Federal Court of Australia

Nadeem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1498

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    Pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

HORAN J

INTRODUCTION

1    On 7 June 2021, Judge Street of the Federal Circuit Court of Australia dismissed an application made by the applicant, Mr Hasnain Nadeem, to reinstate his application for judicial review of a decision of the Administrative Appeals Tribunal, which had been dismissed by earlier orders made by Judge Street on 5 May 2021. On each occasion, Judge Street made those orders in default of appearance of the applicant at the hearing pursuant to r 13.03C(1)(c) of the (now repealed) Federal Circuit Court Rules 2011 (Cth).

2    The applicant now seeks leave to appeal from the orders made by Judge Street on 7 June 2021.

3    As discussed further in these reasons, the applicant sought an adjournment of the hearing of his application for leave to appeal for a period of 6 to 8 weeks. There was no appearance by the applicant when the matter was called on for hearing on 29 November 2023. I note that the matter was also called outside the Court.

4    For the reasons that follow, I refuse the application for an adjournment of the hearing. Further, on the application of the first respondent, I dismiss the application for leave to appeal dated 22 June 2021 pursuant to rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) due to the applicant’s absence when the matter was called on for hearing on 29 November 2023.

BACKGROUND

5    The applicant is a citizen of Pakistan. He first arrived in Australia on 10 October 2011 as the holder of a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa granted on 28 September 2011. During 2012 and 2013, the applicant completed a Diploma of Business and an Advanced Diploma of Business and Management at the Australis Institute of Technology and Education.

6    On 5 July 2013, the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa, which was valid until 29 September 2016. He was enrolled in a Bachelor of Business degree at the Kent Institute of Business and Technology, but failed to complete that course, apparently due to medical issues arising from a past knee injury. The applicant’s enrolment was cancelled for non-payment of fees on 27 June 2014, following which he enrolled in a series of vocational education and training sector courses.

7    On 27 September 2016, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa. At the time of this visa application, the applicant was enrolled in a course of study at QIBA Pty Ltd for an Advanced Diploma – Leadership and Management.

8    On 19 December 2016, a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, refused to grant a Student (Temporary) visa to the applicant. The delegate was not satisfied that the applicant met clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth), the “genuine temporary entrant criterion”, which relevantly required that the applicant must be a genuine applicant for entry and stay as a student. Among other things, the delegate was not satisfied that the applicant had provided acceptable evidence for his lack of course progression, notwithstanding his claimed medical issues, and found that he was using the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.

9    On 5 January 2017, the applicant applied to the Tribunal for a merits review of the delegate’s decision. By letter dated 5 February 2018, the Tribunal invited the applicant to attend a hearing on 1 March 2018. Among other things, the hearing invitation letter specifically requested the applicant to provide a copy of his current Certificate of Enrolment or other documents that showed he was currently enrolled in a course of study as required for the grant of a student visa.

10    The applicant appeared at a hearing before the Tribunal on 1 March 2018, at which he gave evidence in person.

11    On 2 March 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. The Tribunal noted that the applicant had not provided evidence of current enrolment, and found that he was not enrolled in a course of study and clause 500.211 of Schedule 2 to the Migration Regulations was not met. The Tribunal therefore affirmed the delegate’s decision not to grant a Student (Temporary) visa to the applicant.

APPLICATION TO THE FEDERAL CIRCUIT COURT

12    On 20 March 2018, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth).

13    The application was listed before the primary judge for a show cause hearing on 5 May 2021. The applicant failed to appear at the hearing and the primary judge dismissed the application in default of appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules (as then in force).

14    On 10 May 2018, the applicant filed an application in a case seeking to set aside the orders dismissing the application and to have the proceeding reinstated pursuant to r 16.05(2) of the Federal Circuit Court Rules. The application was listed for an interlocutory hearing before the primary judge on 7 June 2021. The applicant failed to appear at the interlocutory hearing on 7 June 2021. The primary judge dismissed the applicant’s reinstatement application in default of appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules.

APPLICATION FOR LEAVE TO APPEAL

15    By application to this Court dated 22 June 2021, the applicant seeks leave to appeal from the orders of the primary judge of 7 June 2021. The applicant relies on the following three grounds in his application for leave to appeal:

1. The Hon. Federal Circuit Court judge erred in dismissing an application for judicial review without giving consideration to the fact presented to the AAT.

2. The Hon. Federal Circuit Cort judge erred in dismissing an application in a case without giving an opportunity to present case as Appellant was sick at both hearing.

3. Substantial injustice would be caused if leave is refused as the Hon. Federal Circuit Court judgement:

a. has denied a natural justice without considering legal mistakes by interpretation of relevant provision of the Migration Act at the AAT;

16    The applicant also relies on his affidavit of 18 June 2021, which relevantly states that:

5.    The Administrative Appeals Tribunal did not consider my evidence and affirmed decision of delegate of Department of Home Affairs on 2nd March 2018.

6.    I have applied for the judicial review of the Administrative Appeals Tribunal in the Federal Circuit Court of Australia.

