Sheiman Ultrasonic Research Foundation Pty Ltd v Novapharm Research (Australia) Pty Limited (Corrigendum dated 19 December 2008)
[2008] FCA 1993
•17 December 2008
FEDERAL COURT OF AUSTRALIA
Farook v Minister for Immigration and Citizenship [2008] FCA 1993
Migration Act 1958 (Cth), ss 116(1)(b), 116(2), 359A, 474
Judiciary Act 1903 (Cth), s 39BMigration Regulations 1994 (Cth), reg 2.43
Farook v Minister for Immigration and Citizenship and Anor [2008] FMCA 1180
MOHAMED AZAAM MOHAMED FAROOK v MINISTER FOR IMMIGRATION AND CITIZENSHIP
VID 648 of 2008
GRAY J
25 NOVEMBER 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 648 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MOHAMED AZAAM MOHAMED FAROOK
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
GRAY J
DATE OF ORDER:
25 NOVEMBER 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 648 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MOHAMED AZAAM MOHAMED FAROOK
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
GRAY J
DATE:
25 NOVEMBER 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This appeal is from a judgment of the Federal Magistrates Court of Australia, given on 28 July 2008 and published as Farook v Minister for Immigration and Citizenship and Anor [2008] FMCA 1180. The learned federal magistrate dismissed an application by the appellant to set aside orders of the Federal Magistrates Court that had been made on 29 May 2008. Those orders were orders dismissing an application by the appellant, filed on 25 February 2008, and requiring the appellant to pay the costs of the first respondent, the Minister for Immigration and Citizenship (“the Minister”), fixed in the sum of $2,500. The appellant’s application filed on 25 February 2008 was an application seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), dated 16 January 2008 and handed down or sent on 29 January 2008. The Tribunal dismissed an application by the appellant for review of a decision of a delegate of the Minister to cancel the appellant’s visa.
The orders made on 29 May 2008 in the Federal Magistrates Court were based on three grounds. One was the failure of the appellant to comply with an earlier order of the court to file and serve an amended application, with proper particulars of the grounds of review to be relied upon, on or before 1 May 2008. The second ground was the failure of the appellant to appear in the Federal Magistrates Court when his application was called on for a directions hearing. The third ground was that, in any event, there was no arguable case apparent on the material before the Court.
The appellant is a citizen of Sri Lanka, who arrived in Australia in possession of a Subclass 573 Higher Education Sector visa. That visa entitled him to study in Australia. It contained a statutory condition, designated as condition 8202(3)(a). The effect of that condition was that the appellant was required to attend at least 80% of the contact hours scheduled for each term and semester of the course for which he was enrolled, as demonstrated by the attendance records kept by his education provider.
By s 116(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”), the Minister had power to cancel the visa, if satisfied that the visa holder had not complied with a condition of the visa. By a combination of s 116(2) and (3) of the Migration Act and reg 2.43(2)(b)(ii) of the Migration Regulations 1994 (Cth), the visa must be cancelled if the Minister is satisfied that the visa holder has not complied with condition 8202 and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
The Tribunal conducted a hearing on 8 January 2008 at which the appellant appeared and gave evidence and at which he was represented by a registered migration agent. Among the material that the Tribunal considered was a letter dated 27 November 2007 that it had sent to the appellant, pursuant to s 359A of the Migration Act, inviting him to comment on information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision of the Minister’s delegate, and the appellant’s written response to that letter.
In its reasons for decision, the Tribunal found that the appellant had not complied with condition 8202(3)(a), according to the records of the institution at which the appellant was studying. In the period of his course running from 9 February 2007 to 16 May 2007, the appellant had attended for only 19% of the contact hours scheduled. He had apparently conceded this fact to the Minister’s delegate.
The Tribunal then proceeded to consider whether the appellant’s non-attendance was due to exceptional circumstances beyond his control. In considering this question, the Tribunal applied policy guidelines as to the meaning of exceptional circumstances. In particular, it took the view that the phrase was not intended to encompass things such as difficulties in adjusting to living in Australia, or academic life; relationship problems; financial difficulties; or feeling depressed, unless depression had been diagnosed clinically by a qualified professional.
The Tribunal considered the appellant’s claim that the circumstances that prevented him from attending classes were illness of his father in Sri Lanka, and the appellant’s concern about that illness. The Tribunal took into account the fact that the appellant had expressed a lack of interest in the course that he was pursuing, and a desire to change courses. He had been told that he should wait until mid-semester before making any change. Further, the Tribunal had found that the appellant had been offered the opportunity to attend a counselling session and had declined to do so, because he did not wish to discuss his family problems. He had not sought any medical assistance for physical symptoms he claimed, such as lack of appetite. The Tribunal therefore found that the appellant was not prevented from attending the necessary contact hours for his course by exceptional circumstances beyond his control.
