SZVIA and Anor v Minister for Immigration and Anor (No.2)
[2018] FCCA 1265
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVIA & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 1265 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicants – whether applicants have given sufficient explanation for non-appearance – whether application would have merits if the orders set aside – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.13.03C(1)(c), 16.05(2)(a), 21.07 Migration Act 1958 (Cth), ss.116, 476, 477 Migration Regulations 1994 (Cth) regs. 2.43(2), Schedule 1, cl.1222(4), Schedule 2, cl.573.611(a) |
| Cases cited: Joshi v Minister for Immigration and Border Protection [2016] FCCA 2168 SZVIA & Anor v Minister for Immigration an Border Protection [2014] FCCA 1140 SZVIA & Anor v Minister for Immigration and Border Protection [2016] FCA 1228 Vella v Minister for Immigration and Border Protection [2015] HCA 42 |
| First Applicant: | SZVIA |
| Second Applicant: | SZVIB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2992 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 May 2018 |
| Date of Last Submission: | 9 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Counsel for the First Applicant: | Mr P Cutler |
| Solicitor for the First Applicant: | Phillip Silver & Associates Lawyers |
| No appearance by the Second Applicant. |
| Solicitor for the Respondent: | Ms C Hillary of DLA Piper Australia |
ORDERS
The amended application in a case filed on 10 May 2018 seeking to set aside the orders made on 16 April 2018 is dismissed.
The second applicant has liberty to apply by no later than 1 June 2018 for such order as he may be advised to seek if the assumption referred to in paragraph 80 of the reasons for judgment on the basis of which order 1 has been made is incorrect.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2992 of 2016
| SZVIA |
First Applicant
| SZVIB |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant (applicant) applies for an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that I set aside the orders I made on 16 April 2018. By those orders I dismissed an application filed by the applicant and second applicant on 31 October 2016 for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) extending the 35-day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the Migration Review Tribunal (Tribunal) on 14 January 2013. In that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) to cancel the Subclass 573 Higher Education Sector visa (573 visa) that had been granted to the applicant. I dismissed the applicants’ application under r.13.03C(1)(c) of the FCC Rules because the applicants did not appear at the hearing of their application.
Before I consider the principles I must apply, and the grounds on which the applicant relies for seeking to set aside the orders I made on 16 April 2018, it will be necessary to set out in a little detail the circumstances out of which the applicants filed the application in this Court for relief under s.476 of the Act, the grounds on which they relied in that application for an extension of time, the course of the proceeding before me that led to my making the orders on 16 April 2018 and what the applicants did up to 16 April 2018, and the course of the application to set aside the orders I made on 16 April 2018.
Background
The applicant and the second applicant are wife and husband and citizens of India. On 8 May 2008 the applicant was granted a 573 visa. On 13 December 2011 a delegate of the Minister notified the applicant that the 573 visa was cancelled. The delegate cancelled the 573 visa because the delegate found the applicant had failed to comply with condition 8020. Condition 8020 is a reference to item 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). Under cl.573.611(a) of Schedule 2 to the Regulations, as it applied at the time the applicant applied for the 573 visa, the applicant was required to comply with condition 8202 which relevantly required that the holder of a 573 visa (among other classes or subclasses of visa) “is enrolled in a registered course”.
The delegate purported to cancel the applicant’s 573 visa under s.116(1) of the Act, which relevantly provided that, subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied “its holder has not complied with a condition of the visa”. Subsection (2) is not relevant, but subsection (3) is. It provided that, if the Minister may cancel a visa under s.116(1) of the Act, “the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled”. Circumstances had been prescribed for the purposes of s.116(3) of the Act, and these are to be found in reg.2.43(2) of the Regulations which, at the time the delegate cancelled the 573 visa, provided as follows:
For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
. . . .
(b)in the case of a Student (Temporary) (Class TU) visa:
(i)that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(ii)that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non‑compliance was not due to exceptional circumstances beyond the visa holder’s control.
Under item 1222(4) of Schedule 1 to the Regulations a 573 visa is a subclass of the class of visas known as “Student (Temporary) (Class) TU” prescribed by item 1222 of Schedule 1. The matters prescribed by reg.2.43(2) of the Regulations, therefore, applied to the purported cancellation of the applicant’s 573 visa.
The applicant applied to the Tribunal for a review of the delegate’s decision to cancel her 573 visa. The Tribunal affirmed the delegate’s decision on 14 January 2013. The Tribunal was not satisfied the applicant met condition 8020(2)(a) because she was not enrolled in a registered course between 9 May 2011, when the applicant ceased to be enrolled in a registered course, and on 6 December 2011, when the applicant again enrolled in a registered course. The Tribunal was also not satisfied the applicant’s failure to be enrolled in a registered course was due to exceptional circumstances beyond the applicant’s control.
The applicant claimed there were exceptional circumstances because of her unplanned pregnancy in June 2011 which resulted in her feeling unwell for ten weeks after the termination of the pregnancy; and also of the emotional and financial stress the applicant experienced when her first husband abandoned her. The Tribunal accepted the applicant was pregnant and that, following the termination of the pregnancy, the applicant felt unwell and was unable to actively engage in her studies. The Tribunal, however, noted that the issue was enrolment, rather than attendance or academic progress; and that enrolment required little more than obtaining a certificate of enrolment and seeking a deferral of studies. The Tribunal did not accept that the applicant could not have enrolled and deferred her studies, because this would have required little effort by the applicant and which, in the Tribunal’s view, the applicant would have been able to do despite her medical condition. The Tribunal, therefore, did not accept that the applicant was unable to enrol after 18 June 2011 because of her pregnancy or medical condition.[1] Further, although the Tribunal was prepared to accept the applicant suffered emotional stress due to her marriage break up and desertion by her first husband, it was not satisfied the applicant’s failure to enrol was due to those matters.[2]
[1] CB172, [54]
[2] CB173, [56]
The applicant also claimed before the Tribunal that she was unable to obtain a certificate from the education provider for approximately a year, and that affected her ability to enrol in a registered course. That appears to be a reference to the claim the applicant made in a statutory declaration that she made several attempts to obtain from the Holmes Institute a copy of a “Certificate IV in Hospitality (Commercial Cooking)”, but she was not provided with such certificate until December 2011.[3] The applicant claimed her education provider did not treat her well, that it gave the applicant the “run around”, and that this by itself provided an exceptional circumstance beyond the applicant’s control.
