BI v Minister for Immigration
[2018] FCCA 335
•16 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 335 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case seeking orders that the applicants have leave to amend their application – applicants sought to provide further evidence at the final hearing and the handing down of the judgment in the substantive matter – Application in a Case refused. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.42 Migration Act 1958 (Cth), s.476 Migration Regulations 1999 (Cth), sch.2, cl.447.224, sch.4, PIC 4020 |
| Cases cited: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 |
| First Applicant: | SHUJUAN BI |
| Second Applicant: | TENG MU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3446 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 March 2018 |
| Date of Last Submission: | 13 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Ms E Anang of Christopher Levingston & Associates |
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper Australia |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The Application in a Case made on 9 March 2018 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3446 of 2014
| SHUJUAN BI |
First Applicant
TENG MU
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an Application in a Case (“AIC”) made on 9 March 2018. The substantive proceedings to which the AIC relates is an application made by Mrs Bi and her son, Mr Mu, on 12 December 2014, which sought review of the decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which, on 19 November 2014, affirmed the decision of the Minister’s delegate to refuse Temporary Business Entry (Class UC) visas to Mrs Bi and Mr Mu. Mr Mu applied for the visa as Mrs Bi’s dependent.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Mrs Shujuan Bi, Director, made on 9 March 2018.
c)Email correspondence between Mr Mu and Mr David Bitel of Parish Patience Immigration Lawyers in February 2015 (“RE1 in AIC”).
d)Cover letter and Court documents sent to Mrs Bi from Mr David Bitel of Parish Patience Immigration Lawyers on 19 February 2015 (“RE2”).
e)Email correspondence to Mrs Bi at Mr Mu’s email address from Asha C. D’Silva of Parish Patience Immigration Lawyers on 19 February 2015 attaching the cover letter and Court documents identified above as “RE2” (“RE3”).
The final hearing of the substantive application was held on 31 January 2018. Mrs Bi and Mr Mu were not legally represented at that time. At the conclusion of the hearing, I advised the parties that I would reserve judgment, and would hand it down on 16 February 2018.
At the handing down of the judgment on 16 February 2018, Mr Mu stated that at the final hearing, he had wanted to give the Court documents relevant to the applicants’ case. Mr Mu also made reference to having email communication with the Court (Registry) after the final hearing, in which he also made reference to the relevant documents that he had wanted to give to the Court at the final hearing. In light of this, I adjourned the handing down of the judgment. It was specifically in relation to those documents that I gave the applicants the opportunity to file an AIC, and evidence by way of affidavit, to enable the applicants to put those documents before the Court.
Mr Mu said that the relevant documents included copies of emails he had given to the Tribunal at the hearing, and had the Tribunal looked at this evidence, it would not have made the “wrong decision” regarding Mrs Bi’s “intentions of travelling to Australia”.
Mr Mu claimed, as best as his complaint could be understood, that he had been prevented from providing the documents to the Court by the conduct of the Minister’s legal representatives at the hearing, or that the Court did not take the documents, or both.
It is the case that at the final hearing Mr Mu did make references to documents that he indicated he had in his possession (see further below at [18]). At that time, both the Court and, given his subsequent submissions, the Minister’s solicitor, understood that these documents went to the matter of whether the applicants had engaged, or instructed lawyers to represent them either at the time of the making of their application to this Court, or soon thereafter.
Some explanation is necessary here, having regard to the evidence before the Court, and the submissions made during the final hearing.
First, the application to the Court was made on 12 December 2014. At the final hearing, the applicants complained that they had been denied the opportunity to attend at the first Court date in this matter. The first Court date had been listed before a Registrar on 5 February 2015.
The relevant circumstances were that Mr Michael Jones, solicitor, of Parish Patience Immigration Lawyers (“Parish Patience”) acting on the applicants’ behalf, had consented to the making of procedural orders for the conduct of the applicants’ case. The first Court date before the Registrar was therefore vacated, and the orders made on 4 February 2015 included the grant of leave for the filing of any amended application, further evidence by way of affidavit and also set the matter down for final hearing (originally set for 4 October 2016).
