FEDERAL COURT OF AUSTRALIA

Sandhu v Minister for Immigration and Border Protection [2015] FCA 1321

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed for non-appearance under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the first respondent’s costs of and incidental to the application for leave to appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Revised from transcript)

REASONS FOR JUDGMENT

1    The applicant applies for leave to appeal from orders of the Federal Circuit Court of Australia, dismissing, in substance, an application for reinstatement of a judicial review application: Sandhu v Minister for Immigration [2015] FCCA 2243. The judicial review application challenged a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal). This application was dismissed, however, when the applicant failed to appear at a hearing relating to it.

2    The applicant did not appear in court when the application for leave to appeal was called on for hearing. He has not filed any written submissions prior to today’s hearing.

3    The applicant was informed of the hearing date, time and place by emails and letters sent to the addresses that he had provided to the Court. The hearing date was confirmed on at least two occasions by correspondence sent to his email address. It is sufficient to refer to a letter sent by the Court on 1 October 2015 headed “Important Information about your Application Hearing” which notified the applicant of the time, date and place of the hearing today and to a letter sent by Mr V Murano, a lawyer acting for the Minister, dated 10 September 2015, sent by post and email to the applicant, explaining to him the need to appear at court hearings, the possible consequences if he did not appear, and his responsibility to keep up to date with what might happen in relation to his matter by keeping in contact with the Court.

4    I am confirmed in my view that the applicant was well aware of the hearing date and place by the fact that there was a telephone conversation between the applicant and a member of Chambers staff on 16 November 2015, some days ago, in which the applicant confirmed that he was aware that the hearing was listed for today, 25 November 2015, and that he understood that it was important that he attend. Unsuccessful attempts have been made today to contact the applicant on his mobile phone and to locate him in the surrounds of the Court.

5    The only matter that I would further note, properly brought to my attention by counsel for the Minister, was that the appeal book in this matter was apparently sent to the applicant by post on 17 September 2015 and returned to the sender some time thereafter. In view of the fact that Chambers staff spoke with the applicant as recently as 16 November 2015 and, as previously stated, the applicant then confirmed that he was aware of the hearing date, nothing seems to turn upon this. The applicant has not informed the Court that he is unable to attend nor has he sought an adjournment of the hearing today.

6    The Minister has filed written submissions prior to the hearing and has made an application this morning under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) to dismiss the application for leave to appeal by reason of the applicant’s non-appearance. The Minister also seeks an order that the applicant pay the Minister’s costs in relation to the application for leave to appeal. In the circumstances to which I have referred, I would dismiss the application for leave to appeal, for non-appearance under rule 35.33(1)(a)(i) of the Federal Court Rules. I am fortified in this decision by the fact that I would have refused the application for leave to appeal on the merits had it been necessary to do so and had no other consideration been brought to my attention further to that which appears on the Court file.

7    I would have reached this last-mentioned conclusion, for the reasons to which I now turn.

before the Tribunal

8    I begin with the proceeding before the Tribunal, since it was the Tribunal’s determination that the applicant did not meet a requirement for the grant of a temporary student visa that led to the judicial review application and ultimately the proceedings with which this Court is now concerned.

9    The Tribunal found that the applicant was an Indian citizen, who had arrived in Australia in February 2008. At that time the applicant held a subclass 573 higher education temporary student visa. He was later granted two subclass 572 temporary student visas onshore, the second of which was valid until 17 July 2012. A Ministerial delegate had subsequently refused his application, lodged on 8 July 2012, for a Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa. Central to the delegate’s decision was a finding that the applicant had not studied for a period of some 28 months during the time he was in Australia as the holder of a student visa, between November 2008 and July 2010 and then between April 2011 and December 2011.

10    The issue before the Tribunal on the review of the delegate’s decision was whether the applicant met the time of decision criterion in cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth), applicable to a subclass 572 visa. This criterion was that:

(1)    The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

(a)    the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)    the applicant's circumstances; and

(ii)    the applicant's immigration history; and

(iii)    if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)    any other relevant matter; and

(b)    …

The focus of the hearing was on the applicant’s intention.

11    The Tribunal found the applicant’s evidence was “often … confusing, vague and at times evasive and inconsistent”, and that the applicant “intended [it] to be so”. Notwithstanding this, the Tribunal found that it was likely that the applicant was enrolled or at least undertaking study for some period of time between November 2008 and June 2010 when he completed some 11 subjects towards a Certificate III in Hospitality, although it was not clear exactly how he had achieved this. The Tribunal was not satisfied, however, that the applicant was enrolled in a registered course in the period between 23 April 2011 and December 2011, notwithstanding that the applicant was aware of the need to maintain his enrolment.

