Hayat v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2025] FedCFamC2G 573
•23 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hayat v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2025] FedCFamC2G 573
File number(s): MLG 4110 of 2020 Judgment of: JUDGE J YOUNG Date of judgment: 23 April 2025 Catchwords: MIGRATION – Application in a case seeking reinstatement of judicial review application – where applicants’ applied for judicial review of decision of Administrative Appeals Tribunal – where applicants’ judicial review application dismissed due to non-attendance – significant procedural history – where substantive application dismissed for non-appearance on four separate occasions – found no reasonable explanation for delay – found grounds of substantive application are not reasonably arguable – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a), sch 2
Migration Regulations 1994 (Cth) cll 500.211, 500.211(a)
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752
AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10
BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Hayat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1143
MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 28 January 2025 Place: Melbourne Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Mr O’Shannessy of Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 4110 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAQAS HAYAT
First Applicant
KIRAN TARIQ
Second Applicant
IRHA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
23 APRIL 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 2 October 2024 is dismissed
2.The Applicant pay the First Respondent’s costs fixed in the sum of $1500.00.
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 J YOUNG
Before the Court is an application in a proceeding filed on 2 October 2024, in which the applicants seek reinstatement of the application filed on 25 November 2020 (Substantive Application) which sought judicial review of a decision of the second respondent (Tribunal) dated 27 October 2020. The Substantive Application was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) on four separate occasions being 30 August 2023, 20 October 2023, 24 January 2024 and 23 April 2024.
BACKGROUND
The applicants are citizens of Pakistan. The first and second applicant are husband and wife, respectively, and the third applicant is their child.
On 8 August 2019, the first applicant (Applicant) applied for a Student (Temporary) (Class TU) (subclass 500) visa (Visa). The second and third applicant were included in the Visa application as a member of the Applicant’s family unit.
On 5 September 2019, the Department of Home Affairs (Department) requested the applicants provide particular documentation within 28 days to assist the Department in assessing the Visa application.
On 15 October 2019, the Department invited the Applicant to provide further information to satisfy the Department that he was enrolled in a registered course of study. The Applicant did not provide the Department with the requested copy of a valid Certificate of Enrolment (COE).
Refusal of student visa on 18 November 2019
On 18 November 2019, a delegate of the Minister (Delegate) refused the applicants’ Visa application. The refusal notification attached the decision record of the Delegate which stated the reason for the refusal of the Visa was on the basis that the Delegate was not satisfied the Applicant was enrolled in a course of study as required by cl 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
Application for review at Tribunal on 7 December 2019
On 7 December 2019, the applicants applied to the Tribunal for review of the Delegate’s decision.
On 10 December 2019, the Tribunal sent the applicants confirmation of receipt of their application. In that correspondence, the applicants were advised that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible.
On 12 December 2019, the Tribunal sent the applicants an email requesting that the Applicant provide the Tribunal with a copy of a current COE by 27 December 2019.
On 12 October 2020, the Tribunal emailed the applicants enclosing an invitation for them to attend a hearing via telephone on 27 October 2020 at 10.00am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicants did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. Further, the Tribunal requested the applicants provide the following documents at least 7 days before the hearing date: a copy of their current COE; and documents evidencing their past studies in Australia.
On 27 October 2020, the Applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Urdu and English languages.
On 27 October 2020, the Tribunal affirmed the decision of the Delegate not to grant the applicants the Visa. On 28 October 2020, the Tribunal sent a copy of its decision and reasons to the applicants.
Tribunal’s decision
The Tribunal issued its statement of decision and reasons on 27 October 2020 (Tribunal Decision). The Tribunal identified that the issue was whether the Applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations.
At paragraph [10] of the Tribunal’s Decision, the Tribunal noted the Applicant conceded that he was not enrolled in a course of study.
Accordingly, at paragraph [11], the Tribunal found that the Applicant did not satisfy cl 500.211 at the time of its decision and affirmed the decision not to grant the Visa.
For completeness, at paragraph [12] the Tribunal found that as the Applicant did not meet the criteria for the grant of the Visa, the second and third applicants also did not meet the criterion for the grant of the Visa.
PROCEDURAL HISTORY IN THIS COURT
There is a significant procedural history to this matter, which has involved considerable non-appearance by the applicants.
On 25 November 2020, the applicants filed the Substantive Application which sought judicial review of the Tribunal Decision. By that decision, the Tribunal affirmed a decision of the Delegate to refuse to grant the applicants the Visa.
On 13 July 2021, Mr Imran Warraich of Huk Legal filed a Notice of Address for Service notifying the Court that he had been appointed as the applicants’ lawyer.
On 30 August 2023, the applicants’ Substantive Application was dismissed for non-appearance at the directions hearing pursuant to r 13.06(1)(c) of the Rules. The Registrar made orders that the first and second applicants pay the first respondent’s costs fixed in the sum of $4,189.38.
On 3 October 2023, the applicants filed an application in a proceeding seeking reinstatement of their Substantive Application (First Reinstatement Application). The First Reinstatement Application was listed for hearing on 20 October 2023.
