Muzammil v Minister for Home Affairs
[2019] FCCA 1564
•13 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUZAMMIL v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1564 |
| Catchwords: MIGRATION – Student visa – failure to attend the directions hearing – application for judicial review dismissed – reinstatement – applicable principles – explanation for failure to appear open to scrutiny – whether grounds of review arguable – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 |
| Applicant: | MOHAMMED MUZAMMIL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1045 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 3 June 2019 |
| Date of Last Submission: | 3 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for reinstatement of the proceeding be dismissed.
The applicant pay the costs of the first respondent fixed at $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1045 of 2018
| MOHAMMED MUZAMMIL |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 19 April 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 29 March 2018 affirming a decision of a delegate of the first respondent (Minister) to refuse an application for a Student (Temporary) (Class TU) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act).
On 15 May 2019, the application was dismissed by order of the court. The applicant now seeks to reinstate his application. The application for reinstatement should be refused. In summary, I consider that the applicant’s explanation for his non-appearance is unsatisfactory and that his grounds of review are not, or not sufficiently, arguable as to warrant the exercise of discretion in favour of relief.
Background
On 3 May 2008, the applicant, an Indian national aged 33 years, was granted a Student visa while offshore. He has held a Student or bridging visa for some 118 months. By his visa application, the applicant recorded that he is married.
On 28 October 2015, the applicant applied for the visa on the basis of his enrolment to undertake a Certificate IV in Accounting and a Diploma of Accounting. As appears below, the applicant has been enrolled in and cancelled his enrolment in a large number of courses.
On 5 September 2016, a delegate of the Minister made the decision to refuse the visa application concluding that it was not satisfied the applicant genuinely intended a temporary stay in Australia, stating:
Overall given your lack of academic progress, your study history, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.
On 22 September 2016, the applicant lodged an application for review by the Tribunal. The application was lodged by the applicant’s migration agent who provided an email address. Thereafter, the Tribunal and the migration agent communicated by email in relation to the application.
On 3 January 2018, the Tribunal invited the applicant to attend a hearing scheduled for 29 January 2018 to present evidence and arguments relating to the issues arising in relation to the delegate’s decision.
On 14 January 2018, the applicant sent his migration agent an email stating that he was in India and asked that he call him. Later, on 17 January 2018, the applicant sent his migration agent an email stating that his grandmother, who had suffered heart disease for 7 months, had died. He requested a two month adjournment of the hearing. The tenor of his email suggested that the grandmother’s death had been recent. On the same date, the applicant’s migration agent sent an email to the Tribunal to which he attached the email chain above. Case Notes included in the court book indicate that on 18 January 2018 the applicant’s migration agent contacted the Tribunal to confirm that it had received his email.
On 22 January 2018, the Tribunal notified the applicant’s migration agent that the hearing had been postponed. On 14 February 2018, the Tribunal notified the applicant’s migration agent that the hearing had been rescheduled for 14 March 2018.
At no stage did the applicant or his migration agent complete or return a Response to the Hearing invitation. Neither did the applicant or his migration agent file any submissions or attend the hearing.
On 14 March 2018, the Tribunal:
a)made a decision to dismiss the application under par 362B(1A)(b) of the Act by reason of the applicant’s failure to appear at the Tribunal hearing;
b)prepared a non-appearance decision in which it stated its decision to dismiss the application without further consideration;
c)sent an email to the applicant’s migration agent notifying him of the decision to dismiss the application: s 362C(5); and
d)attached a copy of its statement of decision together with an information sheet respecting the dismissal of the application, which contained advice that the applicant might apply for reinstatement of the application but that he must do so within 14 days.
On the same date, the applicant’s migration agent sent an email to the applicant that enquired as to when he was returning to Australia and advising that “We have to re-apply for the MRT application again by 28th march 2018 as you did not attend the hearing.” This email may suggest that the agent had not been retained to attend the hearing scheduled for 14 March 2018. The materials in the court book do not reveal what response, if any, the applicant gave to that email.
The applicant did not apply for reinstatement of the application within the 14 day period prescribed by s 362B(1B) of the Act.
On 3 April 2018, the Tribunal confirmed the decision to dismiss the application. The Tribunal notified the applicant’s migration agent of that decision by email on that date and furnished a copy of its decision which relevantly stated at [3]-[4]:
(3)The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s. 362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and the failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
(4)As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. . .
