Gill v Minister for Immigration
[2018] FCCA 569
•23 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 569 |
| Catchwords: MIGRATION – Application to reinstate application to review decision of the Administrative Appeals Tribunal after dismissal for non-appearance –application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116(1)(fa)(i), 360 Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 |
| Applicant: | DILBAG SINGH GILL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2873 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 23 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application in a case filed on 13 December 2017 be dismissed.
The Applicant pay the First Respondent’s costs of the application in a case fixed in the sum of $600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2873 of 2016
| DILBAG SINGH GILL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) seeking that the Court set aside orders that it made on 13 December 2017 dismissing the Applicant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) for non-appearance pursuant to r.13.03C(1)(c).
The background to these proceedings is that the Applicant, Mr Gill, was the holder of a student visa. The Department of Immigration sent him a notice of intention to consider cancellation of that visa on 21 December 2015, referring to the ground in s.116(1)(fa)(i) of the Migration Act 1958 (Cth) (the Act) that the Minister may cancel a visa if he or she is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. The notice also referred to issues in relation to the Applicant’s attendance and gave him the opportunity to respond. He provided a written response.
A delegate of the First Respondent cancelled Mr Gill’s visa on 27 January 2016. The Applicant sought review by the Tribunal. He attended a Tribunal hearing and provided the Tribunal with documents in support of his contention that his visa should not be cancelled.
By decision dated 27 September 2016 the Tribunal affirmed the decision to cancel the Applicant’s visa. The only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s (detailed) account in its reasons for decision.
The Tribunal (correctly) summarised the law, considered whether the ground for cancellation under s.116(1)(fa)(i) existed and, after finding that it was satisfied the ground existed, considered whether the power to cancel the visa should be exercised.
The Tribunal described in some detail the notice of intention to consider cancellation, the Applicant’s response and his documentary and oral evidence about his past activities and the circumstances in which he had not been enrolled in courses, as well as his future study intentions and issues he raised relevant to the discretion to cancel the visa. It concluded that the visa should be cancelled.
The Applicant sought review in this Court in October 2016. At a directions hearing on 23 February 2017 the matter was listed for callover before me at 9.30 am on 13 December 2017. Details of the time, date and place of the callover were included in the order.
Mr Gill was not present at the time that his matter was listed for callover. In his supporting affidavit (on which he was not cross-examined) he stated that on 13 December 2017 he arrived “5 min (sic) late”. It is not clear whether he meant five minutes after 9:30am, or five minutes after the matter was called at 9:46 am, when he did not appear. I dismissed the matter for non-appearance at 9:48am on 13 December 2017.
In any event, Mr Gill took action shortly thereafter, insofar as he filed an application for reinstatement at 12:22pm on the callover date.
He seeks reinstatement under r.16.05 of the Rules. The principles in relation to an application for reinstatement under r.16.05 have been discussed by the Federal Court (see for example MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]-[10] (referred to in SZTUR v Minister for Immigration and Border Protection [2017] FCA 1570 at [16])).
While r.16.05 does not circumscribe the discretion or specify matters which have to be taken into account, the Court has a discretion which, as Ryan J stated at [7] in MZYEZ, “requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement”.
The first factor is whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was dismissed. No issue is taken in this respect by the Minister. The Applicant acted promptly to seek reinstatement.
The second matter to which the Court must pay attention is “the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged” by other orders such as costs, adjournment or other relief the Court is empowered to grant (see MZYEZ at [7]). The Minister has conceded that there would be no prejudice from any reinstatement other than costs consequences.
In these circumstances the Minister conceded, appropriately, that the critical issue in this case is whether the Applicant “has a reasonably arguable prospect of success on the substantive application” (see MZYEZ at [7]). Similarly, in Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 it was suggested at [9] in relation to r.39.05 of the Federal Court Rules 2011 (Cth) that there is usually a need for an applicant to show that they have a case “which is reasonably arguable” (see the discussion in SZTUQ v Minister for Immigration & Anor [2016] FCCA 2889 at [17]-[22]).
As North J pointed out in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 (at [18]) (and see MZYEZ), the decision whether to reinstate depends not only on the existence of a reasonable explanation, but also whether if reinstated the application has a reasonable chance of success. North J observed: “If not, there is no purpose in reinstatement.”