[3] CB112
The Tribunal did not accept the applicant’s evidence on which she relied for this claim. The Tribunal relied on five matters.[4] One was that, on the materials the applicant provided, she contacted the Holmes Institute in August 2010, but made no further contact until November 2011. The Tribunal found that nothing in the materials the applicant provided to the Tribunal indicated that the applicant had made any effort to obtain the relevant paperwork after she made the request in the middle of 2010.[5] Another matter on which the Tribunal relied is that the education provider may have had access to PRISMS (that is, the “Provider Registration and International Student Management System”) which would indicate whether or not the applicant had completed a course, so that it was not readily apparent the applicant could not have enrolled without providing a certificate. And yet another matter on which the Tribunal relied for not accepting the applicant’s evidence is that in December 2011 the applicant enrolled in Holmes Institute who, the Tribunal found, would have been aware of the applicant’s previous study at that educational institution.[6]
[4] CB172, [55]
[5] CB172, [55]
[6] CB172, [55]
On 24 January 2013 the applicants applied to this Court for judicial review of the Tribunal’s decision. The applicants, however, discontinued that application. The applicant says she did so based on advice given to her by her lawyer at the time that the applicant’s applying for a Protection visa would be “better than appealing the student visa cancellation”.[7] The applicant then lodged an application for a Protection visa on 22 March 2013. A delegate of the Minister refused the application and, on 26 September 2014, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicant applied to this Court for judicial review of the RRT’s decision, but that application was dismissed on 13 May 2016.[8] The Federal Court of Australia dismissed an appeal on 14 October 2016.[9]
[7] Applicant’s affidavit, 08.05.2018, [7]
[8] SZVIA & Anor v Minister for Immigration an Border Protection [2014] FCCA 1140
[9] SZVIA & Anor v Minister for Immigration and Border Protection [2016] FCA 1228
Course of proceeding before this Court up to 16 April 2018
Having failed in her application for judicial review of the RRT’s decision to affirm the delegate’s decision not to grant the applicant a Protection visa, the applicant resolved to apply again for judicial review of the Tribunal’s decision made on 14 January 2013 which affirmed the delegate’s decision to cancel the applicant’s 573 visa. The applicants filed an application on 31 October 2016, more than three and half years after the day by which, under s.477(1) of the Act, the applicant was required to make an application in relation to the Tribunal’s decision.
In the application, under the heading “Grounds of application for extension of time”, the following is stated:
1.According to the expert advice of my lawyer at the time, I decided to withdraw my appeal to the federal Circuit Court of Australia in order to pursue a method thought to be much more efficient in obtaining a legal status in Australia.
2.But as I still do not have a satisfactory outcome of my status in Australia, I wish to proceed with the appeal against the decision by the Migration Review Tribunal made on the 14th of January, 2013 under wrongful terms.
3.As my utmost intention is to become a lawful and law-abiding Australian resident and function as part of Australian society, I pray that the court will accept my appeal application.
According to the applicant, the applicants filed the application with this Court after obtaining advice from a person called “Ted” who was associated with a company called “Goldman Pintex Management Pty Ltd” (Goldman Pintex). The applicant says that she and the second applicant became aware of Goldman Pintex after reading an advertisement placed by that company on “Gumtree”. The applicant says that “Ted” said the applicants needed to pay “$20,000 for the FCC matter”, and that they needed to pay “$25,000 for Goldman Pintex to lodge the 457 and RSMS nominations”.[10]
[10] Applicant’s affidavit, 08.05.2018, [32]-[36]
The matter came before a Registrar on a first court date on 9 March 2017. According to the applicant on 8 March 2017 “Ted” provided the applicant with short minutes of order, advised the applicant to sign the document and send it to the Minister’s solicitor, and said that “[o]ne of the solicitors will see you tomorrow there in court”.[11] The applicant attended Court on 9 March 2017 and had a conversation with Ms Mona Youssef. Ms Youssef said she was “the lawyer looking after your case”. The applicant and Ms Youssef then went into court. Directions were made and the application for extension for time was set down for hearing before me at 2:15 pm on 23 March 2018. On 18 April 2017 Ms Youssef filed with the Court a form of address for service in which she ticked the box next to the printed words: “I hereby give notice that I have been appointed lawyer for the above named party”. The form Ms Youssef completed identified herself, rather than the applicants, as the party. That, clearly, was an error.
[11] Applicant’s affidavit, 08.05.2018, [37]
At 2:15pm on 23 March 2018, being the appointed time and date of the hearing for extension of time, the applicants appeared and were represented by Ms Houhoutas, a solicitor. Ms Houhoutas said she was instructed to appear as agent for Ms Youssef and to apply for an adjournment. The basis of the application for the adjournment was that the applicants had not received any documents relating to this matter. I was not prepared to accept that asserted fact without evidence. After asking Ms Houhoutas a number of question I adjourned the matter for a short period to enable Ms Houhoutas to attempt to have Ms Youssef appear by telephone. That occurred and I asked Ms Youssef a number of questions. Ms Youssef, however, terminated the call. I then gave Ms Houhoutas leave to withdraw and I invited the applicant to approach the bar table. After asking the applicant a number of questions I was satisfied it was appropriate that I adjourn the hearing of the application for an extension of time. I expressed to the applicant my intention to adjourn, and I explained to her the issues that I would need to consider when hearing the application for extension of time, as follows:[12]
HIS HONOUR: All right. Ms Applicant, can I just explain to you now what I propose to do. You have said things and everyone has said things from the bar table. That’s not proper evidence . . . . However, I have seen enough for me to have doubts as to whether it is appropriate for the matter to proceed today, and I propose to adjourn the hearing. But it’s going to be on terms, and one of those is that you pay the costs thrown away. You can make submissions against that. Even though you may not be personally at fault, and I’m not saying you’re not personally at fault because I do not know the facts, but assuming it was all due to your lawyers’ faults, that’s still something that falls on you. And if it’s their fault, well, you can look to them for reimbursement. So I’m going to give a short time. I’m going to see what time I’ve got. It will be over the next month. And I’m going to – well, what’s going to happen now is I’m going to give you a copy of – the court’s copy of the court book, the Minister’s written submissions, and there’s an affidavit, I think, that the Minister wishes to rely upon. They’re going to be given to you now, and it’s going to be on the record that they have been given to you so that, when the matter is next before the court, you will be unable to say that you do not have the documents. Now, in terms of what that hearing will be, in order to obtain an extension of time, the court generally looks at . . . three things.
