SINGH v Minister for Immigration

[2019] FCCA 2024

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2024

Catchwords:
PRACTICE AND PROCEDURE – MIGRATION – Application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.116(1)(b), 476, 477, 486D

Migration Regulations 1994 (Cth), c.8202(2)(a)

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: JASPAL SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3314 of 2017

Judgment of: Judge Manousaridis

Hearing date: 18 July 2019

Date of Last Submission: 18 July 2019

Delivered at: Sydney

Delivered on: 18 July 2019

REPRESENTATION

Applicant in person.

Solicitors for the Respondent: Ms M Donald of Sparke Helmore Lawyers

ORDERS

1. The application in a case filed by the applicant on 3 July 2019 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $1,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3314 of 2017

JASPAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. Before me is an application in a case filed by the applicant on 3 July 2019 seeking an order that orders made by a Judge of this Court on 7 June 2018 dismissing the proceeding be set aside. The proceeding the Judge dismissed was one the applicant brought for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to cancel a Higher Education Sector (Subclass 573) visa (student visa). 

2. The Judge dismissed the application for judicial review pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) because on the day the Judge made the order there had been set down before the Judge a callover and the applicant did not appear. Although not stated in the application in a case, the applicant relies on r.16.05(2)(a) of the FCC Rules which provides the Court may set aside a judgment or order after it has been entered if the judgment or order was made in the absence of a party. It would be convenient if I begin by setting out the relevant background.

3. The applicant is a national of India. Before 2 February 2014 he had been granted a student visa. His student visa was subject to a number of conditions, one of which was condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). That required that the applicant be enrolled in a registered course. On 24 August 2016 a delegate of the Minister cancelled the applicant’s student visa on the ground that the applicant had not been enrolled in a registered course of study since 25 March 2016. 

4. On 29 August 2016 the applicant applied to the Tribunal for review of the delegate’s decision. In support of that application the applicant submitted a statutory declaration where he stated as follows:

   a)He entered Australia on 2 February 2014 holding a student visa.

   b)At that time he was enrolled to study a Bachelor of Business (Marketing) Degree at Charles Sturt University, but he did not complete that course.

   c)The applicant then enrolled in a Diploma/Advanced Diploma course in Management at Wentworth Institute. The management course finished on 25 March 2016, but he was unable to obtain the relevant certificate because he had submitted assignments to the wrong portal. He received his certificates on 5 August 2016, but he was unable to enrol in another course before that date without his certificates. 

   d)After the student visa was cancelled the applicant enrolled in an English course and a Bachelor of Business (Management) course at the Holmes Institute in 2017. He completed his ELICOS course and in March 2017 he started his Bachelor degree.  The applicant, however, was unable to maintain good progress in this course because he could not understand the workings of the college and he was mentally stressed due to the circumstances of his visa cancellation.

5. On 21 September 2017 the Tribunal affirmed the delegate’s decision. The Tribunal was satisfied the applicant did not comply with condition 8202(2)(a) because he was not enrolled in a registered course, and that was a ground under s.116(1)(b) of the Migration Act 1958 (Cth) (Act) for cancelling the student visa.

6. The Tribunal then considered whether, in the exercise of its discretion, it should cancel the student visa.  The Tribunal considered a number of matters.  First, the Tribunal considered the purpose of the applicant’s travel to and stay in Australia, and whether the applicant has a compelling need to travel or remain in Australia. Here, the Tribunal: 

   a)noted the applicant’s evidence that, although he has been attending classes in a Bachelor of Business degree which he commenced in March 2017, he has not passed any of the course units which he now has to repeat; and the reason he gave for not passing his units is that he could not understand the assignments;

   b)noted the applicant came to Australia in February 2014 to undertake a Bachelor of Business (Marketing) degree, and in the three years he has been in Australia he has not completed any parts of the Bachelor’s degree;

   c)acknowledged the applicant completed an English course as well as a Diploma and Advanced Diploma of Management;  and

   d)noted the evidence before it indicated the applicant had difficulties achieving his study goals, and it had serious doubts the applicant would be able to complete the Bachelor degree in which he is currently enrolled.

7. Given these matters, the Tribunal was not satisfied the applicant has a compelling need to remain in Australia. 

8. Second, the Tribunal considered the extent of the applicant’s compliance with the visa conditions, and whether the applicant has otherwise complied with the visa conditions now or on previous occasions. Here the Tribunal said it was not aware of the applicant having breached any other visa condition, and said it has given this “some favourable weight.” 

