SHARMA v Minister for Immigration

[2018] FCCA 352

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 352

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – subclass 572 visa – where Applicant failed to appear – no jurisdictional error – application dismissed.

Legislation:

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

Migration Act 1958 (Cth), ss.5, 65, 375A

Migration Regulations 1994 (Cth), Schedule 2, cls.572.223, 572.224

Cases cited:

Bates v Bechara [2016] FCCA 3489

CVA17 v Minister for Immigration & Anor [2017] FCCA 3208

Applicant: JAGDEEP SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1234 of 2016

Judgment of: Judge Hartnett

Hearing date: 6 February 2018

Delivered at: Melbourne

Delivered on: 6 February 2018

REPRESENTATION

The Applicant: No Appearance

Counsel for the First Respondent: Mr Guo

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1234 of 2016

JAGDEEP SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 20 May 2016, wherein the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (‘the delegate’) made on 10 December 2015 not to grant the Applicant a subclass 572 visa.

2. The application was filed by the Applicant on 14 June 2016.  The grounds of application are as follows:-

   “1. I did provided my finicial (sic) documents to tribunal, that I have excess to the funds because money is available in my Australian Bank account.  My visa was refuse because of bogus finicial (sic) documents which was provided to me by my parents and they got cheated by some fraud person.  I did provide FIR police complaint to tribunal but they did not consider.

   2. I am eligible and met the criteria for waiver of pick [sic] 4020.  My employer, who is Australian citizen [Damien Troy] He is running a big business in Australia.  He gave his statement on his company letter head in my support for the waiver of 4020 because I will go his business will suffer.  Tribunal ignore all these things.

   3. Please consider my situation and give me justice.”

3. The First Respondent, in the response filed 28 June 2016, seeks dismissal of the application and an order for costs.

4. The Applicant relies upon an affidavit sworn by him on 11 January 2017.

5. On 23 November 2016, amongst other orders made by the Court in these proceedings, was order number 5, listing the Applicant’s application for final hearing at 2.15pm on this day and before me.  Also included in the orders was order number 3, which provided for the Applicant to file and serve by 18 January 2017 an amended application with proper particulars of the grounds of the application and written submissions.  The Applicant has not filed any amended application nor written submissions.

6. The First Respondent relies upon an affidavit of Ms Michelle Elizabeth Stone, affirmed on 14 December 2017, wherein Ms Stone annexes to her affidavit a copy of a certificate issued pursuant to s.375A of the Migration Act 1958 (Cth) (‘the Act’) in relation to this matter (‘the certificate’). No claim of privilege or confidentiality was made over the documents comprising exhibit “MESI”, being folios 36 to 38 of the Tribunal, file no. 1517607.

7. The First Respondent also relies upon written submissions filed by the First Respondent on 22 January 2018. There is before the Court the evidence as contained in the Court Book.

Adjournment

1. By email sent to the Court at 5.58am on Monday 5 February 2018, the Applicant applied to adjourn the hearing listed for this day at 2.15pm.  The email was relevantly as follows:-

   “Hello sir/madam 

   Actually, i recently came back to australia on 1st February 2018  just had a family visit and reached here on 2nd of February.  My situation is not good.  My parents are very old, and recently my father got hurt by accident and also my mother, she is old enough to do anything. There is no one to look after them.  So In emergency I have to go to india to take care of my parents on monday 5th of February 2018.  My court hearing was on 6^th of February, but unfortunately I m (sic) not able to attend it, please extend my hearing date so I can attend it as soon as I come back from india.  For more info pls contact me on my email.  Thanks.”

2. In a further email sent to the Court on 5 February 2018 at 9.27pm, the Applicant said, relevantly, as follows:-

   “…I am writing this email to request to adjourn hearing to future date.  I went to India on 25 feb 2017 to visit my family and came back to Australia on 1 Feb 2018.  I was aware that hearing for my case is on 6th Feb 2018.  After arriving Australia I was preparing my case and to attend scheduled hearing. But on Sunday I got call from back home that my father met with accident and badly injured, as I am only son and they need me.  Because condition of my father is very critical, I booked 1st available ticket.  Presently I am on way to to (sic) India.  As it is clear that this situation is totally beyond my control and I believe that you will understand my circumstance and give another date. so I can come back and attend future hearing.  I am very stressed and scared from these circumstances.  I can not (sic) leave my family in hour of need.  Therefore I request you to give another chance to present my case….”

