Tamber v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 1120
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tamber v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1120
File number(s): MLG 2431 of 2019 Judgment of: JUDGE MANSINI Date of judgment: 29 November 2023 Catchwords: MIGRATION – application for review of Registrar’s decision filed outside of proscribed timeframe – extension of the time for filing granted – summary dismissal of judicial review application for lack of reasonable prospect of success. Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth) ss.143, 254, 256
Migration Act 1958 (Cth) ss.360, 360A, 362B, 362C, 368, 379A, 379C, 379G, 474
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.13.13, 21.02, 21.04
Migration Regulations 1994 (Cth) reg.4.21
Cases cited: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v The Commonwealth (2010) 241 CLR 118
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 23 November 2023 Place: Melbourne Solicitor for the Applicant: Appeared in person Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2431 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANINDER PAL SINGH TAMBER
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The time within which the Applicant may apply to the Court for review of the Registrar’s decision made on 1 November 2023 be extended to 15 November 2023.
2.The application for judicial review be dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $3,349.37.
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
Judge Mansini
IN SUMMARY
This decision relates to an application for judicial review of a decision of the Administrative Appeals Tribunal to dismiss an application for review of a student visa refusal.
On application of the First Respondent, the judicial review application was summarily dismissed by a Judicial Registrar of this Court. The Applicant now, belatedly, seeks review of the Judicial Registrar’s decision.
For the reasons set out below, I have determined to extend the time for filing and summarily dismiss the application for judicial review with costs.
SHOULD AN EXTENSION OF THE TIME FOR FILING BE ALLOWED?
A party to a proceeding in which a delegate has exercised powers of this Court under s.254 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (FCFCOA Act) may apply to the Court for review, within the time proscribed by the rules of the Court or any further time allowed in accordance with those rules: s.256(1) of the FCFCOA Act.
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) apply to the present case and provide that an application for review of a Registrar’s decision must be made within 7 days, which time may be extended on any terms that the Court thinks fit or with consent of the parties: r.21.02 of the Rules.
The Applicant’s application for judicial review was summarily dismissed by a Judicial Registrar of this Court, exercising their delegated power pursuant to s.254 of the FCFCOA Act, on 1 November 2023. Accordingly, an application for review in accordance with s.256 of the Act was due to be made by 8 November 2023.
The application for review of the Judicial Registrar’s decision was not attempted to be lodged until 9 November 2023 and not accepted for filing until 15 November 2023. It follows that the application for review was not “made” in accordance with the Court’s procedures until 7 days after the proscribed time.
At the hearing before the Court on 23 November 2023, the Applicant explained their reason for the delay in filing the review application was that they thought there might be 28 days to file such application and did not understand the Court’s procedure.
The First Respondent’s representative opposed an extension of the time for filing on the grounds that the substantive application lacked merit but did not identify any particular prejudice that could not be addressed by way of costs – and then proceeded to address the merit.
That the Court’s Rules provide a short timeframe for filing applications of this nature reflects the intention that an application for review of a registrar’s decision be made promptly and without delay. Whether to extend the proscribed time for filing is at the broad discretion of the Court having regard to the particular circumstances of the case.
In the present case, it may be accepted that there was at least an attempt at lodgement of the application for review of the Judicial Registrar’s decision within one day after the expiry of the proscribed timeframe. Having regard to the Applicant’s self-representation, the fact that English is not his first language, the relatively short period of delay and the absence of any particular prejudice to the First Respondent, I am minded to extend the time for filing such that the time for application for review of the Judicial Registrar’s decision be extended to 15 November 2023.
SHOULD THE APPLICATION FOR SUMMARY DISMISSAL BE ALLOWED?
By the application filed 15 November 2023, the Applicant sought review of the Judicial Registrar’s decision to summarily dismiss the application for judicial review. On review of the exercise of a power by a registrar, the hearing proceeds de novo meaning the application before the Court is considered afresh: r.21.04(1) of the Rules.
The Court has before it an interlocutory application by which the First Respondent seeks summary dismissal of the Applicant’s substantive application for judicial review, pursuant to r.13.13 of the Rules.
