Shrestha v Minister for Immigration

[2015] FCCA 256

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 256

Catchwords:
MIGRATION – Migration Review Tribunal – whether the Tribunal had given clear particulars – whether the Tribunal had sufficient regard to PAM3 – whether additional orders can be made after the Court is functus officio – application dismissed.

Legislation:

Federal Circuit Court Rules 2001

Federal Court Rules 2011

Migration Act 1958

Applicant: BIKAS SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 103 of 2015

Judgment of: Judge Street

Hearing date: 6 February 2015

Date of Last Submission: 6 February 2015

Delivered at: Sydney

Delivered on: 6 February 2015

REPRESENTATION

Counsel for the Applicant: Mr J. R. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Ms S Burnett

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3416. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 103 of 2015

BIKAS SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application of the court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 19 December 2014. 

2. The matter was the subject of an application for a constitutional writ that came before this court on 5 February 2015 and was adjourned until today in light of concerns expressed by the Court as to whether or not the application identified any proper jurisdictional error with a sufficient prospect of success that this Court ought to entertain the application.

3. The Grounds in the application are as follows:

   1. The Second Respondent made jurisdictions error by failing to comply with the requirements of section 359A and 359AA of the Migration Act 1958.

   Particulars

   a) Full particulars will be provided on receipt of the transcripts.

   2. The Second Respondent made jurisdictional error by denying the Applicant procedure fairness regarding the critical issues for review in relation to the exercise of direction under section 116 of the Migration Act 1958.

   Particulars

   a) Full particulars will be provided on receipt of the transcripts.

   3. The Second Respondents made jurisdictional error by failing to have regard to a relevant or relevant consideration namely the guidelines contained in PAM – 3

   4. The Second Respondent made jurisdictional error by having to regard to irrelevant considerations:

   a) The fact that the Applicant had become unlawful in Australia.

   b) The Grounds for cancellation.

   5. By adopting a test that the Applicant was required to show that discretionary considerations “outweigh” the period of non-enrolment, the Second Respondent made error of law.

4. Mr Young of counsel, in relation to the first ground, identified that the subject matter of the alleged breach of s.359A and s.359AA concerned information in respect of PRISMS to which the Tribunal have referred. Mr Young sought to identify that the Tribunal had not given clear particulars of the PRISMS information, didn’t advise the proper basis as to how that information would be used to affirm the decision and did not give the applicant advice in respect of the right to seek an adjournment.

5. When one goes to the reasons, one finds that the Tribunal addressed the position of the PRISMS information in paras. 12, 13 and 14 as follows:

   12. The decision record makes it clear that the evidence to which the notice related came from the PRISMS system. The Department’s file contains, at folio 16, details of the applicant’s various enrolments in registered courses in Australia. Those enrolments were in 3 different fields, namely IT, computer science and accounting. The courses were at several levels, namely diploma, graduate diploma, advanced diploma, bachelor and master levels. At the hearing, the applicant said that he had successfully completed a Diploma of Information Technology (Multimedia) course in June 2010. He later submitted a copy of this diploma.

   13. The Tribunal gave the applicant’s particulars of information in the PRISMS records showing the nature of his various enrolments in courses of study, and the reasons why 8 of these enrolments were cancelled. The Tribunal pointed out that the information was relevant to its consideration of his case because it suggested that he had not seriously pursued any studies since December 2011 and had not been enrolled in any course of study for more than a year. The Tribunal said that, this information could therefore lead it to conclude that he had remained in Australia for reasons other than study.

   14. When invited to respond to this information and reminded of his right to seek more time in which to do so, he elected to respond immediately. He indicated that, having successfully completed his first course of study, he had enrolled in a Graduate Diploma of Computer Science course in 2011. Although PRISMS records show that he “finished” this first enrolment in that course, he confirmed that the fact that he had 2 further enrolments in the same course meant that he had not gained the qualification.

6. Mr Young sought to advance that it would be necessary to go to the transcript in order to try and support the Grounds of error that he identified on the face of the decision. It is clear that the Tribunal complied with the requirements of s.359AA and that the applicant the necessary clear particulars within the requirements of that Act of the information that may be a reason for affirming the decision under review. The particulars were clearly adequate for the purpose of the applicant to being able to understand why it was relevant to the review and the consequences of it being relied upon so as to be able to respond consistent with the requirements of procedural fairness under the statutory scheme.

7. Moreover it is apparent that the applicant did respond in that regard and was well alive to how that information could provide a basis to affirm the decision below.  Nor is it reasonably open argue, given the process identified in the decision, that the applicant was not given advice as to the right to seek an adjournment.  The applicant was clearly informed of that, consistent with para.14. In these circumstances, Ground 1 has no sufficient prospect of success. 

