Manzoor v Minister for Immigration and Multicultural Affairs

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court is an application in a proceeding filed on 3 March 2025, brought pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), to reinstate proceedings which were dismissed by me on 3 February 2025 for non-appearance.
2. The application for reinstatement is refused for the following reasons.

1. On 17 May 2019, a delegate of the Minister refused to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (visa), on the basis the delegate was not satisfied the applicant satisfied clause 500.212(a) of the Migration Regulations 1994 (Cth) (Regulations), being the genuine temporary entrant criterion (Court Book (CB) 63).
2. On 5 June 2019, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate's decision (CB 73).
3. On 30 April 2020, the Tribunal invited the applicant to provide further information regarding the requirements that he be both enrolled in a registered course of study and be a genuine applicant for entry and stay as a student (CB 79). On 14 May 2020, the applicant's migration agent responded to this request by completing the relevant form and attaching various documents pertaining to the applicant's tertiary studies (CB 86).
4. On 27 November 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant appeared assisted by his migration agent (CB 139).

1. On the same day of the hearing, on 27 November 2020, the Tribunal gave an oral decision affirming the delegate's decision under review. The Tribunal hand delivered to the applicant a letter regarding the oral decision on the same day, stating that the applicant may request a written statement of reasons be provided. The letter made clear that the request must be in writing and received within 14 days of the date of the oral decision (CB 144).

1. The applicant appeared at the hearing before me as a litigant in person. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in considering the reinstatement application and the relevant legal principles for reinstatement. I ensured the applicant was in possession of his applications for judicial review and reinstatement and the Minister's submissions.
2. In support of his application for reinstatement, the applicant relied on his affidavit affirmed 3 March 2025. The Minister objected to the second sentence of paragraph 6, the first sentence of paragraph 9, and the following words in paragraph 9, "these factors regrettably prevented me from attending the hearing", and paragraph 21 of the affidavit, on the basis that the said paragraphs or parts were inadmissible as they contained conclusions and were in the nature of submissions. I ruled that the said paragraphs or parts of the paragraph were to be treated as submissions.
3. The applicant also said to me at the hearing that he knew about the 3 February 2025 hearing date but did not understand he could represent himself.

1. The Court's power to set aside an order made in the absence of a party is set out in r 17.05(2)(a) of the GFL Rules. The principles in considering a reinstatement application are generally well-established: see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4]. I explained to the applicant that in considering whether to reinstate the proceedings the following three factors needed to be considered:

(a) Whether a reasonable excuse exists for the applicant not attending the hearing that led to the dismissal of the proceedings.

(b) The existence and nature of any prejudice which might flow to the Minister from the reinstatement.

(c) Whether the applicant has reasonable prospects of success on the substantive application.

1. In CAL15 at [4], Mortimer J (as Her Honour then was) explained that in relation to the third factor for consideration, the applicant need only raise "an arguable case on judicial review" and that this consideration was important because:

...if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

1. The applicant says he was under "immense emotional, psychological and financial strain". Between 17 June 2024 and 17 January 2025, the applicant says he was in Pakistan visiting his "very sick" mother. Due to being "under significant emotional pressure", the applicant claims he was not reading his emails carefully or was reading them but his thinking was clouded. The applicant claims during this period he was also unemployed. The applicant claims he was unable to secure funds to engage legal representation. The applicant claims he experienced health issues when he returned to Australia, including depression and anxiety. The applicant claims he tried to secure legal representation but when he could not, he was not sure what to do. The applicant says he was unaware he could seek an adjournment, he lost hope and did not know where to turn. The applicant claims it did not occur to him he could contact the Court to advise it of his circumstances.
2. The Minister did not cross-examine the applicant as to his evidence. Therefore, the applicant's evidence stands unchallenged and I find the applicant's explanation for the applicant's non-attendance to be a reasonable excuse for his non-attendance.

