Hameed v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1362
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hameed v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1362
File number(s): SYG 86 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 16 December 2024 Catchwords: MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – adjournment request refused – where medical evidence in support of adjournment request unsatisfactory – no appearance by applicant – dismissal for non-appearance – costs ordered Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06(1)(c), r 13.06 (1)(d), r 13.13, r 13.13, r 17.05, r 21.02, r 21.04
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: Hameed v Minister for Immigration and Multicultural Affairs [2024] Fed CFamC2G 1146 Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 9 December 2024 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Ms R Massar of MinterEllison ORDERS
SYG 86 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYESHA HAMEED
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed pursuant to rule 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the first respondent’s costs fixed in the sum of $1,000.
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 ZIPSER
INTRODUCTION
On 21 November 2024, the applicant lodged, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a registrar of this Court dated 5 November 2024 published as Hameed v Minister for Immigration and Multicultural Affairs [2024] Fed CFamC2G 1146 (Registrar Decision). The registrar summarily dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 18 December 2020.
The Review Application was listed for hearing in this Court on 9 December 2024. The applicant did not appear at the hearing. In the circumstances explained below, the Court has dismissed the Review Application under r 13.06(1)(d) of the Rules.
FACTUAL BACKGROUND
The applicant, a citizen of Pakistan, first arrived in Australia in April 2012 on a Student (Class TU) (subclass 572) visa and has remained in Australia on various student visas since that time.
On 7 March 2019, the applicant lodged an application for a further Student (Class TU) (subclass 500) visa.
On 3 April 2019, a delegate of the first respondent refused to grant the applicant a student visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2).
On 15 April 2019, the applicant lodged an application for review of the delegate’s decision in the Tribunal.
On 3 November 2020, the Tribunal emailed the applicant, via her representative, an invitation to attend a hearing by telephone scheduled for 25 November 2020. On 25 November 2020, the applicant attended the hearing, which was part-heard and adjourned to 18 December 2020.
On 18 December 2020, the applicant appeared at the resumed telephone hearing. At the conclusion of the hearing, the Tribunal made an oral decision to affirm the decision of the delegate not to grant the applicant a student visa. The Tribunal provided written reasons to the applicant on 21 December 2020.
PROCEEDINGS IN THIS COURT
Judicial review application by applicant and summary dismissal application by first respondent
On 13 January 2021, the applicant lodged an application with the Court under s 476 of the Migration Act 1958 (Cth) (Act), seeking judicial review of the Tribunal’s decision.
On 2 October 2024, the first respondent filed a response which sought, among other orders, an order that the matter be summarily dismissed pursuant to r 13.13 of the Rules.
On 4 October 2024, the matter was listed for directions. The applicant appeared by telephone. The Court listed the matter for a summary dismissal hearing on 5 November 2024 and made procedural orders concerning the filing and service of submissions and other materials by the parties leading up to the summary dismissal hearing.
On 28 October 2024, the applicant filed a written submission in opposition to the first respondent’s summary dismissal application.
On 5 November 2024, there was a summary dismissal hearing before a registrar. The applicant appeared by Microsoft Teams. The registrar granted the applicant leave to file and rely on an amended application for judicial review provided to the Court and first respondent on 4 November 2024. The amended application advanced the following grounds (as written):
1.The Tribunal’s decision is infected with jurisdictional error as the Tribunal did not afford procedural fairness and was unreasonable in its decision-making process.
Particulars
a. If the Tribunal exercised its discretion and procedural fairness at the time to allow the application to obtain a new confirmation of enrolment (COE) and rectify her enrolment, then the outcome of the Tribunal’s decision would have been different and favourable to the applicant.
b. The Tribunal should have discharged its duties and obligations by ensuring that the applicant understood the importance of being enrolled in a current course. If the tribunal explained this and allowed the applicant to obtain a current COE at the time, the outcome of the review would have been materially different.
2.The Tribunal’s decision is infected with jurisdictional error as the Tribunal failed to consider the material before it when determining the student visa merits review application.
