Gamage v Minister for Immigration and Ors (No.2)

[2009] FMCA 1146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAMAGE v MINISTER FOR IMMIGRATION & ORS (No.2) [2009] FMCA 1146

MIGRATION – Application for judicial review – student visa application – interim application for injunctive relief to prevent deportation.

INJUNCTION – Interim application for injunctive relief – whether serious issue to be tried – balance of convenience.

Legal Practitioners Act 2003 (WA), s.203(1)(b)
Migration Act 1958 (Cth), ss.116(1)(b) & (3), 359, 359A and 359(2)
Migration Regulations 1994 (Cth), Condition 8202(2)(a)

Gamage v Minister for Immigration & Others [2009] FMCA 1145
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198

Applicant: INDRAJABANDU GAMAGE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

Third Respondent: EDITH COWAN UNIVERSITY

File Number: PEG 204 of 2009

Judgment of: Lucev FM

Hearing date: 16 November 2009

Date of Last Submission: 16 November 2009

Delivered at: Perth

Delivered on: 16 November 2009

REPRESENTATION

Applicant: In Person

Counsel for the First and Second Respondents: Mr P Macliver

Solicitors for the First and Second Respondents: Australian Government Solicitor

ORDERS

1. The name of the second respondent be amended to read Migration Review Tribunal.

2. The third respondent be deleted as a respondent to the application.

3. The application for injunctive relief dated 14 November 2009 be dismissed.

4. Costs in the sum of $1075 to be paid by the applicant to the first respondent by 24 December 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 204 of 2009

INDRAJABANDU GAMAGE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EDITH COWAN UNIVERSITY

Third Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons – edited and amended from the transcript)

Injunction – interim application

1. The application before the Court today is an interim application filed on Saturday morning. For practical purposes, the application seeks that:

   a)the first respondent, the Minister, be restrained from deporting the applicant until further order of the Court, and

   b)Mr Vijitha De Alwis be granted leave to appear and assist as a McKenzie friend or a friend of the Court.

   The latter matter concerning Mr De Alwis was dealt with and dismissed by the Court earlier today.[1] The interim application follows a substantive application which was filed with the Court on 12 November 2009. That substantive application seeks to have the Court review a decision of the Migration Review Tribunal[2] made on 19 October 2009.[3]

   [1] Gamage & Ors v Minister for Immigration & Ors [2009] FMCA 1145 (“Gamage (No 1)”).

   [2] “Tribunal”.

   [3] “Tribunal Decision”.

Adjournment sought

1. At the outset of the hearing the applicant sought an adjournment. The Court, having looked at the papers, was of the view that an adjournment ought not be granted. In doing so, the Court took account of the following:

   a)this is the applicant’s application for an injunction and he ought to be in a position to argue his application for an injunction; and

   b)the affidavit of Mr Gerrard sworn on 13 November 2009[4] in support of the first respondent’s position (and only served this morning) is not a long affidavit and the facts in it are either not in dispute or ought be well known to the applicant. 

   [4] “Mr Gerrard’s Affidavit”.

2. The Court took no account of the arrangements presently in place for the removal of the applicant from Australia. If those arrangements have to bend before the Court’s requirements they will, no doubt, do so. In those circumstances, the application for adjournment was refused.

Affidavits and background facts

1. The application is supported by an affidavit affirmed by the applicant on 14 November 2009 and an affidavit of Mr De Alwis affirmed on 16 November 2009. In addition, the Court has had regard to the affidavit in the substantive application affirmed by the applicant on 11 November 2009. The basic background facts in relation to this matter appear in Mr Gerrard’s Affidavit. Those facts are set out below:

   a)the applicant is a citizen of Sri Lanka who first arrived in Australia on 28 January 1999 as the holder of a student visa which was valid until 17 January 2001;

   b)on 29 December 2000, the applicant lodged a student visa application. He was granted an associated Bridging Visa A on 1 February 2001 with a lawful until date of 1 August 2001;

   c)on 25 July 2001 the applicant lodged a further student visa application and was granted an associated Bridging Visa A. He was granted the student visa on 23 April 2002 with a lawful until date of 10 November 2003;

   d)on 3 October 2003 the applicant's student visa was cancelled under s.116 of the Migration Act 1958 (Cth)[5] for not maintaining enrolment in a registered course;

   [5] “Migration Act”.

