Bhatt v Minister for Home Affairs
[2020] FCCA 1108
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHATT v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1108 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – application in a case seeking reinstatement of proceedings – dismissed for non-appearance – whether the Applicant has reasonable prospects of success in substantive application – application for review in this Court contained eighteen grounds – unparticularised grounds – no reasonable prospects of success – Application in a Case dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.7.01, 13.03C(1)(c) Migration Act 1958 (Cth), pt.5 Migration Regulations 1994 (Cth), cl.500.212 of Schedule 2 |
| Cases cited: Minister for Immigration and Citizenship v Li (2013) 248 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 |
| Applicant: | VIKESHKUMAR RAJENDRABHAI BHATT |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2090 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Advocate for the Respondents: | Mr Simpson |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
Pursuant to rule 7.01 of the Federal Circuit Court Rules 2001, the title of the proceeding be amended so the name of the First Respondent is ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Application in a Case filed on 14 February 2020 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $2,172.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2090 of 2018
| VIKESHKUMAR RAJENDRABHAI BHATT |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application in a Case filed by the Applicant on 14 February 2020. The Applicant seeks, inter alia, that the Orders made on 27 November 2019 by Registrar Carlton (‘November Orders’) be set aside. By the November Orders, Registrar Carlton dismissed the Applicant’s Application for Review filed on 18 July 2018 on the basis that the Applicant failed to appear at Court. The Applicant seeks that his Application for Review be reinstated.
For the reasons that follow, I have decided to dismiss the Application in a Case filed on 14 February 2020.
Background
The Applicant is an Indian national. He arrived in Australia in December 2009 on a student visa. The Applicant applied for the student visa (‘the visa’) the subject of these proceedings on 29 September 2016.
On 6 March 2017, a delegate of the Minister for Home Affairs (‘delegate’) refused the grant of the visa to the Applicant. The delegate was not satisfied that the Applicant intended to genuinely stay temporarily in Australia.
On 24 March 2017, the Applicant sought a review of the delegate’s decision by the Administrative Appeals Tribunal (‘Tribunal’). On 14 June 2018, the Applicant attended a hearing at the Tribunal and gave evidence. The Applicant was represented by his migration agent at the Tribunal hearing.
On 20 June 2018, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
On 18 July 2018, the Applicant filed his Application for Review with this Court. He also filed an affidavit in support of his Application for Review sworn on 18 July 2018.
The Application for Review was sealed by the Registry in the usual way and a coversheet was attached to the Application for Review. The coversheet informed the Applicant that the matter would come on for directions on 27 November 2019 at 10am.
On 2 August 2018, the Minister’s solicitors served on the Applicant by post and email a Notice of Appearance and Response. In the correspondence, the Minister’s solicitors reminded the Applicant that the matter was listed on 27 November 2019 at 10am.
The Applicant failed to attend the Directions Hearing on 27 November 2019. Registrar Carlton dismissed the Applicant’s Application for Review pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001. The Applicant was also ordered to pay the Minister’s costs fixed in the sum of $1,467.
The Applicant filed the Application in a Case presently before the Court and an affidavit in support on 14 February 2020.
The Minister filed an affidavit of Jackson Macaulay and written submissions on 17 April 2020. An electronic bundle of authorities was also provided.
Due to current circumstances surrounding the global pandemic of COVID-19, the matter proceeded before me by telephone.
The Reinstatement Application
The principal consideration in this matter is whether it would be in the interests of justice to set aside the orders made by the Court in the absence of a party: SZRJY v Minister for Immigration and Citizenship (No. 2) [2012] FMCA 756.
The following considerations, as set out by Driver J in SZUFS v Minister for Immigration and Border Protection [2015] FCCA 545 at [14], and affirmed by Reeves J in SZUFSv Minister for Immigration and Border Protection [2015] FCA 991 at [18], are relevant to the exercise of the discretion:
a)Whether there was an adequate reason for the non-appearance of the party;
b)Whether there was delay in making the application to set aside the orders made in the party’s absence;
c)Whether there is any prejudice to the Minister in reinstating the matter that could not be adequately compensated for by an order for costs; and
d)Whether an applicant has a reasonably arguable prospect of success on the substantive application.
