Rana v Minister for Immigration

[2020] FCCA 2773

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2773

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – application for reinstatement – whether the Tribunal breached s 425 of the Migration Act 1958 (Cth) – whether jurisdictional error is made out. – no jurisdictional error is made out – no reasonable prospects of success – the application for reinstatement is refused.

Legislation:

Migration Act 1958 (Cth), ss.360, 425

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

Migration Regulations 1994 (Cth), sch 2, cl 500.211(a)

Cases cited:

MZYEZ v Minister for Immigration, Citizenship [2010], FCA 530

Applicant: FAIZA RANA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1750 of 2019

Judgment of: Judge Humphreys

Hearing date: 2 October 2020

Date of Last Submission: 2 October 2020

Delivered at: Parramatta

Delivered on: 2 October 2020

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondents: Ms Ren

ORDERS

1. The application for reinstatement is refused.

2. These orders are stayed until written reasons are provided.

3. The applicant to pay the first respondent’s costs fixed in the amount of $1,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1750 of 2019

FAIZA RANA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(As revised from transcript)

Introduction

1. The applicant is a citizen of Pakistan. The applicant first arrived in Australia on 17 August 2012 on a Temporary Work Skilled visa, which expired on 23 January 2016.

2. On 23 January 2016, the applicant applied for a Medical Treatment visa which was granted on 14 March 2017 and expired on 23 June 2017.

3. On the same day, 23 June 2017, the applicant applied for a Student (Temporary) (Class TU) visa. A delegate of the Minister for Immigration and Border Protection (“the delegate”), refused the visa on 11 August 2017.

4. The applicant then sought a merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 6 June 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a Student (Temporary) (Class TU) visa.

5. The applicant then sought judicial review of the Tribunal’s decision. The matter was listed for a final hearing on 30 July 2020. On that day, the applicant did not appear.

6. The Court dismissed the matter for non-appearance pursuant to

   
   

   r 13.03C(1) of the Federal Circuit Court Rules 2001 (Cth).

7. On 28 August 2020, the applicant applied to the Court for the matter to be reinstated. On 2 October 2020, the applicant again failed to appear.

8. Evidence was provided to the Court, of an email dated 7 September 2020 addressed to [email protected], which is the last known email address of the applicant. The email contained details such as, the fact that the matter was listed on 2 October 2020 for hearing via telephone, and the administrative arrangements for the applicant to attend.

9. The Court has also been provided with a copy of a letter which was sent to the applicant, by the legal representative for the first respondent by both express post to the applicant’s last known address at 74 Wonga Street, Lurnea, and to her email address [email protected]. Enclosed with the letter, was a copy of the first respondent’s submissions for the reinstatement application hearing on 2 October 2020.

10. The Court is satisfied that the applicant has again failed to appear. The Court is also satisfied, that it is not inappropriate, to deal with the matter to conclusion, in relation to the reinstatement application.

Legal principles relevant to reinstatement applications

1. In MZYEZ v Minister for Immigration, Citizenship [2010], FCA 530 at [7], it was held that a reinstatement is discretionary, and the following three factors should be considered in a reinstatement application.

   (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 (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

   (emphasis added)

2. If not, there is no purpose in reinstating. In relation to the first issue, that being whether there is a reasonable excuse for the party’s absence on the last occasion; in an affidavit sworn 27 August 2020, the applicant stated:

   …I developed flu symptoms and fever and the next day I could not attend the call. I went to see the doctor and was referred for a COVID-19 test. Annexed hereto is the copy of the letter from doctor and result of the COVID 19 which, thankfully, came negative.

3. Attached to the applicant’s affidavit, is a medical certificate saying that she was unfit to continue her usual occupation for the period 30 July 2020 to 13 August 2020, and confirmed that she had been referred to get a COVID-19 test. The legal representative for the first respondent noted that on the 30 July 2020, at the start of the hearing, the Court attempted to contact the applicant on her mobile telephone number, and has sought that this be done again. The applicant was called in open Court on 2 October 2020, however, nobody answered the call. The legal representative for the first respondent noted, that in the Application in a Case the applicant provided the same mobile telephone number, email address and residential address as provided in her initial application filed on 10 July 2019.

4. The legal representative for the first respondent submitted that there was no adequate explanation or evidence that the applicant attempted to contact the Court to seek an adjournment, and there was no indication from the applicant’s medical certificate, that her condition prevented her from participating meaningfully in a remote hearing by telephone, or at least that she was unable to telephone or email the Court to inform of her inability to attend, and to request an adjournment.

5. In relation to the second matter, the legal representative for the first respondent accepts, that there was no prejudice to the first respondent, other than to costs, if the matter is to be reinstated.

6. In relation to the third matter, the legal representative for the first respondent submitted that there was no reasonable prospects of success in relation to the substantive application.

7. The grounds for judicial review in the matter were firstly, that the Tribunal denied the applicant procedural fairness and/ or breached s 425 of the Migration Act 1958 (Cth) (“the Act”). Secondly, that the applicant’s legal representative stopped representing the applicant, and in the circumstances, the Tribunal should have allowed more time to respond. And thirdly, that the Tribunal did not give ample opportunity for the applicant to respond.

8. In relation to whether or not the substantive application has reasonable prospects of success, the Court is satisfied that the Tribunal complied with all procedural requirements that were mandated. The applicant was invited to provide more information, her application for an extension of time was granted and it was only after she did not provide any further information that the Tribunal proceeded to finalise its determination. The Court is satisfied that there was no breach of s 360 of the Act, or any other provision of the Act in terms of its procedural fairness to the applicant. Ground one reveals no jurisdictional error.

9. Given that the Tribunal had already granted the applicant an extension of time to respond to its request for further information, and none was provided, it was reasonable in all the circumstances for the Tribunal to proceed to complete its decision making process. The applicant’s complaint that her legal representative ceased to act for her, was not a matter that was conveyed to the Tribunal. The applicant was clearly on notice as to what was required. The Court is satisfied that it was within the legitimate decisional freedom of the Tribunal to proceed to determine the matter, in the circumstances that were outlined. Ground two reveals no jurisdictional error.

10. Ground three, can be best described as a variation of ground two. The Court agrees with the legal representative for the first respondent that it does not articulate the reasons why additional times should have been provided. Further, no additional time was requested. The Tribunal expressly considered whether to adjourn the review and determined not to, based on a correct understanding of the law, as it applies in these circumstances. No jurisdictional error was made out.

11. The applicant was aware that she needed to provide further information as to her current involvement in the course of study to the Tribunal, in compliance with sch. 2 cl 500.211(a) of the Migration Regulations 1994 (Cth). No information was provided.

12. In these circumstances the Tribunal had no option, other to affirm the decision under review, as the applicant did not meet a mandatory condition in order for the visa sought, to be granted. The Court has also perused the decision of the Tribunal, given that the applicant was unrepresented, and cannot detect a jurisdictional error that has not been articulated by the applicant.

13. In terms of the three grounds that the Court is required to consider, the Court is not satisfied that the applicant provided a reasonable excuse for her failure to attend the hearing by telephone.

14. Whilst the Court accepts that the applicant may have been suffering flu-like symptoms, the Court does not accept that she was unable to attend by telephone and meaningfully participate in the hearing.

15. Ground two has been conceded by the legal representative for the first respondent. The Court finds in relation to ground three, in relation to reinstatement that there are no reasonable prospects of success. In those circumstances the Court determines that the application for reinstatement should be refused.

Conclusion

1. Accordingly, the application for reinstatement is refused.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 8 October 2020