FEDERAL COURT OF AUSTRALIA

Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is refused.

2.    The applicant pay the first respondent’s costs, to be fixed by way of a lump sum.

3.    If the parties agree on a lump sum figure in relation to the first respondent’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 15 August 2018.

4.    In the absence of any joint proposed order, pursuant to paragraph 3 of these orders:

(a)    on or before 4 pm on 22 August 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

(b)    on or before 4 pm on 29 August 2018, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5.    In the absence of any agreement having been reached on or before 5 September 2018, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant applies for leave to appeal from orders of the Federal Circuit Court made on 28 February 2018 by which the applicant’s application to reinstate her judicial review proceeding was dismissed. The applicant was unrepresented before this Court, as she was before the Federal Circuit Court. Nevertheless, the Federal Circuit Court observed, and I agree, that she “has demonstrated that she is much more capable than the average unrepresented litigant”.

2    For the reasons set out below, the application is refused.

The course of the application in this Court

3    I begin with an outline of what has occurred in this Court, because it is somewhat unusual, but not inconsistent with previous conduct by the applicant.

4    Prior to the hearing today, after considerable, unsuccessful, attempts by my chambers to contact the applicant, the applicant was able to be contacted by telephone on 31 July 2018 and contended that she had not received correspondence from the Court or from the Minister and was unaware of the hearing date in this Court. She sought an adjournment. She appears to have been based in New Zealand at all material times during this proceeding.

5    One of the principal bases on which the applicant sought an adjournment was that she was not able to secure the services of a lawyer to represent her at this hearing, and she explained the delay by reference to a communication from this Court’s Registry to the effect that her matter was likely to be heard in November and not in August, and therefore she was unprepared. That contention has proven not to be an accurate reflection of what the applicant was told.

6    The correct version of events was set out in an email from my chambers to the applicant on 1 August 2018:

I refer to your email of 31 July 2018 sent at 5.07 pm. Justice Mortimer has read your request for an adjournment in this email, and has also taken into account the terms of your application for leave to appeal, and your supporting affidavit. Her Honour has also read Judge Riley’s decision.

You state that “Registry had previously indicated that the matter would likely not be listed until November and we had been working around this estimate”.  In the screen shot of your inbox attached to your recent email is an entry referring to email from the Court (Lauren McCormick) on 8 June 2018.  I now attach a full copy of Ms McCormick’s email to you.  That email informs you “In the ordinary course, this matter should be listed in the 6 – 31 August 2018 Sitting Period in Melbourne.  However, this is only a guide and the Court will soon write to the parties with further information about the listing of this matter.”

In light of this email from the Court, and the clear fact that you received it, her Honour is not prepared to adjourn your hearing next week.

The hearing will proceed at 3 pm AEST on Monday 6 August 2018, and you have leave to appear by telephone from New Zealand.  The Court will arrange to call you on the number you provide.  

Her Honour will grant you leave to make oral submissions at the hearing in support of your application for leave, since you have not filed any written submissions in compliance with the Court’s orders.  Her Honour has asked me to inform you that you should particularly focus on what you contend are the errors in the decision of Judge Riley, made on 28 February 2018.

7    Accordingly, I refused the application for an adjournment and the applicant appeared by telephone from New Zealand at the hearing.

8    On the morning of the hearing, the applicant filed some written submissions. She later sought to recall them as these were submissions filed before the Federal Circuit Court. She then filed a further document, being submissions on this application. I have considered those submissions in reaching my decision.

9    The applicant was also given an opportunity to make oral submissions at the hearing, which she did with a high degree of capability.

Background

10    The applicant, a national of Mauritius, had arrived in Australia on a student visa which had expired in early 2007. In September 2007 the applicant had applied for the New Zealand Family Relationship visa on the basis of a de facto relationship with her then sponsor, who was a national of New Zealand residing at that time in Australia.

