appear and, as I have already noted, his appeal was dismissed pursuant to r 36.75(1)(a)(i) of the Rules. 10 On 26 February the applicant lodged his interlocutory application seeking reinstatement of his appeal together with an affidavit. Those documents were accepted for filing on 28 February 2019. As noted above, on 14 March 2019 the matter came before me for a case management hearing and at that time I made orders which included an order listing the applicant's application for hearing today. 11 Two further matters are of relevance. First, it is clear from an affidavit affirmed by Katherine Evans, a solicitor in the employ of the Minister's solicitors, that the applicant did not depart the country in November 2018 as he had informed the Court he intended to do and which was the basis for his application for an adjournment of the hearing of his appeal (see [6] above). The evidence discloses that as at the date of the case management hearing, 14 March 2019, the last time the applicant had entered the country was 5 July 2016 and he had remained onshore since that date. 12 Secondly, the evidence relied on by the Minister also discloses that the applicant was issued with a Bridging B visa (Visa) on 11 March 2019. The notification of the Visa provided to the applicant, a copy of which was in evidence before me, indicates that the Visa allows the applicant to travel outside Australia until 11 June 2019. That is, the applicant was issued with the Visa three days prior to the case management hearing on 14 March 2019 on which occasion his application was listed for hearing. In his most recent email to the Court in support of his application for an adjournment of today's hearing he said, in response to issues raised by the Minister's solicitors opposing the adjournment, that he did not indicate to the Court that he intended to depart the country at the case management hearing because at that time "[he] did not have any intention of travelling considering [he was] having a hearing in few days. Sudden death of my grandfather made [him] take decision to leave on 16 March". 13 It is difficult to accept the applicant's assertion that he had no intention of travelling in light of the issue of the Visa some three days prior to the case management hearing. In that regard, I note that a copy of the Visa grant letter was provided by the Minister's solicitors to the applicant by email this morning and he was informed that the Minister intended to provide it to the Court at the hearing today. 14 The Minister submitted that ordinarily he would be minded to consent to an application for a short adjournment as made by the applicant, particularly given the asserted circumstances for the adjournment. However, for two reasons the Minister was not prepared to consent to the adjournment and, indeed, opposed it. The first reason related to the applicant's conduct. The Minister submitted that, in his view, the Court would not readily accept the applicant's assertions that as at 14 March 2019 he had no intention of travelling. That this is so is, perhaps, heightened by the fact that the applicant had sought an earlier adjournment of the hearing of his appeal on the basis that he was travelling to India to marry, which did not in fact occur. Notwithstanding that and the fact that he was in Australia at the time, the applicant did not appear at the hearing of his appeal on 1 February 2019. The applicant said in his affidavit filed in support of his application for reinstatement that that was so because he was in Townsville at the time and, due to flooding, was unable to communicate with the Court. I accept that the evidence that is before me makes it difficult to accept the applicant's assertions in his emails to the Court seeking an adjournment of this hearing. 15 Putting that matter to one side, the Minister also submits that an even more compelling reason to reject the application for an adjournment is because the applicant's application is hopeless or bound to fail. I also accept that this is so. An examination of the primary judge's reasons, which are the subject of the applicant's appeal, support that conclusion. 16 Those reasons disclose that on 31 July 2015 the applicant applied for a permanent employer sponsored visa (Sponsor Visa) in the direct entry stream pursuant to the provisions of the Migration Act 1958 (Cth). As the primary judge explained, one of the essential criterion to be satisfied for the grant of the Sponsor Visa was sponsorship by a nominated employer. The applicant was sponsored by Hot Stuff Food Pty Ltd (Hot Stuff Food) for a position of retail manager. The applicant's application for the Sponsor Visa was refused because the department had not approved the nomination of Hot Stuff Food. Thus the applicant was not able to satisfy the preconditions of the Sponsor Visa. 17 The applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate's decision. Concurrently with that application, Hot Stuff Food also sought a review of the decision pertaining to it, which had resulted in the refusal of its nomination of the applicant's position. Ultimately, the Tribunal dismissed Hot Stuff Foods' application and, as a result, the applicant's application before the Tribunal could not succeed because the nomination of Hot Stuff Food had not been approved. 18 The applicant filed an application for judicial review in the Federal Circuit Court of Australia (Federal Circuit Court). In his notice of appeal, the applicant did not particularise his grounds of appeal from the primary judge's judgment. He simply said that he does not agree with the primary judge's decision, that the primary judge did not consider his points about what he described as judicial error and that the primary judge did not specify "what these issues and documents are is a wrong statement". 19 In considering the application, the primary judge explained at [27] of his reasons: The difficulty for the applicant is that the success or otherwise of his application necessarily depended on the outcome of the application by Hot Stuff Food Pty Ltd. Necessarily, if Hot Stuff Food Pty Ltd's application was declined, it was impossible for [the applicant] to satisfy the criterion specified in clause 187.233(3). 20 At [37] of his reasons the primary judge referred to the decision of a Full Court of this Court in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 and, in particular, to the decision of Mortimer J (with whom Jagot and Bromberg JJ agreed) which relevantly said at [82] that: … The refusal of Harrico's nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant's current RN visa application. Even if error had been established, remitter to the Tribunal would be futile. 21 As the primary judge observed at [38] of his reasons, her Honour's comments were apposite to the matter before the primary judge and, having dismissed Hot Stuff Foods' application, the Tribunal could not do anything other than dismiss the applicant's application, which depended upon it. In other words, as the primary judge noted, adopting Mortimer J's terminology, the dismissal of Hot Stuff Foods' application was fatal to the applicant's application. 22 The applicant has not, in support of his application now before the Court, taken any steps to refute the evidence that he had not departed the country to travel to India as he asserted he would in support of his application for an adjournment of the appeal in November 2018. That is, of course, relevant to the first basis upon which the Minister says that I would not grant an adjournment. 23 Further, and more fundamentally, there is no evidence before the Court either on this application or as part of the appeal, of any steps being taken to seek judicial review of the decision of the Tribunal to dismiss Hot Stuff Foods' application, nor is it the case that the applicant could rely on a substitute sponsor in order to succeed in this matter, as was pointed out by the primary judge at [39] of his reasons. In other words, there has been no attempt in the material that is before the Court by the applicant to address the critical issues in his appeal and this is, in the absence of any attempt to address it, fatal. 24 In those circumstances I am satisfied that, as the Minister has submitted, the applicant's application is futile. 25 For those reasons I would not accede to the applicant's application for an adjournment of the hearing of his application for reinstatement. As the applicant has failed to appear this morning, either personally or through a legal representative, his application should be dismissed with costs. I will make orders accordingly. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.