MASOOD v Minister for Home Affairs

[2018] FCCA 1545

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASOOD v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1545

Catchwords:
MIGRATION – Administrative Appeals Tribunal – non-appearance before the Tribunal – whether there was a reasonable exercise of the Tribunal’s power under s 362B(1A)(b) of the Act – adjournment application refused – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.362B, 476, 477

Applicant: AHMED MASOOD

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 336 of 2018

Judgment of: Judge Street

Hearing date: 13 June 2018

Date of Last Submission: 13 June 2018

Delivered at: Sydney

Delivered on: 13 June 2018

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The oral application for an adjournment is refused.

2. The application to amend is refused.

3. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

4. The applicant pay the first respondent’s costs fixed in the amount of $2,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 336 of 2018

AHMED MASOOD

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 January 2018, affirming the decision of the delegate to dismiss the application.

2. The applicant is a citizen of Pakistan and applied for a Student (Temporary) (Class TU) (subclass 500) visa. On 26 October 2016, a delegate found the applicant failed to meet the criteria for the grant of the visa on the ground the applicant was not a genuine temporary entrant. 

The Tribunal

1. On 10 November 2016, the applicant applied for a review and provided an email address in that application for review.

2. By letter dated 23 November 2017, the applicant was invited to attend a hearing on 20 December 2017. Two SMS messages were sent to the applicant’s mobile phone identified in that application for review, to remind him of the scheduled hearing. The applicant failed to appear at the hearing and failed to provide any explanation to the Tribunal as to why he had failed to appear. The Tribunal accordingly dismissed the matter under s 362B(1A)(b) of the Act.

3. On 21 December 2017, the applicant was notified of the decision by email, and the applicant did not seek reinstatement of the proceedings or otherwise contact the Tribunal. Accordingly, the Tribunal on 15 January 2018, pursuant to s 362B(1E) of the Act confirmed the dismissal of the application.

Before this Court

1. These proceedings were commenced on 9 February 2018, and the grounds in the application refer to the applicant’s affidavit, in which the applicant said that he could not attend the Tribunal as he was unwell. No other ground is identified in the application. 

2. The proceedings were listed today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing. The applicant confirmed that he understood the hearing as explained by the Court.

Adjournment application raised from the bar table

1. From the bar table, the applicant sought an adjournment on the basis that he wanted to obtain further medical certificates. This is a case where a Registrar had made orders giving the applicant an opportunity to put on affidavit evidence and where no such material was put on. The applicant explained that he was misguided by information provided him by a migration agent.

2. The applicant sought to tender in Court a medical certificate, which he was permitted to do so dated 4 December 2017. That is a certificate referring to the applicant being unfit for work and study from 4 December 2017 to 15 December 2017, and refers to an examination on 4 December 2017. The certificate in no way explains why the applicant was unable to contact the Tribunal on 20 December 2017, being the date of the hearing, and does not support the contention that the applicant was unfit or unwell on 20 December 2017, being the date of the hearing. The certificate also does not explain why the applicant did not seek reinstatement of the proceedings when notified of the dismissal and informed of the opportunity to seek reinstatement by email dated 21 December 2017.

3. The applicant then indicated from the bar table that he wished to have more time so that he could obtain a lawyer to assist him. The adjournment was opposed by the first respondent. The applicant has had ample opportunity to obtain medical evidence and/or to have obtained legal representation if he was able to do so.

4. The Court also is of the view that there are no merits in the application.  Taking into account the interests of the administration of justice, the Court is not satisfied an adjournment is warranted. It is for these reasons that the adjournment was refused.

Application to amend

1. The applicant also sought to challenge in the course of the hearing, the notification of the dismissal that occurred and was confirmed by the Tribunal on 15 January 2018 in an amended application seeking extension of time. The document was handed up in that regard by the applicant. The document handed up by the applicant identified no grounds of relevant error. As the application identifies no grounds of relevant error, it is not appropriate to grant leave to amend the application.

2. Further, to the extent that it is suggested that the applicant was required to include the decision the subject of confirmation in the application for review, that proposition is misguided. The very nature of the confirmation decision on 15 January 2018 enlivens consideration of the earlier decision dismissing the application. There is no need to include such a decision, being an interlocutory determination of an application under s 477 of the Act. I do not agree with the authority that was provided in that regard suggesting the contrary.

Applicant’s explanation for non-attendance

1. From the bar table, the applicant maintained that he was unwell and that that was the reason why he did not attend the hearing. The applicant’s explanation for being unwell is not a satisfactory explanation. The medical certificate does not support the applicant being unwell on 20 December 2017. Even if the applicant did have a medical certificate of similar form as to being unable to work, it does not explain why the applicant did not contact the Tribunal to tell the Tribunal he was unable to attend. The medical certificate does not explain why the applicant did not seek reinstatement of the proceedings when informed of the dismissal, or why the applicant did not respond to the SMS texts that were sent to the applicant. The decision of the Tribunal on 16 January 2018 to confirm the dismissal cannot be said to lack an evident and intelligible justification. The decision by the Tribunal was a reasonable exercise of the Tribunal’s powers under s 362B(1E). Nothing said by the applicant from the bar table identified any arguable case of jurisdiction error.

The ground in the application and the supporting affidavit

1. No arguable case of jurisdictional error was identified in the application, which merely referred in the grounds of application to “please consider affidavit attached to the application form.” The applicant’s affidavit also made reference to a general assertion that the Tribunal’s decision was unfair. The Tribunal’s decision refers to the process that occurred in relation to the applicant’s notification of the dismissal on 20 December 2017 and the 14 days to reinstate the proceedings. The dismissal of 20 December 2017 referred to the invitation to attend the hearing under s 360 of the Act that the applicant was sent in accordance with the statutory regime to the applicant’s correct email address and that the applicant was reminded by SMS texts of the hearing identified in the Tribunal’s reasons of 20 December 2017 in determining to dismiss the application, The Tribunal’s reasons delivered on 20 December 2017 equally cannot be said to lack an evident and intelligible justification, and were a reasonable exercise of the power under s 362B(1A)(b) of the Act.

2. The Court does not regard it as necessary in the context of this case to refer to the decisions in the Privy Council that support the proposition that interlocutory determinations are included in the final determination, be it an administrative body, or be it a court. I am satisfied that no arguable case of jurisdictional error is disclosed by the application. I am satisfied that no arguable case of jurisdictional error has been identified by the applicant. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules. 

3. The application is dismissed under r 44.12 of the Federal Circuit Court Rules. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 October 2018