Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 835
•5 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)[2023] FedCFamC2G 835
File number(s): MLG 2494 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 5 October 2023 Catchwords: MIGRATION – application for review of Registrar decision refusing reinstatement – judicial review application dismissed for non-appearance – where applicant failed to read emails containing hearing information – where applicant unable to satisfy mandatory enrolment criterion for grant of student visa - where applicant’s judicial review application lacking in merit – application to set aside orders dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256.
Migration Act 1958 (Cth) ss 359A, 359C, 360, 363A
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) rr 6.01, 13.06, 17.05, 21.04
Migration Regulations 1994 (Cth) Schedule 2, cll 500.111, 500.211, 500.213.
Cases cited: Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission: 6 September 2023 Date of hearing: 6 September 2023 Place: Melbourne Applicant: The applicant appeared in person Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2494 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INDERJEET SINGH DHALIWAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
5 OCTOBER 2023
THE COURT ORDERS THAT:
1.The time for the applicant to file his application for review of a decision made by a Registrar on 15 August 2023 is extended to 29 August 2023.
2.The application filed on 29 August 2023 is dismissed.
3.The applicant pay the first respondent’s costs, fixed in the amount of $600.
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 SYMONS:
INTRODUCTION
On 15 August 2023 a Registrar of this Court refused an application that had been filed on 15 July 2023 by the applicant. In that application he sought the reinstatement of an application for judicial review. That principal application was filed on 10 November 2022 and involved a challenge to a decision of the second respondent (the Tribunal) which affirmed a decision of the Minister’s delegate to refuse the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the visa).
The Minister applied for the summary dismissal of the judicial review application and a hearing was convened before a Registrar on 22 June 2023 to hear argument from the parties on this application. On that date the applicant did not appear at the Court or participate in the hearing. The Minister sought and the Registrar granted, an order dismissing the applicant’s judicial review application for non-appearance under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) (Rules). The Registrar also made an order that the applicant pay the Minister’s costs fixed in the amount of $4,189.23.
As noted above, the applicant sought but was refused an order reinstating his application. It is this decision that is the subject of this review. It comes before the Court by way of an application filed on 29 August 2023 and pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). Because it is a review it has certain characteristics including that it proceeds by way of a hearing de novo. In effect, I am required to conduct a re-hearing of the applicant’s application for reinstatement save that any earlier tendered affidavit or exhibit, as well as any transcript of the proceeding before the Registrar, may be received as evidence on the review (r 21.04 of the Rules).
When the matter came before me on 6 September 2023 the applicant appeared and represented himself. The Minister was represented by lawyer Mr Tran.
The applicant confirmed that he sought to rely upon his original application seeking judicial review, his application for review of the Registrar’s decision and his affidavit filed on 29 August 2023 which was read without objection from the Minister.
The Minister relied on his written submissions filed on 11 August 2023 when the matter was before the Registrar on the reinstatement application. The Court also has the benefit of a court book that was filed on 24 February 2023 (CB).
APPLICATION FOR REINSTATEMENT
The Court has the power to set aside a judgment or order after it has been entered if, among other things, it was made in the absence of a party (r 17.05(2) of the Rules). This would have the effect of reinstating the applicant’s application seeking judicial review of the decision of the Tribunal.
The principles which the Court must consider in deciding whether to set aside an order dismissing an application for non-appearance are well settled. The Court has a broad discretion, but in exercising that discretion must consider whether it is in the interests of the administration of justice to make the orders sought. Resolution of this question ordinarily requires considering the explanation for the non-appearance, whether there is any prejudice to the other party and whether the applicant has a reasonably arguable prospect of success in the substantive application.
In this case I am also required to consider whether the applicant should be granted an extension of time in which to prosecute his application for review. This reflects the legislative requirement that an application for review be made within seven days of the exercise of a power by a Registrar (r 21.02(1) of the Rules). In this case the application for review was filed on 29 August 2023, being seven days out of time. Rule 21.02(2)(a) allows the Court to extend this time frame on any terms it thinks fit.
