ALAM v Minister for Home Affairs

[2018] FCCA 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALAM v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2013

Catchwords:
MIGRATION – Administrative Appeals Tribunal ­­– application in a case for reinstatement of proceedings dismissed under r.13.03C(1)(c) of the Rules ­­– whether there is any utility in setting aside the orders of the Court ­– no arguable case of jurisdictional error made out – no utility in setting aside the orders made out – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c).

Applicant: RASEL ALAM

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 430 of 2018

Judgment of: Judge Street

Hearing date: 17 July 2018

Date of Last Submission: 17 July 2018

Delivered at: Sydney

Delivered on: 17 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Butler
Sparke Helmore

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 430 of 2018

RASEL ALAM

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application in a case for a reinstatement of proceedings that were dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”). The applicant is a citizen of Bangladesh and brought proceedings in this Court seeking to challenge a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 January 2018, finding that the Tribunal did not have jurisdiction to review a decision of the delegate refusing to grant the applicant a Medical Treatment visa.

The Tribunal

1. The Tribunal identified that under the statutory provisions, the application for review had to be made within 21 days of the delegate’s decision. The Tribunal found that the applicant had been notified by letter dispatched by email to the applicant’s email address on 24 November 2017. On 9 January 2018, the Tribunal wrote to the applicant inviting the applicant to make comment as to the validity of the application. The Tribunal noted that the applicant had complained that he had been informed that he had 28 days and that accordingly he still was within the relevant time period.

2. The Tribunal found that the applicant had been notified under the statutory regime on 24 November 2017 and that accordingly, the prescribed period expired on 15 December 2017. The Tribunal found that the applicant’s application was not received until 18 December 2017. It was in those circumstances the Tribunal concluded it had no jurisdiction in the matter.

Before this Court

1. These proceedings were fixed for hearing before this Court on 18 June 2017 by orders made by the Registrar on 12 March 2018. At the commencement of the hearing the Court explained to the applicant that it would consider first the applicant’s explanation for his failure to appear, and secondly, the merits of his application. In that regard, the Court explained to the applicant that the Court was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision, had it had jurisdiction, was affected by relevant legal error. The Court explained to the applicant the nature of the hearing and the applicant confirmed that he understand the nature of the hearing as explained by the Court.

2. The applicant maintained that he was sick and that he had a doctor’s certificate obtained the day before that was sent to the first respondent and that he was unable to attend Court. The medical certificate is patently inadequate and does not explain why the applicant was not able to attend. It does not identify that the applicant was unfit to attend Court. It does not explain why the applicant was unable to participate in a telephone communication with the Court. The applicant asserted that he was on the bed and could not speak. The applicant’s explanation is unsatisfactory.

3. The more material issue is the merits of the application and whether there is any utility in setting aside the orders made by the Court. In that regard the applicant maintains that he was given an oral explanation that he had 28 days and that he lodged his application within 28 days.

4. Whatever oral communication the applicant had with any person does not, in any event, empower the Tribunal to depart from the statutory regime in circumstances where the Tribunal found that the applicant was notified in accordance with the statutory regime. The applicant’s assertion that he had 28 days does not identify any arguable case of relevant error by the Tribunal in its findings that it had no jurisdiction. Nothing said by the applicant identified any basis upon which it could be said that there was any arguable error by the Tribunal including that it did not have jurisdiction.

5. Insofar as the requirements of procedural fairness are concerned, the applicant was given an opportunity to respond to the Tribunal’s concern in relation to the review application and the applicant’s response was taken into account by the Tribunal but did not meaningfully engage with the statutory regime and the requirements in respect of notification. Nor was any issue raised in respect of the notification to the applicant’s email address of the delegate’s decision. Nothing said by the applicant identified any arguable case of jurisdictional error. In the circumstances there would be no utility in reinstating the proceedings.

6. Accordingly, the Court finds that the explanation for the failure to appear was unsatisfactory and that the merits of the application are insufficient to warrant reinstatement of the proceedings. The Court finds there would be no utility in setting aside the orders made on 18 June 2018 and that the interests of the administration of justice do not otherwise warrant setting aside the orders made on 18 June 2018.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 September 2018