FEDERAL COURT OF AUSTRALIA

Pannu v Minister for Immigration and Citizenship [2013] FCA 1282

THE COURT ORDERS THAT:

1.    Pursuant to rule 35.33(1)(a)(i) of the Federal Court Rules 2011 the application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application for leave, including the costs of the 15 November 2013 attendance.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        This is an application for leave to appeal against the dismissal by the Federal Circuit Court (the FCC) of an application to have set aside the previous dismissal by that Court of an application for judicial review of a decision of the Migration Review Tribunal (MRT). Leave is required because the dismissal was an interlocutory judgment: s 24(1A) of the Federal Court Act 1976 (Cth).

2        On 20 June 2013, a Judge of the FCC dismissed the applicant’s application under s 476 of the Migration Act 1958 (Cth) (the Migration Act) for judicial review of a decision of the MRT. The order was made pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (the FCC Rules) as the applicant did not attend at the hearing.

3        On 27 June 2013, the applicant filed, pursuant to rule 16.05(2)(a) of the FCC Rules, an “Application in the Case”. The application did not indicate the orders sought. However, the accompanying affidavit made it apparent that the applicant sought to have his application under s 476 re-opened.

4        That application was listed for hearing on 12 July 2013. The applicant attended and his application was dismissed.

5        The applicant filed his application in this Court on 26 July 2013. The grounds of the application are as follows:

On … 12th July the Court made decision and they dismiss my case because I did not have any documents to provide the Court and asked for few more months to get more documents for argue my case. So now I am appealing to leave to appeal.

In his supporting affidavit, the applicant deposed:

On the date of 12th July Court made decision and they dismissed my case because of I had not any documents to provide the Court. I mentioned to the Court my grandmother she is ill so that’s why I couldn’t … do anything. So now I am going to lodge my application to leave to appeal and appeal to Judge to look again my case.

6        The applicant, who is unrepresented, did not appear at either of the two hearings in this Court. He was also unrepresented in the FCC. The MRT, which is the second respondent, had filed a submitting appearance both in this Court and in the FCC.

7        Given the applicant’s non-attendance at the hearing in this Court on 21 November 2013, the first respondent sought an order pursuant to rule 35.33(1)(a)(i) of the Federal Court Rules 2011 that the application be dismissed. I acceded to that application, dismissed the application for leave to appeal, and said that I would publish reasons later. What follows are my reasons for those orders.

Background

8        The applicant is an Indian national born in 1990. He arrived in Australia on 7 April 2009 apparently as the holder of a Student (Temporary) (Class TU), Subclass 571 Schools Sector visa. That visa expired on 11 January 2010. On 6 January 2010, the applicant lodged an application for a Student (Temporary) (Class TU) Subclass 572 visa.

9        By letter dated 16 February 2010, the Department of Immigration and Citizenship (DIAC) informed the applicant that his application for the visa was refused. The primary reason given for the refusal was that the applicant had not, despite Departmental requests, provided sufficient evidence of his financial resources to meet course fees and living, school and travel costs for the first 36 months from the day his visa was expected to be granted.

10        On the same day, the consultants assisting the applicant requested a reconsideration of his application. They explained that “with his dad’s death, his mum had to struggle with the financials to be arranged”. On the re-opening of the application, the refusal of the visa was confirmed.

11        The applicant then applied to the MRT for review. By letter dated 17 November 2011, the Tribunal requested that the applicant provide specified information to it by 15 December 2011. The applicant’s migration agents responded by letter dated 14 December 2011. They provided some of the information requested by the Tribunal, including information that the applicant was enrolled in a Diploma of Management at the Adelaide College of Technical Education and requested an extension of time for the applicant to provide additional evidence of his financial resources. Given the grounds for the present application, the reasons put forward by the agent for the requested extension are significant:

Mr Pannu has today been informed that his mother is terminally ill. He is in the process of obtaining a ticket to depart Australia for India as quickly as possible, as this would include seeking a BVB tomorrow, if possible. In these circumstances, we request that the MRT not set down a hearing until Mr Pannu has returned.

This has also affected Mr Pannu obtaining documents from his mother to evidence the financial requirements for Schedule 5A. His mother and father have separated, so this is creating further difficulty. …

… It is clear that [his mother] has sufficient funds available. However, given her current state of poor health, having just been diagnosed with terminal cancer, she is getting urgent palliative care. She will not be able to arrange the requested documents before tomorrow. We request an extension of time so that it can be obtained.

