Shahid v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 703
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahid v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 703
File number(s): MLG 2397 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 9 August 2023 Catchwords: MIGRATION – application for review of Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant did not satisfy cl 500.215 of sch 2 of the Migration Regulations 1994 – found decision of Tribunal not to grant an adjournment request was not unreasonable – found decision of Tribunal not to allow the applicant further time to submit evidence was not unreasonable – applicant’s substantive application has no reasonable prospects of success – costs awarded. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)
Migration Act1958 (Cth) s 363(1)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.13(a), 21.02, 21.04
Migration Regulations 1994 (Cth) sch 2 cl 500.215
Cases cited: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v The Commonwealth (2010) 241 CLR 118
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 28 July 2023 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the Respondents: Mr Daly of Mills Oakley ORDERS
MLG 2397 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD SHAHID
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
9 August 2023
THE COURT ORDERS THAT:
1.The applicant’s Application for Review of a Registrar’s Decision filed on 14 July 2023 be dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $1000.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
This is an Application for Review of a Registrar’s Decision made on 23 June 2023.
The Application before the Registrar was an Application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), for summary dismissal of the applicant’s Application for judicial review filed on 31 October 2022.
The Registrar made orders for the applicant’s Application to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) and that the applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal is to be considered afresh.
BACKGROUND
The applicant is a citizen of Pakistan.
On 14 March 2020 the applicant applied for a Student (Temporary) (Class TU) visa (Visa) on the basis of his enrolment in a Bachelor of Accounting at Holmes College.
The Department of Immigration and Border Protection (Department) confirmed receipt of the Visa application by correspondence dated 14 March 2020. In that correspondence, the applicant was advised the Department may make a decision on his application without requesting further information and that he should therefore “provide us with all the information you feel is relevant”. The applicant was also advised in this letter of the need for him to keep the Department updated with regard to his contact details.
On 3 June 2020, the Department invited the applicant to comment on adverse information obtained from the Provider Registration and International Student Management System which indicated the applicant was not currently enrolled in a registered course of study at an approved education provider which is a requirement of a student visa. The applicant was invited to provide evidence of such enrolment within 28 days.
In response, the applicant provided a statement, a new “Overseas Student Confirmation of Enrolment” (CoE) for a Bachelor of Accounting at Kent Institute Australia and a booking confirmation with Sonic HealthPlus.
On 3 July 2020, the Department requested the applicant provide evidence of Overseas Student Health Cover (OSHC), which is a requirement of a student visa holder. The applicant was requested to provide evidence of such OSHC within 28 days. The applicant did not provide a response.
On 6 August 2020 the Department made a second request for the applicant to provide evidence of OSHC within 28 days. The applicant did not provide a response.
Refusal of student visa on 26 May 2022
On 26 May 2022, a delegate of the Minister (delegate) refused the applicant’s application for a student visa. The refusal notification attached the decision record of the delegate which stated the reason for the refusal of the Visa was on the basis that the applicant had not provided evidence of adequate arrangements for health insurance as required by cl 500.215 of Schedule 2 of the Migration Regulations 1994 (Cth).
A copy of the delegate’s decision, as well as information about the applicant’s right of review, was sent to the applicant to his nominated email address on 26 May 2022.
Application for review at Tribunal on 14 June 2022
On 14 June 2022, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx55”.
In correspondence from the Tribunal dated 16 June 2022 confirming receipt of his application, the applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to his contact details.
On 4 August 2022 the Tribunal emailed the applicant enclosing an invitation for him to attend a hearing by telephone on 22 August 2022 at 9.30am with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.
At approximately 9.02am on 22 August 2022, the applicant wrote to the Tribunal requesting an adjournment of the hearing on the basis of asserted mental health issues, saying “…Unfortunately, from last night I am being suffering through depression and anxiety issue.”
The Tribunal declined the applicant’s request for a postponement as the request was not supported by medical evidence that he was unwell. On the same day, the applicant sent a further email to the Tribunal informing it that he had an appointment with his general practitioner that evening and that he could provide medical evidence following that appointment.
