Saiduzzaman v Minister for Immigration

[2017] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAIDUZZAMAN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 262

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – reinstatement application – applicant’s affidavit makes no disclosure of the true facts for reinstatement – applicant knowingly and voluntarily filed a notice of discontinuance – no proper basis to reinstate the proceedings – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c).

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994, cl.573.223 of Sch 2.

Cases cited:

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280

Applicant: BHUYAN MOHAMMAD SAIDUZZAMAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2775 of 2015

Judgment of: Judge Street

Hearing date: 17 February 2017

Date of Last Submission: 17 February 2017

Delivered at: Sydney

Delivered on: 17 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Shaw
Clayton Utz

ORDERS

1. The application in a case is dismissed.

2. The Applicant pay the costs of the First Respondent on an indemnity basis fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2775 of 2015

BHUYAN MOHAMMAD SAIDUZZAMAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application in a case to reinstate proceedings that were the subject of a notice of discontinuance signed and filed by the applicant on 20 January 2016. The application in a case was filed on 6 January 2017.

2. The substantive proceedings were ones seeking a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal “the Tribunal” made on 15 September 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant applied for the Student (Temporary) (Class TU) visa on 14 March 2014.

The Delegate

1. On 20 May 2014, the delegate refused to grant that visa because the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Migration Regulations 1994, because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The delegate stated that the applicant had completed very few courses and not at a reasonable completion level. The delegate referred to the fact that the applicant has numerous visa cancellations and had not completed any course above the Advanced Diploma level.  The delegate referred to the fact that although the applicant was involved in a Bachelor of Professional Accounting on 17 March 2014, that enrolment was cancelled shortly thereafter.

The Tribunal

1. The applicant applied for review of the delegate’s decision on 9 June 2014. The Tribunal observed that the applicant had been in Australia for some nine years and during that time had had numerous enrolments but had successfully completed very few courses. The Tribunal observed that the applicant claimed he had completed an accounting diploma from UniWorld in 2011 however, the Tribunal noted that no evidence of that was produced to the Tribunal.

2. The Tribunal found that the applicant had made very limited progress in his studies since arrival in Australia some nine years ago, and has not successfully completed a course in Australia since 2011. The Tribunal found that it was not satisfied the applicant intends genuinely to stay in Australia temporarily. The Tribunal found that the applicant did not meet the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations.

Before this Court

1. The application that was filed in this Court for relief in respect of that decision on 12 October 2015 identified a disagreement with the decision but did not articulate or identify any arguable jurisdictional error. These proceedings were the subject of directions made by the Court on 19 November 2015, fixing the matter for hearing on 15 April 2016. Part of those orders required work by the first respondent in relation to the preparation and service of a court book.

2. The applicant gave evidence that he discontinued the present proceedings in circumstances where he made a deliberate decision to pursue an application for a medical visa. That application for a medical visa was unsuccessful. The applicant again challenged that in this Court and those separate proceedings were dismissed on 5 October 2016. The applicant failed to attend and the proceedings were dismissed under r.13.03C(1)(c) of the Federal Court Rules 2001. The applicant sought to have those proceedings reinstated on 31 October 2016 and those proceedings were dismissed on 14 December 2016 by orders of a Judge of the Court following the applicant’s appearance on that day. It was after that hearing that the applicant sought to file the application in a case in the present case.

Consideration of an adjournment application raised at the hearing

1. The applicant applied for an adjournment.  Notice of the adjournment had been given to the solicitor for first respondent the day before. The applicant alleged that he wanted an adjournment in order to obtain a lawyer. The applicant alleged that he was in the process of obtaining funds to assist him obtain a lawyer. This is a case where the applicant has had ample opportunity if he wished to obtain legal representation. 

2. The Court is not satisfied that an adjournment would have been of any utility. The Court is of the view that an adjournment would only have unnecessarily added to the costs of the parties and utilised limited court time. The Court is not satisfied that an adjournment was warranted in the interests of the administration of justice.

Consideration of the reinstatement application

1. The applicant’s affidavit dated 6 January 2017 failed to disclose the true circumstances in relation to his medical visa. The applicant’s affidavit asserted a want of knowledge that the applicant was holding a valid visa and that was the explanation for delay for reinstatement in the affidavit. The affidavit was patently insufficient in explaining the substantial delay that has occurred in the present case. Moreover, the affidavit makes no disclosure of the true facts that the applicant was pursuing a separate application for a medical visa and it was only after that had been unsuccessfully pursued that the application in a case was filed in these proceedings.

2. The principles relating to the reinstatement of proceedings where there has been a notice of discontinuance, having summarised by the learned Perram J in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 at [13] as follows:-

   Four principles may be distilled from the authorities referred to above:

   1. A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.

   2. It may also be set side where its filing was procured by fraud or duress.

   3. There is a jurisdiction to set such a notice aside to avoid substantial injustice.

   4. None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.

3. This is a case where the applicant knowingly and voluntarily filed a notice of discontinuance. In those circumstances, there is no proper basis to reinstate the proceedings.  The applicant suggested that reinstatement was necessary in order to avoid a substantial injustice. Nothing said by the applicant identified any proper basis upon which there could be said to be a substantial injustice. The applicant’s deliberate decision to pursue the other proceedings was of itself be grounds upon which the Court would not entertain favourably the application to reinstate the proceedings. The fact that the applicant failed to disclose in his affidavit those other steps in respect of the issue of delay is entirely unsatisfactory and is a further is a further basis upon which the application in a case should be dismissed.

4. I find the application in a case in the present case by the applicant in substance to be an abuse of process. No ground is made out to reinstate the proceedings.

Conclusion

1. The application in a case is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 February 2017