On 20 October 2023, the applicants’ First Reinstatement Application was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. The Registrar made orders that the first and second applicants pay the first respondent’s costs fixed in the sum of $2,000.
On 24 November 2023, an application in a proceeding was filed in which the applicants sought to have the orders made on 20 October 2023 set aside (Second Reinstatement Application). The Second Reinstatement Application was heard on 1 December 2023, with the applicants’ representative appearing on behalf of the applicants.
On 5 December 2023, Judicial Registrar Cummings made orders that the applicants’ Second Reinstatement Application be dismissed and that the first and second applicants pay the first respondent’s costs fixed in the amount of $1,200. The costs payable were in addition to the costs payable pursuant to orders made by Judicial Registrar Cummings on 30 August 2023 and 20 October 2023: Hayat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1143.
On 8 January 2024, the applicants filed an Application for Review of the Registrar’s decision made on 5 December 2023 (Registrar Review Application).
The Registrar Review Application was dismissed pursuant to r 13.06(1)(c) of the Rules consequent on the applicants failing to appear at the hearing on 24 January 2024. Orders were made that the first and second applicants pay the first respondent’s costs fixed in the sum of $2,000. The costs payable were in addition to the costs payable pursuant to orders made by Judicial Registrar Cummings on 30 August 2023, 20 October 2023 and 5 December 2023.
On 8 March 2024, the applicants filed an application in a proceeding to have the orders made on 24 January 2024 set aside (Third Reinstatement Application). The Third Reinstatement Application was listed for hearing on 23 April 2024 at 10.00am.
On 23 April 2024 at 10.00am, being the time listed for the hearing of the Third Reinstatement Application, Mr Imran Warraich of Huk Legal sent an email to my chambers saying (without amendment):
Dear Concern
We are unable to attend the hearing today. It is requested to adjourn the hearing for future date.
The hearing proceeded as listed. Neither the applicants nor Mr Warraich attended the hearing on 23 April 2024. On 23 April 2024, the Third Reinstatement Application was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. Orders were made that Mr Warraich personally pay the first respondent’s costs fixed in the sum of $2,000. The costs payable were in addition to the costs payable pursuant to orders made by this Court on 30 August 2023, 20 October 2023, 5 December 2023 and 24 January 2024.
APPLICATION PRESENTLY BEFORE THE COURT
As already set out, the application presently before the Court is the applicants’ application in a proceeding seeking to set aside the orders made on 23 April 2024 in the applicants’ absence (Fourth Reinstatement Application).
On 21 January 2025, Mr Warraich filed a Notice of Intention to Withdraw as a lawyer, subsequently filing a Notice of Withdrawal on 28 January 2025.
Consequently, at the hearing before me on 28 January 2025, the Applicant appeared in person. Mr O’Shannessy, solicitor, appeared for the Minister.
REINSTATEMENT LEGAL PRINCIPLES
The Court's power to set aside the orders made on 23 April 2024 is contained in r 17.05(2)(a) of the Rules which relevantly provides that:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;
Whether or not to accede to the Fourth Reinstatement Application is a discretionary power which requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] (FBS18).
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court which requires consideration of certain factors which his Honour listed as:
(a)first, whether there is a reasonable excuse for the party’s absence;
(b)secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)thirdly, whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475. While those decisions dealt with the discretion to extend time, which carries with it a clear prescribed time period in which to commence proceedings, there appears to me to be no material difference to using this standard of assessment in the exercise of the Court’s discretion as to whether to reinstate under r 17.05 of the Rules: see AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.
The matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:
…that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05...
While not a mandatory consideration in every matter, any delay in seeking reinstatement may be a further relevant factor to be weighed in the exercise of the discretion: AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [8]; AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [33].
CONSIDERATION
Explanation for non-appearance
Despite remaining on the record until 28 January 2025, Mr Warraich did not file any material explaining his non-appearance at the hearing on 23 April 2024. This is, most unfortunately, entirely consistent with the manner in which Mr Warraich has conducted this proceeding throughout and in respect of the manner he has conducted other proceedings in this Court.
The applicants’ explanation for their non-attendance at the hearing on 23 April 2024 are set out in the affidavit filed by the Applicant in support of the Fourth Reinstatement Application on 2 October 2024. The affidavit states the following (without amendment):
1.I WAQAS HAYAT of XX M STREET, F Suburb Victoria XXX affirm that I am the Applicant in these proceedings.
2.I do declare that I could not attended the final hearing on 23rd APRIL 2024 due to unavoidable circumstances that will be explained later.
3.It is humbly requested to kindly reinstate the Migration Application MLG4110/2020 lodged on 25 November 2020 for the sake of natural justice and providing me an opportunity.
4.It is requested that I have had medical condition and couldn’t handle my all legal and other affairs attached thereto.
The Applicant’s affidavit filed on 2 October 2024 in support of the Fourth Reinstatement Application does not annex any evidentiary material either as to the “unavoidable circumstances” nor the medical condition asserted.
At the hearing, the Applicant submitted that there were two reasons he did not attend the hearing on 23 April 2024. Firstly, he said that he has silicosis and has done so for three or four years and has doctor’s appointments every month or second month. Secondly, he said that his lawyer did not inform him of the hearing and that had he known he would have had no difficulty attending the hearing.
