Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 850

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 850   

File number(s):

LNG 19 of 2022

Judgment of:

JUDGE TAGLIERI

Date of judgment:

22 September 2023

Catchwords:

 MIGRATION – student visa – application in a proceeding to set aside order of the court dismissing and application for judicial review in the absence of the applicants – finding that no reasonable or acceptable excuse for the applicants’ non-appearance at the hearing – finding that the prospect of success on the application for review is poor – application in a proceeding dismissed   

Legislation:

Migration Act 1958 (Cth) ss 65, 359AA, 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1), 17.05

Ministerial Direction 69

Cases cited:

ENL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 425

EPO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 741

Nukala v Minister for Immigration & Anor [2013] FCCA 2322

Singh v Minister for Immigration & Anor [2014] FCCA 960

Division:

Division 2 General Federal Law

Number of paragraphs:

33

Date of hearing:

14 September 2023

Place:

Hobart

For the Applicants:

the First Applicant in person

Solicitor for the First Respondent:

Ms Nyabally, Australian Government Solicitor

ORDERS

LNG 19 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

TOYA RAJ BHATTARAI

First Applicant

MAHIMA GAIHRE BHATTARAI

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNIAL

Second Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	22 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.The Application in a proceeding filed on 14 July 2023 is dismissed.

3.The First Respondent’s application for costs is adjourned to a date to be fixed AND THE COURT NOTES THAT the First Respondent has made an application that the Applicant pay the First Respondent’s costs fixed in the sum of $1,000.00 (“the costs application”).

4.The parties have liberty to submit a minute of consent to Chambers at [email protected] in respect of costs.

5.The First Respondent has liberty to seek to relist these proceedings for hearing of the costs application by emailing Chambers.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Taglieri

1. On 14 July 2023, the Applicants applied by way of an Application in a Proceeding to set aside an order of the Court made on 4 May 2023 dismissing their application for judicial review (“the dismissal order”).

2. The application for judicial review had been filed on 19 April 2022 and related to the Administrative Appeal Tribunal (“the Tribunal”) affirming the First Respondent’s decision to refuse the grant of a student visa to the First Applicant and consequently the Second Applicant, who is his wife.  On 4 May 2023, I made the dismissal order due to the Applicants’ non-attendance at the hearing of the application for review.

3. The Application in a Proceeding is made pursuant to r 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), which provides the Court with discretion to set aside the dismissal order.

4. At that time of making the dismissal order, the Court record shows that neither of the Applicants appeared for the hearing.  Further, that at the time of the hearing I satisfied myself that the Applicants had been given notice of the hearing and had also been sent instructions to join the hearing by MS Teams.[1] Accordingly, I dismissed the application for non-appearance pursuant to r 13.06 (1)(c) of the Rules.

   [1] Exhibit C-1.

5. In support of the application to set aside the dismissal order, the Applicants relied upon, and I read in evidence, the affidavit of the First Applicant filed 14 July 2023. On 14 September 2023, the First Applicant stated that he appeared for himself and the Second Applicant, and he was assisted by a Nepalese interpreter.

6. The First Applicant made some oral submissions, which I took in part as submission and in part as additional evidence. This was appropriate given that the First Applicant’s self-representation.

7. In substance, the statements and submissions of the Applicants were that:

   ·The non-attendance of the First Applicant at the hearing on 4 May 2023 was due to his illness, which is the subject of his affidavit and a doctor’s medical certificate annexed to it;

   ·He was in Sydney before and after 4 May 2023, for about 10 to 14 days;

   ·He suspected he had Covid-19 on return from Sydney, and because he remained unwell he tried to treat his symptoms at home before consulting with the doctor;

   ·The delay in filing the Application in a Proceedings to set aside was due to not knowing what to do, and then also problems with payment of the filing fee;

   ·Neither he nor the Second Applicant contacted the Court about being unable to attend the hearing and they did not know they could attend by MS Teams. He did not know that the Second Applicant should or could appear because he was the primary visa applicant; and

   ·His non-attendance was not deliberate or intended to be disrespectful to the Court, and he simply wishes to have the Court review the Tribunal decision.