In other words, as explained in MZYEZ (and referred to with approval in SZTUR), even if a reasonable excuse for the non-appearance exists, the Court will not exercise its discretion in a party’s favour where there is “little or no prospect” of that party succeeding on the substantive claim (at [8]). As pointed out in MZYEZ (at [10]) the decision whether to reinstate is essentially discretionary. The discretion must be exercised judicially.
I have had regard to all of the circumstances in considering whether “good reason” has been established to exercise the discretion to set aside the dismissal order (see Lal at [9]), while bearing in mind that it has been said that the “primary consideration” in such a case is whether the substantive case has “merits” to which the Court should pay heed (see SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 at [7]-[8] and cases cited therein).
I gave the Applicant the opportunity to raise any matter that he wished to raise in support of his application for reinstatement. In relation to the merits of his grounds of review, I asked Mr Gill to address each of the grounds in his application of 20 October 2016 and to explain how these grounds (which are not easy to understand as grounds of review) showed any arguable concern with the Tribunal decision or procedures and to raise any other concerns he had with the Tribunal decision or procedures.
The grounds in the application are as follows (errors in original):
1. My immigration agent didnot notify me anything about school/email.
2. My uni lost my attandance records and assignment.
3. i received the email And Text from my agent about my attance is 75% i have the evidence so i can show
4. My agent and uni advise me to come only one-day per week and pay fees on-time so that’s why i didnt find the good atmosphere in class. i choose not to go or release my studies from that uni.
5. My uni refuse to give me release letter because of not paying fees on time and i dont wanted to continue studies in such kind of uni with boring atmosphere with no student avilable in classes all the time.
6. My future stands for studies in graphic designing but my agent mis-guide me on every prospect and misusing my innocent. so i have the witness to prove my statement.
Before addressing these grounds the Applicant raised a number of issues.
After a lengthy explanation of what he said were his circumstances before the time the Tribunal made its decision, and what he said he claimed to the Tribunal, Mr Gill acknowledged that, in essence, his concern was that the Tribunal had cancelled his visa and that he disagreed with the Tribunal’s conclusion. Insofar as he today sought to tell the Court what had happened during the Tribunal hearing and what oral claims he had made to the Tribunal, there is no transcript of the Tribunal hearing in evidence despite the fact that in February 2017 directions were made giving Mr Gill the opportunity to file any amended application and also any affidavit containing additional evidence including any transcript. He did not take that opportunity.
Nothing in what Mr Gill said today was such as to raise any concern that the Tribunal may have failed to consider any integer of his claims or any circumstances raised by him in a manner constituting jurisdictional error. It is clear that in considering whether there was a ground for cancellation the Tribunal addressed the Applicant’s past study history and endeavoured to clarify his circumstances in a context in which the notice of intention to cancel (referred to in the delegate’s decision) was based on the Applicant’s attendance records and information about his courses. It included the fact that since he was granted a higher education sector visa in June 2014 Mr Gill had not undertaken or completed any course at that level; that Zenith Business Academy (where he enrolled in a Certificate IV in Business Administration in September 2014) had produced documents indicating that his attendance had been around 40 per cent; and that Infotech Professionals Pty Ltd (where he subsequently attended) had provided records for the Advanced Diploma of Leadership and Management he started in October 2015 indicating that his attendance rate had only been 2.5 per cent in the first four weeks. The Tribunal also had regard to confusing information from the Applicant about other aspects of his study in Australia, including whether he had been enrolled at Victoria University and whether that enrolment had been cancelled.
It is also apparent from the Tribunal reasons for decision (which set out in some considerable detail what occurred at the Tribunal hearing) that in considering the Applicant’s study history the Tribunal was concerned, for reasons which it gave, that on a significant number of occasions the Applicant was unresponsive in responding to Tribunal questions and appeared evasive and vague in providing information and details. It also had regard to inconsistencies in aspects of his evidence, in particular about his attendance in past courses. As it stated, after setting out (in detail) variations in how the Applicant had responded to issues or addressed his past activities and circumstances, the Tribunal had significant difficulty in clarifying the Applicant’s study activities in Australia. However it found that he had not been enrolled in any course between October 2015 and April/May 2016.
