FEDERAL COURT OF AUSTRALIA

Mishra v Minister for Immigration and Border Protection [2018] FCA 76

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed pursuant to Federal Court Rules 2011 (Cth) (FCR) r 35.33(1).

2.    The applicant pay the first respondent’s costs.

3.    Order 2 be stayed for 21 days.

4.    In the event that the applicant files an application pursuant to FCR r 35.33(2) within 21 days, order 2 be vacated and in its place the question of costs be reserved pending the outcome of that application.

5.    The first respondent serve a copy of these orders and the reasons for judgment on the applicant by email at eddie7755@yahoo.com.au within 24 hours.

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

REASONS FOR JUDGMENT

BURLEY J:

1    On 4 August the applicant Abhitesh Anand Mishra, filed an application in this Court seeking an extension of time to file an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 3 July 2017. He also filed an affidavit in support which broadly set out grounds upon which he contended that the decision of the Tribunal should be set aside. However, despite indicating his intention to prosecute his application at a case management hearing conducted on 18 August 2017 and in an email dated 3 October 2017, Mr Mishra did not appear and was not represented at the hearing conducted on 14 December 2017. On that occasion, Ms Strugnell, solicitor for the first respondent, sought an order that the application be dismissed pursuant to Federal Court Rules 2011(Cth) (FCR) r 35.33(1)(a)(i). For the reasons set out below I consider that it is appropriate to order that the proceedings be dismissed and that the applicant pay the first respondent’s costs.

2    The decision of the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to revoke the cancellation of Mr Mishra’s visa, being a subclass 155 (5 year resident return) visa. The two issues that the Tribunal considered before it were, in broad terms, whether Mr Mishra meets the character test as defined by s 501 (6) of the Migration Act 1958 (Cth) (Act) and, if he does not, whether there is another reason why the mandatory cancellation of the visa should be revoked (s 501CA(4)(b)(ii)).

3     Mr Mishra, is a citizen of Fiji who first arrived in Australia at the age of 11 in March 1988. It was not in dispute before the Tribunal that he has a substantial criminal record and that, in accordance with s 501(7)(c) he therefore fails the character test. The Tribunal summarised his criminal history as follows;

15. The applicant’s offending commenced in 1992, a few years after arriving in Australia. He continued to offend during his teenage years, throughout his 20s, and into his 30s. His complete criminal history includes convictions for common assault, assault an officer in the execution of duty, assault occasioning actual bodily harm, resisting officer in the execution of duty and larceny or stealing. The applicant has also been convicted on many occasions for driving related offences: driving with low/middle/high range prescribed concentration of alcohol, ‘drive recklessly/furiously or speed/manner dangerous’, and drive while disqualified. The applicant received sentences of imprisonment or periodic detention for these offences on 14 May 1999, 19 June 2002, 20 August 2004, 6 April 2005, 14 July 2005 and 17 September 2007.

16. On 20 August 2004, 6 April 2005 and 17 September 2007, the applicant was made subject to supervision orders requiring that he obey all necessary directions for counselling, educational development or drug and alcohol rehabilitation.

17. On 16 October 2015, the applicant was convicted of ‘wound person with intent to cause grievous bodily harm’ in the Penrith District Court. He was sentenced to a three-year period of imprisonment from 16 October 2015 to 15 October 2018 with a non-parole period of 14 months concluding on 15 December 2016.

4     The Tribunal recorded that it was satisfied the offence of which he was convicted on 16 October 2015 is very serious because it involved the use of an offensive weapon, violence and death threats. Additionally, it found that the sheer number of recorded offences against the applicant and the cumulative effect of such offending are further aggravating factors. It found that these factors weigh ‘very heavily’ against the exercise of the discretion to revoke the cancellation of Mr Mishra’s visa. The Tribunal then proceeded to consider the risk to the Australian community should Mr Mishra commit further offences or engage in other serious conduct, the best interests of minor children in Australia, the expectation of the Australian community and other relevant considerations including the strength, nature and duration of Mr Mishra’s ties to Australia, the impact on victims and the impediments applicable to Mr Mishra should he be returned involuntary to Fiji.

5    Although the application filed by Mr Mishra sought an extension of time within which to file an application for judicial review of the Tribunal decision, no such extension was required. The affidavit filed by Mr Mishra in support contains a list of bases upon which Mr Mishra appears to contend that the decision should be set aside. The Minister, quite properly in my view agreed that the application together with the affidavit in support should be treated together as an application for review of the Tribunal decision.

6    The affidavit contains the following:

I am the applicant in this proceeding before court.