The agents included with their letter copies of certain documents which, they said, the applicant had “managed to obtain”. These included copies of documents evidencing amounts held by the applicant’s mother and father with Indian banks, a copy of an undated affidavit from the applicant’s mother deposing to her willingness and ability to meet his education expenses in Australia, and copies of Income Tax Department of India Acknowledgements for the applicant’s father relating to the years 2008-9, 2009-10 and 2010-11.

12        The MRT granted the requested extension. It listed the application for hearing on 30 May 2012 but, for its own reasons, postponed that hearing to 25 June 2012. The applicant’s agent informed the Tribunal on 23 May that the applicant’s mother “had just passed away”.

13        The applicant attended the hearing on 25 June 2012 with his migration agent. At that hearing, the applicant was requested to provide some further information by 1 August. The applicant did not provide the requested information but wrote the following letter to the Tribunal on 1 August 2012:

I have been trying to get my more financial documents but I couldn’t able to get that. I know as we discussed today is due date but my grandmother who is almost 75 she is unfit for last few weeks so that’s why I’m requesting to you to give me some more time to get some documents. I will be thankful for you.

14        The Tribunal declined to provide an extension of time and, on 7 August, made a decision affirming the decision of the Department not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal’s reasons recorded that:

(a)    The applicant had attended at the hearing on 25 June 2012 and had been represented by his registered migration agent.

(b)    The applicant had told the Tribunal that his mother had recently passed away and that accordingly he needed more time to obtain the requisite evidence concerning his financial capacity.

(c)    The commencement of his Diploma of Management had been deferred to August 2012 in the light of his mother’s death.

(d)    The applicant’s parents had divorced, or at least separated permanently, in 1992.

(e)    His father had died about two months after the separation in 1992.

(f)    The term deposit in his father’s name, evidence of which the applicant had provided in February 2010 to support his visa application of 6 January 2010, was still in his father’s name because his mother had not transferred it to her name.

(g)    The income tax acknowledgements provided by the migration agent on 14 December 2011 for the years 2008-9, 2009-10, 2010-11 related to rental income from various properties owned by his family and were still in his father’s name because they had not been transferred to his mother’s name.

(h)    Since the applicant’s mother’s illness it was his grandmother who had been transferring money from India for his support.

(i)    The Tribunal required evidence of these matters and had extended to 1 August 2012 (five weeks) the time within which the applicant was to provide the information.

(j)    The applicant had requested on 1 August 2012 still further time in which to provide the required information but that request had been declined.

(k)    The applicant had not demonstrated that he had sufficient financial resources to meet the expenses of his proposed course.

15        On 22 August 2012, the applicant filed the application in the FCC seeking review of the MRT decision under s 476 of the Migration Act. In his affidavit in support, the applicant stated, amongst other things:

… This year on first week of February my mum died by heart attack and my father … died [when] I was [in] childhood. There’s only my grandmother left in India who looks after everything and she is almost 80 years old. I told to get some more financial documents as I discussed with my case officer but unfortunately she was unfit to get all my financial documents and other things as she [is] uneducated and she doesn’t know anything about that.

The applicant went on to say that he sought further time in which to obtain the required documents.

16        On 20 September 2012, the FCC listed the application for hearing on 14 February 2013. That hearing did not proceed because, on the day before the scheduled hearing, the applicant left the following letter at the Registry of the FCC:

This is Karan Singh Pannu confirming you. I have hearing on 14th of February 2013 [at] 2.15pm. But unfortunately my grandmother who’s 82 years she admitted in hospital last night. She is in very serious condition. I just got call last night. Now I have to leave this country asap. There’s no-one there who look after my grandmother and she wanted to see me. Maybe it could be last time I am going to see her. So that’s why I am just requesting you to give me some more time and requesting you to give me hearing date. I probably come back in 7 to 8 weeks. So please understand my situation and give me some time. It will be very thankful for you.

Acting on that letter, the FCC adjourned the hearing to 20 June 2013. The applicant did not attend at that hearing either. On 14 June 2013, he sent an email to the FCC:

Hi this is Karan Singh Pannu. My file number is ADG179/2012. I just pleased to inform you. My 90 years old grandmother in very serious condition. I just got informed last night from my neighbours. There is no-one there who look after her. Because my parents died two years ago in car accident. So I’m the only person who can look after. I just want to inform you I am travelling with in few days. I have hearing on 20th of June. I couldn’t able to attend this hearing. And I’m so much under depression at the moment. Please I just requesting you just give me some more time so I can mentally prepared with my hearing again. I’m trying to coming back 2nd week of February. It would be great thankful for Magistrate of Federal Court. If they give me some more time. Thanks.