One is . . . What’s the extent of the delay? And in your case, the delay is very, very significant. Three years, almost, or something like that. That’s a fact which weighs heavily against the court deciding to grant the extension of time. But that’s only one factor. The other factor is, what’s the explanation? Now, in your application, there’s an explanation, but it’s not on an affidavit. It should be on an affidavit. And the third factor – and usually, although when there’s a very, very long delay, its importance lessens – is whether, if an extension of time is granted, there is merit in the application. So the idea is, if it’s a very strong case, then you give less weight to the length of the delay and the explanation.
However, if it’s a very weak case, then there’s no point in the court extending time. So they’re the issues that I will need to consider at a hearing for an extension of time. All right. So that’s what’s going to happen. Now, what I’m going to do now is make some directions, subject to anything Ms Hillary wishes to say. I will find a date and I will make a direction requiring – well, not requiring you, but giving you an opportunity to put on an affidavit, particularly an affidavit which deals with your delay, which explains your delay. All right. Now, do you understand everything that I have said to you?
[THE APPLICANT] Yes. Yes. Thank you, your Honour.
[12] T23.40-T24.10
After further discussion I made the following orders:
1.The hearing is adjourned to 10:15am on 16 April 2018.
2.The applicants pay the costs of [the] first respondent thrown away by reason of the adjournment, such costs to be agreed or assessed.
3.By 5 April 2018, the applicants may file and serve any further evidence on which they intend to rely.
4.By 12 April 2018 the first respondent may file any evidence in reply on which he intends to rely.
5.The parties have liberty to apply on such notice as the circumstances warrant.
The applicants did not appear at the hearing that had been fixed for 10:15 am on 16 April 2018. On the application of the Minister I made an order under r.13.03C(1)(c) of the FCC Rules dismissing the application, and I made costs orders.
Evidence of what the applicants did before 16 April 2018
There is evidence of what the applicants did after 23 March 2018, but before I made the orders of 16 April 2018; and the evidence comprises of an affidavit made by the applicant[13] and emails and text messages annexed to that affidavit, and emails and text messages that were separately tendered at the hearing before me on 9 May 2018.[14]
[13] Applicant’s affidavit, 08.05.2018
[14] Exhibit B
According to that evidence on 2 April 2018 “Ted” sent a text message to the second applicant requesting a copy of the court book, and the second applicant met with “Ted” on that night. The second applicant informed the applicant that “Ted” said he was arranging for a new solicitor for the applicant’s case.[15] It appears that by 4 April 2018 “Ted” had arranged for persons by the names of Lily Hui and Paul Sadler to draft an affidavit.[16] The evidence before me does not reveal whether Mr Paul Sadler or Ms Hui had any legal qualifications to draft affidavits, but it appears that either Mr Sadler or Ms Hui is “the new solicitor” “Ted” engaged for the applicant’s case.
[15] Applicant’s affidavit, 08.05.2018, [46]
[16] Applicant’s affidavit, 08.05.2018, [48]; annexure M
By 5 April 2018 the applicant received a draft of an affidavit. That is apparent from a text message “Ted” sent to the second applicant on 5 April 2018.[17] It referred to an email I find is a reference to the email “Ted” sent to the applicant on 5 April 2018.[18] That email on-forwarded an email from Mr Paul Sadler which stated “Draft Affidavit attached”.[19] There is a draft affidavit annexed to the applicant’s affidavit,[20] and I find that it is this draft that was attached to Mr Sadler’s email to “Ted” that “Ted” on-forwarded to the applicant.
[17] Applicant’s affidavit, 08.05.2018, [49]
[18] Exhibit B, page 16
[19] Exhibit B, page 16
[20] Applicant’s affidavit, 08.05.2018, annexure R
The draft affidavit states that the applicant wishes “to include the following grounds of Appeal along with associated facts and contentions for Final hearing at Sydney Registry on 16 April 2018”. The draft affidavit then set out four grounds under the heading “Grounds of Application”. After this section of the “Affidavit” there is a section headed “Facts and Contentions” followed by 30 paragraphs that purport to be submissions in support of the grounds stated earlier in the affidavit. It is apparent that this “affidavit” was addressed in ignorance of the nature of the hearing that had been adjourned to 16 April 2018. As I have noted earlier, the hearing was an application for an extension of time under s.477(2) of the Act. The applicant must have been aware of the nature of the hearing if for no other reason than that, as is evident from the extract of the transcript of the hearing before me on 23 March 2018 that I have set out above, the applicant was given a copy of the Minister’s written submissions he had filed opposing the applicants’ application for extension of time,[21] and I had endeavoured to explain to the applicant the matters I would need to consider on the hearing of an application for an extension of time.
[21] T23.40-T24.10
In the text message sent to the second applicant on 5 April 2018 “Ted” said:
Got my email?
On a . . . separate email please put your opinions after reading this …. If you want to put in more please put more
Read carefully and send me an email please we can lodge before midnight
Frankly speaking if we lodge it within several more days it’s ok courts is normally tolerable
The applicant responded by email sent at 5:07 pm on 5 April 2018.[22] Her only comments were that the applicant’s name was incorrectly spelt and the applicant’s email address was incorrectly stated. By email sent to “Ted” at 1:05 pm on 6 April 2018 Mr Sadler attached “corrected affidavit”.[23] “Ted” forwarded the “corrected affidavit” to the applicant by email sent at 1:06 pm on the same day.[24] After a further correction to the draft affidavit at 7:03 pm on 6 April 2018 “Ted” sent an email to the second applicant stating: “If all good now please do submission at Court (L17, 184 Phillip St)”.[25] The applicant responded by email sent at 9:46 pm on 6 April 2018 (errors in original):[26]
[22] Exhibit B, page 15
[23] Exhibit B, page 23
[24] Exhibit B, page 23
[25] Exhibit B, page 22
[26] Exhibit B, pages 21-22
There is no such thing i can appreciate at this stage I do need to remind you that I have been ringing, Texting & Calling since we lost the last date Yesterday was the deadline to do submissions 5 April 2018
However you said court will still accept the submissions !!!!
Need response for the following
- I haven’t seen the Lawyer Representative’s Detail ??
