Islam v Minister for Immigration

[2017] FCCA 3300

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3300

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (Class UB) visa  – application for reinstatement of proceedings – applicant provided a satisfactory explanation for his failure to appear – application patently fails to identify or argue a jurisdictional error – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: MUHAMMAD SHOAIB ISLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2965 of 2017

Judgment of: Judge Street

Hearing date: 21 December 2017

Date of Last Submission: 21 December 2017

Delivered at: Sydney

Delivered on: 21 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2965 of 2017

MUHAMMAD SHOAIB ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application in a case filed on 30 November 2017 seeking an order pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (“the Rules”) setting aside the order of the Registrar made on 15 November 2017 dismissing the proceedings under r 13.03C(1)(c) of the Rules for the failure of the applicant to appear.

2. The applicant’s substantive proceedings seek a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 August 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

3. At the commencement of the hearing, the Court explained to the applicant that there were two issues. Firstly, whether the applicant had a satisfactory explanation for his failure to appear and secondly, whether there was a sufficiently arguable case to give rise to there being utility in setting aside the order that was made in the absence of the applicant. The Court explained that whether there was utility involved considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was unlawful or unfair.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained from the Court. 

Application in a case for Reinstatement

Explanation for the applicant’s failure to appear

1. From the bar table, the applicant explained that the original hearing date on his originating application was one that identified a return date on 23 October 2017. That hearing was one in respect of which there was no appearance by the applicant, and the matter was stood over to 30 October 2017 by the Registrar. The hearing on 30 October 2017 was apparently one in respect of which there was a difficulty in the applicant entering the building where the Registrar was sitting as a result of which the matter was listed to be heard on 15 November 2017. No order appears on the Court file fixing the matter for hearing on 15 November 2017 and the applicant asserted that he had received an email indicating that the matter was listed for hearing on Monday 30 November 2017. There is email correspondence to the same email address identifying a corrected hearing date. However, no order was annexed in that regard.

2. In these circumstances, I do regard the applicant as having provided a satisfactory explanation for his failure to appear. However, the Court must still consider whether there is any utility in making an order setting aside the order made in default of the applicant’s appearance in circumstances where these proceedings on their face, are patently doomed to failure.

Merits of the application

1. The applicant’s application for a medical visa was one in respect of which he applied for it on 31 May 2017. His last substantive temporary visa ceased on 15 March 2012 over five years ago. Both the delegate and the Tribunal identified that in those circumstances, the applicant could not meet the mandatory criteria for the grant of the visa.

2. The Tribunal, on the face of the Tribunal’s reasons held a hearing as required and the applicant conceded that he did not meet the requirements when they were discussed with him. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [54]-[60] to the effect that the power to refuse leave should be exercised with caution as the decision is not the subject of a right to appeal or a right to seek leave to appeal and brings finality to the proposed proceedings. Section 477 of the Act requires full weight to be given to the provision as a whole and requires an assessment of the prospects of success not a certain determination of the final outcome. The applicant’s ground in the application refers to health issues and patently fails to identify any arguable jurisdictional error. The proceedings clearly have no prospect of success. In these circumstances, there is no utility in the Court making an order setting aside the order made by the Registrar on 15 November 2017.

3. Accordingly, the application in a case is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2018