3. Attached to the Applicant’s email was evidence of the Applicant’s travel from India departing 1 February 2018 to Tullamarine, Melbourne arriving on 2 February 2018.  That travel is not disputed by the First Respondent.

4. The Applicant again sent an email to the Court at 9.01am this day with the same content as contained in the email set out in paragraph nine above save the Applicant altered his visit to India from the date of “25 February 2017” to “25 December 2017”.

5. The First Respondent confirmed to the Court this day that the Applicant again departed Australia on 5 February 2018. Further, the First Respondent confirmed to the Court that the Applicant’s departure does not render this proceeding moot because the Applicant has a right of return until 27 February 2018.

6. The First Respondent opposed the application for an adjournment. The First Respondent submitted that the Applicant’s application for judicial review should be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) with costs to be paid by the Applicant to the First Respondent, fixed in the sum of $7328. The Court will accede to that application for the reasons which follow.

Consideration

1. It is a discretionary matter for the Court whether it adjourns the final hearing of this matter to another date, albeit such a date should be before 27 February 2018.  In the exercise of its discretion, the Court is entitled to take into account a “broad range of circumstances”.[1] 

   [1] CVA17 v The Minister for Immigration [2017] FCCA 3208, 14.

2. The Applicant left Australia on 5 February 2018 to care for his parents.  He provides no adequate explanation for the urgency of his departure from Australia and, in particular, why it was necessary to leave prior to the hearing on the following day, namely, this day, 6 February 2018.  There is no medical evidence before the Court to support the Applicant’s assertions that his parents or either of them are suddenly in need of his care.  It is not apparent from his emails that there is indeed any such urgency. 

3. This is a busy Court and there are many migration matters awaiting final hearing dates.  The proceedings have awaited this final date over a very long period of time.  There have been orders made by Registrar Allaway on 23 November 2016, and further procedural orders made by the Court on 1 February 2017.  Those further orders vacated the earlier orders as to the Applicant and Respondent filing written submissions and provided that the Applicant file and serve written submissions 28 days before the final hearing, and that the First Respondent file and serve written submissions 14 days before the final hearing. 

4. The Applicant filed no such written submissions. The Applicant’s default in respect of the orders made by the Court on 1 February 2017, being his failure to file and serve written submissions 28 days before the final hearing, is a relevant consideration in this adjournment application.[2] 

   [2] Bates v Bechara [2016] FCCA 3489, 31.

5. Given the long procedural history of these proceedings, it is in the interests of efficient case management that no adjournment be granted.

6. Additionally to the above matters, the obvious weakness of the grounds of the judicial review application itself is very much a relevant consideration in respect of the Applicant’s application for an adjournment.

The Tribunal

1. The application before the Tribunal for review of a decision made by the delegate to refuse to grant him a student temporary (Class TU) visa under s.65 of the Act, saw the Applicant appear before the Tribunal on 28 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Court notes that an interpreter was available this day to assist the Applicant, being an interpreter in the Punjabi and English languages.

2. The Tribunal noted that the issue for it was whether the visa Applicant met public interest criterion 4020 (PIC 4020) as required by cl.572.224(a) for the grant of the visa.

3. The Tribunal noted in paragraph 7 of its Statement of Decision and Reasons (‘the Decision Record’) that as recorded in the delegate’s decision, a copy of which was provided by the Applicant with the review application, the Applicant provided the Department of Immigration and Border Protection (‘the Department’) with financial documentation purportedly relating to his mother’s bank account in support of a visa application.  Departmental integrity checks indicated that the documents were fraudulent.  On 3 August 2015 the Department sent correspondence to the Applicant outlining its adverse findings in this regard and giving him an opportunity to respond.  The Tribunal went on to say:-

   “…The decision further records that the applicant responded, claiming that his parents were old and not highly educated and had been cheated by the person at the bank.  It was claimed they had made a police complaint. Loan documentation for the applicant’s father was provided to satisfy the financial capacity requirements of the Regulations. The delegate observed that no material was provided in support of the applicant’s claims regarding the police complaint and concluded that the Applicant had given a bogus document and information that was false or misleading in a material particular. Consequently, the delegate was not satisfied that PIC 4020(1) was met.  Furthermore there was no evidence of any relevant compelling or compassionate circumstances under PIC 4020(4) warranting waiver of PIC 4020(1) and the application was refused.”

