Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 751
•22 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 751
File number: MLG 2952 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 22 August 2024 Catchwords: MIGRATION – application for reinstatement – where Registrar summarily dismissed application for judicial review and applicant failed to appear at review hearing – student visa – decision of the Administrative Appeals Tribunal – whether the applicant satisfied enrolment requirement in cl 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – alleged failure of the Tribunal to consider relevant material– consideration of reinstatement principles – not in the interest of justice to allow reinstatement – application refused with costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 256
Migration Act 1958 (Cth), s 360
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06, 13.13, 17.05, 21.02, 21.04
Migration Regulations 1994 (Cth) Schedule 2, cll 500.111, 500.211, 500.214Cases cited: ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submissions: 19 August 2024 Date of hearing: 19 August 2024 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms Baras-Miller of the Australian Government Solicitor The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2952 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANTEER PREET KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITITZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
22 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application in a proceeding filed on 8 June 2024 be dismissed.
3.The applicant pay the first respondent’s costs, fixed in the amount of $400.
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
Before the Court is an application in a proceeding filed on 8 June 2024 (reinstatement application). The application seeks to set aside orders made on 23 May 2024 dismissing for non-appearance, what was treated as an application for an extension of time in which to seek review of a decision of a Registrar made on 23 April 2024 which summarily dismissed the applicant’s application for judicial review filed on 2 October 2018.
In the substantive judicial review application, the applicant sought a review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 September 2018, which affirmed a decision of a delegate of the first respondent (delegate). The delegate had refused to grant the applicant a Student (Temporary) (class TU) (Subclass 500) visa (student visa). Although the Tribunal decision also concerns a second applicant (as family member), this applicant has chosen not to pursue judicial review and so this judgment makes no further reference to this individual.
Before turning to consider the reinstatement application, it is necessary to provide a brief overview of the factual and procedural background in this matter.
BACKGROUND
The applicant is a citizen of India. On 1 October 2016 she applied for the student visa (CB 10-43).
On 11 November 2016, the (then) Department of Immigration and Border Protection contacted the applicant to request additional information regarding her financial capacity, evidence of her ability to pay the course fees, and evidence of her overseas health cover (CB 45-50). The applicant did not provide any information responsive to this request.
On 28 February 2017, the delegate refused to grant the applicant the student visa (CB 51-60). The delegate found that in circumstances where the applicant had not provided evidence of her ability to access funds sufficient to cover her stay in Australia as well as the costs and expenses of her study, it was not satisfied that the applicant met a relevant criterion for the grant of the student visa being clause 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 18 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 61-62). The Tribunal acknowledged receipt of this application on 23 March 2017 (CB 64-66).
On 9 August 2018 the Tribunal invited the applicant via her representative to attend a hearing on 5 September 2018 (CB 68-71). In its invitation, the Tribunal requested that the applicant provide the following information at least seven days prior to her hearing date. This request for information is reproduced as follows: (CB 70)
1. A copy of your current Confirmation of Enrolment (CoE) or other document/s that show that you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
3. Either:
•Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
OR
•Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.
On 5 September 2018 the applicant (but not her representative) attended a hearing at the Tribunal (CB 77). At the end of the hearing, the Tribunal affirmed the decision under review and gave an oral statement of reasons (CB 82-85).
On 6 September 2018, the applicant requested that the Tribunal provide a written decision record for the purposes of making an application for review in this Court (CB 85). On 8 September 2018, the applicant’s representative repeated the request (CB 86).
On 18 September 2018 the Tribunal provided a written statement of decision and reasons (Reasons) (CB 89-93).
THE DECISION OF THE TRIBUNAL
The Tribunal identified the issue in the applicant’s case as whether she met the enrolment requirements for the grant of a student visa, being the criteria specified in clause 500.211 and in particular, the requirement in clause 500.211(a) that the applicant is enrolled in a course of study (Reasons, [10]-[11]).
The Tribunal noted that “course of study” is defined in clause 500.111 of the Regulations as a “full-time registered course” and “registered course” is, in turn, defined in regulation 1.03 of the Regulations to mean a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students (Reasons, [12]).
The Tribunal noted that the written invitation to hearing sent on 9 August 2018 contained a request that the applicant provide evidence of enrolment in an approved course of study to the Tribunal at least seven days before the scheduled date of the hearing yet such evidence had not been provided (Reasons, [13]).
The Tribunal noted that the request for enrolment information had been repeated at the hearing, but the applicant had produced no evidence. Instead, in her sworn evidence the applicant confirmed that she was last enrolled in a Master of Business Administration in 2016, that she had not completed a course of study since arriving in July 2014 and that she was not currently enrolled in a course of study in Australia (Reasons, [14]-[15]).
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 course of study and that it was therefore not satisfied that at the time of decision, the applicant was enrolled in a course of study. It followed that clause 500.211 was not met and the applicant did not meet the criteria for the grant of the visa (Reasons, [16]-[17]).
