Sandeep v Minister for Immigration & Anor
[2016] FCCA 3339
•23 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDEEP v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3339 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – consideration of factors including prior litigation history, failure to comply with Court orders, further delay, case management and merits of judicial review application. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 Migration Act 1958 (Cth), ss.116, 119, 476 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No. 3) [2013] FMCA 165 |
| Applicant: | SANDEEP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 433 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 14 December 2016 |
| Date of Last Submission: | 14 December 2016 |
| Delivered at: | Perth |
| Delivered on: | 23 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Sklarz |
| Solicitors for the Applicant: | Sklarz Lawyers |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made on 14 December 2016)
The application be dismissed pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs in the sum of $5800 by 14 February 2017.
Written reasons for judgment be published electronically from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 433 of 2015
| SANDEEP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 21 September 2015 Mr Sandeep filed an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 26 August 2015, to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to cancel Mr Sandeep’s Subclass 573 Higher Education Sector visa (“Higher Education Visa”) A copy of the Tribunal Decision is at Court Book (“CB”) 101-104.
Orders made
On 14 December 2016 the Court made orders as follows:
1.The application be dismissed pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
2.The applicant pay the first respondent’s costs in the sum of $5800 by 14 February 2017.
3.Written reasons for judgment be published electronically from Chambers at a later date.
The following are the Reasons for Judgment referred to in order 3 above.
Background and procedural history up to and including adjournment application
The background to the Judicial Review Application is as follows:
a)Mr Sandeep was granted the Higher Education Visa on 7 January 2014 on the basis that he intended to study a Master of Business Administration. Mr Sandeep's enrolment in the Masters course was cancelled in August 2014;
b)on 7 November 2014, Mr Sandeep was issued with a Notice of Intention to Consider Cancellation (“NOICC”) of his Higher Education Visa under s.116 of the Migration Act, which invited his comment. Mr Sandeep was advised that PRISMS records indicated that he was no longer enrolled in a bachelor's degree or master’s degree course and that he was not enrolled in a principal course of a type specified for subclass 573 visas; and
c)on 14 November 2014, Mr Sandeep's representative responded to the NOICC and provided, amongst other documents, evidence of:
i)completion of an academic English course;
ii)confirmations of enrolment for a Certificate III and IV in Commercial Cookery created in August 2014; and
iii)confirmations of enrolment for a Diploma of Hospitality, general English and Bachelor of Business courses created in November 2014.
In the Delegate’s Decision on 19 January 2015 the Delegate decided to cancel the Higher Education Visa: CB 46-60.
The Delegate was satisfied that the ground for cancellation under s.116(1)(b) of the Migration Act was enlivened because Mr Sandeep had failed to comply with condition 8516 in Schedule 8 of the Migration Regulations 1994 (Cth) (“Migration Regulations”) (“Condition 8516”) of the Higher Education Visa (which required that he continue to meet the criteria for the grant of the Higher Education Visa) and the grounds for cancelling outweighed the grounds for not cancelling.
On 21 January 2015, Mr Sandeep lodged an application for review to the Migration Review Tribunal, as it then was: CB 61-62.
The Tribunal invited Mr Sandeep to appear before it, to give evidence and present arguments relation to the issues arising on review, on 22 June 2015: CB 79-82. A hearing took place before the Administrative Appeals Tribunal on 26 August 2015, at which time Mr Sandeep appeared with the assistance of his representative: CB 93-96.
The Tribunal Decision affirmed the Delegate’s Decision: CB 101-104.
The Tribunal was satisfied that the ground for cancellation in s.116(1)(b) of the Migration Act existed: CB 103 at [10]. It found that Mr Sandeep had changed his course of study from a higher education course to vocational courses and had not enrolled in a Bachelor degree course until being issued with a NOICC. It further noted that Mr Sandeep was in breach of Condition 8516 for a period of some months in the latter half of 2014: CB 103 at [8]-[9].
The Tribunal acknowledged that mandatory cancellation was not required under s.116(3) of the Migration Act, and therefore proceeded to consider whether the power to cancel the Higher Education Visa should be exercised: CB 103 at [10]. In this regard, the Tribunal found that:
a)Mr Sandeep had changed his courses dramatically from a Master in Business Administration to vocational sector courses commencing with a Certificate III in Cookery: CB 103 at [17];
b)the Bachelor degree was not due to commence until after the expiration of Mr Sandeep's Higher Education Visa: CB 103 at [17];
c)Mr Sandeep had been in Australia for more than one and a half years and had only completed a 24 week pre-requisite English course: CB 103 at [17];
d)it was Mr Sandeep's responsibility to understand and abide by the Higher Education Visa conditions, and he had not taken proper care in relation to the conditions: CB 104 at [18]; and
e)there would be some hardship to Mr Sandeep as a result of the Higher Education Visa being cancelled: CB 104 at [19].
Considering Mr Sandeep's circumstances as a whole, however, the Tribunal concluded that the Higher Education Visa should be cancelled: CB 104 at [20].
