Amadoruge v Minister for Immigration

[2017] FCCA 3286

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMADORUGE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3286

Catchwords:
MIGRATION – Judicial review –student visa.

Legislation:

Migration Act 1958 (Cth), ss.474, 476, 499

Cases cited:

Kaur v Minister for Immigration and Border Protection (2015) FCA 1

Dasanayaka v Minister for Immigration and Border Protection [2015] FCCA 2

Applicant: NIROSH KRISHANTHA AMADORUGE

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 297 of 2016

Judgment of: Judge Howard

Hearing date: 15 December 2017

Date of Last Submission: 15 December 2017

Delivered at: Sydney

Delivered on: 15 December 2017

REPRESENTATION

There being no appearance by the Applicant

Counsel for the Respondent: Ms Stoker

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the amended application filed 4 July 2016 be dismissed.

2. That the Applicant pay the Respondent’s costs of and incidental to these proceedings fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 297 of 2016

NIROSH KRISHANTHA AMADORUGE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The matter before the Court is an application for judicial review of decision made by the Tribunal on a migration issue. But I first need to consider what is essentially an application to adjourn the hearing.

Application to Adjourn

1. The matter  has been set down on more than one occasion, if my memory serves me correctly.  On 27 November 2017, by order of the Court, the matter was adjourned from 11 December, and today’s date was allocated, 15 December, 10 am, here in Sydney.

2. By covering letter, it was also explained to the parties – certainly, to the applicant that he would be able to attend the Court either in Sydney or in Brisbane.

3. The applicant says that he lives in Melbourne, and he sent a letter to the Court dated 14 December 2017 which contains some interesting information.  The main thrust of the letter is seeking the Court’s indulgence to adjourn the matter on the basis that he, the applicant, is unwell – that he is suffering from some sickness.  But, in the letter, he also states that he had earlier purchased a ticket to attend a hearing, and now he seems to say he is out of pocket when that hearing got adjourned, and he has asked that the matter be transferred to Melbourne.  So he seems to be applying to transfer it to Melbourne.  He also seems to be applying for an application for an adjournment on the basis of the medical condition.

4. Now, he has not appeared in Sydney.  He has not appeared in Brisbane, and they were the two places that he was told quite clearly that he could appear.  He had no leave to appear in Melbourne.  Indeed, he knows that. He has not shown up at the Court in Melbourne.  According to his letter, he just wants it adjourned.

5. He says that he is not well.  He has sent to the Court – and I note that the first respondent has a copy of this too – a sickness certificate from the Australian Acupuncture and Chinese Medicine Association Limited. It has the applicant’s name, and it says:

   “Mr Nirosh Amadoruge consulted me on 14 December 2017.  She/he will be unfit to resume work until 15 December 2017.  Her/his incapacity commenced on – she/he states that her/his incapacity commenced on –”

   There does not seem to be a date for when the incapacity commenced.  There seems to be a signature.  On the next page, someone has written “lower back strain”, and there is a signature under that.  It seems to be from unit 7, 197 Springvale Road, Nunawading, Victoria.

6. Interestingly, of course, when you read the certificate closely, it says he will be unfit to resume work “until” the 15^th.  That means he will be ready today, December 15^th..   I think it is trying to say that he would not be fit today.

7. The problem he has got is this - applicants cannot just fax or email certificates to the Court.  It is not evidence.  It is not sworn.  There is no affidavit.  It has not been filed.  It is quite apparent to the Court that it is an attempt by the applicant to merely delay the proceedings..

8. He is the applicant.  He filed in Brisbane.  He even says in the last paragraph of his letter dated 14 December 2017, which would be exhibit 1 – he even says:

   “In addition to this, previously, when I inquired from my previous solicitor, Mr Joseph Yeng, he stated that the matter couldn’t be heard at Melbourne, as the original lodgement was made at Brisbane.”

   So the applicant well knew that the matter was to be heard in Brisbane.

9. It ought make no difference to him that the Judge is sitting in Sydney.  Obviously, in relation to utilising the judicial resources of the Commonwealth, it is a matter for the Court as to where the Judge will be on any given day, and, in pursuance of the proper utilisation of judicial resources, the Court saw fit to have me in Sydney this week and available to hear this matter by video link from Sydney, with the parties present in the courtroom in Brisbane.  The applicant well knew this.  Indeed, he was given – he was on this occasion given leave to actually come to Sydney, if it was going to be more convenient to him, but, obviously, he has not done that.

10. So I do not accept this medical certificate.  It is not sworn.  There is no indication of the qualifications of the person who has apparently signed it.  I have no idea as to whether that person holds any medical qualifications and is able to give any medical opinion as to the health of the applicant.