The Tribunal addressed the Applicant’s circumstances and his family in considering whether or not to exercise the discretion to cancel the visa, including possible family disappointment, his and his mother’s health and any impact on his brother now studying in Australia.
The Applicant seemed to suggest that the Tribunal had advised him that it could not give him a visa because his brother was here and if the Applicant could not pay his fees, then he could not stay here. He claimed that he had told the Tribunal that his family were paying the fees. At first blush, such claims seemed to relate to some other decision, as the Tribunal’s decision was not a visa refusal and was not reached on the basis of any inability on the Applicant’s part to pay his fees.
However the Tribunal did have regard to the Applicant’s evidence that his parents had paid the fees for some of his courses and that they had supported him and that his cousin had helped him. It also considered information and documents he provided in relation to course enrolment. Insofar as the Applicant intended to assert that the Tribunal failed to have regard to discretionary matters, family circumstances, or to his explanations for times at which he was not enrolled or had his enrolment cancelled, there is no evidence to support such a claim.
The Applicant also sought to explain to the Court his circumstances at the time he received a telephone call from the Department advising him of the need to provide a new confirmation of enrolment at a university.
If he intended to suggest that he made claims in this respect that were not considered by the Tribunal, the Tribunal recorded (at paragraph 15 of its reasons) the Applicant’s claims that he had been told he needed to provide a new confirmation of enrolment at a university after he left Zenith and was studying English. In that context, he is also recorded as having told the Tribunal that his confirmation of enrolment at the “victoria uni” had been cancelled, that while he was getting assistance financially he was stressed and was unable to obtain a certificate of enrolment, that he remained at the English Academy and that his student visa was cancelled. He also made further claims about not wanting to worry his mother. The Tribunal considered these claims.
Today the Applicant repeated some of the explanations that he had provided to the Tribunal for gaps or inadequate attendance in relation to his study. He appeared to raise an issue as to whether the Tribunal had given him an opportunity to provide supporting documentation (albeit that this was not something raised in his grounds of review). The Tribunal recorded a discussion of the Applicant’s initial claims at the hearing that he had a confirmation of enrolment at Victoria University and his clarification that he had email documentation that was not with him at the hearing. The Tribunal allowed the Applicant additional time to provide such documentation. In recording this, it noted the difficulties the Applicant had had in the hearing in identifying the course to which he was referring.
The Tribunal considered the Victoria University confirmation of enrolment provided after the hearing. However it observed that the course discussed during the hearing had appeared to be a course in which the Applicant’s enrolment was cancelled on 14 October 2015 for non-commencement of studies, whereas the information provided after the hearing did not relate to the course the Tribunal had understood the Applicant had been talking about at the hearing, but to a course that was to commence in 2017. Nonetheless, in its consideration of the exercise of its discretion the Tribunal addressed the Applicant’s future plans, including the documentation he had provided about being offered future enrolment in a course at Victoria University. Nothing said by the Applicant in this respect raises any arguable basis for a claim of jurisdictional error on the part of the Tribunal.
Otherwise, the Applicant took issue with the merits of the Tribunal decision in light of the evidence that he had put before it. In this respect he seeks impermissible merits review.
Moreover the grounds as pleaded and as explained by the Applicant do not provide any arguable jurisdictional error on the part of the Tribunal.
The Applicant did not explain how ground 1 (that his immigration agent “didnot (sic) notify [him] anything about school/email”) related to the Tribunal decision or procedures. Rather, he took issue with the fact that a migration agent who had been acting for him at the time he sought review by the Tribunal did not accompany him to the Tribunal hearing. He later explained that he did not know what his “lawyer” had put to the Tribunal and that this was why he “got rid of” him and appeared before the Tribunal by himself.
The Applicant was given the opportunity to elaborate on any concerns he may have about his lawyer’s involvement or lack of involvement, out of concern that he may be endeavouring to raise an argument of the nature considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. However it was clear from what he said that he was not seeking to raise any such argument. Moreover the migration agent’s non-attendance at the Tribunal hearing is not indicative of any arguable jurisdictional error on the part of the Tribunal. The Applicant provided documents and gave evidence to the Tribunal which it considered in its reasons for decision.
