AHMAD v Minister for Home Affairs
[2019] FCCA 971
•21 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMAD v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 971 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal to affirm a cancellation of a student visa – where applicant requires an extension of time – no merit in substantive application – extension of time denied – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: ALG17 & Ors v Minister for Immigration & Anor [2017] FCCA 2816 Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | ATTEEQUE AHMAD |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 226 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 18 and 21 January 2019 |
| Date of Last Submission: | 21 January 2019 |
| Delivered at: | Perth |
| Delivered on: | 21 January 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Applicant’s application pursuant to s.477(2) of the Migration Act 1958 (Cth) for an extension of time within which to file an application pursuant to s.476 of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 226 of 2018
| ATTEEQUE AHMAD |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from transcript)
By application dated 27 April 2018 the applicant seeks an extension of time within which to lodge an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 21 March 2018.
The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) (the “Minister”) to cancel the applicant’s student visa.
The application for judicial review in this Court was filed two days outside the 35 day filing requirement provided in s.477(1) of the Migration Act 1958 (Cth) (the “Act”).
Section 477(2) of the Act provides that the Court might, in certain circumstances, order that the 35 day period be extended.
The Minister opposes the applicant’s request for an extension of time on the basis that the substantive application for judicial review is without merit.
Background Facts
The Court notes and adopts the summary of the background facts to this matter outlined by the Minister in written submissions dated 20 December 2018. This factual overview was not in dispute and provides, relevantly, as follows.
On 16 February 2015, the applicant, a citizen of Pakistan, was granted a Student Visa for study in Australia.
On 30 November 2017, a Ministerial delegate (the “delegate”) issued a Notice of Intention to Consider Cancellation (“NOICC”) and invited the applicant to respond (Court Book “CB” 6-10).
The NOICC was issued on the basis that the applicant had not complied with condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (the “Regulations”) because the Provider Registration and International Student Management System records indicated that the applicant had not been enrolled in a registered course of study since 22 September 2017 (CB 6-10).
On 7 December 2017, the applicant submitted the following documents in response (CB 11):
a)a letter dated 7 December 2017 setting out the following claims (CB 13- 15):
i)his Confirmation of Enrolment (“CoE”) at Edith Cowan University was cancelled because of his nonpayment of fees. He was unable to pay the fees due to problems at home, namely:
·his father was hospitalised and as a consequence suffered “financial complexity and unstablisation [sic] of funds”;
·his friend died of a drug overdose; and
·he felt sad and depressed about these events. His priority changed and he decided to pursue community studies so that he could contribute to the community and initiate change in Pakistan;
b)a medical certificate and affidavit indicating that his father was receiving treatment for back pain (CB 16-17);
c)a death certificate in respect of a 35 year old man called Ishaq (CB 18); and
d)two hospital documents indicating that his father had been treated for a back injury (CB 19-20).
On 12 December 2017, the delegate cancelled the applicant’s visa pursuant to s.116(1) of the Act on the basis that the applicant had not complied with condition 8202(2)(a) of the Regulations (CB 27).
The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa (CB 28-31).
On 22 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 32-33).
On 3 January 2018, the Tribunal invited the applicant to comment on the validity of his application (CB 43). On 17 January 2018, the applicant responded to that invitation (CB 44).
On 13 February 2018, the Tribunal invited the applicant to attend a hearing before it scheduled for 13 March 2018 (CB 59-62).
On 8 and 9 March 2018, the applicant submitted further evidence regarding his father’s back injury, his enrolment into a medical college in Pakistan and a statement of purpose setting out the following further claims (CB 84):
a)during his BBA Accounting course his step-mother died. He suffered depression and anxiety as a result (CB 87);
b)he was capable of supporting his financial needs as he belonged to a high-class and landlord family. His father earned about $7,000 per month and was committed to sponsoring his studies (CB 88); and
c)Pakistan is heaven on earth. He loved his country and would do anything for his country (CB 88).
On 13 March 2018, the applicant attended the Tribunal hearing to give evidence and present arguments. He was assisted by his representative (CB 82-93).
On 16 and 19 March 2018, the applicant provided further evidence including additional affidavits, emails, a letter of reason and his step mother’s death certificate (CB 99-136).
On 21 March 2018, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa (CB 140).
The applicant has now appealed the Tribunal’s decision and seeks judicial review in this Court.
Proceedings in this Court: Extension of Time Request
In evidence before the Court was a Court Book (“CB”) numbering 155 pages. The Minister filed detailed written submissions dated 20 December 2018. No written submissions were filed by the applicant, despite a Court Order permitting him to do so.
The applicant appeared in person and without legal assistance.
The applicant indicated to the Court that he had concerns in relation to the legal representation he had been offered by his lawyer. It is noted that the applicant first appeared before this Court on 18 January 2019. He did not have a copy of the Court Book with him. He advised that his lawyer had withdrawn from this case and had left the country for an extensive period.