7.    The Hon Federal Circuit Court Judge Street dismissed judicial review application on 7th June 2021 Annexed herewith an Annexure -AB1 a judgement of Hon Judge Driver.

8.    AAT refused my student visa application. Annexed herewith an Annexure -AB2 a decision of AAT.

9.    The judgement of Hon. Federal Circuit Court judge and Notice of appeal prepared and to file in the Federal Court of Australia for your consideration.

10.    I like to request Honourable Federal Court of Australia to consider my circumstance and mistake made by the Honourable Federal Circuit Court and Administrative Appeals Tribunal and allow my appeal to be heard and make decision in my favour.

17    The applicant has not filed any written submissions, or a draft notice of appeal, in support of his application for leave to appeal. I note that the filing of a draft notice of appeal is required under r 35.12(2)(d) of the Federal Court Rules, and directions were made by a Registrar of this Court in relation to the filing of such a draft notice of appeal (see orders made by Registrar McCormick on 20 July 2021).

18    This proceeding was initially listed for hearing on 13 November 2023 before this Court. A notice of listing was emailed to the parties on 6 October 2023 by the Registry.

19    On 12 October 2023, the applicant replied to the Registry’s email of 6 October 2023 and sought an adjournment of the hearing, stating as follows:

Dear Sir/Madam,

Trust you are doing well.

Thanks for the email.

I have an family Emergency-my grandfather is very sick and is in hospital ,so i have to leave urgently.

Kind Regards,

Hasnain Nadeem

20    On 13 October 2023, the Registry advised the applicant by reply email that the date of the hearing had been changed to 29 November 2023. The Registry’s email relevantly stated that:

(a)    orders determining the matter (including orders as to costs) may be made in the applicant’s absence if he or his lawyer did not attend court on this date;

(b)    if the applicant was unable to attend the hearing and sought an adjournment, he would need to apply to the Court in writing, setting out in detail the reason(s) why the adjournment was sought, together with any material in support of his request; and

(c)    the applicant should seek the consent of the Minister before requesting any adjournment and, if other parties did not consent, the Court may have to hold a hearing about his adjournment application.

21    On 22 November 2023, the applicant emailed the Registry seeking an adjournment of the hearing for a period of 6 to 8 weeks. The applicant’s email stated:

I would like to request that please postpone the hearing date as i m in my home country Pakistan and my family has a medical tradegy [sic] so i need to be here for 6-8 more weeks to support them in this bad timing.

22    Attached to the applicant’s email was a document that appears to be a medical certificate signed by Dr Amer Ikram of the Doctor’s Hospital & Medical Centre in Johar Town, Lahore, Pakistan. The medical certificate is dated 6 November 2023 and states:

To whom it may concern:

It is to inform you that ZAINAB BIBI is admitted in hospital due to her serious medical condition, has now shifted to I.C.U.

23    The medical certificate does not state the nature of Zainab Bibi’s medical condition. The applicant provided no further information in respect of the medical certificate, including, for example, the relationship of Zainab Bibi to the applicant, the circumstances of the applicant’s stay in Pakistan, or the nature of the support the applicant is providing to his family in Pakistan.

24    On 23 November 2023, my chambers wrote to the legal representatives for the Minister (copying in the applicant) seeking confirmation of whether the Minister consented to or opposed the applicant’s adjournment request.

25    On the same date, the legal representatives for the Minister wrote to my chambers by email (copying in the applicant) to advise that they were presently instructed not to consent to the applicant’s adjournment application on the basis that the Minister’s records indicated that the applicant last returned to Australia at Sydney’s Kingsford Smith Airport on 13 November 2023 and had not departed Australia since then.

26    On 24 November 2023, my chambers emailed the parties to advise that the hearing on 29 November 2023 would remain listed and that the applicant’s adjournment application would be dealt with at the outset of the hearing. The parties were invited to file any evidence or materials upon which they could rely in respect of the adjournment application by midday on 28 November 2023.

27    The applicant did not reply to this correspondence. The applicant has provided no clarification to the Court in light of the email from the legal representatives of the Minister as to whether the applicant is presently in Pakistan or Australia. No further material or evidence has been filed by the applicant in support of his adjournment application.

28    The Minister relies on an affidavit of Poorvaja Nirmaleswaran affirmed on 28 November 2023, which exhibits a copy of the applicant’s movement history record, indicating that the applicant last arrived in Australia on 13 November 2023, having previously departed on 16 October 2023, and has not again left Australia since his return.

29    On the morning of 29 November 2023, my chambers unsuccessfully attempted to contact the applicant by telephone at his nominated mobile phone number. As previously mentioned, the applicant did not appear when the application was called on for hearing on 29 November 2023, and the matter was called outside the Court.

CONSIDERATION

Application for adjournment of 29 November hearing

30    The power of the Court to grant an adjournment is discretionary, to be exercised having regard to the objectives in s 37M of the Federal Court of Australia Act 1976 (Cth): Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42] (Collier, Griffiths and Mortimer JJ). In MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392, Logan J relevantly stated (at [10]-[11]):

Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43]-[46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.

Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:

… the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.

31    As discussed above, the only material before the Court in support of the applicant’s adjournment application is the applicant’s email dated 22 November 2023 and the medical certificate dated 6 November 2023 for Zainab Bibi.

32    To be meaningful, a medical certificate must establish why or how it is that an applicant is unable to attend or participate effectively in the hearing: see eg, BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35] (Thawley J); Singh v Minister for Immigration and Border Protection [2017] FCA 216 at [13] (Murphy J). In the present case, the medical certificate provided by the applicant dated 6 November 2023 relates to an unspecified serious medical condition allegedly suffered by Zainab Bibi, who I assume is a relative or family member of the applicant, which is said to require the applicant to remain in Pakistan to provide support. However, the applicant has not provided any details by way of explanation of the nature of the support that he is said to be providing to his family or why this prevents him from attending or participating in the hearing. Further, based on the evidence before the Court, including the evidence of the applicant’s entry into and departure from Australia, I cannot be satisfied that the applicant is currently in Pakistan or that he is not currently in Australia.

33    In the circumstances, I am not persuaded to grant an adjournment of the hearing of the application for leave to appeal.

34    On the evidence before the Court, I am not satisfied that the applicant is not in Australia or that he is unable to attend the hearing.

35    Further, in refusing to grant an adjournment, I have taken into account the applicant’s prospects of success on the application for leave to appeal.

36    In order to obtain leave to appeal, it would be necessary for the applicant to establish that the decision of Judge Street of 7 June 2021 is attended by sufficient doubt as to warrant reconsideration on appeal, 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 (Sheppard, Burchett and Heerey JJ).

37    In his application for leave to appeal, the applicant asserts that the primary judge erred by dismissing his application for judicial review without giving consideration “to the fact presented to the AAT”, and by dismissing his reinstatement application without “giving [him] an opportunity to present case” as he “was sick at both hearings”.

38    As the Minister submits, these grounds do not demonstrate any error in the primary judge’s decisions on 5 May 2021 or 7 June 2021. The primary judge was expressly empowered by r 13.03C(1)(c) of the Federal Circuit Court Rules to dismiss the proceeding in default of the applicant’s appearance. The primary judge’s reasons for judgment dated 7 June 2021 provide an intelligible justification for exercising that power in relation to the reinstatement application, namely that the applicant was on notice of the hearing and that attempts had been made by the Court to contact the applicant by telephone on the day of the hearing. There is nothing to indicate that the exercise of discretion by the primary judge miscarried.

39    Further, as the Minister submits, it was and remains open to the applicant to make an application to the Federal Circuit and Family Court of Australia to set aside the orders of the primary judge of 7 June 2021. Such an application is available pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and may be regarded as the “proper course” as opposed to seeking leave to appeal from the primary judge’s interlocutory decision: Sahib v Minister for Immigration and Citizenship [2010] FCA 944 at [7] (North J). The applicant’s failure to make an application to the Federal Circuit and Family Court to set aside the decision of 7 June 2021 is a relevant consideration in favour of dismissing the application for leave to appeal: Singh v Minister for Immigration and Citizenship [2013] FCA 199 at [35] (Mansfield J); see also Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 905 at [20] (Colvin J).

40    Further, in relation to whether substantial injustice would be caused by the refusal of leave to appeal, it may also be relevant that the application for judicial review of the Tribunal’s decision arguably lacked any substantive merit, in circumstances where the decision to refuse the visa seems to have been inevitable on the facts as found by the Tribunal, including in particular that the applicant was not enrolled in a course of study at the time of decision as required by clause 500.211 of Schedule 2 to the Migration Regulations.

41    In those circumstances, I am not persuaded that it is in the interests of justice to grant a further adjournment of the hearing of the application for leave to appeal.

Application for dismissal in default of the applicant’s appearance

42    At the hearing on 29 November 2023, the Minister applied for the application for leave to appeal to be dismissed under r 35.33(1)(a)(i) of the Federal Court Rules on the basis that the applicant was absent when the matter was called on for hearing. Alternatively, the Minister applied for the dismissal of the application under r 35.32, either for the applicant’s failure to comply with directions of the Court (for example, in relation to the filing of a draft notice of appeal) or for want of prosecution.

43    Having regard to the circumstances, I consider that it is appropriate that the application for leave to appeal to be dismissed on the basis that the applicant was absent when the matter was called on for hearing on 29 November 2023. I am satisfied that the applicant had sufficient notice of the hearing on 29 November 2023. Having regard to the reasons given in relation to the refusal of the adjournment application, I am not satisfied that there is any satisfactory reason for the applicant’s non-appearance and it is proper for the application to be dismissed under rule 35.33(1)(a)(i) of the Federal Court Rules.

44    Accordingly, the orders of the Court are:

(1)    The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

(2)    Pursuant to rule 35.33(1)(a)(i), the application be dismissed.

(3)    The applicant pay the first respondent’s costs.

Associate:

Dated:    30 November 2023