Maharjan v Minister for Home Affairs

[2019] FCA 1449

FEDERAL COURT OF AUSTRALIA

Maharjan v Minister for Home Affairs [2019] FCA 1449

Appeal from:

Application for extension of time and leave to appeal: Maharjan v Minister for Home Affairs & Anor [2019] FCCA 943

File number:

NSD 475 of 2019

Judge:

NICHOLAS J

Date of judgment:

12 August 2019

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)

Migration Act 1958 (Cth) s 116(1)(b)

Migration Regulations 1994 (Cth) Sch 8

Cases cited:

Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713

Date of hearing:

12 August 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

17

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

K Evans of Sparke Helmore

Counsel for the Second Respondent:

The second respondent submitted save as to costs

ORDERS

NSD 475 of 2019

BETWEEN:

RUJANI MAHARJAN

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	12 AUGUST 2019

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal against the judgment of the Federal Circuit Court of Australia of 26 February 2019 is dismissed.

2.The applicant is to pay the first respondent’s costs of the said application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

1. Before me is an application by the applicant seeking an order extending the time within which she may seek leave to appeal a judgment of the Federal Circuit Court of Australia made on 26 February 2019. By that judgment the primary judge dismissed an application by the applicant seeking to set aside a previous order pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) dismissing an application for judicial review by the applicant made on account of the applicant’s failure to attend a hearing before the Registrar on 17 December 2018.

2. The primary judge’s judgment was an interlocutory judgment from which leave to appeal is required.  The time within which the applicant was entitled to apply for leave to appeal was 14 days from the date of the primary judge’s judgment.  The application now before me was not filed until some 16 days later. 

3. The applicant, a citizen of Nepal, was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 25 September 2015. The visa was subject to condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) which required the applicant to remain enrolled in a registered course.

4. On 16 November 2016, a delegate of the Minister cancelled the applicant’s visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”). The delegate found that the applicant had not been enrolled in a registered course of study since 9 November 2015.

5. The applicant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”) but failed to attend the hearing scheduled to take place before it on 22 October 2018. The Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it pursuant to s 362B(1A)(a) of the Act.

6. The Tribunal found that the applicant had not complied with condition 8202(2) and proceeded to consider whether to exercise its discretion to affirm the decision to cancel the applicant’s visa.  The Tribunal had regard to the applicant’s explanation for her failure to maintain her enrolment but was satisfied that the seriousness of the breach outweighed the reasons in favour of not cancelling her visa and affirmed the decision to cancel the visa.

7. By her application filed on 24 November 2018, the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The application was listed for a first court date on 17 December 2018, which the applicant failed to attend. The application was dismissed by a Registrar pursuant to r 13.03C(1)(c) of the Rules.

8. On 8 January 2019, the applicant filed an application seeking to have the orders of 17 December 2018 set aside.  The application was heard by the primary judge on 25 February 2019.

9. The primary judge identified the relevant principles to be considered in determining whether to reinstate the matter.

10. The primary judge accepted that the applicant had provided a satisfactory explanation for her failure to attend Court on 17 December 2018.  His Honour then turned to consider whether the application for judicial review had any reasonable prospects of success.

11. The primary judge set out the grounds in the applicant’s application filed on 24 November 2018.  Only the third and fourth proposed grounds were pressed by the applicant, but other arguments were also made by the applicant’s Counsel in oral address.

12. The primary judge was not satisfied that the application for judicial review had any reasonable prospects of success. 

13. The sole proposed ground in the draft notice of appeal contends that the primary judge failed to find that the Tribunal did not consider evidence that corroborated her claims.  The ground is supported by five particulars.  Particulars one to four allege that the primary judge and/or Tribunal failed to consider: (i) the applicant’s “exceptional circumstances” which were “beyond [her] control”; (ii) that the applicant suffered from psychological injuries; (iii) her “current and past personal circumstances”; and (iv) the evidence that had been submitted.  The fifth particular is an assertion that the primary judge’s decision noted that the applicant’s counsel was not prepared and contends that he should have given her an opportunity to prepare.

14. None of the particulars address the primary judge’s reasons for not exercising his Honour’s discretion to set aside the orders made on 17 December 2018.  

15. It is not apparent that the primary judge made any arguable error in his assessment of the material before him.  It was not suggested before the primary judge (or in the application for judicial review) that the applicant suffered any psychological injury.  His Honour’s reasons for decision make no reference to psychological injury but that cannot amount to an error in circumstances where that matter was not raised before his Honour for his consideration.  Nor is there any basis to suppose that either the Tribunal or the primary judge did not consider the evidence that was before them. 

16. It is apparent that his Honour gave quite detailed consideration to the grounds of review raised by the applicant in both her application for judicial review (to the extent they were pressed) and the oral submissions made on her behalf.  In particular, his Honour gave detailed consideration to the applicant’s contention that the Tribunal denied her procedural fairness by deciding to proceed to determine her application for merits review in her absence which his Honour correctly understood to involve a challenge to the reasonableness of that decision.  His Honour was not satisfied that the Tribunal’s decision was unreasonable in the relevant sense (citing Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [15] per Kiefel CJ, at [84] per Nettle and Gordon JJ). His Honour was of the view that the applicant had failed to identify any legal error on the Tribunal’s part in determining to proceed in her absence. I agree with his Honour’s conclusion on this issue.

17. In the circumstances, I am not satisfied that the applicant has demonstrated any arguable error on the part of the primary judge in refusing her application under r 13.03C(1)(c) of the Rules. In the result, I am satisfied that the present application should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:       3 September 2019