Imtiaz v Minister for Immigration

[2018] FCCA 3642

FEDERAL CIRCUIT COURT OF AUSTRALIA

IMTIAZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3642

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

Legislation:

Migration Act 1958 (Cth), s.357A

First Applicant: MARYAM IMTIAZ

Second Applicant: ADNAN AFZAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 549 of 2016

Judgment of: Judge Vasta

Hearing date: 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Perth

Delivered on: 30 November 2018

REPRESENTATION

Solicitors for the Applicants: Fourlion Legal Pty Ltd

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application for adjournment of these proceedings brought by the Applicants’ is refused.

2. That the Application filed 31 October 2016 is dismissed.

3. That the Applicants’ pay the cost sf the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 549 of 2016

MARYAM IMTIAZ

First Applicant

ADNAN AFZAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Adjournment Application

1. On 31 October 2016 the Applicant, Maryam Imtiaz, filed an application in this Court seeking a review of a decision of the Administrative Appeals Tribunal (“the AAT”). The AAT, on 18 October 2016, had affirmed a decision of the delegate that was under review. The Applicant and the Second Applicant appeared before Registrar Stanley on 14 December 2016.

2. The Registrar made the standard orders as to the filing of material and, because of the significant delay that was in Perth, listed the matter for hearing on 23 November 2018. That gave the Applicants then 23 months to have their matter ready. They did not comply with any of the directions for the filing of any material. On 10 August 2018, in Chambers, I changed the date of the hearing from 23 November 2018 to 30 November 2018.

3. At 2.29 pm yesterday, 29 November 2018, the Applicant filed an affidavit in which she says the following:

   3. I have Ms Sam Hemachandra of FourLion Legal (my solicitor) to represent me in relation to these proceedings seeking a review of the Second Respondent’s decision dated 18 October 2016.

   4. I have been informed by my solicitor and believe that:

   (a)she is unable to represent me until such time as she is able to form an opinion as to whether my application has reasonable prospects of success;  and

   (b) in order to make an assessment of whether my application has reasonable prospects of success, my solicitors need to review the Freedom of Information (FOI) documents held by both the Department of Home Affairs (DOHA) and the Second Respondent. 

4. That second part does not make any sense to me because there has been no contact between the solicitor and the Minister’s office to find out whether or not those documents were in the Minister’s possession and could easily have been given straight to the solicitor acting for the Applicant.  It seems that, according to the affidavit, those FOI documents have yet to be fully received and the solicitor would require at least four weeks to review the documents and provide advice on prospects. 

5. The Applicant says:

   12. It may appear I had delayed seeking legal advice, but I have little understanding of the Australian legal system. 

   13. My husband first approached my solicitor on 17 October 2018, believing it would be sufficient time for a lawyer to prepare for and attend a hearing on 30 November 2018, which at that time was more than six weeks away.  It was not until my husband met my solicitor it was explained to me she would need FOI documents to be in a position to represent us. 

   14. I am informed by my solicitor and believe she has limited availability in December 2018 and she is overseas from 22 December 2018 until 24 January 2018 but will be returning to work at the beginning of February 2019…

6. That is the evidence that would be relied upon to ask for the adjournment.  Ms Hemachandra has appeared today arguing that the Court ought grant such an adjournment.  She claims that the Applicants have had financial difficulty and that they have only just put sufficient funds into the account to enable Ms Hemachandra to act.  Unfortunately, none of that is in the affidavit of the Applicant that was filed in this Court yesterday.

7. When one has a look at the actual decision of the Tribunal, it is not a particularly complicated matter.  It is a question of whether exceptional circumstances existed so that the Tribunal could waive the requirement for the Applicant to make her application offshore.  The Tribunal found that those exceptional circumstances did not exist.  Such a matter would be an extremely simple one to figure out whether or not there was any jurisdictional error.  There has been no explanation as to why it took so long for the Applicant to go and see a lawyer. 

8. There has been no explanation as to what it is that these FOI documents are supposed to find out.  There has been no, even, thought, considering that the Applicant says in the affidavit that it was six weeks ago that they first came to see their lawyer, as to what real prospects this matter has.  The fact that this matter has been set down for nearly two years is a terrible indictment upon the way that this system has been overstretched. 

9. But for someone such as the Applicant to come here and try and take advantage of that and put the blame on the system saying, “Well, I didn’t think I had to do anything till about six weeks beforehand” really is the height of cynicism.  In my view there has been no good cause shown as to why the matter should be adjourned. 

10. I refuse the adjournment.  We will now carry on with the hearing. 

Substantive Hearing

1. On 31 October 2016, the Applicants filed, in this Court, an originating application seeking a judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”) that itself had affirmed decisions previously made by the Department.  There was one ground in that application which read as this:

   1. I would like to request that AAT decision contained Jurisdictional Error in that it did not offer us natural justice. The telephone hearing was difficult for me to argue and present my supportive arguments. I also would request the copy of hearing according new immigration laws my visa application should not later be refused if Immigration considered our exceptional circumstances we provided to the case officer. 

2. That ground is a claim that there was a denial of natural justice.  The concept of natural justice at common law does not apply in migration matters because the legislature has codified the principles of natural justice. 

3. With regard to these applications, s.357A of the Migration Act 1958 (Cth) (“the Act”) is an exhaustive statement of the natural justice requirements for review of part 5 reviewable decisions. The Applicant, on the evidence before me, was validly invited to give evidence and present arguments at a hearing on 11 October 2016 in compliance with the Act. She did this.

4. The Tribunal had earlier put her on notice, in the invitation hearing, that the hearing was going to be conducted in Melbourne and that she would have arrangements made to appear by telephone. It was noted that if she wished to attend the hearing in person that she should contact the Tribunal as soon as possible. She did nothing of the sort. The matter then went to hearing and there was nothing contrary to the principles in s.357A in the manner in which the Applicant appeared before the Tribunal.

5. The Applicant, in the rest of the ground, is simply asking this Court to undertake an impermissible merits review.  There has been no jurisdictional error that has been shown. 

6. The solicitor who has appeared here today, who had asked for an adjournment, has not been able to tell me that there is any jurisdictional error.  She said that she hasn’t turned her mind to that because she is waiting for Freedom of Information documents.  It is totally unclear what those Freedom of Information documents could, in any way, reveal. 

7. This was a matter where the Applicant must apply for the visa offshore, that is, outside of Australia and in her case that would have to be in Pakistan.  That must happen unless the Minister, or the Tribunal, waives that requirement because of exceptional circumstances. 

8. The Applicant gave her circumstances as really being that there would be a cost to her and interruption to her studies and general disturbance with her life.  The Tribunal did not consider that to be exceptional circumstances.  That conclusion was well and truly open on the evidence. 

9. It is very difficult to see what other material could have been obtained to in any way demonstrate jurisdictional error. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  9 January 2019