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 |
| 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…
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- Case
- [2018] FCCA 3321
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the applicant had demonstrated that the grounds for judicial review were "arguable" to warrant the reinstatement of the dismissed application. This involved considering the threshold for an arguable ground of review, which requires it to be more than fanciful, illogical, or devoid of merit, possessing a level of rationality and a basis in the material before the Court. The Court also had to determine whether the applicant's explanation for his non-appearance at the directions hearing was adequate.
The Court applied the principles established in cases such as MZABP v Minister for Immigration and Border Protection and Savrimootoo v Minister for Immigration and Border Protection, which hold that the discretion to reinstate a proceeding is broad. The assessment of whether a ground of review is arguable is evaluative. The Court found that the applicant's explanation for his failure to attend the directions hearing, despite receiving notice and understanding that default orders could be made, was inadequate. The applicant's stated unfamiliarity with the Australian legal system and misunderstanding of the notice were not considered sufficient to excuse his non-attendance.
Consequently, the application for reinstatement was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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. The Minister did not contend that prejudice was a relevant factor in this application. Certain criteria for student visas are set out in Sch 2 of the Migration Regulations 1994 of the Act.