PROCEEDINGS IN THIS COURT
Application for judicial review on 2 October 2018
On 2 October 2018, the applicant filed her substantive application for judicial review of the Tribunal’s decision. The application raised the following grounds of review, reproduced without alteration:
1.The Member failed to consider important verbal and documentary evidence and hence matters must be considered again and proper hearing must be done.
2.The applicant should secure an fair opportunity in accordance to the procedure fairness and natural justice principle.
In an amended response filed on 29 November 2023, the Minister sought an order that the application be dismissed summarily pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The application was listed for this purpose before a Registrar on 23 April 2024. The Minister filed an outline of submissions in relation to its application on 9 April 2024. The applicant did not file any submissions.
Decision of Registrar on 23 April 2024
On 23 April 2024, a Registrar made a decision to summarily dismiss the applicant’s judicial review application pursuant to r 13.13(a) of the Rules, on the basis that the applicant had no reasonable prospect of prosecuting the proceeding. The Registrar ordered that the applicant pay the Minister’s costs of the proceeding fixed in the sum of $4,189.
Application for review of a Registrar’s decision
On 9 May 2024 the applicant filed, pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), an application for review of the Registrar’s decision. The review application was listed for hearing before me on 23 May 2024 at 9.30 am. The review application was filed nine days outside of the seven-day time frame prescribed by rule 21.02(1) of the Rules. Although the applicant’s application material did not acknowledge this, she required an extension of time to prosecute her review application.
On 21 May 2024, the Minster filed written submissions in which he indicated his opposition to the applicant being granted an extension of time. This was principally on the basis of a lack of explanation for the delay in filing and the poor prospects of the applicant’s substantive application seeking judicial review.
Hearing on 23 May 2024
At the hearing on 23 May 2024, there was no appearance by or on behalf of the applicant when the matter was called on at 9.30 am.
At 9.44 am and again at 9.45 am, my associate attempted to call the applicant using the mobile phone number that was recorded on her application seeking judicial review. The call failed to go through on both occasions.
The applicant was called out of court at 9.50 am. There was no response to the call by or on behalf of the applicant.
I made an order dismissing the application for an extension of time to seek review of the registrar’s decision for non-appearance pursuant to rule 13.06(1)(c) of the Rules as well as an order that the applicant pay the Minister’s costs fixed in the amount of $600. The hearing concluded at 9.55 am.
Application for reinstatement filed on 8 June 2024
On 8 June 2024, the applicant filed an application in a proceeding in which she sought the following orders:
1.That the order made by Judge Symons on 23 May 2024 to dismiss my judicial review application in my absence is to be set aside.
2.That the order is to be made to reinstate the hearing of the matter.
3.That the order is to be made to accord me procedural fairness and natural justice in my case.
4.In support of this application, I am also filing an affidavit dated 06/06/2024
In the accompanying affidavit filed on 8 June 2024 the applicant relevantly stated:
1.That I filed for the judicial review before the Federal Circuit and Family Court of Australia. As I have limited knowledge about the court procedure, and I was seeking help from a private lawyer.
2.I tried to find a private lawyer but due to my financial capacity I could not seek their services.
3.I applied for the judicial review application and on 20 May 2024, the Court sent a notice of listing, which was landed in my junk box and never notice.
4.On 23 may 2024, I only receive a court order made in my absence.
5.I was not aware about the Court date and the Honourable Federal Circuit and Family Court of Australia.
6.I would request the Honourable Court to give me a fair opportunity to represent my case and set aside the Court order of 23 May 2024.
The application for reinstatement was listed before me on 19 August 2024. On this day the applicant appeared and was assisted by an interpreter in the Punjabi and English languages. The Minister was represented by solicitor advocate Ms Baras-Miller.
REINSTATEMENT PRINCIPLES
Rule 17.05(2)(a) of the Rules provides the Court with the power to vary or set aside an order made in the absence of a party.
The principles regarding an application such as this, which has the effect of reinstating a proceeding dismissed for non-appearance are well settled. The power is discretionary, and it requires the Court to determine whether it is in the interests of the administration of justice for the reinstatement application to be granted.
The discretion to reinstate an application is a broad one, but the following factors identified in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] have consistently been referred to as relevant to determining whether to exercise that discretion in any given case:
(a)Whether there is a reasonable excuse for the party’s absence from the hearing;
(b)Whether, and if so what, prejudice would flow to the other party from the reinstatement; and
(c)Whether the party has a reasonably arguable prospect of success on the substantive application.
Does the applicant have a reasonable excuse for her absence from the hearing?
In her affidavit, the applicant cites an inability to find a private lawyer and her failure to “notice” the notice of listing because it landed in the junk box of her email as providing the excuse for her failure to attend the hearing on 23 May 2024.
At hearing the applicant told the Court that her failure to attend the hearing on 23 May 2024 was due to illness. The applicant did not elaborate on the illness including how it might impact on her capacity to participate in the hearing or produce any evidence directed at same.