In his application to the Federal Magistrates Court, the appellant expressed three grounds. In response to my questions, he told me that these were copied from an application made by a friend in similar circumstances. To a large extent, the grounds in that application do not connect with the Tribunal’s reasoning. The first ground raised questions of persecution, which would only have been appropriate if the appellant had been an applicant for a protection visa, and had been seeking to review an adverse decision of the Refugee Review Tribunal. In the first ground, the appellant also alleged that the Tribunal had not considered the exceptional circumstances of the appellant’s case, had denied him natural justice, and was actually biased. In the alternative, he said there was an apprehension of bias. The appellant also said that the Tribunal exceeded its jurisdiction, constructively failed to exercise its jurisdiction, or denied him procedural fairness in failing to investigate his claims. In the second ground, the appellant alleged that the Tribunal had not considered the concept of exceptional circumstances beyond the visa holder’s control, and had not checked the authenticity of his oral evidence. If it had, it should have given him the opportunity to comment on its checks. He also said that the Tribunal did not take any initiative to verify the authenticity of his oral evidence, and other supporting documents. The third ground alleged that the Tribunal disbelieved the appellant point-blank, and thereby failed to accord him procedural fairness during its hearing.
In the light of the way in which these grounds are framed, it is not surprising that the Federal Magistrates Court made the order of 17 April 2008, requiring the filing and service of an amended application.
In his reasons for judgment of 28 July 2008, the federal magistrate referred to the fact that the order for the filing and service of an amended application had not been complied with, and still remained outstanding. In dealing with the question of the appellant’s reasons for absence on 29 May 2008, the federal magistrate examined the evidence, including a letter that had been sent by fax to the court, and found that he was not satisfied that the appellant’s illness was so incapacitating that it precluded his attendance at court. His Honour found that no reasonable excuse had been given for the appellant’s failure to attend on 29 May. Notwithstanding that conclusion, his Honour proceeded to deal with the question whether there was an arguable case disclosed on the material before the court.
For the first time, in oral submissions, the appellant then raised the question of the absence of an interpreter at the hearing. The federal magistrate found that, at the hearing, the appellant had been represented by a migration agent, who had advised that it was not necessary for the appellant to have an interpreter, and the appellant had accepted that advice. His Honour found nothing on the face of the Tribunal’s decision to indicate any difficulty on the part of the appellant in understanding the process before the Tribunal. His Honour was not satisfied that the assertion about a lack of interpreter amounted to a denial of a fair hearing.
As his Honour recorded, he had read the Tribunal’s decision to see if there was jurisdictional error. In the light of the fact that the Tribunal had found that the appellant had only attended 19% of his contact hours, and the Tribunal had addressed the question of his father’s illness and how it affected his capacity to study, the federal magistrate found no indication of error on the part of the Tribunal. Accordingly, his Honour found that there was no arguable case shown. His Honour dismissed the application to set aside the earlier orders, with costs, fixed at $1,000.
In his notice of appeal to this Court, the appellant raises five grounds. In the first, he simply alleges that the Federal Magistrates Court failed to find error of law or jurisdictional error, or denial of procedural fairness, and to grant relief under s 39B of the Judiciary Act 1903 (Cth). It is true that the federal magistrate did not find any such error, and did not grant relief. The ground, as stated, does not indicate why a failure to find such error or to grant such relief amounted to error on the part of the federal magistrate. The appellant was unable to take this ground further in oral submissions.
In the second ground of appeal, the appellant alleges that the federal magistrate failed to take into consideration the real facts of the appellant’s case. This is a ground that confirms something that was apparent on the hearing of the appeal, namely that the real concern of the appellant was to try to persuade the federal magistrate, as he has tried to persuade me, that the facts of his case really justify that he should continue to hold a visa. The federal magistrate did not have the power to reconsider the facts of the appellant’s case. The federal magistrate was bound by the Tribunal’s findings of fact. Nor does this Court have the power to change the Tribunal’s findings of fact. Neither the Federal Magistrates Court, nor this Court, can decide to grant the appellant a visa. Nor can this Court, or the Federal Magistrates Court, decide that the appellant should be granted a visa. At best, if there is jurisdictional error, the Court can set aside the Tribunal’s decision, and require the Tribunal to consider the case again. The only possibly viable suggestion the appellant made that would fit within this ground related to what he asserted was his attempt to persuade the federal magistrate to look at the transcript of the Tribunal’s hearing. That issue was also raised as a separate ground and I deal with it below.
