The 21 November 2018 Orders
27 Nor does the applicant have reasonable prospects of establishing that the primary judge erred by making orders to dismiss the application for reinstatement.
28 The primary judge identified (at [19]) that r 13.03C of the FCC Rules provided the Registrar with a discretion to dismiss the application for non-appearance by the applicant. His Honour correctly identified (at [20]-[25]) the applicable principles in relation to the discretionary power to reinstate a proceeding, citing with approval the decision of Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] where her Honour said:
…the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
29 In relation to the applicable threshold the primary judge correctly noted (at [22]) that the exercise of discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review. His Honour cited with approval MZABP (at [6]) where Mortimer J explained that the relevant threshold is whether a ground of review is arguable, which means not fanciful, illogical, impermissible or devoid of merit, and the ground has a sufficient basis in the material before the Court for the Court to be satisfied it is appropriate to hear full argument.
30 The primary judge correctly noted (at [24]) that the decision whether or not to reinstate a proceeding is essentially discretionary and it therefore attracts the application of the principles in House v The King.
31 The primary judge considered the applicant's explanation for his failure to appear at the directions hearing (at [26]) and noted that the applicant said that he was unfamiliar with the Australian legal system and that he had not known the application was listed for a directions hearing. In light of the statements in the initiating application about the requirement to attend Court hearings, and having regard to FCC r 13.03C, his Honour concluded that the applicant did not have a reasonable excuse for his failure to attend. That conclusion was open.
32 The primary judge then went on to consider (at [31]-[39]) whether the applicant had an arguable case for judicial review.
33 His Honour correctly noted (at [31]-[32]) that certain criteria for student visas are set out in the Regulations, and that Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant a visa under s 65 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37]-[38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [40], [102]. That is significant because under cl 572.222 of the Regulations the Minister must be satisfied that an applicant for a student visa has a certificate of enrolment in a course of study. The Tribunal found that the applicant was not enrolled in a course of study at the time of the Tribunal hearing, which the applicant confirmed before the primary judge. His Honour concluded (at [39]), correctly in my view, that the Tribunal was therefore bound to reach the decision that it did because of the operation of cl 572.222. On this basis alone the application for judicial review is not arguable.
34 It is unnecessary to detail the four grounds of review before the Federal Circuit Court and it suffices to note that the primary judge concluded that grounds one and four were no more than an attempt at impermissible merits review and grounds two and three relied upon provisions of the Migration Act 1958 (Cth) which provided no support for a conclusion that it was reasonably arguable that the Tribunal's decision was vitiated by error. I can see no error in his Honour's conclusions in that regard.
35 The applicant failed to show an arguable case of error by the Tribunal. Adopting the language of the grounds of the proposed appeal, the primary judge did not summarily dismiss the initiating application and instead applied established principles in refusing to reinstate it. His Honour was not required to reinstate that application and list it for "a full and final hearing" just because the applicant requested that, nor was he obliged to "investigate and assess" the applicant's claims. The applicant did not identify any arguable error in the primary judge's exercise of discretion to refuse reinstatement and did not establish sufficient doubt as to the correctness of the judgment and orders made to warrant their review.