FEDERAL COURT OF AUSTRALIA

Bodige v Minister for Immigration and Border Protection [2018] FCA 2026

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    On 7 December 2018, I made an order that the application for leave to appeal be dismissed with costs. These are the reasons for those orders.

2    The Applicant seeks leave to appeal from the whole of the judgment of the Federal Circuit Court of Australia (the ‘Circuit Court’) given on 18 June 2018: Bodige v Minister for Immigration and Border Protection & Anor [2018] FCCA 1841.

3    The Circuit Court dismissed the Applicant’s application filed on 12 June 2018 in which he sought to set aside orders made by a registrar of the Circuit Court on 30 May 2018. On 30 May 2018, the registrar had dismissed the Applicant’s application for judicial review of a decision of the Second Respondent (the ‘Tribunal’), as the Applicant did not attend the directions hearing scheduled that day.

4    As the Circuit Court judgment was interlocutory, leave to appeal is required.

FACTUAL OVERVIEW

5    On 17 March 2014, the Applicant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) Visa (the ‘visa’).

6    Relevantly to this application before me, on 30 November 2016, a delegate of the First Respondent (the ‘Minister’) refused to grant the Applicant the visa. The delegate determined that the Applicant had failed to provide evidence that he was enrolled in an acceptable course of study for the purpose of cl 573.222(1) of Sch 2 to the Migration Regulations 1994 (Cth) (the ‘Regulations’). The delegate also determined that the Applicant did not meet the criteria for the grant of any other subclasses of visa in the Student (Temporary) (Class TU) Class.

7    On 20 December 2016, the Applicant applied for review of the Minister’s delegate’s decision to the Tribunal.

8    On 29 June 2017, the Tribunal invited the Applicant to appear at a hearing on 22 August 2017 to give evidence and present arguments. In that invitation, the Tribunal specifically requested the Applicant to provide a copy of his current ‘Certificate of Enrolment’ as was ‘required for the grant of a student visa’.

9    On 22 August 2017, the Applicant appeared at a hearing before the Tribunal. The Tribunal made an oral decision on the review application that day.

RELEVANT LEGAL FRAMEWORK FOR THE GRANT OF THE VISA

10    The criteria to be met by the Applicant at the time of decision were contained in Pt 573 of Sch 2 to the Regulations. Relevantly, cl 572.222 of Sch 2 to the Regulations provided as follows:

(1)    Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).

(2)    If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.

(3)    If the application was made on form 157E, the applicant is enrolled in an acceptable course.

11    Accordingly, the Applicant had to provide a certificate of enrolment relating to his undertaking a course of study (the provider of which was not a suspended education provider).

THE TRIBUNAL DECISION

12    The Tribunal identified (at [6]) that the Applicant had been invited on 29 June 2017 to provide evidence of his current enrolment as required for the grant of the visa. The Tribunal also observed that the Applicant had not provided such evidence and confirmed at the hearing that he was not currently enrolled (at [6]).

13    The Tribunal identified the significance of a visa applicant being enrolled in order to be able to assess whether the Applicant met the other criteria applicable to the grant of the visa (at [7]).

14    As the required evidence concerning his enrolment in an acceptable course was not provided, the Tribunal determined that the Applicant did not satisfy cl 572.222 of Sch 2 of the Regulations, and affirmed the decision under review (at [10] and [11]).

THE CIRCUIT COURT PROCEEDINGS

15    As indicated previously, on 18 September 2017, the Applicant applied for judicial review of the Tribunal decision in the Circuit Court. The Applicant did not appear at a directions hearing before a registrar of the Circuit Court on 30 May 2018, and his judicial review application was accordingly dismissed that day.

16    On 12 June 2018, the Applicant applied to the Circuit Court to set aside the orders made by the registrar on 30 May 2018. In an affidavit accompanying his application, the Applicant provided a medical certificate dated 28 May 2018 to explain his non-attendance at the directions hearing. The Applicant put forward a medical certificate dated 28 May 2018 from a general practitioner which identified that he was receiving ‘medical treatment... for the period’ 28 May 2018 to 31 May 2018 inclusive and he would be ‘unfit to continue his usual occupation’. He also provided a copy of his prescription for Maxolon tablets.

17    On 18 June 2018, the Applicant appeared at a hearing before the Circuit Court. The Circuit Court dismissed the Applicant’s application with costs.

18    At [2] of its reasons, the Circuit Court relevantly stated:

In considering any application for reinstatement, the court is required to consider the reasons for the person’s non-attendance at the hearing when the matter was dismissed for non-appearance, whether there is any prejudice to the respondent and if so, whether it can be ameliorated in some way, and whether the substantive application has reasonable prospects of success.

19    At [3]-[4], the Circuit Court had regard to the materials the Applicant had put on in support of his application. At [5], the Circuit Court identified that medical evidence to justify a person’s non-attendance at a hearing ‘needs to explain why a person is not able to attend the hearing and how their illness would prevent them participating in a hearing’, citing NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (‘NAKX’) at [6]. The Circuit Court concluded the medical evidence did not adequately explain his absence from the hearing (at [6]).