11. And the applicant has known for the best part of one month that he had to be in Brisbane on 15 December for the hearing.  At the very least, he would have known he had to be in Sydney on 15 December, but he chose to stay in Melbourne, and now he seeks to rely upon this “sickness certificate” to have the Court adjourn the matter.

12. I agree with the submission made by Ms Stoker of counsel on behalf of the first respondent that the actions and the requests made by the applicant are reflective of someone who is attempting to delay the proceedings.

13. In those circumstances, the application to adjourn the matter is dismissed.  The application to transfer the matter is dismissed.  On his own admission, he has known for some time, because his solicitor Mr Yeng told him, that he, the applicant, having filed in Brisbane – that would mean that his case had to be heard in Brisbane.  He is under no misapprehension.  His applications to either adjourn the case or transfer it to Melbourne are both dismissed.

Substantive Application

1. As to the substantive application - the matter before the Court relates to an application for a judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, to affirm the decision of the Minister’s delegate refusing the applicant’s application for a student temporary class TU, subclass 572 visa.

2. By way of background, the applicant is a citizen of Sri Lanka.  On 12 March 2015, he applied for a student visa to study a Diploma of Project Management at the Australian College of Technology and Business. He had been enrolled in a Bachelor of Biomedical Science at Griffith University in 2008, and he seems to have been excluded by that university in 2014, no doubt for failing to pass the necessary examinations.

3. In March of 2015, the Minister’s delegate made a request to the applicant seeking certain information.  Further requests seem to have been made in May and July of 2015.  The applicant was then notified in about August 2015 that his request for the visa had been denied.  The applicant then applied to the Tribunal for a review of the delegate’s decision.

4. In fact, he was invited to appear before the Tribunal on 25 November 2015, and he was given the option of having an interpreter to assist him.  He indicated, however, that he did not require an interpreter.

5. The hearing went ahead.  The Tribunal had regard to all of the relevant documentation and heard submissions from the applicant.  The Tribunal asked the applicant questions, and so on.  On 5 March 2016, the Tribunal provided its decision, whereby it affirmed the decision of the delegate.

6. Subsequently, the applicant filed an application in the Federal Circuit Court of Australia seeking a judicial review of the Tribunal’s decision, and on 4 July 2016 he filed an amended application.

7. In broad terms, there are two main areas of complaint, so far as the applicant is concerned:  firstly, the applicant maintains that the Tribunal took into account irrelevant considerations;  the second broad area is a complaint by the applicant that the Tribunal had failed to accord him procedural fairness.

8. In his particularised application, he sets out what he means by “irrelevant considerations were taken into account”.  The applicant maintained that the Tribunal was seeking to consider the applicant’s future intentions, when the member of the Tribunal asked the applicant “if the delegate’s decision had been set aside and you were not enrolled in another course, what would happen?”  The applicant maintains that such a question is not relevant to the genuineness of the applicant.

9. The Tribunal was, of course, attempting to determine whether the applicant was a genuine temporary entrant intending to be a student whilst he was in Australia.  The transcript of the hearing is important, because it reveals the full extent and context of the question from the member of the Tribunal to the applicant.  I will include here in these reasons for judgment the various sentences which are relevant from the transcript.  They seem to be from line 457 through to 464 and 469.  The Tribunal asked:

   “Well, even if I set aside the delegate’s decision now, because you’re now not enrolled in any other course, what would happen is that you know you’d be allowed to finish that.  You’d be allowed to stay to finish the diploma of management, and then that would the end of your student visa, and off you go home.  Then, presumably, once you are at home, you’re offshore, but you apply – you will reapply to go to Griffith to finish those last two subjects.”

   Line 464 indicates in the transcript the applicant agreed.  469 the Tribunal asked:

   “Now, is there any important – apart from some money, what’s the downside with that for you?  Because you’ll also see your mother.”

10. The passage that has been quoted – it is submitted for the first respondent that it can be understood in one of two ways:  firstly, a clarification of the possible outcomes of the process, rather than a basis upon which the decision was made;  or, secondly, as a permissible consideration of other relevant information provided by the applicant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the applicant.

11. Now, this comes from direction number 53, which is a direction – a ministerial direction which is entitled Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications. This direction was made pursuant to section 499 of the Migration Act 1958 Commonwealth, and the direction in fact required the Tribunal to have regard to a number of specific factors in considering the genuineness of a temporary visa entrant.

12. It seems clear enough to the Court that the questioning by the Tribunal member was permissible. It was a necessary obligation of the Tribunal, having regard to direction number 53, for the respondent Tribunal to appropriately explore the reasons why the applicant wanted to continue to study in Australia.  The Tribunal was permitted to explore the objectives that the applicant had and the reasons why the applicant believed he could not apply for a further student visa upon a return to Sri Lanka.

13. I do think that, on any fair reading of that part of the transcript, that this is the manner in which that part of the transcript should be interpreted.  It was relevant.  These considerations were relevant for the Tribunal in understanding the reasons why the applicant wanted the visa.

