Baig v Minister for Home Affairs

[2019] FCCA 3265

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAIG v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3265

Catchwords:
MIGRATION – Extension of time – whether the applicant has an arguable case.

Legislation:

Migration Act 1958 (Cth), s.65

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Cases cited:

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Applicant: NASSER MIRA BAIG

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1447 of 2018

Judgment of: Judge McNab

Hearing date: 3 September 2019

Date of Last Submission: 3 September 2019

Delivered at: Melbourne

Delivered on: 3 September 2019

REPRESENTATION

The Applicant appearing in person:

Counsel for the Respondents: Ms Montalban

Solicitors for the Respondents: DLA Piper

ORDERS

1. The Application in a Case filed 30 August 2019 by the Applicant be refused.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $776.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1447 of 2018

NASSER MIRA BAIG

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. By an Application in a Case filed by the Applicant on 30 August 2019, the Applicant seeks an order pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) for his initiating application to be re-instated. The Applicant’s application had been dismissed pursuant to rule 13.03C(1)(c) of the Rules upon the Applicant’s failure to attend a directions hearing on 24 July 2019.

2. The Applicant’s initiating application was filed on 25 May 2018 and seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal’s decision was made orally on 6 March 2018 and the written record was released on 13 August 2018.

3. The application was filed on, as I said, 25 May 2018. The date of the decision was on 6 March 2018. The application was, therefore, filed some six weeks out of time.

4. The Tribunal dismissed the Applicant’s application for review of a decision made by a delegate (‘Delegate’) of the Minister of Home Affairs (‘Minister’) on 13 September 2016 to refuse to grant the Applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).

The Tribunal’s decision

1. The Tribunal’s decision notes that the Applicant applied for the visa on 14 March 2016 to undertake study in Australia. The Delegate refused the application on the grounds that the Delegate was not satisfied that the Applicant was a student who intended to genuinely stay in Australia temporarily.

2. The Applicant had advanced notice that the Tribunal would be considering whether, at the time of the application before the Tribunal, the Applicant was enrolled in, or the subject of, a current offer of enrolment in a course of study that is a principal course and is of the type specified in the subclass at the time of the application.

3. Prior to the hearing, the Applicant had been sent and received a written invitation to attend the hearing. The Applicant confirmed in his oral evidence before the Tribunal that he had received the written invitation and also confirmed that he understood that the written invitation asked him to provide a copy of his current confirmation of enrolment certificate to the Tribunal at least seven days before the scheduled date of the hearing.

4. The Applicant did not produce confirmation of enrolment to the Tribunal prior to the hearing and, despite being given an opportunity to provide confirmation of enrolment at the hearing, did not do so. This is recorded at [8] to [10] of the Tribunal’s decision record.

5. Accordingly, as the precondition had not been met, the Tribunal concluded that the decision under review should be affirmed.

Consideration

1. The Applicant, as noted earlier, filed the application before this Court about six weeks out of time. The matter was then listed for a directions hearing on 24 July 2019.

2. I am satisfied that the Applicant was notified of the hearing date both at the time when the application was issued (as the direction hearing is fixed on the date when the application is lodged) and, further, that he was notified by a letter addressed to his address for service by the Minister’s solicitors.

3. The Applicant, by an affidavit in support of his application filed 30 August 2019, says that the reason for not attending the directions hearing on 24 July 2019 was:

   I have missed the correspondence by the FCC due to the agent who helped me file an application has shut his place and I have not been informed and I was medically unfit on those dates to attend the Court.

4. I am not satisfied that the Applicant was not informed of the hearing date as outlined earlier.

5. In relation to his medical capacity to attend the hearing, he attached a medical certificate to his affidavit from SmartClinics in Queensland dated 28 August 2019, which states:

   THIS IS TO CERTIFY THAT:

   Mr Naseer Baig has a medical condition. He informed me that he has been unwell from 13/03/2019 to 01/08/2019 inclusive. He had multiple bouts of Influenza he was advised bed rest for the period 3 weeks.

6. The certificate does not state when he was in bed ridden and, further, does not provide any detail as to whether he was unfit to travel and when he was unfit to travel.

7. The discretion to re-instate a proceeding was discussed by Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (‘CAL15’) at [4] where Her Honour 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

8. In considering whether there is an arguable case, the Court is not required to be satisfied of the grounds of review to the same level as at final hearing: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]. Rather, the test calls for the Court to consider whether there is an arguable claim: see CAL15 at [6].

9. The Applicant has not satisfied the Court that there is a reasonable explanation for failing to attend the directions hearing on 24 July 2019 and, further, the Court is not persuaded that an arguable case has been raised by the Applicant.

10. The Applicant’s grounds of review in his application were: ‘I am a genuine student but the Tribunal and the department has not correctly applied Direction No. 69 of the Migration Act s499’. There has been nothing raised by the Applicant in his application which sets out why that ground is said to be arguable. I accept that he is not legally trained, however, on its face, that ground of application appears to be hopeless given the terms of the decision.

Conclusion

1. For those reasons, the Court refuses the application in a case to re-instate the proceeding.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  12 November 2019