11    The application was refused by a delegate on 9 September 2008, on the basis the applicant did not meet a particular criterion for the visa. Essentially this criterion (see cl 461.213) related to whether the applicant had failed to satisfy certain other (usually mandatory) criteria because of factors beyond her control. It can be accepted that the way the delegate approached this issue was erroneous, and that was subsequently recognised in what happened next. The applicant sought review of the decision with the (then) Migration Review Tribunal on 29 September 2008, and sometime later, on 21 April 2010, the Tribunal set aside the delegate’s decision and remitted the matter to the delegate for reconsideration, on the basis that the delegate had misapprehended the cl 461.213 criterion. I will call this the first Tribunal decision. As the second Tribunal decision noted, some of the delays in the first Tribunal’s review processes were at the request of the applicant. In any event, the applicant secured a favourable outcome from the first Tribunal.

12    In between lodging her review application to the first Tribunal and its determination in April 2010, the applicant had been scheduled to marry her sponsor, Mr Fisher, on 11 February 2009. However, the wedding did not go ahead, and indeed departmental movement records indicate that Mr Fisher left Australia that very day.

13    For reasons I will explain, despite having succeeded before the first Tribunal, in the hearing before this Court, the applicant places some significance on the date of the delegate’s original decision on 9 September 2008.

14    On remitter to a delegate, as the second Tribunal noted, further delays in the consideration of her application were occasioned by the appointment of a new migration agent, a FOI request and a request that her new agent have time to consider the material. The second Tribunal described in its reasons that:

On 22 February 2011, a form 956 signed on 21 December 2010, and a Request for Access to Documents form 424A signed on 22 February 2011 were emailed to the Department by the applicant’s representative.

On 23 February 2011 the Department wrote to the applicant asking her to provide up to date evidence of the genuine and ongoing nature of her relationship with Mr Fisher.

15    The applicant did not respond to this request. Instead, she sought and obtained a bridging visa to visit New Zealand. In July 2011, the Department wrote to her asking her to provide the information requested about her relationship. The applicant did not provide the information sought. Instead she responded querying why it was necessary, asking for a decision on the existing material and filing a notice that her current agent had ceased to act.

16    One might infer, as events unfolded and which I describe below, that the applicant did not provide the information requested because by this time her relationship with Mr Fisher had ended. As I explain in the next paragraph, the applicant’s relationship with Mr Fisher was critical to the success of her visa application, as the name of the particular visa for which she had applied might have suggested.

17    On 15 September 2011, the Department again wrote to the applicant. This time the Department explained why the additional information had been requested, namely for the purposes of the time of decision criterion in cl 461.221. There is no need to set out the various steps by which this occurs through the visa criteria, but that criterion relevantly and ultimately required the delegate to be satisfied that the applicant and Mr Fisher were, at the time of decision, in a married or de facto relationship and a married or de facto relationship of a kind where there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing, and that the couple lived together, or did not live separately and apart on a permanent basis: see in particular the then regs l.15A(1A)(b) and l.15A(2)(c) of the Migration Regulations 1994 (Cth).

18    The applicant did not provide any further information. Unsurprisingly, her visa application was refused on 7 November 2011.

19    The applicant places some weight on the time taken to determine this remitted application, but as can be seen from the chronology, most of the delay was due to her own conduct. This was a point made by the second Tribunal.

20    The applicant sought review of the second delegate’s decision on 6 December 2011. There was a year’s delay before anything happened before the second Tribunal. However, this is not a delay of which the applicant complains coming, as she may now appear to accept, after her relationship with Mr Fisher had ended. The second Tribunal scheduled a hearing for early 2013, although the applicant sought to have the hearing postponed on more than one occasion. A hearing was held on 14 January 2013 at which, at the applicant’s request, the review was adjourned. The second Tribunal’s reasons set out a considerable amount of correspondence backwards and forwards between the applicant’s representatives and the Tribunal about a resumed hearing. That eventually occurred on 7 February 2013, with the applicant having a newly appointed representative.

