Elbialy v Minister for Immigration and Anor (No.2)

[2017] FCCA 1178

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELBIALY v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 1178

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Application for reinstatement pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) – whether orders dismissing application for judicial review should be set aside – whether applicant’s explanation for failure to appear at scheduled hearing is satisfactory – whether grounds of substantive application for judicial review have prospects of success – application for reinstatement dismissed.

Legislation:
Migrations Regulations 1994 (Cth), Schedule 2 – cls.572.223, 573.223
Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases Cited:
Elbialy v The Minister for Immigration & Anor [2017] FCCA 863
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: HESHAM MOUSAD ABELNABY ELBIALY

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 580 of 2016

Judgment of: Judge Emmett

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Sydney

Delivered on: 1 June 2017

REPRESENTATION

Applicant appeared in person with an Arabic interpreter

Solicitors for the Respondents: Ms Sharon Sangha
(Mills Oakley)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 580 of 2016

HESHAM MOUSAD ABELNABY ELBIALY

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed on 23 May 2017 the applicant seeks to set aside Orders made by the Court on 27 April 2017 dismissing his proceeding seeking judicial review of a decision of the Administrative Appeals Tribunal dated 17 February 2016 by reason of the failure of the applicant to attend the scheduled hearing on 27 April 2017.  On that occasion I gave reasons for dismissing the application and they are to be found in Elbialy v The Minister for Immigration & Anor [2017] FCCA 863.

2. The Court has power to make the Orders sought pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

3. Prior to the hearing on 27 April 2016 the applicant had provided a medical certificate to the first respondent in respect of which the first respondent informed the applicant that it was inadequate; that it continued to oppose the adjournment; and, that if the applicant did not attend the hearing on 27 April 2016 the first respondent would seek to have his proceeding dismissed with costs. Essentially, that was what happened on 27 April 2017. 

4. The background of the proceeding, the applicant’s claims, the relevant regulatory provisions and a summary of the Tribunal’s decision record are accurately summarised in the first respondent’s submissions as follows:

   “BACKGROUND AND THE APPLICANT'S CLAIMS

   2. The applicant applied for a Temporary Student Visa on 21 November 2014.

   3. The delegate refused to grant the Temporary Student Visa on 22 January 2015.

   4. In her decision the delegate found that the applicant did not satisfy cl 572.223(1) of Schedule 2 to the Migration Regulations 1994 (Regulations) because she was not satisfied that the applicant intended genuinely to stay in Australia temporarily having regard to his circumstances, immigration history and other relevant matters.

   5. The applicant applied to the Tribunal for review of the delegate's decision on 6 February 2015 and enclosed a copy of the delegate's decision with his application.

   6. On 17 November 2015, the applicant appeared before the AAT to give evidence and present arguments: Court Book (CB): 121 [4].

   TRIBUNAL'S DECISION

   9. On 17 February 2016 the Tribunal affirmed the decision of the delegate not to grant the applicant a Temporary Student Visa. It did so for essentially the same reasons as the delegate.

   10. The Tribunal commenced its consideration of the application by setting out correctly the issue it needed to decide namely, whether the applicant met the time of decision criterion in cl 572.223(1)(a). This clause required the Minister, or the Tribunal, to be satisfied that the applicant was a genuine temporary entrant. In considering whether the applicant met the genuine temporary entry criteria the Tribunal considered Direction No 53, which required the Tribunal to consider the applicant against a list of factors: CB121-122. The factors are not to be used as a checklist but are intended to guide decision makers to weigh up the applicant's circumstances as a whole.

   11. In the present case, the Tribunal accurately summarised the relevant factors in the Direction in its decision (CB: 121-122 [7]) and then expressly considered the applicant's circumstances and evidence against those factors: (CB reference). The Tribunal observed that since 2005, the applicant had enrolled in over 20 courses and had completed only six of those courses: CB122-123. The Tribunal was concerned that the applicant had studied a variety of courses with very limited success and that he had been in Australia for over 10 years, which suggested that he was not a temporary entrant: CB123.

   12. The Tribunal noted that the applicant had provided a psychological report from Mr Sutton dated 10 September 2015, which provided a summary of the applicant's recent circumstances both in Egypt and Australia. The Tribunal set out a summary of the report. The Tribunal noted the report stated that:

   a. the applicant's "erratic study profile" was due to the applicant's father constantly changing his mind about what he wanted the applicant to study;

   b. the applicant was becoming increasingly stressed and depressed about his father's demands;

   c. the applicant then had to return to Egypt from July to December 2013 as his father was sick and dying from cancer;

   d. after his father's death his brother became "head of the family";

   e. upon his return to Australia, the applicant amicably divorced his wife and later formed a relationship with a divorced woman, who had two children;

   f. he was due to enrol for the first semester in 2015, but he was too stressed to continue; and,

   g. he has now met an Australian woman whom he married in August 2015: CB122-123.

