Aslam v Minister for Immigration
[2018] FCCA 1764
•16 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASLAM v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1764 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend originating application raising new ground – whether it is in interests of the administration of justice to grant leave to amend – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.426A, 499 Migration Regulations 1994 (Cth), cls.572.223, 573.223 |
| Cases cited: Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; [2015] HCA 15 |
| Applicant: | BILAL ASLAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1178 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 16 April 2018 |
| Date of Last Submission: | 16 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman, Newman & Associates |
| Solicitors for the Respondents: | Ms E Cheesman, Clayton Utz |
ORDERS
The applicant have leave to apply to amend the application.
The application for leave to amend the application is refused.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1178 of 2017
| BILAL ASLAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The applicant seeks leave to amend his application. The application was made informally on the day of the hearing with little notice to the Minister. The applicant no longer wishes to rely on the grounds in the actual application and proposes instead to rely upon the following ground:
‘Contrary to the Tribunal’s assertion that it had looked (as it was required to do) for evidence of the applicant’s circumstance in their own country, it did not do so as evidenced by a suite of medical documents concerning the applicant’s mother (in his own country) having been submitted earlier by the applicant and having been totally ignored.’
(Emphasis in original)
The applicant, a citizen of Pakistan, applied for a student (class TU) visa, relevant to the type of course that he wished to undertake. He had to satisfy the criteria which was relevantly cl.572.223(1) of the Migration Regulations 1994 (Cth) which is:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant meets the requirements of subclause (1A) or (2).
After the applicant had applied for his visa on 19 May 2016, a delegate of the Minister wrote to him asking for additional information in support of that criterion. It was indicated in the delegate’s letter that the delegate had serious concerns about the applicant’s true intentions in Australia and that he did not seem to have a genuine intention to stay in Australia temporarily.
The applicant was asked to provide a statement setting out his reasons for undertaking the courses of study set out in his application, and also evidence of his ties to his home country or usual country of residence that showed that he had significant incentives to return home at the end of his stay in Australia.
The applicant did not respond to that invitation. On 18 August 2016 a delegate made a decision refusing to grant the applicant a visa. The delegate referred to the request I have mentioned above, noting that a reminder email was sent, an extension was given, but that no response was received. The delegate was not satisfied that the relevant criteria had been satisfied.
The applicant applied to the Administrative Appeals Tribunal for review of that decision. On 17 November 2016 the Tribunal itself requested further information from the applicant, namely, a copy of the applicant’s current confirmation of enrolment. That information was supplied by email dated 23 November 2016, with the confirmation of enrolment indicating that the applicant was enrolled in the course of Advanced Diploma of Business starting on 9 May 2016 and ending on 2 December 2016, and also a further certificate relating to a Bachelor of Accounting which was to start on 6 March 2017 and end on 10 January 2020.
By letter dated 5 December 2016 the applicant was invited to attend a hearing to be conducted on 21 February 2017. On 9 February 2017 the applicant wrote to the Tribunal asking for the interview to be postponed because his mother was a patient of ovarian cancer which was entering into the fourth stage. He said that she was not well and so wished to postpone the hearing so that he could visit his mother.
The applicant said that he had applied for a bridging B visa and he had been granted the visa. He attached a number of documents which included some case sheets dated from 2015 and what looks like an itinerary from ‘Student Flights’ showing flights on Thai Airways leaving Australia on 13 February 2017 and returning on the 9 March 2017.
By email dated 9 February 2017, the Tribunal responded saying:
…
The Tribunal Member has considered your request for a hearing postponement but requires further information before she can make a determination on your request.
You are requested to provide a current medical report from your mother’s treating specialist outlining her current prognosis. Please provide this information by Close of business 10 February 2017.
…
(Emphasis in original)
In response to that email, the applicant sent a document entitled “CMH LAHORE MED CASE SHEET”, addressed to whom it may concern, certifying that said person was a known case of ovarian carcinoma (stage 3), who had been undergoing chemotherapy since 2015 and that despite regular treatment and follow up, her condition was still deteriorating and long-term prognosis was poor. It went on to say that the patient required additional cycles of high-dose chemotherapy and radiotherapy in an intensive care unit.
The Tribunal acceded to the request for postponement in light of the documents sent to it and set a new hearing for 8 March 2017. It sent out a letter indicating that dated 13 February 2017. The applicant did not respond to that hearing notice and he did not appear at the time and date of the hearing. After the time of the hearing, at 2:00pm on 8 March 2017, the applicant sent the Tribunal a medical certificate in which it was stated that the applicant was:
… unfit to engage in his/her regular study/employment between Wednesday, 8 March 2017 to Friday, 10 March 2017 inclusive.
On 13 March 2017 the Tribunal made its decision. It recorded at [5] that after no response was received from the Tribunal’s letter of 13 February 2017, that is, indicating the new hearing date, the usual pro forma checks were made and services proved to be good, and it was for that reason that the Tribunal proceeded pursuant to s.426A of the Migration Act 1958 (Cth) to decide to make a decision under review without taking any further action to enable the applicant to appear before it.