Insofar as the Applicant’s concern may be seen as a concern about the conduct of the Tribunal hearing, it is the case that the Tribunal recorded that at the hearing it had asked the Applicant why he had not provided his further statement and other documents earlier than immediately before the hearing. However he was also given an opportunity to provide further documents after the hearing and the Tribunal considered all the Applicant’s claims and evidence provided in written and oral form. It did not make any findings on the basis of the timeliness of provision of claims or documents, although it did express concern, as indicated, about the difficulty it had experienced in getting the Applicant to focus on and respond to its questions and the apparent evasiveness in some of his answers.
As pointed out by the First Respondent, the Tribunal also recorded that the Applicant initially told it that he wished to have the hearing conducted in English. The Tribunal recorded that it had found that the Applicant appeared to have difficulty in understanding its questions and that it was having difficulty in understanding some of his responses. It decided that, as a matter of fairness, the hearing should be conducted with the assistance of the interpreter who was present. The Applicant told the Court that he had requested an interpreter for the Tribunal hearing. That may well be so. However what is important is that an interpreter was present and that, on the Tribunal’s account, the interpreter was used. There is nothing in the material before the Court to suggest any arguable failure by the Tribunal to comply with s.360 of the Act or any lack of procedural fairness arising out of these circumstances.
I also note, relevant to the issue the Applicant raised about his lawyer or migration agent, that insofar as this concern may have related to a discussion at the Tribunal hearing of possibly misleading information having been provided to an education provider (being information provided to Zenith in September 2015 that the Applicant wanted his enrolment cancelled and was returning to India), the Applicant told the Tribunal that the email to Zenith had been sent by an agent he could not name who had been helping him, but that in fact he did not intend to cease his studies, and that it was all the work of the unnamed agent who sent the email. The Tribunal considered this claim. It recorded that the Applicant was unable to provide any details about the agent, other than to say the person was in Melbourne. This raised credibility concerns, but in circumstances where the Applicant claimed he would be able to provide details about the agent if given time, the Tribunal allowed him additional time to provide further information. It did not receive any additional information regarding the identification of the agent (although it did receive further documentation from the Applicant about his course enrolment). Nothing in this aspect of the Applicant’s claims is indicative of even an arguable jurisdictional error relating to the Applicant’s use, at any time, of any migration agent or lawyer.
The second ground is:
My uni lost my attandance (sic) records and assignment.
When asked to elaborate on this ground and its relevance to the Tribunal decision and procedures, the Applicant said this was about Victoria University, and that it “did not matter” because he had not gone there at the time of the Tribunal hearing. In any event it is not indicative of any arguable jurisdictional error.
Ground 3 is:
i received the email And Text from my agent about my attance (sic) is 75% i have the evidence so i can show (sic)
The Applicant confirmed that he had not provided any information to the Tribunal stating that he had 75 per cent attendance. He explained that he did not know what his lawyer had put to the Tribunal and that he got rid of him. The First Respondent addressed the issue the Applicant raised about his lawyer or migration agent not attending the Tribunal hearing as discussed above. No disadvantage was pointed to by the Applicant resulting from his agent not attending the hearing. Nor is any apparent on the material before the Court. Despite being given extensive opportunities to clarify his claims, nothing in what the Applicant said today has raised any potentially arguable claim (whether of an SZFDE nature or otherwise) based on this ground as pleaded or as explained by him.
Ground 4 is a recitation of claimed facts which were said to have occurred prior to the visa cancellation as follows:
My agent and uni advise me to come only one-day per week and pay fees on-time so that’s why i didnt find the good atmosphere in class. i choose not to go or release my studies from that uni.
No arguable jurisdictional error is apparent on the basis of this explanation. The same may be said in relation to ground 5, which is that:
My uni refuse to give me release letter because of not paying fees on time and i dont wanted to continue studies in such kind of uni with boring atmosphere with no student avilable (sic) in classes all the time.
Insofar as the Applicant now provides an explanation for his non-attendance, he seeks impermissible merits review.
