Miglani v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 292
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Miglani v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 292
File number(s): SYG 1262 of 2023
SYG 1332 of 2023Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 March 2024 Catchwords: MIGRATION – Application for reinstatement of an application for judicial review – Temporary Graduate visa – Application dismissed Legislation: Migration Act 1958 (Cth) ss 347, 476
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth) rr 4.13Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth)
Cases cited: Braganza v MIMA (2001) 109 FCR 364
CDD 18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2022] FCA 1283
Miglani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 98
Kirk v MIMA (1998) 87 FCR 99
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 25 March 2024 Date of hearing: 25 March 2024 Place: Melbourne Solicitor for the Applicant: In person Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 1262 of 2023
SYG 1332 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUNNY MIGLANI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.The application for reinstatement is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $2400.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for the reinstatement of Mr Miglani’s application for judicial review of decision of the Administrative Appeals Tribunal to refuse the applicant a Temporary Graduate (Class BC) Subclass 485 visa ( “ the visa”) .
His matter was dismissed by this Court on 6 February 2024 pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 ( Cth) due to his non-appearance when the matter was called for hearing; (see: Miglani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 98 (“the first decision”).
LEGAL PRINCIPLES RELEVANT TO REINSTATEMENT
The following was said by Stewart J in CDD 18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2022] FCA 1283 at [17]:
I respectfully adopt what was said by Davies J in DAE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 79 at [8] with regard to the principles applicable to the exercise of the power under r 16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order that has been entered in the absence of a party:
Generally a court will have regard to three factors in exercising the power and consider whether, on balance, those factors tend for or against the reinstatement. Those factors, as explained by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] are:
(a) whether there was a reasonable excuse for the applicant’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice that might flow to the respondent 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; and
(c) whether the applicant has a reasonable chance of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi‑Cultural and Indigenous Affairs [2005] FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.(Ryan J’s emphasis)
However, as the Full Court observed in [FBS18 v Minister for Home Affairs [2019] FCAFC 196] at [55] and [58], the discretion in r 16.05(2)(a) of the FCC Rules is a broad discretion and there are no statutorily prescribed matters that must be taken into consideration when deciding whether or not it is in the interests of justice to exercise that discretion. Factors commonly cited in case law, such as those listed by Ryan J in MZYEZ, are to be taken as a guide to what may be considered when exercising the discretion in r 16.05 of the FCC Rules, and the statutory discretion should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list.
To the above, the Court would add that the length of the delay between the dismissal of the matter and the application for reinstatement. The longer the delay, the more persuasive the reason needs to be for the Court to exercise its discretion to reinstate a matter.
As to the first matter being the reason why the applicant did not appear at the hearing, at [17] – [20] of the first decision, the Court set out what occurred prior to and at the commencement of the hearing.
The applicant set out a number of reasons why the application should be reinstated in his application filed 20 February 2020. These reasons include that he became suddenly ill prior to the hearing. The Court notes that no medical evidence has been provided to support this assertion. In the absence of medical evidence, the Court does not accept this assertion.
Other assertions include that the applicant ‘must be present in the Court for his full hearing’. No legal basis is relied upon for this assertion. The Court dealt with the matter according to the relevant Court rules when the applicant failed to appear.
The applicant states that the decision made in his absence is ‘biased, legally irrational, racism (and) procedurally unfair’. No particulars are provided to support these assertions. The Court does not accept these assertions in circumstances where the applicant removed himself from the video conference that was taking place and failed to provide any medical evidence that he was so unwell that he was unable to continue with the hearing.
The applicant further asserts that the decision made in his absence is ‘legally unreasonably (sic) illogical, Irrelevant, separate matters”. In the absence of some further particulars, the Court rejects this assertion.
The applicant states that the Court wrongly applied the ‘relocation principle’ in making its decision. The Court is puzzled as to what the applicant is referring to noting that this was a Part 5 reviewable decision, not a Part 7 reviewable decision.
The Courts concludes that the matters raised by the applicant do not properly explain his absence from the hearing when the matter was called. This mitigates against reinstatement.
The Court notes that the respondent properly concedes that no prejudice would flow if the matter were reinstated except as to costs. The Court considers this to be neutral or slightly favouring reinstatement.