The Court advised the applicant that if he had any concerns in relation to legal advice provided by his lawyers, he could address those concerns before the Legal Practice Complaints Committee.
The Court was concerned that the applicant did not have the Court Book with him. It has noted, however, that the applicant had had approximately one month to assess the Court Book and understand that this was a relevant document for these proceedings.
The Court determined that, in the circumstances, the hearing scheduled for 18 January 2019 should be adjourned so that the applicant could receive the Court Book from the Minister and seek further legal advice if so desired. Orders were made to that effect.
Mr Lettenmaier, for the Minister, sent the applicant a copy of the Court Book.
The hearing resumed on 21 January 2018. On that day, the applicant advised the Court that he had had an opportunity to go through the Court Book, and had it with him in Court.
The first issue the Court must address is whether the applicant should be granted an extension of time within which to file his substantive judicial review application.
Section 477(1) of the Act requires that an application for judicial review be filed within 35 days of the Tribunal’s decision. However, the Court may extend the 35 day time limit if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”: Act, s.477(2)(b).
In the current case, the application was filed outside the 35 day time limit by two days. The application is, as a consequence, not competent.
The applicant has made an application in writing for an extension of time. The grounds articulated for the extension of time are as follows:
The Applicant was misled by a migration agency and a law firm respectively that they could assist the Applicant with lodgement of the Federal Circuit Court application. By the time the migration agency and the law firm notified the Applicant they could not assist the Applicant the 35 day time limit in which to apply without an extension of time application being required had expired.
The Court must determine whether it is in the interest of the administration of justice to extend time.
As explained by Judge Nicholls in ALG17 & Ors v Minister for Immigration & Anor [2017] FCCA 2816, the factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide direction and guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; SZUWX v Minister for Immigration & Border Protection (2016) 238 FCR 456; MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158.
From the above authorities, it is evident that in determining whether the Court will grant an extension of time, the Court will generally look at the following factors:
a)length of delay and prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit: EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675 at [42] and [44].
The Minister has conceded that the delay here is short and no specific prejudice arises.
The Minister also conceded that the explanation provide is reasonable.
This then leaves the Court to address whether the substantive application has merit.
The applicant’s substantive application dated 27 April 2018 provides one ground of review:
1. That the Administrative Appeals Tribunal (Tribunal) has made a jurisdictional error by finding, without sound basis, that the Applicant’s stepmother’s death certificate was a fraudulent document (Finding). The Finding caused the Tribunal to doubt the Applicant’s credibility and therefore unduly influenced the Tribunal to affirm the Department of Home Affairs decision to cancel the Applicant’s visa.
To determine whether the applicant’s substantive application has merit it is useful to summarise the Tribunal’s decision in detail.
That was done (forensically) by Counsel for the Minister in written submissions at [13]-[24]. The Court has cross-checked all references relied on by the Minister, accepts the summary provided as accurate and adopts that summary as its own. That summary provides, relevantly, as follows.
The Tribunal noted that the issue before it was whether the applicant had breached condition 8202 of the Regulations (CB 141 at [5]).
The Tribunal found that on the evidence before it, the applicant was not enrolled in a registered course of study between 22 September 2017 and 6 December 2017 and that accordingly, the applicant had not complied with condition 8202 (CB 143 at [17]-[18]).
The Tribunal then went on to consider whether to exercise its discretion to cancel the visa (CB 143 at [19]).
The Tribunal was concerned about the signed, but undated, affidavits by the applicant’s father, brother and step-mother (CB 143-144, [22]). It noted that in the applicant’s written response to the NOICC, there was no mention of the passing of the applicant’s step-mother as being one of the reasons the applicant had not studied at the beginning of 2016, whereas in his “Statement of Purpose” the applicant had written ‘During the course my mother died and I got deeply depressed and got anxiety problems as I could not accept the death of my mother’s [sic]. But I tried to continue my studies.’ The Tribunal enquired about the fact that an affidavit purportedly written after his father’s medical treatment included a statement and signature from his deceased step-mother. The applicant explained that his younger brother had obtained the affidavit with a false signature (CB 144 at [23]).
In relation to his step-mother’s death certificate, the Tribunal noted that the applicant had provided a certificate from the “Services Hospital Lahore” rather than the provincial Government of Punjab (CB 144-145 at [25]). The Tribunal had regard to Department of Foreign Affairs and Trade reports which indicated that document fraud was endemic in Pakistan and that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents were common. The Tribunal did not accept that the death certificate was genuine and placed no weight on it. The Tribunal found that the applicant had submitted a fraudulent document and that the Tribunal then considered whether the other documents submitted were fraudulent or contained false statements (CB 144-145 at [25]).
