Ekanayake v Minister for Immigration - [2005] FMCA 678

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EKANAYAKE v MINISTER FOR IMMIGRATION

[2005] FMCA 678

MIGRATION – Student visa – MRT decision.

PRACTICE AND PROCEDURE – Application deemed to be filed on behalf of applicant – role of solicitor – whether adjournment should be granted where no merit or arguable case – adjournment refused – duty of retained solicitor to be on court record when application filed – application for leave to file a notice of discontinuance refused – final order on substantive merits preferable.

Migration Act 1958, ss.116(1)(b), 116(3), 362B, 477(1)(a)

Minister for Immigration and Multicultural and Indigenous Affairs v Hou (2002) FCA 574
Minister for Immigration and Multicultural and Indigenous Affairs v Nguyen (2002) FCA 460

Applicant:

EKANAYAKE M S EKANAYAKE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1047 of 2004

Judgment of:

McInnis FM

Hearing date:

12 May 2005

Delivered at:

Melbourne

Delivered on:

12 May 2005

REPRESENTATION

Solicitor for the Applicant:

Mr. C. Weerakoon

Solicitors for the Applicant:

Chandra Weerakoon Solicitor

Counsel for the Respondent:

Mr S. Hay

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed 11 August 2004 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1047 of 2004

EKANAYAKE M S EKANAYAKE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter, the applicant, after consideration of the procedure which has been followed to bring this application before the Court, including evidence given by the applicant in somewhat unusual circumstances where a challenge was made to the authenticity of an application purportedly filed for and on behalf of the applicant on 11 August 2004. The applicant has sought through his current legal representative leave to discontinue the application. That application has been opposed. In considering that application, it would be somewhat artificial to ignore the circumstances which ultimately lead to that application being made in Court this day. When the matter commenced, the applicant was represented by a solicitor on record, Mr Weerakoon. He indicated to the Court that he had only recently received instructions, and so much is evidenced by the fact that the notice of appearance in this matter was filed on 5 May 2005. It is noted from the Court record that previous solicitor, Joseph Belbruno, had been on record as solicitor acting for and on behalf of the applicant. He had filed a notice of appearance dated 3 March 2005. By a notice of withdrawal, a practitioner, dated 27 April 2005, Mr Belbruno notified the parties that he had withdrawn.
The applicant through his current representative indicated that the application, though it bears a signature purportedly on the document for the applicant, was not a signature that he recognised. He in fact gave evidence to that effect. However, his evidence I take to be evidence that he had at one stage instructed a person purporting to be a practitioner, Mr Teferu M. Habib. Mr Habib appears to be the author of documents in the Court book, and in particular at Court book page 61 there is correspondence dated 8 March 2004 which I take to be from Toferis, and at the top of the document, it refers to that being the law firm of Toferis and under it has barristers and solicitors under that registered migration agent. I take, for the present purposes, Mr Toferis to be a barrister and solicitor, though have to assume that at all relevant times he was a solicitor holding a current practicing certificate.
For reasons that are not particularly clear, there seems to be some arrangement between Mr Habib and Mr Belbruno in relation to applications of this kind where in the present circumstances on the evidence of the applicant himself, it would appear he had instructed and retained Mr Habib who clearly acted for and on his behalf in the lead up to the Migration Review Tribunal (MRT) decision in this matter which is the subject of the application. That arrangement appears to be confirmed by the applicant to the extent that he was given details of Mr Belbruno by Mr Habib, and although it is unclear as to whether specific instructions were given in writing to Mr Belbruno by way of a normal client-solicitor retainer, the applicant did, nevertheless, attend upon Mr Belbruno at his residence. I am satisfied in the present circumstances that the applicant has at least evinced an intention to proceed with an application to this Court for judicial review of the MRT decision dated 6 May 2004.
Somewhat unusually, despite there being two solicitors with whom the applicant has had dealings and whom I accept, albeit with some reservation, have received instructions of some kind to proceed with this application, the application as filed in this matter on 11 August 2004 did not refer to any solicitor then acting for and on behalf of the applicant. I note in passing that the applicant's address for service is given as an address of Suite 103, 144-148 Nicholson Street, Footscray. It is not clear from the material as to whether that address is the address of the solicitors. Though it appears from a photocopy of a business card that it seems to me reasonable to conclude that is the address of Mr Habib.
The Court process is not assisted by solicitors acting in a way which

