SHAIBU v Minister for Immigration
[2018] FCCA 442
•26 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAIBU v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 442 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case for adjournment of one year of hearing date – factors for consideration – abuse of process – contrary to the interests of justice. LEGAL PRACTITIONERS – Duty to the Court – where application for adjournment an abuse of process. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 |
| 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 AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 EBB17 v Minister for Immigration & Anor [2018] FCCA 48 | ||
| Applicant: | SEKINATU SHAIBU | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 609 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 February 2018 |
| Date of Last Submission: | 26 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Faris |
| Solicitors for the Applicant: | Rebus Legal |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the applicant’s application in a case filed 25 January 2018 be dismissed.
The applicant pay the first respondent’s costs in the sum of $1000.00 by 26 March 2018.
The matter be listed for a further directions hearing at 9.15am on 8 March 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 609 of 2017
| SEKINATU SHAIBU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore, and revised before publication)
Introduction – application for judicial review
By an originating application filed in the Federal Circuit Court on 10 November 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 14 October 2017 affirming a decision to not grant a Student (Temporary) (Class TU) visa (“Student Visa”) to the applicant.
The grounds of the originating application are as follows:
1. The Decision maker was illogical and unreasonable
2. The Decision maker failed to consider the applicant claims
3. Lack of Natural Justice- Unfairness
4. Relevant/Irrelevant Considerations
On 8 December 2017 a Registrar of this Court made orders (“Registrar’s Orders”) including the following:
3. By 4.00 pm on 9 February 2018 the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
4. By 4.00 pm on 9 February 2018 the applicant shall file and serve any affidavit containing any additional evidence upon which the applicant proposes to rely relevant only to the grounds of review.
8. The application be listed for a final hearing to 24 July 2018 at 2.15pm before Judge Lucev in the Federal Circuit Court of Australia sitting at Perth.
Application in a case
On 18 January 2018 the applicant filed an Application in a Case seeking the following order:
That the Final Hearing date be changed to 24 July 2019.
The Application in a Case was supported by an affidavit also filed on 18 January 2018, and sworn by the applicant on 3 January 2018, (“Applicant’s January 2018 Affidavit”) which says as follows:
1. I am the applicant in these proceedings.
2. This Affidavit is in support of the proceedings for a judicial review of a decision of the Department of Immigration and Border Protection and the Administrative Appeals Tribunal to have the final hearing date of my application moved till after 31 July 2019.
Background
3. I am a citizen of Nigeria and have been in Australia since 30 June 2013 when I came to study a Diploma in Hospitality at TAFE in Western Australia.
4. In July 2013, I changed my course to Human Resources because I decided I wanted to work in the Health and Safety Department in the Oil Industry in Nigeria.
5. On l4 July 2015, I applied for a Student (Temporary) (class TU), Vocational Education and Training Sector (subclass 572) visa.
6. On 15 July 2015, I was asked by the Department of Immigration and Border Protection ('The Department') to provide evidence of funds sufficient to meet expenses totalling of $27,025.62 to cover my total course fees, living costs and travel costs for the first 12 months.
7. I provided a bank statement from United Bank of Africa and a letter of support from a family friend, Chief Fidelis Ubaka, stating that he was willing to sponsor me and provide me with financial support while I study in Australia.
The Department's Decision
8. On 14 August 2015, the Department notified me of its decision, to refuse my application on the grounds that the funds that had been provided as proof for financial support did not come from an 'acceptable individual' as defined under clause 5A101 of the Migration Regulations 1994 (Cth).
The Tribunal's Decision
9. On 18 July 2017, I attended the Administrative Appeals Tribunal ('The Tribunal') hearing with my representative, Mr Nino Sekyere-Boakye of Allworld Migration Services.
10. This time, I provided a financial statement from my father. My representative also lodged submissions on my behalf to the Tribunal explaining that I could not provide proof of funds from an acceptable person at the time that I applied for my student visa because my mother was very sick at the time and my father, being the sole carer, could not get to the bank physically to request the bank statement as is required in Nigeria.
11. Due to the above circumstances, I asked a family friend, Chief Ubaka, to provide me with a bank statement as evidence of the required funds. Mr. Ubaka had previously provided me with a financial statement when I applied for my first visa to study in Australia in 2015.
12. My mother had a kidney failure, my family resorted to use the funds for her medical treatment.
13. On 16 October 2017, the Tribunal affirmed the decision of the department to refuse my application for a student visa.