In this respect, the Court has received as evidence the following material that was before the Registrar:
(a)An originating application filed by the Applicant on 29 July 2019;
(b)An affidavit deposed and filed by the Applicant on 29 July 2019;
(c)A response filed by the First Respondent on 26 August 2019;
(d)A response filed by the First Respondent on 12 January 2022;
(e)A court book filed by the First Respondent on 23 June 2023;
(f)An outline of submissions filed by the First Respondent on 6 October 2023; and
(g)A list of authorities filed by the First Respondent on 20 October 2023.
Neither the First Respondent or the Applicant sought leave to adduce any further evidence or written materials.
Factual context
The following factual context emerged from the materials before the Court.
Mr Maninder Pal Singh Tamber (Applicant) is a citizen of India who arrived in Australia in 2009 holding a TU572 student visa based on an enrolment in a Diploma of Automotive Technology course. According to the Department’s records, the Applicant has held a total of 5 student visas granted on 1 April 2009, 2 September 2011, 17 May 2013, 20 September 2014 and 10 January 2017.
On 6 October 2017, the Applicant applied for a Student (Temporary) (class TU) (subclass 500) visa which is the application subject of these proceedings.
On 21 December 2017, a delegate of the First Respondent refused to grant the Applicant a student visa on the basis that the Applicant did not satisfy the genuine temporary entrant student criteria for the grant of the protection visa (delegate’s decision). The delegate’s written reasons reflect its consideration of the materials before it and concluded that the delegate was not satisfied that the Applicant intends to stay temporarily in Australia.
On 9 January 2018, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.
On 26 April 2019, the Applicant submitted to the Tribunal two forms by which the Applicant appointed a Mr Raminder Pal Singh of Expert Education and Visa Services Brisbane as his representative and authorised recipient and nominated a contact email address.
On 1 May 2019, a further form was submitted to the Tribunal which indicated the Applicant did not consent to determination of the review without first being heard.
On 21 May 2019, The Tribunal invited the Applicant to attend a hearing scheduled for 20 June 2019. The hearing invitation was sent by email to the nominated email address of the Applicant’s then representative. The invitation itself advised of the option to request an adjournment and warned that failure to attend may result in a decision being made on the review without any further consideration of the application or information before the Tribunal. Also attached was an information sheet which reiterated the adjournment option and consequences of non-attendance.
On 13 and 19 June 2019, the Tribunal sent hearing reminders by SMS to the Applicant’s mobile telephone number.
On 20 June 2019, neither the Applicant nor his representative attended the hearing at the Brisbane registry of the Tribunal. On that same day, the Tribunal sent an email to the nominated email address of Applicant’s then representative which attached a copy of a decision (the Non-Appearance Decision). The Tribunal’s reasons were brief:
1.The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 20 June 2019 at 9:30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Also attached to that 20 June 2019 email was a letter with the subject line “NOTIFICATION OF DECISION TO DISMISS THE APPLICATION – MR MANINDER PAL SINGH TAMBER”. That letter contained a brief explanation of the Non-Appearance Decision and the following statement:
You may apply to us, in writing, for reinstatement of the application by 4 July 2019. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The Applicant did not apply for reinstatement of the review application by 4 July 2019.
On 5 July 2019, the Tribunal sent an email to nominated email address of the Applicant’s then representative which attached notification of its decision to confirm its decision to dismiss the application and a copy of the decision record (the Confirmation Decision). The Tribunal’s statement of decision and reasons was dated 5 July 2019 and in brief terms as follows:
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 December 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).
2. On 20 June 2019 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
On 29 July 2019, the Applicant filed this application for judicial review which indicated that the decision sought to be reviewed was the Tribunal’s Confirmation Decision. The application contained 12 points and was accompanied by an affidavit of the Applicant. The originating materials did not include details of a representative.
By his affidavit which was affirmed on 29 July 2019, the Applicant deposed the following (among other statements of fact which appear in the above):
4.I strongly believe that both DHA and the Tribunal have not assessed my student visa application fairly as the relevant circumstances around my application were not considered.