I regard as unconventional at the least. Solicitors properly retained to act for and on behalf of the applicants have a duty to the Court to ensure that documents are filed clearly with a reference to the fact that the solicitor is retained. The solicitor becomes, therefore, the address for service.
Solicitors have a duty when retained to confirm the retainer, to ensure that the retainer is in writing and to thereafter conduct themselves in a way which provides appropriate and detailed information to the client on whose behalf they act. It is unacceptable and inappropriate, and certainly not helpful to the Court, for solicitors to act in what I can only describe as a casual and unprofessional manner. To do so leads to confusion of a kind which is evident before this Court. The applicant was not sure of which solicitor was acting for and on his behalf at the time the application was filed. He was not aware of the contents of the application, nor was he aware of the contents of what was subsequently filed on his behalf by Mr Belbruno by way of contentions of fact and law filed on 7 March 2005. Perhaps not surprisingly, he was aggrieved by the process, and his current solicitor, perhaps not unreasonably, sought some further time within which to either file written submissions or, I take it, an amended application or indeed adjourn the matter for further hearing.
During the course of the evidence, it appeared to me that the applicant was indeed genuinely confused about the role of those purporting to be solicitors acting on his behalf from time to time. Nevertheless,

I conclude that certainly prior to the RRT hearing, he had Mr Habib acting for and on his behalf. Mr Habib or his office has permitted his address to be inserted on the application as the address for service, and through some loose arrangement between Mr Habib and Mr Belbruno, a file was referred to Mr Belbruno who received some instructions personally from the applicant, though thereafter failed, it seems on the material before me, to properly advise the applicant of the progress of the application or indeed providing the copies of relevant documents which one would normally expect from a competent solicitor.
The application for discontinuance, therefore, needs to be seen against the background of that chronology of events. During the course of discussion and in considering initially what appeared to be an application for adjournment or time to provide written submissions,

