Tonmoy v Minister for Home Affairs and Anor (No.2)

[2018] FCCA 3273

FEDERAL CIRCUIT COURT OF AUSTRALIA

TONMOY v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2018] FCCA 3273

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (class TU) visa – application to reinstate the proceedings – no satisfactory application for the failure to appear – application for an adjournment refused – no sufficiently arguable case of jurisdictional error made out by the application – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.500.111, 500.211

Applicant: GULAN EHATASHAM TONMOY

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 903 of 2018

Judgment of: Judge Street

Hearing date: 13 September 2018

Date of Last Submission: 13 September 2018

Delivered at: Sydney

Delivered on: 13 September 2018

REPRESENTATION

The Applicant appeared by audio link

Solicitors for the Respondents: Mr A Gardner
Mills Oakley

ORDERS

1. The hearing of the interlocutory application in a case is to proceed by audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

2. The application in a case filed on 4 September 2018 is treated as seeking an order setting aside the order made on 6 August 2018 pursuant to r 16.05(2)(a) of the Federal Circuit Rules 2001 (Cth).

3. The oral application for an adjournment is refused.

4. The application in a case filed on 4 September 2018 which has been treated as an application for reinstatement is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $700.00.

DATE OF ORDER: 13 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 903 of 2018

GULAN EHATASHAM TONMOY

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 March 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (class TU) visa.

2. The applicant applied for the visa on 5 September 2016. On 19 December 2016, the delegate refused to grant the visa. The delegate found the applicant was not a genuine temporary entrant in Australia and declined to grant the visa on that basis.

The Tribunal

1. On 7 January 2017, the applicant applied for review to the Tribunal. By letter dated 6 February 2018, the applicant was invited to attend a hearing on 1 March 2018 to give evidence and present arguments.

2. At that hearing the Tribunal raised with the applicant the course of study defined in cl 500.111 of the Migration Regulations 1994 (Cth) (‘the Regulations”), and the applicant gave evidence during the hearing that he is not currently enrolled in a course or otherwise undertaking study in Australia. The Tribunal recorded that the applicant said he would try different courses and hoped to be given the opportunity to complete a course.

3. The Tribunal accepted that the applicant felt unsure as to what vocation direction he should take and that this has contributed to his non-completion of courses. The Tribunal however, found that it was not satisfied at the time of decision the applicant is enrolled in a course of study in accordance with the mandatory criteria under cl 500.211 of the Regulations. The Tribunal accordingly found the applicant failed to meet the mandatory criteria and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 3 April 2018. The matter was subject to orders made 26 April 2018 fixing the matter for hearing before the Court on 6 August 2018. On that occasion the applicant failed to appear and orders were made dismissing the proceedings under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. The applicant, on 4 September 2018, filed an application in a case seeking to have the proceedings re-instated. The affidavit in support proffered an explanation for the applicant’s failure to appear. That application was listed for hearing today and the applicant was granted leave to appear by audio link.

3. At the commencement of the hearing of the application in a case the Court explained to the applicant the nature of the hearing for the re-instatement of the proceedings under r.16.05(2)(a) of the Rules. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The applicant proffered an explanation orally that he had misunderstood the hearing date and was confused by documents. There is no documentary evidence identified that supports that confusion. The applicant’s affidavit referred to not being well on the date he had to go to Court. That proposition is inconsistent with the information given by the applicant. The applicant has explained that he had other people helping in relation to the application. That is not a proper basis that explains why the applicant failed to appear. There is no evidence before the Court that the applicant was suffering from a medical condition preventing his attending Court at the time of the hearing. On the face of the material before the Court, the applicant has not proffered a satisfactory explanation for failing to appear.

The ground

1. The sole ground in the application is as follows:

   1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

2. The proposition that the Tribunal failed to have regard to all aspects of the applicant’s claims does not identify any arguable case of jurisdictional error. On the face of the material before the Court, the applicant had a real and meaningful hearing in relation to the visa he was seeking.

3. Further, the applicant had raised with him the issue as to whether he was enrolled in a current course of study to meet the mandatory criteria for the grant of the visa. Accordingly, the Tribunal was not required to further consider the surrounding circumstances of the applicant where the mandatory criteria had not been satisfied at the time of the decision. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness.

4. The applicant maintained orally that the decision had not properly considered his circumstances. For the reasons just explained, once the Tribunal found the applicant was not enrolled in a current course of study, the applicant did not meet the mandatory criteria in order to obtain the visa. Nothing said by the applicant identifies any arguable case of jurisdictional error.

5. From the bar table in the course of the hearing, the applicant, whilst referring to the help that he had obtained from others, indicated that he was seeking an adjournment. The applicant’s desire to obtain an adjournment was to obtain further assistance in relation to the proceedings. The proceedings are not ones in respect of which it could be said that the applicant has not already had a reasonable opportunity to obtain assistance if he was able to do so. These proceedings were commenced on 3 April 2018, and on 26 April 2018 a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed. The adjournment application was opposed by the first respondent. For the reasons already given, the application before the Court has no real prospect of success. Taking into account the want of merit in relation to the proceedings before the Court, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the adjournment application is refused.

6. In relation to the application in a case, the Court has neither received a satisfactory explanation for the failure to appear, nor would there be any utility in the circumstances of the present case in setting aside the orders that were made on 6 August 2018.

Conclusion

1. The Court is satisfied that this is not a case where the interests of the administration of justice require the order made on 6 August 2018 to be set aside. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s power to dismiss the application for reinstatement. The application in a case filed on 4 September 2018 is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  14 November 2018