21    It was at this resumed hearing that the applicant’s representative contended, in reliance on the authority of the High Court’s decision in Shahi v Minister for Immigration and Citizenship [2011] HCA 52; 246 CLR 163, that although the relationship was now over, the time of decision criterion about the existence of a relationship should not be applied to the applicant, in all the circumstances but especially because of alleged delays in processing her visa application. The following aspects of the second Tribunal’s reasons recite the applicant’s position about her relationship with Mr Fisher, and were relied on to some extent by the applicant at the hearing in this Court:

Asked directly whether her relationship with Mr Fisher had broken down, the applicant indicated that it had, but that she still wished to make submissions about the processing times. Asked when the relationship finished, she indicated that she was unable to say with any precision. The Tribunal observed that Mr Fisher’s departure from Australia on the very day the wedding was scheduled to have taken place might suggest that the relationship was over at that point. The applicant asserted that was not the case, that Mr Fisher had returned to New Zealand for work purposes, and that they had rescheduled the wedding. Documentary evidence of this is available. However by April 2010 the relationship was very rocky.

The Tribunal noted that the applicant had travelled to New Zealand in 2011, and asked whether she had seen Mr Fisher on that occasion, to which she replied that she had not. Asked whether she had travelled to New Zealand with the intention of seeing Mr Fisher the applicant again replied that in the negative, indicating that she had gone there for business purposes, as indicated on her Bridging visa B application made at that time.

The applicant was asked when she last saw Mr Fisher, to which she replied that he had left Australia in 2009. Asked whether she had seen Mr Fisher since then, the applicant, by way of reply, observed that by 2011 when she travelled to New Zealand the relationship was well and truly over, but she cannot recall when she lost hope about it.

22    The Tribunal rejected the applicant’s submissions and affirmed the decision under review. In doing so, it found (as inevitably the applicant’s own concession compelled it to find) that:

However, there is no evidence to suggest that the applicant continues to be the spouse of Mr Fisher at the time of the Tribunal’s decision, and indeed it was conceded at the Tribunal hearing that the relationship in question has ended. According to the conventional manner in which time of decision criteria have been assessed, this could be said to be determinative of this issue as to whether the applicant continues to satisfy subclause (2) and therefore cl.461.212.

23    In a careful, thorough series of passages, the Tribunal then explained why the circumstances which arose in Shahi had no application to the visa criterion with which the Tribunal was concerned. I return to its reasoning below.

The proceedings in the Federal Circuit Court

24    The applicant had filed a judicial review application on 22 March 2013 to review the decision of the second Tribunal.

25    In its eventual reasons which are, with its orders, the subject of complaint in this application (Savrimootoo v Minister for Immigration [2018] FCCA 449 at [14]-[20]), the Federal Circuit Court describes the process adopted after the judicial review application was filed. The matter came on for a directions hearing on 15 May 2013 and was listed for a final show cause hearing, by consent, on 9 December 2013. However, the applicant left Australia before this hearing, on 31 October 2013, and travelled to New Zealand. She did not return for the hearing, and her judicial review application was dismissed on 9 December 2013.

26    Before the Federal Circuit Court the applicant claimed she filed a reinstatement application on 6 January 2014, but as the Federal Circuit Court pointed out in its reasons (at [16]) that application was rejected by the Registry in what were undoubtedly justifiable circumstances, because the affidavit in support had not been sworn or affirmed and the fee exemption form had not been properly completed. The applicant was advised about how to comply with the requirements for filing but did not attempt to file another application until 21 December 2017.

27    It was that application for reinstatement – more than four years after the scheduled hearing of the applicant’s judicial review application and the dismissal of that judicial review application – which was the subject of the Federal Circuit Court’s reasons and orders in February of this year.

Do the Federal Circuit Court reasons disclose any error?

28    The Federal Circuit Court reasons work systemically through the lengthy narrative of the events concerning this visa application. The Court then turns to the matters it needs to consider on the reinstatement application and sets these out at [21]:

The court explained at the commencement of the hearing that the matters to be considered in a reinstatement application are the period of the delay between the matter being dismissed and the application for reinstatement, the reason for non-attendance at the hearing, whether there is any prejudice to the other party, and the prospects of success.

29    The applicant does not contend the Federal Circuit Court erred in its description of the matters it needed to consider. Rather, she contests how it dealt with these matters.