I invited the solicitor for the applicant to indicate to the Court whether there was any dispute on which I regard as a core fact in this matter, that is that the applicant was not enrolled in a registered course from 29 April 2002 until 16 July 2003. To understand the significance of that fact, which I note for the present purposes is not in dispute, it is important to understand the nature of this application and the background. That background has been conveniently set out in the respondent's contentions of fact and law.
The applicant is a citizen of Sri Lanka. He first arrived in Australia on 28 August 1998 as the holder of a student (temporary) class TU sub‑class 573 visa. Two further such visas were granted, the last such visa being granted on 7 August 1999, due to expire on 20 September 2004. The visa was subject to condition 8202. The applicant enrolled in a bachelor of engineering, electrical Bachelor of Science degree at the University of Melbourne on 21 July 1999. He was expected to complete that degree by 30 August 2004. On 29 April 2002 the applicant's enrolment in the course was cancelled because of unpaid fees. On 4 June 2003 the applicant re-enrolled in the same course at the university with a revised expected completion date of 21 December 2005. On 11 June 2003 the university notified the Department of Immigration and Multicultural and Indigenous Affairs that the applicant's previous enrolment had been terminated. On 2 July 2003 the department wrote to the applicant stating there may be grounds to cancel his visa due to non-compliance with condition 8202. The applicant was invited to attend an interview on 21 July 2003. After re‑scheduling, the applicant attended the department for interview on 13 August 2003. On that day a delegate of the respondent cancelled the visa due to non-compliance with condition 8202.
It is relevant to note that on 19 August 2003 the applicant applied to the Migration Review Tribunal (the MRT) for a review of the delegate's decision. The MRT on 22 August 2003 confirmed that the applicant's enrolment had been cancelled from 29 April 2002 until 16 July 2003. On 12 February 2004 the MRT invited the applicant to attend a hearing scheduled for 4 March 2004. The applicant did not attend. On 8 March 2004 the applicant's then representative requested a re‑scheduling of the hearing, and on 10 March 2004 the MRT invited the applicant to attend a hearing on 6 April 2004. The applicant did not attend the hearing. Accordingly, pursuant to s.362B of the Migration Act 1958 (the Act) the Tribunal proceeded to make a decision on the information before it. On 6 May 2004 the MRT made a decision affirming a delegate's decision to cancel the applicant's visa.
As I indicated earlier, the application before this Court filed on 11 August 2004, purportedly on behalf of the applicant, seeks review of the MRT decision. It is submitted on behalf of the respondent that the Court should proceed to consider this application on its merits rather than grant leave to the applicant to simply discontinue the application. It is submitted that to do so, that is to allow discontinuance, would result in an interlocutory order and would not finally determine the matter in circumstances where I take the respondent to submit that the issues in this case are fairly narrow, well-defined and there is what might properly be described as a degree of futility in simply permitting the matter to be discontinued, and there is a desirability in the interests of justice to proceed to make a final decision in this matter. A final decision, of course, on the merits, would result, in the event of a further application being filed the respondent raising by way of answer to a further application the doctrine of res judicata, issue estoppel and/or Anshun estoppel.
The Tribunal decision in this case, in my view, clearly relied upon the undisputed facts as indicated earlier, that is there being no enrolment from 29 April 2002 to 16 July 2003. The Tribunal, as indeed the delegate, noted the requirement of condition 8202 and that on the face of it that requirement or condition had been breached and that accordingly s.116(1)(b) of the Act was enlivened.
Section 116(1)(b):
“(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
a.…
b.its holder has not complied with a condition of the visa; or
c.…”
Condition 8202:
“1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclause (2) and (3).
2)A holder meets the requirements of this subclause if:
a.the holder is enrolled in a registered course;
or
b.in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student – the holder is enrolled in a full-time course of study or training….”
Relevantly, in its decision, the Tribunal held, (at Court book page 74 and following) that in deciding whether the review applicant has breached condition 8202, it must consider whether he was enrolled in a registered course. The University of Melbourne advised the department that the review applicant's enrolment was terminated on 29 April 2002. There is no evidence to suggest that the review applicant was enrolled in another course after this date until his re-enrolment with the University of Melbourne on 4 June 2003. Based on this information before it, the Tribunal finds that the review applicant was not enrolled in a registered course between the period between 29 April 2002 and 4 June 2003. Consequently the Tribunal finds that the review applicant breached condition 8202 during the visa period.
It is clear to me, that having made that finding of fact that in the circumstances of this case there cannot be any basis upon which it could be claimed there is jurisdictional error. The Tribunal has, in my view, correctly applied the relevant law and made a finding of fact reasonably open to it, which is, I note, not disputed. It follows the cancellation of the visa was mandatory pursuant to the combined operation of s.116(3) of the Act, and regulation 2.432(b)(ii) of the regulations to which I have referred earlier. See Minister for Immigration and Multicultural and Indigenous Affairs v Hou (2002) FCA 574 and Minister for Immigration and Multicultural and Indigenous Affairs v Nguyen (2002) FCA 460. I accept the submissions made for and on behalf of the respondent in the circumstances of this case, having regard to the appropriate law to be applied and the factual finding of the existence of the breach; the MRT reached the only decision open to it. The contentions on behalf of the applicant do not, in my view, provide any or any proper basis upon which this Court could conclude there has been jurisdictional error.
Hence, it is my conclusion that on the substantive merits of this case, the application would fail. More importantly, that conclusion leads me to further conclude that there is no arguable case. In the circumstances in the exercise of the discretion of whether or not the Court should grant leave to discontinue, it is relevant to take into account the analysis which I have just undertaken. It is appropriate, in my view, to refuse the application for leave to discontinue and in the interests of justice to dismiss the application on its merits, having regard to my finding on the merits previously set out in this judgment that there is no jurisdictional error demonstrated. Accordingly, I propose to make an order that the application be dismissed with costs. I should add that in the absence of jurisdictional error, given the fact that the decision was made on 6 May 2004 and the application for review in this Court not filed until 11 August 2004, that clearly the time limit set out in s.477(1)(a) of the Act has not been met. That is, this application is out of time. In the absence of jurisdictional error, that time limit should apply, and in any event, this application is clearly, therefore, out of time. For those reasons it follows the appropriate order of the Court is that the application for leave to discontinue be refused, that the application be determined on its merits and a final order made that it be dismissed with costs.
I add a further comment in relation to the proceedings which have been commenced by the application filed on 11 August 2004. Given the uncertainty about the precise instructions and retainer by the applicant of the solicitors then appearing to act for and on his behalf, I directed at the commencement of this hearing that the application stand as the applicant's own application, despite the fact that it was not signed by him, and/or that the person who had signed purportedly on his behalf was not clearly identified. I further directed that so much of the rules be dispensed with which would otherwise prevent the application being heard and determined this day. It seems to me that there are cases in this jurisdiction where the issue is so narrow and clear, the case on the face of the material before the Court so hopeless that it would be futile to permit the application to proceed any further.
That is the conclusion that I have reached, and it is appropriate in those circumstances, rather than simply adjourn, allow time for written submissions, or even allow an application for leave to discontinue, to proceed instead to determine and decide the matter finally on its merits, and that is the course I have followed. For the reasons given, in my view, in the interests of justice it is appropriate that course be followed. The Court is concerned about the conduct of the solicitors to which reference has been made during the course of this judgment. I shall direct that the reasons for decision be referred to the Law Institute of Victoria for further inquiry and investigation.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 12 May 2005