On 26 August 2019, the First Respondent filed a response before filing an amended response on 12 January 2022, whereby the First Respondent sought summary dismissal of the Applicant’s application for judicial review pursuant to r.13.13 of the Rules. In doing so, the First Respondent contended that the Confirmation Decision is not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 (Cth) (Migration Act).
As earlier referenced, on 1 November 2023 a Judicial Registrar of this Court decided to summarily dismiss the application for judicial review and this application for review of the Judicial Registrar’s summary dismissal decision was filed on 15 November 2023. At the hearing before the Court as presently constituted, on 23 November 2023, the First Respondent pressed its application for summary dismissal pursuant to r.13.13 (in the event that the Court was minded to extend the time for filing of the review application).
The respective contentions
By the substantive application for judicial review, the Applicant raised the following 12 points:
1.I came to Australia on 24th April 2009 on a Student Visa to study Diploma of Automotive Technology, however, could not continue with the programs and had to defer the course under compassionate and compelling circumstances.
2.I have applied for the Student visa on 21st December 2017 to undertake Bachelor of Professional Accounting, but the delegate of the department was not satisfied that I met the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (genuine applicant for entry and stay as a student).
3.I made an application at the Administrative Appeals Tribunal to consider my application and substitute the decision in my favour. For this a hearing was scheduled on 20th June 2019.
4.Because of the outcome from the DHA was a setback for my career, I was under immense stress and agony. I was unable to reply to invitation and attend the hearing. My mental state of mind was beyond my control.
5.The Tribunal made a decision on my appeal without giving me an opportunity to appear before the Tribunal. They did not consider me entitled to appear again before the Tribunal and gave their decision purely on assumption and not on the facts.
6.The Tribunal did not consider adjourning my application. This would have given me sufficient time to provide supporting documents for my claims for being a genuine student.
7.The AAT affirmed the decision on 5th July, 2019 and decided not to grant me an extension on the hearing date. The Member failed to take into account my compelling circumstances which are beyond my control. I am under extreme stress mentally.
8.The Tribunals refusal to consider my application for review decision in favour of me has put me under immense stress and pressure both physically and mentally.
9.The delegate did not make a decision considering my circumstances and have not provided fair chance to listen to my side of the story.
10.I am a genuine student and have given my best in completing my studies. The refusal on my visa application has left me devastated and my future in vain.
11.[Both] the delegate and Tribunal member made the decision on my application based on personal interpretation and assumption. They did not consider the compelling circumstances that I faced.
12.For the reasons set out in the application, I believe jurisdictional error has been made while making a decision on my application. I request the honourable court to review my case to provide me justice.
At the hearing before the Court as presently constituted on 23 November 2023, the Applicant was invited to elaborate on his grounds for review and made further submissions for consideration of the Court which are outlined and addressed in relation to each paragraph below. In essence, the Applicant urged the Court to provide him justice by refusing the interlocutory application and proceeding to hear his judicial review application.
The First Respondent contended that the substantive application for judicial review could not succeed because it lacked reasonable prospect of successful prosecution and pressed its application for summary dismissal pursuant to r.13.13 of the Rules.
It falls then to consider the First Respondent’s interlocutory application as the next step.
Statutory framework and applicable principles
The following statutory provisions and principles as to their application are relevant to the question presently before the Court.
The Tribunal’s power to dismiss
Part 5 of the Migration Act provides for review of “Part 5-reviewable decisions” and outlines the procedure the Tribunal is to follow in the conduct of its review.
With limited exception (none which apply here) the Tribunal must invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s.360 of the Migration Act.
An invitation to attend a Tribunal hearing must include: at least the proscribed period of notice of the day on which, and time and place at which, the applicant is scheduled to appear (relevant to the present case, that is at least 14 days’ after receipt of the notice: Reg.4.21 of the Migration Regulations 1994 (Cth); and a statement of the effect of s.362B: s.360A(1), (4) and (5).
