Khan v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 139
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 139
File number(s): SYG 1385 of 2023 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 7 February 2025 Catchwords: MIGRATION – reinstatement application – application for review of a Registrar’s decision – whether reasonable explanation for non-attendance – prejudice – no arguable case – application dismissed
PRACTICE & PROCEDURE – default, undue delay and improper conduct – overarching purpose of the Court’s civil practice and procedure provisions – order for costs against lawyer – referral to Victorian Legal Services Board and Commissioner.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190 and 191
Legal Profession Uniform Law Application Act 2014 Sch 1 ss 296 and 297
Migration Act 1958 (Cth) s 347(1)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 9.03, 13.06, 17.01, 17.05 and 22.06
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 3
Migration Regulations 1994 (Cth) reg 4.10, cl 491.214
Cases cited: BMY18 v Minister for Home Affairs [2019] FCAFC 189
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Dongalen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 838
DPC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 386
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293
Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 241
Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 879
Subedi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 127
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 31 January 2025 Place: Sydney Applicant In Person Solicitor for the Respondents Ms E Maker of Minter Ellison ORDERS
SYG 1385 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMED SIDDIQ ALI KHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
2.The application in a proceeding filed on 3 December 2024 be dismissed.
3.Pursuant to rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), Order 3 of the Orders made on 5 September 2024 be set aside.
4.Pursuant to rule 17.05(2)(a) of the GFL Rules, Order 2 of the Orders made on 5 November 2024 be set aside.
5.Pursuant to rule 22.06(4) of the GFL Rules:
(a)Mr Imran Warraich pay the Minister’s costs and disbursements, of and incidental to the application in a proceeding filed on 23 August 2024, fixed in the sum of $1,500;
(b)Mr Imran Warraich pay the Minister’s costs and disbursements, of and incidental to the application in a proceeding filed on 12 September 2024, fixed in the sum of $500; and
(c)Mr Imran Warraich pay the Minister’s costs disbursements, of and incidental to the application in a proceeding filed on 3 December 2024, fixed in the sum of $3,000.
6.A copy of the Reasons for Judgment be provided to a Registrar of this Court for referral to the Victorian Legal Services Board and Commissioner.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application in a proceeding, filed on 3 December 2024 (reinstatement application), brought pursuant to r 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) to reinstate proceedings which were dismissed for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules on 5 November 2024.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is amended to the Administrative Review Tribunal.
For the reasons that follow, the reinstatement application is dismissed.
BACKGROUND AND PROCEDURAL HISTORY
The background and procedural history to these proceedings was helpfully summarised in the written submissions of the first respondent (Minister), which I primarily adopt.
The visa application
On 22 March 2022, the applicant, a male national of India, applied for a Skilled Work Regional (Provisional) (subclass 491) visa (visa) with the nominated occupation of ‘Chef’.[1] In his application, the applicant requested all correspondence, including the outcome of the application, to be sent to his nominated email address.[2]
[1] Court Book (CB) 1 to 19.
[2] CB 5.
On 24 April 2023, a delegate of the Minister (delegate) refused to grant the applicant the visa. The delegate was not satisfied that the applicant met cl 491.214 in Part 491 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because he did not have a valid skills assessment at the time of invitation to apply for the visa.
On the same day, the applicant was notified of the decision by way of letter sent to his nominated email address. It was specified in the letter that any application for review of the decision must be made within 21 calendar days after the day on which the applicant was taken to have received the letter. It further stated that as the letter was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted.[3]
Application to the Administrative Appeal Tribunal
[3] CB 112 to 119.
On 20 May 2023, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.[4]
[4] CB 120 to 126.
On 19 July 2023, the Tribunal invited the applicant to comment on the validity of his application. The invitation specified that the Tribunal was of the view that the application was not valid given it was not lodged within the required timeframe. The applicant was informed that he had 14 days to respond to the Tribunal’s invitation, after which a Tribunal Member would make a decision on whether a valid review application had been made.[5]
[5] CB 142 to 143.
On 27 July 2023, the applicant responded to the invitation by email, acknowledging that he understood that, according to the visa refusal decision, he had 21 days to lodge an application with the Tribunal.[6]
[6] CB 144.
