Ghaffar v Minister for Immigration & Anor (No.2)
[2017] FCCA 2300
•20 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GHAFFAR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 2300 |
| Catchwords: PRACTICE & PROCEDURE – Reinstatement application pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) – whether the applicant’s explanation for his failure to attend the hearing was satisfactory – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03, 44.12 |
| Cases Cited: Ghaffar v Minister for Immigration & Anor [2017] FCCA 1937 Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Kaur v Ministerfor Immigration and Border Protection [2016] FCA 132 Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 |
| Applicant: | MUZAMMAL GHAFFAR |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1719 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 September 2017 |
| Date of Last Submission: | 20 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2017 |
REPRESENTATION
| Applicant appeared in person with an interpreter |
| Solicitors for the Respondents: | Ms Sharon Sangha (Mills Oakley) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1719 of 2017
| MUZAMMAL GHAFFAR |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for reinstatement of the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) following its dismissal by me in circumstances where the applicant failed to attend the scheduled hearing.
On 2 June 2017, the applicant filed an application seeking judicial review of a decision of the Tribunal dated 9 May 2017.
On 9 December 2015, the applicant lodged an application for a Student (Temporary) (Class TU) visa (Subclass 573) (“Student visa”).
On 29 June 2017, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 7 July 2017. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
At that directions hearing, at the request of the first respondent, the matter was set down for hearing on 10 August 2017 at 9:30am before me, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), on the basis that the applicant’s application did not raise an arguable case for the relief sought.
There was no appearance by the applicant at the scheduled hearing on 10 August 2017. At that time, reasons were given by me in Ghaffar v Minister for Immigration & Anor [2017] FCCA 1937 (“Ghaffar”) dismissing the proceeding as a result of the applicant’s failure to appear at the hearing.
In Ghaffar, I considered the applicant’s request for an adjournment, based on medical reasons. I found the medical certificate to be inadequate and noted that it did not identify what it was that was preventing the applicant from attending the hearing on that date. I found that there was nothing on the face of the medical certificate to satisfy the Court at that time that the applicant was unable or unfit to attend Court and participate in the hearing.
In the circumstances, the applicant’s request for an adjournment of the hearing was refused and the proceeding was dismissed pursuant to r.13.03(1)(c) of the Rules.
The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the Tribunal’s decision, as follows:
“Background
3. The applicant is a citizen of Pakistan who arrived in Australia on 6 June 2012 as the holder of a Student (Subclass 573) visa valid to 9 December 2015 (CB 34).
4. On 9 December 2015, the applicant applied for a further Student (Subclass 573) visa to undertake a Bachelor of Professional Accounting at the Holmes Institute (CB 1-9).
5. On 16 December 2015, the applicant was requested to provide more information in relation to his ability to meet the genuine temporary entrant criterion (CB 22-28). The delegate was concerned that the applicant had failed to achieve satisfactory course progress as reported by his education provider. The applicant did not respond to this request.
6. On 23 May 2016, a delegate refused to grant the applicant a Student (Subclass 573) visa as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 29-39).
The Tribunal’s process
7. On 8 June 2016, the applicant applied to the Tribunal for review, and provided a copy of the delegate’s decision with the application (CB 40-41; item 11(a) of the Index).
8. On 5 April 2017, the applicant was invited to attend a hearing scheduled for 4 May 2017 (CB 45-48). The applicant was given an opportunity to provide any further information or documents, including “a copy of [his] current certificate of enrolment (CoE) as required for the grant of a student visa”, at least seven days before the hearing date.
9. On 3 May 2017, the applicant requested a postponement as he was sick (CB 49). He provided a medical certificate in support of his request which stated that he was “suffering from fever sore throat cough and taking medications” (CB 50). The Tribunal agreed to postpone the hearing (CB 52).
10. On 4 May 2017, the applicant was invited to attend a rescheduled hearing on 9 May 2017 (CB 54-57). The applicant was once again given an opportunity to provide any further information or documents, including “a copy of [his] current certificate of enrolment (CoE) as required for the grant of a student visa”, at least seven days before the hearing date. The invitation also stated that if the applicant did not participate in the scheduled hearing and an adjournment was not granted, the Tribunal may proceed to make a decision on the review without taking further action or dismiss the application for review without further consideration of the application or information.
11. On 8 May 2017 at 4.58pm, the day before the rescheduled hearing, the applicant sent another email to the Tribunal requesting a second postponement as he was sick (CB 58). He provided a medical certificate which stated that he was “suffering from medical condition” (CB 59).
