Maharjan v Minister for Home Affairs

[2019] FCCA 943

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHARJAN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 943

Catchwords:

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.116, 362B, 426A, 474

Migration Regulations 1994, condition 8202 of sch.8
Federal Circuit Court Rules 2001, rr.13.03C, 13.10, 16.05

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
House v The King (1936) 55 CLR 499
Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713

Applicant: RUJANI MAHARJAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3286 of 2018

Judgment of: Judge Cameron

Hearing date: 1, 25 February 2019

Date of Last Submission: 25 February 2019

Delivered at: Sydney

Delivered on: 26 February 2019

REPRESENTATION

Counsel for the Applicant: Ms A. Gibbons

Solicitors for the Applicant: Sandhu Legal Professionals

Solicitors for the Respondents: Ms K. Evans of Sparke Helmore

ORDERS

1. The applicant’s application in a case filed on 8 January 2019 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $1,700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3286 of 2018

RUJANI MAHARJAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant commenced this proceeding by an application filed on 24 November 2018 in which she sought judicial review of a decision made by the second respondent (“Tribunal”) affirming a decision made by a delegate of the first respondent (“Minister”) to cancel her visa. The applicant’s application was listed on 17 December 2018 before a registrar of the Court for its first court date. There was no appearance by the applicant on that occasion and the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).

2. These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules seeking to set aside the orders made by the registrar on 17 December 2018 on the basis that they were made in her absence.

3. In deciding whether to grant the current application, consideration must be given to whether the applicant’s explanation for her non-attendance is a satisfactory one and whether, nevertheless, her application for judicial review would have reasonable prospects of success were it permitted to proceed.

4. For the reasons which follow, the application in a case will be dismissed.

SATISFACTORY EXPLANATION

1. Turning first to whether the applicant has provided a satisfactory explanation for her non-attendance, the applicant deposed in her affidavit filed in support of the application in a case that she had had a severe migraine and abdominal pain which had prevented her from attending court that day.  She deposed that although she tried to call the Court, she was not able to get through.  She deposed that her absence had not been intentional and had been the result of matters beyond her control. 

2. The applicant’s oral evidence was to the same effect as her affidavit and satisfied me that she was indeed too ill to attend the first court date.  In the circumstances, I do not place significant weight on the fact that the applicant did not contact the Court to advise that she would be absent from the first court date.  As I advised the parties at that point of the proceeding, I am of the view that the applicant has provided a satisfactory explanation for her failure to attend court on 17 December 2018.

REASONABLE PROSPECTS OF SUCCESS

1. An application to reinstate a proceeding in the present circumstance would not be granted unless the applicant had reasonable prospects of success on the principal application for judicial review. In the absence of such prospects, the principal application would be liable to be dismissed pursuant to r.13.10 of the Rules.

2. It should be noted in this regard that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, an applicant in the present circumstances must demonstrate reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error.

Background facts

1. On 25 September 2015 the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. That visa was subject to condition 8202(2)(a) of sch.8 to the Migration Regulations 1994 (“Regulations”) which at all material times provided that the applicant had to be enrolled in a registered course.

2. On 1 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation (“NOICC”) of her visa.  The NOICC set out information that the applicant had not been enrolled in a registered course of study since 9 November 2015.

3. The applicant responded to the NOICC on 8 November 2016.  Her response was summarised by the Tribunal in its decision record as follows:

   ·    She had completed courses in an Advanced Diploma of Business Management and Bachelor of Accounting. Her results had been satisfactory.

   ·    Her relationship with her husband deteriorated resulting in their divorce. This struck her hard. She became depressed and did not leave her house, so she did not attend her course.

   ·    At the same time she discovered that her parents were also having a lot of tension and conflict in their marriage. They argued and her father left the household. This caused the applicant more stress and depression. She was not in a state of mind to attend her course.