The question of delay also arises in respect of the application for reinstatement, which was filed on 15 July 2023, being 22 days after the decision of the Registrar. Although the Rules do not stipulate any time frame for making an application to set-aside a judgment or order, the point that the Minister makes is that in circumstances where the applicant acknowledges receipt of an email on 23 June 2023 attaching a copy of the orders made by the Registrar on 22 June 2023 dismissing his application, this delay weighs against reinstatement.
I acknowledge that the applicant has prevaricated on these two occasions. However, the approach that commends itself to me is to grant the applicant an extension of seven days to make his review application and to deal with that application having regard to the considerations identified in paragraph [8] above.
Explanation for non-appearance at hearing on 22 June 2023
In his affidavit affirmed on 29 August 2023 the applicant referred to his earlier affidavit affirmed on 15 July 2023 as identifying the reasons for his failure to attend or participate in the hearing which was scheduled to occur at 2.45 pm on 22 June 2023 using Microsoft Teams technology. It is necessary therefore to refer to this earlier affidavit which was before the Registrar on the reinstatement application.
At [5]-[8] of the 15 July affidavit the applicant deposes:
5.On 16 February 2023 I received an email from Court attaching an order made by the Court on that day, advising that the matter will be listed for hearing of the summary dismissal application on a date to be advised.
6.I did not see any further email from court or from respondent’s lawyer. At about 3.45 pm on 22 June 2023, I received a phone call from Court advising me that online court hearing of my application was that day and that I had missed the hearing and that I should log in for court hearing. I told the caller that I had network issue where I was. I work as a truck driver and often drive to and from interstate for work. At the time I received the phone call from the court on 22 June 2023, I was driving from Brisbane to Melbourne and was passing through remote Queensland towns, where there was no phone or internet service, or the service was very poor. The call dropped out before I could finish the call or explain my situation or even understand about the process of court hearing. I wanted to call back but could not call back because of no or poor network. As I was driving a big truck (MC-B Double), I could not just stop anywhere. At about 5.30 pm, when I was passing through Dubbo, I had some phone network there. I then noticed I had another 2-3 missed phone calls from the same (court’s) phone number. As it was after the court’s time, I called the office of my migration agent, but he was also not available to take my call. I left a message for him to call me back, but I did not hear back from him. Attached herewith as Annexure A is my Work Diary Daily Sheet for 22 June 2023 showing my whereabouts on that day.
7.It was not until the next day that I checked my emails and noticed 2 emails received from the Court on 22 June 2023, the first one advising me of the change of hearing time and the second one attaching a copy of the order made on 22 June 2023 dismissing my application for my non-appearance at the hearing. It was only in these chain emails that I notice below an email to me from court on 5 May 2023 advising of the hearing date of 22 June 2023. I had not seen this email of 5 May 2023 earlier, nor had I received an email from respondent’s lawyers advising me of the hearing date.
8.Had I known of the hearing date of 22 June 2023, I would have arranged my work accordingly to ensure that I attend my court hearing.
The Work Diary Daily Sheet annexed to the applicant’s affidavit recorded detail including that at 12 pm on 22 June 2023 the applicant was at Narrabri and by 3pm he was at Gilgandra and that by 9 pm he was at Narrandera, these all being towns located in regional New South Wales.
When the matter was before the Registrar on the hearing of the reinstatement application the applicant accepted in cross-examination that he had in fact received the email from the Court dated 5 May 2023 and an email from the Minister’s lawyer dated 7 June 2023, both of which referred to the date and time of the hearing and contained a link to join the hearing.[1]
[1] Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 724 at [7]
It must also be pointed out – this not being controversial – that when the applicant did not join the Teams link when the matter commenced at approximately 2.45 pm AEST on 22 June 2023 the Registrar took the following further steps to facilitate the applicant’s appearance.
First, the Registrar made two attempts to call the applicant on the mobile telephone number listed on his application for judicial review. The applicant answered the first call but then the call disconnected. The second call was diverted directly to voicemail.
