Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 261

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 261

File number(s):

SYG 3411 of 2018

Judgment of:

JUDGE DRIVER

Date of judgment:

15 February 2021

Catchwords:

MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a visitor visa – summary dismissal of show cause application – abuse of process.  

Legislation:

Migration Regulations 1994 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SZIPI v Minister for Immigration & Anor [2006] FMCA 901

Walton v Gardiner (1993) 177 CLR 378

Williams v Spautz [1992] HCA 34

Number of paragraphs:

36

Date of hearing:

15 February 2021

Place:

Sydney

Solicitor for the Respondents:

Ms P Durham of Sparke Helmore

INTERLOCUTORY ORDERS

SYG 3411 of 2018

BETWEEN:

TAJAMMUL AHMED

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	15 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The judicial review application is dismissed, pursuant to rule 13.10(c) of the Federal Circuit Court Rules 2001 (Cth).

2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the judicial review application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. I have before me an Application in a Case filed on 24 May 2019 seeking the summary dismissal of a judicial review application under rule 13.10(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) as an abuse of process. The judicial review application was filed on 6 December 2018 and was at that time supported by an affidavit filed with it. The judicial review application sought review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 November 2018, in which the Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant, Mr Ahmed, a visitor visa.

2. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 8 February 2021, which I adopt. 

3. Mr Ahmed, a citizen of India, first arrived in Australia on 12 July 2016 as the holder of a student (Subclass 573) visa.  He applicant was granted a further student (Subclass 500) visa on 27 March 2017 which ceased on 15 March 2018.[1]

   [1] Court Book (CB) 27

4. On 15 March 2018 (the same day his last substantive visa was due to expire), Mr Ahmed lodged an application for a visitor (Subclass 600) visa (visa).[2] In that application, Mr Ahmed requested a further stay until 14 June 2018 to allow him time to undertake an English test to enable him to apply for a class 485 visa.[3]

   [2] CB 1-10

   [3] CB 1

5. It was a requirement for the grant of the visa that Mr Ahmed met clause 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause provides that:

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c) any other relevant matter.

6. On 23 March 2018, the delegate refused to grant Mr Ahmed a Subclass 600 visa on the basis that she was not satisfied that Mr Ahmed intended to stay temporarily in Australia as required by clause 600.211.[4]

   [4] CB 26-28

7. On 26 March 2018, Mr Ahmed applied to the Tribunal for review of the delegate’s decision.[5] Mr Ahmed appointed a “legal consultant” as his authorised representative.[6]

   [5] CB 29-30

   [6] CB 30

8. Mr Ahmed provided supporting evidence to the Tribunal including: a national police certificate; bank statements; a letter of support from a doctor; his English test results; and other academic documents.[7] In a written statement, Mr Ahmed claimed that he intended to holiday in Australia and asserted that he should have been able to “tour Australia” and apply for his 485 visa at the same time. Mr Ahmed also asserted that he became depressed which made the need for a holiday more important. Further, Mr Ahmed stated he intended to return to India (after obtaining his 485 visa).[8]

   [7] CB 35-46

   [8] CB 47-48

9. Mr Ahmed made two requests for priority processing of his matter before the Tribunal. The second request was granted,[9] and he provided further documentary evidence.[10] In a further written submission dated 24 October 2018, Mr Ahmed relevantly stated that he had lost the opportunity to apply for the 485 visa because the period in which he could apply for it ended on 13 September 2018.  Mr Ahmed claimed he planned to return home to India after his three-month visitor visa expired.[11]

   [9] CB 54-57; 65-67

   [10] CB 62-63; 73-118

   [11] CB 121

10. Mr Ahmed appeared before the Tribunal on 1 November 2018 to give evidence and present arguments.[12]

    [12] CB 127-129

11. On 8 November 2018, the Tribunal affirmed the decision of the delegate not to grant the visa.[13]

    [13] CB 133-136

    Tribunal decision

12. The Tribunal found at [9] that the issue in this case was whether clause 600.211 was met.[14] The Tribunal identified that Mr Ahmed sought the visa because he wanted to sit an English test to enable him to lodge his 485 visa application. The Tribunal discussed with Mr Ahmed the fact that he had been able to sit the English test but had not been able to lodge his 485 visa application. It recorded that Mr Ahmed informed the Tribunal that he wanted time to travel in Australia before he returned to India. Although the Tribunal “had concerns” about Mr Ahmed’s stated purpose, it nonetheless accepted at [10] that it met the requirements of clause 600.231(b).