The Judicial Review Application sets out “grounds” of review as follows:
1. Initially, I arrived in Australia in January 2014 in order to pursue a Master of Business Administration at Edith Cowan University. I was asked to complete a 24-week ELICOS course prior to commencing my Master Degree. However, despite my strong efforts, I was unable to meet the minimum eligibility criteria for the course. Since I had committed myself to achieving a degree from Australia, I decided to enrol for a lower level course, while simultaneously improving my English language skills. Therefore, I enrolled at Kingston International College for a Certificate III, Certificate IV and Diploma in Hospitality. I was completely unaware of the legal boundaries of my student visa, especially since Kingston International College did not notify me of my imminent breach of condition 8516.
2. Upon receiving the NOICC on the 7th of November 2014, I immediately consulted my migration agent regarding my options. I was advised to enrol for a Bachelor Degree in addition to my prior enrolments, in order to maintain the eligibility criteria. In addition, I felt that these enrolments would put me in a better position to understand and adapt to the Australian system of education, thereby giving me a better chance to enrol successfully for a Master of Business Administration in the future.
3. Coupled with the educational institution's failure to notify me of my potential breach, I would like to affirm that my breach of condition 8516 is purely accidental. In addition, I would like to reiterate that upon receiving the NOICC, I attempted to resolve the situation immediately by obtaining an enrolment for a Bachelor Degree. Following the cancellation of his Master degree enrolment and my subsequent enrolment in Cookery, I have attended all of my classes consistently and diligently, as evidenced by the attached documents. I wish to affirm that my reasons are genuine.
The Court notes that the “attached documents” referred to in ground 3 above were not attached.
On 25 November 2015 a Registrar of the Court made the following order:
1 The name of the second respondent be amended to “Administrative Appeals Tribunal”.
2 The first respondent file and serve a bundle of relevant documents (green book) by 14 December 2015.
3 The applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 21 January 2016.
4 The applicant file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 21 January 2016.
5 The first respondent file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 4 February 2016.
6 The applicant file and serve written legal submissions 42 days before the hearing.
7 The first respondent file and serve written legal submissions 21 days before the hearing.
8 The matter be listed for final hearing at 10.15am on 26 July 2016 before a Judge.
9 Liberty to either party to apply to the court for a listing for further directions. The other party must be given three days’ clear notice of the time, date and place of that listing.
Mr Sandeep did not file:
a)any amended application with particulars of each ground of review;
b)any affidavit containing additional evidence; or
c)written legal submissions,
in accordance with the Registrar’s order of 25 November 2015.
In the meantime, the Minister had filed the Court Book on 14 December 2015, and on 5 July 2016 the Minister filed a written outline of submissions, both done in accordance with the Registrar’s order of 25 November 2015.
Mr Sandeep filed a Notice of Acting – appointment of a lawyer on 20 July 2016.
On 25 July 2016 (the day before the listed hearing on 26 July 2016) a consent order was made in the following terms:
1. The final hearing listed at 10:15am on 26 July 2016 before Judge Lucev be vacated.
2. The final hearing be adjourned to 2.15pm on 14 December 2016.
3. Costs be reserved.
AND THE COURT NOTES that these orders have been amended pursuant to r.16.05(1) of the Federal Circuit Court Rules 2001 (Cth) by substituting the words “2.15pm on 14 December 2016” for “a date to be advised administratively and not before 30 August 2016” in order 2.
Since the appointment of lawyers by Mr Sandeep no amended Judicial Review Application, no further affidavits and no written submissions have been filed or served.
When the matter was called for hearing on 14 December 2016 the lawyer appearing for Mr Sandeep sought an adjournment of the hearing for a period of three months. The only ostensible basis put for the adjournment was that Mr Sandeep was looking for documents to assist him in his case. The lawyer appearing for Mr Sandeep indicated that he had no instructions further than that, and was unable to enlighten the Court as to the nature of the documents which were being searched for. When asked what steps had been taken since the adjourned July 2016 hearing to ascertain the whereabouts of any documents, or to take any other steps in relation to the litigation, the lawyer indicated that he had written to Mr Sandeep but had not received any response. Mr Sandeep was present in Court whilst the above exchanges took place.
The Court observed during the course of submissions on behalf of Mr Sandeep that an adjournment of a migration hearing in the Perth Registry at this time would mean that the matter would probably not be able to be re-listed until sometime in 2019, such is the volume of migration matters being filed in the Perth Registry.
Consideration
Any application for adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act, and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at [21] per Lucev FM, followed in The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No. 3) [2013] FMCA 165 at [30]-[31] per O’Sullivan FM.
The Court must also take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ (“Aon Risk Services”); Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at [2] per McKerracher J.
In this case it is necessary to have regard to the general objects and principles set out above, and, for the purposes of assessing the paramount consideration of doing justice between the parties, whether or not the substantive application has sufficient merit to warrant it being adjourned for a period of more than two years.