14. As was noted in the decision of Kaurv Minister for Immigration and Border Protection (2015) FCA 1, the Tribunal is an inquisitorial body. The Tribunal is entitled to question the applicant in the way that it considered appropriate, and, in my view, as revealed by the transcript, the questioning was appropriate.

15. I do not agree with the applicant’s contention (contained in his application) that the Tribunal took into account irrelevant considerations.  On a proper consideration of the transcript, the exchange, the questions, and so on, that were put by the Tribunal to the applicant were appropriate, and, in those circumstances, the first ground of review must fail.

16. The second ground of review relates to a procedural fairness question.  The applicant maintains that he was denied procedural fairness.  In broad terms, he seems to complain that because English was his second language, in some way this fact impacted upon the process and denied him procedural fairness.  He maintained that because English was his second language it was not fair to question the applicant.  He says this diverted the applicant’s attention away from the material he wished to put to the Tribunal.

17. Well, of course, the Tribunal is, as I have already explained, perfectly entitled to question the applicant at the hearing;  indeed, it is obligated to do so.

18. As to the applicant’s complaints about the process of asking the questions, – well, there seems to be two contentions:  firstly, because English was his second language, it was unfair to question him;  secondly, the way – the process of asking the questions diverted his attention also.

19. Neither of these contentions can stand.  The applicant was given the opportunity to request or obtain the assistance of an interpreter.  He declined that invitation.  I note that the English language skills of the applicant had been assessed as being sufficient for him to carry on or at least pursue tertiary education in Australia.  He had been a student in Australia for many years.

20. During the hearing in front of the Tribunal, the applicant did not at any stage submit to the Tribunal that he was not able to follow the process or to participate in the hearing because of a difficulty with the English language.  I agree with the submission made on behalf of the Minister that the applicant cannot now, having filed this application, claim that the language barrier has prevented him from being able to make his submission before the Tribunal.

21. He was given every opportunity to explain his answers.  He did not seek more time.  He did not ask for further explanations so he could understand better.  In any event, I note what was said in the decision of Dasanayaka v Minister for Immigration and Border Protection [2015] FCCA 2: that an applicant’s unfamiliarity with the hearing processes of a Tribunal is not a ground for a jurisdictional error. This is especially so where the applicant was given, in the form of a fact sheet, background information into the nature of the hearing.

22. I also note from that decision of Kaur (supra) that the style of the questions asked by the Tribunal is a matter for the Tribunal.  The Tribunal is entitled to question the applicant in any way that the Tribunal considers is appropriate.

23. All of the relevant matters were taken into account by the Tribunal.  Many of the matters that the applicant was complaining about – it seems they were the subject of a letter to Griffith University, which detailed the nature of the hardships that, he said, resulted in his poor academic performance.  All of these matters were specifically referred to in the Tribunal’s own decision, so it is apparent that the Tribunal did indeed take into account all of the applicant’s submissions, and I do not accept any contention by the applicant in his application that he had lost his ability to advance his case.  I do agree that the applicant, on this ground, is seeking an impermissible merits review.

24. I note that the applicant – and this further reinforces in my mind that the applicant was seeking merely to delay:  He was ordered on 6 May 2016 to file and serve a written outline of submissions and a list of authorities.  It was not an invitation to file and serve a written outline of submissions; he was ordered to do it.  He failed to do it. 

25. My attention has been drawn to the fact that the applicant has failed to update his address for service since the withdrawal of his lawyer on 17 July 2017, and, notwithstanding that, quite clearly, correspondence from this Court was getting through to the applicant, and he has referred to it in his letter, which I referred to earlier, dated 14 December 2017.

26. Now, I did say earlier that would be exhibit 1.  It will be marked exhibit 1.  What will be marked as exhibit 2 is this sickness certificate, which I will staple here.  It is two pages from the Australian Acupuncture and Chinese Medicine Association.  That is exhibit 2.

27. I cannot see that the decision made by the Tribunal in this case – I cannot see that it has been affected by any jurisdictional error. The decision by the Tribunal is a privative clause decision within the meaning of section 474 of the Migration Act, and it is not reviewable under section 476 of the Act unless the decision has been affected by jurisdictional error.

28. Notwithstanding the fact that the application for an adjournment made by the applicant was dismissed, and notwithstanding the fact that he has failed to appear, – I did, of course, decide that it was appropriate for this Court to deal with the matter today on the merits.

29. There is no jurisdictional error, and the application must be dismissed.  The amended application for a judicial review filed 4 July 2016 is therefore dismissed. All outstanding applications are dismissed.

30. I reserve the right to settle and, if necessary, correct any of the reasons for judgment, and reserve the right, if necessary, to provide some further reasons for judgment.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Howard.

Date: 21 December 2017