Atta v Minister for Immigration
[2019] FCCA 360
•5 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 360 |
| Catchwords: MIGRATION – Application for reinstatement of extension of time – consent orders voluntarily entered into – diplomatic visa – whether applicant is entitled to rely on VEVO status – reinstatement application dismissed – no medical evidence – no issue of fraud or duress – no issue of substantial injustice. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 15, 16, 17, 18 Federal Circuit Court Rules 2001 (Cth), r.16.05 Federal Court of Australia Act1976 (Cth), s.23 Migration Act 1958 (Cth), ss.65, 82, 351 Migration Regulations 1999 (Cth), cls.572.211, 573.211, 995.211, 995.511 |
| Cases cited: Atta v Minister for Immigration & Anor [2018] FCCA 2651 Atta v Minister for Immigration and Border Protection [2018] FCA 145 Badoui Al Badoui v The Minister for Immigration & Anor (2006) FMCA 1064 Hunter v Lee (1999) FCA 1075 Moussa v The Minister for Immigration and Border Protection (2015) FCA 1280 SZCZF v Minister for Immigration and Citizenship (2009) FCA 208 SZVGM v Minister for Immigration & Anor (2016) FCCA 1602 |
| Applicant: | DINA MOHAMED MAGDY MAHMOUD RASHAD ATTA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2877 of 2017 |
| Judgment of: | Judge Baird |
| Hearing date: | 5 February 2019 |
| Date of Last Submission: | 5 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Ms S. Sangha, Mills Oakley |
ORDERS
The application in a case be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
No. SYG 2877 of 2017
| DINA MOHAMED MAGDY MAHMOUD RASHAD ATTA |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore, revised from transcript)
Introduction
This is an application in a case, or an interlocutory application, as it is also described, filed on 19 October 2018 seeking reinstatement of the Applicant, Ms Dina Atta’s, application for an extension of time in which to file an application for judicial review by this Court of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 5 April 2017. The Tribunal affirmed a decision of the Delegate of the First Respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs), made 27 January 2016 to refuse to grant Ms Atta a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) Visa under s.65 of the Migration Act 1958 (Cth).
The application for extension of time in which to file the substantive application for review was dismissed by this Court by consent on 23 August 2018. I note that the orders for consent dismissal were signed by Ms Atta and by the solicitor for the Minister on 21 August 2018. This application seeks to set aside the discontinuance of that proceeding.
I note that Ms Atta’s discontinued application for extension for time to seek review of the Tribunal’s decision, and indeed, the decision of the Tribunal, and the decision of the Delegate regarding her application for Visa, have proceeded concurrently with proceedings brought by her brother, Mr Selim Atta, and his application for visa. I note that Ms Atta’s application for extension of time was made in the same terms, and if successful, the application for judicial review sought the same grounds of review, as her brother’s application to this Court.
Background
Ms Atta is a citizen of Egypt. She was born in 1992. She arrived in Australia on 15 January 2009 with her family on a Diplomatic (Temporary) (Subclass 995) visa as a secondary visa holder. Her father, Mr Mohamed Atta, was the primary visa holder of the diplomatic visa granted on 18 November 2008. That visa ceased in February 2012.
For an explanation of the background and circumstances of Mr Mohamed Atta’s visa status, and the law concerning his visa status, see the decision of Bromberg J in the Federal Court of Australia regarding her parents in Atta v Minister for Immigration and Border Protection [2018] FCA 145, and particularly at [4], [5], [14], [16], [22], and [28], and see also the decision of this Court regarding her brother, Mr Selim Atta’s, application for an extension of time in which to file an application for judicial review in Atta v Minister for Immigration & Anor [2018] FCCA 2651 (Selim Atta) and, particularly, at [6] to [9].
Ms Atta applied for her Visa on 8 January 2016. Ms Atta’s brother applied for his student visa, which was a subclass 572 visa, at the same time. Ms Atta’s application was refused by the Delegate, as was her brother’s application.
Neither Ms Atta nor her brother held a current substantive visa at the time of making their applications, and had not done so since 2012. The Delegate refused Ms Atta’s application on the basis that Ms Atta did not satisfy cl.573.211(3) of the Migration Regulations 1994 (Cth), in that she lodged her visa application after her substantive visa, that is, her father’s diplomatic visa, had expired in 2012.
Ms Atta applied to the Tribunal. At the request of Ms Atta and her brother, Mr Selim Atta, the Tribunal consented to a joint hearing and heard both her and her brother’s applications jointly. The Tribunal, in each case, affirmed the respective Delegate’s decision. The reasons of the Tribunal in Ms Atta’s case mirrored the Tribunal’s decision in relation to Mr Selim Atta’s application.