Federal Circuit Court Proceedings
14. On 10 November 2017, pursuant to s 476 of the Migration Act 1958 (Cth), I filed an Application to commence proceedings at the Federal Circuit Court for a judicial review of the decision of the two above-named Respondents.
15. In the Minute of Proposed Orders, the first Respondent seeks that the application be listed for a final hearing on 24 July 2018 in the Federal Circuit Court of Australia in Perth.
16. I seek to have the date for final hearing of my application be moved after the 31 July 2019 because of the following reasons:
Personal Circumstances
17. As mentioned in my previous affidavit attached to my application, I have been studying in Australia since 2013 and my parents have invested a lot in my studies. They have already spent over $200,000 on my studies and living expenses in Australia. This amount consists of approximately $70,708 for my fees, $89,235 for my living expenses and $10,000 for other miscellaneous expenses associated with my stay in Australia.
18. I have invested a lot both financially and emotionally during my stay in Australia on a student visa.
19. I have never breached any condition on any student visas I have held. ln fact, when my mother passed away last year, I did not attend her funeral because I did not want to jeopardise my student visa or neglect my studies as my both my mother and father sacrificed a lot in order to fund my studies in Australia. $200,000 is a substantial amount of money for us Nigerians and still my parents went to a lot of trouble to finance my studies and support me in my dreams so that I can get a good job and a good future when I go back to Nigeria.
20. I have been under considerable stress since this situation with my student visa arose; I have sacrificed a lot and did not even have a chance to say a final farewell to my mother, all because it is very important that I finish my studies so that all the money my parents have already spent on me is not wasted.
21. Till now, I have successfully completed a Certificate and Diploma in Human Resources, Nursing and Occupational Health and Safety.
22. I was offered a place to pursue a Bachelor degree in Nursing at the University of Notre Dame starting on 31 July 2017. The course is for a 2-year duration and the completion date is the 31 July 2019. Please see enclosed at Annexure A a true copy of my Overseas Student Confirmation of Enrolment (CoE) at the University of Notre Dame.
23. I am seeking to have the final hearing date for my application at the Federal Circuit Court moved to after the completion date of my course in order for me to be able to complete my studies before a decision is made on my visa. This will allow me to successfully complete my studies even if my appeal is not granted and dismissed by this Honourable Court.
24. I sincerely wish to complete my nursing degree so that I can be eligible for employment as a Health and Safety Administrator back in Nigeria. My goal may be jeopardised if I return to Nigeria without completing my studies. Most importantly, my fathers' and my late mother's sacrifices will go in vain and their dreams for me will remain unfulfilled.
25. My only incentive to remain in Australia is to finish my studies so that I can go back to my country with a good prospect of finding employment in the Oil and Gas industry, make my parents proud and use what I have learnt here to help my people.
26. It is not my intention to maintain ongoing residence in Australia. I only plan to stay temporarily until I complete my Bachelor of Science in Nursing which is why I am seeking to have the date of final hearing moved till after I complete my studies so that even if an adverse decision is reached, it will not jeopardise my studies in Australia.
The Application in a Case for adjournment was opposed by the Minister.
On 2 February 2018 the Court made the following orders (“Court’s Orders”):
1. In relation to the applicant’s Application in a Case;
a. The applicant file and serve any further affidavits and an outline of submissions by 12 February 2018;
b. The respondent file and serve any affidavits and an outline of submissions by 19 February 2018; and
c. It be listed for hearing at 9.30 AM on 26 February 2018 for no more than one hour.
The Minister filed submissions on 16 February 2018 (see Order 1(b) of the Court’s Orders) to which the Court has had regard. According to those submissions on 12 February 2018 the applicant served on the Minister:
a)a copy of the Application in a Case;
b)the Applicant’s January 2018 Affidavit; and
c)a copy of the applicant’s confirmation of enrolment for the Bachelor of Nursing.
As at the date of the hearing of the Application in a Case the applicant has not filed and served an outline of submissions as required by Order 1(a) of the Court’s Orders, nor has any further affidavit been filed. As indicated to the applicant’s lawyer in the course of the hearing the failure to file submissions on behalf of the applicant is in breach of the Court’s Order, and at the very least not of assistance to the Court, and therefore not of assistance to the applicant in the Court’s consideration of the issues.
