Federal Court of Australia Bhatt v Minister for Home Affairs [2021] FCA 1490 Appeal from: Bhatt v Minister for Home Affairs & Anor [2020] FCCA 1108 File number: VID 337 of 2020 Judgment of: O'BRYAN J Date of judgment: 29 November 2021 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from decision of the Federal Circuit Court of Australia not to reinstate application for judicial review – where Administrative Appeals Tribunal had dismissed application for student visa – where Federal Circuit Court had dismissed application for judicial review on basis of non-appearance at hearing – decision not attended by sufficient doubt to warrant reconsideration – leave to appeal refused Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c), r 16.05(2)(a) Federal Court Rules 2011 (Cth) r 35.11 Cases cited: ALQ17 v Minister for Immigration and Border Protection [2019] FCA 16 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 House v King (1936) 55 CLR 499 Sekigawa v Minister for Immigration and Border Protection (2016) 237 FCR 276 Singh v Minister for Immigration and Border Protection [2019] FCA 633 SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 32 Date of hearing: 20 October 2021 Counsel for the Applicant The applicant appeared in person Solicitor for the First Respondent Clayton Utz ORDERS VID 337 of 2020 BETWEEN: VIKESHKUMAR RAJENDRABHAI BHATT Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: O'BRYAN J DATE OF ORDER: 29 NOVEMBER 2021 THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'BRYAN J: Introduction 1 The applicant, Mr Vikeshkumar Rajendrabhai Bhatt (applicant), seeks leave to appeal from orders made by the Federal Circuit Court on 8 May 2020 dismissing his application (reinstatement application) to reinstate an application for judicial review after that application was dismissed for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). 2 The decision of the Federal Circuit Court to dismiss the reinstatement application was a discretionary decision made under r 16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order after it has been entered, if it was made in the absence of a party. The decision was interlocutory in nature, and the applicant accordingly requires leave to appeal to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A); SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 (SZUFS) at [2] per Reeves J. The test for whether leave ought to be granted was stated by the Full Court of the Federal Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor) at 398-399 per Sheppard, Burchett and Heerey JJ. The Court must consider: (a) whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 3 The test is cumulative. It will not be satisfied unless the applicant makes out both limbs of the test: Sekigawa v Minister for Immigration and Border Protection (2016) 237 FCR 276 (Sekigawa) at [12] per Flick J. 4 The present application was filed on 22 May 2020. Although the applicant applied for an order dispensing with compliance with r 35.13 of the Federal Court Rules 2011 (Cth), the application was filed within the 14 day time limit, such that no extension of time is required. 5 For the reasons that follow, I dismiss the application. Background 6 The Applicant is an Indian national. He arrived in Australia in December 2009 on a student visa. 7 On 29 September 2016, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa. A delegate of the Minister refused the application on 6 March 2017, on the basis that the applicant was not a genuine temporary entrant as required by cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). On 20 June 2018, the Administrative Appeals Tribunal (Tribunal) affirmed that decision on the same basis. 8 On 18 July 2018, the applicant filed an application for judicial review in the Federal Circuit Court (Application for Review). He also filed an affidavit in support of his Application for Review sworn on 18 July 2018. The Application for Review was sealed by the Registry in the usual way and a coversheet was attached to the Application for Review. The coversheet informed the applicant that the matter would come on for directions on 27 November 2019 at 10am. On 2 August 2018, the solicitors for the first respondent (the Minister) served on the applicant by post and email a Notice of Appearance and Response. In the correspondence, the Minister's solicitors reminded the applicant that the matter was listed on 27 November 2019 at 10am. 9 On 27 November 2019, a Registrar of the Federal Circuit Court dismissed the judicial review application pursuant to r 13.03C(1)(c) of the FCC Rules as the applicant failed to attend the directions hearing scheduled for that day. 10 On 14 February 2020, the applicant filed the reinstatement application to set aside the Registrar's orders under r 16.05(2)(a) of the FCC Rules, accompanied by a supporting affidavit, which annexed a psychologist report dated 7 February 2020. The applicant submitted that he had a reasonable excuse for non-attendance at the directions hearing as: (a) he had a condition that prevented his appearance; and (b) he had not been reminded by the Federal Circuit Court of the directions hearing. Decision of the Federal Circuit Court 11 The reinstatement application was heard on 20 April 2020. On 8 May 2020, the Court made orders dismissing the reinstatement application and delivered its reasons: Bhatt v Minister for Home Affairs & Anor [2020] FCCA 1108 (PJ). 