The Tribunal then noted that the issue was whether at the time of the decision, cl.573.223 of the Regulations was satisfied. I note that in the immediately preceding paragraph, the Tribunal stated that the relevant subclass was subclass 572 and therefore the reference ought to have been to cl.572.223, but no point is made about that, as those two criteria are in the same form. After then setting out the criteria and referring to Ministerial Direction No.53, a direction made by the Minister under s.499 of the Act, the Tribunal stated at [13] that:
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).
The applicant’s complaint in the ground which he now wishes to rely upon is essentially that the Tribunal did not have regard to the condition of the applicant’s mother when considering the applicant’s circumstances. He says that that was relevant, being part of his general circumstances which may have supported the conclusion that he intended genuinely to stay in Australia only temporarily. That is because the applicant’s mother’s illness would present as an incentive for the applicant to return to Pakistan. The application to amend, as I have said, is made late.
On 24 May 2017 I ordered that the applicant file and serve any amended application giving complete particulars in each ground of review of relief by 6 July 2017. No amended application was made. The only reason given by the solicitor appearing for the applicant for the lateness is, leaving aside his reference to his age, that he simply overlooked the point.
While I accept that it is possible to overlook points and to realise them very late in the piece, it still remains that it is not satisfactory to have been given leave in May 2017 to amend and yet not give sufficient thought to the grounds in the application to have been able to amend or to raise this point within the time allowed by the orders. I would add that the fact the applicant’s solicitor, who is well-experienced in migration matters and overlooked this point, in spite of having, no doubt, closely read the material beforehand, does not support the strength of the ground.
It is well-accepted that in order to complete a review of the delegate’s decision, a Tribunal such as this Tribunal must consider the material before it and the case that is raised either expressly by the applicant or implicitly by the material. The question of how far a Tribunal has to go in determining what case might arise from the material depends on all the circumstances and, in particular, upon the strength of the case that is said to arise from the material. It is also accepted that, again, depending on the circumstances, the Tribunal may be guided by the issues the parties choose to put before it and have regard to the case so put.
In Tuitaalili v Minister for Immigration & Citizenship (2012) 126 ALD 48; [2012] FCAFC 24, the Full Court said at [36] having referred to the decision of Merkel J in Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901:
… the conduct of the parties is relevant to determining the “the case actually raised by the material or evidence”. Despite the inclusion of a document referring to some matter or other, a party may not actually put a case relating to that matter by reason of the party’s conduct. If so, there can be no obligation to accept or reject material relating to the case not actually raised.
While there might be some doubt as to the continuing operation of the principle expressed by the Full Court in that paragraph in light of the decision of the High Court in Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; [2015] HCA 15, I remain bound by the decision of Tuitaalili which has been applied in a number of cases concerning the Refugee or the Migration Review Tribunal and, by extension, the Administrative Appeals Tribunal. In this case, the applicant never sought to make a case that his mother’s illness supported the conclusion that he genuinely intended to stay in Australia temporarily and so satisfied sub-cl.572.223(1)(a) of the Regulations.
The applicant put forward the material relating to his mother simply and solely in order to obtain a brief adjournment of the hearing which had been set by the Tribunal for 21 February 2017. He never made submissions that included his mother’s illness. He never included it in the response to the delegate’s request which would, if it were relevant, have adduced a reference to that illness. I note that request was made by the delegate in 2016 and that the applicant’s mother had been sick on the evidence since, at least, June 2015.
Further, the applicant pressed upon the Tribunal the urgency of his visit by reference to the cancer which affected his mother being in the fourth stage. I understand, from other experience, that fourth stage cancer is the last stage of cancer and, given the reference in the certificate to a poor prognosis that last stage does generally not result in recovery, particularly in the case of ovarian carcinoma. That is supported by the medical certificate relied upon by the applicant also in support of the adjournment application.
For those reasons, although it is not impossible to argue, it is not a strong argument that the Tribunal was obliged to consider the circumstance of the applicant’s mother in determining the applicant’s circumstances as they might relate to cl.572.223 of the Regulations. In any event, I am not satisfied that there is a sufficiently strong argument that the Tribunal overlooked that material in assessing all of the applicant’s circumstances.
First, in response to the applicant’s request for adjournment, an officer of the Tribunal had expressly said that the Tribunal had considered the applicant’s request. The request included all of the material and included the circumstances of the applicant’s mother. From that, I draw the inference that the Tribunal was well-aware of the circumstances affecting the applicant’s mother and, of course, the way in which it affected the applicant at the time of the adjournment application. That is roughly mid-February 2017.
It is unlikely, given a decision was made on 13 March 2017, that the Tribunal would simply have overlooked that material. That unlikelihood is given further strength by the fact that there is little or nothing else before the Tribunal from the applicant. Thus, when the Tribunal said, at [13], that it had considered the applicant’s circumstances, it is likely that those circumstances included the sickness of the applicant’s mother and the stage of her illness. On the basis of those two matters, I do not think that the ground now sought to be raised is sufficiently arguable to overcome the delay in bringing the application.
In order for the Minister to have a proper opportunity to address the ground there would be an adjournment and that adjournment would be a lengthy one, given the state of the lists in this Court.
Conclusion
Having considered all of the matters that were put before me and especially the strength of the proposed amended application, I am not satisfied it is in the interests of the administration of justice to allow the amendment and so the application is refused.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 5 July 2018
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