On 9 August 2023, the Tribunal found it did not have jurisdiction to review the matter. On 10 August 2023, by way of an email sent to the applicant’s nominated email address, the applicant was given a copy of the Tribunal’s decision.[7]
[7] CB 148 to 152.
Tribunal’s decision
The Tribunal recorded that pursuant to s 347(1)(b) of the Migration Act 1958 (Cth) (Act) and reg 4.10 of the Regulations, the application for review had to be made within 21 days after the applicant was notified of the delegate’s decision.[8]
[8] CB 152 at [2].
The Tribunal was satisfied that the applicant was notified of the delegate’s decision on 24 April 2023 in accordance with statutory requirements and therefore had until 15 May 2023 to apply for review of the delegate’s decision.[9] Given the application for review was not received until 20 May 2023, the Tribunal recorded that it appeared out of time.
[9] CB 152 at [3] to [4].
The Tribunal noted that it had invited the applicant to comment on the Tribunal’s preliminary view that the application was out of time, to which the applicant responded that he had mistakenly believed he had 28 days to lodge an application.[10] The Tribunal considered the applicant’s response, but found that the application had not been made within the prescribed time period and that the Tribunal did not have the discretion to dispense with that requirement regardless of the applicant’s explanation.[11]
[10] CB 152 at [5] to [6].
[11] CB 152 at [6].
The Tribunal concluded that, due to the applicant lodging an out of time application for review, it had no jurisdiction in the matter.[12]
PROCEEDINGS IN THIS COURT
[12] CB 152 at [7] to [8].
Originating application filed on 30 August 2023
By an originating application filed on 30 August 2023 (originating application), the applicant seeks judicial review of the Tribunal’s decision and advances the following two grounds (reproduced below without alteration):
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 grant criteria required by the regulations, the tribunal member failed to fully consider the 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.
On 10 May 2024, Registrar Downing ordered that the matter be listed for hearing of a summary dismissal application on a date to be advised.
On 3 June 2024, a Notice of Address for Service was filed on behalf of the applicant, by which Mr Imran Warraich (Mr Warraich) of Huk Legal Services gave notice of his appointment as the lawyer for the applicant.
On 6 June 2024, Mr Warraich appeared on behalf of the applicant at a callover before Registrar van der Westhuizen. The Court ordered that the application be adjourned for further callover by telephone at 2.15 pm on 2 July 2024. By way of adumbration of my reasons that follow, I set out below the following notation in the Court Order:
THE COURT NOTES THAT: The applicant has retained a solicitor who is considering the prospects of success of the application.
On 24 June 2024, Mr Warraich filed a Notice of Intention to Withdraw as Lawyer from the proceedings. Notably, no other material, such as written submission in support of the grounds raised, was filed by Mr Warraich in these proceedings. No adverse inference is drawn in this regard.
Following Mr Warraich’s withdrawal from the record, the parties filed written submissions in July 2024.
On 30 July 2024, Registrar van der Westhuizen summarily dismissed the application under r 13.13(a) of the GFL Rules on the basis that the applicant did not have reasonable prospects of successfully prosecuting his application for judicial review. Registrar van der Westhuizen provided ex tempore reasons for that summary dismissal.
Application for review of Registrar’s decision filed on 23 August 2024
On 23 August 2024, the applicant applied for judicial review of the Registrar van der Westhuizen’s summary dismissal decision (application for review of Registrar’s decision). This application was prepared, and filed on behalf of the applicant, by Mr Warraich.
The proceedings were listed before me on 5 September 2024 for hearing of the application for review of the Registrar’s decision.
On 3 September 2024, Mr Warraich sent an email to my Chambers with the following request for an adjournment of the hearing (reproduced below without alteration):
Dear Associate,
Please refer to the attached email from your good office.
We have been instructed by the Applicant to write this email. The Applicant is unable to attend the hearing being seeking for legal advice and other related submissions.
Since very short time left and we are unable to attend the upcoming hearing on 5th September 2024, it is requested to kindly adjourn the matter for future date.