12 In his reasons, the primary judge set out the applicable legal principles guiding the exercise of his discretion, as follows (PJ at [15]): 15. The following considerations, as set out by Driver J in SZUFS v Minister for Immigration and Border Protection [2015] FCCA 545 at [14], and affirmed by Reeves J in SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 at [18], are relevant to the exercise of the discretion: a) Whether there was an adequate reason for the non-appearance of the party; b) Whether there was delay in making the application to set aside the orders made in the party's absence; c) Whether there is any prejudice to the Minister in reinstating the matter that could not be adequately compensated for by an order for costs; and d) Whether an applicant has a reasonably arguable prospect of success on the substantive application. 13 The primary judge went on to briefly deal with (b) and (c). The primary judge noted in respect of (c) that the Minister had conceded that there was no prejudice to him that could not be cured by an order for costs. In respect of (b), the primary judge noted that he was not addressed at any length on the delay in the applicant filing his reinstatement application, and that any delay in the applicant filing the reinstatement application was not a matter that weighed in favour, or against, the applicant. 14 The primary judge observed that the focus of the argument before him was whether the applicant had an adequate reason for his non-appearance on 27 November 2019, and whether the applicant had a reasonable prospect of success on the substantive application for review. 15 In respect of the applicant's explanation for his non-appearance on 27 November 2019, the primary judge observed as follows (PJ at [19]-[30]): 19. The Applicant filed an affidavit sworn on 12 February 2020 in support of his application for reinstatement. In it, he deposes that he had a reasonable excuse for his failure to attend Court on 27 November 2019 as he had a condition that prevented his appearance. The Applicant has attached to his affidavit, a psychological assessment prepared by a psychologist dated 7 February 2020 ('Report'). 20. The Report discloses, inter alia, the following: a) the Applicant first consulted the psychologist on 8 January 2020; b) the consultation lasted for 1.5 hours; c) the Applicant suffers from, inter-alia, depression, anxiety, and also stress. These stressors are said to have 'formed the foundation for compelling circumstances and why these were beyond his control and why he failed in his performance in Australia as well as why he did not pay sufficient attention to the hearing date at The FCC last year' (paragraph 47 of the Report). 21. In the Report, the psychologist addresses, in various places, the failure of the Applicant to attend Court on 27 November 2019. Among other things, the psychologist refers to the Applicant not paying enough attention to important matters, such as attending the hearing because of cognitive deficits (paragraph 60 of the Report), and later, because of the malfunctioning of his brain and distress, anxiety and depression, 'he did not make the right choices' (that is, not attending the hearing on 27 November 2019) (paragraph 62 of the Report). 22. In his oral submissions, the Applicant also submitted that the November 2019 Court hearing was not in his mind because the date had been given to him almost one and a half years earlier, and because he had not received a reminder from the Court of the hearing date. 23. It is convenient to deal with the last mentioned points first. The Court does not issue reminders to litigants of their upcoming hearing dates. That a hearing date was allocated to the Applicant more than a year in advance is also not unusual given the length of the lists in this Court. There is nothing about these matters that is unique to this Applicant. If anything, it might be said that the Applicant in this matter at least had the benefit, albeit also more than a year in advance, of the reminder from the Minister's solicitors as to the hearing date. 24. I turn then to deal with the Report. The first aspect to note about the Report is that it flowed from an examination of the Applicant that took place on 8 January 2020. It is therefore a review and assessment of the Applicant's mental health as at that date. 25. The second aspect to note is that the psychologist, in being asked to assess the Applicant's mental health, notes that the assessment is taking place in a context where the Applicant is 'highly stressed' because he was informed about the consequences of his failure to appear at Court and that this 'gave rise to further episodes of depressed mood and anxiety as he could not understand why he missed the hearing' (bullet point 2, page 2 of the Report). It follows that the assessment of the Applicant's mental health and his stress and anxiety, is occurring in the context of the Applicant being informed of the consequence of his failure to attend Court on 27 November 2019. 