Such invitation must be given by a method proscribed at s.379A: s.360A(2)(a). Relevant to the present case, if an applicant has given written notice of the name and address of another person who is authorised to receive documents in connection with the review, then s.379G applies such that the person is taken to have received a document if given to their authorised representative by a method specified at s.379A: s.379G(2). The proscribed methods include, relevantly, transmittal by email to the last email address provided to the Tribunal by the recipient in connection with the review: s.379A(5)(b) and (d).
Section 362B(1A) of the Migration Act provides:
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
An applicant has the option to apply, within 14 days of receipt of the notice of the decision, to have their application reinstated following a non-appearance decision under s.362B(1A)(b): s.362B(1B). The Tribunal is required to notify an applicant of its non-appearance decision, by notice, which is to taken to be given to an applicant within 14 days of the decision of being sent by one of the methods at s.379A: ss.362C(5)(a) and (b) and 379C(5) of the Migration Act.
If an applicant does not seek reinstatement within that 14 day period, then the Tribunal must confirm the decision to dismiss the application by written statement given under s.368 of the Migration Act: s.362B(1E). Section 368 provides as follows:
Tribunal’s decision and written statement
Written statement of decision
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f)records the day and time the statement is made.
Note:Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
How and when written decisions are taken to be made
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
(2A)The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(3) After the Tribunal makes the written statement, the Tribunal must:
(a)return to the Secretary any document that the Secretary has provided in relation to the review; and
(b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(4)The validity of a decision on a review, and the operation of subsection (2A), are not affected by:
(a)a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or
(b)a failure to comply with subsection (3).
The Court’s power to dismiss
The FCFCOA Act confers power on the Court to give judgement for one party as against another party in relation to the whole or any part of a proceeding if the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding: s.143 of the FCFCOA Act.
The procedural rules which apply to proceedings of this kind provide that the Court may dismiss an application summarily:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary judgement or summary dismissal under either provision, it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim. It is not necessary for the Court to be satisfied that the applicant is hopeless or bound to fail.
The discretion to summarily dismiss an application must be exercised with caution given it is an order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument. However, what is required is “a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial”: Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46].
The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
I turn to consider the First Respondent’s application for summary dismissal pursuant to r.13.13 of the Rules in accordance with the established principles.
Paragraphs 1, 2, 3, 4, 8, 10 and 12
On a plain reading, it is apparent that paragraphs 1, 2, 3 and 12 of the application for judicial review are essentially uncontentious background facts or submissions that the Applicant would like the Court to take into account. These paragraphs 1, 2, 3 and 12 whether individually or cumulatively do not articulate or disclose jurisdictional error.
As briefly elaborated on at the hearing, the statements at paragraphs 4, 8, 10 and 11 include contentions of health and personal difficulties which are not supported by evidence but which the Applicant asks the Court to take into account. For present purposes, these contentions of the Applicant’s compelling circumstances may be accepted as they were described and are considered with regard to his contentions of jurisdictional error in paragraphs 5, 6, 7, 9 and 11 below.
Paragraphs 5, 6, 7, 9 and 11
The contentions at paragraphs 5, 6, 7, 9 and 11 are understood to contain the essence of the Applicant’s claim that the Tribunal dismissed his application without affording procedural fairness and/or by misapplication of the law.
In summary, by these paragraphs the Applicant contended that the Tribunal erred because:
(a)it did not give him an opportunity to appear before it (paragraph 5) and (to the extent it was meant to read “the Tribunal member” not “the (Minister’s) delegate”, which is not a decision that this Court has jurisdiction to review), it did not make a decision considering his circumstances and did not provide a fair chance to listen to his side of the story (paragraph 9);
(b)it did not consider adjourning his application which would have given him sufficient time to provide supporting documents as to the merit of his genuine student claim (paragraph 6) and it did not extend the hearing date and in doing so failed to take into account his compelling circumstances (paragraph 7); and
(c)(to the extent it referred to the Tribunal member’s decision, which is the only decision that is reviewable in this Court), it made the decision based on personal interpretation and assumption and did not consider the compelling circumstances of the Applicant (paragraph 11).
