Alghamdi v Minister for Immigration
[2016] FCCA 1284
•27 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALGHAMDI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1284 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – where “bare” medical certificate. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.573.211 |
| Cases cited: Al Mamun v Minister for Immigration & Citizenship [2011] FCA 1394 Cheng v Minister for Immigration & Anor [2011] FMCA 461 Diamant & Ors v Minister for Immigration & Anor [2014] FCCA 21 Kaur v Minister for Immigration & Citizenship [2013] FCA 275 Miao v Minister for Immigration & Anor [2015] FCCA 988 Myers v Myers [1969] WAR 19 Singh & Anor v Minister for Immigration & Anor [2011] FCAFC 27; (2011) 190 FCR 552; (2011) 276 ALR 180 Singh & Ors v Minister for Immigration & Anor [2015] FCCA 1028 Singh vMinister for Immigration & Border Protection [2016] FCA 108 Vermuri v Minister for Immigration & Border Protection [2014] FCA 1248 MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| Applicant: | MARWAN ALI S ALGHAMDI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 423 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 May 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 27 May 2016 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr M Hawker |
| For the Second Respondent: | Submitting appearance, save as to cost |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5,800 by 27 June 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 423 of 2015
| MARWAN ALI S ALGHAMDI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)
Introduction
In this matter the applicant has applied for review of a decision of the then Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively), which affirmed a decision made by a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively), the Minister for Immigration and Border Protection (“Minister”), to refuse the applicant a Student (Temporary) Class TU visa (“Temporary Student Visa”), pursuant to the relevant provisions of the Migration Act1958 (Cth) (“Migration Act”).
In this matter an order was made by a Registrar on 28 October 2015, setting the matter down for hearing for today, together with orders for the provision of submissions and affidavits and an amended application by the applicant, none of which, the Court notes, have been filed by the applicant.
The Court has been notified through Chambers of a written request, not an application in the appropriate form, by the applicant for an adjournment of the proceedings today. The Minister opposes any adjournment.
The request for an adjournment is made on the basis of what is best described as a “bare” medical certificate from a doctor who indicates that the doctor examined the applicant on 25 May 2016, and the medical certificate simply says that the applicant will be unfit for his “normal work/study/activity” from 25 to 27 May 2016 inclusive “due to medical condition”. The Court notes that the medical certificate does not indicate what the normal work or study or activity of the applicant is, nor does the certificate state any particular condition or ailment or injury from which the applicant is suffering. Furthermore, the certificate does not indicate why it is that the applicant cannot attend Court. There is no indication on the face of the certificate that the certifying doctor was aware that the applicant was required to attend Court today. That is relevant because there are decisions of the federal courts which do indicate that being unfit for normal work is not necessarily something which might preclude a person from attending Court. In the circumstances that can be extended to include “study” or “activity”. It all depends upon the nature of what ails the particular person concerned.
The Court also notes that the request for adjournment was not made until, the Court is advised, 6.40pm on 25 May 2016 by email, in circumstances where the certificate was provided to the applicant by his doctor at some time on that day, in respect of a hearing which has for almost seven months been listed for 10.15am today. So the request for adjournment is, in those circumstances, made late.
The Court also notes that “Client Services” responded to the applicant at 9.59am yesterday morning advising that unless an application for adjournment was made or consent orders were obtained the applicant was expected to attend Court today, and otherwise suggested he confer with the Minister’s lawyers. The matter was called outside the Court his morning. The applicant did not appear.
The Court has considered whether to the extent that there might be any prejudice to the applicant by a refusal of the request for an adjournment, that prejudice might be overcome by making an order, dismissing the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for non-appearance. That would give the applicant an opportunity, at least, to apply to persuade the Court why any order which would be made for dismissal because of non-appearance might then be set aside: FCC Rules, r.16.05(2)(a). Because the application has, for reasons the Court will come to, no prospect of success in any event, adopting that course is unnecessary, and the Court will not exercise its discretion to make an order under r.13.03(1)(c) of the FCC Rules.
The Court notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev (“MZZZL”).
In refusing the adjournment, the Court has had regard to all the circumstances of this case, and particularly:
a)that the medical certificate is a bare medical certificate, does not specify the nature of the illness or ailment or injury from which the applicant suffers, and also does not indicate that he is unfit to attend Court: MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [12]-[13] per Davies J; Vermuri v Minister for Immigration & Border Protection [2014] FCA 1248 at [5] per Mortimer J; Al Mamun v Minister for Immigration & Citizenship [2011] FCA 1394 at [8] per Gray J; Singh & Ors v Minister for Immigration & Anor [2015] FCCA 1028 at [9] per Judge Lucev; Singh vMinister for Immigration & Border Protection [2016] FCA 108 at [3] per Pagone J.
b)that the certificate was provided relatively late;
c)case and list management issues, bearing in mind that in the Perth registry of this Court, there are two consecutive weeks each month in which migration cases are listed at the rate of two a day, and even with withdrawals it means that there are usually somewhere between six and 10 cases heard by the single Judge of the Court in this Registry each migration hearing week, and that adjournments unnecessarily increase the case load in weeks in which adjourned cases then have to be listed. So from a case management point of view, adjournments of this type, particularly adjournments made late in the piece, are undesirable: MZZZL at [19] per Judge Lucev.