9. Third, the Tribunal considered the degree of hardship the applicant is likely to suffer as a result of the cancellation decision. Although the Tribunal accepted that the applicant would be distressed about the cancellation of his visa, it was not satisfied that the stress and anxiety suffered by the applicant means the student visa should not be cancelled. The Tribunal also acknowledged that if the applicant were to return to India without a degree, his family would be disappointed; but the Tribunal was not satisfied that this would amount to a degree of hardship to mean the visa should not be cancelled. 

10. Fourth, the Tribunal considered the circumstances in which the cancellation arose, and in particular whether there were any extenuating circumstances. The Tribunal recorded that at the hearing before it the Tribunal pointed out to the applicant that there was a difference between the applicant’s claims and his representative’s claims about the portal to which the applicant claimed he had mistakenly sent his assignments and, further, that the emails the applicant had provided between him and Wentworth Institute indicated there was no evidence before the Tribunal relating to where the assignments were lodged. The Tribunal further noted that the emails indicate the staff of Wentworth Institute advised the applicant the assessment had not been received, and there appears to have been requests from the staff that the applicant provide “overdue assignments.” The Tribunal also noted that, after the hearing, the applicant’s representative provided further documents that showed that documents had been sent to a particular portal, which was consistent with the evidence the applicant had given at the hearing before the Tribunal. The Tribunal considered it plausible that documents had been sent to the portal the applicant claimed it had been sent, but the Tribunal noted that the exchanges related to a re-assessment where in an email sent on 12 June 2016 the academic manager advised the re-assessment had been unsuccessful. In any event, the Tribunal concluded that, even if the assignments had been sent to the incorrect portal, that does not mean the student visa should not be cancelled. 

11. Fifth, the Tribunal considered whether the applicant’s past and present behaviour towards the Department and, in particular, whether the applicant has been truthful and cooperative in his dealings with the Department. The Tribunal noted the applicant responded to the notice of intention to consider cancellation, and the Tribunal gave some weight in favour of the applicant but that does not mean the visa should not be cancelled. 

12. Sixth, the Tribunal considered whether there are persons in Australia whose visas would or may be cancelled under s.140 of the Act, and the Tribunal found there were no such persons.

13. Seventh, the Tribunal considered whether there are mandatory legal consequences to a cancellation decision. Here the Tribunal noted that the applicant could become unlawful if the visa is cancelled and may be subject to detention. The Tribunal noted, however, that these are consequences of the legislation, and the Tribunal was satisfied that, in the case before it, it does not mean that the visa should not be cancelled. 

14. Finally, the Tribunal considered whether Australia has obligations under relevant international agreements that would be breached if the student visa were cancelled. The Tribunal, on the evidence before it, was not satisfied that any international obligations could be breached as a result of the cancellation.

15. The Tribunal then concluded that, “considering the circumstances as a whole”, the visa should be cancelled.

16. On 26 October 2017 the applicant filed an application with this Court seeking judicial review of the Tribunal’s decision. That is the application which this Court dismissed on 8 June 2018, and is the application the applicant seeks to be reinstated if an order is made setting aside the Court’s orders of 7 June 2018. That application contains one ground of application, namely, that the “Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claim.”

17. In evidence given under cross-examination, the applicant said he himself filed the application with the Court registry; and on the filing of the application the applicant was notified that a first court date had been appointed to take place on 4 December 2018.  Again on evidence given by the applicant under cross-examination, he accepted that he attended Court on the first court date and he signed a document titled “Short Minutes of Order”. The Registrar made orders in terms of those short minutes of order. The short minutes of order provided for the steps necessary for having the matter ready for hearing. Relevant to the application before me is order 8, and that was that the matter be listed for callover before Judge Smith on 7 June 2018 at 10.15 am in Court 9.2, level 9, 80 William Street, Sydney. There is no dispute that the applicant did not appear at the callover referred to in order 8 of the orders made by the Registrar and, as I have already noted, it was in those circumstances that the application was dismissed. 

18. There is in evidence a copy of an email from the lawyers for the Minister to the applicant’s email address which the applicant, again under cross-examination, accepted he received. The email attaches a letter dated 8 June 2018 addressed to the applicant. The letter attaches a copy of the order of Judge Smith made on 7 June 2018.  The letter sets out the orders that were made, and then there is some reference to the payment of the costs that Judge Smith ordered the applicant pay.

19. The next matter to note is that on 3 June 2019 the applicant filed an application for an order under s.477(2) of the Act to extend the time provided for by s.477(1) of the Act for the filing an application for a remedy under s.476 of the Act in relation to the Tribunal’s decision made on 21 September 2017. On 19 June 2019 the applicant received a letter from the Minister’s lawyers in which the applicant was informed that he had previously filed an application for judicial review of the Tribunal’s decision, and that the applicant, contrary to s.486D of the Act, failed to disclose the earlier proceeding. The letter invited the applicant to discontinue that proceeding. The applicant did so by filing on 20 June 2019 a notice of discontinuance.