On Sunday, 15 April 2018, the applicant’s migration agent sent an email to the Tribunal advising that he had received a request from the applicant asking that his application be reinstated. The applicant’s request was not included in the materials comprising the court book. However, a Case Note included in the court book indicates that on 16 April 2018, the agent made a telephone call to the Tribunal seeking reinstatement on the apparent basis that reinstatement might be sought within 14 days from the Tribunal’s communication on 3 April 2018. The Tribunal advised the agent that the opportunity to seek reinstatement had passed: see s 362C(4). The applicant’s migration agent then sought advice in relation to the calculation of the 35 day period within which an application for judicial review might be sought.
On 17 April 2018, the Tribunal sent an email to the applicant’s migration agent advising that it had no power to reinstate the application.
Procedural history
On 19 April 2018, the applicant filed an application for judicial review of the Tribunal’s decision. By his application, the applicant indicated that he did not require the assistance of an interpreter.
The applicant filed an affidavit in support of the application in which he deposed that the information in his affidavit was true, but which contained no further evidence and merely exhibited a copy of the Tribunal’s statement of reasons, its letter dated 3 April 2018 and its notice containing information about the dismissal of applications including that the applicant had had a right to seek reinstatement of the application within 14 days of the decision.
By a Response filed on 31 May 2018, the Minister opposed the making of the orders sought in the application on the grounds that the application did not establish any jurisdictional error in the decision of the Tribunal.
On 15 May 2018, the application was dismissed pursuant to r 13.03C(1)(c) of the Federal Court Rules 2001 by reason of the applicant’s failure to appear at that hearing.
On 23 May 2018, the applicant filed an Application in a Case seeking reinstatement of the application. His application stated that:
I was not attend the hearing because I was not well and I request to reopen my case pursuant to rule 16.05(2)(a).
On the same date the applicant affirmed an affidavit in which he deposed:
I did not attend the hearing because I was not well, going through some breathing and heart palpitation problem so I request to reopen my case. I have attach some medical certificates like (1) ECG and (2) bills and I am also attaching the order of 15 May 2019.
Many of the documents exhibited to the affidavit were duplicates.
An ECG report dated 18 April 2019 was exhibited to the affidavit. The section of the report addressing Interpretation states as follows:
007 Sinus tachycardia
274 Abnormal repolarisation, possibly non-specific
282 QRS within normal limits
Contrary to the applicant’s affidavit, there were no medical certificates annexed to the affidavit. However, a series of invoices indicate that the applicant had attended a medical general practice on 12, 18 and 29 April 2019 and again on 7 and 19 May 2019. Those invoices suggested that the applicant had also undergone a further ECG on 19 May 2019. A report for this ECG test was not attached to the applicant’s affidavit.
Although the applicant had filed his application for reinstatement, neither the application nor the supporting affidavit were served. On Friday, 31 May 2019, the Minister’s lawyers discovered the fact of the application by means of the Court portal and realised the application was returnable on 3 June 2019. In those circumstances, on 31 May 2019, they prepared an answering affidavit and submissions, each of which were served on the applicant that day.
The affidavit prepared on behalf of the Minister revealed a number of other facts that had not been disclosed by the applicant’s affidavit. In making that observation I recognise that the applicant has been self-represented since the Tribunal dismissed his application. However, the Minister’s affidavit revealed the following further matters:
a)on 31 May 2018, the Minister’s lawyers had written to the applicant advising that if he did not appear at the directions hearing on 15 May 2019, an application would be made for the matter to be dismissed;
b)on 24 April 2019, the applicant contacted the Minister’s lawyers by telephone and requested an adjournment for six months. In response, those lawyers sent an email to the applicant and requested that he provide the adjournment request in writing;
c)on 29 April 2019, the applicant made a written request for an adjournment. His email attached copies of an ECG report and a letter from the emergency department of a hospital recording a diagnosis of acute sinusitis and anxiety which required attention;
d)later on 29 April 2019, the applicant sent a further email to the Minister’s lawyers stating that he was to visit India for treatment and would depart on 1 May 2019;
e)on 30 April 2019, the Minister’s lawyers emailed the applicant informing him that the adjournment was opposed and instead proposed to send the applicant minutes of order for that directions hearing;
f)later on 30 April 2019, the applicant called the Minister’s lawyers requesting that he not be sent any minutes of order.