In the third ground of appeal, the appellant referred to s 474 of the Migration Act, claiming that it was demonstrated by the judgments of the High Court of Australia to be ineffective, and that the federal magistrate did not consider this in favour of the appellant. Section 474 of the Migration Act renders immune from challenge decisions of Tribunals established pursuant to the Migration Act. As the High Court has held, it is only ineffective in the case of jurisdictional error on the part of the Tribunal concerned. Accordingly, the federal magistrate could only set aside the Tribunal’s decision if his Honour found that there was jurisdictional error. His Honour’s conclusion was that there was no such error and no arguable case that the Tribunal had made such an error.
The fourth ground of appeal was in the form of a direct claim of a deserving case for a visa. The appellant asserted that he would ruin his life if he returned to his country of origin, as it is a matter of life, security and future, and that this was not considered by the federal magistrate. It is true that the federal magistrate did not consider matters of that nature. For reasons that I have earlier outlined, it was beyond the power of the Federal Magistrates Court to consider for itself whether the appellant would be better off if he could remain in Australia, whether he should have a visa, or what would happen to him if he should return to his country of origin.
The final ground of appeal contained an assertion that the appellant prepared and tried to file in the Federal Magistrates Court the transcript of the Tribunal’s hearing, but the federal magistrate did not consider his request. He stated, as was the fact, that he was unrepresented before the Federal Magistrates Court. When questioned about any attempt he had made to file the transcript of the Tribunal’s hearing, the appellant explained to me that he had consulted his migration agent, who had told him that the transcript of the Tribunal hearing could be obtained, but that he would need to pay for it. He says that he informed the federal magistrate that he could get the transcript if necessary. This is well short of any attempt to file the transcript of the Tribunal hearing and of any resistance on the part of the federal magistrate to such an attempt. There was no reason why the federal magistrate was required to delay any further what his Honour considered to be an unsustainable application, in order to allow the appellant some opportunity, of which he had not availed himself prior to that time, to see if he could make out a case.
For all of these reasons, the grounds of appeal are unsustainable. As I have said, the concern of the appellant has been to impress upon me that he would like to finish a course before he returns to his home country, because he would be much better off if he could do so. I have no power to decide whether he should be allowed to complete a course. I have no power to decide whether he should be granted a visa. I have no power to decide that he be granted a visa. Only in the event that the appellant can establish error on the part of the federal magistrate can he succeed. He has not been able to establish such error. The appeal must therefore be dismissed.
Counsel for the Minister has drawn to my attention a couple of matters with which I ought to deal. One is that, in the notice of appeal, the Tribunal is not named as a party. The Tribunal was a party to the proceeding in the Federal Magistrates Court. It was necessary that it be such a party if relief were to be granted in the form of orders directed to the Tribunal. Counsel for the Minister sought that I add the Tribunal as a party. In view of the fact that the appeal is to be dismissed, that does not seem necessary, as no relief will be granted affecting the Tribunal.
Counsel for the Minister also drew my attention to the fact that the judgment of the Federal Magistrates Court is most likely to be characterised as an interlocutory judgment and that leave to appeal is therefore required. Given that the appellant is unrepresented, if I had taken the view that his case had some merit, I should have been prepared to treat it as an application for leave to appeal and to grant all necessary extensions of time to enable him to apply for such leave. Counsel for the Minister has indicated that the Minister would not have opposed such a course. In view of the fact that I have reached the conclusion that the appeal has no merit, the appropriate order is not that the appellant be refused leave to appeal, but that the appeal be dismissed. There is a notice of appeal, purporting to be an appeal as of right. Whether it be dismissed because it is incompetent as being brought without leave, or because it fails as an appeal, the order remains one that the appeal be dismissed.
Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal. The usual principle applicable in proceedings is that costs follow the event, ie that the unsuccessful party pays the successful party’s costs. The appellant has not been able to advance any reason why that principle should not be applied. He has indicated to me that he is without means to pay the costs, but the fact that a party is impecunious is not normally a reason for declining to make the usual order. I see no reason for not applying the usual principle. Accordingly, the appellant will be ordered to pay the Minister’s costs of the appeal. He has asked me to allow him time to pay. Counsel for the Minister has explained the administrative arrangements that follow once a registrar of the Court has assessed the costs. Those procedures involve a consideration of any request by the party ordered to pay costs for time to make the payment, or for the opportunity to pay by instalments. The appellant has indicated that he is satisfied with the opportunity to avail himself of those arrangements.
The Court orders that:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 9 January 2009
The appellant appeared in person Counsel for the respondent: Ms Katie Miller Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 25 November 2008 Date of Judgment: 25 November 2008
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