On 4 September 2024, the Minister indicated his opposition to the adjournment request on the basis that the proposed reason for the adjournment was neither proper nor adequate. Later that day, after having considered the matter, by way of email from my Chambers, the parties were notified of my decision to refuse to grant the adjournment request, on the basis that it lacked proper detail and supporting evidence, and that the hearing would proceed as scheduled.
On 5 September 2024, no appearance was made by or on behalf of the applicant at the hearing. Following an application made by the Minister’s representative, I made orders dismissing the application, pursuant to r 13.06(1)(c) of the GFL Rules, with the applicant to pay the Minister’s costs fixed in the sum of $1,500 (5 September 2024 orders).
Application in a proceeding filed on 12 September 2024
On 12 September 2024, the applicant filed an application in a proceeding seeking to have the 5 September 2024 orders ‘set aside and vacated’. This application was prepared, and filed on behalf of the applicant, by Mr Warraich.
By way of an affidavit filed on 12 September 2024, the applicant declared that he did not attend the 5 September 2024 hearing ‘due to unforeseen and spontaneous personal circumstances that was not under [his] control’. The applicant further declared that Mr Warraich could not attend that same hearing ‘as very short time was provided to attend the hearing and [Mr Warraich] was engaged in other professional commitments’.
On 18 September 2024, I made orders timetabling the filing of the parties’ affidavit evidence and submissions (18 September 2024 orders). Order 1 of the 18 September 2024 orders read:
1.The applicant file and serve the following on or before 3 October 2024:
a. written submissions in respect of his application for reinstatement;
b. affidavit evidence in relation to the events and circumstances referred to in paragraphs [4] and [5] of the applicant’s affidavit affirmed on 12 September 2024, specifically:
i.what the unforeseen and spontaneous personal circumstances were, and how they were not within the applicant’s control;
ii.the nature of the professional commitments of the applicant’s representative, and how these prevented the applicant’s representative from attending the hearing.
c. any additional evidence on which the applicant seeks to rely in support of his application for reinstatement.
Upon the applicant’s failure to comply with Order 1 of the 18 September 2024 orders, the Minister requested the proceedings be brought before me for a directions hearing. Accordingly, the proceedings were listed for directions on 5 November 2024 at 9.30 am (AEDT) (5 November 2024 hearing).
No appearance was made by the applicant or Mr Warraich at the 5 November 2024 hearing. Again, following an application made by the Minister, I made orders dismissing the application, pursuant to r 13.06(1)(c) of the GFL Rules, with the applicant to pay the Minister’s costs fixed in the sum of $500 (5 November 2024 orders).
Following the conclusion of the 5 November 2024 hearing, Mr Warraich sent an email to my Chambers at 10.11 am on 5 November 2024, which read as follows (reproduced without alteration):
Dear Associate,
I have joined the meeting, I could not join the meeting due to technical reasons.
Regards
IMRAN WARRAICH
LLB, LLM, Grad. Dip. Legal Practice
Principal Solicitor
HUK Legal Services Pty Ltd
Reinstatement application
On 3 December 2024, the applicant filed an application in a proceeding seeking to have the 5 November 2024 orders ‘set aside and vacated’. This reinstatement application was prepared, and filed on behalf of the applicant, by Mr Warraich.
By way of an affidavit filed on 3 December 2024, the applicant declared that he did not attend the 5 November 2024 hearing ‘due to unforeseen and spontaneous personal circumstances that [were] not under [his] control’. The applicant further declared that Mr Warraich could not attend the 5 November 2024 hearing but gave no reason for that non-attendance. The applicant also expressed a request to ‘submit my other evidence and related document in the matter later’.
On 12 December 2024, after having considered the applicant’s affidavit of 3 December 2024, I made the following orders (12 December 2024 orders):
THE COURT ORDERS THAT:
1.The matter be listed for hearing of the Application in a Proceeding on 31 January 2025 at 10.15 am.
2.The applicant is to file and serve written submissions (including, where appropriate, in relation to the matters raised in the Court’s notation below) on or before 17 January 2025.
3.The first respondent is to file and serve written submissions (including, where appropriate, in relation to the matters raised in the Court’s notation below) on or before 24 January 2025.