Consideration
Adjournment application
The relevant decision required to be made by the Minister under s.65 of the Migration Act 1958 (Cth) (“Migration Act”) is not whether, for instance, a person is a legitimate student, but whether the Minister is satisfied that the requirements for the relevant visa have been met: 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; CLR at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ. In Gurung v Minister for Immigration & Anor [2017] FCCA 1741 at [21] per Judge Driver it was observed that:
I invited oral submissions from Ms Gurung. She told me that she did not want to address the grounds in the application but explained her position as being one in which she wishes to remain in Australia for a further three months in order to complete studies she is currently undertaking. That appears to be the real reason she has brought these proceedings. That, of course, is a matter for her, but the issue for the Court is whether there is any arguable case of jurisdictional error by the Tribunal.
The task for this Court in relation to the judicial review application in this case is of course the same: namely to determine whether there is any arguable case of jurisdictional error by the Tribunal.
Any adjournment application in this Court 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,
see Sandeep v Minister for Immigration & Anor [2016] FCCA 3339 at [23] per Judge Lucev, and the cases there cited.
The Court must also take into account, when determining whether or not to grant 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.
The Court also notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Another [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
The above principles have been adopted by this Court, in migration proceedings, on a number of occasions, including recently, for example, in CVA17 v Minister for Immigration & Anor [2017] FCCA 3208 at [13] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
To grant this Application in a Case for an adjournment would be to set at nought the visa approval process which governs entry to Australia for non-Australians, and which has done so since its introduction under the provisions of the Migration Act in 1994 (and prior to which since 1958 both entry permits and visas had controlled entry), and which, put shortly, requires Ministerial approval for a visa to be issued to a non-Australian to enable that person to enter Australia. To grant this application for adjournment would have the practical effect of allowing the applicant to complete studies in Australia without the requisite student visa, contrary to the intent of, and requirements under, the Migration Act and Migration Regulations 1994 (Cth) (“Migration Regulations”), and contrary to the Tribunal Decision (which presently remains valid) affirming the decision of the Minister not to grant the applicant a student visa. That the intent of the adjournment application is to allow the applicant to complete those studies before a decision is made on the originating application is apparent from the Applicant’s January 2018 Affidavit at [23] where the applicant says that that is the purpose of seeking to have the final hearing date in the Court moved to after the completion date for the Bachelor of Nursing course in which she is currently enrolled, and which was the subject of the Tribunal Decision.
It is difficult to conceive of a more audacious, and a more unmeritorious, application for an adjournment in the context of an application for judicial review in migration proceedings. The adjournment application is an abuse of process, and plainly contrary to the interest of justice, and the interests of the administration of justice, and contrary to the objects of the FCCA Act and the FCC Rules and modern principles of case management. For these reasons the Application in a Case must be dismissed.
Although seemingly drafted by the applicant’s lawyer, whose name and address for service appear on the judicial review application, the grounds of the judicial review application are bereft of particulars, and as is now known and seemingly well accepted by both this Court and the Federal Court a failure to particularise an originating application in migration judicial review proceedings means that the grounds cannot succeed. In AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 (“AYE16-FCC”) at [20] per Judge Lucev this Court found that a failure to particularise a ground of review was a sufficient basis for the ground to be dismissed. In AYE16v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J the Federal Court held that no appellable error was disclosed by that aspect of the reasoning in AYE16-FCC. See also, in the Federal Court, WZATH v Minister for Immigration & Border Protection [2014] FCA 969 (“WZATH”); WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J (from which an application for special leave to the High Court was refused: AQN15 v Minister for Immigration & Border Protection [2016] HCASL 183), and in this Court, SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM; McKinney v Minister for Immigration & Anor [2015] FCCA 2377 at [36] per Judge Lucev; EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [29] per Judge Lucev.
In this case, the applicant has had an opportunity pursuant to Order 3 of the Registrar’s Orders to file an amended particularised originating application, but has not done so. Thus, presently the originating application can be considered as lacking merit and liable to dismissal on the basis of the failure to particularise alone: see the authorities cited above.