At the (rescheduled) final hearing (31 January 2018) (see further below at [49]), Mr Mu stated that he and his mother had no knowledge of the vacation of the first Court date, or of any of the other orders made by the Registrar of the Court on 4 February 2015, for the conduct of their case.
Mrs Bi and Mr Mu asserted that they had not instructed or engaged Mr Jones to act for them. The applicants submitted that whatever Mr Jones did was without instruction from them.
Second, at the final hearing, Mr Mu also submitted that the migration agent who had assisted his mother in obtaining a visa to come to Australia, the application for which was made on 5 June 2013, had provided false information without his mother’s knowledge.
The apparent relevance of this is as follows. Both the delegate’s, and the Tribunal’s, decisions were concerned with, and arose from, Public Interest Criterion 4020 (“PIC 4020”) of Schedule 4 to the Migration Regulations 1994 (Cth) (“the Regulations”) (see CB 107.2 and [56] at CB 290 to [115] at CB 298). That is, relevant to the substantive matter before the Court, the Tribunal affirmed the delegate’s decision on the basis that the application for the Temporary Business Entry (Class UC) visas (which was the subject of the Tribunal’s consideration) did not meet the requirements of cl.457.224 of the Regulations, because Mrs Bi had provided false or misleading information under PIC 4020(1)(a), and the Tribunal did not waive the requirements of PIC 4020(1) under PIC 4020(4) of Schedule 4 to the Regulations.
At the final hearing, both Mr Mu and Mrs Bi asserted that they had no knowledge of what the migration agent had put in the application for the visas.
In this context, Mr Mu made reference to documents relevant to what had occurred in relation to Mrs Bi’s visa application.
The following emerged at the final hearing.
One, Mr Mu made reference to some “documents”, but he made no attempt to present them to the Court. He was not clear as to whether he had the documents with him, or that they were otherwise in his possession, or that he could obtain them.
Two, whatever the situation with Mr Jones, and whatever documents were said to relate to that matter, they could not possibly, in the circumstances, reveal jurisdictional error in the Tribunal’s decision. Plainly, the claimed events involving Mr Jones post-dated the Tribunal’s decision.
Three, the question arose as to whether the applicants, in the circumstances, had been denied the opportunity to prepare for the final hearing by the claimed conduct of Mr Jones. Particularly in circumstances where the applicants claimed before the Court that Mr Jones’ conduct meant that they had no knowledge about their case, or how to prosecute it.
I gave the applicants the opportunity to file an AIC and evidence by way of affidavit by 9 March 2018, and adjourned the handing down of judgment to 12 March 2018.
As mentioned above, the applicants filed their AIC on 9 March 2018. At the adjourned handing down of the judgment on 12 March 2018, the applicants were represented by a solicitor. The Minister was also represented by a solicitor. The Minister’s solicitor advised that the Minister’s solicitors had only received the AIC, and the supporting affidavit of Ms Bi, that morning. The Minister’s solicitors were unable to proceed because there had not been an opportunity to obtain instructions.
Given that 12 March 2018 was a public holiday in the Australian Capital Territory (where those who gave instructions were based), I adjourned the handing down of the judgment again, and listed the AIC for hearing on 13 March 2018.
At the hearing of the AIC on 13 March 2018, the applicants’ were represented by a solicitor. The Minister was also represented by a solicitor.
The Minister objected to the reading of Mrs Bi’s affidavit on a number of bases (see [2](b) above).
First, at the final hearing of this matter, Mrs Bi had requested, and been provided with, an interpreter in the Mandarin language. The affidavit deposed to by Mrs Bi contained no interpreter’s jurat. The Minister objected to the whole of the affidavit on that basis.
The applicants’ solicitor submitted that the affidavit had been translated for Mrs Bi by her son, Mr Mu. The submission was that Mr Mu was competent in English. There was no reason to reject that submission, given Mr Mu’s demonstrated capacity in English as exhibited at the final hearing of the substantive application.