8. In relation to Ground 2, counsel properly put that he cannot put anything in respect of that.

9. It is clear from the decision of the Tribunal that it was well alive to the criteria that had to be applied in respect of its review under s.116(1) concerning the power to cancel if satisfied of non-compliance with a condition of the visa that must be complied with. In that regard the applicant admitted relevantly as follows:

   9. At the hearing, the applicant acknowledged that his enrolment in an Advanced Diploma of Accounting course had been cancelled in October 2013 when he discontinued his studied. He told the Tribunal that he had not been enrolled in any course of study since then.

   10.  On the evidence before the Tribunal, the applicant has not been enrolled in a registered course for a period of more than a year. Accordingly, he has not complied with Condition 8202(2) and hence with Condition 8202 as a whole.

10. In these circumstances Ground 2 is clearly unarguable.

11. In relation to Ground 3, which was identified by the court as the initial obvious basis of concern as to why this case appeared to be one in which there was no sufficient prospect of success. The Court identified, contrary to what’s alleged in Ground 3, that it is crystal clear from para.11 that regard was had to the Procedure Advice Manual-3 by reason of the reference to the same in para.11, where, relevantly, the Tribunal say in the last sentence:

    11. …However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and Government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 

12. Counsel adeptly sought to advance that it was the volume of that material that might give rise to an argument.  It is clear that the nature of the error advanced was a failure to have regard to, or give relevant consideration to those guidelines. Ground cannot possibly be sustained and has no sufficient prospect of success.  Counsel properly conceded in relation to Ground 4 that it was not pressed.

13. In relation to Ground 5, I was taken to para.32 of the Tribunal’s reasons:

    32. The Grounds for cancellation arose because the applicant failed to maintain an enrolment in a suitable registered course of study. While the Tribunal accepts that the applicant’s gambling problem contributed to his failure to maintain his studies and an enrolment, the fact remains that the applicant was not enrolled in any course of study for a period of more than a year. The Tribunal considers that this period is so great, that it outweighs all other considerations.

14. Counsel suggested that within that reference there were numerous errors and that the Tribunal had not properly taken into account other considerations. 

15. Counsel suggested that the period of enrolment of one year, referred to in para.10, was in fact a period only from October 2013 to June 2014 and that the Tribunal, albeit conducting a hearing on 11 December 2014 in relation to the matter on its merits, was somehow in error in failing to take account of the issues concerning the bridging visa which the Tribunal, in fact, had carefully addressed in its reasons. The Tribunal did not apply some reverse onus and was clearly seeking to arrive at the correct decision in the inquisitorial process.

16. It is a matter for the Tribunal to determine what weight it gives to matters before it and to the extent that the Tribunal identifies all other considerations, it is clear that it is engaged in a weighing process. There is no error of law of the kind identified in Ground 5 or as sought to be elaborated by counsel.  In those circumstances, Ground 5 has no sufficient process of success.

17. In these circumstances, I am satisfied that this application is one in respect of which there are no sufficient prospects of success and that the Grounds identified and expanded upon by counsel lack substance. The grounds in my opinion are not reasonably arguable.

18. I have taken into the account the caution that must be exercised in coming to a view that the grounds are not sufficiently arguable, and I have taken into account each of the matters referred to by Mr Young. I am clearly satisfied there is no arguable issue of fact or law and the application is untenable. I am satisfied that the propositions advanced in respect of the alleged errors have no real prospect of success and are not reasonably arguable. In those circumstances, I dismiss the application.

19. Mr Young has made an oral application before this court, after I dismissed the application and made an order as to costs, seeking for the first time two orders.  The first order he sought was an order directing the filing of an affidavit in relation to the proceedings that I have heard summarily, disposed of and pronounced orders.  It is not appropriate for this court to make any further order as requested in that regard.  To the extent of alleged prejudice, that proposition is not one with any substance. A court entertaining an application for leave if and when it is filed will be able to deal with the substance of the argument in relation to the application for leave. I don’t propose to make any order even if I was satisfied that the Court was not functus officio in respect directions as to evidence in respect of the application, given the orders I have pronounced, upon which I express no concluded view.

20. The second order that Mr Young has sought is an order extending time under r.35.14 of the Federal Court Rules 2011 for the period within which an application for leave to appeal could be made, the ordinary consequence of an interlocutory disposition is that leave must be sought. The 14 day period would ordinarily apply unless the court otherwise orders. That is a reference to the Federal Court of Australia. I have taken into account the argument advanced by Mr Young that an extension is necessary for the filing of an affidavit annexing the transcript. I do not regard that proposition to have any substance in relation to the allegation of there being a need for more time in the filing of a leave application. I can see no reason in the present case why the ordinary provisions of the Federal Court Rules as to an application for leave should not apply. Even if I was satisfied that this Court has power under r.35.14 to make that second order, I would not make it in the circumstances of this case. I express no final view as to whether this court has that power under r.1.05 as the Federal Circuit Court Rules 2001 do not appear to me to be insufficient or inappropriate in this particular case.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  KM

Date:  10 February 2015