The Minister concedes that there is no prejudice to him that could not be cured by an order for costs.
I was not addressed at any length on the delay in the Applicant filing this reinstatement application. I observe that the Application for Review was dismissed on 27 November 2019. On 24 December 2019, the Minister’s solicitors wrote to the Applicant informing him of the November Orders. The Application in a Case presently before the Court was filed subsequently on 14 February 2020. Given the intervening Christmas/New Year period, the steps taken by the Applicant to see a psychologist (which I discuss further below), the date of the psychologist’s report (7 February 2020) which the Applicant was clearly awaiting in order to file the present Application in a Case, and the length of the delay, I am satisfied that any delay in the Applicant filing the present Application in a Case is not a matter that weighs either in favour of, or against, the Applicant.
The focus of the argument before me was whether the Applicant had an adequate reason for his non-appearance on 27 November 2019, and whether the Applicant has a reasonable prospect of success on the substantive application for review. It is to those matters that I now turn.
Explanation for non-appearance on 27 November 2019
The Applicant filed an affidavit sworn on 12 February 2020 in support of his application for reinstatement. In it, he deposes that he had a reasonable excuse for his failure to attend Court on 27 November 2019 as he had a condition that prevented his appearance. The Applicant has attached to his affidavit, a psychological assessment prepared by a psychologist dated 7 February 2020 (‘Report’).
The Report discloses, inter alia, the following:
a)the Applicant first consulted the psychologist on 8 January 2020;
b)the consultation lasted for 1.5 hours;
c)the Applicant suffers from, inter-alia, depression, anxiety, and also stress. These stressors are said to have ‘formed the foundation for compelling circumstances and why these were beyond his control and why he failed in his performance in Australia as well as why he did not pay sufficient attention to the hearing date at The FCC last year’ (paragraph 47 of the Report).
In the Report, the psychologist addresses, in various places, the failure of the Applicant to attend Court on 27 November 2019. Among other things, the psychologist refers to the Applicant not paying enough attention to important matters, such as attending the hearing because of cognitive deficits (paragraph 60 of the Report), and later, because of the malfunctioning of his brain and distress, anxiety and depression, ‘he did not make the right choices’ (that is, not attending the hearing on 27 November 2019) (paragraph 62 of the Report).
In his oral submissions, the Applicant also submitted that the November 2019 Court hearing was not in his mind because the date had been given to him almost one and a half years earlier, and because he had not received a reminder from the Court of the hearing date.
It is convenient to deal with the last mentioned points first. The Court does not issue reminders to litigants of their upcoming hearing dates. That a hearing date was allocated to the Applicant more than a year in advance is also not unusual given the length of the lists in this Court. There is nothing about these matters that is unique to this Applicant. If anything, it might be said that the Applicant in this matter at least had the benefit, albeit also more than a year in advance, of the reminder from the Minister’s solicitors as to the hearing date.
I turn then to deal with the Report. The first aspect to note about the Report is that it flowed from an examination of the Applicant that took place on 8 January 2020. It is therefore a review and assessment of the Applicant’s mental health as at that date.
The second aspect to note is that the psychologist, in being asked to assess the Applicant’s mental health, notes that the assessment is taking place in a context where the Applicant is ‘highly stressed’ because he was informed about the consequences of his failure to appear at Court and that this ‘gave rise to further episodes of depressed mood and anxiety as he could not understand why he missed the hearing’ (bullet point 2, page 2 of the Report). It follows that the assessment of the Applicant’s mental health and his stress and anxiety, is occurring in the context of the Applicant being informed of the consequence of his failure to attend Court on 27 November 2019.