I determined that the most expeditious way to proceed was to provisionally read the affidavit (subject to any other objections), and allow Mrs Bi to give oral evidence as to the relevant circumstances in relation to the making of her affidavit [subsequently the affidavit (except for [18]) was read on the basis of Mrs Bi’s oral evidence].
It is of note that [10] to [14] and [18] of that affidavit deal with matters concerning the allegation that Parish Patience acted without authority. There was nothing from the applicants’ solicitor to indicate that Parish Patience had been put on notice of this very serious allegation.
The Minister objected to [18] of Mrs Bi’s affidavit. I took the view that [18] should not be read into evidence, because it represented the witness’s conclusion, or opinion. Paragraph 18 could be distinguished on this basis from [10] to [14]. I agreed with the Minister’s objection. I note in any event, that those paragraphs of the affidavit ([10] – [14]) provided a sufficient basis for the applicants to pursue the allegation that they had indicated they wanted to pursue.
Mrs Bi was examined and cross-examined for some two hours and fifteen minutes with the assistance of an interpreter in the Mandarin language.
While the examination and cross-examination of Mrs Bi was lengthy, the following is of particular relevance.
Mrs Bi’s clear evidence was that she had little or no memory, understanding, or knowledge of the events relevant to the making of the substantive application to the Court, and what subsequently occurred while the matter was before the Court.
In essence, Mrs Bi’s evidence was that she left the matter of the conduct of the case to her son, Mr Mu. Mrs Bi indicated that Mr Mu explained relevant events to her. That is, what Mrs Bi claimed to know, was what Mr Mu had told her.
Mrs Bi, it must be said, persistently (although not exclusively), did not answer the questions put to her by the Minister’s solicitor. She sought to “volunteer” evidence during cross-examination which was neither responsive to the question asked, or helpful to explaining her case.
It is important to note, and in light of the above (at [33] – [34]), that Mr Mu was also an applicant in these proceedings. He elected not to give evidence. In the circumstances, I take no adverse view of his failure to do so. However, given the state of Mrs Bi’s evidence, it left the applicants’ submissions with little evidentiary support.
The applicants have sought to re-open their case after the conclusion of the final hearing and, at best, at the proposed handing down of the judgment.
Before the Court, the applicants’ solicitor explained that they wanted to re-open the case to put a transcript of the Tribunal hearing before the Court. The affidavit of Mrs Bi also annexed a copy of a proposed amended application.
The applicants submitted that the conduct of Parish Patience was such that they were deprived of the opportunity to attend the first Court date, and were not provided with a copy of the orders made on 4 February 2015 (for the progress of the case), and were therefore not aware (it was not clear as to when this state of unawareness extended), that they “had” to file an amended application.
On the matter of the involvement of Parish Patience, the applicants’ submission was that although they had some discussions with a (then) principal of the firm (“David”), they did not “formally engage” Parish Patience to act for them. Parish Patience therefore should not have “intervened” in agreeing to the making of orders by consent, and the vacation of the first Court date.
In relation to the transcript of the Tribunal hearing, the applicants say that this is relevant to ground two of the substantive application (ground four of the proposed amended application annexed to the affidavit of Mrs Bi).
In submissions, the applicants’ solicitor made no reference to the elements, or factors, relevant to the Court’s consideration of the application to “re-open” the case, nor to any authorities in explanation of the relevant elements.
The Minister referred the Court to Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (“Bradshaw”) (per Kenny J and in particular at [24]).
Bradshaw
involved consideration, as in the current case, of the
re-opening of the case after judgment had been reserved. In Bradshaw at [24] the Court stated:
“The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to
re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (‘UTA’) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (‘Silver Fox’) at [22] and [25].”