12    The Tribunal ultimately concluded that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. In written submissions filed before the hearing in this Court, the Minister helpfully summarised the matters that undermined the applicant’s claim, namely:

(a)    the Tribunal’s finding that the applicant was not enrolled in a registered course between 23 April 2011 and December 2011;

(b)    the Tribunal’s finding that the applicant was still proposing to study a vocational education course when he had been in Australia for six and a half years and initially entered Australia holding a visa on the basis of enrolment in a bachelor degree;

(c)    the Tribunal’s finding the applicant had only enrolled in a course offering a diploma in marketing as a result of the Tribunal inviting him to attend a hearing;

(d)    the Tribunal’s finding as to the lack of detail or explanation as to how his asserted “personal life difficulties” prevented him from studying between August 2013 and May 2014;

(e)    the Tribunal’s finding that the applicant had not yet commenced or completed any studies at a degree level, and had instead obtained certificates and diplomas. It described his academic record as “not particularly good” in the context of a six and a half year stay in Australia; and

(f)    the Tribunal’s finding that his proposed further studies would do little to assist him in operating a future business in India, in light of the studies already undertaken. The Tribunal found that the applicant's current enrolment was designed to prolong his stay in Australia. The Tribunal made this finding in light of the evidence and material before it, including the applicant's evidence at the hearing.

13    Accordingly, the Tribunal found that the applicant had not met a requirement for the grant of a temporary student visa in cl 572.223, and affirmed the delegate’s decision to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth).

before the circuit court

14    On 3 February 2015 the applicant filed an application in the Federal Circuit Court for judicial review of the decision of the Tribunal. The applicant was given a “notice of filing and hearing” when he filed this application. The notice stated the correct date for a first directions hearing. In addition, Mr Murano (to whom I previously referred) wrote a letter to the applicant referring to the scheduled date (13 May 2015) and time of the hearing, providing him with the Court’s contact details and drawing attention to the need to keep himself informed of hearing dates and the potential consequences of his non-attendance at a hearing. (I note that this letter was in a similar form to that which Mr Murano sent to the applicant in relation to this hearing.)

15    The applicant was not present, however, at the first directions hearing scheduled for 13 May 2015. In consequence, the convening Registrar ordered that his judicial review application be dismissed for non-attendance: see Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c).

16    The applicant later filed another application in the Federal Circuit Court. This did not specify the orders sought, although in a supporting affidavit the applicant requested the Federal Circuit Court to “reopen” his “file”. The applicant further deposed that he did not attend Court on 13 May 2015 because he thought that the hearing date was 15 May 2015. He did not identify any basis for this belief. He said that he did not check the hearing date but did not explain why he did not do so. (I note that it would appear that this assertion is not open in the case of his non-appearance on this occasion.)

17    The Federal Circuit Court treated this application as one seeking to set aside the orders made by the Registrar on 13 May 2015, pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (which I shall refer to as the reinstatement application). The effect of setting aside the Registrar’s orders would have been to reinstate the judicial review application.

18    The reinstatement application was heard on 7 July 2015 and dismissed on 19 August 2015. In the exercise of discretion, the Federal Circuit Court Judge had regard to the factors set out in MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at [7]. These were:

    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

    the existence and nature of any prejudice that might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be diminished by an adjournment, an order for costs or other relief which the court is empowered to grant; and

    whether the applicant has a reasonably arguable prospect of success on the substantive application.

19    The Minister conceded in the Federal Circuit Court that reinstatement of the application would occasion no prejudice to the Minister that could not be remedied by an appropriate order for costs. This was noted by the Federal Circuit Court Judge.

20    The Federal Circuit Court Judge found that there was no reasonable excuse for the applicant’s absence from the hearing before the Registrar because the applicant had been given written notice of the time, date and place of the first hearing date in clear terms on at least two occasions and there was no basis shown for his mistaken belief as to the hearing date. Her Honour declined to accept the applicant’s claim that he was unable to attend for a medical reason because there was no supporting medical evidence.

21    The Federal Circuit Court Judge also held that there was no prospect that the applicant would succeed in his application to review the Tribunal’s decision. Her Honour set out the factual context, summarised the legislative framework and summarised the Tribunal’s reasons for decision. Her Honour observed that the applicant:

[Did] not identify any ground of jurisdictional error. Rather, he wishes to again agitate the merits of his visa application. That is not a matter for this Court and there is, thus, no prospect of the Applicant succeeding in his application for judicial review.

22    Having earlier summarised the approach taken by the Tribunal, the Federal Circuit Court Judge stated her satisfaction that there was no jurisdictional error in the Tribunal’s decision (at [20]):

The Tribunal made findings on the basis of the evidence and materials before it, and those findings were open to it. It applied the correct legal principles, identified all relevant issues for its consideration, and afforded to the Applicant procedural fairness. It concluded that the Applicant had no intention of undertaking or completing a degree course in Australia and such lack of intention existed from the outset.

23    In these circumstances, the Federal Circuit Court declined to exercise its discretion to set aside the Registrar’s orders.