The Tribunal, in affirming Ms Atta’s decision, identified the criteria for the grant of her Visa, and in particular cl.573.211 of schedule 2 of the Regulations. That clause is in terms that mirror cl.572.211, which was applicable to Mr Selim Atta. The difference in the clauses of the type of visa are because Ms Atta was seeking a Visa to undertake study in a Master of Accounting.
In each case, whilst affirming the Delegate’s decision, the Tribunal said it would refer Ms Atta and her brother’s cases to the Minister and seek Ministerial intervention under s.351 of the Act.
On 31 August 2017 the Department wrote to Ms Atta advising that:
The Assistant Minister has personally considered this request and has decided it would not be in the public interest to intervene. The Assistant Minister has, therefore, not exercised his power under section 351 of the Act in your case. This request is now finalised.
On 15 September 2017 Ms Atta filed an application in this Court seeking an extension of time to file an application for judicial review of the Tribunal’s decision. As I have said, she filed her application at the same time as her brother, and her grounds of extension of time, and the substantive grounds of judicial review, mirrored those in her brother’s application.
The amended grounds of review filed by Ms Atta and dated 12 January 2018 contains four grounds. The last ground, ground 4, is the same as the ground that was pressed by her brother, and which I considered in Selim Atta.
Proceeding in this Court
Ms Atta was initially legally represented by Mr David Godwin of counsel, on a direct access basis. At the request of the parties, the application for extension of time was listed for hearing before me on 29 August 2018 at the same time as her brother’s application.
On 21 August 2018, as I have said, Ms Atta entered into consent orders with the Minister dismissing the application for an extension of time, with costs fixed in the sum of $3667. On 23 August 2018 those consent orders were entered. It is not in contention that the signature that appears above Ms Atta’s name is her signature and that she signed the consent orders. I also have before me in evidence an email chain which reveals that Ms Atta was, at the time of consenting to those orders discontinuing her application for extension of time, represented by Mr Godwin.
As I have noted, Mr Selim Atta’s application proceeded for hearing on 29 August 2018. I dismissed the application on 28 September 2018. In the course of today’s hearing, I became aware that Mr Selim Atta has applied to the Federal Court regarding that decision by an application filed on 23 October 2018, on the ground that my decision not to grant an extension of time was legally unreasonable. That application is listed for hearing on 6 March 2019 before Robertson J.
The Applicant’s Explanation
I turn now to the explanation that Ms Atta gives for entering into her consent orders, and now seeking reinstatement. In her affidavit affirmed 18 October 2018 in support of her application to reinstate, Ms Atta explains her decision to enter into consent orders in the following terms:
Due to circumstances beyond my own control I withdrew my application because I was under significant stress and was no longer able to tolerate the unstable immigration situation I have been in over the last two years. My worsening anxiety has made me decide to discontinue my matter before the FCC.
Ms Atta explained that she had secured employment in Egypt with a company that specialises in organising medical conferences. She was due to commence her position as of 21 October 2018. However, as she got closer to booking a flight, she says she became more and more anxious, and had episodes of breathing difficulties and heart palpitations. She says:
[9] After all the arrangements I have made to depart, I suddenly feared returning to a third world country without my parents or brother.
[10] Hearing all the incidents relatives and friends encounter on a daily basis i.e mugging, sexual harassment and seeing them on news myself has added to my anxiety.
[11] I have no immediate family in Egypt and the idea of living in an unsafe environment all alone has left me too anxious to return.
Ms Atta says that she informed her prospective employer that she would not take up the position, and, evidently, she has not returned to Egypt, and has instead sought to reinstate her application. I accepted Ms Atta’s affidavit evidence subject to weight, noting that Ms Atta did not provide any medical evidence in support of her statements, and noting Ms Sangha for the Minister’s objection to the above paragraphs, and urging that I accept them as submission only.
Relevant law
Sections 14, 15, and 16 to 18 of the Federal Circuit Court of Australia Act 1999 (Cth), (the FCC Act), provide this Court with authority to resolve the whole of the controversy between the parties within its jurisdiction. As Judge Cameron held in SZVGM v Minister for Immigration & Anor (2016) FCCA 1602, the Court also has an implied power to correct abuse of its process. Thus, whilst there is no express power in the FCC Act, or the Federal Circuit Court Rules 2001 (Cth), to set aside a notice of discontinuance, an absence of express power will not prevent a statutory court such as this Court from preventing an abuse of process.
His Honour noted that s.23 of the Federal Court of Australia Act1976 (Cth) is relevantly identical to s.15 of the FCC Act. At [7] of his Honour’s judgment in SZVGM, his Honour helpfully identifies comments made by the Full Court of the Federal Court in Chin v Monash University (2016) FCAFC 66 in the context of a discontinuance, albeit at the appellate level, and at [6], his Honour referred to Hunter v Lee (1999) FCA 1075, (1999) 91 FCR 214.
