Fathima v Minister for Immigration and Border Protection
[2018] FCA 1117
•3 July 2018
FEDERAL COURT OF AUSTRALIA
Fathima v Minister for Immigration and Border Protection [2018] FCA 1117
Appeal from: Fathima & Ors v Minister for Immigration & Anor [2017] FCCA 2788 File number(s): NSD 2177 of 2017 Judge(s): BURLEY J Date of judgment: 3 July 2018 Catchwords: MIGRATION – whether denial of natural justice on the part of the Tribunal for allowing hearing to proceed on the papers - denial of natural justice not found – where no request for an adjournment was made – where jurisdictional error on the part of the Tribunal not made out Cases cited: Fathima & Ors v Minister for Immigration & Anor [2017] FCCA 2788 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellants: The Appellants appeared in person Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 2177 of 2017 BETWEEN: FIRDHOUSE FATHIMA
First Appellant
ZAHOOR AHMED MOHAMMED
Second Appellant
AMAAN AHMED MOHAMMED
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
3 JULY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first and second appellants pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REVISED FROM TRANSCRIPT
BURLEY J:
The relevant background in the present application is conveniently set out in the reasons given by the primary judge in the Federal Circuit Court: Fathima & Ors v Minister for Immigration & Anor [2017] FCCA 2788. At paragraphs 5 to 14 he says as follows (case book references omitted):
5.The first and second applicants are husband and wife. 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. That visa was valid until March 2012. She was then granted a further student visa, which was valid until September 2014.
6.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.
7.The delegate refused their applications for the visas on 4 December 2014. 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”).
8.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). 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. The delegate ultimately found that the first applicant did not genuinely intend to stay in Australia temporarily.
9.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.
10.The applicants applied for review to the Tribunal on 17 December 2014. 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. 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.
11.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. 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. On 29 April 2015 the applicants’ representative sent an email to the Tribunal stating:
“Please be advised that the applicant (sic) will not be attending the hearing. We request the member to make a decision on the application.”
12.The hearing scheduled for 29 April 2015 was cancelled and the Tribunal proceeded to make its decision on the papers.
13.The Tribunal affirmed the delegate’s decision on 30 April 2015. It found that the first applicant did not provide any information to the Tribunal to demonstrate that she was a genuine student. 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.
14.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.
Following the events described, the appellants then applied for judicial review of the Tribunal’s decision. The Grounds of Review were as set out in [15] of the primary judge’s reasons:
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.
The learned primary judge rejected each of these grounds and the appellants then filed the current appeal in this Court on 8 December 2017.
The grounds relied upon in the present appeal are as follows:
(1)I continue to rely on the grounds and application before the Court which I believe His Honour acknowledged but ignored that these grounds are compelling and compassionate.
(2)The Tribunal had a genuine request and genuine reasons to postpone the hearing due to the genuine request and it had before it the complexity of my pregnancy as well as my father's illness yet failed to grant an extension of time and such failure is a denial of natural justice and fairness.
(3)I continue to believe that I was a genuine student yet I had compelling circumstances such as illness and pregnancy problems which prevented me from continuing my studies. My circumstances were exceptional and the Tribunal failed to accord me leniency and fairness because of the condition I was in.
(4)I am hoping that the honourable Federal Court will remit the judgment of the Federal Circuit Court and return my file to the Tribunal for reconsideration.
The appellants filed no written submissions and made no oral submissions in support of their appeal.
Ground 1 repeats the appellants’ reliance on the grounds advanced below and asserts that the grounds advanced before the primary judge are compelling. That is not, of itself, a ground of review; it must be set to one side.
Ground 2 concerns an alleged request to postpone the hearing before the Tribunal and an alleged denial of natural justice. However, the appellants did not request that the Tribunal grant an adjournment. The decision of the Tribunal records as follows:
5.The Tribunal wrote to the applicants on 10 March 2015. They were invited to a hearing which had been scheduled for 23 April 2015. The first named applicant was asked to provide evidence in support of the application, including details of her current enrolment, an explanation for any gaps in enrolment, and any documentary evidence relevant to [her] explanation. She was given a copy of the Minister’s Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications and asked to provide a written statement addressing the genuine temporary entrant requirements. The applicant did not provide any of the information requested. On the day of the hearing she provided a medical certificate and her hearing was rescheduled to 29 April 2014.
6.The applicant’s migration agent advised the Tribunal on 29 April 2015 that the applicant would not be attending the hearing and to proceed to a decision.
In the Tribunal’s findings, it stated as follows:
10.The Tribunal asked the applicant to submit evidence to demonstrate that she met the requirements for the grant of the visa, particularly the genuine temporary entrant criterion. She was invited to attend a hearing to discuss these issues. The information requested was not provided and the applicant did not attend the hearing. The Tribunal is satisfied that the applicant has had sufficient time and opportunity to provide evidence in support of the application.
11.The Tribunal has considered the available information relating to the applicant’s student visa application. The delegate raised various issues regarding the applicant’s academic activities in Australia and whether she was a genuine student. The applicant did not provide any information to [the] Tribunal to demonstrate that she was a genuine student. On the limited information it has, the Tribunal cannot be satisfied that the applicant can satisfy the genuine temporary entrant criterion for the grant of the visa. Accordingly, the Tribunal is not satisfied that the applicant can meet the ‘genuine temporary entrant’ criterion for the purposes of cl.572.223(1)(a).
The Federal Circuit Court rejected a similar ground, raised in paragraph 1(c) of the Grounds of Review, on the basis that no evidence before the Court suggests that there was any request to postpone the hearing. No error has been demonstrated to have occurred in that conclusion. This ground must be rejected.
Ground 3 is, in fact, a request for a merits review of the decision of the Tribunal and had it been raised before the primary judge, would have correctly been rejected. Neither a hearing before the Federal Circuit Court, nor a hearing before this Court is the place where the merits of the decision of the delegate - or the Tribunal - are to be considered. The purpose of the review and appellate process is to ascertain whether there has been jurisdictional error.
Ground 4 of the appeal does not raise any basis for jurisdictional review of the decision of the Tribunal or any asserted error on the part of the primary judge.
The appeal should be dismissed and the first and second appellants should pay the costs of the first respondent.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 27 July 2018
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