The Tribunal found that the applicant’s explanations were not satisfactory as there was too much mutually unsupportive evidence to accept the applicant’s overall claim that his step-mother was seriously ill in 2017; that she died in March 2017; that he suffered psychologically; and that his father’s illness caused the applicant’s non-enrolment (CB 145 at [26]).
The Tribunal found that the applicant deliberately and knowingly submitted fraudulently obtained documents to augment his otherwise weak and unconvincing reasons for not being enrolled at the time of his NOICC response. It found that this had so extensively undermined his overall credibility that it could not provide him with the benefit of the doubt about his critical claims (CB 145-146 at [27]).
The Tribunal did not accept:
a)that the subsequent affidavits reflected the genuine financial circumstances that the applicant was unable to pay tuition fees (CB 146 at [29]);
b)that the applicant’s step-mother had passed away (CB 146 at [29]);
c)the applicant’s explanations for the inconsistencies in relation to his friend’s death certificate (CB 146 at [30]);
d)the explanation in the specific claim that his family did not have the financial capacity to pay the applicant’s tuition fees between September 2017 and December 2017 as claimed (CB 146-147 at [33]); or
e)that the applicant provided his education provider with a genuine excuse for the deferment of his course in early 2016 (CB 147-148 at [34]).
The Tribunal provided the applicant with time to discuss these credibility concerns and invited the applicant to provide statements from his younger brother and father as well as any other documents to support his claims (CB 148 at [35]).
The Tribunal made the following findings:
a)the purpose of the visa holder’s travel to and stay in Australia: The Tribunal did not accept that the applicant had a genuine interest in completing a diploma or degree in community services or any other coursework and that his late enrolment in such a course was only disingenuously undertaken to persuade decision makers that he was a genuine student. The Tribunal found that there was no credible or reliable evidence before it about his purpose or that he would be able to uphold the conditions typically imposed on student visas. Therefore the Tribunal gave this little weight in favour of the visa not being cancelled (CB 148 at [39]);
b)the extent of compliance with visa conditions: The Tribunal noted that there was no evidence before it to indicate that the applicant had not complied with any other conditions. Given that the reasons the applicant provided for notable non-compliance with condition 8202 were found not to be credible, the Tribunal gave this factor considerable weight towards the visa being cancelled (CB 148-149 at [40]);
c)degree of hardship that may be caused: The Tribunal found that the applicant’s emotional and psychological state of mind in the past and into the foreseeable future was not supported by any evidence from a medical professional and that the credibility of such claims were extensively undermined by the applicant’s lack of overall credibility. Nevertheless, the Tribunal accepted that the applicant would face some, but not a significant amount of, emotional hardship if the visa were to remain cancelled and gave this factor little weight towards the visa not being cancelled (CB 149 at [44]);
d)the circumstances in which the ground for cancellation arose as the Tribunal had made extensive findings that the applicant was not a reliable or credible witness, it found that there were no extenuating circumstances beyond the applicant’s control (CB 146-147 at [46]);
e)past and present conduct towards the Department: The Tribunal noted that the applicant had provided a false affidavit and misleading statement to the Department as part of his claim. Accordingly, the Tribunal gave this issue some weight in favour of the visa remaining cancelled (CB 150 at [47]);
f)mandatory legal consequences: The Tribunal accepted that if the visa remained cancelled the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. Based on the available migration options open to him, the Tribunal gave this only little weight towards the visa not being cancelled (CB 150 at [49]); and
g)International obligations: The Tribunal noted that the applicant in writing had referred to Lahore as a peaceful and calm place. Based on the applicant’s circumstances, the Tribunal placed some weight on this factor in favour of the visa not remaining cancelled (CB 150 at [51]).
The Tribunal placed considerable weight on the applicant being an unreliable witness with little overall credibility, who submitted a fraudulently obtained affidavit to the Department and considered that he had demonstrated little regard towards Australia’s migration laws (CB 151 at [54]).
The Tribunal found that the factors in favour of the visa remaining cancelled overwhelmingly outweighed those in favour of the applicant’s visa not being cancelled (CB 151 at [55]) and accordingly, concluded that the visa should be cancelled (CB 151 at [56]).
Overall, it is noted that the Tribunal found that the factors in favour of the visa remaining cancelled overwhelmingly outweighed those in favour of the applicant’s visa not being cancelled and, accordingly, concluded that the visa should remain cancelled, upholding the delegate’s decision.