Obviously an adjournment of these proceedings would cause them to be protracted contrary to the objects of the FCCA Act and FCC Rules. The length of the adjournment sought by Mr Sandeep is of itself long enough, but in the context of the delay arising from the number of migration cases in the Perth Registry list, it would constitute a significant and undue delay if an adjournment were to be granted. The Court is also cognisant of the wastage of public resources occasioned by the fact that a further adjournment would mean that his matter had been adjourned twice: not only is that a wastage of public resources in relation to the resources of the Court, it is also a wastage of public resources insofar as the public also fund the Minister to conduct litigation which would then be twice adjourned. The fact that the taxpayers are paying for both the Court and the Minister’s lawyers in relation to an application for adjournment which, both in terms of the application for adjournment itself, and the substantive application, have no merit (as discussed below), in circumstances where Mr Sandeep has done nothing to advance his application, is clearly contrary to the public interest: Aon Risk Services, cited above.
In relation to the merit of the adjournment application per se, it is noteworthy that the matter has already been adjourned once, and that the hearing listed for 14 December 2016 was the second listed hearing of the substantive application. The Court notes that between July 2014 and December 2014 the applicant has seemingly done nothing to advance the preparation of his case. Certainly in terms of the documents which are said to be being searched for, there was no evidence, on affidavit or otherwise, to indicate what those documents were, where they are likely to be, or how long it might be before they are able to be sourced. In that regard, the Court notes that in the originating application reference was made to “attached documents” which were not attached. It is thus the case that the applicant has had ample time to find those documents, and the assistance of a lawyer for at least the last five months (approximately), in seeking those documents, or at least seeking to explain to the Court why it is that the unavailability of the documents might necessitate an adjournment. Mr Sandeep, however, did nothing in this regard, and in the absence of instructions, his lawyer likewise was able to do nothing.
For the above reasons the application for an adjournment per se lacked merit.
Merit of the substantive Judicial Review Application
For reasons set out below, the Court is also of the view that the substantive Judicial Review Application, looked at broadly for the purposes of an adjournment application, also lacks merit.
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
thereby affecting the Tribunal Decision and resulting in the Tribunal exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Section 116(1)(b) of the Migration Act relevantly provided that the Minister may cancel the Student Visa if satisfied that Mr Sandeep has not complied with a condition of the Student Visa. The relevant condition was breached when the education provider certified that Mr Sandeep was no longer enrolled in the Master’s course: Maan v Minister for Immigration & Citizenship [2009] FCAFC 150; (2009) 179 FCR 581; (2009) 112 ALD 25 at [44]-[45] per Dowsett, Greenwood and Collier JJ. The power to cancel the Student Visa was enlivened after the valid NOICC was sent to Mr Sandeep pursuant to s.119: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [35] per Hely, Gyles and Allsop JJ.
To the extent that Mr Sandeep contends that these matters pleaded in his grounds of review were not considered by the Tribunal, that contention is without basis. The Tribunal expressly referred to the fact that Mr Sandeep:
a)was not aware of the Higher Education Visa condition: CB 103 at [14];
b)enrolled in a Bachelor course after being issued with the NOICC: CB 103 at [14]; and
c)had almost completed a Certificate in Commercial Cookery: CB 103 at [17].
It therefore should not be inferred lightly that these matters were not considered by the Tribunal: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593; (2003) 75 ALD 630. If, as appears to be the case, these matters were considered by the Tribunal the contentions relied upon invite the Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It is clear, from a review of the Tribunal Decision, that the Tribunal considered the reasons and explanations advanced by Mr Sandeep in its consideration of whether to exercise its discretion to cancel his Higher Education Visa. In relation to Mr Sandeep's claim that he was unaware of the conditions of his Higher Education Visa, the Tribunal found that it was Mr Sandeep's responsibility to understand and abide by his Higher Education Visa conditions and that he had not taken proper care in relation to the conditions: CB 104 at [18]. Having considered the relevant circumstances for and against cancelling the Higher Education Visa, the Tribunal ultimately exercised its discretion to cancel the Higher Education Visa in a manner that was legally reasonable: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 at [28] per French CJ. The decision to cancel the Higher Education Visa cannot be said to be unreasonable simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [131] per Crennan and Bell JJ.
In the Court’s view it cannot be said that the Tribunal Decision is vitiated by jurisdictional error as contended by Mr Sandeep, or at all. This conclusion weighs heavily against the grant of the adjournment sought by Mr Sandeep.
For the above reasons, the Court did not grant the adjournment sought by Mr Sandeep at the hearing on 14 December 2016.
Having regard to the fact that the adjournment had not been granted, and rather than dismissing the Judicial Review Application on the basis that the Tribunal Decision did not disclose jurisdictional error, the Court thought that it was more appropriate to dismiss the application under r.13.03B(1)(a) of the FCC Rules for failure to comply with the requirements of the Registrar’s orders of 25 November 2015. In that way, if Mr Sandeep does manage to find the documents he alleges he is searching for, and if those documents do raise an arguable case of jurisdictional error in the Tribunal Decision, it may be that the Commonwealth, acting as a model litigant, might consent to the order for dismissal under r.13.03B(1)(a) of the FCC Rules being set aside: FCC Rules, r.16.05(2)(f). In that way, Mr Sandeep may still have an opportunity to further pursue the matter if the documents are found.
It was for the above reasons that the Court made the orders set out at [2] above on 14 December 2016.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 23 December 2016
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