    [14] [9]

13. Turning to consider whether Mr Ahmed genuinely intended to stay in Australia temporarily, the Tribunal noted at [12]-[13] that there was no evidence he had not complied with his visa requirements and that he sought the visa for three months.

14. The Tribunal identified at [14] the conditions which applied to the visa sought by Mr Ahmed. The Tribunal queried how Mr Ahmed would be able to fund his proposed travel, given that he would not be able to work (condition 8101). The Tribunal was concerned that it would be problematic for Mr Ahmed to give up his current work commitments, fund his travel and also pay his rent. The Tribunal also questioned why Mr Ahmed had not visited Darwin and Queensland (as he indicated he desired to do) despite being in Australia for four years already. It also noted at [15] that the effect of the delay, in light of the time between his application and when it was heard, had achieved the additional time he sought.

15. The Tribunal was especially concerned as to whether Mr Ahmed would comply with condition 8531, which requires an applicant not to remain in Australia after the end of their permitted stay. In particular, the Tribunal was concerned at [16] that Mr Ahmed had stated his intention was to apply for temporary residency (485 visa); and had recently entered into a residential tenancy agreement for a fixed period.

16. The Tribunal also considered at [16] the evidence advanced by the applicant in relation to his incentives to return to India. The Tribunal accepted at [17] that Mr Ahmed’s family is in India, that he has a close relationship with them and that he had employment prospects in India and considered that these were factors that would provide an incentive for Mr Ahmed to return to India.

17. Having considered all of the evidence before it, the Tribunal at [18] still had difficulty accepting that the Mr Ahmed genuinely intended to stay in Australia for the purpose for which the visa would be granted. Accordingly, on the basis of its anterior reasoning (both singularly and cumulatively), the Tribunal was not satisfied that Mr Ahmed met the requirements of clause 600.211 and affirmed the delegate’s decision at [19]-[20].

    THE CURRENT PROCEEDINGS

18. Both Mr Ahmed and the Minister’s legal representative attended today’s interlocutory hearing by telephone. 

19. Mr Ahmed told me that he no longer relies upon his judicial review application and the affidavit in support.  He tells me that these were prepared for him by another person and he does not adopt or rely upon their contents.  Mr Ahmed told me that the same person who he knows as Ravi Vaswani assisted him before the Tribunal but provided poor advice and became uncontactable.  Mr Ahmed asserts that Mr Vaswani represented himself to be a lawyer, but he has since discovered that he is neither legally qualified nor a registered migration agent.  As I explained to Mr Ahmed, that is a matter he could if he wished raise with the Minister’s Department.

20. The Minister tendered both the judicial review application and the affidavit in support, which became exhibits M1 and M2 respectively.  The Minister also read the affidavit of Katherine Louise Evans made on 15 May 2019 and tendered the court book filed on 24 January 2019.  It might be thought that the absence of a judicial review application worsened Mr Ahmed’s position.  He sought to deal with that problem by presenting new legal propositions against the decision of the Tribunal.

21. These are essentially that the Tribunal proceeding was not fair, and that the Tribunal did not consider relevant considerations, being the reasons advanced for his application for the visa.  I reject those contentions by reference to the Tribunal’s record of its decision.  In my view, a fairing hearing opportunity was provided by the Tribunal, and the Tribunal did consider the material put forward by or on behalf of Mr Ahmed for the visa. 

22. The Minister’s submissions in support of the summary dismissal application are persuasive.  I agree with those submissions and adopt them.

23. Rules 13.10(a)-(c) of the Federal Circuit Court Rules provide that the Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:

    (a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

    (b)the proceeding or claim for relief is frivolous or vexatious; or

    (c)the proceeding or claim for relief is an abuse of the process of the Court.

24. The onus is on the Minister, as the moving party, to satisfy the Court that there is an abuse of process.[15] The categories of abuse of process are not closed as the Court has unlimited power over its processes to ensure they are not used for the purpose of injustice.[16] Nevertheless, over time certain common categories have emerged. One such category is where the process of the Court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way. In Walton v Gardiner[17] at 393, Mason CJ, Deane and Dawson JJ stated:

    Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail [See, e.g., Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210 at pp. 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964), 112 C.L.R. 125 at pp. 128-130] ... The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police [[1982] A.C. 529 at p. 536] as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

    (emphasis added)

    [15] Williams v Spautz [1992] HCA 34 at [42] (Mason CJ, Dawson, Toohey and McHugh JJ)

    [16] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93–94 [27]–[28]

    [17] (1993) 177 CLR 378

    Proceedings in the Federal Circuit Court

25. By an application to show cause filed on 6 December 2018, Mr Ahmed sought judicial review of the Tribunal’s decision. The application sought the following orders (without alteration):

    1. Grant of Visitor visa to be able to see Australia without concerning about visa issues

    2. Explanation as why Department of Home Affairs and AAT has out me through mental stress for things when I am genuinely looking for some time stress free after my studies to enjoy life and go home.