The applicants have not offered a plausible or acceptable explanation for their non-appearance at the hearing on 23 April 2024. Even accepting that the Applicant has silicosis (of which there is no evidence before the Court) there is no explanation as to how this precluded him from attending the hearing on 23 April 2024. When questioned by the bench he said he did not know if he had a doctor’s appointment on 23 April 2024. Further, as these appear to be regular appointments, I infer that the Applicant would have had notice of that appointment and any clash with the hearing date.
As to the second explanation offered, even if it be correct that Mr Warraich did not inform the applicants of the hearing date (of which, again, there is no evidence before the Court), this is inconsistent with the first explanation offered. It is difficult to see how the Applicant could have attended the hearing had he known of it but also have been unable to attend because of his silicosis.
The absence of a satisfactory and acceptable explanation for the non-appearance weighs strongly against exercising the discretion to reinstate the proceedings.
Prejudice
As set out above, this is the fourth reinstatement application made by the applicants. On each occasion the Minister has appeared and other than in relation to this hearing, the Minister has filed submissions in relation to each application. I consider in those circumstance there is prejudice to the Minister. Further, I accept the Minister’s submission that there is a public interest in the finality of administrative decisions, the finality of litigation and the efficient use of public funds and Court resources.
In these circumstances I consider there is prejudice to the Minister and the public and that this weighs against exercising the discretion to reinstate the proceedings.
Prospects of success
The Substantive Application contains the following two grounds for judicial review, however ground two contains multiple limbs (without amendment):
1.The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.
2.The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.
(a)In considering whether the visa applicant met the visa criteria required by the regulations, the tribunal member failed to fully consider the fact that the circumstances of the case were beyond the applicant’s control.
(b)The visa applicant was not at fault and yet was affected by exceptional circumstances
Ground 1
Ground 1 is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (WZAVW) at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 (BDE16) at [20], [24].
Further, at the hearing the Applicant was unable to articulate what the jurisdictional error said to have arisen was.
Accordingly, Ground 1 has no reasonable prospects of success.
Ground 2, Limb 1
Ground 2, Limb 1 is also entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW at [35]; BDE16 at [20], [24].
At the hearing, the Applicant said the “circumstances of the case” referred to in this ground was his inability to pay for and provide proof of health insurance.
This submission must be rejected. It is irrelevant to the Tribunal Decision.
The only issue before the Tribunal was whether the Applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations. The Tribunal considered the Applicant’s evidence. The Applicant had not provided the Tribunal with a current COE either prior to the hearing or at the hearing. Paragraph [10] of the Tribunal Decision records that the Applicant’s own sworn evidence before the Tribunal was that he was not enrolled in a course of study. At the hearing in this Court the Applicant conceded that he was not enrolled in a course of study at the time of the Tribunal’s decision. Accordingly, the Tribunal’s finding that the Applicant was not enrolled in a course of study was plainly open to it.
The requirement of cl 500.211(a) that an applicant be enrolled in an approved course of study is mandatory and, as such, the Tribunal has no discretion to waive that requirement or to take into account any circumstances which may have resulted in the applicant not being enrolled: Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828 (Thummala) at [57]. Accordingly, the asserted failure of the Tribunal to “fully consider the fact that the circumstances of the case were beyond the applicant’s control” has no reasonable prosects of success. The Tribunal correctly determined that the Applicant did not meet the requirements of cl 500.211(a) and no other considerations were relevant to that determination.
Accordingly, Ground 2, Limb 1 has no reasonable prospects of success.
Ground 2, Limb 2
In relation to this ground, at the hearing the Applicant also relied upon his inability to pay for health insurance as the “exceptional circumstance” referred to in this ground. For the reasons set out above, this ground also has no reasonable prospects of success.
The only issue before the Tribunal was whether the Applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations. The requirement of cl 500.211(a) that an applicant be enrolled in an approved course of study is mandatory and, as such, the Tribunal has no discretion to waive that requirement or to take into account any exceptional circumstances: Thummala at [57].
Accordingly, none of the grounds contained in the Substantive Application have any reasonable prospects of success.
Delay
The Third Reinstatement Application was dismissed on 23 April 2024 and the Fourth Reinstatement Application was not filed until 2 October 2024, almost six months later. No explanation for the delay in seeking reinstatement has been provided. I consider this also weighs against reinstatement.
Conduct
This is the fourth application for reinstatement filed in this matter. All but one were dismissed for non-appearance. On each occasion, public and Court time and resources were utilised. The conduct of both the applicants and their legal representatives in this matter is, in my view, entirely unsatisfactory and weighs strongly against exercising the discretion to reinstate the proceedings.
DISPOSITION
In light of all of the above matters, I do not consider it is in the interests of justice to reinstate the application.
Accordingly, the Fourth Reinstatement Application is dismissed.
The Minister seeks the applicants pay it costs in the fixed amount of $1500.00. I note that this is considerably below the amount provided in sch 2 of the Rules and shall order accordingly.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 April 2025
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