12. On 9 May 2017 at 8.49am, the Tribunal responded to the applicant and refused his second adjournment request on the basis that the medical certificate did not provide details of the medical condition that he was suffering from or why it would prevent him from participating in a telephone hearing (CB 61). The Tribunal also contacted the applicant by telephone and left a message on his voicemail confirming that his request was refused and that he was expected to attend the scheduled hearing (CB 63).
13. The applicant did not attend the scheduled hearing. In circumstances where the applicant failed to attend the scheduled hearing, s 362B of the Act provided the Tribunal with a discretion to either:
a. make a decision on the review without taking any further action to allow or enable the applicant to appear before it;
b. dismiss the application without any further consideration of the application or information before the Tribunal;
c. or re-schedule the applicant’s appearance before it.
14. The Tribunal elected to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal’s decision
15. On 9 May 2017, the Tribunal affirmed the decision under review (CB 64-68).
16. The Tribunal found that there was no evidence before it that the applicant was now enrolled in or had a current offer of enrolment in any applicable course of study (CB 68, [9]). The Tribunal noted that the applicant was requested to provide a current CoE and documents that showed that he was currently enrolled in a registered course, or had an offer of enrolment in a registered course but no documents were provided (CB 68, [8]). Accordingly, the applicant could not satisfy cl 573.231 of Schedule 2 to the Regulations, or any of the alternative subclasses for the grant of a Student visa. Obtaining a confirmation of enrolment certificate is a “pre-requisite” to obtaining a Student visa.”
Following the dismissal of his application for judicial review on 23 August 2017, the applicant filed an application in case, seeking the following orders:
“1. An order that the decision of the Administrative Appeal Tribunal be quashed.
2. A writ of mandamus directed to the Administrative Appeal Tribunal or Minister of Immigration and Border Protection, requiring them to determine the applicant's application according to law.
3. An injunction restraining The Minister of Immigration and Border Protection, by himself or by his Department, officers, delegates or agents from relying upon the decision made by The Administrative Appeal Tribunal.
4. Any appropriate relief Honourable Court think so fit.
5. Costs.”
In support of that application in case, the applicant filed an affidavit, in the following terms:
“I, Muzammal Ghaffar, unemployed residing at 7 Pine Road, Auburn NSW 2144 make oath and say/affirm:
1. I am a citizen of Pakistan. I was born on 10th January 1990.
2. I filed an Application before the Federal Circuit Court of Australia on 2nd June 2017 against the decision of Administrative Appeal Tribunal dated 9th May 2017.
3. My application was listed before the Hon Judge Emmett on 10th August 2017.
4. I have filed medical certificate of my sickness and was unable to attend the court.
5. Hon Judge dismissed my application for non-appearance. Annexure – A is a decision of the Hon. Judge Emmett judgement dated 10th August 2017.”
Whilst the applicant has not sought reinstatement of his proceeding pursuant to r.16.05 of the Rules, I understand that that is the nature of the application he is seeking to make to the Court today.
The applicant was unrepresented before the Court this morning, although had the assistance of an Urdu interpreter.
I explained to the applicant that the role of this Court was very different to that of the Tribunal and that the two most important issues for consideration by the Court were the applicant’s explanation for his failure to appear and the prospects of success of his application for judicial review.
The applicant confirmed that he had no further documents to provide to the Court this morning in support of his application.
The applicant provided no further explanation for his failure to appear. In the circumstances, for the Reasons given in Ghaffar, his explanation is unsatisfactory.
The applicant confirmed that his grounds for judicial review, filed on 2 June 2017, were as follows:
“1. The Administrative Appeal Tribunal erred in its decision by not providing opportunity to the applicant to respond adverse information.
2. The Administrative Appeal Tribunal erred in its decision by not giving second opportunity even after considering my second letter to appear before the Tribunal.
3. The Administrative Appeal Tribunal denied the applicant procedural fairness by reaching adverse conclusion even after repeated request for postponement of hearing.
4. The Administrative Appeal Tribunal erred a decision in consideration of criterion in cl.573.223.”
Each of the grounds of the application was interpreted for the applicant and he was invited to saw whatever he wished in support.
Ground 1 asserts that the Tribunal erred in failing to provide the applicant with an opportunity to respond to adverse information. Otherwise, Ground 1 is not supported by particulars or oral or written submissions.
I asked the applicant what was the information in respect of which he asserts that he was not given an opportunity to respond. The applicant said that he was sick and that his request for a postponement was not granted. Plainly, that is not responsive or supportive of the complaint in Ground 1.
There was no information before the Tribunal that engaged any obligation under s.359A of the Act. The Tribunal was not satisfied on the evidence and material before it that the criteria for the visa applied for by the applicant had been met. In particular, the Tribunal found that the applicant did not satisfy cl.573.223 of Schedule 2 to the Regulations because the Tribunal found that the applicant did not intend genuinely to stay temporarily in Australia.
