ALI v Minister for Immigration
[2014] FCCA 1965
•5 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1965 |
| Catchwords: MIGRATION – Application for reinstatement of show cause application – consideration of applicant’s reasons for failing to attend hearing before Registrar – consideration of whether the applicant has an arguable case on the substantive application. |
| Legislation: Migration Act 1958 (Cth) Federal Circuit Court Rules 2001 |
| Lee v MIAC [2001] FCA 1448 |
| Applicant: | ZAHOOR ALI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 274 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 27 August 2014 |
| Date of Last Submission: | 27 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Unrepresented |
| Solicitors for the Applicant: | Unrepresented |
| Counsel for the First Respondent: | Ms Bosnjak |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | No appearance |
ORDERS
The Application filed 27 May 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 274 of 2014
| ZAHOOR ALI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application seeking that the respondent show cause why the applicant not be granted relief was filed 18 February 2014. That application relates to a decision of the Migration Review Tribunal (“the Tribunal”) made 24 December 2013 affirming a determination by the delegate of the Minister for Immigration and Border Protection (“the delegate”) to cancel the Applicant’s subclass 572 vocational Education and Training Sector visa (“the visa”).
The applicant would need, and has made application for, an extension of time. That issue, however, is not before me today.
The sole issue relates to the order of Registrar made 7 May 2014 dismissing the applicant’s application with costs due to the non-appearance by the applicant at the directions hearing. The applicant now seeks reinstatement of his application. He filed an application in a case accordingly on the 27 May 2014 together with an affidavit the contents of which are both in the same terms and as follows:
1. I mistakenly missed my hearing on 7 May 2014 though (sic) it is on 9 May.
2. MRT decisssion (sic) is unsatisfied. They totally ignore my rights of study and my letters I wrote to Chisholm Tafe.
3. I want to reinstate my case for further process and procedures.
The application in a case came on before me on the 27 August 2014. The applicant appeared representing himself. He did not require an interpreter. The applicant effectively repeated his submissions that he mistook the date of the 7 May 2014 for the 9 May 2014 and therefore missed the hearing before the Registrar.
The first respondent opposes the application for re instatement and seeks its dismissal.
Background facts
The applicant is from Pakistan. He arrived in Australia on 19 April 2012 as the holder of a subclass 572 student visa. That visa was cancelled by the delegate on 17 May 2013 on the basis that the applicant did not comply with a condition of the student visa.
The applicant sought a review by the Tribunal which conducted a hearing on 20 December 2013. The applicant appeared and gave evidence and presented argument.
The Tribunal’s reasons [6] disclose that the applicant was aware that his visa was cancelled because of notification and certification by Chisholm Institute of Tafe of unsatisfactory class attendance.
The applicant was enrolled in a diploma of Nursing. He says that he had completed a diploma to the same level in Pakistan and understood that he would be undertaking higher studies in Australia.
The Tribunal noted the applicant’s evidence as follows:
a)that he attended the course on the first day and recognised, and told his teacher, that the books were the same as he used for his study in Pakistan;
b)that he spoke with a staff member at Chisholm Tafe and told her that he did not wish to study again at the same level and that he was told to request a letter of release from Chisholm, which he did; and
c)That he received a warning letter from Chisholm about his low attendance but did not receive the requested release letter.
The Tribunal also had evidence by a letter provided by the applicant himself and from Chisholm explaining to the applicant that his request for release was outside of Chisholm’s policy.
The applicant said that he had been absent from class for 15 days due to back pain but did not or was not able to provide a medical certificate.
The applicant told the Tribunal that he wished to pursue further nursing qualifications in Australia.
The applicant made mention of terrorism in Pakistan; that his father is a peace committee member; and that two of his uncles have been killed.
The Tribunal found that the applicant had not been compliant with condition 8202 of his visa requiring:
a)Enrolment in a registered course, or in limited cases, a full time course of study or training;
b)Not to have been certified by his or her education provider, as not achieving satisfactory course progress; and
c)Not having been certified by his or her education provider, as not achieving satisfactory course attendance.
The Tribunal had before it evidence that Chisholm Institute of Tafe had certified the applicant as not achieving satisfactory attendance and noted that it is the certification by the education provider as to the breach of its attendance policies that constitutes the breach of the condition and not the question of unsatisfactory attendance per se.
Having been satisfied as to breach of the statutory condition, the Tribunal turned to consider its discretion whether or not to cancel the visa. In doing so it noted that the exercise of the discretion was unfettered by any specific provisions in the Act or Regulations. The Tribunal did, however, reference the government policy guidelines provided in the Department’s Procedures Advice Manual (PAM) 3.
