ARYAL v Minister for Immigration
[2018] FCCA 3321
•21 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARYAL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3321 |
| Catchwords: MIGRATION – Reinstatement – student visa application – applicant had completed a number of courses since 2008 – delegate not satisfied applicant genuinely intends a temporary stay in Australia – Tribunal affirms delegate’s decision – application for judicial review – application dismissed for non-appearance – application in a case seeking reinstatement – grounds for judicial review not reasonably arguable – application for reinstatement dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 338, 348, 353, 357A, 368D, 476 Migration Regulations 1994 (Cth), Sch 2 cl.572.223 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 BAL17 v Minister for Immigration and Border Protection [2018] FCA 792 BTR15 v Minister for Immigration and Citizenship [2016] 892 CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 Chen v Monash University (2016) 244 FCR 424 Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 Jackamarra v Krakouer (1998) 195 CLR 516 Gallo v Dawson (1990) 93 ALR 479 House v The King(1936) 55 CLR 499 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | SAGAR ARYAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1885 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 8 November 2018 |
| Date of Last Submission: | 8 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2018 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the First Respondent: | Mr Van der Westhuizen |
| Solicitors for the First Respondent: | DLA Piper Australia |
Second Respondent: | Having filed a submitting appearance |
ORDERS
The application in a case filed on 30 May 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $1,541.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1885 of 2017
| SAGAR ARYAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application in a case filed on 30 May 2018, the applicant seeks an order pursuant to r 16.05 of the Federal Circuit Court Rules 2001 for the reinstatement of his initiating application, which application had been dismissed pursuant to r 13.03C(1)(c) upon the applicant’s failure to attend a directions hearing.
Background
The applicant, a Nepalese citizen aged 29 years, first arrived in Australia on 6 August 2008 as the holder of a Student (Class TU subclass 572) visa. Although a Nepalese interpreter was made available for him at court, the applicant told me he had been here for ten years now and that his command of English was good.
Before me, the applicant agreed that he had completed a number of courses since 2008 including: (1) Diploma of Community Welfare Work; (2) Diploma of Management; (3) Diploma of Accounting; (4) Certificate IV in Financial Services (Accounting); (5) Bachelor of Commerce (Accounting); (6) Diploma of Human Resource Management; (7) Advanced Diploma of Management (Human Resources).
On 14 July 2015, the applicant applied for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa. By a statement attached to his application, the applicant claimed that he wished to study an Advance Diploma of Business and after completion of this course he planned to return to Nepal to pursue business ventures.
On 15 July 2015, the Department requested that the applicant provide additional information within 28 days. The Department requested a statement regarding the genuine temporary entrant criterion, and notified the applicant he was required to undergo health examinations.
On 15 September 2015, the delegate of the Minister refused the visa application on the substantive ground that, as the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily, the applicant did not meet the criteria stipulated by cl 572.223(1)(a) in Sch 2 of the Migration Regulations 1994 (Cth).
On 1 October 2015, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.
By letter dated 23 June 2017, the Tribunal invited the applicant to attend a hearing on 1 August 2017 to give evidence and present arguments relating to the decision under review. The letter also requested the applicant provide a copy of his current Certificate of Enrolment (COE) together with documents showing current enrolment in a course (or an offer of enrolment), documents of past studies in Australia and an explanation for any gaps in enrolment.
The applicant attended the hearing on 1 August 2017 and was assisted by a Nepali interpreter.
On 1 August 2017, the Tribunal made an oral decision affirming the decision under review. The substantive reason for that decision was that the applicant was not currently enrolled in a course of study.
On 17 August 2017, the applicant’s migration agent requested a written statement of decisions and reasons.
On 18 December 2017, the Tribunal sent the applicant a copy of the written statement of decisions (Reasons). The Reasons at [14]-[15], [21] confirm that the Tribunal affirmed the delegate’s decision by reason that the applicant was not then enrolled in a course of study. That decision was clearly open in circumstances where the applicant told the Tribunal that he was in fact not enrolled in any such course.
Procedural history
On 31 August 2017, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the Tribunal decision made on 1 August 2017.
The applicant swore an affidavit on 31 August 2017 exhibiting the Outcome of Review and a copy of the transcript of recording of the Tribunal hearing.
By Response filed on 30 October 2017, the Minister opposed the making of the orders sought in the application on the basis that no arguable case for the relief sought is raised.
The application was set down for Directions Hearing on 2 May 2018. As there was no appearance on that date by the applicant, the application was dismissed with costs.
On 30 May 2018, the applicant filed an application in a case seeking reinstatement of the application.
The application for reinstatement was supported by an affidavit of the applicant affirmed on 30 May 2018 which deposed that the applicant was unrepresented, had no knowledge of the court system in Australia and that he believed he did not need to attend the Directions Hearing.
Reinstatement
Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c), Federal Circuit Court Rules 2001.