8. The First Respondent opposes the application to set aside the dismissal order and referred the Court to the relevant principles that apply to the exercise of discretion available pursuant to r 17.05 of the Rules, in particular by reference to ENL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 425 at [7].

9. The matters the Court should consider are not controversial, and are well established and followed by many authorities in this Court.[2]

   [2] Eg. Nukala v Minister for Immigration & Anor [2013] FCCA 2322; Singh v Minister for Immigration & Anor [2014] FCCA 960; EPO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 741.

10. The First Respondent’s practitioner addressed the four considerations in detail by reference to the circumstances of this matter, but it is sufficient to summarise the contentions as follows:

    (a)The Applicants have not provided an adequate or reasonable explanation for non-appearance because of inconsistencies between the First Applicant’s evidence and the content of the medical certificate upon which he relies. These inconsistencies include that the certificate does not support incapacity or treatment for the period the Applicant claimed he has been unwell and, further, the certificate is based on delayed reports to the doctor rather than diagnosis based on symptoms at the time the Applicant says he could not appear at the hearing;

    (b)There is no explanation for the delay in filing the application, which was filed nearly six weeks from the date of the Court’s dismissal order. Further, there is no explanation for delay in filing the affidavit in support, which was filed two months after the date of the dismissal order;

    (i)There is no prejudice to the First Respondent that cannot be addressed by a costs order, if the dismissal order is set aside; and

    (ii)The substantive application for review does not have merit for the reasons outlined at [28] of the First Respondent’s written submissions filed on 20 April 2023.

11. Noting the above submissions, the First Respondent concluded that the Court should not exercise its power to set aside the dismissal order made on 4 May 2023.

    Is there reasonable or adequate explanation for non-attendance?

12. The First Applicant’s affidavit in support relevantly states at [2] to [5] as follows:

    2.I had COVID, as an after effect I now have severe respiratory infection. I have been treated by my Doctor for the last few months including the month of May 2023.  I take several generic medications to cue the respiratory infection. I donot [sic] have medicare and hence I am unable to spend much on my medical treatment

    3.On 04 May 2023, I was unable to attend the Court due to my acute respiratory infection. I herewith attach a copy of the medical certificate provided by my treating doctor as an annexure labelled “A”

    4.I state that I have a good case both on merits and law.

    5.I state that the non appearance before the court on 4May 2023 was not willful [sic] or negligent but it was due to my poor health which did not permit me to attend the court.

13. The annexed medical certificate is authored by Dr Osman, and certifies that the First Applicant had a medical condition and was unfit for work on 1 May 2023 whereas the hearing was on 4 May 2023..  The second paragraph of the certificate simply reports what the First Applicant told Dr Osman on 14 June 2023.  The third paragraph of the medical certificate identifies that Dr Osman consulted with the First Applicant on 14 June 2023, but no explanation is given of the reason for the visit that day or whether the Applicant still presented with symptoms of the medical condition.  It also does not confirm the doctor’s opinion or a diagnosis based on symptoms he assessed that, if the First Applicant was suffering an acute respiratory infection of 4 May 2023, he would likely have been unfit to participate in a hearing.

14. The Applicants do not claim that they were unaware of the hearing or did not receive the emails notifying that the hearing would occur by MS Teams, or the email providing the MS Teams conference dial-in details.[3] 

    [3] Exhibit C-1.

15. I agree with the First Respondent’s submissions that there are inconsistencies in the evidence about the nature of the First Applicant’s respiratory condition and there is absence of reliable medical opinion persuading me that he was so gravely ill that he could not attend the hearing on 4 May 2023 by MS Teams.

16. It is significant that the First Applicant was certified unfit for only one day, being 1 May 2023, and the medical condition for which he was certified unfit is not expressly identified.  These matters, together with the First Applicant’s statement that he was in Sydney on 4 May 2023, causes me to conclude that there has been an unsatisfactory explanation for non-appearance.

17. There has also been a delay of about two months from when the Applicants were given notice of the orders made on 4 May 2023 to making the Application in a Proceeding in accordance with the requirements of the Rules. 

