Jani v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 448

FEDERAL COURT OF AUSTRALIA

Jani v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 448

IMMIGRATION - PRACTICE AND PROCEDURE - appeal from Federal Magistrates’ Court - leave to appeal required - cancellation of Student (Temporary) (Class TU) visa -  applicant citizen of India - failure to file Notice of Appeal within time -  meaning in O 52 r 15(1)(a)(i) Federal Court Rules - reception of further evidence by an appeal court generally requires two conditions - decision made with incomplete information - appeal dismissed.

Statutes

Migration Act 1956 (Cth) ss 116(1)(b), 116(3)

Cases

Hong Ye v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 153 ALR 327 Followed

Jess v Scott (1986) 12 FCR 187 Cited

JANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL

QUD 358 OF 2005

KIEFEL J
BRISBANE

27 APRIL 2006

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 358 OF 2005

BETWEEN:

POOJA MADHUSUDAN JANI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

27 APRIL 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application for leave to bring an appeal from the decision of Baumann FM of 23 August 2005 is dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 358 OF 2005

BETWEEN:

POOJA MADHUSUDAN JANI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	KIEFEL J
DATE:	27 APRIL 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant is required to obtain the Court’s leave to bring an appeal from the decision of Baumann FM pronounced on 23 August 2005.  The applicant did not file and serve a Notice of Appeal within twenty-one (21) days after that date, as O 52 r 15(1)(a)(i) of the Federal Court Rules requires.  No other date was fixed by the Federal Magistrates Court:  O 52 r 15(1)(a)(iii) and she did not apply within the period of twenty-one days to extend time:  O 52 r 15(1)(b).  Order 52 r 15(2) requires the applicant to show that there are ‘special reasons’ why leave should be granted.

2. The applicant is a citizen of India and entered Australia on a student visa.  She was the holder of a Student (Temporary) (Class TU) visa, subclass 573.  The visa was subject to condition 8202.  The applicant was issued with a Notice of Intention to Consider Cancellation of her visa on 24 March 2004.  She provided submissions in response.  The Minister’s delegate cancelled her visa on 10 May 2004 for the reason that she had breached the condition.

3. At the relevant time the condition (Schedule 8, item 8202(1) to the Regulations to the Migration Act 1956 (Cth)) required that subclaims (2) and (3) of the condition be met by the visa holder.  Subclause (2) required the applicant to be enrolled in a registered course.  Subclause (3) required a minimum attendance at the course.  Section 116(1)(b) of the Act provides that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa.  Section 116(3) requires the Minister to do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2)(b) provides that, for the purposes of s 116(3) of the Act, the circumstances in which the Minister must cancel a visa of the kind here relevant, includes the circumstance that the Minister is satisfied that the visa holder has not complied with Condition 8202.

4. The Minister’s delegate cancelled the applicant’s visa on 10 May 2004 after issuing a Notice of Intention to Consider Cancellation and receiving the applicant’s response to it.  The delegate found that the applicant had not been enrolled in a registered study course since 23 December 2003.

5. In her application for review by the Migration Review Tribunal, the applicant claimed that the delegate had had ‘incomplete information’ and that she and the relevant department (DIMIA) was misled by the University.

6. The applicant was represented by a migration agent before the Tribunal.  Griffith University had advised DIMIA that the applicant had been enrolled in a course with it between July to November 2003 but had withdrawn from the course in December 2003.  She had an attendance rate of 72.25 per cent.  The University withdrew her from the program on 23 December 2003 (some reference in the reasons to December 2004 are in error). 

7. The Tribunal recorded that the applicant acknowledged that she had not been enrolled in a registered course since December 2003.  The applicant had told the delegate that she had been enrolled in another registered course with a college, the Australian College of Natural Medicine (the ‘ACNM’) which commenced in July 2004.  Upon enquiry the delegate was told by the college that the applicant had been offered a place in the course commencing in March 2004 and again in August 2004 but she had had no further contact with the college and had not taken up the offer.  The applicant confirmed this fact with the Tribunal. 

