BISHNOI v Minister for Immigration
[2017] FCCA 1836
•8 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BISHNOI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1836 |
| Catchwords: MIGRATION – Show cause hearing – student visa – applicants’ real grievance being his contention that it was the relevant education provider’s responsibility to inform the department about changes to his academic studies, not his – whether that amounted to an arguable case – it did not – proceeding dismissed. |
| Legislation: Federal Circuit Court Rules 2001(Cth), rr.16.05(2)(c), 44.12(1)(a) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), sch.2 and 5A, cl.572.223(2)(b) |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZARJ v Minister for Immigration and Border Protection [2016] FCA 1303 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 |
| First Applicant: | SUDHIR BISHNOI |
| Second Applicant: | SONAM GILLA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 871 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 28 June 2017 |
| Date of Last Submission: | 28 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2017 |
REPRESENTATION
| Applicants in person |
| Counsel for the first respondent: | Ms J Lucas |
| Solicitors for the first respondent: | DLA Piper Australia |
ORDERS
By consent the orders made on 7 June 2017 are set aside.
The application filed 23 April 2015 is dismissed.
The application in a case filed 20 June 2017 is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 871 of 2015
| SUDHIR BISHNOI |
First Applicant
| SONAM GILLA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
A potentially disadvantageous outcome for the applicants was circumvented in this case when on 28 June 2017 the further hearing of the applicants’ application for judicial review was convened. Let me explain.
Procedural history
On 7 June 2017 I dealt with a show cause hearing ordered by a registrar of this court on 19 August 2015. On that hearing, the Minister for Immigration and Border Protection (“the Minister”) urged me to refuse an application for an extension of time for the applicants to file their application for judicial review. The Minister’s written submissions filed 30 May 2017 addressed in some little detail why the substantive grounds advanced by the first applicant (“the applicant”) lacked merit and had no prospects of success, relying on the observations of Mortimer J in MZABP v Minister for Immigration and Border Protection.[1] In verbal submissions on 7 June 2017, counsel for the Minister told me the case had been listed for a show cause hearing because, so counsel said, the applicant required an extension of time within which to file his application for judicial review.
[1] [2015] FCA 1391 (at [62])
As the submissions on 7 June 2017 developed, counsel for the Minister accepted that –
a)the applicant had provided an explanation as to why the applicant had not filed his application for judicial review; and
b)there was no prejudice to the Minister in the delay in filing the application.
The Minister challenged the applicant’s prospects of success in the matter. Counsel for the Minister submitted that the test for granting an extension of time was the same as the test on a show cause hearing, namely, whether the case was arguable.
The mainstay of the hearing on 7 June 2017 was devoted to an exploration of whether or not the applicant had raised an arguable case that the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), had fallen into jurisdictional error warranting intervention by this court.
As it happened, no party (nor me) raised this point, that on
19 August 2015 Registrar Caporale had in fact, by consent, made an order extending the time within which the applicant had to file the application for judicial review up to and including 23 April 2015. No one brought that to my attention nor did I detect it from my reading of the court file. There was no doubt the registrar’s order had in fact been made.
On 7 June 2017 I delivered ex tempore reasons for judgment in which I refused the applicants’ application for an extension of time, notwithstanding the grant of the extension by the registrar.
Unsurprisingly, the applicant took issue with my decision. He filed an application in a case on 20 May 2017 requesting me to bring the proceeding back to court. On 28 June 2017 the case was next before me. Counsel for the Minister submitted that I was not functus officio because the orders made on 7 June 2017 were interlocutory in nature and r.16.05(2)(c) of the Federal Circuit Court Rules 2001 permitted me to make orders setting aside an interlocutory order. I made an order by consent setting aside the orders made by me on 7 June 2017.
In response to my question whether a further hearing was necessary, the applicant said he wanted one and he sought 19 August 2017 as the date for that hearing. Ms Lucas of counsel for the Minister contended that a further hearing was not necessary. Instead, the Minister contended that I should simply make a further order, consequent upon an order setting aside the orders made and judgment given on
7 June 2017, that provided for the dismissal of the application for judicial review filed on 23 April 2015 and that I had power to do so under r.44.12(1)(a) of the Federal Circuit Court Rules. Ms Lucas told me the Minister did not need nor wish to be heard if the upshot of the hearing on 28 June 2017 was no more than the setting aside of my orders made on 7 June 2017.
The applicant requested a new, further hearing to be held on
19 August 2017. I asked the applicant several times on 28 June 2017 why he said he needed to be heard further on the new date especially in view of the fact that the hearing on 7 June 2017 canvassed the merits of his case in considerable detail, albeit under the rubric of an extension of time application. I asked the applicant several times whether on
19 August 2017 he wanted to agitate some new point and if so, I asked him to tell me what that new point was. Several times in response to questions put in respect of that proposition the applicant said he wanted to raise the responsibility the education provider needed to assume for international students. I told the applicant he had canvassed that point at length during the hearing on 7 June 2017. He agreed.