Particulars
a. The Tribunal failed to consider the reasons why the applicant’s explanation for the delays in her studies including her medical condition which were materially critical evidence to consider.
b. The Tribunal should have allowed the applicant to provide evidence of her medical condition on which basis she sought deferment of her studies and subsequently should have allowed the applicant to rectify her enrolment at the time.
3.If the Tribunal was considering the applicant’s enrolment as the sole determinative element to satisfy itself that the applicant meets the requirements of the student visa, then the Tribunal must have allowed time to obtain enrolment based on the principles of natural justice.
Particulars
a. The Tribunal did not consider any other factors or even the fact that the applicant can obtain a rectified current enrolment and COE when making a decision in relation to the review of the student visa application.
Following the hearing on 5 November 2024, and on the same day, the registrar made the Registrar Decision in which he ordered that the application for judicial review be summarily dismissed pursuant to r 13.13(a) of the Rules.
Registrar review application by applicant
On 21 November 2024, the applicant lodged the Review Application pursuant to rule 21.02 of the Rules. The orders sought by the applicant in the Review Application were (as written):
1.The Registrar’s orders dated 5 November 2024 be set aside.
2.The amended application filed by the applicant be reinstated and be reviewed.
In light of the timeframe in r 21.02(1), the Review Application was lodged about 9 days out of time and the applicant required an extension of time.
On 29 November 2024, the Court made the following orders:
1.The application for review lodged by the applicant on 21 November 2024, including any application for an extension of time under rule 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, is listed for hearing at 10:15 am on Monday 9 December 2024 before Judge Zipser.
2.The applicant may file and serve any submission or evidence in support of the application for review, and any application for an extension of time, by 2:00 pm on Wednesday 4 December 2024.
3.If the applicant files and serves any materials, the first respondent may file and serve any submission or evidence in reply by 2:00 pm on Friday 6 December 2024.
On the same day, the Court emailed the orders to the parties and provided details of the hearing date and place in the covering email.
The applicant did not file any submission or evidence in support of the Review Application before the hearing on 9 December 2024.
Adjournment request by applicant on 5 December 2024 and reasons for refusal
At 7:19 pm on 5 December 2024, the applicant sent an email to the Court which stated:
Honourable Judge,
With reference to above and to your email below, please note that I am not feeling well and have some medical conditions (Chest infection & Hay fever). I have consulted doctor few days before and as per advice, I have done my chest x-ray as well. Doctor has seen the report and suggested to consult a specialist doctor in this regard as it requires further medical investigations. As per doctor’s referral, I will be consulting Dr Girish Patel (experienced Respiratory physician) on 30th January 2025 at 4:30pm.
Thus, because of my current medical condition, doctor suggested to take rest for at least 1 week and consult him again. For such reasons, I am not able to attend hearing on Monday 9th December 2024 as I am not physically and mentally fit to appear. I have attached herewith doctor’s medical leave letter and referral letter to specialist doctor. I hope your honour could understand my situation and allow time till 30th January 2025 (until I got my consultation done from specialist doctor).
Thank you for your time and kind consideration. Much appreciated.
Yours sincerely.
Ayesha Hameed
The email attached a medical certificate from Dr Amit Kshatriya, a general practitioner at a practice in Mays Hill, dated 5 December 2024 which stated:
Ayesha Hameed has a medical condition and will be unfit for work from 05/12/2024 to 13/12/2024 inclusive.
The email also attached a referral letter from Dr Kshatriya to Dr Girish Patel dated 5 December 2024 which stated:
Dear Girish,
Thank you for seeing Ayesha Hameed for an opinion and management.
Ayesha has seen me for her chest infection.
She has on and off symptoms for last few months
She needs to see you for this.
Could you please review and provide us with your opinion and management.
I have attached all relevant reports here with this letter.
Please feel free to contact me if you need further information about my patient.
Many thanks,
The referral letter included information suggesting the applicant attended a medical centre in Bankstown on 3 December 2024 to obtain a chest x-ray.
Some observations are as follows:
(a)First, the medical evidence in support of the adjournment request was unsatisfactory. Among other things, the medical evidence did not indicate that the applicant had a medical condition or symptoms which prevented her from attending, or even made it difficult for her to attend, a hearing in Parramatta on 9 December 2024.