The scope of the power to vary or set aside an order or judgment after entry in this Court is much more circumscribed than that provided by the Federal Court Rules, and by r.16.05(1) of the Rules of this Court before an order has been entered. This is clear from the circumstances identified in r.16.05(2).
In Moussa v The Minister for Immigration and Border Protection (2015) FCA 1280, Judge Perram summarised four relevant principles to consider in assessing whether to set aside a discontinuance at [13]:
(a)A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.
(b)It may also be set aside where its filing was procured by fraud or duress.
(c)There is no jurisdiction to set such a notice aside to avoid substantial injustice.
(d)None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.
The Proceeding in this Court
Before me today, Ms Atta has appeared unrepresented, but with the support of a friend. Ms Atta has conducted her case in English, assuring the Court she was well able to do so. Ms Atta did not provide written submissions, other than in her affidavit. Ms Atta made oral submissions in relation to two main points. First, in answer to the Minister’s written submissions regarding her mental state, and secondly, with regard to her application for extension of time.
First, in relation to her mental state, and responding to the Minister’s written submissions, Ms Atta submitted that she had undergone many years of being misled by the Department and the Tribunal as to her visa status, which had put her under extreme stress and likely to make irrational decisions. She submitted that going back to Egypt was an irrational decision. Furthermore, she still believed in her rights to remain in Australia, and fight to stay here. She submitted that her ability to negotiate with her prospective employer regarding the terms of her employment did not show that she was not under stress, and she took issue with Ms Sangha’s submission that Ms Atta’s affidavit evidence indicated that she was capable of making informed decisions, (there referring to those negotiations with Ms Atta’s prospective employer).
Secondly, in relation to the late filed application for judicial review, Ms Atta submitted that whilst the Tribunal refused her application for review, it directly referred her case to the Minister for exercise of the Minister’s discretion as a rare case. Ms Atta relied on the assurance of her migration agent, and that the Minister did have power to intervene. Ms Atta, in effect, said that she relied on her migration agent’s advice that it was only a matter of time. She said that after several weeks of emails, provision of evidence of her payslips, bank details, details of her education and the like, she continued to be under the impression that the Minister would intervene. Her migration agent further advised her to wait. Accordingly, she said, her extension of time is justified. In response to my inquiry, Ms Atta agreed that she would make the same arguments as her brother made through counsel in relation to his application before me. Ms Atta again confirmed (as she had at the commencement of today’s hearing) that she was present during the hearing of her brother’s application.
Consideration
There is no evidence before the Court to suggest that Ms Atta entered into the consent orders in circumstances where she was suffering from any relevant mental incapacity. I accept that Ms Atta may have been under stress, and that she may well have been very concerned as to her continuing Visa status. However, I have not been provided with any medical evidence which would support any claim that Ms Atta was unfit in the sense of being unable to conduct her affairs. I agree with Ms Sangha that the evidence, namely Ms Atta’s affidavit before me, falls far short of demonstrating any abuse of process (and I note that Ms Atta does not submit that there was any such abuse), or that Ms Atta discontinued the proceeding in circumstances of fraud or duress. At the time Ms Atta discontinued the proceeding, she was legally represented by counsel on a direct access basis. In the absence of any corroborating evidence to the contrary, it must be accepted that Ms Atta was advised about the consequences of entering into such orders for discontinuance and costs. I note the Minister’s reference to Badoui Al Badoui v The Minister for Immigration & Anor (2006) FMCA 1064 in that regard.
Ms Atta’s affidavit evidence in support of her application for discontinuance supports my conclusion. It demonstrates that Ms Atta had made a decision to return to her country, Egypt, and was actively seeking job opportunities in August 2018. Further, and to my mind, importantly, there is no material before this Court to indicate that the orders should be set aside to avoid substantial injustice. Ms Atta’s affidavit evidence demonstrates that Ms Atta changed her mind. A change of mind reason is not sufficient to revoke consent orders such as in the present case. If it was, there would be no finality in litigation. And I note Ms Sangha’s reference to SZCZF v Minister for Immigration and Citizenship (2009) FCA 208 at [32].
Reinstatement is not necessary in the interests of administration of justice. The application for reinstatement if successful would then enliven Ms Atta’s application for time to be extended, and in turn, were time to be extended, that would enliven Ms Atta’s substantive case for judicial review of the Tribunal’s decision. The length of Ms Atta’s delay and filing her application for extension of time, 108 days, is extensive. I considered similar extension of time in Selim Atta. In that case, as in the present, it appeared appropriate to consider the prospects of the underlying substantive case for judicial review, that is, whether any of the grounds have any reasonable prospects.