30    Before this Court, the applicant did not seriously challenge that part of the Federal Circuit Court’s reasons concerning the lengthy delay of four years between the dismissal and the reinstatement application. Instead, she submitted this was not really a feature of the Federal Circuit Court’s reasons. I disagree. While the Federal Circuit Court, correctly, noted that it needed to consider the other factors to which it had referred at [21], the Federal Circuit Court plainly considered the length of the delay to be of some weight. Having rejected each and every one of the applicant’s explanations for her delay (ranging from medical reasons to lack of legal representation, to her seeking Ministerial intervention as an alternative option), the Federal Circuit Court concluded:

All in all, I do not consider that the applicant has given an adequate explanation for her delay. The length of the delay is extraordinarily long. A four year delay between the dismissal for non-appearance and an application to reinstate is very unusual in the migration jurisdiction. The Minister submitted that the delay is a sufficient reason of itself to dismiss the application for reinstatement. I would not put it so highly. I consider that it is also necessary to consider the other aspects of the case.

31    The applicant did challenge how the Federal Circuit Court dealt with her explanation for not attending the 9 December 2013 hearing. The applicant has deposed in an affidavit filed in support of her application that she left Australia on 31 October 2013 due to a family emergency, namely that her father was dying, but it also appears she held a bridging visa due to expire in November 2013.

32    The Federal Circuit Court dealt with this particular series of events and the applicant’s non-attendance at the 9 December 2013 hearing at [31]-[41] of its reasons. The applicant appeared to contend that the Federal Circuit Court made some factual errors in this part of its reasons, and was unjustifiably critical of her, which supported the grant of leave to appeal. Essentially, her own contentions in the hearing in this Court were:

    She mistakenly wrote down the hearing date as 17 December 2013 and proceeded on this mistaken assumption.

    She could not access her Australian email in New Zealand without a security code which was sent to her Australian phone, and she could not access that phone in New Zealand.

    She therefore did not receive emails from the Court and the Minister about the 9 December date.

    On 12 December 2012 and of her own motion, she wrote to the Minister and the Court asking for an adjournment of the hearing she thought was on 17 December 2013.

    It was only then that she discovered orders dismissing her application had been made on 9 December 2013.

33    There is some support for the applicant’s version in her letter of 12 December 2013, which the Court asked the Minister to provide to it, and which was marked as an exhibit in this proceeding, it not otherwise being contained in the Court Book.

34    Even if I were, contrary to the Federal Circuit Court’s view of the applicant’s account, to accept this is what occurred, it does not ultimately assist the applicant. The point remains that between 31 October 2013 (when she left Australia) and 12 December 2013, she did nothing to contact the Minister or the Court about her judicial review application, her change of contact details, the hearing date, and whether she would be available for such a hearing. Thus, the Federal Circuit Court’s finding at [39] and [41] were still available to it, even on the applicant’s different narrative:

In any event, the fundamental fact is that it was incumbent on the applicant to keep the court and the Minister apprised of her correct and current contact details, and it was incumbent upon her to ensure that she was aware of the correct hearing date. Her explanations for being unaware of the hearing date are not credible.

…

All in all, I do not consider that the applicant’s reasons for non-attendance are adequate. The applicant could have approached the Minister and the court in good time to seek an adjournment to enable her to deal with her family circumstances in New Zealand, or she could have sought to attend the hearing by telephone, just as she did on 8 February 2018.

35    Finally, the applicant challenged the view taken by the Federal Circuit Court of the prospects of success of her judicial review application. This was essentially on the same basis the applicant’s representative had put to the second Tribunal: namely, that it was open to the Tribunal to take the same approach to the visa criterion in cl 461.221 that the High Court found should have been taken to the visa criterion in Shahi’s case, so that the delay in deciding the applicant’s visa application and the ending of her relationship with Mr Fisher were not fatal to her satisfying cl 461.221.