Attached to the Minister’s affidavit are a number of exhibits which confirmed the matters that were deposed to. From those documents, I note that the Minister’s lawyers had requested the applicant to furnish any medical evidence supporting the request for an adjournment and that the applicant had responded by supplying a copy of the 18 April 2019 ECG report together with a poor photocopy of a medical report.
In particular, the Minister’s affidavit further revealed that the applicant had later telephoned those lawyers advising that he had decided to attend the hearing on 15 May 2019.
The date of the directions hearing was stated on the face of the application. In addition to the initial advice sent on 31 May 2018, the Minister’s lawyers also sent emails to the applicant on 24 April 2019 and 30 April 2019 reminding him of the date of the directions hearing.
Before me the applicant did not seek to contest the content of the matters addressed by the Minister’s affidavit. Instead, he produced a number of further documents which I have considered, including:
a)a clean copy of a medical report from Western Health dated April 26, 2019 which noted that he had minimal sinus congestion but that his anxiety was a significant factor that required attention and for which he had been prescribed medication and further management;
b)an ECG report dated 19 May 2019 which stated as follows:
004 Normal sinus rhythm
275 Abnormal repolarisation, possible coronary ischaemia
282 QRS within normal limits
c)a blood analysis report which I cannot interpret;
d)a further report from Western Health dated May 24, 2019 that stated the applicant had attended for review and reported intermittent chest pain which presented for 2-3 seconds duration and then abated suddenly. In the history that was taken from the applicant he had reported no palpitations. The report further stated that although he had been recommended to attend his GP for further management, he had not done so. Following physical inspection the report concluded that the applicant’s chest pain was more likely associated with anxiety.
Several of these documents post-dated the directions hearing.
After those documents had been supplied, the applicant then produced a death certificate said to relate to his grandmother and which recorded that she died on 9 October 2018. I note that this event had occurred about four months before the scheduled Tribunal hearing.
Before me the applicant then volunteered he had sought legal advice in January 2019 and again in March 2019, adding that although the lawyers required that funds be deposited to their trust account in advance of a hearing, he had not had sufficient funds at that time but suggested that he now held those funds. As a model litigant, the Minister properly treated this submission as a request for an adjournment.
The Minister opposed the applications for an adjournment and for reinstatement on the basis of all the evidence that had been filed and that the applicant had not provided a reasonable excuse for his failure to attend the directions hearing and also because the substantive application had no reasonable prospects of success to justify reinstatement.
Applicable principles
Given the course of events above, it is necessary to consider the principles applicable to the grant or refusal of an application for an adjournment and those governing an application for reinstatement. The powers to adjourn and to reinstate a proceeding are discretionary powers which relate to matters of practice and procedure.
The principles applicable to the determination whether of or not to grant an adjournment were comprehensively considered in EPH17 v Minister for Immigration and Border Protection.[1] Notwithstanding the analysis undertaken by Kenny J in that case concerned the question of appeal from refusal of an adjournment, the following statements of principle can be distilled from that decision (citations omitted):
a)an adjournment is a means whereby prejudice to a party – especially an unrepresented party – may be avoided;
b)contextually, the courts are not required to ensure that a party takes the best advantage of the opportunity to present his or her case and each case will depend upon the individual circumstances;
c)the withdrawal of legal representation shortly before a hearing does not mean that a court will always grant an adjournment in the proper exercise of its discretion;
d)the discretion to grant or refuse the application must be exercised judicially;
e)a refusal to grant an adjournment can constitute a failure to give a party an adequate opportunity to present his or her case, and can constitute procedural unfairness or may be legally unreasonable where it lacks an intelligible justification;
f)such error may be demonstrated in circumstances where no formal application for an adjournment has been made and upon matters which were unknown to the court.
Her Honour emphasised that the duty of the court is to ensure that a party is given a reasonable opportunity to present his or her case.
[1] [2019] FCA 824, [16]-[24].
Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c), Federal Circuit Court Rules 2001.
The court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of court is cast in discretionary terms, the exercise of such power is not automatic but calls for the exercise of that discretion: cf Gallo v Dawson.[2] Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer.[3] The waste of scarce court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[4]
[2] (1990) 93 ALR 479, 480 (McHugh J).
[3] (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J).
[4] [2016] FCA 1392, [11] (Logan J).
The principles that govern the court’s exercise of power under r 16.05(2)(a) in relation to an application for reinstatement of a matter after dismissal in the absence of an applicant were considered in MZYEZ v Minister for Immigration and Citizenship. Ryan J stated:[5]
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party 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;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs:[6]
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 (emphasis added)[7]
[5] [2010] FCA 530, [7].