Proposed Grounds of Review
The Applicant, Ms Atta’s, amended application, as I’ve noted, contained four grounds of review (without alteration):
1. Because the applicant was the holder of a substantive visa on 8 January 2016 the Tribunal erred in finding that the applicant did not satisfy clause 573.211(1) and (3).
2. The Tribunal erred in not finding that the VEVO print supplied by the applicant was proof of her visa status in January 2016.
3. The Tribunal’s decision was legally unreasonable. Particulars. The decision was based on finding that the applicant’s last substantive visa ceased to be in effect on 15 February 2012 which finding lacked a probative basis.
4. The Tribunal should have remitted the decision with a direction that the first respondent is estopped from denying the applicant a student visa (class TU) on the basis that she did not satisfy clause 573.211(1) and (3) as the applicant had materially altered her position based on representations made to her by the first respondent that she was the holder of a substantive Diplomatic class 995 visa on and before 8 January 2016.
The first three proposed grounds of review were not pressed before me by Mr Selim Atta when his application was heard by me. These grounds assert that Ms Atta was the holder of a substantive visa on 8 January 2016, and that the Tribunal erred in finding that she did not satisfy cl.573.211(1) and (3). The grounds allege that the Tribunal’s decision was legally unreasonable, and based on a finding that lacked a probative basis because Ms Atta had provided a “VEVO print supplied by the Applicant [which] was proof of her visa status in January 2016.”
The Tribunal’s finding that Ms Atta’s substantive visa ceased on 15 February 2012 was open to it on the material and information before it. Relevantly, cl.995.511(b)(ii)(A) of schedule 2 to the Regulations specified that the Applicant was permitted to remain in Australia:
For the duration of the status of the person who satisfied the primary criteria as a diplomatic or consular representative in Australia of a country other than Australia.
As Ms Atta’s father, Mr Mohammed Atta’s, visa ceased on 15 February 2012, it followed that Ms Atta’s visa also ceased on that day. Bromberg J in Atta so held in relation to Mr Mohammed Atta’s visa at [28]. For the reasons that I set out in Selim Atta at [69], which I will repeat mutatis mutandis relating to Ms Atta, these 3 grounds do not have reasonable prospects:
[69] The validity of an application for a visa is an objective questions: see Atta [per] Bromberg J at [15] (above at [9]). Clause 995.211 of the Regulations sets out the period in which Mr Atta’s last substantive visa was in effect. Whatever the Department VEVO records said, the term of Mr Atta’s diplomatic visa was that it continued only for so long as his father, Mr Mohamed Atta, held his diplomatic posting. It is uncontroversial that that posting ceased at least by February 2012. As Bromberg J set out in Atta at [12] and [14], by operation of s.82 of the Act and cl.995 of schedule 2 of the Regulations, Mr Mohamed Atta’s visa ceased to have effect upon him ceasing to hold status as a diplomatic representative. It follows that Mr Atta’s visa similarly ceased to have effect.
[70] Mr Atta did not, thereafter, hold a substantive visa. Whether or not the VEVO record represented otherwise, does not change that legal status. Mr Atta’s application for judicial review is not made out. The Tribunal did not err. The ground of review does not have reasonable prospects of succeeding.
Accordingly, there is no basis to contend that the Tribunal’s findings were legally unreasonable, and grounds 1 to 3 of Ms Atta’s amended application for judicial review would fail.
The fourth proposed ground asserts that the Minister is estopped from denying Ms Atta a student Visa of the relevant class on the basis that she did not satisfy cls.573.211(1) and (3) as she had materially altered her position based on representations made to her by the Minister that she was the holder of a Substantive Diplomatic (Subclass 995) visa on or before 8 January 2016. I consider that this ground cannot succeed for the reasons set out in Selim Atta at [59], where I held that an identical ground had “no reasonable prospects”. See my reasoning in Selim Atta at [60] – [70]. As I there concluded at [66], the discretion that Ms Atta seeks is contrary to the statutory duty specified by s.65 of the Act. Accordingly, I conclude that ground 4 in the present case does not have reasonable prospects.
Conclusion
None of the rare circumstances which would enable this Court to set aside the consent orders made on 23 August 2018 have been established in this case. Ms Atta’s affidavit evidence, and her oral submissions, demonstrate that Ms Atta knowingly and voluntarily discontinued the proceeding, and that she subsequently changed her mind. That she may have been under stress, in the absence of any material before me as to an assessed medical state, does not vitiate those circumstances. Further, and in any event, no substantial injustice arises if the application is not reinstated for the reasons I have set out above.
I have concluded that the application in the case should be dismissed with costs and I will so order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 15 February 2019
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