MAHARJAN v Minister for Home Affairs
[2019] FCCA 433
•1 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHARJAN v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 433 |
| Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Application to set aside orders made by Registrar on first court date dismissing application because applicant did not appear – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – order dismissing application set aside. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05. |
| Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 |
| Applicant: | YOGESH MAHARJAN |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 935 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 February 2019 |
| Date of Last Submission: | 20 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2019 |
REPRESENTATION
| Applicant in person, assisted by an interpreter and after the hearing by Mr J R Young, barrister, instructed by Shamser Thapa & Associates, solicitors. |
| Solicitors for the Applicant: |
| Solicitors for the First Respondent: | Mr D Baddeley of Mills Oakley Lawyers |
ORDERS
Pursuant to r.16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) the order contained in paragraph 3 of the orders made by the Registrar on 26 April 2018 is set aside.
The costs of the application in a case filed on 27 December 2018 are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 935 of 2018
| YOGESH MAHARJAN |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before me is an application in a case filed by the applicant on 27 December 2018 seeking an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the orders made by a Registrar of this Court on 26 April 2018 dismissing the application be set aside. The Registrar dismissed the application pursuant to r.13.03C(1)(c) of the FCC Rules because the applicant did not appear before the Registrar on a first court date that had been set down for 10.15 am on 26 April 2018.
The application (Application) which the Registrar dismissed was an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period provided for by s.477(1) of the Act for applying to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal) on 28 February 2018. By that decision the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa). The Tribunal affirmed the delegate’s decision on the ground that it was not satisfied the applicant satisfied the criterion provided for by cl.500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Principles
The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]
In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application.
[1] [2010] FCA 530 at [7]
Also relevant is what McKerracher J said in AHN17 v Minister for Immigration and Border Protection:[2]
First, the unfettered statutory discretion in the rule should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list even though all of the factors may be relevant. Secondly, in other cases on the same topic prejudice is not mentioned as a factor: see, for example, MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 per North J (at [18]). Thirdly, prejudice is always relevant when raised, but is never likely to be raised in these cases by the Minister as there will be no immediate prejudice and as a model litigant can be expected to concede this point. (This was exactly the position discussed in MZYEZ by Ryan J (at [13]).) Fourthly, the absence of specific reference to delay or prejudice does not mean they were not considered and considered in a manner that was favourable to the applicant. Fifthly, the key consideration in most, but not necessarily all, of these cases will be the apparent strength of the merits: is there any point in reinstatement?
[2] [2018] FCA 1598 at [42]
Reasons for non-appearance
In his affidavit in support of his application to set aside the Registrar’s orders the applicant, who was not legally represented at the hearing before me, says he did not appear at the first court date because he relied on someone else to file the application. He deposes he was not given notice of the date and time and, by the time he received notice, his application had already been dismissed.
The applicant was cross-examined by the solicitor for the Minister; and I, too, asked the applicant questions. The applicant said that another person prepared the Application. The applicant identified by name the person who prepared that document. The applicant first described the person as a migration agent, then as a friend, and then again as an agent and a friend. The applicant initially said that after the agent prepared the Application he gave it to the applicant to file but the applicant then said it was the agent who arranged to file it. The applicant also said the agent had access to the applicant’s email. The applicant then said that he was given notice by the agent of the time and date of the first court date, but he was told only one week before the appointed date. The applicant said the agent told him the agent would arrange for a person to attend on his behalf.
I do not accept the applicant’s evidence. It is inconsistent with what the applicant said in his affidavit, namely that he had not been notified. The applicant explained the inconsistency by stating that the affidavit had been prepared by an agent. Whether or not that is so, the applicant informed me he had some ability to read English, and it was in any event his responsibility to ensure that he put before the Court accurate testimony. In these circumstances, there is no evidence before me that I am prepared to accept that explains why the applicant, or a person on his behalf, did not appear at the first court date. Even if, however, I were to accept the applicant’s evidence, whether as given in his affidavit, or as given from the witness box, I would not be satisfied the explanation is adequate. It was and remains the applicant’s responsibility to take steps to understand what is required of him to pursue his claim, and to do that which is required of him to pursue it.
