MEHOOD v Minister for Immigration

[2015] FCCA 454

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHOOD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 454

Catchwords:
MIGRATION – Student (Temporary) (class TU) visa – procedural fairness – No jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – application summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999
Federal Circuit Court Rules 2001
Migration Act 1958

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: MUHAMMAD USMAN MEHOOD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 280 of 2015

Judgment of: Judge Street

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Ms Griffin

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $750.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 280 of 2015

MUHAMMAD USMAN MEHOOD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal, delivered on 9 January 2015, affirming a decision of the delegate to cancel a Student (Temporary) (class TU) visa.  The grounds of the application are as follows:

   1 The Tribunal made a procedural error by not taking into account the evidence provided.

   Particulars

   The applicant states his student visa was cancelled for breaching condition 8202 of Schedule 8 of the Migration Regulations because he was not enrolled in a registered course of study since March 2014. The applicant presented reasons and circumstances that prevented him from enrolment in a registered course and requested the Department of Immigration not to exercise the discretion to cancel his visa. The applicant states that his brother was kidnapped on 8 March 2014 and released on 29 August 2014. The applicant states that due his kidnapping he requested his then education provider to refund his course fees. This money way required in Pakistan to secure the release of his brother. During this time applicant decided to return to Pakistan but his family members were against his arrival, due to the threats faced by the family. The applicant states these were real facts and circumstances relating to his case which the Department and subsequently the Tribunal chose not to accept. The applicant submits he was actively looking for courses to be enrolled but could not find any postgraduate courses. He states he came to Australia mainly to do postgraduate studies as he already has an undergraduate degree in business administration. The applicant states that currently he has financial capacity to enrol in a registered course and have received positive confirmation from Queensland International Business Academy to follow Diploma in Business Management.

   2. The applicant was not afforded natural justice

   Particulars

   The applicant believes that he was not afforded a fair nearing. The Member’s judgment was clouded by his own pre-conceived beliefs and as such the applicant was not afforded Natural Justice. Such pre-conceived views are displayed by the Member where evidence is simply regarded as not acceptably or further time was not granted to provide the applicant to show he genuinely wanted to pursue his studies in Australia. The applicant states he has and education provider who is willing to grant him a COE and that he now has financial capacity to complete his studies.

2. At the commencement of the hearing of this matter, which was listed for hearing in circumstances where the parties were notified that they should attend the hearing and that the Court may hear and determine all interlocutory or final issues or may give directions as to the future conduct of the proceedings.  The Court raised with the applicant that the grounds appeared doomed to failure and did not identify any jurisdictional error.

3. The applicant identified that he sought further time to adduce further material and the Court indicated that unless there was some utility in doing so, it is not inclined to grant any further adjournment as the matter is listed and the Court is capable of dealing with it today unless persuaded that the proceedings are not doomed to failure.  The applicant did not identify any further bases upon which the application would appear to have any reasonable prospect of success. 

4. In assessing the power under s.17A Federal Circuit Court Act 1999 and r.13.10 Federal Circuit Court Rules 2001, I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118:

   24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in FanCourt v Mercantile Credits Ltd said[48]:

   "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

   More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:

   "Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

   There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

   25. S.31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the Court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

   …

   59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

   60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

5. In this case, the Tribunal identified that the applicant was a national of Pakistan and entered Australia as the holder of a visa on 22 February 2014, which was subject to a condition 8202.  The Tribunal noted that on 20 October 2014, the applicant was issued with a notice of intention to consider cancellation because the delegate considered that the applicant did not comply with condition 8202 of the visa as he ceased to be enrolled in a registered course in March of 2014. 

6. The Tribunal noted that the applicant provided a response to the NOIC on 19 November 2014 and on 20 November 2014, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202.  The applicant sought a review of the delegate’s decision on 28 November 2014 and appeared before the Tribunal on 9 January 2015 to give evidence and present arguments. 

7. The Tribunal noted:

   5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

8. The Tribunal set out the relevant requirements of condition 8202 and identified compliance with the statutory requirement in terms of the invitation to appear for the hearing on 9 January 2015. 

9. The Tribunal noted that the applicant provided the Tribunal with a medical certificate that he was unfit and suffering from depression. The Tribunal expressed the reasons for its concern about that certificate in considerable detail. The Tribunal did not accept the information in the medical report and did not accept the applicant was incapacitated or incapable of meaningfully participating at the hearing.  At the commencement of the hearing before the Tribunal, the applicant expressed his agreement to participate in the hearing. 

10. The Tribunal considered whether there was compliance with condition 8202 and the Tribunal found:

    13. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student. The Tribunal is not satisfied that he meets condition 8202(2)(b). Condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.

    14. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was last enrolled in a registered course on 3 March 2014. The applicant confirmed this in his oral evidence to the Tribunal. The Tribunal finds on the basis of this evidence that the applicant ceased to be enrolled in a registered course in March 2014. The Tribunal finds that he breached condition 8202 of his visa.

