Kaur v Minister for Home Affairs
[2018] FCA 1834
•21 November 2018
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Home Affairs [2018] FCA 1834
Appeal from: Application for leave to appeal from Kaur & Anor v Minister for Immigration & Anor [2018] FCCA 1671 File number: SAD 164 of 2018 Judge: MOSHINSKY J Date of judgment: 21 November 2018 Legislation: Migration Act 1958 (Cth), s 499
Migration Regulations 1994 (Cth), Sch 2, cls 572.222, 572.223
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 21 November 2018 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 26 Counsel for the First and Second Applicants: The First Applicant appeared in person on behalf of the First and Second Applicants Solicitor for the First Respondent: Ms NA Milutinovic of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
SAD 164 of 2018 BETWEEN: MANPREET KAUR
First Applicant
JAPJI DHILLON
Second Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
21 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The notice of appeal be treated as if it were an application for leave to appeal from the orders of the Federal Circuit Court of Australia.
2.The application for leave to appeal be dismissed.
3.The applicants pay the first respondent’s costs of the proceeding in this Court, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
4.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
5.In the absence of any agreement, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).
6.Within a further 14 days, the applicants file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
7.In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
A notice of appeal has been filed in this Court in respect of orders of the Federal Circuit Court of Australia. However, as discussed later in these reasons, the orders of the Federal Circuit Court were interlocutory. Accordingly, leave to appeal is required. I propose to treat the notice of appeal as an application for leave to appeal. The first respondent (the Minister) did not oppose this course. I will therefore refer to the appellants as the “applicants”. The second applicant in this proceeding is the daughter of the first applicant.
The background to the matter is as follows.
On 16 July 2014, the first applicant, a citizen of India, applied for a Student (Temporary) (Class TU) visa (student visa). Her spouse and two children were secondary applicants for the visa.
On 7 November 2014, a delegate of the Minister refused the first applicant’s application for a student visa.
The applicants sought review of that decision by the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the decision of the delegate. The applicants applied to the Federal Circuit Court for review of that decision. The Federal Circuit Court made orders by consent quashing the decision of the Tribunal, and remitting the matter for reconsideration.
The matter was then considered again by the Tribunal. The Tribunal wrote to the first applicant requesting certain documents in advance of the hearing, and certain documents were provided. The first applicant attended a hearing on 6 December 2016 and gave evidence.
On the same day, 6 December 2016, the Tribunal decided to affirm the decision of the delegate, refusing the application for a student visa. The Tribunal found that the first applicant failed to meet two mandatory criteria for the grant of such a visa, namely: the requirement in cl 572.222 of Sch 2 to the Migration Regulations 1994 (Cth) (and equivalent clauses in relation to other potentially applicable subclasses of visa) that the applicant have a certificate of enrolment as described in that clause; and the requirement in cl 572.223 (and equivalent clauses in relation to other potentially applicable subclasses) that the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because (among other things) “the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily”, having regard to certain matters as set out in the clause.
The Tribunal considered the first of these criteria at [10]-[24] of its decision. The Tribunal noted, at [11], that at the hearing the first applicant gave evidence that she had not studied any course since March 2014 and that the two courses originally proposed in her visa application (namely, a diploma of business and an advanced diploma of business) had not been completed and the certificates of enrolment for those courses had been cancelled. The first applicant also gave evidence that she held a bridging visa A and acknowledged that the visa did not prevent her from studying. The first applicant cited personal and other problems as reasons why she had not studied any course in more than two years. The Tribunal found, at [23], that the first applicant did not meet cl 572.222 and its equivalents in relation to other potentially applicable subclasses. The first applicant therefore did not meet a mandatory criterion for the visa. This was a sufficient basis to refuse the visa.
The Tribunal then went on to consider another requirement for the visa, namely cl 572.223. In considering this requirement, the Tribunal noted that it was required to have regard to Direction No 53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s 499 of the Migration Act 1958 (Cth).
The Tribunal made findings in relation to this criterion at [30]-[49] of its decision. After referring to the first applicant’s evidence, and her circumstances and immigration history, the Tribunal found, at [44], that it was not satisfied that the first applicant intended genuinely to stay in Australia temporarily. Accordingly, the first applicant did not meet cl 572.223 and its equivalents in relation to other potentially applicable subclasses. This was a separate and sufficient reason to affirm the decision not to grant the visa.