I should also here refer to the time that passed between the day on which the Registrar made the orders dismissing the application on 26 April 2018, and 9 January 2019, being the day on which the applicant filed the application in a case to set aside the Registrar’s orders. The applicant initially said he first received notice of the order dismissing the application two to three months after the orders were made. Under cross-examination, however, the applicant accepted that on 26 April 2018 he had received by email a letter from the Minister’s lawyer that the application had been dismissed and attaching a copy of the Registrar’s orders and a copy of r.16.05 of the FCC Rules. The only explanation the applicant gave for his delay is that he had entrusted an agent to look after his affairs but the agent failed to do so, despite the applicant regularly asking his agent to do something about it.
I do not accept the applicant’s evidence.
a)First, I have already found the applicant had given inconsistent evidence about whether he had received notice of the first court date.
b)Second, the applicant had initially said he became aware of the Registrar’s order two to three months after it was made, yet the applicant accepted that he received an email from the Minister’s lawyers which informed the applicant of the order.
c)Third, I find it implausible that the applicant would be continuing to press an agent to do something about setting aside the order, thus implying that the applicant was aware that he was required to do something about that, but himself doing nothing for nine months in the fact of his agent not doing anything for that time. There is therefore no evidence I am prepared to accept that explains the applicant’s delay in filing his application in a case to set aside the orders made on 26 April 2018.
Reasonable prospects of obtaining order under s.477(2) of Act - principles
Under s.477(2) of the Act the Court may make an order extending the 35-day period provided for by s.477(1) of the Act if an application has been made to this Court for such order in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make such order; and if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. When considering that question a number of matters are or may be relevant. These usually include the length of the delay, and the reasons for the delay. The most important matter, at least in most cases, however, is whether the grounds on which an applicant proposes to rely if an order under s.477(2) of the Act is made are “sufficiently arguable to justify the extension of time”.[3]
[3] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, [47] (Foster J)
Reasons for not filing Application within time
The Tribunal made its decision on 28 February 2018, but the applicant did not commence this proceeding until 5 April 2018. The applicant, therefore, commenced the proceeding one day after the 35-day period provided for by s.477(1) of the Act. The delay is insubstantial.
The applicant included in the Application an explanation for his delay; and in it that there was a public holiday in Easter, and his solicitor was overseas. Even if it is assumed that the facts asserted by this explanation are established by evidence, it is not reasonably arguable they constitute an adequate explanation for delay.
Merits of claim
I next turn to the apparent merits of the grounds of the application for a remedy under s.476 of the Act, assuming an order under s.477(2) of the Act is made. That requires me to identify the question that was before the Tribunal, and the Tribunal’s reasons for determining that question adversely to the applicant.
Tribunal’s reasons
The application that was before the Tribunal was for review of the delegate’s decision not to grant the applicant a Student visa. The delegate refused to grant the applicant the Student visa because the delegate was not satisfied the applicant met the requirements of cl.500.312 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a family member of the family unit of a person who holds a student visa. The question the Tribunal identified it was required to consider was whether “the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa”.[4]
[4] RD, [7]
Before I consider the Tribunal’s reasons, it would be useful to set out cl.500.312, which is as follows:
The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The Tribunal began by recording that, in considering whether the applicant met the genuine intention to stay in Australia temporarily criterion, it was required to have regard to Direction 69 made under s.499 of the Migration Act 1958 (Cth) (Act) headed “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa application”. After identifying the factors Direction 69 required the decision-maker to consider, the Tribunal referred to and made findings in relation to a number of matters.
a)The Tribunal referred to the applicant’s migration history. The Tribunal noted the applicant entered Australia on 24 August 2013 holding a student visa,[5] but he had not departed Australia to visit Nepal.[6]
b)The Tribunal referred to the applicant’s education history. The Tribunal noted the applicant had enrolled in bachelor, diploma, and certificate courses, but most were cancelled; the applicant completed a Certificate IV in Commercial Cookery but without completing all requirements; there were gaps in the applicant’s study; he did not maintain continuous enrolment from October 2016 to 3 August 2016 for two periods, one of four months, and the other for three months, and was therefore non-compliant with visa condition 80202; and the applicant said he had lost interest in studying commercial cookery.
