FATHIMA v Minister for Immigration

[2017] FCCA 2788

FEDERAL CIRCUIT COURT OF AUSTRALIA

FATHIMA & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2788

Catchwords:
MIGRATION – Application for review of the former Migration Review Tribunal decision – whether the applicants were denied procedural fairness – whether the Tribunal was unreasonable – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 476

Migration Regulations 1994 (Cth), sch.2, reg.573.223

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

First Applicant: FIRDOUSE FATHIMA

Second Applicant: ZAHOOR AHMED MOHAMMED

Third Applicant: AMAAN AHMED MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1356 of 2015

Judgment of: Judge Nicholls

Hearing date: 2 November 2017

Date of Last Submission: 2 November 2017

Delivered at: Sydney

Delivered on: 20 November 2017

REPRESENTATION

Applicants: In person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 18 May 2015 is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1356 of 2015

FIRDOUSE FATHIMA

First Applicant

ZAHOOR AHMED MOHAMMAD

Second Applicant

AMAAN AHMED MOHAMMAD

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 May 2015, seeking review of the decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 30 April 2015 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse student (Temporary) (Class TU) visas to the applicants.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence before the Court is a second bundle of relevant documents filed and tendered by the Minister (“the Supplementary Court Book” – “SCB”, “RE2”).

Before the Court

1. On 11 June 2015 various orders were made, by consent, by a Registrar of the Court for the progress of the matter. These included, amongst other things, giving the applicants the opportunity to file any amended application and any further evidence by way of affidavit. The applicants have not filed any further evidence, nor have they filed an amended application.

2. On 4 February 2016 various orders were again made by consent, by a Registrar of the Court, including, amongst other things, that the applicants and the Minister file written submissions. The Minister filed written submissions on 25 October 2017. The applicants have not filed written submissions.

Background

1. The first and second applicants are husband and wife (CB 1 and CB 7). The third applicant is their infant son. The first applicant came to Australia in March of 2010 on a student visa that was granted offshore (CB 38.5). That visa was valid until March 2012 (CB 38.5). She was then granted a further student visa, which was valid until September 2014 (CB 38.6).

2. The applicants applied for student visas which are the subject of the current proceedings on 30 September 2014, with the first applicant applying as the student and the second and third applicants as her family (CB 1 to CB 27).

3. The delegate refused their applications for the visas on 4 December 2014 (CB 36 to CB 47). The delegate refused the first applicant’s visa on the basis that she did not meet the legal requirement for the relevant subclass (subclass 573), specifically cl.573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. The delegate identified that the first applicant had not undertaken any study for a period of 15 months (from 21 June 2013 until the application for a student visa made on 30 September 2014) (CB 39.6). The delegate took into account that the first applicant had provided evidence that she had been ill and that she had travelled overseas to visit her father who was also unwell. However, the delegate found that overall, the first applicant’s “lack of academic progress, [her] study history, [her] potential circumstances in Australia, [her] immigration history and the lack of value of the courses to [her] future” indicated she was using the student visa program to circumvent permanent migration programs (CB 42.6). The delegate ultimately found that the first applicant did not genuinely intend to stay in Australia temporarily (CB 42.7).

5. As the first applicant did not meet cl.573.223(1)(a) of Schedule 2 to the Regulations, the second and third applicants did not meet cl.573.322(b) of Schedule 2 to the Regulations, and their visas were refused on this basis (CB 43.1).

6. The applicants applied for review to the Tribunal on 17 December 2014 (CB 48 to CB 50). They were invited to attend a hearing before the Tribunal scheduled for 23 April 2015, by a letter sent to their representative authorised to receive correspondence on their behalf, dated 10 March 2015 (CB 60 to CB 73).  The letter also requested that the applicants provide certain information to the Tribunal within 7 days of the receipt of the letter. The applicants’ representative provided a response to hearing invitation on their behalf on 19 March 2015, indicating that all three applicants would attend the hearing (CB 80 to CB 81).

7. The applicants and their representative did not attend the hearing scheduled for 23 April 2015. On the day of the scheduled hearing, the applicants’ representative sent a letter via facsimile which attached a medical certificate relating to the first applicant, and requesting a postponement of the Tribunal hearing (CB 84 to CB 85). By letter dated 23 April 2015 and sent to the applicants’ representative authorised to receive correspondence on their behalf, the Tribunal invited the applicants to attend a hearing re-scheduled for 29 April 2015 (CB 87 to CB 101). On 29 April 2015 the applicants’ representative sent an email to the Tribunal stating (CB 102.2):

   “Please be advised that the applicant (sic) will not be attending the hearing. We request the member to make a decision on the application.”