For the above reasons, the Court determines that the interests of justice are best served by refusing the application for adjournment, such as it is.
The Court turns then to address the substantive application. The Tribunal Decision is at Court Book (“CB”) 116-117.
The applicant lodged an application for the Temporary Student Visa on 24 April 2015: CB 5-25. His two sons applied for the Temporary Student Visa as members of the applicant’s family unit. The application in relation to the eldest son was subsequently deemed to be invalid: CB 57-58.
The applicant’s last substantive visa expired on 15 March 2015: CB 29.
At the time of the applicant’s application for the Temporary Student Visa, the applicant held a bridging visa E. The record and notice of decision in relation to the bridging visa E dated 2 April 2015 noted that the bridging visa was granted on the grounds that the applicant would apply for a substantive visa, and contained the note:
CLIENT OBLIGATION: - it is the client’s responsibility to find out the type of visa they can apply for, the date by which they must apply, and whether they meet the eligibility criteria to lodge a valid visa application.
CB 1-2
On 1 May 2015, the Delegate refused the grant of the Temporary Student Visa. The Delegate found that the applicant lodged the Temporary Student Visa application 40 days after his last substantive visa ceased, and accordingly he did not meet cl.573.221(3) of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 60-69, which required that the Temporary Student Visa application be made no more than 28 days after an applicant’s last substantive visa ceased.
The applicant lodged an application for review to the Migration Review Tribunal, as it then was, on 8 May 2015: CB 70-72, and appeared before the Tribunal on 18 August 2015. The Tribunal delivered an oral decision affirming the Delegate’s Decision.
The Tribunal Decision found that the applicant did not meet the requirements of cl.573.211 of the Migration Regulations as the application for the Temporary Student Visa was made more than 28 days after the applicant’s last substantive visa expired on 15 March 2015. The Tribunal was satisfied that this was not a matter in which it had discretion and as the application did not meet an essential requirement for the grant of the Temporary Student Visa, the Delegate’s Decision was affirmed: CB 116-117.
The applicant’s Judicial Review Application contends that:
a)he is dependent on his “country’s government for my academic expenses”;
b)his previous student visa expired on 15 March 2015;
c)he obtained a letter of offer for “Master enrolment” on 23 March 2015;
d)on 2 April 2015 he met his case officers, was granted a Bridging Visa E and “was assured that I could apply for a Student Visa once I paid the fees and received my CoE” [Confirmation of Enrolment]; and
e)due to a lack of information from the Immigration officer the applicant waited to lodge the visa application until 24 April 2015 (i.e. until funds had been released from his home country, course fees paid and a CoE issued).
The Court notes that there is no issue taken by the applicant that the application for the Temporary Student Visa was made more than 28 days after the day when his last substantive visa ceased to be in effect. The Court also notes that advice given by Departmental officers, even if that advice be wrong, cannot constitute jurisdictional error by the Tribunal: Singh & Anor v Minister for Immigration & Anor [2011] FCAFC 27; (2011) 190 FCR 552; (2011) 276 ALR 180 at [47]-[48] per Keane CJ, Collier and Logan JJ; Cheng v Minister for Immigration & Anor [2011] FMCA 461 at [55] per Barnes FM; Diamant & Ors v Minister for Immigration & Anor [2014] FCCA 21 at [44]-[46] per Judge Lucev.
The applicant’s application seeks an impressible merits review by the Court. It appears to proceed on the basis that the Court has a discretion to waive the requirements in cl.573.211(3) of the Migration Regulations.
The Tribunal was correct to find that there is no discretion to not apply cl.573.211(3) of the Migration Regulations: Kaur v Minister for Immigration & Citizenship [2013] FCA 275 at [15] per Cowdroy J; Miao v Minister for Immigration & Anor [2015] FCCA 988 at [6] per Judge Manousaridis.
The Tribunal did not have a discretion to not apply the 28 day limit in cl.573.211(3)(c) of the Migration Regulations. The Tribunal applied the law, and applied it correctly, and made no jurisdictional error in affirming the Delegate’s Decision not to grant the Temporary Student Visa.
Therefore, no jurisdictional error is disclosed in the Tribunal Decision.
It follows that the application must be dismissed, and there will be an order accordingly.
The Court will hear the Minister as to costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 30 May 2015
0
12
4