36    The facts in Shahi appear from the first paragraph of the reasons of the plurality reasons:

The plaintiff, a refugee from Afghanistan, holds a protection visa. He proposed that his mother (and some other relatives) be granted visas to enter and remain in Australia. A criterion for the grant of the visa for which the plaintiff’s mother applied was that at the time of her application she continue to be a member of the proposer’s immediate family. After the mother made her application, but before the Minister’s delegate decided whether to grant or refuse the application, the plaintiff attained eighteen years of age and, as a result, the mother ceased to be a member of the plaintiff’s “immediate family”. The Minister’s delegate decided that the mother’s ceasing to be a member of the plaintiff’s immediate family required that the mother’s application be refused.

37    The relevant passages in Shahi are as follows:

22    All of the requirements of cl 202.211(2), other than the requirement about membership of the immediate family of the proposer, are requirements that, if met at the time of application, cannot thereafter cease to be met. Or to put the same point positively, the only one of the requirements of cl 202.211(2) satisfaction of which can change over time is the requirement about membership of the immediate family. That requirement can cease to be met by the simple effluxion of time (because the person in question attains the age of 18 years). It can cease to be met because dependency ceases. It can cease to be met because of a change in marital status (by dissolution of a marriage). It can change because there is some change in the relationship between persons that makes one the “de facto partner” of the other.

23    Whether such a change has occurred may obviously be affected by how long a time has elapsed between the application for a visa and the decision to grant or refuse the application. When the relevant change is the proposer’s attaining 18 years of age (as it is in this case), the length of time taken to decide the application will directly determine whether the visa applicant continues to be a member of the immediate family of the proposer at the time the decision to grant or refuse the visa application is made.

…

25    As already noted, cl 202.211(1) states alternative criteria yet cl 202.221 speaks of the applicant continuing to satisfy the (single) criterion in cl 202.211. It is, however, not a large step to take to read cl 202.221 (with its reference to continuing to satisfy a single criterion) as referring to continued satisfaction of whichever of the alternative criteria is relied on. If that step is taken, the question that then is posed in the present case – where the relevant alternative in cl 202.211(1) is par (b) (“meets the requirements of subclause (2)”) – is how cl 202.221 (“[t]he applicant continues to satisfy” the criterion) can or does engage with that criterion when it contains several requirements, each with a temporal aspect, but only one of which can vary over time.

26    There is an evident textual awkwardness in reading the requirement of “continues to satisfy” the criterion as engaging with only one of the several requirements that go to make up the relevant criterion. And that awkwardness is increased when the requirement in question is expressed as “continues to be” a member of the immediate family. As the plaintiff submitted, the requirement would have to be read textually as being that the applicant “continues to continue to be” a member of the immediate family of the proposer.

…

28    Although s 65A of the Act fixes the time within which the Minister must make a decision on certain applications for protection visas (those validly made under s 46 or remitted by any court or tribunal to the Minister for reconsideration), the Act and the Regulations do not fix the time within which a visa application of the kind now in issue must be decided. Yet it is not to be supposed that the Minister could refuse to consider a valid application for a visa or could unreasonably delay making the decision to grant or refuse the application. That is, the relevant provisions of the Regulations are to be construed on the footing that a decision to grant or refuse to grant a visa will be made promptly.

…

31    There is, as already noted, evident textual awkwardness in reading the requirement that an applicant continue to meet a single criterion as applying to only one of the several requirements that make up that criterion, and especially is that so when the temporal element of the relevant requirement is expressed as “continues to be”. But more than that, there is evident scope for capricious and unjust operation of the requirement in circumstances where its engagement depends upon the occurrence of a relevant factual change which, in the case of a person attaining the age of 18 years, depends wholly upon how promptly the application for a visa is determined. Why should such a construction of the provisions be adopted?