On 22 August 2022 at 11.39am the applicant attended the hearing before the Tribunal by telephone.
After the conclusion of the hearing, the Tribunal responded to the applicant’s email regarding the provision of medical evidence, and requested any such medical evidence to be provided by 4.00pm on 23 August 2022 for the Tribunal to take into consideration in its decision.
On 23 August 2022 the applicant provided to the Tribunal an imaging request for an abdominal ultrasound dated 22 August 2022, a referral to Dr Farazdak Al Wahab dated 22 August 2022, and a referral to Mr Randolph Monteiro dated 22 August 2022 (both for opinion and management of anxiety and depression), a pathology request form dated 22 August 2022 and a Medical Certificate from Dr Sajeewa Elwitigala dated 22 August 2022.
On 28 September 2022 the Tribunal affirmed the decision of the delegate not to grant the applicant the Visa.
Tribunal’s decision
On 29 September 2022 the Tribunal sent a copy of the decision record to the applicant’s email address. The Tribunal identified that the issue was whether the applicant had given evidence of adequate arrangements for health insurance during the period of the applicant’s intended stay in Australia, as provided for in cl 500.215 of Schedule 2 of the Regulations.
The Tribunal noted the hearing invitation sent to the applicant on 4 August 2022 included a request for the applicant to provide all documents in support of his case by 15 August 2022 and to provide a copy of his current CoE, documents evidencing past studies in Australia, and evidence of adequate arrangements for health insurance for the period of his intended stay in Australia, at least seven days before the hearing. The only document provided by the applicant in advance of the hearing was a copy of the delegate’s decision.
The Tribunal found that the applicant had been afforded sufficient time in which to procure a CoE and evidence of OSHC and based on the medical evidence provided, the Tribunal was not satisfied that he was afflicted with a medical condition that had prevented him from obtaining a CoE and OSHC.
Accordingly, the Tribunal found the criterion for cl 500.215 was not met and affirmed the decision under review.
PROCEEDINGS IN THIS COURT
On 31 October 2022, the applicant filed an Application for judicial review of the Tribunal’s decision in this Court. In that Application, the applicant sought orders quashing the Tribunal’s decision and an order directing the Tribunal to determine the applicant’s application according to law.
In the Response filed 18 November 2022, the Minister sought orders that the Application be summarily dismissed pursuant to r 13.13 of the Rules.
On 10 February 2023, Orders were made in Chambers listing the matter for a summary dismissal hearing. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties sought to rely. Relevantly, Order 5.2 of the Orders permitted the applicant to file any Amended Application with proper particular of the grounds of the Application. The applicant did not filed any Amended Application, nor did he file any written submissions.
Summary dismissal hearing on 23 June 2023
As stated, the summary dismissal Application was heard and determined by the Registrar on 23 June 2023, with the Registrar summarily dismissing the Application for judicial review of the Tribunal’s decision.
Application for review of a Registrar’s decision filed on 14 July 2023
As already set out, the Application presently before the Court is an Application for a review of the Registrar’s decision, which was filed by the applicant on 14 July 2023, and that Application is to be conducted as a hearing de novo.
The Minister relies upon its written submissions filed on 8 June 2023.
At the hearing before me the applicant appeared on his own behalf.
Late filing of application for review of a Registrar’s decision
Before turning to the summary dismissal Application, the preliminary issue of the late filing of the Application for review of the Registrar’s decision needs to be addressed.
Rule 21.02(1) of the Rules provides that an Application for review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court “on any terms that the Court … thinks fit”.
The Registrar’s decision was made on 23 June 2023. An Application for review of that decision in this Court was therefore required to be made no later than 30 June 2023. The Application for Review of the Registrar’s decision was not made until 14 July 2023.
Accordingly, the Application was made 14 days after the expiry of the statutory timeframe.
The Minister opposed any extension of time in this matter. The applicant said that the reason for the late filing was that he telephoned the Court’s registry and was informed that the Application was required to be filed within 21 days of the Registrar’s decision. He complied with this advice.