20. That is the barebones of the background to the application before me. I next consider briefly the principles that I need to consider in considering whether I should set aside the application. 

21. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

    In circumstances where … a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the Court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors and whether, on balance, they tend for or against the reinstatement. Those factors are: 

    (a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

    (b)the existence and nature of any prejudice which might flow to the other party from the reinstatement and the extent, if any, to which that prejudice can be assuaged by an adjournment or order for costs or other relief which the Court is empowered to grant;

    (c)whether the applicant has a reasonably arguable prospect of success on the substantive application.

    [1] [2010] FCA 530 at [7]

22. I then turn to the reasons the applicant advances for his not being present at the callover before Judge Smith on 7 June 2018. The applicant has given an explanation in an affidavit that he filed in support of his application in a case. He there deposes to his not being aware of what future steps were being taken by his immigration lawyers. He says he consulted a friend who advised him the Tribunal has determined the application, that Court proceedings should be filed, and that the migration “agent/immigration lawyer” did not give clear instructions as to what should be done.

23. This evidence is not correct, and is contradicted by the evidence the applicant gave under cross-examination. The effect of that evidence was that, as I said before, he, the applicant, filed the application; and   he, himself, appeared before the Registrar on the first court date.  What the applicant did say under cross-examination is that he did not read the short minutes of order.  He also somewhat inconsistently said he did not understand the short minutes of order.  I asked the applicant whether he could understand the short minutes of order now. The applicant initially said yes, and there was nothing that he could point to me which could reasonably indicate he was not in a position to understand the document that he signed at the time that he signed it.

24. In any event, whether the applicant signed and did not read the document, or signed and read the document but did not understand it, or whether the applicant did, in fact, understand what he signed, does not really matter because none of these scenarios constitutes a reasonable explanation for the applicant not being aware of or not attending the callover which had been fixed for 7 June 2018.  The applicant is the person who initiated the proceeding. He is an adult.  He obviously manifests some understanding of the Court process because he actually filed the application, and he was able to inform himself that that application first came before the Court on 4 December 2017.  It was his responsibility to ensure that he did that which was within his power to do to prosecute that proceeding. 

25. The end result of this factor is that the explanations that the applicant has given for his not appearing at the callover on 7 June 2018 are inadequate and unreasonable. That is a factor that weighs heavily against the exercise of discretion.

26. Another matter which is relevant is this. The order dismissing the application was made on 7 June 2018, but the applicant took no steps in relation to the Tribunal’s decision until 3 June 2019 when he filed the second application. That is a delay of nearly a year.  Under cross-examination the applicant accepted that he had received the email from the Minister’s lawyers on 8 June 2018. He said that he did not appreciate from that letter that his application had been dismissed. He thought it only related to the payment of fees.  I have great difficulty accepting that evidence because having a belief of some liability to pay fees surely must have triggered in the applicant’s mind why those fees would have become payable in the first place.  In any event, whether I accept his evidence or not, he was given clear notice that his proceeding had been dismissed, and, as I said before, the applicant was responsible for the conduct of his case and for the protection of whatever rights he has.

27. The applicant also said that he first became aware that the proceeding had been dismissed sometime in January or February 2019. The circumstances in which he became so aware, I think he said, is when he was applying for another visa, and he was informed that he had no current visa in place. Assuming that is what occurred, the applicant nevertheless still did nothing for at least three months after that time.  The only explanation the applicant gave in the witness box is that he needed time to put his evidence and materials in place, and that he did not understand the Court process. That is not an adequate explanation for the delay. It is impossible to see how it is that the applicant required three months to put together any documents in order to do something about his application which had been dismissed. 

28. So there is no reasonable explanation for the delay between the applicants being notified that the application had been dismissed and his taking any step to do anything about it, and, as I said, that delay is significant, namely, one year.  So that is a factor which also weighs against the exercise of my discretion.

29. Now, there is another matter that I need to address. The applicant in his affidavit says that he is self-represented and at present is looking for an immigration lawyer to represent him for the final hearing. From the bar table I asked the applicant some questions about a lawyer. My questions were prompted by the applicant stating that he had an appointment to see a lawyer “next week”. The applicant informed me that he had no money to pay a lawyer. He said, however, that he has a friend who is willing to pay between $500 to $1,000 for a lawyer. When I asked the applicant what will happen if the lawyer is going to cost more than $1,000, the applicant said his parents would assist.  When I asked the applicant why he had not sought legal advice or sought financial assistance from his parents before this time, there was no reason that I could discern given by the applicant. 