c)The Tribunal found the applicant has greater personal and economic ties to Australia than to his home country, Nepal. The Tribunal relied on the applicant’s not having returned to Nepal, after he first arrived in Australia, the applicant’s being married to a Nepali citizen who is residing in Australia under a subclass 573 temporary student visa; and there was evidence the applicant has been working in Australia, and that he is being sent money from Nepal.
d)The Tribunal considered the applicant’s intentions in relation to Australia. It found the applicant is using the student visa programme for the primary purpose of maintaining residence in Australia. The Tribunal relied on the applicant’s not having progressed to any vocational or professional qualification while he has been in Australia
e)The applicant currently holds a Bridging Visa A to which there are attached no work rights, but the applicant was working until July 2017 which indicated to the Tribunal the applicant was non-compliant with his current bridging conditions, at least from December 2016 to July 2017.
f)The Tribunal did not accept the applicant’s claims that he had an offer of employment from a courier company operated by the applicant’s father or that the applicant genuinely intends to work with that company or return to Nepal when his wife finishes her course.
[5] RD, [14]
[6] RD, [16]
Grounds of application
I now turn to the grounds of application of which there are two.
1.Tribunal denied to grant me the student subsequent entrant visa on the visa of my wife . . . though we have married and living as husband and wife before applying for subsequent entrant visa.
2.Tribunal has failed to give fair decision for the spouse who are living conjugal life and wants to help and support to and from each other in every aspect.
Until near the end of the hearing I was under the incorrect impression that the applicant had applied for a Student visa for the purpose of himself undertaking study. That impression was in part induced by the space the Tribunal in its reasons devoted to the applicant’s history of study in Australia, and my failing to read that part of the Tribunal’s reasons that indicated that the applicant applied for a Student visa as a member of the family of his wife who held a Student visa. When I became aware of that fact I understood that the applicant’s complaint about the Tribunal’s decision was that it did not take into account, or at least did not sufficiently take into account, the fact that the applicant was in a marital relationship with a person who did hold a Student visa.
At the conclusion of the hearing I set the matter down for judgment on 15 February 2019, but I indicated that I might vacate that date if, when considering my judgment, I wished to invite further submissions from the parties. As it occurred, I formed the view I would be assisted by further submissions; and on 7 February 2019, at my direction, my associate sent the following email to the parties.
His Honour invites the parties to make written submissions on the following questions:
1.Are the grounds stated in the application that was dismissed on 26 April 2018 reasonably open to be interpreted as claiming that, when considering whether the applicant was a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, the Tribunal was required to consider the nature of the relationship between the applicant (being the secondary applicant) with his wife (being the primary applicant), and assuming the relationship was a genuine relationship, whether the applicant’s wife was a genuine applicant for entry and stay as a student (see cl.500.212), but the Tribunal failed to consider those matters and, for that reason, failed to address the correct question that was before it?
2.However 1 is answered, is it reasonably arguable that when considering whether the applicant was a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, the Tribunal was required to consider the nature of the relationship between the applicant (being the secondary applicant) with his wife (being the primary applicant), and, assuming the relationship was a genuine relationship, whether the applicant’s wife was a genuine applicant for entry and stay as a student, but the Tribunal failed to consider those matters and, for that reason, failed to address the question it ought to have addressed and, therefore, made a jurisdictional error?
3.Is it reasonably arguable that the Tribunal did any one or more of the following? That is:
a. The Tribunal did not address the nature of the applicant’s relationship with his wife, being the person who holds a student visa.
b. The Tribunal did not address whether or not the applicant’s wife is a genuine applicant for entry and stay as a student.
c.The Tribunal devoted most or a significant part of its reasons to the applicant’s education history after he arrived in Australia.
d. The Tribunal concluded the applicant is using the student visa program for the primary purpose of maintaining residence in Australia.