   13. The Tribunal noted that Mr Sutton had assessed the applicant as having mild symptoms of stress and depression and moderate (clinically significant) symptoms of anxiety: CB123.

   14. On balance, the Tribunal was not satisfied, having regard to the applicant's circumstances and immigration history, that the applicant intended to genuinely stay in Australia temporarily. This finding by the Tribunal was based on:

   a. the applicant's lengthy, and undistinguished, study history in Australia;

   b. the length of time the applicant proposed that he studies would last, that is from 2005 to October 2016, and

   c. the applicant providing no explanation for why he undertook so many causes other such an extended period time, other than following his father's wishes.

   15. Accordingly, the Tribunal concluded that the applicant did not satisfy the criteria in cl 573.223.

   16. The Tribunal affirmed the delegate's decision not to grant the applicant a Temporary Student Visa.”

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of an Arabic interpreter.   

2. The applicant had filed an affidavit sworn or affirmed by him on 19 May 2017 in support of his application for reinstatement.  The affidavit purports to be witnessed by Therese Nicolas JP111306 and to have been sworn affirmed by the deponent at Padstow on 19 May 2017.  The applicant gave sworn and adamant evidence that the signature of the deponent was not his signature and had been put there by Ms Nicolas who he continued throughout this morning to refer to as his lawyer.

3. In the circumstances, I rejected the affidavit and gave the applicant leave to give oral evidence as to his explanation for his failure to appear on 27 April 2016. The applicant was sworn in and gave evidence that he had a problem with his lower back; that he could not walk or sit in Court; that he went to Dr Selim; that he spoke to the Department of Immigration and Border Protection (“the Department”) and told them about the medical certificate he received from Dr Selim; and, that the Department said they would contact Dr Selim and that he should wait for the Court to see if the case was adjourned.

4. The applicant said that the Department told him they would talk to Dr Selim if they required more certificates or evidence.  The applicant was unable to identify the person to whom he spoke at the Department. 

5. The applicant was taken to email correspondence in cross-examination that was marked Exhibit 1R. The first was an email from Therese Nicolas to the first respondent’s solicitor on 21 April 2017 at 1:46pm, stating that the applicant would be unfit to attend Court until 20 May 2017 and attaching a medical certificate.

6. The first respondent responded to that email at the email address provided by Therese Nicolas at 9.21 am on 24 April 2017, which I note is the same email address adopted by the applicant in his initiating application and his Application in a Case, the subject of hearing this morning. It was not clear the extent to which the applicant was aware of the content of those emails which clearly inform the applicant that the adjournment would be opposed and if he failed to attend Court the matter may be dismissed with costs in his absence.

7. A second email sent at 11.07 am on 24 April 2017 also informed the applicant that his medical certificate was wholly inadequate and that it did not explain why he could not attend a hearing for a couple of hours. 

8. The applicant’s oral evidence this morning was entirely unsatisfactory and very difficult to comprehend. Certainly the applicant made no attempt to contact the Court or the first respondent himself. 

9. The applicant had attended a directions hearing on 28 April 2016 before a Registrar of this Court. Orders made on that day included an Order that, in the event there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice. 

10. The Orders made on 28 April 2016 also required the applicant to serve upon the first respondent any document filed by the applicant with the Registry. That Order also provided the address at which service must be effected in order to assist the applicant. I note that the applicant failed to serve the Application in a Case and supporting affidavit in respect of today’s proceeding upon the first respondent. The first respondent only became aware of the Application in a Case late yesterday afternoon.

11. In considering whether the substantive application has any reasonable prospect of success, the applicant confirmed that he relied on the Grounds of his initiating application, which are as follows:

    “1. At point 15 of the decision record, the Applicant claimed that his “erratic study profile” was due to pressures from his father to study IT which was against his wishes. The Tribunal did not consider in its decision the role of pressure from father. The Tribunal did not further investigate the nature and extent of the pressure imposed by the father. The Tribunal did not consider the consequences if the Applicant was to defy his father’s wishes.

    2. At point 12 is stated that the father passed away in 2013 and since, the elder brother who is “head of the family” is supportive of the applicant's study plans. The Tribunal did not discuss with the Applicant or consider how or if the passing of the father would impact his study.

    3. At point 16 of the decision record the Tribunal suggested that the Applicant had further incentive to remain in Australia given that he was married to an Australian citizen. The fact that he is married to an Australian citizen is irrelevant to his study plans. Being married to an Australian citizen qualifies the applicant to apply for a partner visa irrespective of his study plans or student visa.”

12. Each of the Grounds was interpreted for the applicant and he was invited to say whatever he wished in support of each of the Grounds. The applicant had nothing further to say in support of any of the Grounds.