1.    The respondent’s decision on 3 July 2017 was quashed.

2.    The respondent’s decision was unreasonable.

3.    The respondent failed to take into account relevant considerations.

4.    The respondent failed to properly exercise the discretion under s 501 CA and s 501CA(4)

5.    The respondent’s decision involved any error of law.

6.    The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.

7.    I dispute the rejection of all my family members and other reliable source witnesses not to take the stand as part of my strong character references.

8.    I want to get a second chance to express myself clearly, as my nervousness got the better of me.

9.    I did not understand some of legal terms used in the Questions by the Pros[e]cutor.

7    The matter first came before this Court on 18 August 2017. At that time Mr Mishra was in immigration detention and appeared in person via video link from Christmas Island. Mr Mishra consented to procedural directions for the conduct of the proceedings which involved the filing of any evidence by both parties and the filing of submissions by the parties. The directions included that the matter be listed for hearing at 2.15pm on 14 December 2017. Plainly enough, Mr Mishra was aware of the hearing.

8    When the matter was heard on 14 December 2017 neither Mr Mishra nor any legal representative on his behalf appeared.

9    At the hearing the Minister relied on an affidavit by Tristan James Dimmock, a solicitor employed by MinterEllison, the firm representing the Minister, sworn on 6 December 2017. It annexed an email dated 3 October 2017 from Mr Mishra to MinterEllison which states:

Dear Sir or madam

I’m currently residing in Fiji islands. But I still want to continue my case matter on the 14th December 2017. Please can you let me know if I can still fight my case from overseas.

Kind regards

Abhitesh Anand Mishra

10    The solicitors responded the following day, informing Mr Mishra that they were not in a position to give him advice, and recommended that he seek legal advice in relation to his question. They further advised him that the matter was listed for hearing on 14 December 2017 and stated that if Mr Mishra or a legal representative on his behalf did not appear at the hearing, the Minister may seek to have the matter dismissed for non-appearance.

11    Ms Strugnell, advised me from the bar table that no further communication had been received from Mr Mishra, following her email of 4 October 2017 but that he had on a number of occasions he appeared to have accessed the electronic court file.

12    The affidavit of Mr Dimmock includes within it a document entitled ‘Request for removal from Australia’ apparently signed by Mr Mishra, which includes a statement that he requests that the Department remove him from Australia in accordance with s 198 (1) of the Act. That form is not dated. However another document, entitled “Detention Client Interview - Part B, Removal Planning Interview”, records an interview between a representative of the Department of Immigration and Mr Mishra dated 24 July 2017 during which Mr Mishra appears to have been informed that he would be returned to Fiji. The document includes within it a question: ‘Do you have any other question/Issues or Concerns you would like to raise?’ to which the answer recorded is ‘Want to go home asap.’ The record of interview appears to have been signed by Mr Mishra. Mr Dimmock gives evidence that the records of the Department indicate that on 3 September 2017 the applicant voluntarily departed from Australia.

13    It is unclear to me why Mr Mishra or indeed the Minister did not indicate at the case management hearing on 18 August 2017 that Mr Mishra was to be voluntarily removed from immigration detention in Australia. In my view at the least the Minister ought to have done so. By that time he had requested removal and he was taken to Fiji some weeks afterwards. However, it may be inferred from his email of 3 October 2017 that Mr Mishra intended to prosecute his application despite his departure. Plainly enough he was entitled to do so.

14    Since leaving Australia Mr Mishra has not notified the Court that he obtained legal representation in Australia, and has not complied with any direction or attended the hearing of the proceedings. When he was notified that the present judgment was to be delivered he sent out an email to Court stating that he did not “get a chance” to fight his case, but desired to do so.

15    Ms Strugnell made an application for the dismissal of the application for non-appearance. FCR r 35.33, provides:

35.33      Absence of a party

(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; or

(b)    if the absent party is the respondent:

(i)    the hearing proceed generally or in relation to a particular aspect of the application; or

(ii)    the hearing be adjourned; or

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

(2)   If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)    setting aside or varying the order; and

(b)    for the further conduct of the proceeding.

16    It appears to me that this is an appropriate case for the application of this rule. There is no explanation for why Mr Mishra, having contacted the Minister’s solicitor’s from Fiji and indicated his intention to prosecute his application, failed to appear or comply with any directions. It may be that there is a reasonable explanation. His most recent email suggests as much. However, if that is the case then it is open to Mr Mishra to make an application pursuant to FCR r 35.33(2). Failing such explanation, it is appropriate to apply the rule.

17    In the circumstances, I order that the application dated 4 August 2017 be dismissed under r 35.33 of the FCR for the non-appearance by the applicant and that the applicant pay the first respondent’s costs of and incidental to the application. However, I order that the costs order be stayed for 21 days. If Mr Mishra files an application pursuant to FCR r 35.33(2) within that time then the costs order will be vacated and costs will be reserved, pending the outcome of that application.

Associate:

Dated:    14 February 2018