4.The parties are granted liberty to apply on 3 days’ notice.
THE COURT NOTES THAT:
At the hearing referred to in Order 1 of these Orders, the Court will hear from the parties as to whether or not it is appropriate to order:
(a) that any of the costs of the proceedings be paid by Mr Warraich, the applicant’s solicitor on record, with reference to rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); and/or
(b) that a copy of the reasons for judgment in this matter be referred to the Victorian Legal Services Board and Commissioner.
Neither the applicant, nor Mr Warraich acting on his behalf, filed and served written submissions as required by Order 2 of the 12 December 2024 orders.
On 24 January 2025, Mr Warraich filed a Notice of Intention to Withdraw as Lawyer.
At the hearing on 31 January 2025, the applicant appeared in person, and Ms E. Maker of Sparke Helmore Lawyers appeared on behalf of the respondents. Mr Warraich did not appear and the applicant gave no explanation for Mr Warraich’s non-attendance. At the time of hearing on 31 January 2025, Mr Warraich had not lodged a Notice of Withdrawal as Lawyer pursuant to r 9.03 of the GFL Rules.
In response to an email sent by my Chambers on 6 February 2025 which listed the matter for Judgment delivery on 7 February 2025, Mr Warraich provided an unsealed Notice of Withdrawal as Lawyer form.
CONSIDERATION
Relevant principles
The Court’s power to set aside an order made in the absence of a party is set out in r 17.05(2)(a) of the GFL Rules. If that power were to be invoked in this case, it would have the effect of reinstating the proceedings.
The principles in considering a reinstatement application are generally well-established: see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]. They generally provide that a reinstatement application involves consideration of three factors:
(a)whether there is a reasonable excuse for non-attendance at the hearing in which the proceedings were dismissed;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement; and
(c)whether the applicant has reasonable prospects of success on the substantive application.
In CAL15 at [4], Mortimer J (as she then was) explained that in relation to the third factor for consideration, the applicant need only raise ‘an arguable case on judicial review’ and that this consideration was important because:
…if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
Explanation for non-attendance
As set out above, by way of an affidavit filed on 3 December 2024, the applicant explained that he ‘could not attend the hearing on 5 November 2024 due to unforeseen and spontaneous personal circumstances that [were] not under [his] control’. The applicant further stated that Mr Warraich was also unable to attend that hearing but gave no explanation for Mr Warraich’s non-attendance. Furthermore, no explanation has been provided by Mr Warraich for his non-attendance at the 5 November 2024 listing, despite having been made aware of that listing including by way of the refusal of his client’s adjournment request. Furthermore, despite having been ordered to file and serve affidavit evidence and written submissions by 15 January 2024, neither the applicant nor Mr Warraich acting on the applicant’s behalf did so.
By way of written submissions, the Minister contends that the reasons proffered for the applicant’s non-attendance are an entirely unsatisfactory explanation for the failure to appear. Five matters were noted in support of that contention:
First, the applicant had been on notice of the listing since 30 October 2024 and did not raise any concerns or technical difficulties in advance.
Second, it was open to the applicant’s representative to join the directions hearing using the phone number provided by the Court alongside the MsTeams link.
Third, the applicant has failed to provide substantiating evidence of the claimed technical difficulties or his attempts to join the hearing.
Fourth, the applicant’s representative did not make contact with the Court or the Minister’s solicitors until almost one hour after the scheduled time.
Fifth, the applicant would have been well aware of the consequences of any default of appearance in circumstances where it was such a default which had given rise to the listing in question.
At hearing, the applicant submitted that he did not know that the proceedings were listed on 5 November 2024, as he personally had not received an email from the Court or the Minister’s representative in relation to the 5 November 2024 hearing. Notably, the applicant made no specific submissions as to any failure on Mr Warraich’s behalf to advise him of the 5 November 2024 hearing, including by way of relaying to him the Court’s refusal of the adjournment request.
In my view, the applicant’s reasons proffered for the non-attendance at the 5 November 2024 hearing are unsatisfactory. I am persuaded by the Minister’s submissions and find that the applicant has not provided sufficient detail or evidence to substantiate the nature of the ‘unforeseen and spontaneous circumstances’ that were beyond his control and prevented his attendance at the 5 November 2024 listing.