20    At [7], the Circuit Court observed the Minister would not suffer any prejudice not capable of being cured by an order for costs.

21    At [8]-[27], the Circuit Court then assessed whether the Applicant’s grounds contained in his judicial review application gave rise to any prospects of success. After setting out a factual overview (at [8]-[16]), the Circuit Court noted the Applicant’s concession at the hearing before it that he did not, at the time of the Tribunal’s decision, have a certificate of enrolment, but maintained that he was a genuine student (at [17]). As to the specific grounds of application:

(1)    Having regard to the pre-hearing communications from the Tribunal to the Applicant, the Circuit Court rejected that the Tribunal had denied the Applicant procedural fairness in relation to the ‘determinative issue’ of his being relevantly enrolled for the purposes of the visa criterion (at [19]-[20]). The Circuit Court also observed that the delegate had determined the visa application on the same basis.

(2)    The Tribunal’s conclusion that ‘the Applicant had had ample time to organise his material’ was, so the Circuit Court found, ‘reasonable in all the circumstances’ (at [21]-[22]).

(3)    The Tribunal did not need to consider the other criteria relevant to the grant of the visa once it determined that the Applicant did not meet a mandatory criterion (at [23]-[26]).

22    At [27], the Circuit Court concluded:

It seems to me that it is not reasonably arguable in this case that the Tribunal made anything that could amount to a jurisdictional error. In addition, the applicant’s reasons for failing to attend the directions hearing were not adequate.

23    While noting (favourably to the Applicant) that he had applied to set aside the orders of the registrar made on 30 May 2018 ‘promptly’, the Circuit Court considered, cumulatively, that it would ‘not be in the interests of the administration of justice for the... [judicial review application] to be reinstated’ (at [28]). The Circuit Court then dismissed the application (at [29]).

APPLICATION TO THIS COURT

24    By his application to this Court, the Applicant seeks leave to appeal from the judgment of the Circuit Court. He identifies a number of grounds. In summary:

(1)    The Circuit Court did not apply relevant legal principles in relation to an application for reinstatement as identified by Moshinsky J in BLJ16 v Minister for Immigration and Border Protection [2018] FCA 525 (‘BLJ16’) at [2].

(2)    The Circuit Court did not consider the prejudice that would flow if reinstatement was not allowed, citing MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (‘MZYEZ’).

(3)    The Circuit Court failed to consider that the Applicant had a reasonable prospect of success concerning his underlying judicial review application. It was submitted that the Tribunal had failed to comply with its obligations under s 359A(1) of the Migration Act 1958 (Cth) (the ‘Act’) by failing to put ‘clear particulars of information’ (contained in the delegate’s decision record) concerning the cancellation of his enrolment in Master of Business Administration to the Applicant for comment and response.

(4)    The Circuit Court failed to consider that the medical certificate the Applicant proffered was a reasonable excuse for not attending the directions hearing on 30 May 2018.

(5)    The Circuit Court failed to afford the Applicant procedural fairness and natural justice.

25    The Applicant then generally submitted that he had an arguable case in this Court. Other grounds relied upon by the Applicant have no bearing to any of the factual circumstances of this case, and do not need to be addressed.

CONSIDERATION

26    This Court should not grant leave to appeal unless satisfied, in all the circumstances, that the Circuit Court judgment is attended with sufficient doubt to warrant reconsideration by this Court in its appellate jurisdiction, and whether substantial injustice would result if leave was refused supposing the judgment of the Circuit Court was wrong: see eg SZUAR v Minister for Immigration & Border Protection [2016] FCA 742 (‘SZUAR’) at [6]. These two questions should be considered cumulatively as the answers bear upon each other, and the degree of doubt sufficient in one case may be different to that required in another: see SZUAR at [7]. However, if there is no realistic prospect of success in any of the grounds of application before this Court, there can be no injustice at all, let alone substantial injustice, in refusing leave to appeal: see SZUAR at [37].

27    In this application before me, the Applicant must demonstrate an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ) that is, it is necessary to show that the Circuit Court’s exercise of discretion was miscarried because the Circuit Court acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters, or made a mistake of fact. Alternatively, a failure to exercise properly a discretion may be inferred where the discretionary judgment is unreasonably or plainly unjust, which can apply when there is no error apparent on the face of the reasons given.

28    In my view, the Circuit Court correctly applied the legal principle governing the exercise of its discretion not to set aside the orders made in the Applicant’s absence on 30 May 2018. In this regard, and contrary to the Applicant’s complaints, it is apparent from the judgment of the Circuit Court (in particular at [2], [6]-[8] and [27]) that the Circuit Court identified, and then applied, relevant considerations as a guide for the lawful exercise of the Circuit Court’s discretion. For instance, in MZYEZ at [7], Ryan J identified that three factors need to be considered and, on balance, assessed as to whether they tended for or against reinstatement of the underlying substantive application. Those factors are:

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

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

(3)    whether the Applicant has a reasonably arguable prospect of success on the substantive application.

