Syed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 175
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Syed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 175
File number(s): SYG 3614 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 October 2021 Catchwords: MIGRATION – practice and procedure – application to amend application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant the applicant a Student (Temporary) (Class TU) visa – whether reasonably arguable the Tribunal misconstrued regulation it was not satisfied the applicant had met – whether reasonably arguable Tribunal ought to have considered to grant applicant adjournment because his migration agent did not appear at the Tribunal hearing – application to amend and application dismissed Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), Sch 2, cls 500.212(a), 572.212, 572.223(2)(b)
Cases cited: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 14 October 2021 Place: Sydney Solicitor for the Applicant: Mr M Nair of M S Nair & Co, by video Solicitor for the First Respondent: Mr A Fisher of HWL Ebsworth, by video ORDERS
SYG 3614 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMED AHMED AL MADANI SYED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application to file a further amended application in the form of the document titled “Further, Further Amended Application” is dismissed.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs as agreed or as taxed.
THE COURT NOTES THAT:
4.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).
The applicant seeks to rely on grounds 5 and 6 of a proposed further amended application.[1] Although the Minister was in a position to respond to the proposed grounds 5 and 6, the Minister submitted I should not grant the applicant leave to file the further amended application because of the delay in the applicant’s applying for leave to file the further amended application, and also because the proposed grounds have insufficient merit to warrant the grant of leave.
[1] The further amended application is titled “Further, Further Amended Application”. I have arranged to have that document marked “MFI1”.
In these reasons for judgment I consider whether I should grant the applicant leave to file the further amended application, and, if so, determine the merits of grounds 5 and 6 of the proposed further amended application.
BACKGROUND
The applicant first arrived in Australia in January 2010 as the holder of a student visa, and until 15 May 2016, when the applicant applied for the Student visa, the applicant remained in Australia on the basis of either a student or bridging visas.
The applicant applied for a Student visa on 13 May 2016. To have been entitled to the grant of the Student visa the applicant was required to satisfy the requirements of subclass 572 of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth) as they applied on 13 May 2016. Relevant to the application before me is cl 572.223(2)(b) which provides:
[T]he Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter . . .
In his application for the Student visa, which the applicant prepared with the assistance of Ms Simran Baijal, a registered migration agent,[2] the applicant provided “7F87D370” as his enrolment code.[3] According to the data contained in the “Provider Registration and International Student Management System” the delegate conveyed to the applicant by letter dated 1 June 2016, the enrolment code 7F87D370 denoted the “Advanced Diploma of Leadership and Management” which was to commence on 20 June 2016 and end on 17 June 2018.[4] The delegate’s letter conveyed the following additional information in relation to the applicant’s study history.[5]
Examination of your study history in the Provider Registration and International Student Management System (PRISMS) indicate that you enrolled for a Bachelor of Business (Accounting) on 18/03/2013 and on 27/05/2014 your education provider Australian Institute of Business and Management Pty Ltd reported you to the Department of Immigration and Border Protection, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000and [sic] standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).
You enrolled for a Bachelor of Business on 18/10/2015 at Australian Institute of Business and Management Pty Lt [sic]. However, on 18/04/2016, your education provider reported you to the Department of Immigration and Border Protection, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000and [sic] standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). They commented “enrolment reported unsatisfactory course progress - failed to appeal”.
[2] CB3
[3] CB2
[4] CB18
[5] CB19
The delegate’s letter invited the applicant to comment on this and other information contained in the delegate’s letter “and explain why you were unable to achieve satisfactory course progress”.[6] The applicant did not respond to the invitation.[7]
[6] CB19
[7] CB32
On 8 August 2016 the delegate refused to grant the applicant a Student visa. The delegate was not satisfied the applicant genuinely intended to temporarily stay in Australia.