The applicant was represented by Mr Warraich at all relevant times in connection with the application in a proceeding filed on 12 September 2024 and there is material on the Court file indicative of both the Court and the Minister having drawn Mr Warraich’s attention to the 5 November 2024 hearing. When this was drawn to the applicant’s attention at hearing, the applicant further submitted that he had asked Mr Warraich to request the Court grant him leave to attend the hearing by way of video as he was unable to travel from Orange in regional New South Wales to Sydney on 5 November 2024 due to work commitments. He further submitted that there had been miscommunication between him and Mr Warraich about the adjournment request and that he only became aware of the 5 November 2024 hearing having proceeded in his absence once he received contact from the Court in relation to his liability to pay costs arising out of that dismissed proceeding.
The applicant’s submissions reveal that he was aware that a hearing had been scheduled to proceed on 5 November 2024 and that he had requested Mr Warraich seek an adjournment of that hearing. Nevertheless, in the absence of evidence detailing the applicant’s work commitments on 5 November 2024 and the applicant having instructed Mr Warraich to adjourn the proceedings and not having been advised by Mr Warraich of the refused adjournment request, I am unpersuaded by the applicant’s further submissions.
Accordingly, I find the explanation for the applicant’s non-attendance to be unsatisfactory and that this weighs against the reinstatement of proceedings.
Prejudice
The Minister submits that if the application were to be reinstated, he would be prejudiced by the cost of additional litigation in respect of a matter he contends is unmeritorious which he has gone to the expense of defending on three prior occasions.
In circumstances where an order for costs can be granted to assuage any prejudice, I do not find that the issue of prejudice meaningfully weighs against reinstatement.
Merits of the substantive application
If the application were to be reinstated, the Court would hear the application for review of a Registrar’s decision. That review would involve consideration of the grounds raised in the originating application. For convenience, those grounds are reproduced below:
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 grant criteria required by the regulations, the tribunal member failed to fully consider the 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
By ground 1, taken at its highest, the applicant makes a bare assertion that the Tribunal has made a jurisdictional error whilst making its decision.
The Minister submits, and I accept, that this ground, in its unparticularised form does not disclose any jurisdictional error on the part of the Tribunal, and therefore, does not identify any arguable basis for finding jurisdictional error on the Tribunal’s part.
Ground 2
By ground 2, the applicant contends that the Tribunal denied him procedural fairness.
At hearing, I gave the applicant the opportunity to address me further on this ground. In so doing, I read out the ground to the applicant and asked him to explain in his own words how the Tribunal had erred by way of failing to consider his ability to meet the visa grant criteria. I also asked him to detail other aspects of this ground, including the nature of the circumstances that were beyond his control, how he was not ‘at fault’ and what were the ‘exceptional circumstances’ that affected him. By way of response, the applicant made the following submissions:
(a)At the time he received the notification letter attaching the delegate’s decision, he had been travelling interstate for personal and religious reasons. He had been distracted by these circumstances when reviewing the notification letter and did not comprehend the 21 day timeframe within which he had to make his review application. He had been inattentive to the information specified in the notification letter in relation to the prescribed statutory timeframe within which to make his application for review with the Tribunal.
(b)He also thought he had 28 days to apply to the Tribunal as he had read that information on the Tribunal’s website.
(c)He realised his mistake in relation to the late filing of his review application when a friend pointed out to him soon after he lodged the review application that it had to be made within a period of 21 days of having been notified of the delegate’s decision.
The Minister submits the Tribunal’s procedural fairness obligations under the Act do not apply in circumstances where the Tribunal ultimately found that it did not have jurisdiction to determine the review application: see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [34] to [35]. The Minister further submits that the Tribunal gave the applicant an opportunity to comment on the validity of his application before reaching its decision.[13] Ultimately, the Tribunal was of the view that the application had not been lodged within the prescribed time period, and that it did not have the discretion to dispense with that requirement regardless of the applicant’s explanation.
[13] CB 142 to 143.