   e)the applicant lodged an appeal with the Tribunal. The Tribunal set aside the cancellation on 29 October 2003 and the applicant's visa was reinstated with a lawful until date of 30 July 2004;

   f)on 30 July 2004 the applicant lodged a further student visa application and was granted an associated Bridging Visa A. On 6 October 2004 the applicant was granted a subclass 573 Higher Education Sector visa with a lawful until date of 8 March 2006;

   g)on 8 March 2006 a delegate of the respondent cancelled the subclass 573 student visa under s.116(1)(b) of the Migration Act on the basis that the applicant had failed to comply with condition 8202(2)(a) of the Migration Regulations 1994 (Cth) which requires the visa holder to remain enrolled in a CRICOS-registered course of study during the currency of that visa. The applicant was notified of the decision and his review rights by letter dated 8 March 2006;

   h)on 3 April 2007 the applicant was sentenced by the District Court of Western Australia to eight months imprisonment for two counts of Indecent Dealings with a child aged 13-16 years and sentenced to two years and four months imprisonment for Sexual Penetration of a child aged 13-16 years;

   i)on 9 December 2004 the Western Australian Supreme Court Court of Appeal dismissed the applicant's appeal against conviction;

   j)on 14 March 2006 the applicant was issued with a Criminal Justice Stay Certificate;

   k)on 15 March 2006 the applicant was granted a Criminal Justice Visa to regularise his immigration status whilst he was in criminal detention. The Criminal Justice Visa was cancelled on 2 August 2009;

   l)on 31 July 2009 the Criminal Justice Stay Certificate was cancelled;

   m)on 17 August 2009 the applicant lodged an application for special leave to appeal to the High Court of Australia in respect of his conviction. On 14 September 2009 the High Court wrote to the applicant advising him that the application had been deemed abandoned;

   n)in his affidavit filed on 12 November 2009 the applicant now alleges that he has lodged a further application for special leave to appeal to the High Court;

   o)on 7 August 2009 the applicant lodged an application with the Tribunal in respect of the 8 March 2006 decision to cancel his student visa;

   p)on 19 October 2009 the Tribunal affirmed the decision to cancel;

   q)on 10 November 2009 the applicant applied for a Bridging Visa E and on 12 November 2009 a delegate refused this application;

   r)the applicant does not hold a visa that is in effect and is an unlawful non-citizen within the meaning of s.14 of the Migration Act;

   s)arrangements had been made for the applicant to be removed from Australia at 3.50pm (WST) today. The applicant is booked to depart from Perth International Airport on Singapore Airlines Flight SQ0226 to Singapore and arrangements are in place for the applicant to continue on to Colombo, Sri Lanka on Singapore Airlines Flight SQ0468 departing Singapore at 10.40 pm on 16 November 2009;

   t)the Department’s Removal Availability Assessment dated 13 November 2009 was completed in preparation for the applicant’s removal; and

   u)the applicant has been assessed as fit to travel by International Health and Medical Services on 6 November 2009.

Tribunal’s Findings and Reasons

1. The Tribunal’s reasons for decision contain its findings and reasons which are set out below:

   FINDINGS AND REASONS

   56.The Tribunal must first determine whether the ground for cancellation under s.116 identified by the delegate has been made out.

   57.The applicant’s visa was cancelled on the basis of a failure to comply with a condition of the visa: s.116(1)(b). The relevant condition was identified by the delegate as condition 8202(2)(a), which requires the visa holder to be enrolled in a registered course. The requirements of that condition do not allow the visa holder to cease to be enrolled in a registered course: Liu v MIMIA [2003] FCA 1170. The delegate found that the applicant had not complied with condition 8202(2)(a) because in semester 2 of 2005, he was not enrolled in any registered course of study.

   58.On the evidence of the provider, which has not been rebutted by the applicant, despite repeated opportunities to do so, the tribunal finds that the applicant was not enrolled in a registered course in semester 2 of 2005. Accordingly, it finds that the applicant has not complied with condition 8202(2)(a) of his visa.

   59.For the reasons given above, the Tribunal is satisfied that the applicant has not complied with condition 8202 and the ground for cancellation in s.116(1)(b) therefore exists. However, the Tribunal must be further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. In accordance with s.116(3) of the Act, such circumstances are prescribed circumstances in which the visa must be cancelled.