    3. Explanation from Department of Home Affairs as even though they doubt my intention to go home and sit for English to get SC 485 Visa after my studies then what is wrong there as international students are eligible for SC 485 visa after successful completion of their 2 years full time course or after completing 16 subjects of full time studies.

26. These are not proper orders and Mr Ahmed misunderstood the relief available in these proceedings. The Court does not have power to grant Mr Ahmed a visa, nor does it have power to order the Minister (or the Tribunal) to provide explanations such as the ones Mr Ahmed sought. In any event, the delegate and the Tribunal provided reasons for refusing to grant Mr Ahmed the visa.

27. The “Grounds” of the application were annexed to the application and took the form of submissions in Mr Ahmed’s affidavit.  They are not proper “Grounds”. Instead, Mr Ahmed sought to re-state his evidence that he provided to the Tribunal. Essentially, Mr Ahmed alleged that the Tribunal should have come to a different decision on the basis of the material before it and, therefore, impermissibly attempts to cavil with the merits of the Tribunal’s decision.[18]  Mr Ahmed:

    (a)attempted to explain why he would want to travel to Darwin and Queensland and how he could afford this travel ([8]-[10]);

    (b)attempted to explain why he did not undertake this travel during the four years he was in Australia ([11]-[13]);

    (c)apologised for not lodging his 485 visa in time and complaining about the time frames he was given to “appeal” ([14]-[15]);

    (d)stated that he believes that he had “special circumstances” ([16]); and

    (e)stated that he had a genuine intention to return to India ([18]).

    [18] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

28. None of these assertions identify any error in the procedure or findings of the Tribunal. Further, the stated intention to return home rings hollow as it has now been almost three years since he applied for a three-month visa. In essence, Mr Ahmed appears to have misunderstood the limited role of the Court in judicial review proceedings. These “Grounds” would fail and have in any event been abandoned totally by Mr Ahmed.

    Abuse of process

29. It is open to the Court to infer that the former application had been brought for the purpose of engaging in protracted litigation to delay the finality of the visa refusal decision and enable him to remain in Australia through bridging visa entitlements.[19]

    [19] SZIPI v Minister for Immigration & Anor [2006] FMCA 901 at [13]

30. As set out above, Mr Ahmed applied for the visa based on extending his stay in Australia until 14 June 2018 with an intention to travel within Australia. A significant period of time has now passed since that time (approaching 1,000 days), suggesting that Mr Ahmed is not pursuing his application for a visitor visa for this purpose. The Court does not accept Mr Ahmed’s explanation in his affidavit that he had not completed his intended travel because he did not want to “come back to attend legal issues” given the significant period Mr Ahmed has had to undertake any intended travel. For example, at the first court date on 17 January 2019 orders were made listing the judicial review proceedings for callover on 18 February 2020. This provided Mr Ahmed with a period of 11 months in which he could have travelled before he was next required to appear before the Court. Further, Mr Ahmed provided a contrary reason for applying for the visa in his application form, being that he was waiting to take an English test on 23 March 2018 so he could apply for a 485 visa.[20] As found by the Tribunal at [10], this raises concerns about Mr Ahmed’s stated purpose in applying for and pursing this visa application. For these reasons, I infer that Mr Ahmed is pursuing a judicial review application for an improper purpose.

    [20] CB 1

31. This inference is further supported by the complete lack of merit in Mr Ahmed’s grounds which would have been doomed to fail if they had not been abandoned and that Mr Ahmed was seeking relief that is not within the power of this Court to grant. The Tribunal considered Mr Ahmed’s evidence and gave reasons that were plainly open to it.

32. The futility of the application and the use of the Court’s process for such a collateral purpose is an abuse of process.

33. The application as filed by Mr Ahmed, having been disavowed and withdrawn, obviously cannot succeed.  He has not filed any amended application, although he unsuccessfully advanced alternative arguments.  If the matter had been listed in my docket from the outset, it would have proceeded to a show cause hearing, but in the light of the procedural orders made in this matter, which was placed in the docket of a different judge of this Court, the approach taken by the Minister to deal with it has been the appropriate one. 

    CONCLUSION

34. I conclude that the Minister has succeeded in establishing that the judicial review application should be summarily dismissed as an abuse of process.

35. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  Mr Ahmed did not wish to be heard on costs.

36. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the judicial review application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       17 February 2021