8. The hearing scheduled for 29 April 2015 was cancelled and the Tribunal proceeded to make its decision on the papers (CB 103).

9. The Tribunal affirmed the delegate’s decision on 30 April 2015 (CB 106 to CB 109). It found that the first applicant did not provide any information to the Tribunal to demonstrate that she was a genuine student ([11] at CB 108). Accordingly, it was not satisfied that the first applicant met the criterion under cl.572.223(1)(a) of Schedule 2 to the Regulations, nor did she meet any of the requirements under the other subclasses of the student (Class TU) visa ([11] at CB 108 to [12] at CB 109).

10. The Tribunal found the second and third applicants also did not meet the requirements for the visa due to the first applicant’s failure to meet the essential requirements for the grant of the visas ([13] at CB 109).

The Application before the Court

1. The application before the Court contains three grounds. They are as follows:

   “1. The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.

   Particulars:

   a. The Applicant applied for a review. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.

   b. The Applicant submitted evidence of having a difficult pregnancy and that her Father has been ill and the Tribunal failed to consider the nature of the Applicant’s illness. At 4, the Tribunal made a credibility finding about the nature of the application illness because the Tribunal did not consider that her illness was adequate enough to address the Applicant’s lack of study.

   c. The Applicant made several requests to the Second Respondent to allow additional time to provide further evidence and the Tribunal did not even consider the application or that the information that could be provided.

   d. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account that the applicant had genuine medical reasons and did not give her any opportunity to provide further medical evidence.

   2. The Second Respondent decision was so unreasonable that no reasonable Tribunal member would have made it.

   Particulars:

   a. The Applicant could not study because of her illness. The Tribunal failed to consider the Applicant’s illness and did not think the reasons were adequate.

   b. The circumstances where the Tribunal failed to have proper regard to the medical evidence it acted unreasonably.

   3. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in refusing the application request for an adjournment or additional time to provide further evidence. The Applicant relies on the principle in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013).

   Particulars

   a. The applicant relies on the particulars in grounds 1 and 2 above.”

   [Errors in original.]

2. At the hearing the first applicant appeared in person. She was assisted by an interpreter in the Hindi language. The first applicant’s husband (the second applicant), initially spent some time outside the Court to look after their child (the third applicant). The first applicant explained that she would speak on the second applicant’s behalf and on behalf of their child. During the course of the hearing however, the second applicant entered the Court and also made submissions on behalf of all of the applicants.

3. In essence, the applicants sought to repeat the explanation given to the Tribunal as to why the first applicant did not study for 15 months while in Australia on a student visa. Both the first and second applicants explained that the Tribunal should have accepted that the first applicant’s “illness” was an adequate explanation for not studying. The second applicant also made a claim that their “lawyer” (in context, this appeared to be the migration agent who assisted them before the Minister’s department and the Tribunal), did not “guide” them properly. In the absence of any further explanation, or indeed, evidence, this claim could not assist the applicants.

Consideration

1. Ground one asserts a denial of procedural fairness pursuant to s.359 of the Act because the Tribunal “failed to take into account relevant considerations”.

2. The ground as pleaded is difficult to understand. Section 359 of the Act provides that the Tribunal has the power, to be exercised at its discretion, to obtain relevant information. It is not clear what information the applicants say the Tribunal should have obtained.

3. The failure to take into account a relevant consideration may, in certain circumstances, reveal jurisdictional error. But the particulars to the ground do not explain what relevant consideration the Tribunal was bound to take into account (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323).

4. Particular “a” complains that the “applicant” (in context, the first applicant) did not know of the “likely time frame” within which the Tribunal would allocate a hearing.

5. How this relates to the ground as pleaded is not explained. How it can reveal jurisdictional error, in the circumstances, is also not explained.