The Tribunal wrote to the applicant on 5 April 2017 and 4 May 2017 giving him an opportunity to provide a copy of his current Certificate of Enrolment (“COE”). However, the applicant did not respond. In the circumstances, the applicant was on notice that he must be studying or subject to an offer of enrolment in order to be granted a Student visa.
Having determined to proceed to make its decision without inviting the applicant to appear again before it, following the applicant's failure to attend the scheduled hearing, the Tribunal went on to consider whether the applicant met the criteria in cl.573.223 of the Regulations at the time of decision. The Tribunal noted in some detail the relevant criteria that the applicant was required to meet.
The Tribunal also noted that it requested on 5 April 2017 and 4 May 2017 that the applicant provide information, including copies of his current COE and documents that showed that he was currently enrolled in a registered course, or had an offer of enrolment in a registered course as required for the grant of his Student visa. The Tribunal noted that no documents had been provided in response to those requests.
In the circumstances, the Tribunal found there was no evidence before it to be satisfied that the applicant was now enrolled in or has a current offer of enrolment in any applicable course of study. The Tribunal found, in those circumstances, that the relevant criteria were not met and accordingly affirmed the decision under review.
The Tribunal’s findings were based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
Accordingly, Ground 1 is not made out.
Grounds 2 and 3 appear to complain about the Tribunal's decision to refuse the applicant a second adjournment. In support, the applicant simply confirmed that that was the substance of his complaint.
The Tribunal's decision record notes that the applicant was first invited to appear before the Tribunal on 4 May 2017. However, at 4:50pm on 3 May 2017, the applicant emailed the Tribunal a request for a postponement of the hearing, for reasons of illness, and attached a medical certificate. The medical certificate specified that the applicant was suffering from "fever, sore throat, cough, and taking medications" and would be "unfit for his normal studies, work, travel, from 3.5.2017 to 4.5.2017 inclusive". The Tribunal agreed to reschedule the hearing until 9 May 2017.
The Tribunal then noted that at 4:58pm on 8 May 2017, the applicant again emailed the Tribunal a request for a postponement of the hearing, for reasons of illness, attaching a medical certificate, which specified that he was suffering from a "medical condition" and would be "unfit for his normal duties from 8.5.2017 to 9.5.2017 inclusive".
The Tribunal noted that at 8:49am on 9 May 2017, the applicant was advised that his request for a postponement had been considered, however the hearing would proceed as scheduled at 11:30am.
The Tribunal noted that the medical certificate submitted by the applicant on 8 May 2017 did not provide details of the medical condition he was suffering from which would prevent him from performing normal duties. The certificate also failed to indicate why that medical condition would prevent the applicant from participating in a telephone hearing. The Tribunal identified the particular concerns that it had about the content of the medical certificate and found it to be insufficient to justify a postponement.
In the circumstances, the Tribunal considered the applicant's request for a postponement that was sent at 4:58pm the evening before the hearing and promptly responded to the applicant's request at 8:49am the following morning, more than two and a half hours before the hearing.
The Tribunal's reasons that the medical certificate did not provide details of the medical condition that would prevent the applicant from performing "normal duties", or why that would prevent the applicant from participating in a telephone hearing, were relevant and rational reasons for the Tribunal's decision to exercise its discretion to refuse to postpone the hearing. That was a proper exercise of the Tribunal’s discretion and made according to law. It was not an exercise of discretion that was arbitrary, capricious or unreasonable (see Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Ministerfor Immigration and Border Protection [2016] FCA 132 at [17] per Perry J; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38]).
In the circumstances, there was no denial of procedural fairness by the Tribunal in taking that course. The Tribunal was not obliged to grant the applicant's request. It was, however, obliged to consider the request and to provide reasons for refusing the request, both of which the Tribunal did.
Accordingly, Grounds 2 and 3 are not made out.
Ground 4 asserts that the Tribunal erred in its consideration of criteria contained in cl.573.223 of the Regulations. The applicant had nothing to say in support of Ground 4. Ground 4 is otherwise unsupported by particulars, written or oral submissions and does not identify any error capable of review by this Court.
Accordingly, Ground 4 is not made out.
No jurisdictional error is discernible from the reasons of the Tribunal or the conduct of its review, and none has been identified by the applicant. The Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
Further, as stated above, the applicant's explanation for his failure to appear on the last occasion was plainly unsatisfactory for the reasons given by me in Ghaffar on 10 August 2017.
In the circumstances, the applicant’s application to reinstate his proceeding, filed on 23 August 2017, is refused with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 11 October 2017
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