- I want you or Your Lawyer’s to do the submission on my Behalf
- I don’t want any surprise on the day (lawyer not showing up etc)
- please do not make me embarrass again
Don’t know why you guys not understanding my situations
There is not any output i have seen since last year
No evidence of RSMS Yet ??????
No 457 or TSS update
I have lost 2 nominations and time because of you and your management
Has been in court in such difficult situation on 23 march 2018
Lot of negative stuff coming in My mind
You do need to prove yourself that all the process you are doing is genuine and real (Nothing fake) or misleading
I don’t want to be part of scam from any person from your management, Most promises look empty
You are responsible for the facts
I Did not this cc this email to anyone except you
“Ted” responded with an email he sent on 7 April 2018 at 1:18 pm stating: “call me after 3 pm what is all this crap??”[27]
[27] Exhibit B, page 21
By this stage the applicant had received by email a copy of a letter dated 6 April 2018 from a Registrar of this Court to Ms Youssef together with a copy of the transcript of the hearing before me on 23 March 2018 (Youssef costs hearing letter).[28] The letter relevantly stated as follows:
1.At 2.15 pm on 23 March 2018 there came on for hearing before Judge Manousaridis an application for an order under s.477(2) of the Migration Act 1958 (Cth).
2.At the time of the hearing you were the lawyer on the record for the applicants, and had been since 16 April 2017. You did not, however, appear at the hearing, but instead instructed Ms Houhoutas to appear as your agent for the purpose of applying for an adjournment on behalf of the applicants.
3.The ground on which Ms Houhoutas applied for the adjournment was that the applicants had not been provided with the court book or with any other documents. That application was not supported by any evidence. Ms Houhoutas stated that the only basis on which she submitted the applicants had not been provided with the court book or any other documents are instructions she received from you.
4.After a short adjournment you appeared by telephone. You informed the Court that although you remained on the record you had received no documents in the matter. In the course of his Honour asking you questions you said:
Your Honour, I’m not going to – I’m not going to entertain this anymore. You can do whatever you like. Thanks. Bye.
[28] Applicant’s affidavit, 08.05.2018, [50], annexure “O”
and you then discontinued the telephone connection.
5.The hearing continued and, in the event, his Honour adjourned the hearing and ordered that the applicants pay the first respondent’s costs thrown away by reason of the adjournment. After the conclusion of the hearing the applicant completed and signed a notice of address for service.
6.I attach a copy of the transcript of the hearing before Judge Manousaridis.
7.Rule 21.07 of the Federal Circuit Court Rules 2001 (Cth) provides as follows:
. . . .
8.In the circumstances stated above, Judge Manousaridis is of the opinion that there may be a case that the occasion of the Court’s deciding to adjourn the hearing arose from your failure, while a lawyer on the record, to do all that was reasonably necessary to ensure that the matter was heard at the appointed time and date, and that the first respondent’s costs that were thrown away by reason of the adjournment was therefore due to your failure to do all that was reasonably necessary to ensure that the matter was heard at the appointed time and date. Judge Manousaridis is also of the opinion that there may also be a case that the necessity for granting an adjournment arose because of your failure to remove yourself as the lawyer on the record for the applicants.
9.Accordingly, the matter is listed before Judge Manousaridis at 10.15am on 4 May 2018 for the purpose of hearing submissions from you and the first respondent as to whether, pursuant to r.21.07 of the FCC Rules, you should be ordered to pay the first respondent’s costs thrown away by reason of the adjournment. If that time and date is not convenient to you or the first respondent his Honour would be prepared to list the matter at a time and place that is convenient to you and the first respondent.
So far as the evidence before me reveals, the next event is a text message “Ted” sent to the second applicant at 5:44 pm on 8 April 2018 stating “You don’t want Mona correct?”[29] With that text message “Ted” appears to have copied the following text message exchanges between Ms Youssef and “Ted”:[30]
[29] Exhibit B, page 46
[30] Exhibit B, page 46
Sun, Apr 8, 3:55 PM
M Ted
Please call me regarding [the applicant]
I must go to court May 4th and need to discuss with you
Thanks
2:30PM
Ok
I will call u
2:56PM
At 5:44 pm on 8 April 2018 the applicant or the second applicant sent a text message to “Ted” stating “as you like”. At 7:21 pm on 8 April 2018 the applicant or second applicant sent “Ted” a text message stating “I will call Mona tomorrow Please wait”.[31] I find “Mona” is a reference to Ms Youssef. The applicant or the second applicant then sent a text message to “Ted” at 7:21 pm on 8 April 2018 stating: “Ok Who is lodging Affidavit Tomorrow?”[32]
[31] Exhibit B, page 41
[32] Exhibit B, page 47
At 5:27 pm on 10 April 2018, apparently after having received no response from Ted to the text messages the applicant or second applicant had sent him on 9 April 2018,[33] the applicant sent the following email to “Ted”:[34]
Subject: court hearing on 16 April 2018
Hi Tedd
What’s going on with the submissions?
Did we submit it to the court?
[33] Exhibit B, page 42
[34] Exhibit B, page 39
As you know we have a hearing at federal court next Monday (16 April 2018
After sending further text messages to “ Ted” on 11 April 2018,[35] at 6:39 am on 12 April 2018 the applicant or the second applicant sent the following text message to “Ted”:[36]
Hi Tedd
[35] Exhibit B, page 43
[36] Exhibit B, page 45
I can’t just keep chasing and you always leaving things last minute
Please it’s a Request
Let me know today who is representing us on 16 April
It’s only today and tomorrow left
GOD knows what you did with the submission ????
I do expect your reply with answer
At 1:46 pm on 12 April 2018 “Ted” sent a text message “I’ll call you back”. It appears that at 3:50 pm “Ted” sent a text message but the message is not apparent from Exhibit B.[37]
[37] Exhibit B, page 45
On the evidence before me the last communication between the applicants and “Ted” before I made the orders on 16 April 2018 is an email “Ted” sent to the applicants at 4:28 pm on 12 April 2018 by which “Ted” forwarded an email “Ted” received from Ms Youssef at 4:10 pm on 12 April 2018 by which Ms Youssef on-forwarded to “Ted” the Youssef costs hearing letter she had received.[38] “Ted” said nothing in his email to the applicants other than “FYI”.