This application for reinstatement was made within a relatively short time after the matter was dismissed. This is neutral or slightly favours reinstatement. This then leaves consideration of the substantive grounds of judicial review. If there is no merit in the substantive grounds it would be no purpose in reinstating the matter. In considering the grounds, this should be done at an impressionistic level only.
BACKGROUND
The applicant is a citizen of India. On 1 September 2020, the applicant applied for a Temporary Graduate (Class VC) (subclass 485) visa. Following a request for information relating to his criminal history, in 2022, the applicant provided a National Police Certificate indicating that he had been convicted of two matters on separate occasions.
The first occasion was at Melbourne County Court on 13 October 2021, where the applicant was convicted of two counts of sexual assault and one count of false imprisonment. He was sentenced to a community correction order to expire on 12 April 2024 and to perform 200 hours of community work.
At Horsham Magistrates Court on 9 July 2022, the applicant was convicted of failing to report location of child contact (one count), failing to report employment details (three counts) and failing to report internet user names (five counts). He was sentenced to an aggregate of one month imprisonment.
On 2 September 2022, a charge of contravening a community correction order was found proven and dismissed at the Melbourne County Court.
On 1 June 2023, the applicant was advised that he had been refused his visa as he did not meet Public Interest Criterion 4001, due to his criminal convictions.
The applicant then sought merits review at the Administrative Appeals Tribunal.
THE ADMINISTRATIVE APPEAL TRIBUNALS DECISION
The applicant lodged multiple review applications to the Tribunal on 13 June 2023 in relation to the same matter.
A previous application, lodged on 6 June 2023, used the wrong form. As the correct fee was not paid at the time of this application, the Tribunal found it had no jurisdiction.
The Tribunal noted that it had written to the applicant twice, advising that a reduced fee of 50% was payable, and an Application for a Reduced fee needed to be completed and lodged by 13 June 2023. No application form or fee was received.
On 14 June 2023, an officer of the Tribunal wrote to the applicant inviting him to comment on the view that his application was invalid as he had not paid the application fee before the expiry date of the application. On 25 June 2023, the applicant responded with a completed Reduction fee application and a copy of his bank account statements. However, as the application period had expired, the application could not be valid even if the fee reduction request was granted. Thus, the Tribunal did not have jurisdiction in the matter.
In relation to the 13 June applications, the Tribunal found that pursuant to s 347(1) of the Migration Act 1958 (Cth) (“the Act”), and reg 4.13 of the Migration Regulations 1994 (Cth) (“the Regulations”), the application was required to be accompanied with the prescribed lodgement fee, unless a determination is made that the fee be reduced. The prescribed period for the payment of the fee ended on 13 June 2023. The fee must be paid within the prescribed period;(see: Kirk v MIMA (1998) 87 FCR 99), or if a determination is made under r 4.13(4), within a reasonable time period after that determination; (see: Braganza v MIMA (2001) 109 FCR 364).
While noting that the applicant was in detention, the Tribunal found that in relation to the applications lodged on 13 June 2023, while the correct form was used, the prescribed fee was not paid and no determination had been made (or requested) that the fee be reduced. In these circumstances, the Tribunal found that the review application was not a valid application and the Tribunal had no jurisdiction in the matter.
THE APPLICATION FOR JUDICIAL REVIEW
The applicant has made two applications to the Court seeking judicial review of both of the Tribunal’s decision. The applications are being heard together.
The first, (file SYG1332/2023) seeks an order that the delegate’s decision be quashed. The applicant also seeks a referral for pro-bono legal assistance. The precise grounds of the application are set out at paragraphs 7-13 of the application. It alleges, inter alia, jurisdictional error, legal unreasonableness, procedural unfairness, that the decision is unreasonable or illogical. No particulars are provided in support of these grounds.
The second, (file SYG1262/2023) makes similar claims as set out above but also includes, without particulars, grounds of irrationality and reliance on an irrelevant matter or a separate matter.
THE APPLICANT’S SUBMISSIONS
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his application for judicial review. The applicant told the Court that he takes medication. He did not take his medication ton the morning of the hearing. He claims when he became unwell, officials at the detention centre told him his matter would be adjourned.
As to the lack of a medical certificate, the applicant told the Court that he cannot obtain a medical certificate from the medical providers at the detention centre as they do not provide them, Again, no evidence was provided to support this claim.