It is also of assistance to note what was said in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 (“The Movie Network Channels”). The Movie Network Channels sets out the principles which inform the exercise of the Court’s discretion to
re-open, including that “the evidence must be credible, highly probative and not previously obtainable by reasonable diligence”, and citing the “interests of justice” test from Bradshaw (The Movie Network Channels at [4]). In The Movie Network Channels (at [8]), his Honour Justice Einstein relied on the judgment of his Honour Justice Austin in ASIC v Rich[2006] NSWSC 826; (2006) 235 ALR 587 (“Rich”) which lists a range of factors that are relevant to the exercise of the Court’s discretion to re-open as follows:
“In ASIC v Rich (2006) 235 ALR 587 at [18] per Austin J listed the factors that he agreed were relevant to the exercise of the discretion as follows:
i. The nature of the proceeding [See also Woolworth Ltd v Olson [2004] NSWSC 871];
ii. Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
iii. The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
iv. The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;
v. The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
vi. The degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
vii. The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
viii. The public interest in the conclusion of litigation [See also Hawthorn Glen Pty Ltd v Aconex Pty Limited (No 1) [2007] FCA 2010 at [48]]; and
ix. What explanation is offered by the plaintiff for not having called the evidence in chief.”
The applicants’ submissions before the Court were that the conduct of Parish Patience (and Mr M Jones) deprived them of the opportunity of knowing of the orders made by the Court in February 2015, and how to progress their case.
The difficulty for the applicants is that the Minister has provided evidence (put to Mrs Bi in cross-examination), that supports the Minister’s contention that the applicants were provided with a copy of the Court’s orders (of 4 February 2015) both by email, and post, by Parish Patience in February 2015 (see also RE2 and RE3).
Mrs Bi’s evidence here was not clear. At best it was that she knew nothing about this because she left such matters in the hands of Mr Mu. In the absence of any evidence from Mr Mu, the Minister’s evidence must be accepted.
What also stands against the applicants, and stood against them at the final hearing in answer to this claimed lack of knowledge, was that around 29 September 2016, Mr Mu, acting also on behalf of Mrs Bi, approached the Minister’s solicitors seeking an adjournment of the final hearing. That adjournment was ultimately granted by the Court.
Whatever the situation concerning Mr Jones and the applicants’ claimed lack of knowledge, at least as at 29 September 2016, the applicants must have become aware of the orders made for the conduct of the case. At the very least, the applicants must have had knowledge of the order setting the matter down for final hearing. It was that order that Mr Mu ultimately asked the Court, through the Minister’s solicitors, to vacate and replace with a later hearing date.
The claim that Mr Mu and Mrs Bi had no knowledge of the relevant process must be rejected. I find that as at February 2015, and certainly at least from 29 September 2016, the applicants knew of the date for the final hearing of their case, and of the orders made for the progress of their case.
Importantly, there is nothing in Mrs Bi’s affidavit now to explain why, at least from 29 September 2016, the applicants took no steps to either obtain legal advice, or to otherwise gain the knowledge about how to prosecute their case that they claim they lacked. On what is before the Court, Mrs Bi and Mr Mu did nothing in this regard. Noting of course, that the applicants had made their application to the Court themselves.
Nor can it be said that Mr Mu and Mrs Bi suffer from the disadvantage of language, illiteracy, or that they lack capacity, sometimes seen in applicants before this Court in migration matters.
On the evidence produced by the applicants to the delegate, and the Tribunal, and now before the Court, Mrs Bi is a company director with some years of business experience and qualifications. Mr Mu, demonstrably before the Court, is conversant in the English language. He asserted he did not need the services of an interpreter for the hearing of this matter. At the adjourned handing down of the judgment on 12 March 2018, Mr Mu also submitted (through his solicitor) that he had interpreted his mother’s (Mrs Bi’s) affidavit (made on 9 March 2018) to her.
The applicants have not satisfactorily explained why, in the at least, sixteen months (if not longer) available to them, they took no steps to acquire the knowledge they said was denied to them by Mr Jones’ conduct. In the circumstances, the applicants have had a reasonable, and fair, opportunity to properly prepare for the final hearing of this matter.
Before the Court, the applicants’ solicitor submitted that the applicants had previously chosen to represent themselves. That is of course their right. They made that election in circumstances where amongst other things, they had, on the evidence of Mrs Bi, “discussions” with lawyers. The applicants must now accept the consequences of their election.