6. The applicants applied for review to the Tribunal on 17 December 2014 (CB 48 to CB 50). The Tribunal acknowledged the application by letter dated 19 December 2014 (CB 51 to CB 59). The Tribunal wrote to the applicants on 10 March 2015 inviting them to a hearing scheduled on 23 April 2015 (CB 60 to CB 73).  The letter was sent to their “authorised recipient” (CB 60). The letter specifically requested the first applicant provide information she intended to rely on to show she satisfied the criteria for the student visa. In particular, a certificate of enrolment, current enrolment, or offer of enrolment, documents relevant to past studies, and an explanation of any “gaps” in her study.

7. The applicants responded to the hearing invitation on 19 March 2015 (CB 80 to CB 81). The applicants’ representative indicated on their behalf that all three applicants would take part in the hearing (CB 80).

8. The hearing had been scheduled for 2:00pm with an arrival time of 1:30pm on 23 April 2015 (CB 61). At approximately 10:35am on the day of the hearing the applicants, through their representative, requested a postponement of the hearing on the basis of the first applicant’s illness (CB 84 to CB 85).

9. The Tribunal agreed to this adjournment and the hearing was postponed to 2:00pm on 29 April 2015 (CB 89). At 1:45pm on the day of the re-scheduled hearing, that is 15 minutes before the hearing was due to commence, the applicants’ representative sent an email to the Tribunal stating that the “applicant” (in context, the first applicant) was not going to attend the hearing and requesting that the member proceed “to make a decision on the application” (CB 102).

10. It is important to note that the applicants had not provided any of the information or documents requested by the Tribunal.

11. In the circumstances, particular “a” to ground one is, with respect, nonsensical. I note further that the assertion in the ground of a breach of s.359 of the Act is misplaced. The Tribunal specifically invited the first applicant to provide documents relevant to her application such that she would satisfy the criteria for the grant of the visa.

12. Particular “b” complains that the “applicant” (in context, the first applicant) submitted evidence of her “difficult pregnancy” and her father’s illness, and the Tribunal failed to consider her own illness as reasons for her “lack of study”.

13. The applicant had claimed before the delegate that her lack of academic progress was due to her own pregnancy and her father’s illness.

14. The Tribunal noted in its decision record that there had been a 15 month gap in the applicant’s study since she arrived in Australia in 2010 as a student. The Tribunal noted that the delegate had found that the first applicant’s explanation did not adequately explain her “lack of study” ([4] at CB 107). This was the delegate’s finding, rather than the Tribunal’s finding.

15. The first applicant submitted to the Court that the Tribunal failed to have regard to medical evidence that she had provided. While the Tribunal notes in its decision record that medical evidence had been provided, the Tribunal made no finding rejecting or disbelieving that evidence ([5] at CB 107). However, the Tribunal had also invited the applicant by letter of 10 March 2015, to provide information explaining why she was a genuine student and to address gaps in her enrolment (CB 60 to CB 73). The applicant did not provide any such information to the Tribunal ([5] at CB 107 and [11] at CB 108).

16. The Tribunal found, in the circumstances, that the first applicant had not provided information to demonstrate that she was a genuine student. Further, it could not be satisfied on the “limited information” before it, that she satisfied the criteria for the grant of the student visa ([10] – [11] at CB 108).

17. Both findings were reasonably open to the Tribunal to make on what was before it. No legal error is revealed in the circumstances by particular “b” to ground one.

18. Particular “c” asserts that the “applicant” (in context, the first applicant) made “several requests” to the Tribunal to provide additional time for her to provide “further evidence”.

19. There is no evidence before the Court now that the first applicant ever made any such request. No error is revealed by particular “c” to ground one.

20. Particular “d” to ground one repeats the complaints in particulars “b” and “c” and fails for the same reasons.

21. Ground two asserts that the Tribunal’s decision was “unreasonable” because the Tribunal failed to have regard to the “medical evidence” and did not consider the “applicant’s” (in context, the first applicant’s) illness was an adequate reason for the gap in her study. The ground fails for the same reasons as set out above.

22. Ground three asserts a denial of procedural fairness because the Tribunal refused the request for an adjournment, presumably of the hearing before the Tribunal, because it did not allow “additional time” for the “applicant” (in context, the first applicant) to provide further evidence.

23. There is no evidence before the Court to support the applicants’ complaint. The only request for an adjournment made by the applicants was granted by the Tribunal. No request for further time to provide documents was made. Nor for that matter, was any further adjournment requested.

Conclusion

1. The grounds of the application are not made out. No jurisdictional error is apparent. Therefore it is appropriate to dismiss the application. I will make the order.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  20 November 2017