   60.The applicant claimed that his non-compliance was due to exceptional circumstances beyond his control, asserting that he was charged with serious criminal offences in mid-2005, became stressed and suicidal, and was consequently admitted to a psychiatric ward at Royal Perth Hospital. On that basis, he could not proceed with his course enrolment.

   61.The Tribunal rejects these claims as irrelevant. While noting that the applicant has received psychiatric care and other forms of medical attention, the evidence submitted after multiple extensions of time points to these having occurred in late 2006 at the earliest, with the majority of his medical and hospital consultations having occurred in mid-2007, while he was in prison. These dates fall well outside the period in which the non-compliance occurred. The applicant has provided no evidence, despite having been given ample opportunity to do so, that supports his claim that he was charged with a number of serious criminal matters in mid-2005.

   62.No other exceptional circumstances beyond his control have been cited by the applicant as having any bearing upon his non-compliance.

   63.The Tribunal therefore finds that the applicant failed to comply with condition 8202(2)(a) of his student visa in semester 2 of 2005, and is satisfied that that non-compliance was not due to exceptional circumstances beyond his control. In accordance with s.116(3) of the Act, such circumstances are prescribed circumstances in which the visa must be cancelled.

   DECISION

   64.The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.[6]

   [6] Tribunal Decision, paras.56-64.

Injunctive relief

1. Wether an injunction is granted in a matter such as this depends upon:

   a)whether there is a serious issue to be tried; and

   b)the balance of convenience.

A serious issue to be tried

1. The Court turns first to the question of whether there is a serious issue to be tried in relation to the grounds of the substantive application.

2. It is alleged in grounds 1 and 2 that the Tribunal was actually biased or that there was a reasonable apprehension of bias. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. A reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment. The Court refers to the High Court judgments in Minister for Immigration and Multicultural Affairs v Jia Legeng[7] and Re Refugee Review Tribunal; Ex parte H.[8] The Tribunal decision does not demonstrate prejudgment nor does it give rise to reasonable apprehension of prejudgment. As the Tribunal observed at paragraph 39 of its reasons for decision, the allegation of bias is difficult to reconcile with:

   a)the Tribunal’s offer to provide to the applicant a document which it was not obliged to supply; and

   b)the Tribunal’s preparedness to grant repeated extensions of time for the applicant to respond to formal invitations from the Tribunal.

   [7] (2001) 205 CLR 507; [2001] HCA 17.

   [8] (2001) 179 ALR 425; [2001] HCA 28.

3. The Court observes that there were at least four extensions of time at the request of the applicant or his authorised representative, often in the face of failure to meet pre‑existing deadlines. The applicant’s allegation of bias has not been made out.

4. The Court turns now to grounds 3 and 4 and 13 and 14, which go to issues of fairness of the hearing and procedural fairness. The Court observes that at paragraph 61 the Tribunal said as follows:

   The evidence submitted after multiple extensions of time points to these events having occurred in late 2006 at the earliest with the majority of his medical and hospital consultations having occurred in mid 2007 while he was in prison.  These dates are well outside the period in which the non-compliance occurred.  The applicant has provided no evidence, despite having been given ample opportunity to do so, that supports his claim that he was charged with a number of serious criminal matters in mid 2005.

5. The central issue before the Tribunal was the question of fact as to whether or not the applicant was enrolled in the relevant studies in the relevant course in the second semester of 2005. The Tribunal found that on the evidence, he was not so enrolled. The central question then became whether there were exceptional circumstances justifying the non-enrolment. In essence, the applicant argued that he was unable to enrol because of various medical problems and serious criminal charges.

6. It is unnecessary to repeat the facts which are set out in the Tribunal Decision.[9] It is sufficient to note that there were at least four extensions of time over a period of about a month on the basis of the alleged inability of the applicant’s authorised representative to appear because of ill health and default in respect of earlier extensions of time granted by the Tribunal. It is clear that the applicant was extended the relevant invitations to provide information under ss.359 and 359A of the Migration Act. That he was granted multiple extensions of time and that he failed to provide any relevant documents and any documents at all in relation to the criminal charges,[10] led the Tribunal to find that there was no evidence produced by the applicant of exceptional circumstances at the relevant times. Those circumstances led the Tribunal to make the observations it did,[11] which have already been set out. These were factual findings made by the Tribunal after due and proper inquiry and process afforded to the applicant. Whether cases are adjourned or witnesses summoned are matters for the Tribunal. If indeed the Tribunal did refuse to adjourn as asserted, and refused to summon a witness, it is hardly surprising given the lack of evidence after numerous extensions of time in relation to the relevant dates. The Court therefore does not consider that there is a serious issue to be tried in relation to grounds 3, 4, 13 and 14.