   ·    Her parents have invested a lot of money and resources in her to study in Australia. She feels she has let her parents down. If her parents find out about her situation they will be devastated and disappointed.

   ·    Her original plans were to complete her studies in Australia and return to Nepal to set up a business or work for a large international company. Her plans are now shattered. She will now struggle to find any work in Nepal.

   ·    She would like a second chance and she will comply with her Student visa conditions and continue her course of study.

4. The applicant’s visa was cancelled by a delegate of the Minister on 16 November 2016 on the basis that she had not been enrolled in a registered course of study since 9 November 2015.

5. The applicant subsequently applied to the Tribunal for a review of the delegate’s decision.  On 30 August 2018 the Tribunal wrote to the applicant and advised her that it had considered the material before it but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to attend a hearing on 22 October 2018.  It also advised the applicant that if she did not attend the hearing and an adjournment was not granted, the Tribunal could make a decision on her case without further notice.

6. On 15 October 2018 the applicant advised the Tribunal that she wished to give oral evidence. However, she did not appear before the Tribunal on the day and at the time she was scheduled to appear. As the Tribunal was satisfied that the applicant had been properly invited in accordance with the Act to attend a hearing, it proceeded pursuant to s.362B of the Act to make a decision on the review without taking any further action to enable the applicant to appear before it.

7. The Tribunal found that the applicant was not enrolled in a registered course and, consequently, had not complied with condition 8202(2) of the Regulations.

8. The Tribunal went on to consider whether a discretionary cancellation of the visa under s.116(1) of the Act was appropriate in the circumstances. Having regard to the matters raised by the applicant on 8 November 2016, as well as the Department’s Procedures Advice Manual (“PAM3”) “General visa cancellation powers”, the Tribunal was satisfied that the seriousness of the applicant’s breach outweighed the grounds for not cancelling her visa. It consequently affirmed the delegate’s decision to cancel the applicant’s visa.

The proceeding in this Court

1. In her initiating application the applicant made the following allegations:

   1.On 1 November 2016 the department sent a Notice of Intention to Consider Cancellation (NOICC) to me and, invited me to comment on a possible breach of condition.  I have provided the reasons for that and delegate cancelled my Student Visa.

   2.I lodged the review application with AAT which subsequently refused by AAT, hence this Application.

   3.I have not breached condition 8202 in relation to the requirement to be enrolled in a registered course, but due to the reasons which I have supplied to the department and the Tribunal did not paid any heeds to the reasons and did not give me a chance to get enrol in another course.

   4.The tribunal passed the decision not to hear my case on the jurisdictional ground.  However, I believe that the decision made is completely false as the decision is subjective based on the officer’s satisfaction while not based on the procedural guidelines to be followed.  I believe that while making the decision on my application, DIBP did not follow a procedural fairness for not giving me another chance to appear before the Tribunal and the tribunal did not even bother to provide me a chance to explain the reasons for not appearing on the day of the hearing.

2. At the hearing of the present interlocutory application the applicant pressed only the third and fourth grounds and made other, related arguments in addresses.

Ground 3:  The Tribunal did not heed the applicant’s explanation

1. Notwithstanding the opening words of the third ground of the application, I accept that the applicant did breach condition 8202 by failing to be enrolled in a registered educational course at all relevant times.  As to why that was the case, the Tribunal relevantly said this:

   The circumstances in which ground of cancellation arose

   20.The applicant has provided evidence that she did not enrol in a course of study in Australia because of her depression due to her marriage breakdown and distress at learning of tensions in her parents’ marriage.

   21.While the Tribunal accepts that these circumstances … would be very distressing to the applicant there is very little detail about how, or if, they incapacitated her to such a degree that she could not enrol in a course of study. There is also no explanation presented why she did not return to Nepal to be with her family there given her emotional state.