8. Her agent later advised the Tribunal that she had been under a misapprehension that she would be able to recommence her studies with Griffith University.  It would appear that the University’s refusal to permit this led to a dispute between it and the applicant and allegations by the applicant against a staff member.

9. Following the hearing, the applicant’s agent provided a letter from a hospital relating to her anxiety and depression.  The applicant had said that this contributed to her non-attendance at the University.  The Tribunal noted that the letter related to a time after the visa was cancelled.

10. The Tribunal found, on the evidence before it, that at the time of the visa cancellation, the applicant was not enrolled in a registered study course.  The applicant had chances to be enrolled elsewhere, including the ACNM, but did not do so.  It followed that she had failed to be enrolled in a registered study course and had breached condition 8202.  That was a prescribed circumstance and the Migration Act directed that the visa be cancelled.  It affirmed the delegate’s decision.

11. The application to review this decision came before his Honour on 23 August 2005.  The applicant did not appear.  His Honour considered the material that the applicant had filed and did not dismiss the matter summarily.  His Honour was of the view that no jurisdictional error, on the part of the Tribunal, had been identified by the applicant, as was required.  The application was dismissed with costs fixed at $7,000.

12. In her proposed Notice of Appeal, the applicant says that the decision was made with ‘incomplete information’.  In her affidavit of 20 October 2005, filed in support of her application for an extension of time, and her solicitor’s response to a request for particulars in May 2005, reference is made to the applicant having been enrolled in another course at Yeronga TAFE at the time the visa was cancelled.  It may be that this is the other course referred to in the Notice of Intention to Consider Cancellation and which was the subject of report by the University, although this fact did not form the basis for the delegate’s decision or the Tribunal’s, no doubt because the applicant had not referred to it.

13. The respondents concede that the course in which the applicant was enrolled at the Yeronga TAFE, was a registered course.  If regard is had to this further evidence of the applicant the respondents also have evidence, from the TAFE, that the applicant was enrolled in the course in February 2004 but did not ever attend.  As a result she was withdrawn from the course on 4 May 2004.  The applicant does not dispute this evidence.  It follows from it that the applicant was not enrolled in a registered course at the date her visa was cancelled, 10 May 2004.

14. On the hearing of the appeal, the applicant sought to tender a reference by the person with whom she had dealt at Griffith University and about whom she complained to the Tribunal.  That person recommends that the applicant be given another chance to undertake studies.  The recommendation assumes that the Court has a discretion to grant the applicant relief with respect to the cancellation of her visa which it does not have.

15. There is not a lengthy period of time between his Honour’s decision and the applicant’s attempt to bring her appeal.  Nevertheless, she must show something to justify leave being granted and a departure from the ordinary rule prescribing when an appeal must be filed and served:  Jess v Scott (1986) 12 FCR 187 at 195. The applicant offers no explanation for the delay. She says that she believed her solicitor was attending to the matter, but there is no evidence as to the solicitor’s involvement. The respondent submits that leave should not be granted because an appeal has no prospects of success, even if regard is had to the additional evidence upon which the applicant seeks to rely.

16. Generally speaking, the reception of further evidence by an appeal court requires two conditions to be satisfied:  (a) it is reasonably clear, had the evidence had been available at the trial that the opposite result would have been produced;  and (b) reasonable diligence was exercised to procure the evidence:  Hong Ye v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 153 ALR 327, 329.

17. It does not appear to me that the applicant satisfies either requirement.  The particulars of her enrolment at the Yeronga TAFE were available and were not put before any decision-maker.  In any event the applicant cannot show that the result would have been different.   The Tribunal’s conclusion, that she was not enrolled in a registered course at the time the delegate cancelled her visa, is correct.  The fact that she had been enrolled in another course for a period prior to 10 May 2004 does not alter that fact.  Cancellation of her visa was the only option open.

18. The applicant has no prospects of success on the appeal.  It is not necessary to consider the further contention put forward by the respondents, that her level of attendance also amounted to a breach of a prescribed condition and a further basis for cancellation.

19. The application for leave to appeal will be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             27 April 2006

For the Applicant:	In Person
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 March 2006
Date of Judgment:	27 April 2006