[38] Applicant’s affidavit, 08.05.2018, [50], annexure “P’
The course of proceeding to set aside orders
On 26 April 2018 the applicants filed an application in a case. The application and the affidavit were prepared by some person whom “Ted” had engaged to prepare these documents. The basis of this finding is the applicant’s evidence that on 26 April 2018 the applicant and the second applicant “went to Ted’s office to sign the current application which was already prepared by Ted’s office”, and that “Ted’s assistant Lily accompanied my husband and I to submit the application and supporting affidavit at the federal Circuit Court”.[39]
[39] Applicant’s affidavit, 08.05.2018, [60]
The application did not expressly seek an order that the orders I made on 16 April 2018 be set aside, but it is clear from the application that the applicant’s intention in filing the application in a case was for those orders to be set aside. Under the heading “Orders Sought” there are 11 paragraphs, which include the following (errors in original):
1.The Federal Circuit Court has summarily dismissed my application without proper consideration of the case in its fullness.
2.I have been deprived of being considered in its merit assessment of bringing my case to be heard at the final hearing.
3.FCC and tribunal denied the applicant procedural fairness and natural justice in not giving me the opportunity to properly consider my legal position, given the limitation in the legal system.
4.FCC failed to consider the basis of the non-appearance of the legal representative.
5.The applicant should not be disadvantaged for the non-appearance of the legal representative, which are reasons beyond their control.
. . . .
9.The applicant filed an affidavit on 5 April 2018 with the following grounds of appeal . . . .
The “grounds of appeal” are the same as those contained in the draft affidavit to which I have referred. The application was accompanied by an affidavit made by the applicant repeating the matters stated in the application in a case.
At 12 midday on 8 May 2018 the current legal representatives of the applicant (who do not act for the second applicant) filed a notice of address for service on behalf of the applicant and, in the evening of 8 May 2018, the representatives lodged for electronic filing an affidavit made by the applicant and an affidavit made by the second applicant. Before the hearing of the application to set aside the orders of 16 April 2018 the current legal representatives of the applicant provided to my chambers a draft amended application in a case and, at the hearing before me, I granted the applicant leave to file an amended application in a case in the form of the draft amended application in a case that had been provided to me. By the amended application in a case, the applicant alone simply seeks an order pursuant to r.16.05 of the FCC Rules that I set aside orders 1 and 3 of the orders I made on 16 April 2018.
Principles
The principles that govern the exercise of the power to set aside orders dismissing an application made in the absence of an applicant were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship, where his Honour said:[40]
In circumstances where . . . 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.
[40] [2010] FCA 530, [7]
Explanation for non-appearance
The explanation on which the applicant relies for not appearing at the hearing on 16 April 2018 is a conversation which the second applicant says he had with “Ted” on 12 April 2018 in which “Ted” is alleged to have said:[41]
[41] Second applicant’s affidavit 08.05.2018, [4]
The matter is adjourned until 4 May. So you don’t have to go to Court on 16 April.
The applicant herself deposes that “Ted” said the exact words to the second applicant in a telephone conversation the second applicant had with “Ted” on the same day.[42] I take the applicants to submit that because “Ted” made this statement the applicants were induced to believe that the hearing of 16 April 2018 had been adjourned to 4 May 2018, being the date I had appointed for Mr Youssef to make submissions why an order for costs should not be made against her under r.21.07 of the FCC Rules, and, based on that belief, they decided not to appear at the hearing on 16 April 2018. Before I consider whether I should accept the applicants’ evidence it will be necessary to refer to evidence of what the applicants did after I made the orders on 16 April 2018.
[42] Applicant’s affidavit, 08.05.2018, [51]
The first item of evidence is an email the applicant sent to “Ted” at 3:54 pm on 16 April 2018 (error in original):[43]
[43] Applicant’s affidavit, 08.05.2018, [53], annexure “R”
Hi Tedd
I did Read this carefully . . . .
This matter is listed on 04 May is completely different then my case its about mona Yousif’s Appearance in Court there is no grounds been mentioned about [the applicant] & Department of Immigration and Border Protection
MY case was Listed today 16 April 2018 I have been told By You (Tedd) and you emailed me the (Order to Appear Documents) by saying the matter is been adjourned the Hearing is on 04 May instead of 16 April 2018. . . .
The second item of evidence is an email the applicant sent to Ms Youssef at 4:27 pm on 16 April 2018, where the applicant said (errors in original):[44]
Last Week (12 April 2018) We have given the New Court Orders by Tedd saying That its been adjourned from 16 April 2018 to 04 May 2018 (See attachment 2)
We have received the court orders via email today that our case is dismissed (See attachment 1). Due to non Appearance By or on Behalf of The applicant
[44] Applicant’s affidavit, 08.05.2018, [54], annexure “S”
The applicant then set out a number of questions “about the coming date 04 May 2018”. These included whether Ms Youssef was going to appear on behalf of the applicants, and whether “the matter listed today 16 April 2018 and the matter listed 04 May 2018 both are the same”.
At 5:00 pm on 16 April 2018 “Ted” sent an email to the applicant stating (errors in original):[45]
[45] Applicant’s affidavit, 08.05.2018, [55], annexure “T”
It was not me who has advised you that the hearing will be held in May, and was Mona who has advised me and you.
I will call Mona and ask about situation within today.
At 6:25 pm on 16 April 2018 Ms Youssef sent “Ted” an email (copied to the applicant) stating:[46]
I only received one email from the court confirming 4th of May 2018. I was never notified that there was a hearing on the 16th.
We can appeal Ted, I’ll come see you at your office to look at the file and work out a strategy. . . .
[46] Applicant’s affidavit, 08.05.2018, [56], annexure “U”
The evidence suggests that at some stage “Ted” informed the applicant or the second applicant that the hearing of 16 April 2018 had been adjourned, and I am prepared to accept, for the purposes of this application, that “Ted” did make a statement to that effect (adjournment representation) to one of the applicants at around the time he received from Ms Youssef a copy of the Youssef costs hearing letter. I am also prepared to accept that the applicants relied on the adjournment representation in deciding not to appear at the hearing on 16 April 2018. My accepting these matters, however, does not mean that I accept the applicants believed the adjournment representation or, if they did, they acted reasonably in relying on the adjournment representation in deciding not to attend the hearing.