   22.The Tribunal gives these circumstances a little weight in the applicant’s favour but considers them outweighed by the seriousness of the applicant’s breach

2. The applicant argued that this reasoning was infected with error but I fail to see the error.  Her concerns regarding the Tribunal’s observation that she had not returned to Nepal were not to the point.  The Tribunal’s reasoning was that such information as it had was insufficient to persuade it that the marriage difficulties to which the applicant had referred were such that she was rendered incapable of enrolling in a course of study.  The applicant did not seek to argue the contrary. 

Ground 4:  Denial of procedural fairness

1. The applicant’s principal contention was that, knowing that it had insufficient information to be persuaded of her argument that she had been prevented from enrolling in a course of study by the circumstances to which she had referred, it had erred by proceeding to a decision in her absence and without giving her a further opportunity to appear before it.

2. This argument suggests that the Tribunal should have assisted the applicant to make out her claims before it, however, it had no such duty.  A related argument was to the effect that there were questions about the fairness of a review in which the applicant did not participate but this seemed to be more directed to perceived unfairness in the outcome of the review rather than to procedural unfairness in its conduct. 

3. The argument that the Tribunal should not have proceeded to a decision in the circumstances implied that there was a miscarriage of discretion in the Tribunal’s decision to do so once it was apparent that the applicant was not going to attend the Tribunal hearing.  However, it was not suggested that there been some error in the exercise of discretion of the sort discussed in House v The King (1936) 55 CLR 499 at 505 or the sort of unreasonableness discussed in Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713. In that case it was said of similar circumstances:

   … The crux of the primary judge’s reasoning concerning the exercise of the power given by s 426A appears to be that the Tribunal should have exercised it in the respondents’ favour because, in a practical sense, it could have done so. This analysis fails to identify an unreasonable decision in the sense explained above. The requirement to be implied in a provision such as s 426A, that a decision-maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it. (at 721 [15] per Kiefel CJ)

   Section 426A is an analogue of s.362B, which empowered the Tribunal to make a decision in this case in the absence of the applicant.

4. In SZVFW Nettle and Gordon JJ said:

   Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence.  That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases.  Where reasons are provided, they will be a focal point for that assessment.  It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.  (at 733 [84]) (Emphasis in original)

5. In this case, the Tribunal expressed its reasons for proceeding to a decision in the applicant’s absence as follows:

   On 15 October 2018 the applicant advised the Tribunal that she wanted to give oral evidence. However, the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

   The applicant did not seek to identify relevant error in that particular reasoning, her complaints being more general in nature. 

6. It was submitted that the Tribunal should have known more about the reasons for the applicant’s absence than it did.  However, no legal error of the sort considered in House v The King or SZVFW was propounded in this connection.

Other matters

1. Aspects of the applicant’s submissions also addressed the conclusions which the Tribunal expressed in relation to the various considerations it took into account when deciding whether to affirm the delegate’s decision.  However, these tended to be focused on the merits of the applicant’s case before the Tribunal, not whether the Tribunal’s decision was affected by jurisdictional error.

2. The applicant also complained that the Tribunal had made the following statement:

   … the Tribunal notes the applicant has not presented to the scheduled Tribunal hearing.  The Tribunal considers this behaviour indicates a lack of cooperation and engagement with the cancellation process and finds it a matter which weighs against the exercise of the Tribunal’s discretion in the applicant’s favour.

   However, her complaint was not focussed on the identification of a legal error in that passage. 

3. The applicant’s task was to persuade the Court at an impressionistic level that she had reasonable prospects, as that term has been discussed or defined in the cases, of succeeding in her application for constitutional writs were the registrar’s orders of 17 December 2018 to be set aside.  She has not done that.

CONCLUSION

1. Although the applicant has satisfied me that she has a satisfactory explanation for her failure to attend the first court date on 17 December 2018, I am not persuaded that her application for constitutional writs is sufficiently strong that it meets the relevant tests and should be allowed to proceed. 

2. Consequently, the application in a case filed on 8 January 2019 will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  16 April 2019