In exercising its discretion the Tribunal took into account the following:
a)That the applicant learned on the first day of his course that it was the same course he had completed in Pakistan and that he had not researched the course before enrolling but had acted on the advice of an education consultant;
b)That upon seeking advice at Chisholm Tafe he asked for a release letter but this was not forthcoming;
c)That the applicant had stopped attending classes whilst waiting for the release letter but was not acting on specific advice to do so;
d)That the applicant told the Tribunal that he did not know that his request for a release letter did not fit Chisholm’s policy because he had not read the policy, despite acknowledging having done so in his course acceptance form; and
e)The Tribunal took into account the applicant’s evidence and submissions that his parents did not want him to be a ‘target’ in Pakistan but that he intended to return to Pakistan on the completion of his studies in Australia.
The Tribunal then exercised its discretion against the applicant’s application for review and affirmed the decision of the delegate.
Reinstatement application
Pursuant to r.16.05 of the Federal Circuit Court Rules 2001 the court may vary or set aside its judgment or order for reasons including if the order is made in the absence of a party.
There are two broad matters for the courts consideration in determining whether or not to reinstate the application. Firstly, it is proper to take into account the applicant’s reasons for not appearing at the hearing and, in particular, whether by accident and without fault on his part the order for dismissal was made in circumstances which warrant the exercise of the court’s jurisdiction under r.16.05.
Secondly, it is proper and relevant to have regard to whether the applicant has an arguable case on its face in respect of his substantive application being whether there is any reasonable prospect of the applicant establishing a ground of review for the Tribunal or whether it would be an exercise of futility to set aside the orders dismissing the application?
In this matter the first respondent argues that the court should not accept the applicant’s explanation as being a reasonable excuse. Secondly, counsel for the respondent says that on the facts and on a reading of the decision of the Tribunal, there is no reasonable prospect that any ground of review could succeed and it would therefore be futile to set aside the orders dismissing the application.[1]
[1] Lee v MIAC [2001] FCA 1448 at [10]
Counsel for the first respondent concedes that should I be against her in respect of the above then the Minister suffers no prejudice in itself such that the application for reinstatement be dismissed.
Consideration
The only explanation offered by the applicant in his documents and in submissions before me was that he mistakenly understood the hearing listed for 7 May 2014 as being 9 May 2014.
The return date on the applicant’s application clearly states 7 May 2014. That application was lodged on 18 February 2014 and I can reasonably assume was therefore returned to the applicant some considerable time before 7 May 2014. Further, by letter of 3 March 2014 the first respondent wrote to the applicant providing a Notice of Appearance and Response. Included in that letter is a deal of courtesy information in respect of matters such as options for legal representation. Prior to that information being set out the letter at its third paragraph offers in dark type “Set out below is important information about these proceedings”.
Below and in the text of the letter is the following with emphasis by dark type:
Requirement to appear at Court
As you are aware this matter has been listed for a first Court date before the Federal Circuit Court at 10.00 a.m on 7 May 2014
The applicant does not claim that he does not speak or read English. Indeed, I enquired of him at the hearing before me as to whether or not he required an interpreter. He responded in the negative. The indication is that he has prepared his own materials filed in this matter.
The letter continues on the second page to provide the following courtesy information:
it is important that you, or someone representing you appear in court each time this matter is listed for hearing. If you do not appear in court at the date and time required, your application may be dismissed and you may be ordered to pay our client’s costs of the proceeding.
It is your responsibility to make sure that you are aware of the time and place each time that this matter is to be heard. You can find out what court room this proceeding is to be heard in, by any one of the following methods….
In all of these circumstances, I am not satisfied that the applicant’s explanation for non-attendance is satisfactorily explained and that the explanation constitutes a reasonable excuse for non-attendance.
Secondly, there is nothing in the applicant’s application or his submissions before me to satisfy me that he has any prospect of establishing a jurisdictional error in the Tribunal.
It is not apparent on the application filed 18 February 2014 or in any other material that the applicant challenges the statutory interpretation and consideration of section 116(1)(b) of the Act in that the institution had certified non-attendance. It seems, therefore, that the challenge on its face is to the exercise of the Tribunal’s’ discretion.
The grounds set out in the application filed 18 February 2014 effectively repeat the argument before the Tribunal made findings of fact. The application does not allege failure to address any particular argument or evidence. It is proper, in exercising its discretion, for the Tribunal to attribute weight and to make findings of fact and credit. No error is apparent on the face of the reasons. It is clear, therefore, that the application seeks a further review on the facts which, of course, is not the function of judicial review before the Federal Circuit Court. The application is one that the respondent’s show cause why a remedy not be granted to the applicant. For all of the above reasons I consider there to be no merit in the application and hence its reinstatement would be futile.
The application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 5 September 2014
0
1
3