RAI v Minister for Immigration

[2020] FCCA 2821

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2821

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) (Subclass 572) visas – application for adjournment of the hearing – adjournment refused – leave sought to file and rely upon proposed amended application – leave granted – whether the Tribunal afforded the Applicants a proper opportunity to be heard pursuant to section 353 of the Migration Act 1958 – no jurisdictional error established – application dismissed with costs.  

Legislation:
Migration Act 1958, s. 353

Migration Regulations 1994 Clauses 572.223, 572.225, 573.111
574.111, 5A404, 5A407, 5A408, 5A409

Migration Instrument (IMMI 14/003: Student Visa Assessment Levels) 2014

Cases cited:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114
Myers v Myers [1969] WAR 19
Sali v SPC Ltd & Anor [1993] HCA 47

First Applicant: SHIVA RAI

Second Applicant: KABITA GURUNG

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 449 of 2015

Judgment of: Judge Blake

Hearing date: 1 October 2020

Date of last submission: 1 October 2020

Delivered at: Melbourne

Delivered on: 15 October 2020

REPRESENTATION

Counsel for the Applicants: Mr Naidu

Solicitors for the Applicants: Logans Barristers and Solicitors

Solicitor Advocate for the Respondents: Mr Creedon

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Applicants have leave to file and rely on the Amended Application sent to the chambers of Judge Blake on 1 October 2020.

3. The Amended Application received by the Court on 1 October 2020 be dismissed.

4. The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 449 of 2015

SHIVA RAI

First Applicant

KABITA GURUNG

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal (‘Tribunal’), as it then was, on 6 February 2015.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants Student (Temporary) (Class TU) (Subclass 572) visas (‘visas’).

2. For the reasons that follow, I have decided to dismiss the application for review.

Background

1. The First Applicant is the primary Applicant for the visa (‘Applicant’), and is a citizen of Nepal. The Second Applicant is the First Applicant’s wife. On 17 April 2014, they applied for the visas.

2. On 23 April 2014, a delegate of the First Respondent (‘delegate’) requested further information from the Applicant. The delegate requested that he provide, among other things, evidence of health cover, English language capacity, financial capacity and a certified copy of his personal passport: Court Book 26 - 35.

3. On 20 May 2014, the Applicant responded to the delegate’s request, seeking an extension of time in which to provide the requested documents. Among other things, he explained that he had lost his passport and had applied for a substitute: Court Book 36 - 37.

4. On 10 June 2014, the delegate refused to grant the Applicants the visas. The delegate found that the Applicants did not satisfy, among others,  various requirements contained within Clauses 572.223, 572.225 and Schedule 5A404 of the Migrations Regulations 1994 (‘Regulations’).

5. On 26 June 2014, the Applicants applied to the Tribunal for review of the delegate’s decision.

6. On 9 December 2014, the Applicants were invited to appear before the Tribunal on 6 February 2015: Court Book 64. Among other things, the invitation to appear set out in some detail the documents and information that the Applicants were required to provide.

7. The Applicant appeared before the Tribunal on 6 February 2015. At the conclusion of the hearing, the Tribunal affirmed the decision of the delegate. The Tribunal subsequently prepared and sent to the Applicants a written statement of its reasons.

8. On 6 March 2015, the Applicants filed the present application for judicial review of the Tribunal’s decision before this Court.

9. The matter came before the Court on 10 June 2015, for a Directions hearing before Registrar Allaway. The Applicants did not appear at this hearing and the matter was dismissed for non-appearance.

10. On 24 June 2015, an Application in a Case was filed by the Applicants seeking that the matter be reinstated. The matter came on before Judge McGuire on 1 December 2015. Once again, there was no appearance by the Applicants. The matter was dismissed for non-appearance.

11. Subsequently to the making of these orders, it was determined that the order dismissing the proceedings was void on account of a Registrar of the Court not having the power to dismiss the proceedings: Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114.

12. The matter came back before the Court on 6 November 2019. The Applicants were represented. Judge Riethmuller made the following orders, among others:

    a)The matter be listed for hearing on a date to be advised.

    b)The Applicants file and serve any amended application, affidavits, a supplementary Court Book, if any, and written submissions 28 days prior to the hearing.

13. The matter was then listed for hearing before me on 1 October 2020. The Notice of Listing was sent to the parties on 4 August 2020.

14. On 18 September 2020, the Applicants’ legal representatives filed a notice of withdrawal indicating that they were no longer representing the Applicants. The Applicants subsequently engaged new lawyers and those representatives filed a Notice of Address on 29 September 2020.

15. The Applicants have not filed any material pursuant to the orders of Judge Riethmuller. The Minister has filed a Court Book and written submissions.