The applicants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The applicants were self-represented. The application for judicial review contained two grounds:
1.I am a genuine student in Australia and I should be granted a student visa to continue with my study;
2.Immigration Department and Tribunal did not apply the regulations, policies and Ministerial Direction No.53 correctly.
The proceeding was set down for hearing on 1 February 2018. The first applicant was on notice of the hearing date having been present at a directions hearing when the matter was listed and by receipt of a letter from the Minister’s representatives confirming the hearing date.
The first applicant did not appear at the hearing on 1 February 2018 and the proceeding was dismissed in default of appearance.
Subsequently, the applicants filed an application in a case seeking reinstatement of the proceeding. This application was heard on 18 June 2018.
On 26 June 2018, the applicants’ application for reinstatement was dismissed by the primary judge.
The primary judge outlined the background to the proceeding including the decision of the Tribunal and the history of the proceeding in the Federal Circuit Court. The primary judge set out the applicable principles concerning an application for reinstatement at [30]-[39] of the reasons.
The primary judge considered the application for reinstatement at [40]-[55]. His Honour stated, at [40], that in his view the first applicant’s explanation for failing to attend Court on 1 February 2018 was inadequate. His Honour stated, at [43], that although it was difficult not to be sympathetic so far as the first applicant’s personal circumstances were concerned, he did not consider that they constituted extenuating circumstances that explained her failure to attend Court.
The primary judge also considered the merits of the applicants’ application for judicial review. His Honour noted that the application for judicial review was not particularised and considered it to be no more than “an inchoate plea for merits review, which the court is unable to entertain” (at [41]). The primary judge stated, at [44], that the reasons of the Tribunal indicated that it fully considered whether the first applicant had satisfied the two relevant criteria. In the primary judge’s view, the findings of the Tribunal in relation to the two criteria were “clearly open to the [Tribunal] on the evidence available to it” (at [45]). In relation to the ground concerning Direction No 53, the primary judge stated that the first applicant had not provided any particulars in support of the contention (at [46]).
The primary judge referred to the Tribunal’s findings and stated that the findings were reasonably and logically open to the Tribunal (at [49]).
In all the circumstances, the primary judge concluded that the Court should not exercise its discretion to reinstate the applicants’ application for judicial review (at [51]).
The orders of the primary judge dismissing the application for reinstatement were interlocutory. It follows that the applicants require leave to appeal from those orders.
The principles relating to an application for leave to appeal are well established. Whether leave to appeal should be granted involves the following considerations: whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
The applicants’ notice of appeal (which, as indicated earlier, I am treating as an application for leave to appeal) contains three grounds as follows:
1. I am the Applicant and I am authorised to make this affidavit
2. There is jurisdictional error in judgment of Tribunal
3.Federal Circuit Court’s Judge refused my application and found no Jurisdictional error in decision of Administrative Appeals Tribunals Decision. Department and Tribunal failed to apply the regulations, Policies and Ministeiral Direction No 53 correctly in my case. I am a genuine student. Tribunal used its power in wrong way and did not give weight on the fact that its hard to get COE for students whose visa have been refused.
(Errors in original.)
At the hearing today, the first applicant made oral submissions. These referred generally to her personal circumstances. They did not identify any error in the decision of the primary judge.
I am not satisfied that the decision at first instance (ie, the decision of the primary judge) is attended with sufficient doubt to warrant its reconsideration on appeal. The primary judge correctly stated the applicable principles concerning an application for reinstatement. There does not appear to be any error in the way that he applied those principles to the facts and circumstances of the present case. In particular, insofar as the primary judge considered whether the applicants’ application for judicial review had merit, I see no error in the primary judge’s reasoning, as summarised earlier. The proposed grounds set out above do not suggest any error by the primary judge.
It follows that the application for leave to appeal is to be dismissed. There is no reason why costs should not follow the event. Accordingly, I will order that the applicants pay the costs of the first respondent, to be fixed by way of a lump sum.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 27 November 2018
0
2
2