Arefin v Minister for Immigration (No 2)
[2016] FCCA 658
•29 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AREFIN & ANOR v MINISTER FOR IMMIGRATION & ANOR (No 2) | [2016] FCCA 658 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision – dismissal of show cause application due to the failure of the principal applicant to appear – dismissal of application for reinstatement. |
| Legislation: Migration Act 1958 (Cth), s.359A Migration Regulations 1994 (Cth) |
| Arefin & Anor v Minister for Immigration & Anor [2016] FCCA 408 Kaur v Minister for Immigration [2016] FCA 132 |
| First Applicant: | KAMELIA AREFIN |
| Second Applicant: | REAZN UDDIN AHMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3649 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2016 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
INTERLOCUTORY ORDERS
The Application in a Case filed on 8 March 2016 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $1,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3649 of 2014
| KAMELIA AREFIN |
First Applicant
| REAZN UDDIN AHMED |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 8 March 2016 seeking the reinstatement of a show cause application under the Migration Act 1958 (Cth). The show cause application had been dismissed by me on 1 March 2016.[1] The Application in a Case is supported by an affidavit by the first applicant, Mrs Arefin. She was supported today by her husband, Mr Ahmed, who is the second applicant. I received the affidavit, and Mrs Arefin was cross-examined on it.
[1] See Arefin & Anor v Minister for Immigration & Anor [2016] FCCA 408.
Briefly, Mrs Arefin explains her nonattendance at court on 1 March 2016 on the basis that she was suffering severe period pain on that day. Under cross-examination Mrs Arefin said that she first experienced period pain the day before but the pain was more severe on 1 March. Mrs Arefin was asked about correspondence that had been sent by the Minister’s solicitors to her nominated address for service, reminding her of the Court fixture on 1 March and reminding her of the consequences of non attendance.
Mrs Arefin and her husband both denied receipt of that correspondence. Mrs Arefin was also asked about an attempt to contact her by telephone on the morning of the hearing. She responded that the telephone service associated with the telephone number given on her original application was out of service on 1 March but that service had now been restored. That is why the same number was used as the contact number for the Application in a Case. Mrs Arefin also gave evidence that on the morning of 1 March she attended the Court registry in Queens Square and was told that her application had been dismissed.
I accept that Mrs Arefin was suffering period pain on 1 March. Nevertheless, in my opinion, that event of itself does not adequately explain her non attendance at court for the purposes of the show cause hearing. She did not attempt to telephone either the Minister’s solicitors or the Court to advise of the circumstances. She was well enough to attend the Court registry about an hour after the scheduled Court attendance, and, in my opinion, she should have done more on the day to advise of her difficulty.
In addition, even if I were persuaded that a sufficient explanation for Mrs Arefin’s non attendance had been advanced, I would still not reinstate the application because, in my view, the show cause application does not raise a serious question to be tried. The background to the show cause application is dealt with in the Minister’s outline of submissions filed on 24 February 2016.
The applicants applied for student visas on 14 March 2014. Only the Mrs Arefin sought to satisfy the primary criteria, with Mr Ahmed applying as a member of the family unit.[2]
[2] Court Book (CB) 1-21.
On 20 May 2014, the application was refused by a Delegate of the Minister.[3]
[3] CB 96-102.
The applicants applied to the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) for review of the Delegate's decision.[4] The Tribunal affirmed the Delegate's decision on 3 December 2014.[5]
[4] CB 103-113.
[5] CB 164-167.
On 30 December 2014, the applicants applied for judicial review of the Tribunal's decision (Application for Review).
Relevant statutory framework
The applicants sought student visas, which contained a number of subclasses. With limited exceptions not relevant to this case, all subclasses required Mrs Arefin to provide a Confirmation of Enrolment (COE) for an acceptable course at the time of decision.[6] Clause 573.223 of the Migration Regulations 1994 (Cth) (Regulations) required Mrs Arefin to satisfy financial capacity criteria, by reference to the highest assessment level applicable to Mrs Arefin and Schedule 5A of the Regulations. The same clause required that the Minister be satisfied that Mrs Arefin only intended to stay in Australia temporarily.
[6] Clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231.
Tribunal proceedings
On 29 October 2014, the Tribunal invited the applicants to a hearing on 27 November 2014 and requested that Mrs Arefin provide, among other things, a copy of a current COE “as required for the grant of a student visa”.[7]
[7] CB 123.
On 26 November 2014, the Tribunal received a request for postponement of the hearing. The Tribunal acceded to the request, and the hearing was postponed to 3 December 2014.[8] On 2 December 2014, Mrs Arefin e-mailed the Tribunal requesting that her hearing (scheduled for the following day) be postponed, citing personal sickness, her husband's sickness, her mother's sickness and difficulties in obtaining the required documents (some of which were said to be in Bangladesh). Mrs Arefin requested that the hearing be postponed by two months.[9] This request was refused by email dated 2 December 2014, and the hearing was conducted on 3 December 2014.[10]
[8] CB 127-129.