(b)Second, the applicant lives in Bankstown. She presumably attended Dr Kshatriya’s practice in Mays Hill on 5 December 2024 to obtain the medical certificate and referral letter. The applicant did not explain in her adjournment request why, if she was capable of travelling between Bankstown and Mays Hill on 5 December 2024, she was not fit to attend a hearing in Parramatta on 9 December 2024.
(c)Third, the applicant’s email to the Court on 5 December 2024 replied to the email from the Court to the parties dated 29 November 2024 referred to in paragraph 18 above. The Court is satisfied that the applicant was aware of the hearing date and place on 9 December 2024.
At 10:42 am on 6 December 2024, the solicitor for the first respondent sent an email to the Court which stated in part:
Dear Associate
We refer to the applicant's email requesting an adjournment of the hearing listed for Monday 9 December 2024 at 10:15am before Judge Zipser.
The Minister respectfully opposes the adjournment request. Whilst we acknowledge that the applicant has provided a medical certificate, we consider that she has not outlined how her condition will prevent her from travelling to Court or effectively participating in the hearing .... Further, if the applicant is unable to travel to the Court due to her medical condition, she can seek leave of the Court to appear via Microsoft Teams.
…
At 12:12 pm on 6 December 2024, the Court sent an email to the applicant, copied to the first respondent’s solicitor, which stated:
Dear Ms Hameed
I refer to your email below which has been brought to the attention of Judge Zipser.
Your request for an adjournment is refused. The medical certificate and referral letter attached to your email do not establish that you are unable to attend the hearing on 9 December 2024. The hearing will proceed as scheduled on Monday 9 December 2024 at 10:15 am (AEDT) in Courtroom 1 at Garfield Barwick Commonwealth Law Courts Building, 1-3 George Street, Parramatta NSW.
As an alternative to appearing in person, his Honour has granted you permission to appear using the Webex link below:
[Webex link]
Sincerely…
Hearing on 9 December 2024
The hearing on 9 December 2024 commenced at 10:24 am and concluded at 10:40 am. Rachel Massar from Minter Ellison appeared for the first respondent. There was no appearance by or for the applicant, either in person or via Webex.
Prior to the commencement of the hearing, and again during the hearing, my associate called the matter outside the court room. Prior to the commencement of the hearing, my associate also phoned the applicant on the mobile number contained in the Review Application and in her email to the Court on 5 December 2024. The applicant did not answer the phone call.
Ms Massar requested that the Review Application be dismissed under r 13.06(1)(c) or (d) of the Rules. In circumstances where I was satisfied that the applicant was aware of the hearing date and place, I indicated that I would accede to this request. Since the Review Application appears to be an interlocutory application, the applicable dismissal provision is r 13.06(1)(d).
If an event prevented the applicant from attending the hearing on 9 December 2024 and she is aggrieved that the Review Application was dismissed in her absence, pursuant to r 17.05 of the Rules, she may apply to the Court to set aside the dismissal order. However, if the applicant decides to file an application under r 17.05, she should file an accompanying affidavit which provides evidence explaining the circumstances which prevented her from attending the hearing. In the absence of a satisfactory explanation from the applicant, her conduct explained above may raise a question as to whether the Review Application involved an abuse by the applicant of the process of this Court.
If the applicant is genuinely aggrieved that the Review Application was dismissed in her absence and she decides to file an application under r17.05:
(a)The reasons for decision of the registrar in the Registrar Decision are comprehensive. Although an application for review of a decision of a registrar under r 21.02 is a hearing de novo (see r 21.04), it would be desirable if the applicant files and serves a written submission which, as part of the task of persuading the Court that there is a jurisdictional error in the Tribunal’s decision, explains any error in the Registrar Decision. If the Court is not persuaded that there is a jurisdictional error in the Tribunal’s decision, then there appears to be no utility in filing an application under r 17.05.
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
COSTS
Ms Massar sought costs in the sum of $1,000. Ms Massar stated that this amount was about 70% of the first respondent’s solicitor/client costs. The amount sought by Ms Massar appears reasonable. The Court will make a costs order in this amount.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 16 December 2024
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