4.Assuming it is reasonably arguable the Tribunal did any one or more of the things in 3, and in particular, making the finding referred to in 3.d., is it reasonably arguable that the question the Tribunal addressed was not whether the applicant is a genuine applicant for entry and stay as a member of the family unit of his wife, being a person who holds a student visa, but whether the applicant is a genuine applicant for entry and stay as a student?
5.If 4 is answered in the affirmative, is it reasonably arguable the Tribunal asked itself the wrong question and, for that reason, made a jurisdictional error?
The Minister filed written submissions. So too did the applicant, but through his counsel. The applicant retained legal representation after the hearing before me.
In his written submissions counsel for the applicant submits that the grounds of the Application, and in particular ground 1, sufficiently raise the issue of the significance of the Student visa held by the applicant’s wife. Counsel submits that, although whether the applicant’s wife was a genuine applicant for entry and stay as a student was not a jurisdictional issue, the nature of the applicant’s relationship with his wife and whether the applicant’s wife was likely to return to Nepal were critical and mandatory factors in determining the applicant’s circumstances; yet the Tribunal did not in truth consider these matters. Counsel submits that the Tribunal instead considered almost exclusively the applicant’s own record as a student. For these reasons, counsel for the applicant submits the Tribunal made a jurisdictional error.
The Minister, on the other hand, submits that the grounds stated in the application are not reasonably capable of being characterised as raising the question identified in paragraph 1 of the email my associate sent to the parties. The Minister submits that the grounds go no further than claiming the Tribunal should have granted him the Student visa because he was married to a person who held a Student visa. The Minister also submits the Tribunal asked itself the correct question; it was required to assess whether the applicant was a “genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa”. The Minister submits that the relationship between the applicant and his wife was relevant to whether the applicant was a member of his family’s family unit, but the Tribunal was not required to consider whether the applicant’s wife was a genuine applicant for entry and stay as a student. The Minister further submits that the Tribunal addressed the nature of the applicant’s relationship with his wife.
Reasonably arguable case for an order under s.477(2) of the Act?
The question I have to address is whether the applicant would have reasonable prospects of obtaining an order under s.477(2) of the Act on the grounds stated in the Application had the Application not been dismissed.
In my opinion it is reasonably arguable that the grounds stated in the Application, and particularly ground 1, raise the ground that when considering whether the applicant was a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, the Tribunal was required to consider, but it failed to consider, the nature of the relationship between the applicant (being the secondary applicant) with his wife (being the primary applicant) and, assuming the relationship was genuine, what were the likely intentions of the applicant’s wife in relation to her leaving Australia when she completes her studies. Further, in my opinion, this ground is reasonably arguable and, if established, would give rise to a reasonably arguable case of jurisdictional error. When considered with the applicant’s having filed the Application only one day after the expiration of the 35-day period provided for by s.477(1) of the Act, I am also of the opinion that the applicant would have reasonable prospects of obtaining an order under s.477(2) of the Act.
Exercise of discretion
That I have concluded the applicant has reasonable prospects of obtaining an order under s.477(2) of the Act if I were to set aside the Registrar’s orders does not compel me to set aside those orders. I have already found the applicant has not given an adequate explanation for not appearing at the first court date when the Registrar dismissed the Application, and the applicant has not given an adequate explanation for his delay in applying to set aside the Registrar’s orders. These are powerful matters that weigh against my exercising the discretion to set aside the orders. On the other hand, I have formed the view that the Application raises an arguable case of jurisdictional error and that the applicant would have reasonable prospects of obtaining an order under s.477(2) of the Act. In my opinion these considerations outweigh the inadequate explanations the applicant has given.
I propose, therefore, to exercise my discretion by ordering that the order the Registrar made on 26 April 2018 dismissing the Application be set aside. Because the applicant failed to give an adequate explanation for not appearing on the first court date, however, I do not propose to set aside the order for costs the Registrar made on that day; and it is unnecessary to set aside the order contained in paragraph 4 of the Registrar’s orders.
Disposition
In addition to setting aside the Registrar’s order, I will make directions for the further conduct of the matter, and appoint a date to hear both the application for an order under s.477(2) of the Act and, if such order is made, the substantive application. I will reserve the question of the costs of the application in a case filed on 27 December 2018.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 1 March 2019
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