The Minister submitted that none of the explanations offered by the applicant were adequate. As far as the email communication was concerned, the Minister observed that the notice of listing had been sent to the email address nominated by the applicant in her reinstatement application. The Minister submitted that the applicant ought to have understood that she would receive emails about her application and would need to check for their receipt. As far as the applicant’s illness was concerned, the Minister noted that the explanation was inconsistent with that identified in the applicant’s affidavit but that in any case, it was unsupported by evidence.
I am not satisfied that the applicant has provided a reasonable excuse for her failure to attend the hearing on 23 May 2024.
First, while the lack of legal representation might explain the failure of the applicant to file submissions in accordance with procedural orders of the Court, I cannot see how it is logically directed at the applicant’s absence from hearing. In any event, it is well established that there exists no common law entitlement to legal representation, even in civil proceedings which pose serious consequences to the applicant if they are unsuccessful in their application: see ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099 at [25].
Second, the notice of listing was sent to the applicant’s nominated email address on 20 May 2024 and while it is both plausible and regrettable that this notice went to the junk folder, it was the responsibility of the applicant to remain vigilant about checking for correspondence that concerned the application that she sought to prosecute.
Third, the belatedly raised explanation that the applicant was ill on the day of the hearing is not reasonable in circumstances where it did not address the fundamental question of capacity to participate and was unsubstantiated.
Prejudice to the Minister
The Minister conceded that he would suffer no prejudice as a result of the reinstatement application being allowed and I do not consider that the Minister would face any prejudice as a result of the applicant’s application being reinstated. That being said, the mere absence of prejudice does not operate positively in favour of reinstatement.[1] Instead, it is a neutral consideration.
[1] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349.
Merits: the likelihood of success
I then turn to consider the merits of the underlying application. As is evident from the background set out above, the orders to be set aside are directed at an application for an extension of time to seek review of a Registrar’s decision.
Rule 21.02 of the Rules makes provision for the review of an exercise of Registrar’s powers. Relevantly, rule 21.04(1) provides that the review of an exercise of power by a Registrar must proceed by way of a hearing de novo. Therefore, if the applicant’s reinstatement application was granted, the Court would be required to consider the Minister’s summary dismissal application afresh overlaid with the requirement that the applicant satisfy the Court that it would be in the interests of justice that she be granted an extension of time to defend the application. I note in this last respect that the applicant did not offer any explanation for the delay in her material filed in respect of the review although for present purposes it is not necessary to form a view on this issue. The Minister acknowledged that this was a matter for applicant would need to deal with if her review application was reinstated.
When asked to address the merits of her substantive application, the applicant told the Court that she had been stressed and depressed at the time of the Tribunal hearing and was denied an opportunity to speak. When reminded of her ground of judicial review that involved an alleged failure to consider important verbal and documentary evidence, the applicant referred to matters that she said justified her inability to focus on study. The applicant did not identify any material that the Tribunal was said to have overlooked.
At the heart of the Minister’s summary dismissal application is the proposition that the applicant’s substantive application for judicial review has no reasonable prospects of success and it is this consideration that in my view is determinative.
At a reasonably impressionistic level, it is clear that the applicant’s judicial review application has no reasonable prospects of success. This is because, by her proposed grounds of review (refer [17] above), the applicant has failed to grapple with the reality that on the facts found by the Tribunal (and confirmed by the applicant at hearing) the outcome in her case was a foregone conclusion.
In other words, in circumstances where the applicant had failed to produce a copy of a current Confirmation of Enrolment (CoE) or any other document to show that she was currently enrolled in a registered course of study at the time of decision, the applicant was not able to satisfy a mandatory criterion for the grant of the student visa, namely, clause 500.211(a).
Furthermore, I accept the submission of the Minister that the allegation contained in proposed ground one that the Tribunal failed to consider both documentary and oral evidence is without reasonable prospects of success. This is because the applicant did not submit any material to the Tribunal in support of her application and the material that she provided to the delegate was irrelevant to the enrolment criterion. The applicant’s evidence at hearing was considered by the Tribunal and in fact operated to reinforce the Tribunal’s finding that she did not have a current enrolment.
I consider that proposed ground two is also without merit. The Minister submits, and I accept, that there is no viable basis on which to suggest that the review proceedings before the Tribunal were procedurally unfair in circumstances where: (i) the Tribunal invited the applicant to attend a hearing, in accordance with s 360 of the Act; (ii) prior to the hearing, the Tribunal took steps to put the applicant on notice of the dispositive issues by inviting the applicant to provide various documentation, including a CoE or similar evidence regarding her current enrolment status; and (iii) during the hearing, the Tribunal directed the applicant’s attention to the fact that the enrolment criterion was in issue and provided her with an opportunity to give oral evidence in relation to that issue.
CONCLUSION
In all of the circumstances I am not satisfied that it is in the interests of the administration of justice for the reinstatement application to be granted. I will dismiss the application, which means that the orders made on 23 May 2024 stand. I will further order that the applicant pay the Minister’s costs fixed in the amount of $400.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 22 August 2024
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