FEDERAL COURT OF AUSTRALIA

Muzammil v Minister for Home Affairs [2019] FCA 1892

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

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

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, 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);

(b)    within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, 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

MOSHINSKY J:

Introduction

1    The applicant, a citizen of India, applies for leave to appeal from a decision of the Federal Circuit Court of Australia to dismiss an application for reinstatement of a proceeding in that Court. The proceeding in that Court had earlier been dismissed as the applicant failed to appear at a directions hearing.

Background

2    The background to the matter is set out in detail in the reasons for judgment of the primary judge. It suffices, for present purposes, to set out the following brief chronology:

(a)    On 3 May 2008, the applicant was granted a student visa while offshore.

(b)    On 28 October 2015, the applicant applied for a Student (Temporary) (Class TU) visa (student visa).

(c)    On 5 September 2016, a delegate of the first respondent (the Minister) made a decision to refuse the visa application, concluding that he was not satisfied that the applicant genuinely intended a temporary stay in Australia.

(d)    On 22 September 2016, the applicant lodged an application for review by the Tribunal. The application was lodged by the applicant’s migration agent.

(e)    The hearing before the Tribunal was postponed following a request by the applicant.

(f)    On 14 February 2018, the Tribunal notified the applicant’s migration agent that the hearing had been rescheduled for 14 March 2018. Neither the applicant nor his migration agent attended the hearing. In these circumstances, the Tribunal made a decision to dismiss the application pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) by reason of the applicant’s failure to appear. The applicant’s migration agent was notified of the decision by email on the same day.

(g)    The applicant did not apply for reinstatement of the application within the 14 day period prescribed by s 362B(1B) of the Migration Act.

(h)    On 3 April 2018, the Tribunal confirmed the decision to dismiss the application. The Tribunal notified the applicant’s migration agent of that decision by email on that date.

(i)    The applicant applied to the Federal Circuit Court for judicial review of the decision.

(j)    The matter was listed for directions on 15 May 2019. The applicant was notified of the hearing date by the Minister’s lawyers, who also stated that if he did not appear at the directions hearing, an application would be made for the matter to be dismissed.

(k)    The applicant did not appear at the directions hearing on 15 May 2019. A Registrar of the Federal Circuit Court dismissed the proceeding pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the applicant’s failure to appear at the hearing.

(l)    On 23 May 2019, the applicant filed an application in a case seeking reinstatement of the proceeding.

(m)    A hearing of that application took place before the primary judge on 3 June 2019.

(n)    On 13 June 2019, the primary judge dismissed the application for reinstatement and published reasons for decision.

3    The reasons for decision of the primary judge are detailed. After setting out the background and the procedural history, the primary judge set out the applicable principles at [33]-[38]. The primary judge considered, at [41]-[45], whether the applicant had shown a reasonable excuse for his non-attendance at the directions hearing before the Registrar. After considering the evidence put forward by the applicant in some detail, the primary judge concluded at [44] that, in his opinion, no adequate explanation for the applicant’s non-appearance had been provided.

4    The primary judge considered whether the applicant had a reasonably arguable case at [47]-[54]. Again, the primary judge considered the matter in some detail. Ultimately, his Honour concluded at [54] that he did not consider there to be an arguable ground of review.

5    The primary judge also considered a number of other relevant matters before concluding that the application for reinstatement should be dismissed.

6    As the decision of the primary judge was interlocutory, the applicant requires leave to appeal. He has filed an application for leave to appeal, dated 19 June 2019. The application identifies four grounds for the application. These grounds are replicated in a draft notice of appeal. The four grounds are:

1.    The Federal Circuit Court erred in dismissing the case unfairly without any evidence.

2.    Ignored that the visa applicant has not been provided opportunity in the hearing.

3.    The Federal Circuit Court erred in Acknowledging the Appellants situation and therefore denial of Natural justice.

4.    Ignored the medical certificate provided by the applicant asking for re-scheduling the hearing.

(Errors in original.)

7    Further particulars of these grounds are set out in the application for leave to appeal.

8    In determining whether leave to appeal should be granted, the relevant considerations are: whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

9    The applicant, who is not legally represented, has not filed an outline of submissions. At the hearing of the application today, the applicant made brief oral submissions. He submitted, in summary, that he had provided adequate explanations for his non-appearance at the hearing before the Tribunal and for his non-appearance at the directions hearing before the Registrar. He also submitted that he had not had the opportunity to explain his case in relation to the application for a student visa.

10    In my view, the applicant’s grounds of review do not give rise to any sufficient doubt in the primary judge’s decision. The applicant attended a hearing before the primary judge to advance his case and relied on his affidavit and application in a case, which set out his reasons as to why he failed to appear at the directions hearing. The applicant asserted that he could not attend the directions hearing because he was unwell, and provided medical documents. The primary judge was conscious of these reasons and the medical evidence, as reflected in his reasons (at [21]-[24]). Further, the primary judge took into account the applicant’s oral submissions at the hearing and further medical evidence provided at the hearing (at [29]-[31]). The primary judge found that the applicant had not provided an adequate explanation for his non-appearance, also placing weight on the fact that the applicant had informed the Minister’s lawyers that he did not wish to be provided with consent orders and that he would attend the directions hearing (at [44]). Those findings were open to the primary judge. The applicant has not shown an arguable basis to contend that he was not afforded natural justice before the primary judge.

11    Further, the primary judge considered in detail whether the Tribunal afforded the applicant procedural fairness (at [49]-[54]). The primary judge found that there was no want of procedural fairness, that the statutory preconditions to dismiss the application were met (at [52]) and that the Tribunal’s exercise of its discretion to dismiss the application was not legally unreasonable (at [53]). No error, let alone sufficient doubt, is revealed by or apparent in these findings.

12    The applicant has failed to identify any error on the part of the primary judge in the exercise of the primary judge’s discretion to consider whether to reinstate the proceeding. The primary judge applied the principles for determining reinstatement applications to the circumstances of this case by considering the explanation for the applicant’s failure to attend the directions hearing and whether the substantive application had reasonably arguable prospects of success such as to warrant the reinstatement. See MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J.

13    Thus, in my view, none of the grounds contained in the application for leave to appeal or the draft notice of appeal establish any doubt as to the primary judge’s decision.

14    It follows that the application for leave to appeal is to be dismissed.

Associate:

Dated:    15 November 2019