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider or did not investigate the pressure the applicant’s father placed upon him and the consequences of the applicant defying his father. In particular, the applicant referred to paragraph 15 of the Tribunal’s decision record, which is as follows:

   “15. The Tribunal discussed these matters with the applicant. The applicant said that he had to study whatever his father told him to. He said that his father told him successively to study IT, then business administration then marketing. The Tribunal asked why the father would do this. The applicant said that that was what his father was advised to do. When asked why he could not study marketing In Egypt, he said that the education system there was not as good as the education offered In Australia.”

2. A fair reading of paragraph 15 makes clear that the Tribunal was doing no more in that paragraph than setting out some of its discussions with the applicant in relation to the issue why the applicant had studied a variety of courses with limited success. 

3. The Tribunal noted that it had explained to the applicant the overriding requirement that the applicant satisfy the genuine temporary entry criterion. The Tribunal also noted that it was concerned that the fact that the applicant had studied a variety of courses, with very limited success, and had been studying or working in Australia for over 10 years suggesting that he was not a temporary entrant.

4. There appears to be no evidence of any other claim made by the applicant about pressure put on him by his father and there is no general obligation on a tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

5. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There appears to be no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none appears to be identified by the applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

6. Otherwise, the Tribunal’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave.

7. In the circumstances, Ground 1 appears to have no reasonable prospect of success.

Ground 2

1. In Ground 2 the applicant appears to contend that the Tribunal did not discuss with him how his father’s passing, or the fact that his brother had become head of the family, would impact on his plans.  However, there appears to be no evidence before the Tribunal from the applicant that he had expressly claimed that his study plans would change now that his father had passed away, or that his brother had become the head of the family.

2. At the directions hearing on 28 April 2016, the applicant was given leave to file an Amended Application and any further evidence, including any transcript of the Tribunal hearing.  The applicant confirmed that he had not filed any documents in accordance with those directions or otherwise, and had no other documents to provide to the Court this morning. 

3. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. The Tribunal noted that the applicant did provide a report from a person who outlined the changes in the applicant’s family and the applicant’s study plan. The Tribunal considered that report in coming to its decision regarding the merits of the applicant’s application.

5. Ultimately, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily. Having regard to the applicant’s lengthy and undistinguished study history in Australia over 11 years at least, the Tribunal noted that, save for the applicant’s father’s wishes, which changed from year to year, and even from month to month, the applicant had no explanation why he undertook so many courses over such an extended period of time. 

6. The Tribunal’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave.

7. In the circumstances, Ground 2 appears to have no reasonable prospect of success.

Ground 3

1. In Ground 3, the applicant appears to contend that the Tribunal erred when it had regard to the applicant’s marriage to an Australian citizen and that the marriage to the Australian citizen was irrelevant to his study plans. Under cl.572.223(1)(a)(iv) of Schedule 2 to the Regulations, the Tribunal is required to take into account “any other relevant matter” in determining the applicant’s application. 

2. Further, under Direction No.53, Assessing the genuine temporary entrant criterion for Student Visa applications, made under s.499 of the Act, the Tribunal is directed to take into account “any relevant matter” that may be beneficial or unfavourable to the applicant in assessing whether the applicant was a genuine applicant for entry and staying in Australia as a student.

3. The Tribunal noted that the applicant raised his marriage with his wife, saying that he proposed to return to Egypt with his wife and that she was an Australian citizen. The Tribunal also noted that it suggested to the applicant that the fact that his wife was an Australian citizen would give him a strong incentive to remain in Australia. The Tribunal noted the applicant’s response that his wife had told him that she was worried about going to Egypt, but she would still consider going when she completed her nursing degree. 

4. In the circumstances, there appears to be no jurisdictional error identified in Ground 3, by reason of the Tribunal’s reference to the applicant’s evidence about his marriage to an Australian citizen.  Moreover, the applicant’s marriage to an Australian citizen did not ultimately form the basis for the Tribunal’s conclusions in paragraph 17 of its decision, which were as follows:

   “17. Having considered the applicant's circumstances and immigration history, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal has reached this conclusion by reason of the applicant’s lengthy and undistinguished study history in Australia, and the fact that the length of time the applicant proposes those studies will last, that is from 2006 to October 2016, is a period of at least 11 years, and possibly as long as 14 years if the applicant then undertakes a degree when he completes his present diploma. Save for following his father's wishes, which changed from year to year, and even from month to month, the applicant had no explanation why he undertook so many courses over such an extended period of time.”

1. The applicant’s complaints appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

2. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

3. The Grounds of the application upon which the applicant relies appear to have no or no reasonable prospects of success.  Further, the applicant provided an entirely unsatisfactory explanation for his failure to appear on the last occasion, and failed to address the reasons given by the Court on that occasion for its dismissal in Elbialy v The Minister for Immigration & Anor [2017] FCCA 863.

4. In the circumstances, the applicant’s Application in a Case, filed on 23 May 2017, seeking to set aside the orders of the Court made on 24 April 2017, dismissing his application for judicial review, should be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 13 June 2017