The Youssef costs hearing letter is incapable of being construed as recording an order adjourning the hearing of 16 April 2018 to 4 May 2018, or otherwise suggesting an intention by the Court to adjourn the hearing to 4 May 2018. Further, the evidence shows that, although they had received a copy of the Youssef costs hearing letter on 6 April 2018, the applicants not only did not misconstrue the letter, but instead correctly understood the Youssef costs hearing letter had nothing to do with the hearing of the applicants’ application for an extension for time that on 23 March 2018 I had set down for hearing on 16 April 2018. That is apparent from the text messages and emails the applicant or the second applicant sent to “Ted”. In an email she sent to “Ted” on 10 April 2018 the applicant described its subject as “court hearing on 16 April 2018”; in the text message sent to “Ted” at 6:39 am on 12 April 2018 the applicant or second applicant demanded that they be told “who is representing us on 16 April”; and in her email to “Ted” sent after I made the orders of 16 April 2018 the applicant herself said the matter listed on 4 May 2018 was completely different from the applicants’ case that was listed for 16 April 2018.
In these circumstances it is difficult to accept that, if the applicant or second applicant read the Youssef costs hearing letter before “Ted” made the adjournment representation, the applicants could genuinely have believed in the truth of that representation. In any event, whether the applicant or second applicant read the Youssef costs hearing letter before the representation adjournment, or whether or not the applicant or applicants believed in the truth of the adjournment representation, they acted unreasonably in relying on the adjournment representation in deciding not to appear at the hearing of 16 April 2018.
There is a more general consideration that is relevant to assessing the adequacy of the applicants’ explanation for not attending the hearing of 16 April 2018. The applicants entrusted the conduct of their case in this Court to a person – “Ted” – whom they must have known was not legally qualified. At the hearing of 23 March 2018 the applicants experienced first-hand the shortcomings of the “assistance” they had sought and had been receiving from “Ted”. The applicants, however, continued to entrust the conduct of their case to the same unqualified person after 23 March 2018. In those circumstances the applicants acted unreasonably to the extent they relied on anything “Ted” might have said about the hearing of 16 April 2018 having been adjourned.
That I am not satisfied the applicants have provided a reasonable explanation for not appearing at the hearing by itself would not weigh heavily against my setting aside the orders I made on 16 April 2018 if the applicant could otherwise show that there would be merit in the application for an order under s.477(2) of the Act if I were to set aside the orders of 16 April 2018.
Merits if application for order under s.477(2) reinstated
Principles
Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia[47] Foster J said:
[47] [2013] FCA 1284 at [47]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection,[48] a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”. Further:
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[48] [2015] FCA 1391
Explanation for delay
I set out earlier the reasons the applicant has given for not having filed the application for judicial review of the Tribunal’s decision of 14 January 2013 until 31 October 2016. In short, the explanation is that, having filed with this Court within the 35 day period provided for by s.477(1) of the Act an application for judicial review of the Tribunal’s decision, the applicants discontinued that application because they had received advice that it would be “more efficient in obtaining a legal status in Australia” if the applicant instead applied for a Protection visa.
This is not an adequate explanation for the applicant not having commenced the present application within the 35-day period. The applicant was aware of the requirement to apply for judicial review within 35 days of the Tribunal’s decision because the applicant had the benefit of legal advice and she did file an application within the 35-day period. Further the applicant discontinued the proceeding after receiving legal advice. She does not suggest the legal advice she received was incorrect or unreasonable. In those circumstances it would be just to hold the applicant to the choice she made.
Length of delay
The applicant’s delay in bringing the application is three and a half years. Ms Hillary, who appeared for the Minister, submitted that, given the time that has elapsed, I would need to be satisfied that exceptional circumstances exist before I could make an order under s.477(2).[49]
[49] Relying on Vella v Minister for Immigration and Border Protection [2015] HCA 42 at [3], [18]
I do not find it useful to assess the significance of the length of delay by reference to whether exceptional circumstances have to be shown before an order may be made under s.477(2) of the Act. The question s.477(2) requires the Court to consider is whether it is necessary in the interests of the administration of justice that an order be made. Delay is a relevant factor, and its significance must be assessed by reference to the other relevant matters, and in particular, whether an adequate reason for delay has been given and whether there would be any merit in the application for relief under s.476 of the Act if an order under s.477(2) were made.
Ms Hillary also referred me to the judgment of Judge Nicholls in Joshi v Minister for Immigration and Border Protection[50] where his Honour said that “some weight must be given to the principle of finality in litigation”, and that “the Minister should not have to, without some reasonable explanation, be put to again dealing with an application concerning the same Tribunal decision which the applicant himself withdrew on an earlier occasion”.[51]
[50] [2016] FCCA 2168
[51] [2016] FCCA 2168, at [47]
All I wish to say about the length of the applicant’s delay is that it is extreme; and that, given the extreme delay occurred in circumstances where the applicant was aware throughout the entire period of the delay of her rights to apply for judicial review and that, with the benefit of legal advice, early in that period made the decision not to proceed with an application for judicial review of the Tribunal’s decision of 14 January 2013, the delay would weigh heavily against my making an order under s.477(2) of the Act.
Merits of application
Counsel for the applicant did not submit that the grounds stated in the application filed on 31 October 2016 have any merit. Instead counsel submitted that “in the time available to them, it has not been possible to obtain a transcript of the MRT hearing and it is unknown whether it will assist the First Applicant to prepare an Amended Application”.[52] Counsel submitted that there “was clearly an issue raised at the MRT hearing whether Holmes Institute had “frustrated” the First Applicant’s attempts to enrol in another course by not providing a copy of her diploma (in relation to her first course at Holmes Institute) in a timely manner”.[53] Counsel also submitted that the Tribunal “appears to have assumed that the information would be available through PRISMS or by some other way”, and that it “is currently unclear what the basis for that assumption is and to what extent that issue was canvassed with the First Applicant at the hearing”.[54] On the basis of these matters counsel submitted as follows:[55]
Accepting the long history of this matter and the recent unacceptable issues with representation of the First Applicant, it is submitted, that there are sufficient ground to either grant the extension of time application or alternatively, further stand the matter over until the current representation can obtain a transcript and form a firmer view on whether there are proper grounds for the judicial review application.
[52] Submissions on Behalf of the First Applicant, [21]
[53] Submissions on Behalf of the First Applicant, [22]
[54] Submissions on Behalf of the First Applicant, [23]
[55] Submissions on Behalf of the First Applicant, [24]
These submissions raise two questions or sets of questions. The first is whether counsel has identified potential jurisdictional errors by the Tribunal. The second is, whether or not counsel for the applicant has identified any potential jurisdictional error, whether the matter should be stood over to enable the applicant to obtain a transcript of the hearing to enable her current legal representatives to “form a firmer view on whether there are proper grounds for the judicial review application”.