Ground 6 is:
My future stands for studies in graphic designing but my agent mis-guide me on every prospect and misusing my innocent (sic). so i have the witness to prove my statement.
There is nothing in this ground that raises any arguable jurisdictional error. Any difficulties the Applicant may have experienced in choosing appropriate courses is not indicative of error on the part of the Tribunal. It considered the Applicant’s explanations for his enrolments, his attendance record, his changes in enrolment and, indeed, his suggestion that he was intending to undertake an Advanced Diploma course with the Management Institute Australia (which had awarded him a Diploma of Business based on “Recognition of Prior Learning”), even though he provided a confirmation of enrolment for a course at a School of Fashion.
In considering the Applicant’s stated desire to continue study, the Tribunal had regard to the fact that he had undertaken some further studies in Australia post-cancellation and said he intended to undertake further studies. It considered the inconsistencies between his responses to the Department in relation to the notice to consider cancellation of his student visa and evidence he gave to the Tribunal about his study activities and involvement with education providers. In addition it had regard to the absence of any documentation in relation to the Applicant’s claims he was depressed and stressed (other than a reference from his cousin who had not given any evidence before the Tribunal). The Tribunal had regard to the Applicant’s acknowledgement that he had not been enrolled in any course between October 2015 and April/May 2016. The Tribunal reached the overall assessment that the Applicant was not a credible witness. It found the relatively short reference letter from his cousin did not alter its assessment of the Applicant’s credibility. For the reasons which it gave (in particular about the Applicant’s study activities since coming to Australia) the Tribunal was of the view that he was not or was likely not to be a genuine student. It was satisfied the ground for cancellation in s.116(1)(fa)(i) existed. No arguable jurisdictional error is apparent in this aspect of the decision.
Further, the Tribunal recognised correctly that the ground in s.116(1)(fa)(i) did not require mandatory cancellation and considered the exercise of its discretion whether to cancel the visa. It noted that no matters were specified in the Act or Regulations that were required to be considered. It had regard to relevant circumstances including, but not limited to, matters identified in PAM3. The Tribunal referred to its account of the Applicant’s evidence at the hearing, in particular his evidence that there were no reasons why he could not return to India; that his family in India would be disappointed if he returned to India without qualifications; that his mother’s health may be affected; and that he thought his brother, who was now studying in Australia, would be affected if he returned to India. It observed that he had not indicated that anyone else in Australia would be affected if he returned to India and his visa remained cancelled. The Tribunal had regard to the reference provided by the Applicant’s cousin in this context. It also had regard to the fact that the purpose of a student visa was for the Applicant to undertake studies in Australia. It acknowledged that the Applicant’s family had provided support for him to undertake his studies in Australia and that there may be some financial hardship to his family and to him if the visa remained cancelled. As indicated, it had regard to the fact he had undertaken some further studies in Australia since being informed his visa had been cancelled and that he said he intended to undertake further studies if allowed to remain. However in circumstances where it did not accept that the Applicant was a credible witness, the Tribunal was not satisfied as to his claims that he would likely be a genuine student in the future if allowed to remain in Australia, notwithstanding that he had undertaken some further studies. In that regard, it noted his vague evidence and the documentation provided about his claims to have been offered enrolment in a course at Victoria University. It stated that it had considered the totality of these issues.
The Tribunal’s findings in this respect were reasonably open to it on the material before it for the reasons which it gave and are not indicative of any arguable ground of review. I have had regard to the fact that credibility findings are not immune from challenge (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413) but there is nothing in the material before the Court to indicate that any of the grounds relied on by the Applicant, the matters raised in submissions or the material before the Court raises any arguable ground of review.
As the First Respondent submitted generally, insofar as the Applicant’s claim appeared to be that he had raised certain matters with the Tribunal, the Tribunal’s account of the Tribunal hearing indicates that the Tribunal considered the matters of relevance raised with it in a manner that is not indicative of any arguable jurisdictional error. Otherwise, the Applicant seeks impermissible merits review.
In all the circumstances I am not satisfied that the substantive application has any prospect of success, let alone a reasonably arguable prospect of success if reinstated. In the circumstances, there is no purpose in reinstatement. Accordingly the application for reinstatement should be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 8 March 2018
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