BEFORE THE TRIBUNAL
On 29 August 2016 the applicant applied to the Tribunal for a review of the delegate’s decision. In his form of application the applicant completed the section headed “Representative details”, in which the applicant recorded Ms Baijal as his representative, noting she was a registered migration agent.[8]
[8] CB35
By letter dated 3 October 2017 the Tribunal invited the applicant to appear before it on 27 October 2017 to give evidence and present arguments.[9] The letter requested the applicant provide documents on which he intended to rely. The letter also requested the applicant provide a copy of his current certificate of enrolment; documents that show the applicant was currently enrolled in a course, or has an offer of enrolment in a registered course; documents that show the applicant’s past studies in Australia; and an explanation of any gaps in the applicant’s enrolments. The Tribunal’s letter attached a document titled “Response to hearing invitation – MR Division” (Response to Hearing Invitation), with a request that it be completed and returned to the Tribunal.[10]
[9] CB55
[10] CB59
On 4 October 2017 Dannii Sabharwal from the office of Ms Baijal sent the following email to the applicant (emphasis and errors in original):[11]
[11] Second affidavit of applicant 12.10.2021, annexure “MAS3”
I am writing to you on behalf of Mr. Amit Baijal as he is currently overseas.
We have been contacted by Administrative Appeals tribunal (AAT). You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The hearing date has been set to 27th October at 11.00 AM (NSW time). The location of the hearing is :
. . . .
I have attached formal invitation for this hearing. Please read the attached document carefully and complete pages 9, 10 and 11 and return it us via email by Friday.
Additionally, please provide this information as requested by AAT:-
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
Mr. Baijal will be assisting you with this application. As he is currently overseas, he will contact you upon his return to discuss the case and prepare further documentation in support of this application.
Thank you for your perusal and please feel free to e-mail me if you have any queries.
The “attached document” to which this email refers is a copy of the Tribunal’s letter dated 3 October 2017. It is reasonable to infer that “pages 9, 10 and 11” in Dannii Sabharwal’s email refer to the Response to Hearing Invitation; and that is because that document is the ninth, tenth, and eleventh pages of the entire attachment to Dannii Sabharwal’s email.
There is in evidence a completed Response to Hearing Invitation.[12] A handwritten tick is contained in the box appearing under “Yes” which, in turn, appears under the question: “Will you take part in the hearing schedule for 27 October 2017?” A handwritten cross is contained in the box appearing under “No” which, in turn, appears under the question: “Will your representative be attending?” The completed Response to Hearing Invitation also appears to bear the applicant’s name and signature and the date, “16/10/2017”. Mr Nair, who appeared for the applicant, did not submit the signature was not that of the applicant. It is open to me to find, and I find, that on 16 October 2017 the applicant completed and signed the Response to Hearing Invitation, and at around that time he emailed it to his migration agent’s email address.
[12] CB67-69
In the second of the two affidavits the applicant made on 12 October 2021, the applicant deposes he did not receive the first page of the Response to Hearing Invitation; and that “the migration agent placed a cross in the relevant box to indicate ‘No’”. The applicant also deposes that “migration agent Amit Baijal would attend the Tribunal hearing”, this having being confirmed to the applicant by the “email of 4 October 2017”. Although the applicant was not cross-examined, I am not bound to accept the applicant’s evidence; and I do not accept it. The applicant’s assertions are made without reference to what the contemporaneous evidence shows – the office of the migration agent sent to the applicant the Response to Hearing Invitation with a request that the applicant read the document carefully, complete it, and return it by email to the migration agent’s office; and the Response to Hearing Invitation was completed by hand and signed by the applicant. The only rational inferences that are available to be drawn are that the applicant, not the agent, placed the cross in the box under the word “No” which appears under the question whether the applicant’s representative would be attending the hearing; and the applicant was not told, and the applicant could have had no expectation, that his migration agent would appear at the hearing before the Tribunal. That is supported by what I will later show occurred at the hearing before the Tribunal.
In the first of the two affidavits the applicant made on 12 October 2021 the applicant deposes that Ms Baijal lodged the application for review with the Tribunal; the applicant was later informed “by both agents” that, as the review application was more difficult, Mr Amit Baijal would be dealing with the applicant’s review application; on the day before the hearing the applicant telephoned Mr Baijal “to ensure that everything was set for the Tribunal hearing the following day”, that Mr Baijal “assured” the applicant that “everything was fine and that” the applicant “should be at the venue of the Tribunal hearing in Clarence Street, Sydney well before time and that he would meet” the applicant there, and that Mr Baijal said he would see the applicant “tomorrow morning early, be early”; as arranged with Mr Baijal, on the morning of the hearing the applicant attended the hearing, but when he noticed that the hearing would commence within an hour, the applicant was concerned and nervous, so he rang Mr Baijal; and when the applicant telephoned Mr Baijal, Mr Baijal told the applicant he should “attend the hearing yourself as I won’t be able to make it”, and that everything “should be fine, you tell them the whole story of yours and you are willing to finish your studies, hopefully the decision will be in your favour”.