Third, there are aspects of the Report that indicate that quite apart from his mental health, the Applicant acknowledged to the psychologist that he should have paid more attention to the hearing date. At paragraph 5 on page 3 of the Report, the psychologist notes:
‘Moreover, he developed cognitive deficits because of chronic stress and had problems with his concentration, attention span and memory. Because of the aforementioned problems, he realised that perhaps he should have paid more attention to the said FCCA hearing last year’.
Similar sentiments are expressed by the psychologist at paragraphs 60 and 62 of the Report. These indications, when coupled with the submission the Applicant made to the Court during the hearing, suggest to me that the Applicant’s non-attendance, at least in part, arose because he did not pay sufficient attention to the date or forgot about the date.
Finally, while the psychologist speaks to the stress, anxiety and depression affecting the Applicant and to the ‘cognitive deficits’ that resulted in him ‘not paying enough attention to important matters such as attending the said hearing last August’ (paragraph 60 of the Report), the Report is notable for what is omitted. There is nothing in the Report that I can see that indicates that the Applicant’s condition was acute, or more importantly, acute on or around 27 November 2019. There is also nothing in the Report to indicate that the Applicant was prevented from attending, or was rendered unable to attend, Court on that day because of his condition, or that he could not participate in the hearing on 27 November 2019.
When all of these matters are considered, I am of the view that while the Applicant may have been or is suffering from anxiety and depression, it was not such as to prevent his attendance at, or participation in, the Court hearing listed for 27 November 2019.
For all of the above reasons, I find that the Applicant does not have an adequate explanation for his non-appearance at Court on 27 November 2019.
Reasonable prospects of success on the substantive application
The Tribunal affirmed the decision of the delegate not to grant the Applicant the visa on the basis that it was satisfied that he was not a genuine temporary entrant for the purposes of study, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’).
The Tribunal recorded its reasons in writing. In summary:
a)at paragraph [8] of its Decision, it extracted the relevant requirements from clause 500.212 of Schedule 2 to the Regulations;
b)at paragraph [9] of its Decision, it noted that it was required to have regard to the matters set out in Direction No. 69 and summarised those matters;
c)at paragraphs [12] to [14] of its Decision, it set out the background to the application before it. Relevantly, this included that the Applicant had:
i)only completed an English language course since his arrival in Australia in 2009; and
ii)had not successfully studied in Australia since March 2010.
d)at paragraphs [15] to [18], it considered the Applicant’s circumstances in his home country;
e)at paragraphs [19] to [27], the Tribunal considered the Applicant’s circumstances and study in Australia, and the value of the proposed course to the Applicant’s future. Among other things, the Tribunal emphasised a concern it held about the value of the Applicant’s proposed course of study;
f)having weighed all those matters up, the Tribunal was not satisfied that the Applicant was a genuine applicant for entry and stay as a student in Australia
Against this backdrop, the Applicant filed the present Application for Review. The grounds of review are set out in the Application dated 18 July 2018. There are 18 grounds of review. Those grounds are as follows:
1. The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.
2. Tribunal did not give consideration to the evidence provided so it has fall into “Jurisdiction error".
3. Tribunal was merely focused on the application for review which was not received by the Tribunal and decided that the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.
4. The merits of the case should have been taken into serious consideration in its totality and the substance rather than the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.
5. The Tribunal Member had the benefit of viewing all submissions uploaded and lodged together with the application for review but decided to dispose of the application for review without fully considering it under natural justice and on the its merits.
6. The Tribunal Member with a predetermined mind and a preconceived outcome of having the application for review disposed without weighing and considering the factual circumstances presented. This has caused great unjust to me under Natural Justice and as such is a jurisdictional error on the part of the Tribunal member.
7. The decision to give a decision without considering the application on merits was irrational, arbitrary and vitiated by jurisdictional error.
8. The disadvantage to the applicant inuring to him on account of the decision not to proceed or not to have jurisdiction is that the applicant was thereby deprived of the opportunity of a further period of time in which to make right with his existing extenuating and compelling circumstances which would remedy further issues and doubts.