I accept the Minister’s submissions in relation to this ground. Whilst the Court is sympathetic to the personal circumstances of the applicant, the various submissions proffered are not matters that were relevant to the Tribunal’s assessment of whether it had jurisdiction in the applicant’s case. The applicant’s various submissions, taken at their highest, have no bearing upon whether the Tribunal erred in the making of its decision that it had no jurisdiction.
Accordingly, I find that ground 2 does not disclose any arguable basis for finding jurisdictional error on the Tribunal’s part.
Other relevant matters
At hearing, primarily for the benefit of the applicant appearing in person, the Minister made oral submissions outlining various provisions within the relevant legislation that governed the proper making of an application for review of the delegate’s decision in the applicant’s case. The Minister explained how the Tribunal had not erred in the making of its decision as it properly:
(a)identified that the notification letter and delegate’s decision had been given to the applicant by a specified method and received by the applicant on 24 April 2023: ss 66(1), 494B and 494C of the Act;
(b)identified the relevant statutory provisions which specify that the review application had to be made within the 21 days after the applicant was notified of the delegate’s decision, and then properly applied those provisions when determining that the review application had to be made on or before 15 May 2023: s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations; and
(c)concluded that as the review application was not received by the Tribunal until 20 May 2023, it had not been properly made and the Tribunal had no jurisdiction.
The Minister further explained that the notification letter met the applicable requirements of s 66(2) of the Act as it:
(a)specified the criterion that the applicant did not satisfy which had formed the basis of the refusal to grant the visa;
(b)gave written reasons why that criterion was not satisfied; and
(c)stated, by way of information detailed under the headings ‘Review rights’ and ‘Lodging an application for merits review’, that the applicant could seek review of the delegate’s decision at the Tribunal and the time in which that review application had to be made.
Having reviewed the Tribunal’s decision, I agree with the Minister and find that the Tribunal’s reasons do not disclose error. Specifically in relation to the validity of the notification letter, I agree with the Minister’s submissions and find that it is not affected by an error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 or BMY18 v Minister for Home Affairs [2019] FCAFC 189.
It follows that neither of the grounds disclose, nor has the Court been able to identify, any arguable basis for finding jurisdictional error. Accordingly, this weighs heavily against reinstatement.
Conclusion on reinstatement application
Taking into account the above considerations, particularly the absence of any reasonably arguable case of jurisdictional error, I am not satisfied that reinstatement should occur.
Accordingly, the reinstatement application is dismissed.
COSTS
At hearing, the applicant submitted that he had incurred costs in relation to the various proceedings that had been brought and that these had resulted in him owing a debt to the Commonwealth. The applicant also requested the Court order that the Minister waive that debt if he were successful in the reinstatement application.
The Minister submitted that it did not appear possible for the applicant’s debt to be waived and noted that that the applicant has not produced any evidence of the costs he has incurred. In relation to the reinstatement application, the Minister sought costs fixed in the sum of $4,189.38. It was submitted that costs ordinarily follow the event and that this amount is reasonable as it reflects the costs incurred by the Minister in preparing for the reinstatement application and aligns with the amount currently fixed for a matter which concludes at an interlocutory stage as set out in Pt 2, Div 1 of Sch 2 to the GFL Rules.
Having considered the parties’ submissions, I agree with the Minister that costs are to be paid in relation to the reinstatement application. However, I do not find it reasonable in the circumstances to award the Minister costs in the scale amount of $4,189.38 because:
(a)a substantial portion of the work undertaken by the Minister in preparing for the reinstatement application largely involved repeating work that had been previously undertaken over the course of these proceedings; and
(b)a portion of the Minister’s written submissions filed on 24 January 2025 contained argument relating to the imposition of a costs order pursuant to various provisions within Part 8B of the Act, a matter on which the Court had not specifically sought submissions by way of the 12 December 2024 orders.
Accordingly, it will be ordered that the Minister’s costs and disbursements, of and incidental to the reinstatement application, be fixed in the sum of $3,000. For reasons that follow, it will also be ordered that Mr Warraich pay the Minister’s costs.
Personal costs order against Mr Warraich
By way of the 12 December 2024 orders, the parties were required to file written submissions including, where appropriate, in relation to whether or not it would be appropriate to order that any costs of these proceedings be paid by Mr Warraich in accordance with r 22.06 of the GFL Rules.