The applicant then deposes as follows (errors in original):[13]
I was placed in a situation at the Tribunal hearing that not only I had to answer any questions the Tribunal would ask me but at the same time to argue my case too. As to answering questions I did my best. However, my solicitor informed me that the agent had made no submissions to the Tribunal. I note from the Court Book that the only thing that the agent did was (a) lodge the application for review in the Tribunal (b) assure me the day before the Tribunal hearing that the agent would come to the hearing and (c) tell me one hour before the hearing that he (the agent) could not attend the hearing as stated above and that I attend the hearing and inform the Tribunal as stated at paragraph 7 above.
[13] First affidavit of applicant 12.10.2021, [13]
I do not accept the applicant had made arrangements with Mr Baijal that Mr Baijal attend the hearing before the Tribunal. First, as I have already found, by 16 October 2017 the applicant completed and signed the Response to Hearing Invitation in which the applicant indicated his migration agent would not be attending the hearing.
Second, the conversation the applicant says he had with Mr Baijal less than one hour before the Tribunal was due to begin is implausible. It is implausible that a migration agent in the position of Mr Baijal would simply have told a person in the position of the applicant less than one hour before the hearing was due to begin that he would not be able to make it, without giving any reason; and it is implausible that a person in the position of the applicant would not at the very least have asked Mr Baijal why he could not attend the hearing, or otherwise insist on Mr Baijal attending the hearing.
Third, near the beginning of the Tribunal hearing, after the Tribunal, on the applicant’s request, asked people not connected with the applicant’s matter to leave the hearing room, and after the Tribunal confirmed the applicant’s name, the Tribunal asked: “You have a representative but she’s not here with you today?” The applicant simply said “Yes”. Further, at the end of the hearing, the following exchange occurred:[14]
[14] First affidavit of applicant 12.10.2021, page 16
MEMBER:. . . You don’t want to ask anything before we finish up? You’ve given me everything you want me to look at?
APPLICANT: Yes, I think so.
MEMBER:Yes? All right, then, we’ll finish up the hearing now. Here is what will happen: I’ll take everything away. As I said, I’ve read the Department and tribunal files. I’ll take into account all the oral evidence we’ve received here today for you.
APPLICANT: Yes.
MEMBER:I haven’t made a decision yet but when I’ve considered all of that information I will make a decision and put it in writing and send that to your – it will go to your representative. Hang on a minute, it won’t, because don’t have one – no, you do?
APPLICANT: I have one.
MEMBER:It will go to your representative, Mrs Baja [sic].
APPLICANT: Yes.
If the applicant had the conversations with Mr Baijal the applicant said he did, it is unlikely the applicant would at the hearing have accepted the Tribunal referring to Ms Baijal, not Mr Baijal, was his migration agent; and it is unlikely the applicant would simply have said “Yes” to the Tribunal’s question that the applicant’s representative was not with the applicant at the hearing without referring to his being placed in the position he claims in his affidavit he found himself because Mr Baijal had informed him shortly before the scheduled time of the Tribunal hearing that he would not attend. It is also unlikely that, in response to the Tribunal’s asking the applicant whether “there is anything else”, the applicant would simply had said “no” if he had the conversations he says he had with Mr Baijal.
It is plausible, and even probable, that, before the hearing, Ms Baijal or Mr Baijal gave the applicant advice to the effect that the applicant should tell the Tribunal that he is willing to finish his studies, and that hopefully the decision will be in the applicant’s favour. The Tribunal’s letter dated 3 October 217 identified documents and information it invited the applicant to provide to the Tribunal. There is no evidence the applicant had any such evidence or information, and the inference that is available to be drawn is the applicant did not have such documents or information. In those circumstances, it appears the only thing it was open to the applicant to submit to the Tribunal was the intentions the applicant claimed he held in relation to his future studies.