26. Third, there are aspects of the Report that indicate that quite apart from his mental health, the Applicant acknowledged to the psychologist that he should have paid more attention to the hearing date. At paragraph 5 on page 3 of the Report, the psychologist notes: 'Moreover, he developed cognitive deficits because of chronic stress and had problems with his concentration, attention span and memory. Because of the aforementioned problems, he realised that perhaps he should have paid more attention to the said FCCA hearing last year'. 27. Similar sentiments are expressed by the psychologist at paragraphs 60 and 62 of the Report. These indications, when coupled with the submission the Applicant made to the Court during the hearing, suggest to me that the Applicant's non-attendance, at least in part, arose because he did not pay sufficient attention to the date or forgot about the date. 28. Finally, while the psychologist speaks to the stress, anxiety and depression affecting the Applicant and to the 'cognitive deficits' that resulted in him 'not paying enough attention to important matters such as attending the said hearing last August' (paragraph 60 of the Report), the Report is notable for what is omitted. There is nothing in the Report that I can see that indicates that the Applicant's condition was acute, or more importantly, acute on or around 27 November 2019. There is also nothing in the Report to indicate that the Applicant was prevented from attending, or was rendered unable to attend, Court on that day because of his condition, or that he could not participate in the hearing on 27 November 2019. 29. When all of these matters are considered, I am of the view that while the Applicant may have been or is suffering from anxiety and depression, it was not such as to prevent his attendance at, or participation in, the Court hearing listed for 27 November 2019. 30. For all of the above reasons, I find that the Applicant does not have an adequate explanation for his non-appearance at Court on 27 November 2019. 16 In respect of whether the applicant had reasonable prospects of success on the substantive application, the primary judge made the following observations regarding the grounds of review advanced by the applicant: (a) it was difficult to understand many of the applicant's grounds and many of the grounds were unparticularised (PJ at [35]); (b) many expressed no more than general disagreement with the Tribunal's findings, impermissibly inviting the Court to review the merits of the decision of the Tribunal (PJ at [36]); (c) many appeared to assert that the Tribunal had not properly considered the material, or had misapplied the applicable criteria – in this respect the primary judge stated that he was satisfied that the Tribunal had properly addressed the necessary considerations (as required by cl 500.212 of Sch 2 of the Regulations, and Ministerial Direction No 69), and that he had not identified any relevant consideration of material matter that had been overlooked or misapplied (PJ at [37]); (d) four of the grounds appeared to take issue with an apparent finding by the Tribunal that it lacked jurisdiction, which the primary judge was unable to find in the Tribunal's reasons (PJ at [38]); (e) in respect of the grounds of review that appeared to assert a denial of procedural fairness, the primary judge observed that Part 5 of the Migration Act 1958 (Cth) is taken to be an exhaustive statement of the natural justice hearing rule and that he was unable to ascertain how the applicant was denied procedural fairness in circumstances where he was invited to attend a hearing before the Tribunal, and afforded the opportunity to give evidence and make submissions (PJ at [39]); and (f) in respects of the grounds of review that appeared to assert that the decision of the Tribunal was unreasonable or lacked any intelligible basis, the primary judge stated that his review of the Tribunal's decision disclosed that the Tribunal followed a logical path in reaching its findings, and therefore did not accept that the decision of the Tribunal was unreasonable or lacked an intelligible basis (PJ at [40]). 17 For these reasons, the primary judge concluded that "when assessed at an impressionistic level, I find that none of the grounds of review in the Application of Review have a reasonable prospect of success" (PJ at [41]). Grounds of the application and applicant's submissions 18 The applicant was unrepresented and appeared in person at the hearing of the application. 19 Each of the application for leave to appeal and the applicant's draft notice of appeal, set out the following grounds of application: 1. not adopting a fair process in making the decision; 2. ignoring materials the decision-maker was required to look at; 3. relying on materials the decision-maker should not have looked at; 4. reaching a decision that is unreasonable in the legal sense; 5. making a decision for which there was no evidence, or that was not reasonably open on the materials. 