In relation to the applicant’s substantive application before this Court and the one ground of review provided, the Court notes the Minister’s written submissions as follows:
32 The Tribunal was not obliged to uncritically accept the applicant’s claims. The weight to be given to the applicant’s evidence was a matter for the Tribunal. The Tribunal gave detailed consideration of the stepmother’s death certificate within the context of its broad concerns and findings regarding the applicant’s credibility (CB 143-146, [21]-[28] and [36]). Critically, the Tribunal found that the applicant’s step mother’s death certificate was fraudulent on the basis that the applicant had already provided a false affidavit, there was no explanation for the delay in providing the death certificate to the Tribunal, and there was country information relating to widespread document fraud in Pakistan (CB 144-146, [25]-[27]). Those findings were based on rational grounds and arrived at upon consideration of matters that were logically probative. In those circumstances, the ground of review goes no higher than to seek impermissible merits review of the Tribunal’s decision.
33 Accordingly, no sufficiently arguable ground is raised to warrant the exercise of the Court’s discretion to grant an extension of time.
Noting that the applicant was not legally represented, it was explained to the applicant that all this Court can do is look at whether the Tribunal has engaged in “jurisdictional error”. It was explained that in relation to matters of this sort, the main areas of jurisdictional error usually articulated by applicants tend to be:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made (see Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111]; Salahuddin v Minister for Immigration & Border Protection [2013] FCAFC 141 at [22];
f)where the decision-maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that many applicants who appear before this Court assume that the Court will review the evidence before the Tribunal as a whole, come to a different conclusion and give the applicant the visa he or she is seeking, or in this case, opt not to cancel the visa. The Court explained that it cannot do this as this would require the Court to engage in an impermissible merits review of the decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The Court is satisfied that the applicant understood the explanation provided by the Court.
The Court asked the applicant to make any comment he wished to make which might better assist the Court understanding what he meant by his ground of review. In effect, the applicant was asked to explain what he felt the Tribunal “did wrong”.
Unfortunately, the response provided did not assist the applicant in relation to jurisdictional error. Basically, the applicant does not agree with the Tribunal’s decision. In effect, he seeks merits review of the Tribunal’s decision. As explained to the applicant, the Court cannot review the merits of the Tribunal’s decision or determine the applicant’s claim for his student visa, or if it should be cancelled.
The applicant also stressed that the Tribunal failed to understand the way in which legal paperwork is prepared in Pakistan (particularly in relation to death certificates). The applicant then explained in detail to the Court how it actually worked in practice.
Consideration
The Tribunal can only make an assessment of the evidence that it has before it. That the applicant now says that there was other evidence that could have helped him and that it should have been put before the Tribunal. Unfortunately, the applicant did not provide that evidence to the Tribunal, even though he was given an opportunity to provide any additional evidence that might have strengthened his case.
On the evidence, it is clear that, post-hearing, the applicant was permitted to provide more evidence to the Tribunal, particularly in relation to his step-mother’s death certificate. Unfortunately, it does not appear that the type of evidence that the applicant outlined to this Court in relation to the processing of death certificates in Pakistan (which he claims would have assisted him) was ever provided to the Tribunal. This is regrettable because that evidence may well have assisted the applicant in advancing his case before the Tribunal.
To the extent that the applicant now says (and it is not entirely clear) that the Tribunal’s decision is “irrational” because it could not possibly have to come to the conclusion it reached, the Court finds that, on the evidence, the Tribunal’s findings were open to it: as per SZMDS at [128]-[131]. The Tribunal set out the basis for findings. These findings demonstrate an evident, transparent and intelligible justification for the decision as a whole.
Further, it cannot be said here that the reasons advanced by the Tribunal are based on irrelevant considerations or that they failed to take into account relevant information: Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158 at [62]. There is no evidence before the Court that this occurred here and the applicant was unable to point to any errors in this regard.
Overall, the Tribunal did look at the evidence it had have before it and it did so in detail. A complete analysis was provided. It considered the facts, the legislation it was required to apply and all of the evidence provided by the applicant.
The applicant was also given every opportunity, including by way of post-hearing submissions, to present evidence that he felt might assist him, particularly in relation to his step-mother’s death certificate. He provided nothing to the Tribunal.
Having assessed the Tribunal’s decision in light of the applicant’s one ground of review and the applicant’s submissions to this Court more broadly, the Court finds that there are no reasonable grounds for success in relation to the applicant’s substantive application.
This weighs heavily against granting the application an extension of time.
Conclusions and orders
Having weighed the factors to be assessed in relation to an extension of time application, the Court is not satisfied that this matter is one that merits an extension of time.
Although the delay here in filing the substantive application is minimal (2 days), the Minister is not prejudiced and the explanation provided by the applicant is entirely reasonable and credible, the Court is not satisfied that there are any prospects of success in relation to the applicant’s substantive application.
In the circumstances, the application for an extension of time is denied.
The Minister has sought costs fixed in the sum of $5,000. This is well below the cost scale that guides this Court.
In the circumstances, the Court orders that the applicant pay the Minister’s cost fixed in the sum of $5,000.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 10 April 2019
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