FEDERAL COURT OF AUSTRALIA Rizvi v Minister for Immigration and Border Protection [2018] FCA 833 Appeal from: Application for extension of time: Rizvi v Minister for Immigration and Border Protection (Federal Circuit Court of Australia, MLG1815/2016, Order dated 1 November 2017) File number: VID 1252 of 2017 Judge: RANGIAH J Date of judgment: 16 May 2018 Catchwords: MIGRATION – application for extension of time to seek leave to appeal – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) s 116(1)(b) Federal Circuit Court Rules 2001 (Cth) rr 13.03(1)(c), 13.03C(1)(c), 16.05(2)(a) and 44.12 Federal Court Rules 2011 (Cth) r 35.13 Migration Regulations 1994 (Cth) Sch 8 Date of hearing: 16 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr R White of Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS VID 1252 of 2017 BETWEEN: SHAJI SURTEEB RIZVI Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 16 MAY 2018 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT RANGIAH J: 1 The applicant has filed an application seeking an extension of time and leave to appeal against an order of the Federal Circuit Court of Australia made on 1 November 2017. 2 On 24 August 2016, the applicant filed an application in the Federal Circuit Court seeking judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 28 July 2016. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to cancel the applicant's Vocational Education and Training Sector (Class TU) Visa. 3 The Federal Circuit Court made orders by consent that listed a "show cause hearing" pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) for 27 July 2017. By letter sent on 17 May 2017, the date of the hearing was relisted for 6 September 2017. At that time there was no appearance by the applicant, and the judicial review application was dismissed with costs pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules. 4 On 21 September 2017, the applicant filed an application in the Federal Circuit Court seeking to set aside the orders made on 6 September 2017 and to reinstate his application for judicial review. As the Federal Circuit Court's orders were made in the applicant's absence, the Court had the power to vary or set aside the orders pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules. The reinstatement application was listed for hearing on 1 November 2017. 5 On 1 November 2017, the applicant failed to appear at the scheduled hearing of the reinstatement application. The primary judge made orders dismissing the reinstatement application with costs pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules due to the applicant's non-appearance. 6 The applicant then filed in this Court his application for an extension of time and leave to appeal in relation to the orders of the Federal Circuit Court made on 1 November 2017. An order dismissing an application to reinstate the proceedings is interlocutory in nature. Accordingly, the applicant requires leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Further, the applicant requires an extension of time to seek leave to appeal as the application was filed one day outside the 14 day period prescribed by r 35.13 of the Federal Court Rules 2011 (Cth). 7 The applicant is a citizen of Pakistan who was granted his visa on 19 February 2014. That visa was subject to condition 8202 of Sch 8 to the Migration Regulations 1994 (Cth) which required him to be "enrolled in a registered course". On 23 September 2015, the Minister's delegate cancelled the visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant was not enrolled in a registered course and had thereby breached the condition 8202. 8 On 28 September 2015 the applicant applied to the Tribunal for review of the delegate's decision. On 29 July 2016 the Tribunal made a decision affirming the delegate's decision to cancel the applicant's visa. The Tribunal found that the applicant had not been enrolled from April 2014 to September 2015, a period of 17 months, and had accordingly failed to comply with condition 8202. 9 Having found that the applicant had not complied with a condition of his visa, the Tribunal proceeded to consider whether to exercise its discretion under s 116(1)(b) of the Migration Act to cancel the visa. The Tribunal found that the applicant had not enrolled in any course between April 2014 and June 2016 and that he had not actually engaged in studies since the end of 2012. While he had enrolled in a course in June 2016, he had not attended any classes. The Tribunal concluded that the applicant was not a genuine student and placed significant weight on that factor. 10 The Tribunal considered a submission made by the applicant that he wanted to enrol in a diploma course in business in Australia and would be disadvantaged if his visa were cancelled because he would have to enrol in a bachelor's course of study in Pakistan in order to gain business qualifications. The Tribunal decided to place no weight on that factor as the applicant had demonstrated no interest in studying in Australia over the previous four years. The Tribunal considered that the qualifications already obtained by the applicant in Australia would give him the opportunity and ability to find work in Pakistan. 11 The Tribunal did not consider that there was any reason why the applicant could not return to Pakistan. The Tribunal took into account that the cancellation of the visa would mean that the applicant would be unable to return to Australia for three years. 12 The Tribunal concluded that considering the circumstances as a whole, the applicant's visa should be cancelled. Accordingly, it affirmed the delegate's decision. 13 The applicant's application to this Court sets out the grounds of the application as follows. 1. I was not aware of time limit of interlocutory appeal to be less then normal appeal which is 21 days 2. was missgided by the Agent. 3. Application was dismissed I want federal court ot rehear the case (Errors in the original.) 14 The applicant has not filed a draft notice of appeal. However, an affidavit filed with his application sets out the following grounds: 3. The court did not take relevant information in to consideration 4. The court took irrelevant information into consideration 5. Application was dismissed I want federal court to rehear the case (Errors in the original.) 15 The applicant failed to appear at the hearing of his application before this Court. He has not filed any written submissions. Therefore, the merits of his application can only be judged from the proposed grounds of appeal and other material before the Court. 16 In order to succeed in his proposed appeal, the applicant will have to demonstrate error on the part of the primary judge in ordering that the applicant's application for reinstatement be dismissed. His Honour's orders of 1 November 2017 were as follows. 1. Pursuant to Rule 13.03C(l)(c) of the Federal Circuit Court Rules 2001, the application be dismissed. 2. The Applicant pay the First Respondent's costs fixed in the amount of $500.00. 17 Rule 13.03(1)(c) of the Federal Circuit Court Rules provides: 13.03C Default of appearance of a party (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following: (a) adjourn the hearing to a specific date or generally; (b) order that there is not to be any hearing, unless: (i) the proceeding is again set down for hearing; or (ii) any other steps that the Court or the Registrar directs are taken; (c) if the absent party is an applicant—dismiss the application; (d) if the absent party is a party who has made an interlocutory application or a cross claim—dismiss the interlocutory application or cross claim; (e) proceed with the hearing generally or in relation to any claim for relief in the proceeding. (2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just. 18 It is apparent from the orders that the applicant's application was dismissed because he failed to appear at the hearing before the Federal Circuit Court. 19 In the grounds articulated in the applicant's affidavit, the relevant information that the primary judge is alleged not to have taken into consideration, and the irrelevant information alleged to have been taken into consideration, is not described. No error is discernible in the making of the orders of 1 November 2017. 20 As the applicant has not demonstrated any prospects of success of his proposed appeal, his application for an extension of time to seek leave to appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 6 June 2018