Kaur v Minister for Immigration and Border Protection
[2017] FCA 985
•21 August 2017
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2017] FCA 985
Appeal from: Kaur & Ors v Minister for Immigration and Border Protection & Anor [2017] FCCA 898 File number(s): VID 421 of 2017 Judge(s): DAVIES J Date of judgment: 21 August 2017 Catchwords: MIGRATION – application for appeal for review of refusal of visa by Minister’s delegate – application for appeal for review of refusal of visa by Administrative Appeals Tribunal – application for appeal to review Administrative Appeals Tribunal’s decision to conduct hearing in absence of applicant where applicant notified – finding that the visa applicant not a genuine temporary entrant for the purpose of study – whether jurisdictional error – application for leave to appeal decision of the Federal Circuit Court of Australia out of time
PROCEDURE – Application for leave to appeal decision of Federal Circuit Court of Australia when out of time – application for appeal to review Administrative Appeals Tribunal’s decision to conduct hearing in absence of applicant where applicant notified
Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Date of hearing: 21 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 7 Counsel for the First Applicant: The First Applicant appeared in person with the assistance of an interpreter Counsel for the Second Applicant: The Second Applicant and the Third Applicant did not appear Counsel for the First
Respondent:
Ms Stone Solicitor for the First
Respondent:
DLA Piper ORDERS
VID 421 of 2017 BETWEEN: BIKRAMJIT KAUR
First Applicant
HARPAL SINGH
Second Applicant
TEVLIN KAUR KHURMI
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
21 AUGUST 2017
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The First Applicant and the Second Applicant pay the First Respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The applicants have applied pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time and leave to appeal from the judgment and orders of the Federal Circuit Court of Australia (“FCC”) dismissing their application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the decision made by a delegate of the first respondent to refuse to grant the first applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). The second and third applicants are the first applicant’s husband and son respectively and dependant on the applicant’s visa.
Leave to appeal is required because the FCC dismissed the application for an order to review under r 44.12 of the Federal Circuit Court of Australia Rules 2001 (Cth). An extension of time in which to make the application for leave to appeal is required because the application for leave to appeal was filed six days out of time. The first applicant has filed an affidavit in which she explained that she appeared for herself at the FCC hearing without any legal assistance and was unaware that there were time constraints on appealing the decision. She deposed that she subsequently sought legal advice and found out that she could appeal to this Court but it is now “slightly out of time”. The explanation for the delay in filing the notice of appeal is far from sufficient, but more particularly the proposed grounds of appeal lack merit and it would accordingly be futile to grant an extension of time for leave to appeal.
The proposed grounds of appeal are as follows:
1.The learned Judge erred in law and/or in fact in failing to find that the decision of the Administrative Appeals Tribunal ("the AAT") was affected by jurisdictional error and/or that the AAT had misapplied the Migration Regulations and/or the Migration Act for the following reasons with regard to the First Applicant's ("the Applicant") intentions to stay in Australia for the purpose of study;
a.The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicant that indicated her study patterns were that of a 'genuine applicant';
b.The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant maters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by law;
c.The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration and weight to the evidence presented by the Applicant;
d.The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims put forth by the Applicant with respect to reasoning behind her stunted progress as a student.
2.The learned Judge erred in law in not giving enough consideration to the fact that the Applicant was legally unrepresented and a foreign national. The Applicant was unable to present her arguments properly due to a lack of understanding of the relevant laws and the court protocol.
3.The AAT, and subsequently the Federal Circuit Court by affirmation of the AAT’s actions, committed jurisdictional error when it failed to give the Applicant a reasonable opportunity to respond to the issues put to her by conducting the AAT hearing in her absence, thereby denying her procedural fairness.
(Errors as in original document)
Ground 1 makes formulaic, broad allegations of error by the Tribunal and/or the FCC. The ground and the subparagraphs are stated at such a level of generality that they are not meaningful in identifying the legal errors that are claimed.
In relation to ground 2, the Court does have a duty to ensure that a person does not suffer a disadvantage from representing him or herself. This includes an obligation to take appropriate steps to ensure that a self-represented litigant has sufficient in about the process for the purpose of ensuring a fair trial. The reasons for decision disclose that the FCC explained to the first applicant (at paragraph [20]) the nature of the judicial review and the necessity to establish legal error and then gave her opportunity to “explain in her own words, referring to each of the grounds of review, why she [believed] that the Tribunal decision was wrong, and [the first applicant] did so”. The reasons also disclose that the first applicant was assisted by an interpreter, given full and proper opportunity to present her case and her arguments were considered. No error is discernible in the FCC’s approach.
Ground 3 alleges an appealable error in relation to the Tribunal’s decision – and the FCC’s affirmation of the Tribunal’s decision – not to grant an adjournment of the Tribunal hearing. Whether or not to adjourn the hearing called for the exercise of a discretion and the Tribunal made its decision to refuse the adjournment based on the inadequacy of the medical evidence presented by the first applicant, having put the first applicant on notice that the medical certificate was inadequate and offering for the applicants to attend at the hearing via telephone conferencing. The first applicant did not contact the Tribunal nor answer her phone when a Tribunal officer called her. The FCC found no legal error in the exercise of the discretion and no discernible error is shown in the reasoning of the FCC. The particulars to ground 3 also include a claim that the Tribunal’s discretion miscarried by not recognising that the first applicant’s migration agent also did not attend the hearing and that she was likely being misguided by him. On the face of the grounds of review extracted in the FCC decision (at paragraph [20]), this particular is a new ground supporting a claim of denial of procedural fairness. The FCC cannot be found to have erred in law for failing to find a denial of procedural fairness on the basis of a ground that was not advanced. In any event, there is nothing in the material to indicate that the first applicant’s non‑appearance was as a result of acting on advice from her migration agent.
Accordingly I am not satisfied that the proposed appeal has sufficient prospects to warrant grant of leave to appeal being granted, and the application must be dismissed.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 25 August 2017
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