The first of the two matters counsel identified as disclosing a potential jurisdictional error relates to what counsel has described as the “clear issue” of “whether Holmes Institute had “frustrated” the First Applicant’s attempts to enrol in another course by not providing a copy of her diploma (in relation to her first course at Holmes Institute) in a timely manner” (Frustration Claim).[56] It is true that such an issue did arise before the Tribunal. I have already identified it in paragraph 8 of these reasons. As I have also identified, however, the Tribunal did consider the Frustration Claim and rejected the applicant’s evidence on which she relied for the claim. Counsel has not identified the potential jurisdictional error the Tribunal may have made in the manner in which it dealt with the Frustration Claim; nor has counsel identified how obtaining the transcript of the hearing before the Tribunal could potentially assist the applicant’s current legal advisers to assess whether the Tribunal made any jurisdictional error in the manner in which it assessed the Frustration Claim. Thus counsel has not identified even a potentially arguable jurisdictional error in the manner in which the Tribunal determined the Frustration Claim.
[56] Submissions on Behalf of the First Applicant, [22]
The second of the two matters counsel identified as disclosing a potential jurisdictional error relates to the observations the Tribunal made when considering the applicant’s Frustration Claim about the accessibility of information recorded on PRISMS. As I have already noted, one of the matters on which the Tribunal relied for not accepting the applicant’s evidence on which she relied for the Frustration Claim is that the education provider may have had access to PRISMS so that it was not readily apparent the applicant could not have enrolled without providing a certificate. The potential jurisdictional error in this part of the Tribunal’s reasons is said to arise from the asserted lack of clarity of the basis on which the Tribunal assumed that the results of the applicant’s previous course of study could have been ascertained by accessing PRISMS. This, however, discloses no potentially arguable jurisdictional error.
Counsel did not explain in what sense it is submitted the basis on which the Tribunal found the applicant’s educational provider could have ascertained her results by accessing PRISMS was unclear. It was open to the applicant’s current legal advisers, even in the limited time available to them, to make enquiries about how PRISMS operates and determine for themselves whether, as the Tribunal stated, the applicant’s results were accessible by accessing PRISMS. Even if I am incorrect in this, the mere assertion of lack of clarity about the basis on which the Tribunal found a fact on which it relied does not give rise to a potentially arguable jurisdictional error.
I then turn to counsel’s request that I adjourn the matter to give the applicant’s current representatives time to obtain a transcript of the hearing before the Tribunal. The request is made largely on the basis of “the recent unacceptable issues with representation of the First Applicant”.[57] I accept that the applicants had not received adequate assistance in the conduct of their case. But there are a number of points to note about that. First, counsel’s submission ignores the fact that after the Tribunal made its decision on 14 January 2013 the applicants applied for judicial review of that decision, they received legal advice and, on the basis of that legal advice, they discontinued their application for judicial review. It has not been submitted that the advice they received was incorrect or negligent or otherwise unreasonable. That the applicants, some three and half years later, elected to engage assistance in the management of their application for judicial review in this Court that may have proven to be incompetent or worse does not, and in the circumstances of this case cannot, imply that the applicants did not at the time they discontinued their application for judicial review receive proper legal advice about whether they had reasonable grounds or prospects for contending before this Court that the Tribunal made a jurisdictional error.
[57] Submissions on Behalf of the First Applicant, [24]
Second, even if it were assumed that the only assistance the applicants received in the conduct of their case was from “Ted” and Ms Youssef or from any other person “Ted” may have engaged to assist the applicants, by 23 March 2018 it was clear, or ought reasonably to have been clear, to the applicants that the assistance they had received was unacceptable. Further, at the hearing of 23 March 2018 I explained to the applicant the issues I would need to consider on the hearing of their application for an extension of time. By that stage, therefore, the applicants could not say they did not have the benefit of accurate information about the issues they had to address at the hearing of their application for an order under s.477(2) of the Act. The applicants, however, elected to continue to seek the assistance of “Ted” in the conduct of their case, not only after 23 March 2018, but, incredibly, also after they had become aware on 16 April 2018 that I had dismissed their application for non-appearance at the hearing on 16 April 2018.
Third, I do not accept that the applicant’s current legal representatives need a transcript of the hearing before the Tribunal to determine whether “there are proper grounds for the judicial review application”. There is no evidence the applicant’s current legal advisers sought information from the applicant about what occurred at the hearing before the Tribunal. There is no evidence about whether the applicant was asked whether she holds an audio recording of the hearing before the Tribunal. In the absence of such evidence it is difficult to see how it can be submitted that a transcript of the hearing before the Tribunal is necessary before the advisers can determine whether the applicant has any reasonable ground for claiming the Tribunal made a jurisdictional error. I accept, of course, that the applicant may not hold an audio recording of the hearing before the Tribunal, and she may have little or no memory of what occurred before the Tribunal. The point, however, is that there is no evidence before me about whether the applicant holds an audio recording of the hearing before the Tribunal and, if not, whether the applicant has any memory of what occurred at the hearing and, if so, the extent of her memory.
Fourth, the applicant sought the assistance of her current legal representatives on 1 May 2018.[58] That is eight days before the date that had been set down to hear the applicant’s application to set aside my orders of 16 April 2018. I accept that that imposed time pressures on the applicant’s legal representatives; and they used that time to assist the applicant to prepare and swear a substantial affidavit. There is nothing in that affidavit, however, that touches on the merits of the application for judicial review of the Tribunal’s decision of 14 January 2013. Whether that is because the applicant’s new legal representatives made no inquires relevant to that issue, or they did but the responses to their inquiries revealed no potential jurisdictional error by the Tribunal, is not a question I can determine on the evidence that is before me. Further, there is nothing to suggest that during the period of 1 May 2018 to 8 May 2018, when the applicant swore her affidavit, and assuming the applicant holds no audio recording of the hearing before the Tribunal, the applicant’s legal representatives could not have requested from the Minister’s lawyers an audio recording of the hearing for the purpose of listening to it to “form a firmer view on whether there are proper grounds for the judicial review application”.