17        Although he had not had any response to that email request, the applicant did not attend at the hearing on 20 June 2013. The FCC Judge then dismissed the application pursuant to rule 13.03(1)(c) of the FCC Rules on account of the applicant’s non-attendance and without considering the merits of the substantive application ([2013] FCCA 642).

18        The applicant then filed the “Application in a Case” by which he sought a re-opening of his review application. In the supporting affidavit, the applicant deposed:

I got decision by Judge on 20 June 2013 which is he refused my application because I was absent there. But I sent [an] email to Judge to I wouldn’t be available there because of my grandmother’s illness. I wanted to travel to overseas but I couldn’t after my hearing which [has] made me more stressful. Now I am requesting Federal Circuit Court of Australia to re-open my case, have a look again.

19        The re-opening application was heard by the same FCC Judge on 12 July 2013 and was opposed by the first respondent.

20        At that hearing, the applicant acknowledged that he had not travelled back to India as he had said he would. He said that he had not attended at the hearing on 20 June because he had been awaiting a response to his email of 14 June. The FCC Judge noted that the applicant had not provided any evidence confirming that his mental state had affected his ability to attend or present submissions on 20 June. He considered that the applicant’s explanation for his non-attendance lacked credibility and dismissed the re-opening application ([2013] FCCA 1066).

21        The applicant then filed his application in this Court seeking permission to appeal against the dismissal of the re-opening application. I have earlier set out the grounds of that application. The parties were advised by letter dated 5 September 2013 that the application would be heard on 21 November 2013. In accordance with the Registrar’s direction, the applicant should have filed an outline of his submissions by 7 November. He did not do so, and no explanation for his failure to do so has been provided.

22        On 13 November 2013, the Registry received a letter from the applicant with the following content:

To Whom May Concern to Federal Circuit Court Judge. I just called last night from India. My dad is in hospital and he is in very critical position. I just spoke to the doctor today and they said to me your dad is in last stage of the blood cancer. He could have died any time. For as his son I have to travel there as soon as possible and there is no-one over there who look after him and wanna spend some time with him. It would be thankful … if you could give me a new hearing date. That would be great. So I can see my dad asap. I leaving on 16th Nov 2013 and come back 26th of Feb 2013 [sic].

23        I treated this letter as an application for an adjournment. Given that the applicant said that he was leaving on 16 November 2013, at short notice I listed that application for hearing at 2.00pm on Friday, 15 November 2013. The Court then received a second email from the applicant saying that he was now leaving Adelaide at 4.20pm on 14 November 2013 as he was catching a flight to India from Melbourne.

24        The hearing on 15 November proceeded. In the applicant’s absence, I refused the application for the adjournment. I was concerned at the apparent inconsistency in explanations provided by the applicant and the fact that the applicant had, on more than one occasion, sought late adjournments of hearings affecting his application for a visa on the grounds of the ill-health of a relative.

25        The Court provided to Mr Pannu by email on 19 November a copy of the orders made on 15 November together with confirmation that the hearing of his application would be proceeding on 21 November 2013. As already noted, Mr Pannu did not attend at the hearing on 21 November, and the first respondent sought the dismissal of his application.

Consideration

26        Rule 35.33(1)(a) of the Federal Court Rules 2011 provides:

(1)    If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a)    if the absent party is the applicant:

(i)    the application be dismissed; or

(ii)    the application be adjourned; or

(iii)    the hearing proceed only if specified steps are taken; …

This rule is applicable because rule 35.12 relates to applications for leave to appeal. As can be seen, the first respondent’s application invokes subpar (a)(i).

27        Rule 35.33(1)(a)(i) authorises the dismissal of an application for leave to appeal by reason only of the applicant’s absence when the application is called on for hearing. That circumstance was established in this case.

28        However, because of the history of the applicant’s proceedings in the FCC and in this Court, it is appropriate to have regard in addition to the available explanation for the applicant’s non-attendance and also to the apparent lack of merit in the application.

The explanation for the applicant’s non-attendance

29        Normally, the Court would be solicitous towards a litigant who is unable to attend or prepare for a hearing by reason of the death or ill-health of a close relative. However, a number of matters indicate that it is appropriate for the Court to have reservations about the explanations provided by the applicant and, in particular, about extending the usual consideration on this account. Those matters include:

(a)    This is not the first time that the applicant has sought, only shortly before a hearing, an adjournment on account of the stated ill-health of a relative. It also occurred in relation to the hearings in the FCC on 14 February 2013 and 20 June 2013.