[6] (2005) FCA 1066, [18].
[7]Applied also by Perry J in BEN15 v Minister for Immigration and Border Protection [2016] FCA 211 at [17].
More recently, in CAL15 v Minister for Immigration and Border Protection,[8] Mortimer J restated the applicable test in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
See MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs;[9] MZYEZ v Minister for Immigration and Citizenship;[10] BTR15 v Minister for Immigration and Citizenship;[11] AAI15 v Minister for Immigration and Border Protection.[12]
[8] [2016] FCA 1344, [4].
[9] [2005] FCA 1066, [18] (North J).
[10] [2010] FCA 530, [7] (Ryan J).
[11] [2016] FCA 892, [7] (Edelman J).
Applicable threshold
The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15 at [5]. Rather, on an application for reinstatement, the threshold which is applicable to a consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[13] There, Mortimer J stated at [6]:
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)
More recently, in Savrimootoo v Minister for Immigration and Border Protection,[14] Mortimer J referred to CAL15 and affirmed that the discretion to reinstate a proceeding was a broad one.
[13] [2015] FCA 1391, [62]
[14] [2018] FCA 1167, [47].
The assessment of an application for reinstatement, which requires the court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[15]; cf BAL17 v Minister for Immigration and Border Protection.[16]
[15] (1936) 55 CLR 499, 504-505
[16] [2018] FCA 792, [10] (Bromwich J).
Reasonable excuse for non-attendance
The Minister submitted that the application for reinstatement should be dismissed as the applicant had not provided a reasonable excuse for his failure to attend the directions hearing. It was no part of the applicant’s case that he was not on notice of the directions hearing date and time.
Whether a party has been given a reasonable opportunity to present his or her case is a question of fact. The present application was commenced in 19 April 2018 and on that date the directions hearing was set down for 15 May 2019. The applicant had been given several reminders of the date of that hearing.
I have set out the history of the matter in some detail. I have done so because a number of features emerge from that history, including the following: (1) the applicant has held Student or bridging visas since 2008; (2) the applicant has sought to vacate the hearings before the Tribunal and this court; (3) in seeking a postponement of the Tribunal hearing, the applicant relied upon his grandmother’s death (who had died some four months before the scheduled hearing); (4) his email suggested that his grandmother had died after suffering heart disease for seven months, perhaps creating the impression that her death had been recent; (5) when the Tribunal hearing was rescheduled, neither the applicant nor his migration agent filed any submissions or appeared; (6) on the date the Tribunal dismissed the application for non-appearance, his agent sent him an email advising that an application for reinstatement had to be made within 14 days; (7) no such application was made; (8) on several dates, the Minister’s lawyers reminded the applicant of the directions hearing on 15 May 2019; (9) while the applicant’s grounds for seeking reinstatement and his affidavit relied upon his illness as the basis for his non-attendance, he did not act on the advice given in April 2019 to obtain follow up treatment; (10) on closer scrutiny the applicant had in fact communicated with the Minister’s lawyers advising that: (i) he was travelling to India; (ii) he did not want to be sent short minutes of proposed consent orders; (iii) he had decided to attend the directions hearing on 15 May 2019. Despite his pattern of communicating with the Minister’s lawyers throughout April – May 2019, he did not contact them further seeking to agree on minutes of orders or to advise that he had again changed his mind and would not attend the hearing.
In this case, although the delay in seeking reinstatement was short, in my opinion, no adequate explanation for the applicant’s non-appearance has been proffered. Further, the combined effect of the matters identified above undermined the credibility of the explanation contained in the applicant’s affidavit. In all the circumstances, the applicant’s affidavit is deficient in explaining his absence from the directions hearing. The applicant has not provided a medical certificate evidencing that he was unable to attend the directions hearing on 15 May 2019. No such certificate has been provided despite his having attended doctors on several occasions between 18 April and 24 May 2019.[17] His failure to do so is to be weighed in the face of the evidence that he had communicated with the Minister his wish not to be sent proposed consent minutes and his advice that he would in fact attend the hearing.
[17] CfSingh v Minister for Immigration and Border Protection [2016] FCA 108 at [2].
Those matters notwithstanding, I do take into account the applicant’s evidence respecting his illness and the various medical documents that were produced progressively in the course of the hearing.