The applicant’s only real grievance related to what he said were the responsibilities of colleges to international students. On 7 June 2017 the applicant told me that in his view the education provider erred in this case by not informing the relevant department what the applicant was doing with his studies. The applicant repeatedly stated it was the education provider’s fault, not his.
On 28 June 2017 I reserved my decision about the future conduct of this litigation.
Having considered the matter, I am of the view that no useful purpose is to be served by adjourning this proceeding to a further hearing on
19 August 2017. It seemed to me that having heard the applicant at length on 7 June 2017 and again on 28 June 2017, he had been given a very fair and exhaustive opportunity to say whatever he wanted to say in this case. As it happened, on every occasion he appeared before me the applicant repeated (at times, ad nauseam) that he was extremely critical of the way in which the relevant education provider in this case had conducted itself in relation to international students.
In those circumstances there was force in Ms Lucas’s contention that having made orders setting aside my orders made on 7 June 2017 it was necessary for me to address the real gravamen of the show cause hearing ordered pursuant to Registrar Caporale’s orders made on
19 August 2015.
To that I now turn.
A temporary student visa application
This case concerned an application for judicial review in respect of a decision made by the Tribunal on 11 March 2015. The Tribunal decided to affirm the decision of the Minister’s delegate not to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”).
In this application under r.44.12 of the Federal Circuit Court Rules,
I am empowered to dismiss the whole proceeding if satisfied that the applicant has not raised an arguable case for the relief he claims in his initiating application filed 23 April 2015. However, authorities in the High Court and in the Full Court of the Federal Court of Australia such as Spencer v Commonwealth of Australia[2] and AMF15 v Minister for Immigration and Border Protection[3] have instructed that the power of summary dismissal is not to be exercised lightly. I have proceeded with that instruction in mind.
[2] (2010) 241 CLR 118.
[3] [2016] FCAFC 68.
Synopsis
For the reasons that follow, in my judgment the applicant has not demonstrated that he has an arguable case in support of his application for judicial review of the Tribunal’s decision. In those circumstances, under the show cause procedure of r.44 of the Federal Circuit Court Rules, I dismiss this proceeding and I order the applicants to pay the Minister’s costs.
A short factual narration
On 23 May 2013 the applicant applied for the visa. The Minister’s delegate refused to grant the visa mainly on account of the fact that the applicant was unable to satisfy the elements of clause 572.223(2)(b) of Schedule 2 of the Migration Regulations 1994 (Cth). In essence,
the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. In the Tribunal the applicant appeared on 11 March 2015 and, as well as giving evidence, was represented by a migration agent. The Tribunal decided to affirm the delegate’s decision.
The applicant relied on four grounds in support of his application for judicial review. It is desirable to set them out verbatim –
1. My visa application for Subclass 572 Visa was refused by the Delegate of Minister for Department of Immigration and Border Protection for not being assessed as a genuine applicant for entry and stay as a Student. This same application has been refused twice by the department.
2. I have been a genuine student for entire duration of my student visa and finished all my studies that I enrolled for and have undertaken since I came to Australia.
3. Moreover I think I wasn’t given a fair assessment in finalising my visa application as it was refused twice.
4. After having a refusal at the Department of Immigration we lodged an application for review at Migration Review Tribunal for for [sic] my visa application and it was remitted back to the Department of Immigration by the Migration Tribunal
Review [sic]. The Department of Immigration again refused my visa application for not being assessed as a genuine student.[4]
[4] Application filed 23 April 2015 at p.3.
In support of the application for judicial review the applicant affirmed an affidavit made on 22 April 2015. That affidavit was filed on
23 April 2015. It is necessary to record the details in the four paragraphs of that affidavit verbatim –
1. My visa application for Subclass 572 Visa was refused by the Delegate of Minister for Department of Immigration and Border Protection for not being assessed as a genuine applicant for entry and stay as a Student. This same application has been refused twice by the department.
2. I have been a genuine student for entire duration of my student visa and have finished all my studies that I enrolled for and have undertaken since I came to Australia.
3. After having a refusal at the Department of Immigration we lodged an application for review at Migration Review Tribunal for my visa application and it was remitted back to the Department of Immigration by the Migration Tribunal
Review [sic]. The Department of Immigration again refused my visa application for not being assessed as a genuine student.
4. Moreover I think I wasn’t given a fair assessment in finalising my visa application as it was refused twice.
On 25 May 2017 the applicant filed a document headed “Submission”. It was prepared by the applicant. It contained assertions of fact and law. To the extent that the submission contained matters of fact, many of them were not the subject of evidence. For example, in the submission the applicant addressed his arrival in Australia in 2007. He also addressed his application on some unspecified date for a subclass 485 temporary residence visa. Those matters, if relevant at all, were not the subject of evidence before me, a point taken by the Minister’s representatives in the Minister’s submissions dated 30 May 2017.