6. That a breach of the rules of natural justice occurred in connection with the making of the Decision. 7. The FCC denied me procedural fairness in connection with the making of the Decision. 8. That the Decision involved an error of law, whether or not the error appears on the record of the Decision. 9. That procedures that were required by law to be observed in connection with the making of the Decision were not observed. 10. That there was no evidence or other material to justify the making of the Decision. 11. The FCC and the AAT did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders. 12. The merits of the case should have been taken into serious consideration in its totality and the substance rather than the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter. 13. The FCC and the AAT had the benefit of viewing all submissions uploaded and lodged together with the application for review but decided to dispose of the application for review without fully considering it under natural justice and on the its merits. 14. The FCC and the AAT with a predetermined mind and a preconceived outcome of having the application for review disposed without weighing and considering the factual circumstances presented. This has caused great unjust to me under Natural Justice and as such is a jurisdictional error on the part of the Tribunal member. 15. The decision to give a decision without considering the application on merits was irrational, arbitrary and vitiated by jurisdictional error. 16. The FCC and the AAT exercised its decision-making power unreasonably and unconscionably; 17. The FCC and the AAT exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidences in relation to my nominated position; 18. The FCC and the AAT exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving any weight on my oral explanations and the documents provided for consideration in this regard. If the FCC and the AA T had verified the matter individually and given me further opportunities to explain that could have led to a different decision by the FCC and the AAT. 19. The FCC and the AAT failed to exercise its jurisdiction by failing to consider "all aspects" of my claims based on genuine compassionate, compelling and extenuating medical grounds beyond my control which rendered me unable to and which prevented me from fully performing and complying with my visa conditions. 20 The applicant did not file written submissions. At the hearing, the applicant did not address the grounds of the application, but reiterated that his non-attendance at the initial hearing of the Federal Circuit Court was inadvertent. Minister's submissions 21 The Minister addressed each of the limbs of the test in Décor with respect to whether to grant leave to appeal. 22 In respect of the first limb of the test in Décor, the Minister submitted that the Federal Circuit Court's decision is not attended by sufficient doubt to warrant reconsideration. The Minister made the following arguments regarding each of the identifiable grounds advanced by the applicant: (a) There was no procedural fairness that could impugn the Federal Circuit Court's decision. The applicant appeared at the Federal Circuit Court hearing on 10 April 2020 by telephone (given the COVID-19 restrictions then in place) and made oral submissions in support of his application, and the Federal Circuit Court considered the grounds advanced by the applicant. (b) No error of law is evidenced in the Federal Circuit Court decision. The primary judge exercised his discretion not to reinstate the application, taking into account relevant considerations. (c) The Federal Circuit Court considered the applicant's reasons for seeking reinstatement. The Federal Circuit Court gave particular attention to the psychologist's report and involved an appropriate assessment of the merits of the applicant's judicial review grounds at an impressionistic level. (d) In relation to grounds challenging the Tribunal's decision, there is no error in the Federal Circuit Court's finding that, at an impressionistic level, none of the grounds of review in the Application for Review have a reasonable prospect of success. (e) Finally, in the absence of any evidence to support the applicant's assertions that the primary judge and the Tribunal member had a "predetermined mind" as the review was disposed without considering the factual circumstances, those assertions do not support the grant of leave to appeal. 23 In respect of the second limb of the test in Décor, the Minister submitted that the applicant would not suffer substantial injustice if leave to appeal were not granted, given the Federal Circuit Court's finding, at an impressionistic level, that the underlying application for judicial review did not have a reasonable prospect of success. The Minister submitted that neither the present challenge to the Federal Circuit Court's decision on the reinstatement application, nor the underlying application for judicial review, has any merit. 