Taimoor v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 852
Federal Circuit and Family Court of Australia
(DIVISION 2)
Taimoor v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 852
File number(s): MLG 316 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 11 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student visa – whether applicant denied procedural fairness. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06. Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 11 October 2022 Date of hearing: 11 October 2022 Place: Parramatta Solicitor for the Applicant: There was no appearance by or on behalf of the Applicant. Solicitor for the Respondents: Mr Creedon ORDERS
MLG 316 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALI TAIMOOR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
11 OctobeR 2022
THE COURT ORDERS THAT:
1.The application is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $3,800.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(As revised from the transcript)JUDGE HUMPHREYS
INTRODuCTION
This is an application in respect of judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal’) to affirm a decision of a delegate of the Minister for Immigration (‘the delegate’) to refuse the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (‘Student visa’).
The application for review to the Tribunal was lodged on 6 September 2017. The applicant was invited to attend a hearing, which took place before the Tribunal on 24 January 2021. At the hearing of the Tribunal, which the applicant attended, the Tribunal indicated that the original decision of the delegate had been that the applicant did not satisfy cl 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), which required the applicant to provide proof as at the time of his application that he had sufficient funds for the duration of his stay in Australia.
The Tribunal determined that it was not satisfied that the applicant complied with cl 500.211 of the Regulations, that is, at the time of the decision, and it being a time-of-decision criteria, that the applicant currently had a Certificate of Enrolment in a registered course. Previously, the Tribunal had written to the applicant, by letter dated 21 December 2018, inviting him to attend the hearing and requested the applicant provide evidence of the enrolment in a full-time registered course of study. Having so found that he was not enrolled, the Tribunal had, to the Court’s mind, no option other than to come to the decision that it did, which was to affirm the decision under review.
The applicant then sought judicial review in this Court.
Grounds of judicial review
The grounds of judicial review are set out in the amending application. They are somewhat confused, but they can be distilled into three points. Firstly, the applicant had finished his original studies and wanted to change his visa class from a study visa to a postgraduate study visa; that he was depressed and confused at the Tribunal hearing; and that he was not given the proper chance as he needed an interpreter.
This matter was listed at short notice before this Court, in that another matter collapsed and matters that were capable of being heard at short notice were listed. The Court notes that submissions had already been lodged by the first respondent, but the applicant at no point of time lodged any submissions, in contravention of the orders which were made by Registrar Carlton in 2021, which included that the applicant was to file or serve before 12 May 2021 any amended application, a supplementary court book and written submissions. This matter effectively should have been ready to be heard at short notice given the directions that were made.
The Court received an email from the applicant which was sent on Tuesday, 11 October 2022, at 6.56 am. The Court proposes to read the entirety of this onto the record because it is relevant:
Dear Sir/Madam,
I am writing this on my behalf, as I was unable to reply on time. I have travelled to Pakistan for a Month. My mother had surgery. She was suffering from some disease. I was told by the doctors that she is going to have the surgery due on 10th October. So, I had to travel for her care. As I only have one brother who is currently working in a finance company. He is unable to take care of her.
I am living in a very remote area of Pakistan (Chakwal). As I got to know that my mother is going to have surgery, I packed my bag and travelled to Pakistan. I didn't know about the final hearing date. As I was waiting for this hearing date for the last 2 years. I assume that maybe, I wouldn't receive the hearing date till next month. I travelled on 4th October and received the Email from Associate Judge Humphreys on the same date when, I was in transit in ABU DHABI when i received this Email stating my hearing date within a week. It was really hard for me to come back to Australia so early.
I am in Hospital with my mother and it is very hard for me to get online and attend the hearing. There is internet but it cuts out every second. I am not sure I would be very confident in attending the hearing. I am very depressed due to these ongoing problems.
I have a return ticket to Australia. I am coming back to Sydney on 4th Nov. Please give me an extension until 5th NOV. So that I can attend hearing with full attention. It is a kind request for the extension of the hearing date. I have attached the Ticket, Boarding Pass. Please let me know if you need any further documents.
When the applicant’s correspondence was received, the Court’s Chambers sent it to the first respondent’s legal representatives, seeking their information and advice. Mr Creedon advised at 10:44am this morning:
Thank you for your email. We have sought instructions and confirmed the Applicant currently holds a valid Bridging Visa which permits multiple re-entries and does not expire until a date in 2023.