Second, the Court sent an email to the parties confirming that the matter had been temporarily adjourned until 3.30 pm (ACST)/ 4.00 pm (AEST) as the applicant had failed to appear at the scheduled hearing. The email notified the parties that the hearing would proceed by Microsoft Teams and emphasised “It is very important you attend the hearing. If you do not attend the hearing, your matter may be dismissed and costs may be ordered against you”.
Third, when the matter resumed at 4.00 pm (AEST) and the applicant did not appear, the Registrar attempted to call the applicant on the mobile telephone number listed on his application for judicial review. The call was not answered.
Against this background, the Minister invites me to find that the explanation advanced by the applicant for his non-appearance at the hearing on 22 June 2023 is unsatisfactory. In particular, the Minister notes that the Rules required the applicant to give an address for service, which included a current email address (rr 6.01(1) and (3)) and the emails that communicated the hearing date were sent to the applicant’s nominated email address. The applicant has acknowledged that the emails were sent to his email address and it remained his responsibility to ensure that he checked his emails.
The Minister accepts that the applicant was working in a remote location on the day of the hearing but submits that this is not exculpatory because, again, the applicant should have taken adequate steps to ensure that he would be able to attend the hearing.
I am not persuaded that the applicant has provided a satisfactory explanation for his failure to attend the hearing on 22 June 2023. The failure principally flows from the fact that the applicant (construing his evidence most benevolently) did not see or appreciate two communications sent to him that in their terms explicitly put him on notice that his application would be heard by a registrar of this Court on 22 June 2023 and would potentially be dismissed should he fail to appear. The applicant took the serious step of bringing an application for judicial review in this Court and should having done so and having identified the means by which communications concerning that application would be sent to him, been on notice and alive to the prospect that he would receive emails concerning its future listing which he should in turn, take the time to understand. This is not a case where the applicant is inhibited by language difficulties. The lack of a satisfactory explanation weighs against the reinstatement application.
Prejudice to the Minister
As to prejudice, while there is some prejudice to the Minister of multiple attendance in this matter that prejudice can (and has to some extent already) be ameliorated by a costs order in the Minister’s favour.
Prospects of success in the substantive judicial review application
The applicant’s grounds of application are as follows:
1.The Tribunal did not take into account the history of my studies and work done in Australia. The tribunal failed to acknowledge the studies I had already done before seeking further visa. The Tribunal also did not take into account the serious consequences; the refusal of my visa application would have on my life and career. This is a denial of natural justice.
2.The Tribunal didn’t consider the circumstances of not having Confirmation of enrolment, it was due to COVID 19 along with it the reason behind was the uncertainty of review outcome of my visa application. I couldn’t keep on studying as I was afraid of dropping my studies in between if I had been refused a visa at AAT. I was waiting for decision from AAT to grant me a visa which could allow me to resume my studies. However, the Tribunal member didn’t consider my genuine view to defer my studies until I hear from tribunal in regards to my review application.
3.Tribunal member failed to consider the trauma I have been through after being refused a visa application, although I had always abide by my visa conditions in Australia. This had put extreme negative thoughts in my mind about my future life.
4.Tribunal member failed to acknowledge my assurance that I will provide them with confirmation of enrolment if he allows me time and hints a positive outcome on my review application.
5.Tribunal member didn’t acknowledge my affirmation that I wants (sic) to study and I need a proper visa before I got enrolled in a course where the course duration is 2 years or more.
6.Tribunal member failed to regard my circumstances that I have spoken to colleges for getting Confirmation of enrolment but most of them have demanded a substantive visa before they can enrol me in a course of my choice.
7.Tribunal member failed to consider the money and time I had spent in studying my previous courses and the relation of my future studies with my previous studies.
8.The tribunal failed to consider the importance of further studies in relation to my career. Study of automobile technology is essential for my career aim of becoming well versed Motor Mechanic. Having trade qualifications matches the requirement of Mechanic level positions. The tribunal didn’t weight my claims in relation to my future plans and the career I was planning to pursue after finishing my studies.