TRIBUNAL’S REASONS
The Tribunal referred to the following matters:
(a)The applicant arrived in Australia in 2010, and has remained in Australia on a student visa or related bridging visas for nearly eight years.
(b)The only course the applicant had completed was a Diploma of Business in 2014.
(c)The applicant’s evidence that in early August 2016 he had incorrectly enrolled in an Advanced Diploma of Leadership and Management, thinking he had enrolled in Advanced Accounting, and then cancelling his enrolment after he discovered his mistake.
(d)The applicant’s evidence that he needed to do nine more units to finish his accounting course.
(e)The applicant’s failing three out of three subjects in a Bachelor of Business course which was consequently cancelled.
(f)The applicant’s education provider having reported the applicant to the Department of Immigration and Border Protection as not achieving satisfactory course progress.
(g)The applicant was not then enrolled in any course.
(h)The applicant’s evidence that he wanted to finish his accounting qualifications to become an accountant and run his own business.
The Tribunal concluded as follows:[15]
The Tribunal accepts that the applicant has travelled back to India on four occasions from 2010 to 2015 and then twice in 2017 and that he appears to have some ties to India. However, on balance, when the Tribunal has weighed up the applicant’s circumstances as a whole, and particularly given that he has not been able to find a college or university that will enrol him in accounting and currently has no offer of enrolment, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(b).
[15] CB80, [21]
PROPOSED GROUNDS OF APPLICATION
The applicant proposes to rely on grounds 5 and 6 of the proposed further amended application.
Proposed ground 5
Proposed ground 5 is as follows (numbering and punctuation as in original):
The Tribunal’s decision, as stated in Ground 3, in affirming the decision of the delegate and the Tribunal’s failure as stated in Ground 4, make the decision of the Tribunal legally unreasonable.
Particulars
b.The Tribunal misconstrued clause 500.212 of Schedule 2 to the Migration Regulations 1994- meaning of “intends genuinely to stay in Australia temporarily”. In doing do, the Tribunal committed jurisdictional error. In that:
(i)The Tribunal’s decision reflected a misunderstanding of the relevant clause of the Migration Regulations 1994 (Cth) governing the grant of the visa, and thereby involved legal unreasonableness in the approach and reasoning to its conclusion.
(ii)The construction of clause 500.212 arose in Eros v Minister for Immigration (2020) FCA 1061.
(iii)It is convenient to cite at length the exposition of clause 500.212 of Schedule 2 to the Migration Regulations 1994.
(iv)His Honour Allsop CJ explained clause 500.212 in this way:
. . . .
(v)The Chief Justice continues at (8) and (9) as follows:
. . . .
(vi)At (26), the Chief Justice explains the meaning of the word “temporary”. And in this way:
. . . .
6Had the Tribunal correctly understood the meaning of the term “temporary:” as explained in Eros, and applied that meaning to the facts in the instant case, it would have found in favour of the applicant.
Proposed ground 5 is not arguable. As the Minister correctly submitted, the question Allsop CJ considered in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 is whether the Tribunal in that case misconstrued or misapplied cl 500.212(a) of Schedule 2, which provided:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter . . . .
Paragraph 500.212(a) is similar to cl 572.212(a) of Schedule 2. The Tribunal, however, did not assess the applicant’s claim against cl 572.212(a); it assessed it against cl 572.212(b) which required that the Minister be satisfied that the applicant was a “genuine applicant for entry and stay as a student”.
In support of this ground Mr Nair submitted the Tribunal took an unduly narrow approach in assessing whether the applicant satisfied cl 572.212(b). He submitted the Tribunal did not take into account the applicant’s evidence about his having incorrectly enrolled in the Advanced Diploma of Leadership and Management. In his written submissions Mr Nair appears also to submit the Tribunal failed to take into account the applicant’s evidence that he intended to study, and he only had eight of twenty four subjects to study.[16] These submissions have no merit. The Tribunal referred to the applicant’s explanation for having enrolled in the Advanced Diploma of Leadership and Management; and the Tribunal also referred to the applicant’s evidence that he intended to study. But the Tribunal also considered all other matters which could conceivably have been relevant to whether the applicant satisfied cl 572.212(b) of Schedule 2, including the applicant’s inability to find a college or university that will enrol him in accounting, and the applicant currently having no offer of enrolment.