At the hearing, the Applicant briefly elaborated on his application to say that the compelling circumstances and difficulties that he had experienced are those described at paragraphs 4, 8, 10 and 11. There, he described the compelling circumstances of immense stress and agony, mental state of mind, immense stress and pressure both physically and mentally and devastation that he suffered as a result of the delegate’s decision to refuse his further student visa application and then the Tribunal’s refusal to consider his review application.
Taking those contentions at their highest, on careful consideration and scrutiny of the Tribunal’s procedure no error of jurisdiction is disclosed in the present case.
Where an applicant is properly invited to attend a hearing but fails to do so, the Tribunal is empowered to dismiss the application without further consideration of the application or the material before it, but only where the statutory requirements of s.362C are met: s.362B.
The factual context discloses that the Tribunal complied with the statutory requirements, specifically:
(a)It invited the Applicant to appear before it by issuing a hearing invitation pursuant to s.360 of the Act.
(b)The hearing invitation complied with the requirements of s.360A(1), (4) and (5) of the Migration Act in that:
(i)The Applicant was given a notice which invited the Applicant to appear before the Tribunal was given;
(ii)The notice contained the day on which, and the time and place at which, the Applicant was scheduled to appear;
(iii)The period of notice was at least the proscribed 14 days after the notice is taken to have been received pursuant to ss.379A and 379G;
(iv)The notice contained a statement of the effect of s.362B of the Migration Act.
(c)The hearing invitation was given to the Applicant’s then representative at the last nominated email address on 21 May 2019.
The Applicant did not appear before the Tribunal on the scheduled day, time and place.
The Tribunal did not fail or refuse to give the Applicant an opportunity to appear before it. To the contrary, the facts before the Court establish that the Applicant was given proper opportunity to appear before the Tribunal in accordance with the procedure proscribed by the statute. The Applicant did not appear at the hearing.
The Applicant did not request an adjournment (as was his right) before the scheduled time of the Tribunal hearing, whether to prepare the documents as to the merits of his case or for any other reason. The Applicant did not request an extension of the hearing date. Absent such requests, it was not incumbent on the Tribunal to adjourn the hearing, to extend the hearing date nor it was it legally unreasonable for the Tribunal to proceed with the hearing on 20 June 2019 in the circumstances.
Accordingly, the Tribunal was entitled to make the Non-Appearance Decision. That is, to dismiss the application without any further consideration of the application or information before the Tribunal: s.362B(1A)(b). The Tribunal did so, by written statement under s.362C, again notified to the Applicant’s then representative at the nominated email address on 20 June 2019.
Further, the Applicant was notified of the opportunity to seek reinstatement of the application within 14 days after receiving notice of the Non-Appearance Decision.
The unfortunate fact is that the Applicant, who was properly on notice, simply did not make such application for reinstatement within the proscribed period or at all.
One may empathise with the Applicant’s health and personal difficulties. However, the Tribunal was not legally unreasonable in its lack of consideration of them because they were not brought to its attention before the Non-Appearance Decision and the Confirmation Decision were made. Absent evidence of the Applicant’s health or other difficulties that affected his ability to participate in the scheduled hearing, and absent any request for an adjournment or extension of the hearing date, there was no error or legal unreasonableness on the part of the Tribunal in proceeding as it did to make the Confirmation Decision or at all.
There is no error (or even arguable error) established by these paragraphs 5, 6, 7, 9 and/or 11 of the application. Accepting that this interlocutory application is considered at an early stage, on an assessment of documentary and contemporaneous evidence in the Department’s file and taking into account the Applicant’s admissions made, there is no reasonable prospect that the application could succeed.
CONCLUSION
For the above reasons, the Applicant’s application to this Court for judicial review is dismissed for no prospect of reasonable success. It is appropriate that there been an order for costs, pursuant to item 3(a), Part 1, Schedule 2 of the Rules which applies as there is no specified scale amount for application for review of a Registrar’s decision in migration proceedings.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 29 November 2023
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