24 The Minister submitted that in any event, in circumstances where: (a) the Federal Circuit Court's decision was plainly correct; and (b) the test set out in Décor is cumulative, the question of substantial injustice need not be addressed by the Court. Consideration 25 For the following reasons, I consider that the decision of the Federal Circuit Court is not attended by sufficient doubt to warrant reconsideration. 26 The decision of the Federal Circuit Court to dismiss the reinstatement application was a discretionary one (pursuant to r 16.05(2)(a) of the FCC Rules). It is necessary, therefore, to identify an error in the exercise of that discretion of the kind contemplated in House v King (1936) 55 CLR 499 (House v King) at 505 (Dixon, Evatt and McTiernan JJ), namely acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the decision; mistaking the facts; or not taking into account some material consideration: ALQ17 v Minister for Immigration and Border Protection [2019] FCA 16 (ALQ17) at [7] per Perram J; see also SZUFS at [26] per Reeves J. 27 As summarised above, the primary judge dismissed the reinstatement application on the basis of two findings: (a) first, that the applicant did not have an adequate explanation for his non-appearance at Court on 27 November 2019; and (b) second, based on a high-level consideration of the underlying application, the applicant's substantive application for review of the Tribunal decision lacked sufficient merit. 28 In respect of the first of these findings, the applicant had provided to the Court a report from a psychologist which diagnosed him with anxiety and depression, and expressed an opinion that his chronic stress (and associated problems with memory and attention span) provided a reasonable explanation as to his failure to attend the hearing on 27 November 2019. The primary judge dismissed the utility of this report as an explanation, noting that it was prepared after the hearing (in January – February 2020), and did not explain the applicant's failure to attend the Court hearing in November 2019. Further, in respect of the applicant's submission that he had not received a reminder about the hearing date, the primary judge noted that the Court does not issue reminders to litigants about their upcoming hearing dates, and the applicant had received the benefit (albeit more than a year in advance) of the reminder from the Minister's solicitors as to the hearing date. Reasonable minds may differ as to the adequacy of the explanation offered by the applicant for his non-appearance at the hearing. However, on the material before the primary judge, I am not prepared to conclude that this finding was made in error. 29 As to the second finding, with respect to the underlying merits of the substantive Application for Review, I was not taken to and cannot identify any House v King style error in the primary judge's assessment of the underlying merits. 30 As to the long list of grounds of application advanced by the applicant, the grounds are formulaic and do not truly engage with the primary judge's reasons. Insofar as they raise any failure on the part of the primary judge to afford procedural fairness, I do not consider that there is anything that arises on the material to substantiate such a ground. The applicant's grounds of application also allege that the primary judge acted unreasonably in reaching his decision, that the primary judge approached the application with a predetermined mind, and that the primary judge otherwise failed to consider or appropriately weigh the evidence and submissions advanced by the applicant. Upon a close analysis of the decision of the primary judge, I am not satisfied that any of these grounds have merit. As is apparent from the reasoning extracted above, the primary judge identified the considerations relevant to the exercise of his discretion, with reference to the applicable authorities, and addressed each of those considerations in turn. I consider that the primary judge had appropriate regard to the materials before him. The primary judge's ultimate decision not to reinstate the application logically followed from his conclusions in respect of each of the two key findings set out above. 31 In respect of the second question that arises from the test in Décor, I accept that substantial injustice would likely result if leave were refused, supposing the decision to be wrong. This is the practical outcome of the finality of a refusal to grant leave which, in this case, deprives the applicant of the opportunity to advance his proceeding for judicial review in the Federal Circuit Court: see Singh v Minister for Immigration and Border Protection [2019] FCA 633 at [21] per Anastassiou J, citing ALQ17 at [6]. The test set out in Décor is, however, cumulative (Sekigawa at [12]) and leave to appeal ought not be granted where the decision at first instance is not attended by sufficient doubt. Conclusion 32 In conclusion, I dismiss the application for leave to appeal. Costs should follow the event. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate: Dated: 29 November 2021