FEDERAL COURT OF AUSTRALIA

Harsev v Minister for Immigration and Border Protection [2018] FCA 1890

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The first applicant, Ms Harsev, appears representing herself, her husband and her daughter. She has applied for leave to appeal the decision of the Federal Circuit Court of Australia (“Federal Circuit Court”) dismissing her application for reinstatement of her application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 3 September 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Skilled (Provisional) (Class VC) visas, finding that Ms Harsev had given or caused to be given information that was false or misleading in a material particular in her visa application.

2    This matter has a long history which is recorded in the judgment appealed from: Harsev & Ors v Minister for Immigration & Anor [2018] FCCA 1301. For present purposes, it is sufficient to recount the following aspects of the procedural history.

3    On 29 September 2014 Ms Harsev applied, in the Federal Circuit Court, for judicial review of the decision of the Tribunal. The matter was heard on 12 April 2016 and judgment was delivered on 15 June 2016 dismissing the application.

4    By consent in May 2017 an appeal to the Federal Court was resolved on the basis that the matter would be remitted to the Federal Circuit Court to be determined according to law.

5    In a case management hearing before the Federal Circuit Court on 8 November 2017, the matter was listed for rehearing on 28 February 2018. The Federal Circuit Court made orders for the applicants to file any amended application and for the filing of written submissions.

6    The first respondent filed written submissions on 14 February 2018. There is no indication that written submissions were filed by the applicants. The Federal Circuit noted at [12] of its reasons that, in his written submissions at [16], the Minister required Ms Harsev to attend for cross-examination on the trial date.

7    When the matter was called for hearing on 28 February 2018, Ms Harsev did not appear and the Federal Circuit Court dismissed the application for non-appearance.

8    On 6 March 2018, Ms Harsev filed an application for reinstatement of her application for judicial review. That application was heard on 11 April 2018 and the application was dismissed. The reasons for judgment of the Federal Circuit Court record that in her affidavit in support of her application for reinstatement, Ms Harsev deposed that on 28 February 2018 at 9.38 am she contacted the Court registry and spoke to a lady, informing her that she was terribly ill and had a fever and that she was feeling very sick and could not attend at court. She requested that the hearing be postponed to perhaps the afternoon or the following day. She was informed that an email would be sent to the Judge with notification of her request. She assumed that the matter was postponed and that she would be contacted again by telephone or email. The reasons also record that, prior to contacting the Court, Ms Harsev had sent an email to a person referred to as Ned Rogers at 9.31 am requesting an adjournment on the grounds that she was unwell, to which she received a generic response saying that Mr Rogers was on leave. I note from the representations listed in the Federal Circuit Court judgment that Mr Rogers appeared as counsel for the first respondent.

9    In dismissing the application for reinstatement, the Federal Circuit Court reasoned that the explanation that Ms Harsev gave for her non-attendance at the court hearing on 28 February 2018 was “utterly unsatisfactory”. At [18], the primary judge stated:

She was sufficiently well to be able to email the first respondent and contact the Court, requesting, on her version of events, an adjournment till noon or possibly the next day. That is not, prima facie, consistent with being “terribly ill and had a fever” or “very sick and cannot attend Court”. No medical certificate has been provided. Nobody at the Court or in the office of the first respondent told her that the matter had been adjourned. She was aware that she was required to attend for cross-examination. Although the applicant said she would forward documentation, and has indeed done so, none of this provides any medical evidence to support the applicant’s assertion that she was unwell.

10    In forming the view that the explanation given by Ms Harsev for her non-attendance was “utterly unsatisfactory”, the Federal Circuit Court took into account oral submissions given by Ms Harsev and various medical reports that were tendered as a large bundle of papers referred to as Exhibit A1. The reasons record at [17] that, in her oral submissions to the Court, Ms Harsev referred to depression. The Federal Circuit Court noted that none of the medical records that were tendered explained her non-attendance and, indeed, that none of them appeared to indicate depression.

11    The Federal Circuit Court also considered whether there would be prejudice to the respondent if the application was reinstated, but noted that the Minister had “readily concede[d]” that there was no prejudice. In exercising his discretion, the primary judge also gave consideration to whether there was a reasonably arguable prospect of success on the substantive application for judicial review. The primary judge was not satisfied that the prospects of success were reasonably arguable.

12    At [24], the primary judge concluded:

The Court has to balance all the competing considerations and form a view as to whether it is in the interests of justice to set aside the earlier orders and reinstate the substantive application. The applicant well knew that she was required for cross-examination at the trial date. She effectively adjourned it of her own motion. She is not inexperienced by now in legal proceedings, and would know that she had no power to do so. Her explanations are, absent medical evidence, utterly unsatisfactory and self-serving. They are at the very least indicative of a pattern of delay or prevarication, which, in my opinion, suffuses the materials as a whole. The applicant elected not to attend trial and in my view, particularly given my reservations about her prospects of success, it is not appropriate in the interests of justice to set aside the orders previously made.

13    Leave of the Court is required to appeal from the decision of the Federal Circuit Court as the decision below was interlocutory: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [1] (“MZYEZ”), citing Rana v University of South Australia (2004) 136 FCR 344. The principles applicable to the grant of leave to appeal are well established. The onus is upon the applicant to establish that the decision below is attended with sufficient doubt to warrant its reconsideration on appeal, and that substantial injustice will result if leave to appeal were refused: Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397, at [398]-[399].