Before the Court, the applicants’ solicitor, submitted, in effect, that the Court should ignore the delay occasioned by the applicants’ decision not to obtain legal advice. That submission must be rejected.
In any event, any documents Mr Mu may have had, and wished to present to the Court concerning Mr Jones, would not, in the circumstances as set out above, have assisted the applicants.
The issue of the migration agent, whom the applicants say provided the false and misleading information in Mrs Bi’s visa application, was raised by them before the Tribunal. On the evidence, Mrs Bi told the Tribunal, when the matter of PIC 4020 of Schedule 4 to the Regulations was raised with her, that she was not responsible for providing the false or misleading information in the application, nor did she have any knowledge of what the agent had done.
The applicants were given the opportunity by the Tribunal to comment on the issue of the false and misleading information. The Tribunal’s conclusion on this matter, and the antecedent findings that informed it, were all reasonably open to it.
At the final hearing, while Mr Mu made general reference to the “documents” he wanted to give the Court, he did not identify any specific documents relevant to this matter.
If the relevant documents were before the Tribunal, then given the circumstances set out at [58] – [60] above, even if the applicants were to produce any such documents, they could not be anything other than part of a request for impermissible merits review. This is because the Tribunal’s findings, on the material before it, were reasonably open to it, and probative of that material, including the explanation given by Mrs Bi as to her lack of knowledge of the provision of the false and misleading information in her visa application.
If the documents were not before the Tribunal, then they could not assist in revealing jurisdictional error in the Tribunal’s decision in the circumstances presented.
Notwithstanding the above, as previously mentioned, I adjourned the handing down of judgment until 12 March 2018. I gave the applicants the opportunity to present the documents that they said they were denied the opportunity of doing so at the final hearing.
I gave the applicants the opportunity to file an AIC because the allegation made against the Minister’s representatives was serious (see [6] above). Further, it was not appropriate to leave open the assertion that the Court had denied them a fair opportunity to present their documents. This was so, even in light of the circumstances set out above.
The applicants have now filed an AIC. It is accompanied by the affidavit of Mrs Bi.
There is nothing in the affidavit or the AIC in relation to the documents that the applicants claimed they wanted to provide to the Court at the final hearing, but were denied the opportunity to do so. I note that Mrs Bi’s affidavit (of 9 March 2018) does annex a copy of an email sent to Parish Patience (by whom Mr Jones was employed) from Mr Mu. It relates to the matter concerning Mr Jones as set out above. For the reasons also set out above in this judgment, it does not assist their AIC.
That, in my view, is sufficient in itself to refuse the AIC in the circumstances set out above.
However, and further, the AIC seeks, at this very late stage, to re-open the applicants’ case to provide evidence in the form of a transcript of the Tribunal hearing, and leave to argue a ground of review said to arise from that evidence.
Section 42 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides that this Court “must endeavour to ensure that the proceedings are not protracted”. The applicants’ conduct at the handing down of the judgment, and subsequently, is inimical to that statutory direction.
Importantly, there is nothing in what the applicants have now presented to the Court to say that there is some reasonable argument, or an argument of such merit that, in the interests of justice, should be heard by this Court.
The applicants now want to provide a transcript of the audio of the Tribunal hearing as relevant to ground two of their application to the Court (ground four of the proposed amended application annexed to the affidavit of Mrs Bi). Even if there were some errors in interpretation at the hearing that would not be enough, on its own, to reveal jurisdictional error (W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788, Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230; (2003) 131 FCR 511 and WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511).
In any event, there is nothing from the applicants now to indicate the nature of any of these claimed errors, and whether they were material to any finding made by the Tribunal, and the disposition of the application for review.
The applicants are now legally represented. It would have been expected that they could have given some detail to explain the merit of the matter they now wish to (belatedly) raise before the Court.
Before the Court, the applicants’ solicitor submitted that “they” (presumably the applicants’ solicitors) “believe[d] the applicant” (presumably Mr Mu), when he said there was an “error with the interpreter”. In context, it was clear that this was a reference to the interpreter who had assisted Mrs Bi at the Tribunal hearing. Noting, of course, that Mr Mu did not require the services of any such interpreter.