9.The Tribunal Member made their own perception about my non COE status. Rather, he should have considered my view of standing in a stage of loosing (sic) more money.
10.The tribunal member didn’t try to understand my point of view in regards to my future aim and the importance of higher education in my future goals.
11.The tribunal member failed to acknowledge that I had always complied with my student visa conditions and never breached any visa conditions (Subclass 500 – Higher Education) while my stay in Australia. I had always abided by the limitations imposed by Department of Home Affairs on my visa. This clearly indicates that I have always been a Genuine Student and law abiding non Australian Citizen.
12.The Tribunal member seemed to have already made up his mind even before the hearing and did not give me a chance to appear for the hearing of my case. My hearing was cancelled by Tribunal for no reason.
13.I may provide more grounds after on my view once you give me an opportunity present my side of view and evidences.
At the hearing of his review application the applicant was given the opportunity to tell the Court what errors the Tribunal had made in its decision. For this purpose, the applicant was referred to his originating application and the grounds of application which it identified. The applicant was not limited in the matters that he was invited to put to the Court. Despite this, the applicant’s only submission to the Court was that he had a “good case” and that he would obtain a Confirmation of Enrolment (COE) if he got a visa.
The grounds of application reproduced above identify alleged errors that fall broadly into one of two categories: (i) a failure to take account of certain of the applicant’s circumstances, including especially around his inability to obtain a COE, his future plans and his compliance with past visa conditions; and (ii) allegations of a denial of procedural fairness – a perception that the Tribunal had already made up its mind before the hearing and the cancellation of the Tribunal hearing “for no reason”.
In order to put these grounds in context, it is necessary to trace the procedural background to the Tribunal decision which included the following events:
On 15 December 2020, the applicant applied for the visa (CB 1-22).
On 6 June 2022, a delegate of the Minister refused to grant the applicant the visa. The delegate found that the applicant did not satisfy the English language proficiency requirement contained in cl 500.213 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 40-45).
On 20 June 2022, the applicant applied to the Tribunal for review of the delegate’s decision. In doing so, the applicant nominated a registered migration agent as his representative (CB 50).
On 29 September 2022, the Tribunal sent the applicant (via his migration agent) an invitation to comment on or respond to information (CB 65-67).
The information was contained in a Provider Registration and International Student Management System (PRISMS) record dated 15 September 2022 that was provided to the applicant with the invitation to comment and identified with the following particulars (CB 66):
Your most recent enrolment in a Certificate IV in Automotive Mechanical Diagnosis was marked as cancelled by the course provider on 22 October 2021 due to non-commencement of studies. According to the PRISMS record, you have not been enrolled in any other registered course of study since that time. You are not enrolled in any course now.
The applicant was informed that this information was relevant because it suggested that he was not currently enrolled in a course of study. In turn this indicated that the applicant did not meet cl 500.211 of Schedule 2 of the Regulations which, at the time of decision, required the applicant to be currently enrolled in a registered course of study.
The applicant was given until 13 October 2022 to provide comments or response or to make a request for an extension of time to do either of these things.
The invitation contained the following statement (CB 67):
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 29 September 2022, the applicant (via his registered migration agent) was sent an invitation to attend a hearing on 17 October 2022 (CB 72-79). The invitation to hearing noted (amongst other things) that the Tribunal had identified the following issues to be addressed at the hearing:
(a)Whether you are currently enrolled in a course of study, as required by cl 500.211 of Schedule 2 of the Regulations (‘the enrolment criterion’);
(b) Whether you meet the English language requirements, as required by cl 500.213 of Schedule 2 of the Regulations (‘the English language requirements’).
The applicant was exhorted to “take immediate steps to arrange the production of…your current Confirmation of Enrolment…or other documentary evidence showing you are currently enrolled in a course of study as defined in cl 500.111, and as required by cl 500.211(a) of Schedule 2 of the Regulations for the grant of the student visa” (CB 76).