1. The Minister did not press any relevant prejudice in this case.

1. Turning to the merits of the applicant's substantive application, by an originating application filed on 30 December 2020, the applicant seeks judicial review of the Tribunal's decision on the following three grounds (reproduced below without alteration):

1. The Administrative Appeals Tribunal decision is unreasonable.

1. The Administrative Appeals Tribunal refused to give me written decision record even if after the time period, this is completely unfair and or against natural justice.
2. The Administrative Appeals Tribunal did not properly take into account information I gave during the hearing.

1. In relation to grounds 1 and 2, the applicant contended that the Tribunal gave an oral decision and when asked to provide written reasons, the Tribunal unreasonably refused and that refusal was unfair and against natural justice.
2. I note that:

(a) The Tribunal is permitted to provide oral reasons for its decision, which it did in this case.

(b) The statutory scheme in the Migration Act 1958 (Cth) (Act) requires the Tribunal to only provide written reasons if a request is made by the applicant within a limited time frame, being 14 days after the day on which the Tribunal made the oral decision (368D(4)(a) and (b) of the Act; Regulations, r 4.27B).

(c) The applicant's migration agent made the request for written reasons outside the 14 day period stipulated and the Tribunal did not provide the written reasons on the applicant's request.

(d) After the applicant's migration agent on his behalf filed the substantive application for review in this Court, the Minister then requested the Tribunal provide written reasons. Pursuant to s 368D(5) of the Act, the Tribunal provided the written reasons on 12 March 2021, and a copy was provided to the applicant. Unlike the applicant, the Minister under s 368D(5) of the Act, is permitted to make a request for written reasons at any time.

1. At the hearing before me, I asked the applicant whether he had received the written reasons of the Tribunal and read them. The applicant said he had. I asked if the applicant still claimed unreasonableness or that it was unfair for the Tribunal to have refused to provide written reasons, given that he now had been provided with a copy of the written reasons. The applicant confirmed his complaint was only in relation to the Tribunal's initial refusal.
2. I find that given the statutory scheme outlined at [18(b)] of this judgment, the Tribunal had no statutory obligation to provide the reasons to the applicant outside of the stipulated timeframe. Therefore, there was no unreasonable or unfair conduct on the part of the Tribunal. In any event the applicant now has the written reasons.
3. Given the matters in [17] to [20] of this judgement, I am not satisfied grounds 1 and 2 raise an arguable case.

1. In relation to ground 3, I asked the applicant what information he said the Tribunal did not take into account. The applicant said he told the Tribunal the reason he could not study was because his father was very sick with cancer and died, and this affected him and his studies. The applicant argued the Tribunal did not take this into account.
2. I am not satisfied that ground 3 is arguable because as can be seen from the following parts of the Tribunal's reasons, the Tribunal noted the applicant's father's ill-health and the impact on the applicant, but did not ultimately find that the applicant was a genuine student:

(a) The Tribunal at [24] of its reasons noted that the applicant had provided a hand-written report from a medical practitioner which was to the effect that the applicant was suffering anxiety issues, which apparently stemmed from his reaction to the terminal illness of his father. The Tribunal accepted that the applicant's father passed away in September 2018 after a long battel with cancer.

(b) At [25] the Tribunal also noted that it had no difficulty in accepting that the applicants' father's illness would most likely have impacted the applicant's ability to engage in productive studies in the Diploma of Management (DLM).

(c) The Tribunal at [40] said:

Even accepting, as I do, what the applicant has said concerning his late father's illness and eventual demise, and the effect which these events would have had on his studies in the DLM, much of his languid academic progress since then has been left unexplained. In completing say 9 out of 12 units in the combined CIV/Diploma course at TAFE but not proceeding any further with it for no reason other than asserted dissatisfaction with the course provider.

Given that and other unsatisfactory features of his academic history, the Tribunal is quite unable to accept that the applicant is a genuine student, that is a student who is engaging in studies to acquire knowledge and skills for legitimate purposes.

1. For the reasons given above the application for reinstatement is dismissed.
2. I will hear the parties on costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.