The Court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of court is cast in discretionary terms, the exercise of such power is not automatic but calls for the exercise of that discretion: cf Gallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J). The waste of scarce Court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[1]
[1] [2016] FCA 1392, [11] (Logan J).
In relation to the power to reinstate a proceeding, in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 at [4], Mortimer J restated the test in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
See also the discussion in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs;[2] MZYEZ v Minister for Immigration and Citizenship;[3] BTR15 v Minister for Immigration and Citizenship;[4] AAI15 v Minister for Immigration and Border Protection.[5]
[2] [2005] FCA 1066 at [18] (North J).
[3] [2010] FCA 530 at [7] (Ryan J).
[4] [2016] FCA 892 at [7] (Edelman J).
Applicable threshold
The exercise of discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15 at [5]. Rather, on an application for reinstatement, the threshold which is applicable to a consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[6] There, Mortimer J stated at [6]:
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)
[6] [2015] FCA 1391, [62]
More recently, in Savrimootoo v Minister for Immigration and Border Protection,[7] Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one.
[7] [2018] FCA 1167 at [47].
The assessment upon an application for reinstatement, which requires the Court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[8]: cf BAL17 v Minister for Immigration and Border Protection.[9]
[8] (1936) 55 CLR 499 at 504 to 505
[9] [2018] FCA 792, [10] (Bromwich J).
I apply these principles in the present application.
Reasonable excuse
Before me the applicant said that he was unfamiliar with the Australian legal system and that he had not known the application was listed for directions. The applicant had filed his initiating application which stated:
First court date
. . .
All parties or their legal representatives should attend this hearing. Default orders may be made in any party fails to attend . . .
The Notice of Filing and Hearing stated that the time and date for hearing was 2 May 2018 at 10:00 AM. The applicant agreed that he had received that notice. He then said that he had misunderstood it.
The Minister submitted that the applicant’s explanation for his failure to attend was inadequate.
In light of the matters at [25]-[26] above, I consider the explanation for the applicant’s non-attendance at the Directions hearing was inadequate.
Prejudice
The Minister did not contend that prejudice was a relevant factor in this application.
Arguable case
Certain criteria for student visas are set out in Sch 2 of the Migration Regulations 1994 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[10] Minister for Immigration and Citizenship v SZMDS.[11] If the criteria for the grant of a student visa are satisfied, the Tribunal must grant the application. If not so satisfied, the visa application must be refused.
[10](2004) 78 ALJR 992, [37]-[38].
[11](2010) 240 CLR 611, [40], [102].
By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[12]
[12]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
In CAL15, Mortimer J also held that the consideration of the merits of the substantive application was important to the determination of an application for reinstatement by reason of the need to consider the interests of the administration of justice. Her Honour stated at [4]:
. . . [it is] important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful. (emphasis added)
See also MZYEZ;[13] MZKAJ;[14] compare Chen v Monash University.[15]
[13] [2010] FCA 530 (Ryan J).
[14] [2005] FCA 1066, [18] (North J)
[15](2016) 244 FCR 424, [48] (Barker, Davies and Markovic JJ) citing Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 as to reinstatement of an appeal.
Earlier, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [18], McHugh J stated that, while the threshold for obtaining an order nisi was a low one, nevertheless Courts should not be burdened with cases where it is clear that they do not enjoy any prospect of success. His Honour dismissed that application on the basis that the applicant had no arguable claim for relief: see at [19].
The grounds of the application were as follows:
1. The Tribunal erred in concluding that the applicant did not intend to study in Australia and that the only purpose of his student visa application was to secure a visa to stay in Australia. The Tribunal failed to consider the applicant’s personal circumstances.
2. The Tribunal has breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
3. The Tribunal has breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the finding on the material questions of fact on which the decision was made.
4. The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it.
Particulars
(a) By discounting the evidence before it;
(b) By failing to consider the evidence in totality and cumulatively;
(c) By concluding, without proper basis, that the applicant was not a genuine temporary applicant.
As the applicant was self-represented, I have re-examined the materials comprised in the court book and the reasons of the Tribunal.
In my opinion, there is no substance to the Grounds of Review. Grounds one and four advance no more than an impermissible request for a merits review by this court of the application. Grounds two and three entail complaints in relation to ss 338, 348, 353, 357A and 368 of the Act. None of the provisions relied upon support a conclusion that it is reasonably arguable the Tribunal’s decision is vitiated by error, whether in the circumstances of this case, or at all.
As the applicant confirmed that he was not enrolled in a course of study at the time of the hearing, the Tribunal was bound to reach the conclusion which it did. The complaint based upon a failure to provide reasons was factually incorrect and would not constitute jurisdictional error in any event: s 368D(7).
Conclusion
As it cannot be concluded that the applicant’s grounds of review would have a reasonable chance of success, it follows that the application for reinstatement should be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 November 2018
[5] [2018] FCA 1110, [29] (Tracey J).
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