Prejudice
While the Minister accepted that there would not be any prejudice to the Minister in responding to the application if the court were to reinstate the proceeding, the absence of prejudice is not of itself sufficient or capable of supporting a conclusion that in all the circumstances an order for reinstatement should be made. The mere absence of prejudice will not of itself justify the exercise of the discretion to reinstate a proceeding.[18] There is a significant public interest in the finality of administrative decisions.[19]
[18] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349 per Wilcox J.
[19]Cf Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491, [15]-[17] (McHugh J).
Reasonably arguable case
As the applicant was self-represented before me, I have re-examined the court book, his application for review and the Tribunal’s reasons. The immediate question on the present application is whether the applicant’s grounds of review are ‘arguable’ in the requisite sense.
The Minister submitted that the substantive application had no reasonable prospects of success so as to justify reinstatement. The ground of review stated that: “I have not attend the hearing because I was overseas for some family reason.” This ground of review was expressed at such a level of generality that the court was left to discern the existence of jurisdictional error. In WZAVW v Minister for Immigration and Border Protection[20] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed.
Notwithstanding those principles, it is appropriate to consider the Reasons and ground of review and to assess whether it is arguable.
[20][2016] FCA 760, [35] (citations omitted); MZARG v Minister for Immigration and Border Protection [2018] FCA 624, [25], (McKerracher J).
As model litigant the Minister submitted that the grounds of review may be understood as raising unparticularised complaints of jurisdictional error, denial of procedural fairness and unfair dismissal.
The applicant was validly invited to the hearing by the Tribunal.[21] The invitation letters complied with the requirements in s 360A: they gave notice of the day, time and place of the hearing;[22] they were transmitted by email to the email address provided to the Tribunal by the applicant in connection with the review;[23] they complied with the prescribed notice period;[24] and they contained a statement to the effect of s 362B of the Act.[25]
[21] Act, s 360.
[22] Act, s 360A(1).
[23] Act, s 360A(2), s 379A(5) and s 379G, to the migration agent’s nominated email address.
[24]Act, s 360A(4) and reg 4.21. In accordance with s 379A(5), the applicant was deemed to have received the invitation letters on 3 January 2018 and 14 February 2018 respectively, the end of the day on which it was transmitted by email and the hearing was to be held on 14 March 2018. The period of notice in each invitation letter was over three and four weeks respectively, longer than the prescribed period of 14 days in reg 4.21.
[25] Act, s 360A(5).
Having validly invited the applicant to attend a hearing, upon failure to do so, the Tribunal was entitled to dismiss the application.[26] The reasons for the decision to dismiss the application for non-appearance set out the decision and the reasons for it, and recorded the day and time the statement was made.[27] Notification of the dismissal decision was sent to the applicant’s representative by email in accordance with ss 362C(5), 379A(5) and 379G of the Act. The applicant was deemed to have received the non-appearance decision at the end of the day on which it was transmitted, being 14 March 2018.[28] By s 362B(1B), the applicant had 14 days after receiving notice of the dismissal decision within which to apply to the Tribunal for reinstatement of the application. The applicant did not do so. In those circumstances, the Tribunal was required to affirm the decision to dismiss the application.[29]
[26] Act, s 362B(1A)(b).
[27] Act, s 362C.
[28] Act, s 379C(5).
[29]Act, s 362B(1E). AYT16 v Minister for Immigration & Anor [2016] FCCA 2733, [32]; AYT16 v Minister for Immigration & Border Protection [2017] FCA 252, [10].
I do not discern any want of procedural fairness and am satisfied that the applicable statutory pre-conditions to dismiss the application in default of the applicant’s appearance were met. The Tribunal was entitled to dismiss the matter for non-appearance,[30] subject to an overriding requirement that the power was exercised reasonably.[31] In my opinion, no arguable basis is shown for concluding that the exercise of the power to dismiss the application was affected by legal unreasonableness for the following reasons:
[30] Act, s 362B.