   [9] Tribunal Decision, paras.40-55.

   [10] Tribunal Decision, paras.55 and 60.

   [11] Tribunal Decision, paras.60 and 61.

7. Grounds 5 and 6 assert that the Tribunal considered irrelevant material and that the Tribunal did not consider relevant material. The grounds are un-particularised and the Court is unable to find any evidence in the affidavit material of the applicant and Mr De Alwis which would support these grounds. For those reasons, grounds 5 and 6 do not give rise to serious issues to be tried.

8. Ground 7 asserts that the decision of the Tribunal was so unfair that no fair-minded person would have made it, and there is a reference to Wednesbury unfairness. The Court refers again to the critical passages in the Tribunal’s judgment.[12] The Tribunal Decision in this regard is entirely logical and is consistent with the evidence led before the tribunal. For reasons already given, there is no unfairness or lack of procedural fairness. There was certainly no Wednesbury unreasonableness. Any fair-minded person faced with this issue could, on the basis of the law and the evidence, legitimately arrive at the decision at which the Tribunal arrived. There is no serious issue to be tried in this respect.

   [12] Tribunal Decision, paras.60 and 61.

9. Ground 8 concerns the Tribunal’s refusal to allow Mr De Alwis to appear as a friend of the Court or a McKenzie friend in the Tribunal proceedings. It is arguable that Mr De Alwis had no right of appearance in any form or capacity, given that s.203(1)(b) of the Legal Practitioners Act prohibits a struck-off legal practitioner from appearing before a statutory Tribunal.[13] In any event, it is a matter for the Tribunal as to who appears before it. It is a discretionary decision, and the Tribunal sets out the basis for the exercise of its discretion against Mr De Alwis’ application to appear.[14] In any event, it appears that some latitude was given to Mr De Alwis to make certain representations as the Tribunal hearing proceeded. There is no indication that the Tribunal’s discretion miscarried in this respect and there is no serious issue to be tried in that respect.

   [13] For the circumstances of Mr De Alwis’ striking off for misappropriating funds from a client subject to deportation, see The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198, summarised in Gamage (No 1) at paras.2-5 per Lucev FM.

   [14] Tribunal Decision, para.26.

10. Ground 9 refers to an allegation that a true interpretation was denied of the Tribunal’s proceedings. Despite the audio tape of the hearing apparently being available,[15] the grounds for this part of the application are not particularised and there is nothing but a bare unsupported assertion. In the absence of any evidence or any particulars, there is no serious issue to be tried in relation to this ground.

    [15] Tribunal Decision, para.22.

11. Grounds 10 and 11 relate to alleged applications of a refusal for an adjournment, and refusal of an application for an extension of time to file a statement of evidence by Mr De Alwis. These are procedural matters and, in the Court’s view, the Tribunal would have been justified in its refusal by reason of the indulgences earlier granted to the applicant. In any event, there is nothing to support an allegation that the refusal of the adjournment of extension of time would have altered the eventual outcome, having regard to the essential facts found by the Tribunal.[16] Grounds 10 and 11 do not disclose a serious issue to be tried. For similar reasons, ground 12 does not disclose a serious issue to be tried.

    [16] Tribunal Decision, particularly at para.61.

1. Ground 15 asserts that the Tribunal did not hear the applicant’s case in full. It is clear that the applicant’s case was heard in full and in a manner consistent with the Tribunal’s obligations under the Migration Act.

2. Ground 16 asserts that insufficient or inadequate reasons for decision were given by the Tribunal. On any examination of the Tribunal Decision, the reasons are sufficient and adequate. They are logical and founded in the law and the evidence. Therefore, no serious issue to be tried arises.

3. The central findings of fact of the Tribunal were not impugned and they were findings of fact that were available to the Tribunal. They are findings of fact which do not disclose jurisdictional error and ought not be interfered with by this Court. Having regard to the High Court decisions in Plaintiff S157/2002 v Commonwealth of Australia[17] and Minister for Immigration and Multicultural Affairs v Yusuf[18] there would, in the Court’s view, be no basis to set aside the Tribunal Decision on the grounds of jurisdictional error. The Tribunal correctly set out its task, the relevant facts and the applicant’s claims and evidence. There was no error in the Tribunal’s statement of the law and no misdescription or error in the Tribunal’s description of the applicant’s claims. Nothing in the Tribunal Decision indicates that it failed to have regard to relevant considerations or misunderstood its task.