…

37    The Minister submitted that the relevant provisions should be read as having an operation in this case that was the same as that specifically provided in subdiv 202.32 (although that drafting was not adopted) lest, despite an intervening divorce, the Minister be obliged to grant a Subclass 202 visa to the former spouse of the proposer. Two points must be made in respect of this submission. First, it is a submission that depends, at least inferentially, on the unstated premise that conformably with the due administration of the Act and the Regulations the interval between application and decision may be so long that the relationship between proposer and visa applicant may deteriorate to the point of final rupture, even divorce. The premise should not be accepted. Second, even if the premise were to be accepted, the Minister has ample discretion to deal with such a case should it arise. The breakdown in relationship would bear directly upon “the extent of the applicant’s connection with Australia” (one of the matters to which the Minister is to have regard under subdiv 202.22 in deciding whether there are “compelling reasons for giving special consideration to granting to the applicant a permanent visa”).

Conclusion and orders

38    The Minister’s submission to the effect that adopting the plaintiff’s construction of the provisions would lead to an absurd result or a result contrary to the purpose of the provisions should therefore not be accepted. On the contrary, adoption of the Minister’s construction of the provision would lead to results that in some cases – including the present – are properly to be described as capricious and unjust. For these reasons cl 202.221 should not be read as engaging with cl 202.211(1)(b) or any of the requirements stated in cl 202.211(2). It is not a requirement for the grant of a Subclass 202 visa under cl 202.211(1)(b) that the visa applicant continue to be, at time of decision, a member of the immediate family of the proposer. Contrary to the Minister’s further submission, to read the provisions in this way does not give cl 202.221 no work to do. Clause 202.221 does have work to do but that work is confined to applications made on the basis of the first criterion stated in cl 202.211.

(footnotes omitted)

38    At [49] of its reasons in the present matter, the Federal Circuit Court expressed this conclusion about Shahi:

The High Court in Shahi considered the drafting history and context of the relevant provisions and concluded that the statutory construction proposed by the Minister was capricious and unjust. The High Court concluded that it was not a requirement for the grant of a subclass 202 visa that the visa applicant continue to be a member of the immediate family of the proposer. That conclusion was based on the statutory interpretation of the particular words applying to subclass 202 visas. It was not a general conclusion that the time of decision criteria stipulated for the purposes of other subclasses of visa do not need to be applied. Shahi is of no assistance to the applicant. It does not support the applicant’s argument that there was a jurisdictional error in this case.

39    That conclusion is correct.

40    Clause 461.221 requires that the applicant continues to satisfy the criterion in subclause 461.212(l) at the time of the decision. That clause provided:

The applicant meets the requirements of subclause (2), (3) or (4).

41    In turn, of subclauses (2), (3) or (4), the relevant subclause for the applicant was (2):

An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:

(a)    a person who is in Australia as the holder of a Subclass 444 (Special Category) visa; or

(b)    a person who:

(i)    is outside Australia; and

(ii)    will be accompanying the applicant to Australia; and

(iii)    will, on entry, be the holder of a special category visa.

42    I have referred above to what was required for the applicant to fall within the applicable definition of “member of the family unit”. The applicant made no challenge to those aspects being applicable. She simply asserted there was a way in which the reasoning in Shahi could be applied to remove the need for her to meet subclause (2) of cl 461.212 at the time of the second Tribunal’s decision.

43    There is no such way. The Federal Circuit Court was correct to reject this argument.

44    There is nothing absurd or capricious about the results of the ordinary construction and operation of cl 461.221 in its application to the applicant’s circumstances. It is correct that her relationship with Mr Fisher ended during the process of the first Tribunal review. That is unfortunate in a number of respects, but relevantly for her visa application it essentially determined the conclusion the Tribunal would need to reach. The fact that the Tribunal recommended Ministerial intervention demonstrates it was not unsympathetic to the applicant’s predicament.

45    The applicant did not put any alternative argument to the effect that the delay by the second Tribunal in her case was unreasonable: cf NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470.

My conclusions on the leave application

46    There can be no debate that the applicant requires leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant sought to contend to the contrary but this proposition, in relation to refusal of reinstatement applications by the Federal Circuit Court is now well established: see for example, Singh v Minister for Immigration and Border Protection [2017] FCA 231; SZTUR v Minister for Immigration and Border Protection [2017] FCA 1570; MZZQB v Minister for Immigration and Border Protection [2014] FCA 504.