[9] CB 130.
[10] CB 131-133; 165 [4].
At the hearing, Mrs Arefin provided a COE to the Tribunal. However, she conceded that it was cancelled and that she did not have a current COE. She also confirmed that she had not undertaken any study in the Bachelor of Business course (to which the cancelled COE apparently related), which was to start on 17 March 2014. Although she at first said that this was due to refusal of her visa application, the Tribunal noted that the Delegate's decision was some two months later. The applicants asked for additional time to lodge a COE, claiming that they had been sick and Mrs Arefin’s mother in Bangladesh had been sick and did not know that the application had been refused. Mrs Arefin also stated that she had only sat the International English Language Testing System (IELTS) test in February 2014, and could not lodge an application prior to this.[11]
[11] CB 166 [10].
As Mrs Arefin was unable to satisfy the enrolment criterion of the visa, the Tribunal affirmed the Delegate's decision.[12]
[12] CB 166 [16]-[18].
In its decision dated 4 December 2014, the Tribunal gave the following reasons for refusal of the adjournment:
a)the applicants had been on notice of this requirement from at least the Tribunal's letter dated 29 October 2014;
b)Mrs Arefin had the opportunity to study during the period 17 March 2014 to the Delegate's decision and did not study;
c)she also had the opportunity to study from the time of her arrival to the date of the Tribunal's decision, and did not do so; and
d)the above factors indicated to the Tribunal that the student visa application was being used to further residence in Australia, and not for the purposes of study.[13]
[13] CB 166 [11].
The grounds of review advanced by Mrs Arefin are:
1. According to Reg 573.223 and Student Visa Assessment Level Reg1.41(1) at the time of my application I did not need to satisfy clause 5A405…
2. According to Division 3 Clause 5A508(2) at the time of my application I have provided financial support from an acceptable individual…
3. Migration Review Tribunal failed to consider my Circumstance into Account in its decision…
4. Migration Review Tribunal failed to consider the relevant fact of my circumstance which was critical in reaching the decision. (errors in original)
The Minister’s submissions deal with those grounds. I agree with those submissions.
Grounds 1 and 2
The Tribunal did not find that the applicants could not meet the requirements of the visa by reason of regulation 573.223 or an inability to demonstrate funds from “an acceptable individual”.
Rather, the issue before the Tribunal was that Mrs Arefin had not demonstrated that she was enrolled in, or the subject of a current offer of enrolment in, an acceptable course. As the applicants had been forewarned by letter dated 29 October 2015, this meant that they were unable to meet an essential criterion for the grant of the visas.
No arguable error has been demonstrated by Grounds 1 or 2 in these circumstances.
Grounds 3 and 4
Grounds 3 and 4 are unparticularised assertions that the Tribunal failed to take Mrs Arefin’s circumstances into account. Without particularisation, it is difficult to clothe these grounds with any meaning.
The putative circumstance that fell to be considered by the Tribunal was Mrs Arefin’s lack of enrolment in an acceptable course. That circumstance was not disputed by Mrs Arefin.
To the extent that Mrs Arefin refers to her affidavit, and submits that she wished to obtain “assurance” of her student visa before enrolling, this reflects a misunderstanding of the requirements of the visa. Further, any submissions in this regard should have been made before the Tribunal. As it was, the Tribunal considered those matters put forward by the applicants and which are summarised above. It gave reasons for its decision, which were intelligible.
No arguable case of jurisdictional error has been established under Grounds 3 or 4.
Mrs Arefin and her husband faced the insuperable difficulty before the Tribunal that Mrs Arefin was not enrolled in a course of study at the time of the Tribunal decision. She was given more time by the Tribunal to overcome that difficulty but was unable to. In consequence, she could not qualify for the class of visa she sought.
The solicitor for the Minister, pursuant to the model litigant principle, took me to the recent decision of the Federal Court in Kaur v Minister for Immigration[14]. In that case Perry J identified an issue in that the Tribunal had had regard to a search of a database known as PRISMS in order to determine that the applicant in that case was not enrolled in a course of study. The information obtained from the database should have been disclosed to the applicant pursuant to s.359A of the Migration Act.
[14] [2016] FCA 132
In the present case, the circumstances are distinguishable in that the Tribunal did not rely on a search of the PRISMS database but rather relied upon Mrs Arefin’s own admission that she did not have a certificate of enrolment. The decision of the Tribunal, therefore, turned on the evidence of the applicants rather than any independent research that the Tribunal undertook itself.
I have concluded that because the circumstances of the non attendance of Mrs Arefin have not been adequately explained and because the show cause application does not, in any event, disclose an arguable case, the reinstatement application should be dismissed, and I so order.
In consequence of the dismissal of the Application in a Case, the Minister seeks an order for costs fixed in the sum of $1,000. I invited submissions from the applicants in relation to costs. They sought an opportunity to obtain assistance from Legal Aid but otherwise did not make submissions on costs.
I will order that the applicants are to pay the costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 March 2016
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