[16] Applicant’s Outline Submissions, [17(b)(iii)]
Proposed ground 6
Proposed ground 6 is as follows (errors and emphasis in original):
The Tribunal denied the applicant procedural fairness.
Particulars
a.The Tribunal’s failure in proceeding with the hearing even though the applicant had a migration agent acting for him but was not present at the hearing should have at once put the Tribunal on notice that the hearing ought to be adjourned in such a case. The Tribunal failed to do so. It is also relevant here to point out that the agent had completed the relevant invitation to hearing form from the Tribunal to indicate the names of the parties who would be attending the hearing. The agent had indicated on that form that the applicant’s agent would attend the hearing. This information itself, without any further information, was sufficient for the Tribunal to adjourn the hearing. The Tribunal failed to do so. (Emphasis added.)
b.The Tribunal’s failure in continuing with the hearing and not adjourning it despite having satisfied itself on the information before it that the agent was still acting for the applicant, was clearly a failure by the Tribunal to accord the applicant procedural fairness.
c.The Tribunal failed to ask the applicant why the Agent was not present at the hearing.
d.Had the Tribunal not failed to ask the relevant questions in the context as stated at Particular c. above, the applicant would have informed the Tribunal that:
i.The migration agent - (husband – as both the husband and wife are migration agents) the husband (migration agent) had informed the applicant only the day prior to the Tribunal hearing that he would attend the hearing and for the applicant to meet him at the venue of the hearing. It was the applicant who had telephoned the agent. The agent said words to the effect that “I will see you tomorrow morning, be early.”
ii.It is significant that the telephone call resulting in the conversation at (i) above was made by the applicant to the agent.
iii.On the day of the Tribunal hearing, the applicant arrived, as arranged at the venue of the hearing.
iv.There was no appearance of the agent. This was about an hour prior to the scheduled commencement of the Tribunal hearing. The applicant telephoned the agent to check where he was. The agent replied in words to the effect: “You should attend the hearing yourself as I won’t be able to make it!” The applicant was in a state of shock! The applicant kept requesting the agent to attend. However, the agent said in words to the effect: “Everything should be fine, you tell them the whole story of yours and you are willing to finish your studies, hopefully the decision will be in your favour.”
v.The applicant puts it in his own words as follows:
“I was in shock to hear that and kept requesting him to attend and he advised that “everything should be fine, you tell them the whole story of yours and you are willing to finish your studies, hopefully the decision will be in your favour.
vi.The applicant continues in his own words:
“I went ahead to the AAT, panicking and started to prepare on my own without any legal assistance. Wasn’t sure why my representative couldn’t make it and attended the AAT review hearing myself without any legal assistance.”
vii.The applicant would have informed the Tribunal that when the agent had informed the applicant only an hour before the commencement of the hearing he was in a state of shock.
viii.The applicant assumed that there was nothing he could do in the circumstances but to do his best. He had never attended a Tribunal hearing.
ix.The applicant formed the view that the only option open to the applicant was to attend the Tribunal hearing by himself and without the assistance of the agent.
x.In those circumstances the Tribunal commenced and continued the hearing.
xi.Even after becoming aware that the agent was still acting for the applicant, the Tribunal questioned the applicant as to where its decision should be sent and the Tribunal formed the view that it should be sent to the agent.
xii.On the facts before it, the Tribunal decided and forwarded its decision dated 30 October 2017 to the agent and not to the applicant; this indicating to the Tribunal that the agent was acting for the applicant and quite oblivious to the fact that the Tribunal had failed to provide procedural fairness to the applicant.
xiii.There was evidence, as indicated above that the Tribunal ought to have adjourned its hearing and relisted it on another day when the agent would be present at the adjourned hearing.