The Application for an adjournment

1. The Applicants sought an adjournment of the hearing.  The application for an adjournment was set out in an Application in a Case filed on 30 September 2020, supported by an affidavit from the Applicants’ current representative, sworn 29 September 2020.

2. On the day of the hearing, I refused the adjournment application and indicated that I would provide reasons for doing so in my judgment.  What follows are those reasons.

3. The Applicants sought an adjournment in order to enable them to file material and amended grounds of review. The affidavit of the Applicants’ representative states that the Applicants were referred to his firm on 23 September 2020.  The reasons why the adjournment is sought are set out in paragraph 12 of the representatives affidavit and are as follows:

   ‘12. We require the adjournment for the following reasons:

   (a) We were very recently instructed in the proceeding;

   (b) We are not able to obtain proper instructions from the Applicants without the assistance of a Nepali interpreter;

   (c) Because of present restrictions, we are not able to confer with the Applicants face-to-face;

   (c) The Applicants’ previous solicitors had withdrawn on or about 18 September 2020; and

   (d) We require further time to particularise or clarify the grounds of appeal which the Respondents solicitors have referred to, but cannot do so without further instructions from the Applicants.’

4. The application for adjournment was opposed by the Minister.

5. The Court has a wide discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21. Factors this Court considers include:

   a)ensuring that there is a just resolution of the proceeding for both parties and that an applicant and respondent have the opportunity to advance their case; 

   b)principles of case management and the avoidance of undue delay; and

   c)issues in relation to the need to avoid a waste of public resources.

6. I refused to grant the adjournment for the reasons that follow.

7. The Applicants have known of the need to file material in this case since 6 November 2019, some 10 months ago.  They were represented at the directions hearing on 6 November 2019 before Judge Riethmuller. Despite having the benefit of that time and of representation, no material has been filed. 

8. The Applicants have known of the date of today’s hearing since 4 August 2020, a period of approximately two months.  The listing of the matter for hearing on 4 August 2020 enlivened the directions made by Judge Riethmuller for the filing of material.  The Applicants’ material was due on around 3 September 2020.  The Applicants were represented for the entirety of the period up to 3 September 2020.  Despite that, no material has been filed.

9. No explanation was provided as to why material was not filed in accordance with the directions made by the Court in November 2019. Counsel for the Applicants indicated plainly that he could not speak to what had happened prior to his or his instructor’s engagement.  

10. The events above suggest that the Applicants have sat on their hands. They have had ample opportunity to file material.

11. It is permissible for a Court to take into account case management considerations in assessing whether to grant an adjournment: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; Sali v SPC Ltd & Anor [1993] HCA 47. It is well accepted that this Court is a busy Court with litigants having to suffer long waiting periods before their cases are heard. Adjourning the matter now will delay the hearing of the matter for many months to come. This is a matter that was first filed in the Court in 2015. Moreover, the adjournment application was brought very late. Had the adjournment been granted, Court time and resources would have been wasted with the Court unable to hear another matter. That is an unacceptable outcome in a Court with lists as lengthy as the lists in this Court.

12. Finally, the underlying merit of the Application for review is not strong.  I elaborate on this further below.  It is another reason for not granting the adjournment.

13. For all of the above reasons, the adjournment application was refused.

The Application for Review

The proposed Amended Application and the absence of the Applicants at the hearing

1. Having refused the application for an adjournment, I asked Counsel for the Applicants to address me on the substantive application.  Counsel indicated he was not in a position to do so, and had only come prepared to deal with the adjournment application.  He indicated he needed to take instructions and required more time to address the substantive matter.

2. An exchange between the Bench and the representatives of the parties then occurred.  During that exchange, it emerged that the Applicants’ representatives had prepared and sent to the Minister a proposed Amended Application containing revised grounds of review and had sought consent from the Minister to the filing of that document.  It also emerged that the Applicants were not present in the Court (on the Microsoft Teams conference).

3. I indicated to Counsel for the Applicants that if instructions had been taken sufficient to enable a proposed Amended Application to be prepared and sent to the Minister, then he or his instructor ought to be able to address me on that document. For his part, the Minister’s representative indicated that he would not oppose the Applicants relying on the proposed Amended Application.

4. I then stood the matter down to enable a copy of the proposed Amended Application to be sent to me.  I also instructed the representatives for the Applicants to locate the Applicants and have them attend Court.

5. The matter remained stood down for approximately one hour.  In that time, the Court arranged for a Nepalese interpreter to be present in the Courtroom to hear from the Applicants directly in case that were needed and in case they wanted an opportunity to speak directly, given the position taken by their representatives.  The services of the interpreter were ultimately not required.  The Applicants, despite apparently being contacted by the representatives and asked to attend the hearing, did not appear.