(b)    Those requests occurred against a background of the applicant repeatedly seeking more time to provide documents to support his application for a visa.

(c)    There are some significant inconsistencies in the applicant’s accounts. He sought the adjournment of the hearing in this Court on account of a terminal illness of his father, whereas on 16 February 2010 the consultants acting on his behalf informed DIAC that “with his dad’s death, his mother had to struggle with the financials”; the applicant told the MRT that his father had died in 1992; he told the FCC on 22 August 2012 that his father had died during his (the applicant’s) childhood; and he told the FCC, on 14 June 2013, that his father and mother had died “two years ago in a car accident”.

(d)    The applicant has given different accounts of the cause of his mother’s death: on one occasion it was described as a heart attack and on another as a car accident. In a further alternative, the letter from the applicant’s migration agent of 14 December 2011 said that the mother had a “terminal cancer” for which she was receiving “urgent palliative care”.

(e)    There are discrepancies in the ages of the grandmother whose illness is said to be the occasion for his inability to attend at Court hearings or to give proper attention to those proceedings. The applicant has variously stated her age as almost 75, almost 80, 80, 82 and 90 years old. (The applicant told the FCC Judge on 12 July 2013 that the grandmother about whom he has been speaking is the same grandmother.)

(f)    Despite telling the FCC that he could not attend the hearing on 20 June 2013 because he was travelling to India, the applicant did not in fact do so.

(g)    In addition, the instructions of counsel for the first respondent are that Departmental records as at 11 November 2013 indicate that the applicant had not departed from Australia since 6 February 2012 (being the date when he last entered Australia). If that be correct, the circumstances disclosed in the applicant’s letter of 13 February 2013 were not correct or, if correct at the time they were made, must have no longer existed very shortly afterwards, and yet the applicant did not inform the FCC of that fact.

(h)    Further still, the first respondent’s records indicate (on counsel’s instructions) that, as at 20 November 2013, the applicant had not departed Australia as foreshadowed in his communications of 13 November 2013 and 14 November 2013 to this Court. This undermines the applicant’s stated reason for his inability to attend the hearing in this Court.

(i)    The applicant has not filed a written outline of submissions as directed by the order of the Registrar made on 2 August 2013. This raises a query as to whether the applicant intended to prosecute the application in any event.

30        In combination, these matters raise real questions about the reliability of the applicant’s explanation for his absence. I was not prepared, in these circumstances, to conclude that there was a proper reason for the applicant’s absence or that this was a case in which the ordinary consideration allowed to a litigant who has suffered a recent bereavement of a close family member was appropriate. Like the FCC Judge, I consider that there is a real possibility that the applicant may simply be “stringing out” the litigious process for some ancillary advantage.

The underlying merits

31        The factors relevant to the FCC Judge’s determination under rule 16.05(2)(a) of the FCC Rules to set aside the judgment of 20 June 2013 were, first, whether the applicant had offered a satisfactory explanation for his failure to attend the hearing on 20 June and, secondly, whether his underlying application had a reasonable prospect of success: SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391 at [10]; BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 at [11].

32        The applicant would have difficulty establishing the former. The primary reason for his stated inability to attend the hearing on 20 June 2013, namely that he was travelling back to India on account of his grandmother’s ill-health, was acknowledged to be false. Further, the applicant did not provide any evidence supporting the existence of a depression making it difficult for him to give proper attention to the proceeding in the FCC.

33        The second difficulty facing the applicant is that the proceeding in the FCC did not, as he seems to have contemplated, involve a merits review of the decision of the MRT. The jurisdiction of the FCC on an application for judicial review under s 476 of the Migration Act is only to determine the legality of the decision of the MRT in the sense of jurisdictional error: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476. The applicant had not set out any grounds for challenge to the MRT decision of the permitted kind. Even had the applicant been able to obtain more documents regarding his financial resources, it is improbable that those documents would have assisted him on the hearing of his judicial review application.

34        I note, in any event, that the applicant has still not produced evidence of his financial resources, even though first requested by the MRT to do so in November 2011.

35        These two considerations suggest that the application for leave to appeal to this Court did not, in any event, have reasonable prospects of success.

Conclusion

36        It is for these reasons that, on 21 November 2013, I dismissed the application for permission to appeal against the order of the FCC of 12 July 2013.

Associate:

Dated:    29 November 2013