xiv.In the event the agent could not appear at the adjourned hearing, the agent should accordingly have informed the Tribunal as the obligation was on the agent to inform the Tribunal and provide reasons to the Tribunal why he could not attend the hearing on the appointed day and obtained another hearing date and informed the applicant accordingly. The agent failed to do so.
xv.If the agent could not do as states at (xiv) above, he should have at least advised the applicant in reasonable time prior to the hearing so that the applicant could seek another migration agent to act for him. The failure by the agent resulted in the applicant appearing before the Tribunal unrepresented.
xvi.Not only that the applicant arrived at the hearing shocked by what had happened only an hour prior to the hearing but he was relying on the agent to have prepared the case to be presented to the Tribunal. In reliance on the agent the applicant was caught completely off guard when the facts unfolded, as stated above.
xvii.The above facts deprived the applicant a fair hearing.
The proposed ground 6 is not arguable. It relies on factual assertions that are inconsistent with the contemporaneous documentary evidence. First, proposed ground 6 incorrectly claims that the Response to Hearing Invitation was completed to represent the agent would be attending the Tribunal hearing. As I have already noted, a cross was included in the box in the Response to Hearing Invitation under the word “No” which, in turn, appears under the question: “Will your representative be attending?” Second, there is no basis for claiming the agent completed the Response to Hearing Invitation; the email Dannii Sabharwal sent to the applicant on 4 October 2017 requested the applicant read and complete the Response to Hearing Invitation; and the only rational inference that can be drawn from the contemporaneous documentary evidence is that the applicant completed and signed the Response to Hearing Invitation. Third, the Tribunal brought to the applicant’s attention at the beginning and at the end of the Tribunal hearing that the applicant had a migration agent; yet, acting entirely consistently with the representation conveyed by the Response to Hearing Invitation the applicant completed and signed, the applicant did not say anything to the Tribunal to the effect of which could suggest the applicant expected his agent to attend the hearing.
I have also not accepted the applicant’s evidence of the discussions he deposes he had with Mr Baijal before the Tribunal hearing. Even if, however, such conversations occurred, there is nothing to suggest they came to the attention of the Tribunal. All that was before the Tribunal was a completed Response to Hearing Invitation signed by the applicant which stated the migration agent would not attend the hearing; the applicant’s confirming to the Tribunal that his migration agent was not attending the hearing; and the applicant’s confirming that the Tribunal should send its decision to the applicant’s migration agent. Thus, even if accepted, it is not arguable that the applicant’s conversations with Mr Baijal could have alerted the Tribunal to consider whether it should adjourn the hearing.
Finally, the proposed ground 6 does not identify what purpose would have been served had the Tribunal adjourned the hearing. The ground does not identify any matter the agent could have raised at an adjourned hearing that could have led the Tribunal to make a different decision to the one it made. That leads to two, related, conclusions. The first is that, even if the absence of the applicant’s agent from the hearing ought to have led the Tribunal to consider whether to grant an adjournment, it is not arguable that the Tribunal would have decided to adjourn the hearing because there was no material before it that could have led it reasonably to conclude there would be any utility in adjourning the hearing. Second, the proposed ground 6 has not identified any matter that could arguably have led the Tribunal to make a decision different to the one it made, had it in fact adjourned the hearing. On the material before me, it is not arguable there would have been any utility in the Tribunal adjourning the hearing. Thus, it is not arguable that any failure by the Tribunal to consider to adjourn, or to decide to adjourn, the hearing was material to the Tribunal’s decision.
OTHER DISCRETIONARY MATTERS
Given my conclusion that proposed grounds 5 and 6 are not arguable, it is not necessary to consider matters that are usually necessary to consider when determining whether to grant a party leave to amend a document.
DISPOSITION AND COSTS
By relying only on proposed grounds 5 and 6 I have taken the applicant to have abandoned the grounds contained in the application as currently filed. The appropriate orders, therefore, will be to dismiss the application to file a further amended application, and to dismiss the application.
The Minister applies for costs, although he was not in a position to inform me of the quantum of costs he would be seeking. I am satisfied that costs should follow the event, and I propose to order that the applicant pay the Minister’s costs as agreed or as taxed.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the order I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 22 October 2021
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