[58] Applicant’s affidavit, 08.05.2018, [61]
For these reasons, therefore, I do not propose to grant the applicant an adjournment to enable her legal representatives to obtain a transcript of the hearing. That, then, leaves me to consider the grounds of application stated in the application that was filed on 31 October 2016.
Ground 1 claims the Tribunal refused to revoke the delegate’s cancellation of her 573 visa “without properly considering the exceptional circumstances I was going through at that time, when it was obvious to the DIBP made a mistake and improperly cancelled my visa”, and that the applicant was “deprived of being considered in full at a full hearing, or at least show cause hearing at the Migration Review Tribunal”. The ground makes three claims:
a)The Tribunal did not properly consider whether the matters the applicant submitted to the Tribunal were exceptional.
b)It was obvious that “DIBP” made a mistake in cancelling the 573 visa.
c)The applicant was deprived of a full or a show cause hearing.
None of these claims is particularised, and for that reason alone ground 1 discloses no arguable case of jurisdictional error. In any event, from my summary of the claims the applicant made, and the Tribunal’s consideration of those claims, the Tribunal correctly identified and considered the applicant’s claims and, for reasons that were reasonably open to it, it was not satisfied there were exceptional circumstances surrounding the applicant’s failure to comply with condition 8020.
Ground 2 makes three claims:
a)The applicant has a strong will to stay in Australia and function as a lawful and law-abiding citizen after completing her studies.
b)The applicant has consulted with many lawyers to come up with a strategy to be granted a valid visa after her student visa was cancelled.
c)The “DIBP” cancelled her 573 visa for reasons that were too harsh without any consideration for the emotional and physical stress the applicant was in at the time.
None of these claims disclose any arguable jurisdictional error by the Tribunal. The first two claims are statements of the applicant’s desires and the advice she has sought about obtaining a valid visa. The third claim is directed to the delegate’s decision to cancel the applicant’s 573 visa, which is a decision this Court has no jurisdiction to review. To the extent it is directed to the Tribunal’s decision to affirm the delegate’s decision, the claim goes no further than expressing disagreement with the Tribunal’s decision. As I have already concluded the Tribunal correctly identified and considered the applicant’s claims and, for reasons that were reasonably open to it, it was not satisfied there were exceptional circumstances surrounding the applicant’s failure to comply with condition 8020.
Grounds 3, 4, and 5 should be read together. Grounds 3 and 4 explain why the applicant discontinued the application for judicial review of the Tribunal’s decision which she discontinued on 25 March 2013. Ground 5 states that the applicant relies on the grounds stated in the earlier application for judicial review. That application is in evidence,[59] and it contains the following grounds (earlier grounds):
[59] Affidavit of C A Hillary, annexure “A”
1.The Tribunal failed to properly consider the claims that the education provider failed to facilitate the necessary enrolment in compliance with condition 8020.
2.The Tribunal failed to properly consider that there were “exceptional circumstances” giving rise to non-enrolment in a registered course.
3.The Tribunal failed to accord procedural fairness.
4.The Tribunal was wrong to decide that it lacked jurisdiction to determine the secondary application.
None of the earlier grounds discloses an arguable case of jurisdictional error. The first three of the earlier grounds are not particularised. In any event, as I have already noted, the Tribunal identified and considered the applicant’s claim that she was unable to obtain a certificate from the education provider for approximately a year, and that that affected her ability to enrol in a registered course. For reasons that were reasonably available to it, the Tribunal did not accept the applicant’s claim. Further, it is apparent from the material before me that the Tribunal identified the matters on which the applicant relied for claiming there were exceptional circumstances, the Tribunal questioned the applicant about those matters, and that the Tribunal considered those matters. There is no arguable basis for claiming the Tribunal denied the applicant procedural fairness.
The fourth of the earlier grounds is repeated in ground 6 of the application filed on 31 October 2016. Counsel for the applicant, however, accepts the Tribunal did not have jurisdiction to review the cancellation of the second applicant’s 573 visa because he held that visa as a member of the applicant’s family unit.[60]
[60] Submissions on Behalf of the First Applicant, [11]-[14]
Ground 7 of the application filed on 31 October 2016 expresses the applicant’s hope that the Court will see “a compelling logic to grant” the applicant a “valid status to stay in Australia”, and ground 7 prays that the Court grant the applicant’s “appeal”. These grounds disclose no arguable jurisdictional error.
Conclusion and disposition
I am not satisfied the applicant has given an adequate explanation for her and the second applicant not appearing at the hearing of 16 April 2018. That matter alone, however, would not lead me to conclude that I should not set aside the orders I made on that day if I were satisfied there would be some merit in the applicant’s application for an order under s.477(2) of the Act. In my opinion, however, there is no merit in that application.
There is no arguable case that it would be in the interests of the administration of justice that I make an order under s.477(2) of the Act extending by some three and half years the day by which the applicants can apply to this Court for relief against the Tribunal’s decision made on 14 January 2013. That is so because there is no arguable case that:
a)the applicants have given an adequate explanation for the gross delay in applying for judicial review of the Tribunal’s decision; or
b)the grounds stated in the application for judicial review filed on 31 October 2016, or in the application for judicial review they filed on 24 January 2013, raise an arguable case that the Tribunal made a jurisdictional error in deciding on 14 January 2013 to affirm the delegate’s decision to cancel the applicant’s 573 visa.
Further, the applicant’s counsel did not identify at the hearing before me on 9 May 2018 that the Tribunal may potentially have made any jurisdictional error.
I propose, therefore, to order that the amended application in a case filed on 10 May 2018 seeking to set aside the orders I made on 16 April 2018 be dismissed.
The position of the second applicant
The filing of the amended application in a case pursuant to the leave I granted at the hearing on 9 May 2018 removed the second applicant as a party to the application to set aside the orders I made on 16 April 2018. At the hearing before me on 9 May 2018, however, counsel for the applicant said he appeared only for the applicant. I assumed that, when he applied for leave to file the amended application in the case, counsel did so on behalf of not only the first applicant but also the second applicant. Labouring under that assumption I did not invite the second applicant, who was in court, to confirm that it was his intention that he be removed as a party to the application in a case to set aside the orders I made on 16 April 2018, and I did not ask him whether he consented to my granting leave to the applicant to file an amended application in a case.
Given this omission, I propose to reserve to the second applicant liberty to apply by no later than 1 June 2018 for such order as he may be advised to seek if the assumption to which I refer in the preceding paragraph is incorrect.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 18 May 2018
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