18. The First Applicant gave somewhat of an explanation about not knowing what to do and issues with filing, but these reasons are usually not adequate explanation for delays. Nevertheless, the delay is far from extensive when compared to some circumstances, so I give it some but little weight against exercising a discretion to set aside the dismissal order.

19. I accept that the Applicants have not deliberately failed to attend the hearing and did not mean any discourtesy to the Court, but this alone does not weigh in favour of exercising the discretion in their favour.

    Absence of claim of prejudice

20. No prejudice is asserted by the First Respondent, and this assists the Applicants. However, it is not in my view determinative of whether the dismissal order should be set aside. It carries less weight than other considerations in the balancing exercise in this case.

    Do the Applicants have an arguable case?

21. The Applicants have not addressed at all or in any meaningful way why their application for review has reasonable prospects of success.  I invited the First Applicant to do so after the First Respondent’s practitioner had made her submissions about this.

22. In the First Applicant’s affidavit, a mere assertion is made that there is “a good case both on merits and law”,[4] but the First Applicant did not expand on this or make any statement about what this meant during the hearing before me.

    [4] Affidavit of the First Applicant filed 14 July 2023 at [4].

23. The assertion as to merits, if it refers to merit in being granted a student visa, is misguided because the Court’s power to grant relief on an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) depends on an applicant demonstrating jurisdictional error.

24. The issue of relevance on this application is whether the Applicants have shown that there is some reasonably arguable prospects demonstrating jurisdictional error.

25. In the absence of any submissions about this, I am left to consider the grounds of review in the application filed on 19 April 2022. There are two grounds of review set out in the application.  They have not been explained in any way in the context of the First Applicant’s circumstances and appear to be a copying or pasting of grounds from another source.

26. The Applicants did not comply with Order 7 made by Registrar on 6 July 2022, which provided for filing of written submissions and any additional evidence upon which they relied. In the absence of explanation of the grounds, submissions or evidence, they do not make intelligible sense.

27. Ground 1 purports jurisdictional error by failure to give adequate consideration to oral evidence given at the Tribunal hearing, and further that there was no engagement in an active intellectual process.  Whilst on its face this is capable of potentially being an arguable jurisdictional error if particularised, the ground is meaningless without identification of the evidence asserted not to have been considered.

28. Ground 2 relies on an alleged failure to comply with s 359AA of the Act, which is a failure to give notice to the Applicants of matters that would be part of the Tribunal’s reasons for affirming the decision under review. But again, the ground is meaningless in the absence of explanation of what matters the Tribunal should have given notice about and whether they were in fact material to the decision made.

29. I have read the Tribunal decision and reasons given.[5] The content of the decision is clear and the reasons demonstrate that the Tribunal member correctly directed himself about the statutory requirements for grant of a student (temporary) (class TU) visa under s 65 of the Act. He identified the regulatory criteria to be satisfied.[6]

    [5] Commencing page 163 of the Court Book filed 20 July 2022.

    [6] Tribunal reasons at [6] to [9].

30. In addition, the Tribunal set out in considerable detail the evidence before it about whether the First Applicant satisfied all statutory criteria.[7] While the Tribunal accepted the evidence upon which the Applicants relied, it concluded that the First Applicant had not satisfied the Tribunal that he was a genuine temporary entrant for study purposes, taking into account all the considerations or criteria in Ministerial Direction 69.  The member went further, stating that he was satisfied that the First Applicant was using the student visa program to circumvent the intentions of the migration program.[8]

    [7] Tribunal reasons at [10] to [24].

    [8] Tribunal reasons at [20].

31. In view of the above and in the absence of any explanation of what evidence was not adequately considered by the Tribunal, the prospects of the Applicants establishing jurisdictional error can only be assessed as poor.

32. On the basis that the Applicants have provided an unacceptable and unreasonable explanation for non-appearance at the hearing, but more importantly because the prospects of success of the application for review are poor, I decline to make an order pursuant to r 17.05 of the Rules setting aside the dismissal order made on 4 May 2023. 

33. The Application in a proceeding filed on 14 July 2023 is to be dismissed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       22 September 2023