6. On my return to the Bench, Counsel for the Applicants confirmed that he proposed to rely solely on the Amended Application which contained a single ground of review.  Submissions proceeded before me on that basis.

The relevant requirements for the visa

1. The Department, having considered the application for the visa and the course the Applicant was enrolled in (Court Book 11) identified the relevant subclass of the visa as being subclass 572. This had the consequence that the Applicant was required to satisfy the criteria set out in Clause 572.223 of Schedule 2 to the Regulations.

2. Clause 572.223(1) of  Schedule 2 to the Regulations relevantly provided the following criteria to be satisfied:

   ‘(1)  The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)  the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)  the applicant’s circumstances; and

   (ii)  the applicant’s immigration history; and

   (iii)  if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)  any other relevant matter; and

   (b)  the applicant meets the requirements of subclause (2).’

3. Clause 572.223(2) provided, relevantly, as follows:

   ‘(2)  An applicant meets the requirements of this subclause if:

   (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; …’

4. As the Applicants are from Nepal, the assessment level, as contemplated by Clause 572.223(2), was Assessment Level 3: see Legislative Instrument (IMMI 14/003). Accordingly, the Schedule 5A criteria relevant to the Applicant was set out at Division 3 of Part 4 to Schedule 5A to the Regulations and included the English language assessment (Clause 5A407), the financial capacity assessment (Clause 5A408) and other requirements assessment (Clause 5A409) which stipulates the requirement to give evidence about, among other things, completion of year 11 at secondary school and enrolment in a vocational education course.

5. All of the requirements set out above needed to be satisfied in order to obtain the visas.  That all of these requirements need to be satisfied is a matter of some significance given the grounds of review advanced before me.

The Grounds of review

1. The single ground of review contained in the Amended Application is as follows:

   ‘1. The Second Respondent's decision was affected by jurisdictional error because the Second Respondent failed, pursuant to its obligation under s.353 of the Migration Act 1958 to, inter alia, afford the applicant a proper opportunity to be heard:

   Particulars

   i) In reaching its decision, the Second Respondent failed to take into account the material fact that the applicant had lost his passport and the attendant / subsequent impossibility for the applicant to comply with the Second Respondent’s requests or the requirements set for him ;

   ii) The Second Respondent failed to review the applicable regulations and ignored relevant material, namely the applicant’s loss of passport, because it did not take into account “any other relevant matter" pursuant to Clause 573.223(2)(b)(ii) of the Regulations which the Second Respondent was compelled to do.’

2. The ground of review set out above directs attention to the reasons of the Tribunal and, among other things, whether the Tribunal failed to afford the Applicants a proper opportunity to be heard on account of the Applicant losing his passport.

3. The first thing to observe is that the issue of the Applicant’s lost passport was a matter that was raised at the Tribunal.  So much is evident from paragraphs [15]-[19] of the Tribunal’s reasons, which are as follows:

   ‘15. The Tribunal asked him if he has undergone a medical assessment as required. He said he lost his passport on 17 April 2014 and he cannot do the medical without it. He gave the Tribunal a copy of a police report dated 24 April 2014 which he made in regard to the loss of his passport. He also gave the Tribunal a copy of an Australia Post receipt dated 16 May 2014 for a money order made payable to the embassy of Nepal, Canberra, which he said was payment for the replacement passport.

   16. The Tribunal noted that eight months have passed since he lost his passport and asked why he still has not undergone the medical. He said he still has not received a replacement passport and that, in January 2015, his embassy contacted him and said he cannot obtain a replacement passport until he provides his Nepalese identity card.

   17. The applicant said he cannot provide his identity card in order to obtain the replacement passport because he lost that when he lost his passport. He gave the Tribunal a copy of a police report dated 21 January 2015 which he made in regard to the loss of his passport. He said he did not realise that his identity card was also lost in April 2014, with his passport.

   18. He said he asked the Department for an extension of time to provide more evidence. He provided the Tribunal with a copy of a letter which he sent to the Department on 20 May 2014, explaining that due to his mother's health problems, he was unable to provide bank documents at present. That letter also explains about his lost passport and consequent inability to undergo a medical. The letter asks for a "few more days" to provide documents.

   19. The applicant said he did not have evidence with him to show that he successfully completed secondary school to the year 12 level or its equivalent.’