Importantly, the applicants’ solicitor submitted that “they” (presumably the applicants’ solicitors) did not know what specific aspects of the evidence were misinterpreted.
That in my view, is an important reason why leave to re-open should be refused. This is not a case where applicants have come to this Court, with legal representation, to assert with a sufficient level of particularity, jurisdictional error on the part of the Tribunal. The applicants may “hope” that there are interpretation errors. But what is required now (after all the time that the applicants have had available to them), was some specificity as to what those “errors” may have been.
On the evidence before the Court, and this was confirmed at the final hearing by Mr Mu, the applicants have had the audio recording of the Tribunal hearing since February 2015.
It is even of note that the applicants have not provided a transcript of the Tribunal hearing with the AIC. In the circumstances, I find that this was not one of the “documents” Mr Mu (at the “handing down”) subsequently said he wanted to give to the Court at the final hearing.
The applicants now also submit that the question of interpretation errors was raised in one of the grounds of the original substantive application (ground two). However, there is nothing in the applicants’ evidence to the Court now, to explain why they took no steps to procure a transcript, or importantly, to make relevant enquiries as to how to procure one.
There is nothing from the applicants now, let alone in the evidence of Mrs Bi, to satisfactorily explain the lack of prosecution of their case for at least the last sixteen months, if not for the forty months since the making of the substantive application to the Court. Nor is there any satisfactory explanation as to why they failed to obtain legal advice in those sixteen months. There is also no satisfactory explanation as to why the transcript of the Tribunal hearing they now wish to put before the Court could not have been provided earlier, and in particular, prior to the final hearing (the date for which the applicants had sixteen months’ notice).
I find that the applicants were made aware of the “timetable” for the conduct of their case in February 2015. They provided no satisfactory explanation for the failure to take steps to prosecute their case in the nearly three years available to them.
Nor, in the context of their submissions, have they provided satisfactory evidence to explain why they did not seek advice as to how to go about taking steps to prosecute their case.
Importantly, and further to the above, the applicants were put on notice of the “deficiencies” in the presentation of their evidence by the Minister’s written submissions filed in these proceedings on 27 September 2016 (in anticipation of the final hearing, the date for which was adjourned on the applicants’ initiative).
Turning now to the categories of cases identified by Justice Kenny in Bradshaw (noting of course that these are not exhaustive).
One, the “fresh evidence” identified by the applicants now is the transcript of the Tribunal hearing. For the reason set out above, the applicants have not, in the circumstances as found, provided a satisfactory explanation as to why they did not take steps to produce this evidence in the three years available to them. In the circumstances, the transcript of the Tribunal hearing cannot be said to be “fresh evidence”.
Two, as to any “inadvertent error”, there is nothing identified in the applicants’ submissions that could meet this description. The “error” asserted against Parish Patience was not described as “inadvertent”. In any event, I find there was no “error” in, or as a result of, Parish Patience’s actions, or even if there was, it was addressed in February 2015.
On Mrs Bi’s evidence, the applicants had discussions with “David” (former principal of Parish Patience). She says no formal instructions were given to his firm. Even if this was the case, Parish Patience withdrew in February 2015, and on the evidence before the Court, sent a copy of the Court’s orders to the applicants.
Three, there was nothing in the applicants’ submissions, or the evidence, to say there was any “mistaken misapprehension of the facts”, on their part. Even on their own submission, it was a claimed lack of knowledge, not a mistaken understanding of any fact.
The fourth category is a “mistaken apprehension of the law”. The claimed lack of knowledge of Court procedures (addressed variously above), does not meet the description of a “mistake” as to the understanding of the law.
Nor do the grounds of the proposed amended application have such merit as to weigh in favour of the grant of leave to re-open their case. The grounds of that application are as follows [I note grounds 1, 2 and 3 are crossed out]:
“4. The decision of the Second Respondent is infected by jurisdictional error by reason of the failure [o]f the interpreter to properly interpret the questions asked by the Member and the answers given by the applicants.