29    The Applicant’s identification of BLJ16 does not establish any error of any kind. BLJ16 is an example of the endorsement by this Court of the applicability of the three factors identified as relevant in MZYEZ in potentially permitting a party to reinstate their substantive proceeding earlier dismissed in their absence.

30    The Circuit Court’s failure to mention prejudice to the Applicant was of no moment, once the Court considered that there was no prospects of success of the application. The Circuit Court was correct to conclude that there was no prospect of success for the reasons given at [8]-[27].

31    Further, as to the alleged jurisdictional error concerning s 359A(1) of the Act, this is without any merit. First, the ‘information’ identified by the Applicant was not ‘information’ for the purposes of s 359A(1) of the Act, because it was not capable of being the reason, or part of the reason, for affirming the decision under the review having regard to the dispositive issue being the Applicant’s current, not past, enrolment in an acceptable course of study for the purposes of cl 572.222 of Sch 2 to the Regulations: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [13] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Second, even if it was ‘information’ for the purposes of s 359A(1) of the Act, as the Applicant gave a copy of the delegate’s decision record containing the ‘information’ to the Tribunal as part of the review application, the carve-out in s 359A(4)(b) of the Act were relevantly enlivened, meaning that the Tribunal had no obligation to put that information to the Applicant pursuant to s 359A(1) of the Act: see eg Singh v Minister for Immigration & Border Protection (2007) 253 FCR 267; [2017] FCAFC 105 at [49].

32    As to the complaint about the Circuit Court’s treatment of the medical certificate, it was open to the Circuit Court to find that the medical certificate did not give rise to there being an adequate explanation for his non-attendance at the directions hearing before the registrar on 30 May 2018. The Circuit Court’s identification as to what matters the medical evidence should have addressed was correct: see eg NAKX at [6]; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[50]. In Gill v Minister for Immigration and Border Protection & Anor [2018] HCATrans 199 (3 October 2018), commenting on a medical certificate submitted by a self-represented litigant that contained no more than the claim that the relevant applicant would not be able to attend the hearing in the High Court of Australia ‘due to a medical condition’, Nettle J observed:

The certificate is of a type which these days one sees all too often in applications of this kind. By means of its Delphic drafting, it purports to cloak an application for adjournment with the mantle of medical respectability while preventing any examination or objective assessment of the illness claimed to warrant special consideration and indulgence. For that reason, quite apart from the fact that it is not on oath, I give it no weight.

33    Finally, as to the complaint about the Circuit Court denying the Applicant natural justice or procedural fairness, this is not particularised and has no basis. The Circuit Court recorded in its reasons that the Applicant indicated at the hearing that he did not want to elaborate on the grounds set out in his judicial review application (at [18]).

APPLICATION FOR ADJOURNMENT

34    At the hearing before me, the Applicant appeared in person (accompanied by his wife), but at the outset sought an adjournment of the hearing. Two days prior to the hearing, the Applicant had by email dated 5 December 2018 sought the postponement of the hearing to a further date. This was on the basis of his wife’s pregnancy and ill health, and their first child being due on 26 January 2019. The Court was sent a medical certificate dated 5 December 2018 signed by Dr Sridevi Madhan Naidu which stated:

This is to certify that Ms Pallavi Bodige 32 weeks pregnant and her expected date of delivery is 26/1/2019

She has gestational diabetes and is on Insulin and needs to attend multiple appointments at Royal Womens Hospital

She and her husband do not have any other extended family here

She needs both emotional and support around the house to help her cope with pregnancy

It would be helpful if her husband could be granted postponement of the date of Hearing in court so he could be present in Melbourne for her delivery and to care for the Newborn

(errors in original)

35    In response to his email request and the content of the medical certificate, the Court informed the Applicant he could appear by telephone. Nevertheless, as I have indicated, the Applicant and his wife did in fact appear at the hearing, and sought an adjournment in person.

36    I refused the request for adjournment, which was opposed by the Minister. In addition to the grounds seeking a postponement set out in the email sent on 5 December 2018, the Applicant also sought an adjournment to enable him to obtain legal assistance. I refused the adjournment because:

    the medical certificate stated that the Applicant’s wife requires him to be present for the birth and care of his child, but his wife is not due to give birth until the end of January 2019;

    the Applicant was invited to seek leave to attend the Court hearing by telephone, and therefore avoid the need to be away from his wife for the duration of the hearing, but did not accept this invitation;

    although the potential outcomes of the hearing could cause his wife stress, this issue would not be addressed even if the hearing was adjourned to another date;

    the request for an adjournment had been made only two days prior to the hearing, despite the Applicant being notified of the hearing date almost two months earlier; and

    the Applicant had adequate opportunity to obtain (if he was able) legal assistance.

DISPOSITION

37    For the reasons set out above, the application for leave to appeal from the judgement of the Circuit Court was dismissed with costs.

Associate:

Dated:    14 December 2018