As to the failure to pay the required application fee, the applicant stated that in previous matters he had been involved with, the application fee had been waived. Why was it not waived in this case? Further, he did pay $100.00. As he was in detention, he did not have access to any funds to pay the reduced amount over and above the $100 he had already paid. There were no possibilities for him to find the remaining amount even on a 50% reduction to an amount of $1500.00.
Finally, at the close of his response, the applicant claimed he was being discriminated against due to his ethic background. The Court clearly indicated the matter would be considered solely on the basis of the relevant law, and the applicant’s ethnic background would play no part in the consideration of the matter.
THE RESPONDENT’S SUBMISSIONS
The respondent noted that the orders sought by the applicant include quashing the delegate's decision. The Court has no jurisdiction to review a delegate's decision pursuant to s 476(2)(a) and (4)(a) of the Act as it is a 'primary decision'.
To the extent that the applicant is seeking a review of the Tribunal's decisions, the purported grounds of judicial review are meaningless as they contain no particulars. As the Tribunal found it had no jurisdiction, the Court need not consider the substantive application and the purported errors relied upon are misconceived.
In relation to the no jurisdiction findings, it was submitted:
a.the legislative requirements for a valid review application are summarised in the Tribunal's decision. Relevantly, the Tribunal noted that the prescribed period by which the applicant must make his review application, including the payment of the application fee, was 13 June 2023.
b.The Tribunal noted the applicant had lodged multiple review applications, initially using an incorrect form and did not pay the prescribed fee within the prescribed period. Accordingly, the Tribunal found it did not have jurisdiction, as the fee had not been paid.
c.In relation to the second application, the Tribunal noted the applicant had used the correct form to lodge further review applications but also, as the prescribed fee was not paid, no determination on any fee reduction had been made, the review application was not valid and the Tribunal did not have jurisdiction.
In these circumstances, it was submitted that there was no legal error in the Tribunal's processes or conclusions that it did not have jurisdiction to hear the matter.
CONSIDERATION
First, the Court notes the request by the applicant for a referral for pro-bono assistance. The Court has considered whether such a referral should be made. The Court is of the view that, given the nature of the application and the grounds upon which the application is made, legal representation would not result in a different outcome. The applications revolve around the discrete issue of whether the Tribunal had jurisdiction to consider the applicant’s applications for review, in circumstances where the full or even a reduced fee was not paid. The Tribunal found it did not have jurisdiction. That is a matter this Court can properly and fairly consider without the benefit of the applicant being legally represented.
In terms of the orders sought to review the delegate’s decision, the Court has no jurisdiction to consider a primary decision pursuant to s 476 of the Act.
In terms of the purported grounds of judicial review set out above, in so far as they relate to matters of jurisdictional error, they lack any particulars. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal;(see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Pursuant to reg 4.13, a fee for an application for a review by the Tribunal is payable. In this case the application for review related to a Temporary Graduate (class VC) Temporary Graduate (subclass 485) visa. No fee exemption provision exists for this type of visa application.
Pursuant to reg 4.13(4), a Registrar of the Tribunal may reduce the application fee, if satisfied that the fee would likely cause severe financial hardship to the applicant by 50%. No provision exists for the fee to be waived in its entirety.
The fact that an application fee was payable was bought to the applicant’s attention in correspondence of 14 June 23 and he was invited to comment upon the fact that he had not paid the prescribed fee. The applicant was able to speak to a Tribunal officer who explained the importance of paying the fee within the relevant time period.
The Court is satisfied that the Tribunal followed all required procedural fairness steps prior to making its decision. The decision arrived at by the Tribunal is entirely unexceptional and free from error. In circumstances where the applicant did not pay the required fee within the specified time period, that is by 13 June 2023, the Tribunal had no alternative but to correctly find that it did not have valid applications before it and thus no jurisdiction.
The various claims of jurisdictional error raised by the applicant, fail to grapple with the dispositive issue in the matter, being that as the applicant had not paid the prescribed fee, the Tribunal correctly found it has no jurisdiction to hear the application.
Even at an impressionistic level the proposed grounds of judicial review in both applications have no merit. Further, the Court is not satisfied as to the reasons why the applicant left the hearing on 6 February 2020.
As the grounds of judicial review have no merit, even at an impressionistic level, there would be no point in reinstating the application.
DISPOSITION
The application for reinstatement is dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 March 2024
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