24    The applicant appeals to this Court against the dismissal of his reinstatement application.

ANALYSIS

25    The Federal Circuit Court’s judgment dismissing the reinstatement application is interlocutory in nature and, in consequence, the applicant requires leave to appeal: Federal Court of Australia Act 1976 (Cth), ss 24(1)(d) and (1A). To obtain leave, the applicant must show that in all the circumstances the decision is attended by sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

26    The applicant’s application for leave to appeal dated 1 September 2015 lists the following grounds of application:

1.    I just want to … get my student visa.

2.    I already did a study during my time. I got all my certificates.

3.    I have my future in my study.

…

I just want to get my application to be approved in federal circuit court about my student visa. I missed my first hearing date by [confusion] of date.

(Errors in original.)

27    The application was accompanied by an affidavit of the applicant affirmed on 1 September 2015 and a draft notice of appeal. The affidavit included the following statement:

I going to lodge my application against the immigration. Because I got a refusal student visa from them without unnecessarily reason. I did all my studies during my student period. I got all my studies certificates. I just want to studies to make my bright future.

28    Under “Grounds of appeal” and “Orders sought” the draft notice of appeal stated:

    I just want to appeal in federal court about my student visa. Because I got refusal from Immigration without [illegible].

    I just want to get my application to be approved in federal circuit court. … I missed my first date hearing by confusion.

    I just want to get my student visa back.

    I want to complete my study and grant my student visa.

    I just want to get my file back into federal circuit court.

29    It must be borne in mind that an appellate court will not readily interfere with a discretion exercised by judge a first instance in relation to practice and procedure. To succeed in challenging the exercise of discretion by the Federal Circuit Court Judge to refuse reinstatement, the applicant needed to demonstrate that the Judge made an error of the kind identified in House v The King (1936) 55 CLR 499 at 505. That is, the applicant needed to show that this exercise of discretion has miscarried, because her Honour acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters or made a mistake of fact. A failure to properly exercise a discretion may be inferred in appropriate cases, where the discretionary decision is, upon the facts, unreasonable or plainly unjust. In essence, the applicant needed to show that the challenged exercise of discretion miscarried in such a fundamental way as to justify the appellate court’s interference: see Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [17]-[20].

30    The critical question would have been, therefore, whether the Federal Circuit Court made an error of this kind when exercising the discretion that arose on the applicant’s reinstatement application. There appears to be no error in her Honour’s identification of the legal principles which governed the exercise of discretion. Her Honour applied those principles, having regard to relevant matters. Her Honour gave close consideration to the Tribunal’s decision and the merits of the applicant’s judicial review application, bearing in mind that the applicant had identified no jurisdictional error in that decision.

31    It appears to me that it is unlikely that the applicant would have shown that the discretion exercised by the Federal Circuit Court miscarried in such a way as to justify this Court’s interference on appeal. No document filed by him disclosed any error of the kind mentioned earlier: see [29] above. It could not apparently be said that her Honour’s decision was attended by sufficient doubt to warrant its reconsideration; and the applicant would therefore have been unlikely to satisfy the first limb of the test in Décor 33 FCR at 398-399. Without such a showing of doubt, I would not have granted leave to appeal.

32    In any event the applicant could not apparently have shown, by any document that he has filed in this Court, that substantial injustice would have result if leave were refused, supposing the decision to be wrong.

33    The applicant instituted an application for leave to appeal from the dismissal of his reinstatement application. Even if the orders of the Federal Circuit Court were to be set aside, there would remain the question whether the reinstatement application should in any event be granted and, if it were, the applicant, on the judicial review application, would need to demonstrate jurisdictional error in the Tribunal’s decision. Having reviewed the Tribunal’s decision, I consider that it is most unlikely that the applicant would have been able to do so.

34    The applicant, as I have noted, did not formulate a jurisdictional error, or anything in the nature of a jurisdictional error, that would or might be examinable on an application for judicial review of the Tribunal’s decision in any of the documents he filed in this Court. From reading the Tribunal decision, I cannot discern any such error. It is apparent that the Tribunal reached its decision after examining the evidence and other material before it. It appears, as I respectfully note was stated by the Federal Circuit Court Judge, that the Tribunal made findings that were open to it on the materials before it, and identified and applied the legal principles correctly. There is no evident basis on which it might be said that some jurisdictional error was involved in the Tribunal’s conclusion that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily as required under cl 572.223(1)(a); and therefore that the applicant failed to satisfy an essential requirement of cl 572.223. In this circumstance, it appears unlikely that the applicant would have been able to show that substantial injustice would result if leave were refused, supposing the decision refusing his reinstatement application to be wrong.

35    As already stated, however, it is strictly unnecessary to delve into the merits.

36    As outlined above, the orders I would make are:

(1)    The application for leave to appeal be dismissed for non-appearance under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth)

(2)    The applicant pay the first respondent’s costs of an incidental to the application for leave to appeal.

Associate:

Dated:    25 November 2015