It is best to take each ground raised by the applicant separately and in the course of examining each ground, to examine the Tribunal’s reasons.
Grounds 1 and 4
In grounds 1 and 4 the applicant asserted that his visa application was twice refused.
Those were statements of fact. They were not grounds in support of the applicant’s application for judicial review. Those grounds did not touch upon in any way how, and if so in what circumstances, the Tribunal fell into jurisdictional error. Grounds 1 and 4 had no merit. They raised no arguable case. I dismiss them.
Ground 2
Under this ground the applicant made two assertions, namely –
a)that he had been a genuine student for the entire duration of a student visa; and
b)he finished all the studies in which he enrolled and which he had undertaken since coming to Australia.
The Minister challenged the accuracy of the statement that the applicant finished all studies in which he enrolled. The Minister relied on paragraphs 10 to 15 of the Tribunal’s reasons for that factual challenge. Specifically arising from those paragraphs were the following factual matters –
a)the applicant stopped studying for a master of accounting degree after six months from commencing those studies in 2007;
b)the applicant said he enrolled in a diploma of business but did not complete that course; and
c)the applicant enrolled in a certificate IV business course but did not provide evidence of the completion of that course.
In written submissions dated 25 May 2017 the applicant contended that it was the responsibility of the education provider to inform the department of Immigration and Border Protection that the applicant was not continuing with that education provider. The Tribunal addressed that submission in paragraph 15 of its reasons by stating that the applicant did not contact the department himself to discuss his visa situation having regard to the fact that he purported to be a student on a student visa in Australia yet he was not studying. In my view, the findings of the Tribunal on that point were open. Those findings went to a threshold point, namely, whether the applicant was a genuine student. The Tribunal stated in paragraph 16 of its reasons that it was of the view that the applicant was using the student visa programme to maintain ongoing residence in Australia rather than for the reason of being a genuine student.
It has been observed many times by many courts in the jurisprudence of migration law that it is a matter solely for the Tribunal to identify such material as it considers relevant to its reasoning and for the Tribunal to give that material the appropriate weight. Cases such as Tran v Minister for Immigration and Multicultural and Indigenous Affairs[5] and MZARJ v Minister for Immigration and Border Protection[6] are but two authorities that demonstrate that proposition.
[5] [2004] FCAFC 297.
[6] [2016] FCA 1303.
It seemed to me that in reality, under the rubric of ground 2, the applicant was expressing his disagreement with factual findings made by the Tribunal. That had all the hallmarks of a merits review. For over 20 years in the migration law jurisdiction, judicial review has not been concerned with merits review. So much was said by the High Court in 1996 in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[7]
[7] (1996) 185 CLR 259.
The applicant had to demonstrate that he met the requirements of clause 572.223(2)(b) of the Migration Regulations. He had to satisfy the Tribunal that he was a genuine applicant for entry and stay as a student. The Tribunal found that he was not a genuine applicant for entry and stay as a student. The Tribunal’s factual findings that bore upon the applicant’s genuineness were open. I detected no error in those factual findings. The PRISM records recorded the history of courses completed by the applicant, the dates and other relevant information. One course was completed in 2007 and one in 2014. Others were cancelled.
Ground 2 revealed no jurisdictional error. It was factually erroneous in any event.
Ground 3
This ground merged the subjective expression of a state of mind with some sort of grievance about the number of times the applicant’s visa application had been refused. The applicant’s contention “I think I wasn’t given a fair assessment” was not a valid ground of application for judicial review.
It seemed the applicant may have misunderstood the procedures involved. The Tribunal remitted the matter once to the delegate for a redetermination of the financial criteria in Schedule 5A of the Migration Regulations. That was appropriate. After such remittal it then fell to the Tribunal to decide whether the remaining criteria in clause 572 of the Migration Regulations were met.
The applicant asserted that in his opinion he was not given a fair assessment of his visa application. If by that he was in truth contending that he was not shown proper procedural fairness, he did not say how he was allegedly denied any such procedural fairness. In any event, if he did make that contention then I disagree.
The Tribunal went on to find that the second applicant did not meet clause 572.322 of the MigrationRegulations.
That finding was open.
I detected no jurisdictional error in ground 3.
It must not be forgotten that the applicant came to Australia in 2007 to study. He has remained in Australia for 10 years since having arrived. In that time he has not completed a number of courses that he commenced. It was entirely open for the Tribunal to conclude that his expressed reason for staying Australia to study was not genuine, that is to say, that the Tribunal was entitled to conclude that he did not meet clause 572 of the Migration Regulations because he was not a “genuine applicant for entry and stay as a student”.
In my view, the applicant did not have an arguable case for relief in this proceeding. This case is precisely the sort of case that the show cause procedure under r.44.12 of the Federal Circuit Court Rules is designed to expose.
I dismiss this proceeding and order the applicants to pay the Minister’s costs in the sum of $3,606.00.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 8 August 2017
6
4