   [17] (2003) 211 CLR 476; [2003] HCA 2.

   [18] (2001) 206 CLR 323; [2001] HCA 30.

Balance of convenience

1. Turning to the balance of convenience, the applicant essentially sought to argue that he ought to be allowed to remain in Australia so that he could:

   a)argue the substantive application to this Court in relation to his student visa, which is listed in this Court for a first directions hearing on 4 December 2009; and

   b)make an application to the High Court for special leave to appeal the Supreme Court of Western Australian Court of Appeal’s judgment concerning his criminal convictions.

2. The balance of convenience does not favour the applicant, irrespective of the outcome of the application to this Court with respect to his student visa. That visa expired on 8 March 2006. Even if the applicant is successful in his application for judicial review of the Tribunal Decision, he had no right to stay in Australia beyond 8 March 2006 on the student visa. In relation to the High Court special leave application, the Court notes that an earlier special leave application was deemed abandoned by the High Court. Nothing in the High Court application affects the applicant’s migration status. Whilst it might be convenient if the applicant stays in Australia, that ignores the possibility that the special leave application might be decided on the papers, and that the applicant might yet obtain legal representation. In that regard the Court notes that there have been no details provided in the evidence of his assertion that he has been unable to obtain a lawyer. Finally, modern means of communication might allow him to appear from Sri Lanka to the High Court by phone or video link. There is nothing in any family reasons which were put before the Court which would preclude his return to Sri Lanka. Indeed, it appears that he has family by way of parents, and brothers who are lawyers, in Sri Lanka (the latter being an observation made to the Court this morning by the person [Mr De Alwis] who sought leave to appear on his behalf).

3. For the above reasons the balance of convenience does not favour the applicant, and there being no serious issue to be tried, it follows that the application for injunctive relief dated 14 November 2009 must be dismissed.

Postscript – the applicant is moved while judgment is being delivered

1. This is a postscript to the ex tempore reasons for judgment that the Court was in the process of delivering and which had to be adjourned at about 2.10pm. At 12.30 pm, this matter was adjourned to 2 pm for handing down, by telephone, of the reasons for judgment. The Court understood that the applicant, subject to the outcome of the interim application, was due to be deported at 3.50pm and was booked on a flight to Singapore at that time. Having regard to the circumstances, the applicant was taken back to the Immigration Detention Centre at Perth Airport,[19] and arrangements were made for the reasons for judgment and orders to be pronounced by telephone.

   [19] From whence he had apparently come to Court that morning.

2. Soon after these reasons for judgment were commenced, it became apparent that the applicant was, “on the move.” The voices of others could be heard moving him along and then there were beeping sounds consistent with the applicant passing through what sounded like some form of detection device or security apparatus. The ongoing noise that emanated from both of those activities was such that neither the applicant nor the interpreter, both on the phone, could hear the Court delivering its reasons for judgment. Precisely why it is that it was necessary for officers of the first respondent to act in the way that they did is not apparent, given that there was still an hour and a half until the plane was due to depart.

3. The fact that, in total disregard of the fact that the Court was handing down the judgment, the officers of the first respondent commenced to move the applicant on, smacks of prejudgment of, or disregard for, the Court’s forthcoming orders, and more particularly the applicant’s rights. It is certainly grossly disrespectful to the Court which, it has to be remembered, is a Chapter III court under the Constitution. The applicant is entitled to hear the judgment and the orders of the Court in peace and quiet, not while being moved on and out of the Immigration Detention Centre and through security apparatus. The Court should not have to adjourn, as it did, to ensure that the applicant can listen to oral reasons for judgment being delivered.

4. The Court intends to refer the matter to the Principal Registrar of the Court and ask that it be referred to the appropriate senior officers of the first respondent or the first respondent’s department for further action in relation to what the Court considers most unsatisfactory conduct of the officers who had decided to move the applicant on whilst reasons for judgment were being delivered.

5. The Court adds this: it is grateful to the first respondent’s instructing solicitors for making what were, no doubt, strenuous efforts to ensure that the remainder of the reasons for judgment could be listened to by the applicant in peace and quiet.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S. Gough

Date:  20 November 2009