47    The Court has a wide discretion in relation to the grant of leave. I have previously set out the applicable principles and my approach in MZZQB at [18]-[21] and CAL15 v Minister for Immigration [2016] FCA 1344 at [4]-[6].

48    Although in a colloquial sense an applicant will feel a sense of injustice if her or his application for leave to appeal is refused, that is not an injustice in the sense that term is used in the authorities. In the authorities, this phrase is often used to refer to what is at stake for an applicant, but also to reflect an evaluation of the merits of the argument put by an applicant. I noted in CAL15 at [42] that there can be no substantial injustice if the appeal has no prospects of success.

49    It is also not in dispute that the power exercised by the Federal Circuit Court in relation to reinstatement was a discretionary power and generally the applicant must demonstrate that the judge made an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 505. This generally involves an applicant persuading the Court that the exercise of judicial discretion in respect of which leave is sought miscarried in such a fundamental way as to justify appellate court interference: see Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [17].

50    For the reasons I have set out above, I am not persuaded that the exercise of discretion by the Federal Circuit Court in refusing to reinstate the applicant’s judicial review proceeding miscarried at all, let alone in any fundamental way such as to justify interference by this Court. The applicant made no real challenge to the Federal Circuit Court’s approach to her explanation for the four year delay in seeking reinstatement. Her challenges to the Federal Circuit Court’s findings about her reason for non-attendance at the 9 December 2013 hearing do not undermine the conclusions the Federal Circuit Court reached about the applicant’s responsibilities as the party prosecuting her judicial review application. The applicant’s reliance on the High Court decision in Shahi is misplaced.

51    The applicant did not, in her written or oral submissions, challenge any of the other aspects of the Federal Circuit Court decision, where the Federal Circuit Court went through ground by ground, another nine grounds of review advanced by the applicant before the Federal Circuit Court. I infer she correctly appreciated there was no merit in any of those other grounds.

52    Finally, there is the question of the utility of the application for leave to appeal. I raised this with the applicant at the hearing. I asked her what she submitted would be achieved if she was entirely successful: that is, if she was granted leave to appeal, her appeal was allowed, the Federal Circuit Court decided to reinstate her judicial review application and she succeeded in her judicial review application. What would she then seek to occur by way of relief on her judicial review application?

53    To this she answered that if the matter was returned to the Tribunal, the Tribunal would be required to decide her visa application on the state of facts about her relationship as they stood on 9 September 2008, the date of the original delegate’s decision. Of course, no doubt deliberately on the applicant’s part, this was a point in time before her relationship with Mr Fisher had ended.

54    However, such a scenario is plainly untenable. The Federal Circuit Court would not have power to undo the decision-making on the applicant’s visa application this far back. It could only set aside the second Tribunal decision, which is the decision it had jurisdiction to review. The Tribunal, on remitter, would be obliged to make the correct or preferable decision on the material before it at the time of the remitter. Plainly, it could only refuse the visa application as the applicant’s relationship with Mr Fisher ended, on her own account, more than seven years ago.

55    In any event, the applicant’s scenario would involve undoing the decision of the first Tribunal, which was favourable to her, and which set aside the 9 September 2008 decision. So far as the law is concerned, the 9 September 2008 decision no longer exists. There would be no jurisdiction in the Federal Circuit Court to undo this chain of administrative decision-making.

56    Although the Minister properly conceded he had not raised the utility of the application for leave to appeal before the Federal Circuit Court, nor in submissions on this application, the Minister submitted there was, in reality, no utility to the leave application. That is the view I also hold. Even if the applicant could have overcome all the matters I have set out in these reasons, I would in any event have refused the application for leave to appeal on discretionary grounds, because the appeal could have no utility.

57    The application for leave to appeal from the orders of the Federal Circuit Court on 28 February 2018 must be refused.

58    There is no basis for anything other than the usual order for costs in favour of the Minister. The parties will be directed to attempt to agree on a lump sum. In the absence of any agreement, there will be an assessment of an appropriate lump sum by a Registrar.

Associate:

Dated:    8 August 2018