[31] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, [8], [14]-[15].
a)the applicant was properly invited to a hearing;
b)the invitation had not been returned to sender;
c)the applicant had failed twice to provide further information;
d)the applicant requested and was granted an extension of time;
e)the applicant’s migration agent had communicated with the Tribunal in relation to the rescheduling of the hearing;
f)notwithstanding the failure of SMS reminders of the hearing, this indicated that the applicant’s authorised mobile number was not working. The Tribunal was not obliged to do anything more to ensure the applicant’s attendance at the hearing;[32]
g)the applicant and his representative failed to appear at the hearing and had not explained such non-attendance;
h)there was nothing to indicate that the failure of the applicant to attend the hearing was “unexpected and unremarkable”, particularly noting that the applicant plainly knew how to seek a postponement of the hearing (as he had done previously), but had not done so in this instance;
i)although the Tribunal, the applicant and his migration agent communicated in relation to the right of reinstatement of the application, no such application was made.
[32] Kang v Minister for Immigration & Anor [2017] FCCA 2785, [30].
Having regard to the stringent requirements of the test, I consider that the Tribunal’s exercise of its discretion to dismiss the application was not legally unreasonable in all the circumstances.
For those reasons I am not satisfied that the decision was tainted by jurisdictional error on the bases that have been suggested. It follows that I do not consider that an arguable ground of review is shown.
Other matters
The broad discretion conferred in relation to reinstatement recognises that it may be applied in relation to a wide variety of visa applications. The present is not an application for reinstatement respecting the proposed judicial review of a Protection visa. In such cases, the nature of the visa applicant’s claims to protection may require close consideration of the basis on which he or she might hold a well-founded fear of persecution or a real risk of significant harm.[33]
[33] Act, ss 36(2)(a), 36(2)(aa).
Contrastingly, the present application is for a Student visa and arises in circumstances where the applicant: (a) has being enrolled in a series of courses since 2008; (b) has completed five short courses; (c) has had his enrolment in a number of other courses cancelled; (d) has repeatedly failed to appear at hearings, and (e) can apply from outside Australia to apply for a further Student visa.
As noted above, the applicant had enrolled in but cancelled his enrolment in a number of courses of study. In particular, the applicant provided information contained in a record derived from the Provider Registration and International Student Management System which indicated that the applicant’s enrolment in courses of study was as follows:
1.Diploma of Accounting – cancelled on 20 April 2016;
2.Certificate IV in Accounting – cancelled on 24 March 2016;
3.Advanced Diploma of Business – completed on 9 April 2015;
4.Diploma of Business – completed on 5 November 2014;
5.Advanced Diploma of Business – cancelled on 6 August 2014;
6.Diploma of Business – cancelled on 6 August 2014;
7.Diploma of Management – completed on 6 August 2013;
8.Certificate IV in Business – completed on 30 January 2013;
9.Diploma of Management – cancelled on 29 October 2012;
10.Certificate IV in Business – cancelled on 29 October 2012;
11.Certificate IV in Business – cancelled on 22 June 2012;
12.Certificate IV in Business – cancelled on 7 February 2012;
13.Certificate III in Automotive Mechanical Technology – cancelled on 8 February 2012;
14.Certificate III in Automotive Mechanical Technology – cancelled on 16 October 2011;
15.Diploma of Multimedia – cancelled on 26 July 2010;
16.Diploma of Multimedia – cancelled 26 July 2010;
17.Diploma of Multimedia – completed on 31 May 2010;
18.Diploma of Multimedia – cancelled on 31 August 2009;
19.Diploma of Multimedia – cancelled 31 August 2009;
20.Certificate III in Printing and Graphic Arts – cancelled on 24 July 2009; and
21.Certificate IV in Spoken and Written English – completed on 5 September 2008.
Conclusion
I am satisfied that the applicant has been afforded a reasonable opportunity to present his case but that he has not demonstrated a reasonable excuse for his non-attendance. The court was not required to ensure that he took the best advantage of the opportunity to present his case. He did not do so in the circumstances above.
In particular, I am not persuaded that the applicant’s ground of review is reasonably arguable. Upon the principles stated in CAL15 and MZABP, I consider that the ground which was pressed by the applicant does not rise to the level that the court should be satisfied it is appropriate to hear full argument. In my opinion and to adapt the statement in House v The King,[34] it is neither unreasonable nor plainly unjust to conclude that the application for reinstatement ought to be refused in all the circumstances of this case. Accordingly, I do not consider that the applicant will suffer any prejudice in the relevant sense by being denied an adjournment. For the reasons above, I am not satisfied that the applicant is entitled to an adjournment of the application in a case or to an order for the reinstatement of the proceeding.
[34] (1936) 55 CLR 499, 505.
The application in a case should be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.
Date: 13 June 2019.
[12] [2018] FCA 1110, [29] (Tracey J).
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