MEHTA v Minister for Immigration

[2016] FCCA 748

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHTA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 748

Catchwords:
MIGRATION – Judicial review – reinstatement application.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Regulations 1994 (Cth), cl.572.227 of schedule 2

First Applicant: PRABHJOT MEHTA

Second Applicant: NAVDEEP ARORA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1160 of 2015

Judgment of: Judge Harland

Hearing date: 29 March 2016

Date of Last Submission: 29 March 2016

Delivered at: Melbourne

Delivered on: 29 March 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application for reinstatement filed on 17 September 2015 be dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $963.00.

3. The title of the proceeding be amended so that the name of the second respondent is the ‘Administrative Appeals Tribunal’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1160 of 2015

PRABHJOT MEHTA

First Applicant

NAVDEEP ARORA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the applicant for reinstatement of her application for judicial review. The matter was listed before Registrar Burns on 16 September 2015 for the first return date of the applicant’s judicial review application. The Registrar dismissed the application for non-appearance by the applicant pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The Registrar also made an order for costs in favour of the respondent.

3. The applicant filed an application in a case the following day on 17 September 2015, seeking that the application be reinstated. The Court has the power to reinstate an application that has been dismissed for non-appearance pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules. The Court has a discretion as to whether or not to reinstate an application and there are broadly two factors that the Court considers when considering whether or not to reinstate an application.

4. The first consideration is whether or not there has been an adequate explanation for the non-appearance.  The applicant deposes in her affidavit in support of the application in a case that her child was ill on the day of the hearing, that she was at her friend’s place and then went to a doctor that day because of her baby’s ill-health.  She annexes a medical certificate which is of little assistance in that it merely says that on 17 September the doctor examined Navdeep Arora and notes that “baby sick yesterday” and says that Navdeep Arora was unfit for work from 16 September 2015.

5. Mr Day points out that the affidavit and the medical certificate are inconsistent as in the affidavit the applicant states that the daughter was taken to the doctor on 16 September.  In any event, the certificate does not identify in any detail what the doctor’s opinion was as to the baby’s ill-health and there is no explanation as to why one of the parents could not have attended Court.  I do note, however, that the applicant did file the application in a case the next day so there was no delay in bringing the application for reinstatement. 

6. The important issue, in my view, in this case is whether or not the applicant has an arguable case for relief.  The application for judicial review provides some background history, noting that the applicant came to Australia on a temporary resident visa and then applied for a student (subclass 572) visa and that her visa application was refused on the basis that she was not a genuine student. 

7. The applicant says she provided evidence to show that she had a strong desire to study but the Department still refused her application.  She then says that she filed a review to the Tribunal and that she was not able to attend the hearing due to non-favourable circumstances and a decision was made against her.  She says she is not satisfied with the decision and believes the Tribunal made an error.  The application for judicial review does not identify any jurisdictional error by the Tribunal.

8. The applicant appears in person before me today and was not able to identify an error in the Tribunal’s decision.  Rather, she states that she wants to study and wants to study commercial cooking.  She said with respect to the reason for the non-appearance, that the baby had been crying all night and that it had escaped her mind that they needed to attend court that day.  There is no suggestion by the applicant that the Tribunal did not give her an opportunity to attend the hearing and the applicant did refer to her being pregnant at the time.

9. What is clear from the Tribunal decision is that the Tribunal rescheduled the hearing at the applicant’s request after she provided evidence that she was due to give birth on 13 March 2015 and her doctor had advised that the hearing should be postponed.  The Tribunal decision records that the Tribunal wrote to the applicants by email and invited the applicants to attend the hearing on 24 April 2015.  The Tribunal decision also records that the applicants were sent SMS texts to their mobile phone on 17 April and 23 April 2016 reminding them about the hearing and that no response was received to the Tribunal’s invitation letter or the text reminders.

10. Page 123 of the Court Book (CB) is an email from the applicant to the Tribunal and CB139 is an email from the Tribunal to the applicant.  The email addresses are identical, therefore I am satisfied that the Tribunal gave proper invitation to the applicant to attend the hearing.  The Tribunal sets out the requirements for the applicant to meet the visa requirements and because the applicant made the application in Australia, clause 572.227 of schedule 2 of the Migration Regulations 1994 (Cth) applies. That sets out a very high bar for an applicant to pass because it is necessary for the applicant to establish exceptional reasons for granting that visa.  The Tribunal member discusses the applicant’s reasons for seeking the visa and makes a finding that those reasons are not exceptional.  Certainly, on a reading of the material, that finding was open to the Tribunal and there is no jurisdictional error disclosed in the Tribunal’s decision. 

11. In my view, the applicant’s reason for not attending the hearing is inadequate, although it is in her favour that she filed the application the day after the directions hearing. Given that she raises no arguable case for relief, even if I was to find that there was an adequate explanation, there would be no point in reinstating her application because it has no prospect of success. 

12. The Minister seeks costs in the sum of $963 which is well below the amount allowed pursuant to the Federal Circuit Court scale of $6,825.  There is no reason to depart from the usual order made in cases of this type and I will order that the applicant pay costs in the sum of $963.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  8 April 2016