The First Respondent’s maintains the original position, in that we do not consent to the adjournment request. The First Respondent acknowledges the matters raised by the Applicant in his email, including that has been required to travel to Pakistan and that the hearing has been listed with a week’s notice. However, the First Respondent does not consent for the following reasons:
1. The matter has been on foot since February 2019 and both parties have readied themselves for hearing by filing submissions, such that the matter could be listed (and has been listed) at the Court’s earliest opportunity. The Applicant’s email indicates he was aware the Court may list the matter.
2. There is no information before the Court why the Applicant could not dial in by telephone and effectively participate in the hearing.
3. The Application before the Court enjoys no reasonable prospects of success. The Tribunal made the only decision available to it based on the criterion required for a grant of a Student Visa. The applicant objectively did not satisfy the criteria requiring him to have a certificate of enrolment. Any adjournment of the matter would, in the Minister’s submission, merely delay the matter.
If it assists the Court and if his Honour is so minded, the First Respondent confirms that it is content for his Honour to consider the adjournment request ahead of the hearing based on the matters raised by the Applicant and First Respondent in this email chain (and any further matters the applicant wishes to raise). If his Honour is so minded to grant an adjournment, the First Respondent would respectfully request it be a short adjournment.
Please let me know if I can be of any further assistance.
Thomas Creedon
Senior Lawyer
Australian Government Solicitor
My chambers responded to the parties in the following terms at 12:55pm today:
Dear parties and legal representatives,
I refer to the matter and the applicant’s request for an adjournment.
After consideration of both parties’ positions, the Court has rejected the application for an adjournment, as there is no information before the Court as to why the Applicant cannot dial into the hearing by telephone and participate in the hearing.
The matter remains listed today, 11 October 2022. Parties are required to attend the hearing at 1:30pm AEDT in order for the First Respondent’s submissions to be interpreted to the Applicant.
When the matter was called at 2:00pm there was no appearance of the applicant. In open court, the Court’s Associate attempted to ring the applicant on the mobile telephone number that had been provided by him. However, it went straight through to voicemail. Mr Creedon, on behalf of the Minister, requested that this matter be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘Rules’), that being:
(c) If the absent party is an applicant, dismiss the application.
consideration
The Court has carefully considered all of the material. Whilst this matter was listed at very short notice, the fact is however that the applicant has not filed any submissions and has not actively sought to engage with the Court to prepare the matter for hearing. The applicant was aware of the hearing date and the time. Whilst the Court accepts that there has been personal exigent circumstances, the suggestion that the applicant could not participate in the hearing because internet access was patchy does not indicate that he was unable to telephone in via the link. The Court notes that the link that was provided to him included both internet and telephone access. Had the applicant telephoned in, the Court would have been more than happy to have an interpreter here to interpret and make best use of the time and to deal with this matter.
A relevant consideration also, in the Court’s view, is, whilst the Court is required to make a final determination on the application, on an impressionistic basis there was no reasonable prospect of success, as pointed out by Mr Creedon. The applicant, in order to be granted the visa he sought, had to meet an essential criteria of having a current Certificate of Enrolment. He did not. Most of what the applicant said, and indeed suggested, to the Court really was a request for both the Tribunal and this Court to grant him a different visa, for which he would have had to have made a different application. In circumstances where, as I said, without making a final decision in it, there were no reasonable prospects of success, in my view, it is appropriate that this matter be dismissed for non-appearance.
In so doing, the Court notes that it is open to the applicant to seek to have the matter reinstated. If he does seek to have the matter reinstated, the Court will, of course, have to consider the merits of that application. One of the issues that will have to be determined, if any application is made for reinstatement, is whether or not there are reasonable prospects of success. As has already been stated, at an impressionistic level there are some issues, but the Court does not make a final determination on that matter because it has not had the opportunity of hearing from the applicant, and he may well be in a position whereby he could persuade me that there was some other issue which would require me to overturn the Tribunal’s decision and to send it back for rehearing.
In the circumstances, however, the Court is satisfied that it is appropriate that this matter be dismissed pursuant to rule 13.06(1)(c) of the Rules.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 13 October 2022
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