The invitation also drew the applicant’s attention to the PRISMS record attached to the invitation. The applicant was informed that the Tribunal would invite him to comment on or respond to the information contained in the record at the upcoming hearing. The applicant was encouraged to consider the information now in contemplation of the prospect that he would be asked about his education history in Australia and about what the PRISMS record demonstrates (CB 78).
On 14 October 2022 the Tribunal wrote to the applicant (via his registered migration agent) to inform him that the hearing scheduled on 17 October 2022 had been cancelled as a result of the applicant’s failure to respond to or request an extension of time to respond to, the invitation to comment sent on 29 September 2022 (CB 87-89).
On the same date, the Tribunal made its decision to affirm the decision of the delegate not to grant the applicant the visa and produced a written statement of decision and reasons (Reasons) (CB 94-100).
The Tribunal noted that the invitation sent on 29 September 2022 had been sent pursuant to s 359A of the Migration Act 1958 (Cth) (Act) and that when the applicant had failed to respond to the invitation the Tribunal had been entitled, pursuant to s 359C(2) of the Act, to proceed to make a decision without taking any further action to obtain the applicant’s views on the information (Reasons, [12])
The Tribunal noted that a further consequence of the applicant’s inaction was that, through the operation of ss 360 and 363A of the Act, he was not entitled to appear before the Tribunal to give evidence and present argument (Reasons, [12]).
The Tribunal identified the issue on the review as whether the applicant was able to satisfy the enrolment criterion. The dispositive reasoning on this issue appeared at Reasons [19] as follows:
19 The PRISMS report obtained on 15 September 2022 indicated that the Applicant was not currently enrolled in a registered course of study on that date. The Applicant has not taken any steps to furnish the Tribunal with information which might have displaced the inference to be drawn from that report that the Applicant does not meet the enrolment criterion. A further check of the PRISMS database conducted on 14 October 2022 has revealed that the Applicant’s enrolment status remains unchanged.
The Minister submits against this background that the applicant’s judicial review challenge has no prospects of success. The Tribunal complied with s 359A of the Act and the applicant’s failure to respond to this invitation produced consequences that narrowed the scope of the Tribunal’s inquiry and the ability of the applicant to participate in the review process. Further, and independent of these consequences, the nature of cl 500.211 – being a mandatory, time of decision criterion for the grant of the visa which precluded consideration of matters such as the applicant’s reasons for no enrolling in a course of study, meant that the Tribunal had no choice but to affirm the decision of the delegate refusing the applicant the visa.
I accept this analysis. The Tribunal correctly applied a series of statutory provisions that created consequences for the applicant that were plainly signalled to him.
When the applicant failed to provide a response to the invitation sent pursuant to s 359A of the Act, the Tribunal was entitled to determine the review without hearing further from the applicant on the dispositive information and was obliged to determine the application without convening a hearing at which the applicant would, ordinarily, have the opportunity to present arguments and give evidence.
Naturally this produced a situation whereby the information before the Tribunal was limited. However, this was not a consequence of any error on the part of the Tribunal but rather due to the unexplained failure of the applicant to engage with the review process. The circumstances that the applicant refers to in his review application were simply never identified for the Tribunal’s consideration – either through a response to the s 359A invitation or through the hearing process. In any case at the time of the Tribunal’s decision, the applicant was not in a position to satisfy the enrolment requirement, a matter that he confirmed again at the hearing on this review application.
The Tribunal did not in these circumstances deny the applicant procedural fairness or operate in a manner that indicated a close-mindedness about or pre-judgment of the applicant’s case. The Tribunal identified the dispositive issue for the applicant and extended to him an opportunity to comment or respond to this issue, but ultimately made a decision that on the information before it, was the only decision that could be made.
As a result, there is no jurisdictional error in the Tribunal’s decision and the applicant does not have reasonable prospects of succeeding in his application for judicial review filed in this Court.
CONCLUSION
For these reasons, I dismiss the applicant’s application filed on 29 August 2023.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 5 October 2023
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