9. I do have exceptional circumstances beyond the application lodgement previously
10. I have been denied procedural fairness
11. The Tribunal fell in error by not considering that Applicant had compelling circumstances that eventuated beyond his control which resulted in his absence to file the application for review timely.
12. The Tribunal failed to exercise its jurisdiction while in some way affirming the decision of the delegate even after accepting that the Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement.
13. The Tribunal failed to consider relevant considerations in deciding that the application for review was not received within the prescribed period. The application for review solely hinges on the fate and outcome of the whole Hearing proper;
14. The Tribunal exercised its decision making power unreasonably and unconscionably;
15. There was no evidence to support the decision that the application for review was tainted with evidentiary flaws, ambiguity and was not factually genuine;
16. The decision is based on mistaken presumptions and/or erroneous findings;
17. The Tribunal fell into jurisdictional error by not accepting the applicant's explanation for why his application for review to the Tribunal was flied outside the prescribed time limit.
18. The Tribunal had discretion to extend the time limit in which an application for review could be filed, as it would be apparent the visa applicant could have successfully advanced argument suggesting that the delegate's decision contained jurisdictional error in any case.
The following may be said about the grounds.
It is difficult to understand many of the grounds of review. The Applicant did not meaningfully expand upon the grounds during the hearing. Many of the grounds of review are unparticularised, for example, grounds 2, 7, 9, 10 and 14 – 18. It is well-established that where grounds are unparticularised, the failure to particularise is sufficient to dispose of the application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Second, many of the grounds do no more than express general disagreement with the Tribunal’s findings and impermissibly invite the Court to review the merits of the decision of the Tribunal. Examples of such grounds include grounds 1 and 5. It is well understood that this Court cannot undertake a merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Further, to the extent that the Applicant seeks to challenge the manner in which the Tribunal weighed the evidence (see Ground 1 of the Grounds of Review), it is well-established that weight is a matter for the Tribunal: MZYTV v Minister for Immigration and Citizenship [2012] FCA 1256 at [30].
Third, many of the grounds appear to assert that the Tribunal has not properly considered material, or has misapplied the applicable criteria contained within clause 500.212 of Schedule 2 of the Regulations. I have undertaken a review of the decision as summarised above. I have not been able to identify any relevant consideration or material matter that has been overlooked or misapplied. It is apparent from my review that the Tribunal properly addressed itself both to the requirements of clause 500.212 of Schedule 2 of the Regulations and to Ministerial Direction No 69.
Fourth, grounds 3, 4, 12 and 13 appear to take issue with an apparent finding by the Tribunal that it lacked jurisdiction. I am unable to identify any such finding by the Tribunal.
Fifth, some of the grounds of review, notably grounds 6, 8, 10 and 11 appear to assert a denial of procedural fairness. In this respect, it is to be observed that Part 5 of the Migration Act 1958 is taken to be an exhaustive statement of the natural justice hearing rule. In this matter, it would appear that, among other things, the Applicant was invited to attend a hearing before the Tribunal, which he attended. He was also afforded the opportunity give evidence and make submissions. I am unable to ascertain how it could be said that the Applicant was denied procedural fairness.
Finally, some of the grounds of review, particularly grounds 14 to 16, appear to assert that the decision of the Tribunal was unreasonable or lacked any intelligible basis. A review of the Tribunal’s decision, in my view, discloses that the Tribunal followed a logical path in reaching the findings that it did. I am unable to see, and do not accept, that the decision of the Tribunal is unreasonable and lacks an intelligible basis in the sense described in Minister for Immigration and Citizenship v Li (2013) 248 CLR 332.
For all of the above reasons, when assessed at an impressionistic level, I find that none of the grounds of review in the Application of Review have a reasonable prospect of success.
For the above reasons, I dismiss the Application in a Case and award costs to the Minister.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 8 May 2020
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