Ultimately, in the circumstances of this case, I am satisfied in this instance that it is appropriate for the time for filing the review Application to be extended. This is in circumstances where the applicant has provided an adequate explanation for the delay, the delay is not lengthy and there is no particular prejudice to the Minister (other than as to costs) if time were to be extended.
SUMMARY DISMISSAL PRINCIPLES
In considering an Application for summary dismissal either under rule 13.13(a) of the Rules or under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim.[1] It is not necessary for the Court to be satisfied that the applicant is bound to fail.
[1] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473.
The discretion to summarily dismiss an Application must be exercised with caution given it is an Order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument.[2] However, what is required is “a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial”[3]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
[2] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
[3] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, [46].
GROUNDS OF REVIEW
In his substantive Application for judicial review, the applicant raises the following grounds (without amendment):
1.I was not granted procedural fairness as I was not able to attend the hearing due to ill health and informed tribunal about that before hearing but they still denied me extension due to absence of medical evidence.
2.How can someone who developed medical condition last night provide medical evidence and still I went to GP and provided my medical evidence to tribunal after the hearing.
3.I believe this is a jurisdictional error. I was not given fair trial.
At the hearing of this matter, the applicant confirmed that by the above he contended that the Tribunal’s decision to refuse his adjournment request was unreasonable (Ground 1).
The applicant sought, and was granted, leave to amend the Application to include the following further ground:
4.The Tribunal’s decision not to conduct a further hearing and allow the applicant further time to submit the CoE and health insurance documentation was unreasonable (Ground 2).
The applicant was invited to elaborate on his grounds for review and made the following submissions for the consideration of the Court:
(a)he had two offers for entry into courses and was waiting for the education providers to confirm his enrolment;
(b)the speed with which this occurred was not within his control;
(c)he provided the best medical evidence he could to the Tribunal within the time frame required and prior to the investigations and consultations requested being undertaken; and
(d)his health issues had been ongoing for some time.
For the following reasons I am satisfied that the grounds of the substantive Application for judicial review have no reasonable prospects of success.
Ground 1
Pursuant to s 363(1)(b) of the Migration Act1958 (Cth) (Act), the Tribunal may adjourn the review from time to time.
It is uncontested that the power to adjourn proceedings contained in s 363(1)(b) is to be exercised reasonably.
The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of extensive analysis by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] (Li) and the Federal Court of Australia in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).
In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 Wigney J summarised the relevant principles as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Recently, in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57 CJ Mortimer said at [82]:
Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.
At paragraph [4] of its decision the Tribunal sets out the request made by the applicant for the adjournment of the hearing on 22 August 2023. At paragraph [5] of its decision the Tribunal sets out its reasons for declining the applicant’s request for an adjournment as follows:
The Tribunal considered the applicant’s request. The Tribunal informed the applicant in writing that his request for a postponement was denied on the basis that it was not supported by medical evidence.
Accordingly, the Tribunal considered the applicant’s request for an adjournment and declined that request because it was not supported by medical evidence.
The applicant was invited to attend the hearing on 4 August 2022. The hearing was scheduled for 22 August 2022, being 18 days later. A fact sheet entitled “Fact Sheet MR 18- Information about hearings” was attached to the hearing invitation and contained the following statement:
…Please note that we will only make changes to this hearing if satisfied that it is reasonable and there are good reasons for doing so…If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing…
Accordingly, the applicant was on notice that an adjournment on medical grounds must be supported by a doctor’s certificate stating that he is not able to attend the scheduled hearing. The applicant did not provide any medical evidence in support of his adjournment request at the time it was made. Further, the applicant’s evidence at the hearing before this Court was that his health issues had been ongoing for some time; as such, the applicant could have sought and provided the necessary medical evidence prior to the hearing.
In those circumstances, the decision of the Tribunal not to grant the adjournment request because it was not supported by medical evidence discloses an evident, transparent and intelligent justification. It was therefore not unreasonable and was a decision which falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law.
Accordingly, Ground 1 has no reasonable prospects of success.
Ground 2
By ground 2, the applicant contends that the Tribunal’s decision not to conduct a further hearing and allow the applicant further time to submit the CoE and health insurance documentation was unreasonable.