4. When the above paragraphs are considered, the following becomes apparent:

   a)The Applicant stated that he was unable to satisfy the Tribunal about one of the criteria applicable to him (the medical assessment) because he lost his passport: at paragraph [15]. In this respect, I pause to observe that he did not claim that his lost passport prevented him being able to satisfy other relevant criteria that he was required to satisfy under the Regulations;

   b)that as at 20 May 2014, some eight months prior to the Tribunal considering the matter, the Applicant had asked for ‘a few more days’ in order to obtain the necessary documents, including his passport: at paragraph [18]; see also the letter at Court Book 80.

5. The letter referred to at paragraph [18] of the reasons of the Tribunal and contained at Court Book 80 is also relevant for another reason.  The letter confirms the observation I have made at paragraph 45(a) of these reasons above: that is, that the Applicant claimed that the lost passport prevented him only from obtaining the required medical assessment. He did not claim it prevented him from complying with the various other criteria required by the Regulations.

6. It is then necessary to turn to the consideration of evidence and findings made by the Tribunal.  Those findings are set out at paragraphs [30]-[37] of the Tribunal’s reasons. When those findings are looked at, the following emerges:

   a)there was no evidence before the Tribunal that the Applicant was enrolled in, or subject to a current offer of enrolment in, a course of study: at paragraph [31] of the reasons;

   b)there was no evidence that the Applicant was a eligible higher degree student as defined in Clauses 573.111 and 574.111 of the Regulations, or that he was an eligible university exchange student or eligible non award student for the purposes of subclass 575: at paragraph [31] of its reasons;

   c)the Applicant was unable to substantiate his claim to show he had paid tuition fees for enrolment at a college: see paragraph [32] of the reasons;

   d)the Applicant failed to provide evidence to satisfy the financial capacity requirements of Schedule 5A for his assessment level: at paragraph [34] of the reasons;

   e)the Applicant did not provide the Tribunal with evidence to satisfy the ‘other requirements’ of Schedule 5A: see paragraph [35] of the reasons;

   f)there was no evidence that the Applicant met the criteria for other visa subclasses: see paragraph [36] of the reasons.

1. It was for the reasons articulated above that the Tribunal affirmed the decision under review.

2. When the above matters are considered, the following becomes apparent.  First, the Applicant failed to produce evidence he satisfied a number of the criteria he was required to satisfy.  Principal among those criteria was, among other things, evidence of confirmation of enrolment in a course and evidence of capacity to meet the financial requirements of the Regulations.  Second, there is nothing in the material that indicates that the Applicant claimed that his lost passport prevented him from complying with the criteria that the Tribunal ultimately found he was not able to satisfy.  Indeed, the Applicant had indicated in May 2014 that he only needed a few more days to gather the relevant documents, including the financial capacity documents. Third, in reaching its decision, the Tribunal did not identify the Applicant’s failure to produce a medical assessment as being a reason for it affirming the decision.  It is to be remembered that the Applicant claimed only that his passport prevented him from obtaining the medical assessment.  Finally, even if the Tribunal made an error in taking the medical assessment, or lack thereof, into account in reaching its conclusion, it would not have made any difference to the ultimate outcome.  That is because the Applicant failed to satisfy the Tribunal about a number of the other matters which the Regulations required, including confirmation of enrolment, financial capacity requirements and the ‘other requirements’ set out in Schedule 5A.

3. Returning then to the grounds of review, it is apparent that the Tribunal was aware of the Applicant’s lost passport.  The Applicant claimed that the lost passport prevented him from undertaking a medical assessment.  The Tribunal ultimately concluded that the Applicant had failed to satisfy it about a range of other matters required by the Regulations.  There was no claim by the Applicant that his lost passport prevented him from obtaining documents relevant to these other requirements, including the financial capacity documents, confirmation of enrolment, or evidence he satisfied the other requirements in Clause 5A409.  Further, the Applicant’s  failure to produce evidence satisfying the other criteria in Schedule 5A means that even if there has been an error in respect of the Tribunal’s treatment of his missing passport, the Applicant would not have succeeded because there was no evidence he satisfied the other Schedule 5A criteria identified by the Tribunal.

4. Insofar as the Applicants rely on the second particular to the ground of review, that emphasis is misplaced. Clause 573.223 and perhaps more relevantly to the Applicants, Clause 572.223 to the Regulations, set out a number of requirements that, cumulatively, must be satisfied.  One of the requirements within each of the clauses is that the Applicant has met the highest assessment level in Schedule 5A. Whether there was a failure to consider the question of the passport under subclause (2)(b)(ii) of either of the clauses identified in this paragraph would not have made any difference to the ultimate outcome.  This is because the Applicant failed to satisfy, as noted above, other requirements contained within Schedule 5A.

5. For all of the above reasons, the Amended Application must be dismissed.  It is usual that costs follow the event. I will award costs to the Minister in accordance with the scale.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date:         15 October 2020