4. Prior to the Tribunal hearing, the Applicant provided various documents to the Tribunal as set out in paragraphs 8 and 9 of the Decision Record.

5. On 28 April 2016, a delegate of the minister issued a certificate under s.375A of the Act in relation to information received from the offshore post in New Delhi, referred to in the Department’s letter to the Applicant dated 3 August 2015.

6. At the hearing before the Tribunal, the Applicant confirmed that he provided bank documents to his representative for the purposes of supporting his ability to meet the financial capacity requirements for a subclass 572 visa.  The Applicant also confirmed his earlier accounts of how his parents obtained the bank documents. The Applicant acknowledged that he did not look at the bank documents very carefully and that he had provided them to his representative, who provided them to the Department.  At all times the Applicant accepted that the bank documents did not, in fact, relate to his mother.  The Tribunal said in paragraph 20 of the Decision Record:-

   “The Tribunal notes that the applicant has not at any time disputed the accuracy of the Department’s findings that the bank account details he provided in his mother’s name were not in fact from her account.  He confirmed this at the hearing.”

7. The Tribunal found the bank documents did not in fact relate to the Applicant’s mother but to another person with the same name.  The Tribunal reasonably suspected that the bank documents were counterfeit or had been altered by a person who did not have the authority to do so.  The Tribunal also reasonably suspected that the documents purported to be, but were not, issued in respect of the Applicant’s mother.  Accordingly, the Tribunal found that the bank documents were “bogus documents” within the meaning of s.5 of the Act.

8. The Tribunal also found that the bank documents were not a true reflection of the financial position of the Applicant’s mother. It therefore found the bank documents contained information that was false or misleading in a material particular and that the information was relevant to the delegate’s consideration of cl.572.223 of Schedule 2 to the Regulations. Accordingly, the Tribunal found the bank documents contained information that was “false or misleading in a material particular” within the meaning of PIC 4020(5).

9. The Tribunal found that the Applicant provided the bank documents to the Department.

10. The Tribunal, having found the Applicant did not meet criterion 4020(1), proceeded to consider whether the requirements of PIC 4020(1) or (2) should be waived.  After considering the Applicant’s evidence about his circumstances, the Tribunal found there were not “compelling circumstances” or “compassionate or compelling circumstances” of the kind described in PIC 4020(4) that would justify the granting of the visa.  Whilst the Tribunal accepted that the Applicant’s employer did not want to lose his services and costs may be incurred in replacing him that “absent objective evidence of the extent of this impact, it does not find these circumstances compelling so as to affect Australia’s interests and justify the grant of a visa”.[3] 

    [3] Decision Record dated 20 May 2016 at paragraph 48.

11. The Tribunal also noted that the Applicant had claimed his parents were organising his marriage to a doctor and that if PIC 4020(1) was not waived, Australia’s interests would be affected because it would lose her services.  The Tribunal noted in paragraph 49 of the Decision Record that:-

    “Nothing was provided which supported his claims in this regard and the Tribunal considers his circumstances are, at the moment, purely speculative at least in this respect”.

12. The Tribunal found the Applicant did not satisfy PIC 4020 and therefore did not satisfy the primary criterion for the grant of a subclass 572 visa in cl.572.224 of Schedule 2 of the Regulations.

13. The grounds of the Applicant’s judicial review application essentially seek that the Court engage in merits review impermissible in the circumstances of this proceeding. The Tribunal’s reasons are well expressed, considered, comprehensive, and the findings made by the Tribunal were open to the Tribunal on the material before it.  The Tribunal correctly applied the applicable law, and it was plainly open for the Tribunal to find that the bank documents submitted by the Applicant to the Department were bogus documents and/or contained information that was false or misleading in a material particular.  It was also reasonably open for the Tribunal to find that the Applicant did not satisfy PIC 4020(4) such that would justify the granting of the visa.

14. The adjournment application is refused. The proceedings are dismissed and costs shall follow that event.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  16 February 2018