In this regard, the Tribunal’s decision records that:
(a)the applicant did appear at the hearing on 22 August 2022, gave evidence and presented arguments. Further, the Tribunal notes that the applicant “did not raise the issue of his adjournment request and proceeded to partake in the hearing without any difficulty.” (paragraph [6]); and
(b)after the conclusion of the hearing the applicant emailed the Tribunal about providing medical evidence for his adjournment request. The Tribunal provided the applicant an opportunity to provide medical evidence by 4.00pm 23 August 2022 and stated that it would “take this medical evidence into consideration in its decision.” (paragraph [7]-[8]).
At paragraph [9] of its decision, the Tribunal sets out the medical evidence provided by the applicant to the Tribunal (as set out in paragraph [20] above).
At paragraph [10] of its decision the Tribunal sets out its reasons for not providing the applicant with a further hearing as follows:
The Tribunal has considered the applicant’s reasons for seeking an adjournment and the medical documents submitted after the hearing in support of his application. The Tribunal does not consider that it is appropriate to provide a further hearing in his matter on the basis that the medical evidence provided as set out above does not establish that the applicant was suffering from a medical condition which prevented him from attending the hearing. The evidence provided indicated that the applicant is unfit to attend work or school. Appearing before the Tribunal via telephone does not constitute work or school and the Tribunal notes that the applicant attended the Tribunal hearing without any difficulty and gave sworn evidence before the Tribunal without any difficulty and without raising the issue of an adjournment in the hearing. For these reasons, the Tribunal is satisfied that it is not appropriate to grant an adjournment of the hearing.
The medical evidence provided to the Tribunal by the applicant does not provide that the applicant was suffering from a medical condition that prevented him from attending the hearing by telephone on 22 August 2022. Further, he did so attend, without any difficulty and did not raise the issue of an adjournment. Accordingly, the reasons of the Tribunal for declining to hold a further hearing disclose an evident, transparent and intelligent justification. It was therefore not unreasonable and was a decision which falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law.
As to the assertion that it was unreasonable not to allow the applicant a further period of time to submit evidence of his CoE and OSHC, at paragraph [15] of its decision the Tribunal sets out the applicant’s sworn evidence at the hearing before it as to these matters was:
·the reason his health insurance is “delayed” is due to his cancelled CoEs;
·his last CoE was cancelled, he does not have a CoE at the moment and has not held a CoE all year and must undertake an English test; and
·he stated that he has no CoE and no health insurance, despite trying to obtain these things and he has been stressed and depressed due to COVID-19.
At paragraph [16] of its decision the Tribunal sets out its reasons for not allowing the applicant a further period of time as follows:
The Tribunal is satisfied that the applicant has been afforded sufficient time in which to procure a COE and health insurance. Based upon the medical evidence provided, the Tribunal is not satisfied that he is afflicted with a medical condition that has prevented him from obtaining a COE and health insurance.
The applicant was:
·invited to comment on adverse information that indicated that his enrolment had been cancelled on 3 June 2020; and
·requested to provide information regarding his OSHC on 3 July 2020 and again on 6 August 2020.
Accordingly, the applicant was on notice that his CoE and OSHC were in issue for at least two years prior to the hearing on 22 August 2022. Further, the applicant’s Visa was refused because the delegate was not satisfied that the applicant had adequate health insurance arrangements in Australia. In those circumstances, the Tribunal’s conclusion that the applicant had been afforded sufficient time to procure a CoE and OSHC discloses an evident, transparent and intelligent justification. Further, as stated by the Tribunal, the medical evidence provided by the applicant does not evidence that the applicant had any medical condition which precluded him from obtaining a Coe or OSHC. Accordingly, the decision of the Tribunal not to allow the applicant further time to submit evidence of his CoE and OSHC was therefore not unreasonable and was a decision which falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law.
Ground 2 has no reasonable prospects of success.
CONCLUSION
For the above reasons I find that the applicant’s substantive Application has no reasonable prospects of success.
Accordingly, I make the orders set out at the commencement of this judgment.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 9 August 2023
1
7
0