14    In MZYEZ, at [7]-[9], Ryan J discussed the principles applicable to an application for reinstatement. The grant of leave is a discretionary decision involving consideration of three factors, and whether on balance they tend for or against the reinstatement. Those factors are:

(1)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(2)    the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and

(3)    whether the applicant has a reasonably arguable prospect of success on the substantive application.

As stated above, each of the three factors were addressed in the reasons of the primary judge.

15    In her application for leave to appeal, the applicant relies on three substantive grounds, as follows:

1.    The primary judge erred in refusing to reinstate the review applications.

2.    The primary judge erred in not considering that the applicants were victims of fraudulent conduct committed by their former migration agent.

3.    The applicants’ application clearly raises an arguable case.

16    Ground 1 was supported by eight particulars. The applicant also supported her application by an affidavit sworn on 15 June 2018 in which she deposed to the matter coming up for hearing on 28 February 2018 and the matter being dismissed for non-appearance. She also deposed that she immediately applied for reinstatement of her application on 6 March 2018 on the grounds that she did contact the Federal Circuit Court registry on the morning of 28 February 2018 requesting an adjournment because she was terribly ill, and that she assumed the matter was postponed and she would be contacted again by telephone or email with the adjourned date but was subsequently informed by the Court that her review application was dismissed for non-appearance. She also deposed that the applicants are victims of fraudulent conduct committed by their former migration agent and, in her opinion, that the decision of the Tribunal affirming the delegate’s refusal of her visa application was affected by jurisdictional error.

17    As the judgment below from which the applicants seek leave to appeal is a discretionary judgment, the Court needs to be satisfied that there was some error of principle in the exercise of the discretion in order to be satisfied that there is some arguable prospect of success: House v The King (1936) 55 CLR 499 at 505. I am not satisfied that the applicants have demonstrated any error of principle in the decision of the primary judge below.

18    First, it was eminently open to the Federal Circuit Court not to be satisfied that Ms Harsev had provided a satisfactory explanation for her non-attendance at the hearing on 28 February 2018. None of the medical records that were submitted by Ms Harsev to the primary judge related to her apparent illness that prevented her, as she claimed, from attending the hearing on 28 February 2018. I should note for the sake of completeness that the bundle of documents tendered below as Exhibit 1 were not available on the court file and the Minister was not able to produce the bundle of documents that became Exhibit 1. However, Ms Harsev did have copies of those medical records which she handed to the Court and confirmed that none of the medical records that she provided to the court below related to her claimed illness which prevented her from attending at court on 28 February 2018. An examination of those records confirms that none of those records related to her apparent ill health on 28 February 2018 and also confirms that the primary judge did not have before him any medical evidence supporting Ms Harsev’s inability to attend court that day.

19    The standard of the medical evidence required to excuse a party’s non-attendance was recently considered by the Full Federal Court in Ahmad v Minister for Immigration and Border Protection [2018] FCAFC 199. The Full Court affirmed that, in considering an application to adjourn the hearing of an appeal on the basis of ill health, the court will usually require an explanation on oath from a medical practitioner of the illness and the reasons for the applicant’s inability to attend court, especially so when a matter was fixed for hearing some considerable time ago.

20    In the present case there was no medical evidence at all to support Ms Harsev’s claim of ill health at the time of the hearing on 28 February 2018, nor, on the basis of the material that was presented before the primary judge, were there any details of the nature of the apparent illness which prevented Ms Harsev from attending court, let alone any medical evidence supporting the claim that her illness prevented her from attending the hearing. In the circumstances the failure of Ms Harsev to provide a sufficient explanation for her non-attendance was reason in itself for the Court, in the exercise its discretion, not to grant a reinstatement of the application. No arguable error is discernible in the exercise of that discretion.

21    Whilst in MZYEZ Ryan J referred to the three factors bearing upon an application for reinstatement, the decision is of a discretionary nature and each case should be considered on its own facts. In appropriate cases where no reasonable excuse has been provided for the parties’ absence from the hearing, the Court can, in the proper exercise of its discretion, dismiss an application for reinstatement on that basis alone, without giving any further consideration either to the question of prejudice to the other party or to whether the applicant has an arguable case on the prospects of the substantive application. In the present case, the applicant’s failure to provide an acceptable reason for her non-attendance is a sufficient basis upon which to dismiss her application for leave to appeal.

22    The Federal Circuit Court, as stated, did go on to consider the other two factors, namely whether there was prejudice to the Minister and the merits of the substantive application which, in the primary judge’s view, had no reasonable prospects of success. The fact that the Minister was not prejudiced did not of itself weigh in favour of allowing reinstatement of the application. Furthermore, arguable error is not demonstrated in the primary judge’s conclusion that Ms Harsev’s conduct in relation to her visa application, which was set out in some detail in the primary judge’s reasons for decision, militated against the prospects of success and that her claim to be a victim of fraudulent conduct was an argument that faced considerable difficulty.  As the Federal Circuit Court reasoned, her conduct was inconsistent with her claim that she was the victim of fraud by her migration agent.

23    I accordingly conclude that the decision below is not attended by sufficient doubt to warrant the grant of leave, nor am I satisfied that substantial injustice will result if leave is refused on that basis. The application is therefore dismissed.

Associate:    

Dated:    30 November 2018