Devanesan v Minister for Immigration
[2020] FCCA 2586
•17 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEVANESAN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2586 |
| Catchwords: MIGRATION – Reinstatement – Temporary Student visa – show cause –where no appearance by applicant at initial court date – where matter dismissed by Registrar – where applicant filed application in a case seeking reinstatement – whether extension of time warranted – whether arguable case established – no grounds established upon evidence – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 67, 68 Federal Circuit Court Rules 2001(Cth), r 13.03.C, 16.05 Migration Act 1958 (Cth), ss 54, 65, 476 Migration Regulations 1994 (Cth) cl 500.211, 500.212. |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 Gallo v Dawson (1990) 93 ALR 479 |
| Applicant: | JERRY BILLINGTON DEVANESAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2055 of 2018 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 14 September 2020 |
| Date of Last Submission: | 14 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 17 September 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitor advocate for the Respondents: | Ms M. Wickramaarachchi |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to rule 16.05 Federal Circuit Court Rules 2001 (Cth), the application for reinstatement of the proceeding be dismissed.
The applicant pay the costs of the first respondent fixed at $1,875.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2055 of 2018
| JEFFREY BILLINGTON DEVANESAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application in a case filed on 3 February 2020, the applicant seeks an order reinstating his originating application filed on 16 July 2018. By that application the applicant had sought judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 31 May 2018, affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Student (Temporary) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
For the reasons below, I am not satisfied that the applicant has adduced any evidence to establish that he had any, or any reasonable excuse for his non-attendance on the date that the proceeding was dismissed. Nor am I satisfied that the proposed grounds of appeal have any reasonably arguable prospects of success, or that the Court should otherwise exercise its residual discretion to reinstate the proceeding.
Background
The applicant, a male Indian citizen, aged 35 years, first came to Australia on 8 July 2016 holding a Tourist FA-600 visa. This visa was sought for the stated purpose of travel so as to accompany his infirm mother to Australia. On 30 September 2016, the applicant was granted another Tourist visa which was due to expire on 8 January 2017.
On the date prior to the expiry of his second tourist visa, the applicant applied for a Student visa.
Whilst in Australia the applicant realised that his ‘dream’ was to study ‘production’ or ‘music therapy’ in an effort to complement his musical talent. It was for this reason that he applied for a Student visa.
The application was refused by a delegate of the Minister on 2 March 2017. The substantive basis upon which the application was refused was that, because he had applied to transition from two tourist visas, the delegate had serious doubts whether the applicant genuinely intended to remain in Australia temporarily. The delegate found that he did not meet a criteria in cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth).
The applicant applied to the Tribunal for a merits review of that decision and, pursuant to an invitation to do so, attended a hearing on 23 May 2018 (doing so with the assistance of a migration agent), to give evidence and present arguments in support of his application.
A primary criterion under cl 500.211(a) of the regulations was that the applicant was enrolled in a full-time registered course of study. Before the Tribunal, the applicant gave evidence that he was not enrolled in any course of study.
On 1 June 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the visa, providing a statement of reasons for doing so (Reasons).
In its Reasons, the Tribunal set out the requirements of cl 500.212 of the regulations and concluded that the applicant was not a genuine applicant for entry and stay as a student because it was not satisfied that he genuinely intended to stay in Australia temporarily.
Procedural history
On 16 July 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.
The application, which was required to be submitted within 35 days of the Tribunal’s decision, was some 11 days out of time. By his application, the applicant set out grounds upon which he sought an extension of time.
On 27 August 2018, a response was filed on behalf of the Minister opposing an extension of time on the bases that no adequate explanation had been provided and that the unparticularised grounds of review were without substance and so must fail.
On the face of his application, the proceeding was listed for directions on 27 November 2019. When the matter was called on that day it was dismissed and an order made pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), dismissing the application with costs.
On 3 February 2020, the applicant filed an application in a case again seeking the substantive relief set out in his application together with an order which stated “Resume the application which is dismissed.” He also filed an affidavit which I address below.
The applicant filed no submissions in support of his application and in those circumstances, the submissions filed on behalf of the Minister were responsive to the matters set out in the application and his affidavit.
Applicable principles
Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c).
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.[1] Inherent in the conferral of a discretionary power is an assumption that some applications may be refused.[2] The waste of scarce Court resources is not an irrelevant consideration.[3]
[1] (1990) 93 ALR 479, 480 (McHugh J).
[2] Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), 519-521 (Brennan CJ and McHugh J).
[3] MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392, [11] (Logan J).
In relation to the power to reinstate a proceeding, in CAL15 v Minister for Immigration and Border Protection (CAL15),[4] Mortimer J restated the applicable 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.
These principles are well settled.[5]
[4] [2016] FCA 1344, [4].
[5] MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066, [18] (North J); MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, [7] (Ryan J); BTR15 v Minister for Immigration and Citizenship [2016] FCA 892, [7] (Edelman J); AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110, [29] (Tracey J).
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 on judicial review.[6] On an application for reinstatement, the threshold which is applicable to consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’.[7] In CAL15, Mortimer J stated:[8]
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] CAL15, [2016] FCA 1344, [5].
[7] CAL15, [2016] FCA 1344, [5] citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [62].
[8] CAL15, [2016] FCA 1344, [6].
More recently, in Savrimootoo v Minister for Immigration and Border Protection,[9] Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one.
[9] [2018] FCA 1167, [47].