Neither the applicant nor Mr Warraich filed written submissions addressing either this issue or the application for reinstatement. Those submissions were due on 17 January 2025. Instead, Mr Warraich filed a Notice of Intention to Withdraw as Lawyer on 24 January 2025. Mr Warraich did not avail himself of the opportunity to respond by way of written submissions addressing this issue. Nor did he appear at the hearing to be heard by way of oral submissions on this issue. In my view, for the purposes of r 22.06(5) of the GFL Rules, the Court has afforded Mr Warraich a reasonable opportunity to be heard on the issue of whether a personal costs order should be made against him in accordance with r 22.06 of the GFL Rules.
At hearing, the applicant did not specifically address the issue of whether or not it would be appropriate to order that any costs of these proceedings be paid by Mr Warraich in accordance with r 22.06 of the GFL Rules. However, the applicant reiterated his concern about his debt to the Commonwealth arising out of the costs orders that have been made, and might be further made, by the Court in these proceedings.
By way of written submissions, the Minister maintains that, in all of the circumstances of the case, including the background and procedural history outlined above, it would be appropriate for the Court to make an order under r 22.06 that any costs of the proceedings be paid by Mr Warraich on the basis that his default has caused costs to be incurred by the Minister. An order was sought by the Minister that Mr Warraich pay the entirety of the Minister’s costs incurred as a result of the application for review of the Registrar’s decision, the application in a proceeding filed on 12 September 2024 and the reinstatement application. Reference was made to r 22.06(2)(a) and (b) of the GFL Rules, which state:
(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
On previous occasions where the Minister had an opportunity to seek costs, no specific submissions were made in relation to any default on Mr Warraich’s part and the costs incurred by the Minister as result of such default. Instead, costs have been borne by the applicant on three previous occasions where the Minister has sought, and been awarded, costs by way of:
(a)Order 2 of the orders made by the Registrar on 30 July 2024 to summarily dismiss the originating application where the applicant was ordered to pay the Minister’s costs fixed in the sum of $4,189.38 (first costs order);
(b)Order 3 in the 5 September 2024 orders where the applicant was ordered to pay the Minister’s costs fixed in the amount of $1,500 (second costs order); and
(c)Order 2 in the 5 November 2024 orders where the applicant was ordered to pay the Minister’s costs fixed in the amount of $500 (third costs order).
Nevertheless, pursuant to r 22.06(4)(b) of the GFL Rules, the Court is empowered to order that Mr Warraich pay to the Minister the costs, or part of the costs, incurred by the Minister as part of these proceedings.
Having considered the parties’ submissions, along with the procedural history of this matter, it is clear that there have been a range of instances in these proceedings where Mr Warraich has failed to attend scheduled hearings, either without notice or an accepted explanation, and failed to file written submissions in accordance with orders of this Court.
In relation to the first costs order, it is difficult to discern whether any costs were incurred as result of undue delay, negligence, improper conduct or other misconduct or default on the part of Mr Warraich in connection with the originating application. Importantly, neither the Minister nor the applicant made submissions in relation to the making of a personal costs order against Mr Warraich in that regard. On that basis, the Court will not proceed to make a personal costs order against Mr Warraich in relation to the originating application. Otherwise, I find it appropriate that Mr Warraich, rather than the applicant, personally bear the costs incurred by the Minister in connection with the remainder of the applicant’s proceedings before this Court.
Section 191(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides that in exercising the discretion to award costs in a civil proceeding, I must take into account any failure to comply with the duty imposed by ss 191(1) or 191(2) of that Act. Those subsections require that parties conduct their proceedings in a way which is consistent with the overarching purpose of the Court’s civil practice and procedure provisions and, specifically, that a lawyer must assist their client in so complying.
In this case, I find Mr Warraich failed to:
(a)attend the 5 September 2024 hearing;
(b)attend the 5 November 2024 hearing; and
(c)file, or assist the applicant to file, written submissions 14 days before the hearing scheduled for 31 January 2025 (as required by Order 2 of the 12 December 2024 orders).