5. The information regarding the primary applicant’s previous visa refusal was not a material particular in relation to her application for a subclass 457 visa.”
The “first” proposed ground (ground 4) asserts interpretation errors. As set out above, without particulars (that have still not been provided), and in circumstances where the ground has been drafted with legal assistance, it lacks merit.
The “second” proposed ground (ground 5) appears, at best, to be a variation of the general complaint about the matter of Mrs Bi’s previous visitor visa application. It is to be remembered that the Tribunal found that Mrs Bi did not meet the criteria for the grant of the visa, because in the application for the visa, she had provided misleading information. This was that she had not previously applied for, and been refused, an Australian visa.
As mentioned above, Mrs Bi claimed before the Tribunal that she did not know what the agent who had assisted in making the application for the visitor visa had put in that application.
The proposed ground as drafted (by lawyers) lacks particularity. Importantly, it does not assert jurisdictional error on the part of the Tribunal. That alone is sufficient to find it lacks merit.
Before the Court, the applicants’ solicitor sought to explain the proposed ground as follows. The applicant was denied a visa in the “past”. Whether or not she was so refused a visa was not relevant to the application for the (457) visa.
As best as I understood the explanation to be, it was that even if Mrs Bi had been refused a visa in the past, and even if she had answered “no” to the relevant question in the current application for the visa, this was not a “material particular” to the grant of the (457) visa, because the visitor visa application was made while Mrs Bi was “offshore”.
The applicants’ solicitor submitted she relied on “Schedule 4 subclause (5)(b)”. In context, I understood this to be a reference to PIC 4020(5)(b) of Schedule 4 to the Regulations which is in the following terms:
“Public interest criteria and related provisions
…
4020
…
(5) In this clause:
information that is false or misleading in a material particular means information that is:
…
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.”
This subclause is part of the definition of “information that is false or misleading in a material particular”. PIC 4020(5)(b) of Schedule 4 to the Regulations includes in that definition, “information” that is relevant to any of the criteria the Minister may consider when making a decision on the application.
The applicants’ submission ignored the provisions of cl.457.224(1) of Schedule 2 to the Regulations and the reference there to, and the link to, PIC 4020 of Schedule 4 to the Regulations.
The criterion which the Tribunal considered, included criterion cl.457.224(1) of Schedule 2 to the Regulations. That part of criterion cl.457.221 of Schedule 2 to the Regulations (to be satisfied at the time of decision), included the requirement that the applicant satisfies PIC 4020 of Schedule 4 to the Regulations.
That is, at the time of decision, there was a requirement that there was no evidence before the Minister that the applicant had given to the Minister, an officer of his department, or the Tribunal, “information” that was false or misleading in a material particular.
The “explanation” of the applicants’ ground as given in submissions was not that the information given in the application for the (457) visa was not of itself false or misleading (albeit given the applicants’ assertion by the migration agent), but that it related to a visa applied for offshore and therefore “she didn’t have a section 48 problem”, and it was not material, and therefore did not meet the definition of “false and misleading in a material particular”.
There is nothing in the wording of PIC 4020(5)(b) of Schedule 4 to the Regulations to confine the relevant definition to visa applications made onshore.
It appears that the applicants’ submission has confused what is relevant to PIC 4020(5) of Schedule 4 to the Regulations, and cl.457.224 of Schedule 2 to the Regulations.
What is relevant is not the fact that the visitor visa was applied for offshore. What is relevant is that in making the application for the (457) visa, Mrs Bi in that visa application, made a false and misleading statement which was relevant to the Tribunal’s consideration of cl.457.224 of Schedule 2 to the Regulations.
There is no merit in the proposed ground two as explained in submissions before the Court.
In all, the applicants have had a reasonable and fair opportunity to prosecute their case before the Court. Ultimately, they must take responsibility for their own conduct.
Conclusion
The AIC is to be refused. I will make that order. I will now proceed to hand down judgment in the substantive application, as had originally been scheduled for 16 February 2018, with some amendments, taking into consideration this judgment.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 April 2018
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