Upon an application for reinstatement, the assessment, whether a ground of review is arguable, is inherently 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”[10]: see also BAL17 v Minister for Immigration and Border Protection.[11]
[10] (1936) 55 CLR 499 at 504-505.
[11] [2018] FCA 792, [10] (Bromwich J).
I apply these principles in the present application.
Evidence relied upon
By his affidavit sworn 29 January 2020, the applicant deposed that he wanted to complete his studies in Australia and then go back to “my mother country India”. He deposed that when he made his student visa application it had, unfortunately, been refused on the basis that he did not genuinely intend to study. The applicant stated that he had provided all information to establish that he intended to study and stay in Australia temporarily and contended that those materials had not been considered by the Minister.
The applicant further stated that the Tribunal had not considered his information on the merits and the review was not conducted properly upon the evidence. He further deposed that he was a guitarist and wished to study “music therapy” and “sound engineering” and to sharpen his English but that he had been denied these opportunities and suffered stress and “loss of hopes”. He further deposed that he was without work rights and dependent upon his sister and a friend in Australia, concluding “I want to confirm my genuine intention for the studies, complete the courses and go ahead with my music career.”
Consideration
As the applicant was self-represented, I have examined the applicant’s affidavit, the grounds of review and the request for an extension of time set out in his application, together with the Tribunal’s reasons for the purposes of considering whether any arguable ground of review is suggested. Without objection, I treated the relief sought in the application as an application for reinstatement of the proceeding.
No explanation was offered for the applicant’s failure to attend the scheduled directions hearing on 27 November 2019, which date was marked clearly on the face of the application once it had been filed.
The Minister properly submitted that no prejudice would be suffered by an order reinstating the proceeding (other than costs). However, it was correctly observed that the mere absence of prejudice was not enough to justify an order to extend time,[12] and that the Minister should not be put to the burden and cost of additional litigation in circumstances where the applicant has unsatisfactorily explained why he failed to attend Court and there was a lack of merit in his judicial review application
[12] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349.
In those circumstances, it is necessary to examine the grounds of review and consider whether they (or the other materials before the Court), disclose a sufficiently arguable basis for concluding that the Court should be satisfied it is appropriate to hear full argument on the application.
The Tribunal correctly observed that, as the applicant was not enrolled in any course of study, he could not satisfy a criterion under cl 500.211 of the regulations. In its evaluation of whether the applicant satisfied the criteria under cl 500.212 of the regulations, the Reasons make plain that the Tribunal addressed this issue in some detail with the applicant. It was entitled to make findings on the material before it that the applicant was not a genuine applicant for entry and stay as a student because it was not satisfied that he intended genuinely to stay in Australia temporarily. Nothing in the Reasons indicates that the Tribunal hearing was conducted in a manner such as would support a conclusion the matter had not been reviewed on its merits.
It is necessary to consider the grounds of review.
The two grounds of review read:
1. The tribunal delegate failed to apply the rules of procedural fairness in connection with making a decision.
(1.1)The tribunal made a jurisdictional error by assuming that I just wanted to extend my stay in Australia.
(1.2)Failure to take into account my genuine intention to complete my studies in Australia and go back to my home country.
2. The tribunal delegate made an error of law as it failed to regard all information provided in the application.
(2.1) “Section 54”of the migration act 1958 (Cth) states that the Minister must have regard to all the information in the application.
(2.2) The delegate was obliged to access (sic) my application on its merits and not assumption and must have provided regard to all information provided.
Ground 1.2 invites the Court to engage in impermissible merits review[13] as it takes issue with the Tribunal’s conclusion that the applicant did not meet the genuine temporary entrant criterion and should be rejected as unarguable. This Court has no jurisdiction to undertake merits review.
[13] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
Ground 1.2 complains that the Tribunal failed to consider the applicant’s intention to study and return to his home country. Contrary to this assertion, the Tribunal considered the applicant’s evidence in relation to this issue: Reasons, [23]-[26]. The Tribunal found that the applicant had no specific plan upon his return to India, did not know when he would return to India and was not enrolled in a course of study: Reasons, [27].
Grounds 2.1-2.2 may be understood as a broad assertion that the delegate failed to consider the information provided by the applicant. Ground 2 misconceives the power of the Court. As the decision of the delegate of the Minister was reviewable under Pt.5 of the Act, it is a primary decision, and is therefore not subject to review of the Court.[14]
[14] Act, par 476(2)(a), 476(4) “primary decision”.
Otherwise, in the absence of specific details regarding the information the Tribunal is said to have overlooked, this ground is incapable of establishing jurisdictional error.
I conclude that the grounds relied upon do not raise an arguable ground of review that ought otherwise be permitted to go forward to full hearing.
Before me, the applicant reiterated his aspirations to study and stated that he could not study in India by reason of his family circumstances. He said that he had no profession and felt that undertaking a course of study in Australia would be an opportunity that he wanted to pursue. He said that he wanted an opportunity to learn so that he could contribute whatever he had learned and said that he would spread this to the community. The matters advanced before the Court addressed the merits of the application and are not matters which it has jurisdiction to consider.
Conclusion
For the reasons set out above, I am not satisfied that the applicant has demonstrated on the material that there is an arguable basis for judicial review of the Tribunal’s decision or that it is otherwise appropriate for the Court to hear full argument in the matter.
Moreover, in the exercise of the residual discretion which is conferred in respect to the determination of an application for reinstatement, I am not satisfied that any basis is shown why this application should be permitted to go forward. 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
Associate:
Date: 17 September 2020
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