Gurung v Minister for Home Affairs

[2019] FCCA 282

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 282

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001(Cth), r.13.03C(1)(e)

First Applicant: ABINAY GURUNG

Second Applicant: LAXMI GURUNG

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 580 of 2018

Judgment of: Judge Vasta

Hearing date: 4 February 2019

Date of Last Submission: 4 February 2019

Delivered at: Brisbane

Delivered on: 4 February 2019

REPRESENTATION

There being no appearance by or on behalf of the First and Second Applicant

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 the Application for leave to be granted for an extension of time is refused.

2. That otherwise the Application filed 13 June 2018 is dismissed.

3. That the Applicants pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 580 of 2018

ABINAY GURUNG

First Applicant

LAXMI GURUNG

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL 

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 9 May 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision to cancel the student visa of the Applicant, Mr Abinay Gurung.  That decision having been made, it meant that the Applicant had 35 days in which to lodge any application before this Court.  The Applicant lodged the application on 13 June 2018 at 4.56 pm.  He was technically out of time, but only by less than an hour.  Nevertheless, it is a matter where he must necessarily seek an extension of time.

2. The matter having been filed on that day led to Registrar Belcher having the matter before him as a first court date on 18 July 2018.  Registrar Belcher made orders that by 8 August 2018, the Minister file and serve a copy of the green book.  The Minister complied with that order. 

3. Registrar Belcher made an order that the Applicants file any amended application or any additional evidence by 5 September 2018.  There was no such filing of either evidence or an amended application.  Because of that, the other order regarding the first respondent replying to such was not needed. 

4. Registrar Belcher ordered that by 4.00 pm on 8 January 2019, the Applicant should file and serve written submissions in support of his application, and by 4.00pm pm on 22 January 2019, that the Minister do the same. 

5. The application was adjourned for hearing to 29 January 2019 at 11.30 am.  Towards the end of last year, my Chambers realised that there was going to necessarily be a logjam of matters on that date, so I adjourned the matter from 29 January 2019 to 4 February 2019.   That message was conveyed to both the Applicants and the Minister on 7 November 2018. 

6. Those dates then pushed back the time in which the submissions had to be completed.  It meant that the Applicant had until 15 January 2019 and the Minister until 29 January 2019 to complete their submissions.  The Applicants did not file any submissions. The Minister complied and completed his submissions and filed them according to that timetable. 

7. The Applicants have not turned up here today.  The matter was listed for hearing at 3.15 pm.  The applicants were not here.  I gave a further 10 minutes and the Applicants still had not shown.  It is now 3.33 pm and the Applicants are still not present.  There is no indication that the Applicants came to the Court on 29 January 2019 as there is no notation on the file from a Registrar to say that such had happened.

8. The Court then must decide in which way it should proceed. I have decided, given the facts of this matter, that I should proceed pursuant to rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (“the Rules”) and deal with the matter on the merits.

9. The Applicant, Abunya Gurung came to Australia on a student visa in 2014.  The Applicant had to comply with the conditions of his visa, and if he did not comply, then the Minister may cancel that visa. 

10. The Applicant did not comply with condition that he be enrolled in a registered course.  The Applicant had, it would seem, been enrolled in the course but his enrolment was cancelled because he did not pay the fees that were payable to the University of Sunshine Coast. 

11. The Applicant conceded that he had not paid and conceded that his enrolment had been cancelled and conceded that he was, in fact, in breach of the conditions of his visa.  The hearing before the AAT took place on this basis as to whether the Minister should use the discretion to cancel the visa or if not. 

12. At paragraph 6, the AAT summed up their task by saying:

    … If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy...

13. The AAT then went through the circumstances that were here.  The Tribunal considered that the Applicant’s original purpose of coming to the country was to stay in Australia and study.  He had complied with all other aspects of the visa. 

14. The Applicant said that his parents blame themselves because they have not had sufficient resources to pay the Applicant’s fees, but he said that this came about because his grandmother took ill.  That gave rise to medical costs because the grandmother had cataracts, lung and breathing problems which necessitated an oxygen tank, and she drank a little.

15. The Tribunal looked at that aspect of hardship and placed some weight on it.  The Tribunal also placed some weight on the fact that the university had given the AAT an email which the Applicant had sent to the university saying that the business of the parent suffered a loss and, therefore, he needed more time to pay the fees.  The university gave him more time but he did not pay. 

16. The Applicant said that the non-payment was not as a result of the business suffering a loss but because of the grandmother’s ill health. But there does not seem to be any evidence that he raised that matter with the university at the time, nor did he seek a deferral or counselling because of the grandmother’s illness or death.

17. The Applicant provided the Tribunal with a death certificate dated 8 October 2017 with respect to the grandmother’s passing away, but there was no material before the Tribunal to substantiate the costs associated with the ill health, or how they impacted on the Applicant’s ability to pay fees.  At paragraph 13, the Tribunal said that they were:

    … Willing to accept that the applicant and his family members may experience disappointment if his visa was cancelled before he completes his course in Australia. The Tribunal is also willing to accept that the applicant’s family has spent a lot of money on him and will be disappointed if he does not make the best of that expenditure by completing his master’s degree. However, the Tribunal notes he has now had four-and-a-half years to complete a two year course, and that his plans following any completion of the course are at best sketchy.  Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled…

18. The Applicant’s application gave these grounds for the extension of time: 

    (1) Internet disconnected temporarily

    (2) Internet kept dropping and had to redo the application again

    (3) Circumstances beyond my control as I wanted to lodge FCC application before 4.30 pm.

19. One wonders why it was that the Applicant left everything to the last minute, but that really is something that can be looked as being bye the bye.  The ground of the application is that:

    The Administrative Appeals Tribunal did not provide enough weight to the situation I explained while they had put more weightage on my pension income.

20. That ground was then the subject of a very lengthy submission, which, realistically, firstly, misconceived the application to this Court, but secondly, did not show any jurisdictional error but rather invited this Court to engage in an impermissible merits review.

21. It is trite to say that this Court is not a Court of appeal for matters from the AAT or the IAA. It is a Court of review.  That is, the Court does not look at what should have been done by the Tribunal or authority or delegate, but what could have been done by the Tribunal or authority or delegate.  The Applicant put it this way in his application:

    … Considering all the circumstances and relevant evidences provided, I am not satisfied with the decision made by AAT.  Therefore, I request to appeal Federal Circuit Court to please re-evaluate the decision…

22. As I say, this Court does not re-evaluate the decision.  This Court looks at whether or not the decision was one that was within the purview of the Tribunal and whether it was a decision that was open to the Tribunal. 

23. Notwithstanding all of the points that the Applicant makes, all of those points were considered by the Tribunal.  It is just that they did not find those matters so compelling as to warrant the Minister not cancelling the visa.  I cannot see how there has been any miscarrying of the discretion of the AAT, nor can I see that there has been any jurisdictional error. 

24. Therefore, because there is no merit in the application itself, I am of the view that this Court ought not to give leave to institute the appeal, notwithstanding that it is only minutes out of time. 

25. Having decided to hear the matter pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth), I refuse the application to extend time. I dismiss all applications made by the Applicants and order that he pay the costs of the Minister fixed in the sum of $7,467.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 May 2019