In relation to the Applicant’s January 2018 Affidavit the Court notes that:
a)the fact that the applicant studied previously and has allegedly expended considerable sums of her parents’ money to stay in Australia is not a basis to adjourn the hearing of the applicant’s own judicial review application, especially when the applicant has no current substantive visa, has not been granted a visa by the Delegate or the Tribunal, and has an application for judicial review of the Tribunal Decision listed for hearing within a relatively short time, that is, on 24 July 2018;
b)there is no evidence of the sums of money, which are not inconsiderable, said to have been expended in relation to the applicant’s previous studies in Australia, but in any event the expenditure of those monies is ultimately irrelevant to the question to be considered by the Court, namely whether an application for judicial review which seeks to establish jurisdictional error in the Tribunal Decision, ought to be adjourned;
c)the applicant has, she says, not breached any student visa conditions previously is again, immaterial to the ultimate question of whether or not the Tribunal Decision is affected by jurisdictional error, and ought to be adjourned, for the same reasons as set out in (b) above; and
d)it is said that the basis for wanting to remain to study a Bachelor of Nursing in Australia is to enable the applicant to work in the oil and gas industry in Nigeria, but there is no evidence as to how undertaking a Bachelor of Nursing would assist the applicant to obtain such employment, or as to the nature or likelihood or availability of such employment, but, in any event, that issue is once again irrelevant to the ultimate question of whether or not the Tribunal Decision is affected by jurisdictional error, and whether the judicial review application hearing of that issue ought to be adjourned.
In short, there is nothing in the Applicant’s January 2018 Affidavit which assists the Court in determining the adjournment application in her favour.
Further, the Court notes that:
a)the adjournment is not sought for the purpose of obtaining material which would be relevant to the judicial review application before the Court;
b)it is not said that there is a reason why the applicant, or her representative, is unable or unavailable to appear at the listed hearing of the judicial review application;
c)it is not said that there is insufficient time for the applicant, or her representative, to prepare for the hearing of the judicial review application, and it is manifest that the applicant has sufficient time to prepare for the hearing of the judicial review application, that hearing having been listed for 24 July 2018 more than seven months earlier on 8 December 2017;
d)the judicial review application and the adjournment application cannot be used as an insurance policy to prolong the applicant’s stay in Australia: WZAUT v Minister for Immigration & Anor [2015] FCCA 418 at [31] per Judge Lucev; and
e)an adjournment for over a year would be inconsistent with the case management principles set out above.
Lawyer’s conduct
The applicant’s lawyers ought not to have allowed their name to be lent to the adjournment application insofar as the sole purpose of the adjournment application appears to be to subvert the current judicial review application process, and more broadly the visa application process under the Migration Act and Migration Regulations. The participation of the applicant’s lawyers in this process is participation in an abuse of process, which the adjournment application plainly is, and a failure in the applicant’s lawyers’ duty to the Court as an officer of the Court. The applicant’s lawyers have also rendered no assistance to the Court by reason of the failure to file submissions in support of the adjournment application (as per the Court’s Orders of 2 February 2018), and that tends to confirm the Court’s view that the adjournment application is no more than an abuse of process. That is entirely consistent also with the fact that the judicial review application (being the originating application) presents as entirely lacking in merit by reason of the failure to particularise the bare (and poorly drafted) grounds of application. Significantly, whilst the applicant’s lawyers have allowed their name to be used on the application and for the address for service, they did not certify that the judicial review application had merit as is required by a lawyer signing the application for the applicant. Once again, that would tend to suggest that even the judicial review application itself is either lacking merit in the eyes of the applicant’s lawyers (by reason of their refusal or failure to sign it) or that it might be part of an ongoing abuse of process in order to facilitate the applicant’s stay in Australia whilst she completes her studies.
The Court has considered whether the conduct of the lawyer for the applicant should be referred to the appropriate professional standards body, but in light of:
a)the applicant’s lawyer’s relative inexperience (having only been admitted in 2015); and
b)the admonitions in these Reasons for Judgment,
has decided not to do so.
Conclusion and orders
For the reasons set out above the Court has concluded that the applicant’s Application in a Case filed 25 January 2018 must be dismissed, and there will be an order accordingly.
By reason of the applicant’s failure to comply with Orders 3 and 4 of the Registrar’s Orders it will be necessary for at least some, if not all, the dates for compliance with the programming orders in the Registrar’s Orders to be amended, but, and the Court stresses this, without amending the final hearing date in Order 8 of the Registrar’s Orders. Given that the current delay in compliance with Order 4 of the Registrar’s Orders is 17 days, the parties ought to be able to agree new dates in short order, and file a consent order to reflect those dates within a matter of days. To ensure that the matter does not go “off the rails” there will be a further order that there be a further directions hearing at 9.15am on 8 March 2018. In the event that the parties can agree on amended dates for the programming orders leading to the hearing on 24 July 2018, that directions hearing can be vacated in any consent orders filed by the parties.
Having heard the parties as to costs, and the applicant conceding that there is no ground to oppose the Minister’s application for costs fixed in the sum of $1000, there will be an order that the applicant pay the Minister’s costs in that amount.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 26 February 2018
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