11. Having found that the applicant did not comply with the condition, the Tribunal turned to consider whether it should exercise a discretion to cancel the visa and set out in detail the considerations taken into account by the Tribunal in that regard. 

12. Materially, the Tribunal found in para. 30:

    30. For all these reasons, the Tribunal has formed the view that the applicant is not a genuine student and that he never intended to undertake any study in Australia. The Tribunal of the view that the applicant had fabricated his claims regarding the kidnapping of his brother to explain the fact that he never engaged in any study in Australia. The Tribunal is of the view that he did not engage in studies for reasons other than those the applicant presented to the delegate and the Tribunal. The Tribunal does not accept that the applicant’s brother had been kidnapped. The Tribunal does not accept that the applicant was forced to withdraw the funds to pay a ransom for his brother. The Tribunal is not convinced that the applicant was incapable of maintaining enrolment or deferring his study. The Tribunal has formed the view that the applicant never had a genuine intention of undertaking study in Australia. The Tribunal finds that within a very short time of entering Australia the applicant returned the money to his family because he never planned to use these funds for his study and he chose to remain in Australia for reasons other than studying. The fact that the applicant had not completed a single day of studies since entering Australia nearly one year ago is a strong indication, in the Tribunal‘s view, that the applicant is not a genuine student.

13. The Tribunal continued:

    31. The Tribunal is also mindful that in his response to the NOICC the applicant stated that he was making arrangements to resume his studies. He has not provided any evidence of having resumed his studies since then. The applicant provided to the Tribunal copies of his communications with various providers and he claims that he could not get admission because his visa was cancelled and he had the case before the Tribunal or because he did not have the IELTS results. However, the communication the applicant presented to the Tribunal is dated December 2014 and although the applicant claims he approached other institutions earlier, he has not presented any evidence of that. The Tribunal is not convinced that the applicant made any effort to resume studies before December 2014. The applicant also provided a letter of offer and acceptance dated 8 January 2015. In the Tribunal’s view, if the applicant was able to arrange an offer of enrolment a day before the hearing, despite having no valid student visa, he could have done so earlier, if he genuinely wished to study. The Tribunal also notes that the applicant arranged to do the IELTS test in late January 2015. Again, if the applicant believed that having IELTS results was a prerequisite for his engagement in studies, he would have made arrangements to undertake the test before the end of January. The Tribunal has formed the view that the sole reason the applicant arranged to do the IELTS test and arranged an offer of enrolment was for the purpose of presenting evidence to the Tribunal, rather than because he has any genuine intention of undertaking study in Australia.

14. In para.35, the Tribunal noted that it had considered the applicant’s circumstances and found the applicant breached the condition and found the breach to be significant because the enrolment is central to the purpose of a student visa, and also because of the length of time the applicant had not maintained enrolment, the Tribunal rejected the applicant’s claims about the reason he was not enrolled. 

15. The Tribunal formed the view that the applicant was not a genuine student and that he never had any intention of undertaking study in Australia.  The Tribunal found the breach did not occur in circumstances beyond the applicant’s control and found there was no extenuating or compassionate circumstance in this case.  The Tribunal was not satisfied that the applicant made adequate effort to engage in studies while in Australia and the Tribunal was not convinced that he will pursue study in the future. 

16. The Tribunal has formed the view that no hardship will be caused by cancellation.  It will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations and for those reasons, the Tribunal affirmed the decision not to grant the applicant’s Student (Temporary) (class TU) visa . 

17. There is no substance in relation to ground 1 of the application in that it’s clear that the Tribunal carefully addressed the evidence and claims of the applicant and made findings of credit in relation to the applicant in that regard.  Those findings were open on the evidence before the Tribunal. 

18. To the extent that it was suggested that the applicant was not afforded a fair hearing, it’s clear that the applicant was given a hearing date, attended, and was able to respond.  There is nothing in the reasons that suggests that there is any prospect of the alleged ground of denial of natural justice succeeding.

19. To the extent that it is suggested that the Tribunal may have brought preconceived beliefs and to some extent had predetermined the matter, I am satisfied that the Tribunal brought an independent and impartial mind to the determination of the review and was not affected by any preconceived determination. There is no substance in any suggestion of bias. 

20. The Tribunal from its reasons carefully evaluated the claims of the applicant and it was open on the material before the Tribunal to come to the findings it did in relation to the genuineness or lack thereof of the applicant.  In essence, the second ground seeks to engage in an impermissible challenge to the findings that were open to the Tribunal. 

21. In these circumstances, the Court is satisfied that the proceedings have no reasonable prospect of success. Further, the Court is satisfied that there is no utility in granting any adjournment in the circumstances of this case and that it accords with the dictates of r.1.03 Federal Circuit Court Rules 2001.

22. In these circumstances, having carefully considered the matter the Court is satisfied that this is an appropriate case for the exercise of the Court’s jurisdiction under s.17A of the Federal Circuit Court Act 1999 and r.13.10 Federal Circuit Court Rules 2001, and the application is summarily dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2015