By way of these defaults, Mr Warraich caused undue delay in the resolution of these proceedings and each of the hearings in those applications, as scheduled, were not able to proceed conveniently. It is of concern that Mr Warraich has not provided an acceptable explanation for each of these defaults, despite having been afforded ample opportunity to do so. In fact, Mr Warraich has not proffered any explanation for two of those defaults. I find that Mr Warraich’s conduct evinces a disregard for the need to assist the applicant in complying with the duty to act consistently with the overarching purpose of the Court’s civil practice and procedure provisions which is to facilitate the just resolution of disputes both according to law, and as quickly, inexpensively and efficiently as possible: s 190(1) of the FCFCOA Act. I also find that Mr Warraich’s conduct amounts to improper conduct for the purposes of r 22.06(1) of the GFL Rules as it has undermined the efficient use of judicial and administrative resources, interrupted the Court’s ability to efficiently dispose of these proceedings in a timely manner, and more generally impeded the efficient disposal of the Court’s overall caseload: s 190(2) of the FCFCOA Act.
On that basis, I will make orders setting aside the second costs order and the third costs order and make further orders pursuant to r 22.06(4) of the GFL Rules that:
(a)Mr Warraich pay the Minister’s costs and disbursements, of and incidental to the application for review of Registrar’s decision, fixed in the sum of $1,500;
(b)Mr Warraich pay the Minister’s costs and disbursements, of and incidental to the application in a proceeding filed on 12 September 2024, fixed in the sum of $500; and
(c)Mr Warraich pay the Minister’s costs and disbursements, of and incidental to the reinstatement application, fixed in the sum of $3,000.
REFERRAL TO VICTORIAN LEGAL SERVICES BOARD AND COMMISSIONER
By way of the 12 December 2024 orders, the parties were required to file written submissions including, where appropriate, in relation to whether or not it would be appropriate to order that a copy of the Reasons for Judgment in this matter be referred to the Victorian Legal Services Board and Commissioner (VLSBC).
Neither the applicant nor Mr Warraich filed written submissions addressing this issue. Those submissions were due on 17 January 2025. Instead, Mr Warraich filed a Notice of Intention to Withdraw as Lawyer on 24 January 2025. Mr Warraich did not avail himself of the opportunity to respond by way of written submissions addressing the issue, nor did he appear at the hearing to be heard by way of oral submissions.
At hearing, the applicant did not specifically address this issue but submitted on numerous occasions that he was reliant upon Mr Warraich to handle the proceedings on his behalf and that there had been instances of miscommunication between him and Mr Warraich.
The Minister submits, and I agree, that r 17.01 of the GFL Rules permits the making of an order to refer Mr Warraich’s conduct to the VLSBC. The Minister further drew my attention to Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138 (Shahzad) where her Honour Judge Laing referred Mr Warraich’s conduct to the appropriate legal services regulator by way ordering that a copy of Reasons for Judgment in that case be provided to the VLSBC. It is of moment to observe that, in addition to Shahzad, there have been other instances where this Court has found it necessary to criticise Mr Warraich’s conduct as a legal practitioner: see Subedi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 127 (Judge D Humphreys); Dongalen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 838 (Judge Kendall); Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570 (Judge Blake); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 879 (Judge Ladhams); DPC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 386 (Judge Davis); Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 241 (Judge Given); and FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 (Judge Given).
It is not the role of the Court in proceedings such as these to make conclusive findings upon whether Mr Warraich may have failed to fulfil his professional duties and responsibilities, including his paramount duty to the Court and the administration of justice: see r 3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. It is also not the Court’s role to determine whether Mr Warraich has engaged in conduct capable of constituting unsatisfactory professional conduct or professional misconduct: see Legal Profession Uniform Law Application Act 2014 Sch 1 ss 296 and 297. It is not the Court’s responsibility to educate Mr Warraich about aspects of professional practice. These are matters for the VLSBC.
Having considered the Minister’s submissions, the material before this Court and the findings I have made in relation to Mr Warraich’s various defaults and improper conduct in these proceedings, I will make an order referring a copy of my Reasons for Judgment in this matter to the VLSBC.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 7 February 2025
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