Uddin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1044
•5 MAY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Uddin v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1044
File number(s): SYG 2868 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 5 May 2021 Catchwords: MIGRATION – Application to reinstate application to review decision of Administrative Appeals Tribunal – no reasonable excuse for applicant’s absence from the hearing – no prejudice to the respondent – no arguable prospect of success on the substantive application – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) r 1303C
Migration Regulations 1994 (Cth) cl.500.211Cases cited: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Number of paragraphs: 25 Date of hearing: 5 May 2021 Place: Parramatta Appearing for the Applicant: In person with the assistance of an interpreter Appearing for the First Respondent: Mr Moss Solicitor for the First Respondent: Clayton Utz ORDERS
SYG 2868 of 2019 BETWEEN: MOHAMMED EHTESHAM UDDIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The application for reinstatement filed 6 November 2020 is refused.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $800.
EX TEMPORE REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)JUDGE OBRADOVIC
The applicant is a citizen of India who arrived in Australia on 6 August 2007 as a holder of a student visa. Between 2007 and 2017, the applicant was enrolled in and completed several business-related vocational courses. On 15 March 2017, the applicant applied for a further student visa on the basis of his confirmed enrolment in a Bachelor of Accounting course. On 13 June 2017, the Department of Immigration, Citizenship, Migrant Services & Multicultural Affairs (“the Department”) requested the applicant to provide further information, which included a request for information as to evidence of enrolment.
A confirmation of enrolment was provided by the applicant’s migration agent on 11 July 2017. On 25 August 2017, the Department requested further information from the applicant, noting that the applicant had been in Australia for more than 10 years without completing any courses above the vocational level and that the applicant previously had a course cancelled. The Department sought from the applicant further information as to the reasons for the enrolment in the accounting course and his intentions upon completing the course.
Through his migration agent, the applicant provided a response on 22 September 2017. On 10 November 2017, a delegate of the Minister Immigration, Citizenship, Migrant Services & Multicultural Affairs (“the delegate”) refused to grant the student visa on the basis that the delegate was not satisfied as to the applicant’s enrolment in the Bachelor of Accounting course for which confirmation of enrolment had been provided on 17 July 2017. The reason the delegate was not satisfied was because the enrolment had been cancelled for non-payment of fees and the applicant did not at the time of the decision hold enrolment in an acceptable course of study.
On 30 November 2017, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision. On 1 December 2017, the Tribunal acknowledged receipt of the application and advised the applicant that it had requested information from the Department and also advised the applicant that he could provide further material and arguments for the Tribunal to consider.
On 23 August 2019, the Tribunal invited the applicant to attend a hearing and also invited the applicant to provide all documents which he intended to rely upon to establish that he met the criteria for the visa, specifically requesting a copy of the applicant’s current confirmation of enrolment or other proof of enrolment. The applicant attended the hearing but did not provide any such documentation to the Tribunal at the hearing. Consequently, the Tribunal granted the applicant a further two weeks to provide such documentation.
Once again, the applicant did not do so. The Tribunal, on 8 October 2019, affirmed the delegate’s decision and refused to grant the visa. The Tribunal noted in its reasons that the applicant was required to satisfy cl.500.211 of the Migration Regulations1994 (Cth) (“the Regulations”), which required that he be enrolled in a course of study at the time of the decision. There was no evidence before the Tribunal as at 8 October 2019 that he was so enrolled.
On that basis, the Tribunal was not satisfied that the applicant met the criteria for the grant of a student visa. On 5 November 2019, the applicant filed an application for judicial review of the Tribunal’s decision before this Court. After appropriate directions were made, the matter was listed for hearing on 19 October 2020. Due to the applicant’s non-appearance at the hearing when the matter was called, the application for judicial review was dismissed pursuant to rule 13.03C of the Federal Circuit Court Rules 2001 (Cth). The Court also made an order for the applicant to pay the first respondent’s costs fixed in the amount of $6500.
On 6 November 2020, the applicant applied to this Court for his application for judicial review to be reinstated. That is the application which was listed for hearing today and which the Court heard today. The principles in relation to reinstatement applications are well known and were summarised by the Federal Court in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J as follows: First of all, the Court needs to consider whether there is a reasonable excuse for a party’s absence from the hearing in which the proceedings were struck out or dismissed. Secondly, the Court needs to consider the existence and nature of any prejudice which might flow to the respondent if reinstatement is granted and how that prejudice may be ameliorated. And, lastly, the Court is to consider whether the applicant has a reasonably arguable prospect of success on the substantive application. That substantive application, of course, before this Court is the judicial review application of the Tribunal’s decision.
The grant of relief which the applicant seeks today, being the reinstatement, is discretionary relief. The applicant relied on his affidavit filed on 6 November 2020 in support of the application for reinstatement. The entirety of that affidavit is as follows:
1.I am the applicant.
2.I went to the court on the day of the 19th of October 2020.
3.I wish to provide ticket of parking which I made copy of.
4.I went inside the court, and I accept that I was a few minutes late. The judge of the Federal Circuit Court dismissed my case without giving me sufficient time to arrive even though I was late.
5.I had every intention to attend the hearing and argue my case, but circumstances were beyond my control and it happened that I arrived a little bit late.
6.I do not agree with the judge’s order, even the cost of $6500, without even a hearing.
7.I was not contacted by phone by the court to see whether I’m available or not.
8.I admit that it took me time to find parking, but, still, the Federal Circuit Court failed to make enquiries about my presence.
9.I ask that my application in a case be accepted as I have an arguable case.
Before the Court today, the applicant made oral submissions and tendered a copy of his parking ticket for 19 October 2020 and confirmation of enrolment for a course which commenced on 21 September 2020.
In relation to the first issue that the Court needs to consider, that is, whether there is a reasonable excuse for a party’s absence, the Court does not find that there is a reasonable excuse proffered by the applicant as to why he was not in Court when the matter was listed for hearing on 19 October 2020.
The Court accepts what the applicant says, namely, that it took him some time to find parking. In circumstances where the applicant no doubt knew the importance of attending court and being here to prosecute his case, is not a reasonable excuse for his lateness. If this was a lone factor, without considering the other relevant factors, the Court might have excused the applicant’s lateness and non-attendance. The suggestions by the applicant in his affidavit that the Court ought to be telephoning the applicant or making inquiries as to why he is not in Court are naïve. It is not the Court’s responsibility to ensure that a party attends hearing on the date on which the hearing is set down at the time that the hearing is set down for. The Court has hundreds of matters that it deals with on a yearly basis, and it understands well that sometimes things may happen which might prevent a party from attending on time, but the Court is not obliged to make inquiries of an applicant as to why they are not in Court when their matter is called. It was for the applicant to ensure that he was at court at the right time for the hearing.
On 19 October 2020, when the applicant’s application was dismissed, the matter had been called outside of the courtroom and there was no appearance by the applicant. The applicant arrived after orders had been pronounced dismissing his application. It is unfortunate that he was late, but he was still late without an adequate explanation.
In relation to the second issue, being prejudice to the respondent, as submitted on behalf of the Minister, the fact that there might not be any prejudice or that the prejudice itself might be reversible is not a sufficient basis to grant the relief sought by the applicant.
In relation to the third issue, namely, whether the application for judicial review has reasonable prospects, the Court notes the two grounds of judicial review:
(1) The tribunal was aware of the limited time I had and failed to give me sufficient time to provide the CoE; and
(2) The tribunal was made aware that I’m a genuine student and that the department refused my student visa, and while I agree with the request for confirmation of enrolment, I do not agree with two weeks time because the college or colleges failed to enrol me without having a request in writing. The tribunal failed to give me the request in writing, and the member was aware that I was overseas and could not obtain CoE in a short time.
At the time of lodging his application for review before the Tribunal on 30 November 2017, the only documents that the applicant provided to the Tribunal were copies of the delegate’s decision and refusal letter and a copy of the applicant’s passport. On 1 December 2017, the Tribunal acknowledged the application and otherwise stated in its letter:
We have requested that the Department provide us all documents and files which they consider to be relevant to your application.
And then it further went on to say to the applicant:
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.
The applicant was aware at the time of the delegate’s decisions of the basis of the refusal of that decision. He understood, no doubt, that he needed to provide confirmation of enrolment in order to be granted a student visa.
On 23 August 2019, almost two years after he lodged his application for review to the Tribunal, the Tribunal wrote to the applicant inviting the applicant to attend a hearing on 20 September 2019 and informing the applicant to provide all the documents he intended to rely on to establish that he met the criteria for the visa.
The applicant was specifically asked to provide a confirmation of enrolment. Indeed, the applicant was asked to provide that confirmation of enrolment or other documents showing that the applicant was currently enrolled in a course of study as required by the Regulations at least seven days before the hearing. The applicant attended the hearing in person on 20 September 2019, and despite what the Tribunal requested both on 1 September 2017 but, more importantly, on 23 August 2019, the applicant did not provide the Tribunal with any confirmation of enrolment in an appropriate course of study.
Despite providing the applicant with that time and not having any documents produced, the Tribunal gave the applicant a further two weeks to provide confirmation of enrolment. The applicant did not do so. He says to the Court today that he was in India at the time; that is, after the Tribunal hearing, that he flew to India to get some medical treatment. Despite saying this to the Court today, there is no evidence that the applicant made such matters known to the Tribunal at the time of the hearing or that he requested further time to provide the confirmation of enrolment than the two weeks which the Tribunal had provided to the applicant.
The assertion by the applicant in his judicial review application that the Tribunal failed to provide the applicant with sufficient time does not stand up to scrutiny. The applicant was on notice from at least 1 December 2017 that he could provide further information, and the Tribunal specifically requested confirmation of enrolment or other proof of enrolment by its letter of 23 August 2019 and then again provided the applicant with additional time to provide proof of his enrolment at the hearing on 20 September 2019.
This is not insufficient time. As already noted, the applicant was at the hearing personally on 20 September 2019. There is no evidence that he raised the issue of having insufficient time to provide proof of enrolment due to his absence from the country subsequent to the hearing before the Tribunal. Despite the applicant being on notice for nearly two years of the necessity of providing enrolment documentation and being given multiple opportunities of doing so and receiving explicit requests that it be provided, the applicant had failed to do so.
The application for judicial review may best be described as an assertion that the applicant was denied procedural fairness before the Tribunal. Given the matters which the Court has just gone through, it is clear that the Tribunal provided the applicant with procedural fairness and that the grounds for judicial review have little to no prospect of success. No other grounds of judicial review have been identified by the applicant, nor is the Court able to discern any other grounds of judicial review which may be available to the applicant, having regard to the Tribunal’s decision.
As such, given that the Court finds that there was no reasonable excuse for the applicant’s absence from the hearing, but, more importantly, that there is no reasonably arguable case for judicial review, and in the exercise of the Court’s discretion, the application for reinstatement is refused.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 31 May 2021
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