30. I mention this because the applicant did not apply for an adjournment, but, nevertheless, having raised it, it is a matter that I needed to take into account. On the material, and accepting what the applicant has told me from the bar table, at best it seems speculative that the applicant’s seeing a lawyer with a budget of between $500 to $1,000 will result in the applicant improving the position that he currently finds himself in; and, in any event, I consider it unlikely that the applicant would be able to secure the services of a lawyer beyond obtaining perhaps a fairly brief advice on his legal rights. So I have considered whether the applicant should be given an opportunity to pursue that course; but given the applicant has not done this until after he has filed his application in a case, and given my assessment of the low prospects that this will result in anything other than a speculative improvement in the applicant’s case, it is not a factor that weighs in favour of my exercising any discretion.

1. I then finally turn to what is usually the most important consideration.  I say “usually” because sometimes the delay may be so great, and the inadequacy of adequate explanation is so stark, that sometimes whether there are merits or not is not given as great a consideration as that consideration would otherwise bear. 

2. The applicant confirmed that the grounds of application that he will be relying on if he were to succeed in my setting aside of the orders of the Judge Smith are those set out in the application which he filed on 3 June 2019. So I will assume in this part of my reasons that they are the grounds on which the applicant will rely if his application is reinstated.  The application contains four grounds. The first ground is:

   The Tribunal fell into jurisdictional error in failing to take into account all the relevant considerations in determining whether the visa ought to be cancelled.

3. Under that ground there are particulars.  The first particular is the Tribunal failed to consider the progress that the applicant had made.  That particular is not reasonably arguable.  The Tribunal, as is apparent from my summary of its reasons, did consider the progress the applicant made in his studies. 

4. Second, it is said that the Tribunal failed to consider the appropriate adjustment that the applicant was making as an international student.  That, too, is not reasonably arguable. The only material before me that could be relevant to that question is the date on which the applicant entered Australia, namely, February 2014.  The time at which he was not registered as a student occurred more than two years after the initial entry. There was, therefore, nothing to engage the Tribunal’s considering the question of adjustment.

5. The third particular is the study, progress, and degree of hardship to the applicant. As I said, the Tribunal did consider the progress of the applicant’s course of studies.  It also considered whether there was hardship, and the hardship it did consider essentially consisted of the applicant’s being stressed and anxious about his visa status, and also about the disappointment of his having to return to India if the visa were cancelled. So it is not arguable that the Tribunal did not take into account the study, progress, and degree of hardship to the applicant. 

6. The fourth particular is the “role of the college.”  It is not arguable that the Tribunal did not consider that question.  As is apparent from my summary of the Tribunal’s reasons, it considered the matters on which the applicant relied, and in particular his interactions with the college, as an explanation for his not being able to be in a registered course. 

7. The fifth particular is the Tribunal failed to consider the totality of the evidence and the applicant’s circumstances. This, too not arguable.  The Tribunal, as my summary of its reasons should indicate, looked at a variety of matters, and concluded in terms that on the basis of its consideration of the circumstances as a whole it was satisfied that the visa should be cancelled.  And it is also not arguable that the Tribunal did not consider the applicant’s circumstances. It plainly did. 

8. The sixth particular is the Tribunal failed to consider the impact of a refusal on the applicant.  That is not arguable. The Tribunal considered the disappointment that he would face if he had to return to India.  The Tribunal in particular said that it acknowledged that it is natural that the applicant would be distressed about the cancellation of his visa, and the Tribunal said it had given regard to the applicant’s anxiety status. 

9. The remaining two particulars, being the particulars in paragraphs 7 and 8, are conclusory. One is that the Tribunal did not carry out the review required by the Act; and the other is the Tribunal committed jurisdictional error. I take those particulars to rely on the matters referred to in the previous six paragraphs of the particulars. For reasons I have already given, none of those particulars is arguable.

10. Ground 2 is:

    The Tribunal fell into jurisdictional error when it construed the breach of condition 8202 narrowly and failed to intellectually engage with all the relevant factors.

11. The particulars repeat some of the particulars or the substance of the particulars that appear in the particulars to ground 1.  One of them relates to at least the first part of ground 2 which is the misconstruing of condition 8202. That is not arguable. There is no question, and it was accepted by the applicant and his representative before the Tribunal, that that condition had not been met because the applicant was not in fact enrolled in a registered course. 

12. To the extent ground 2 claims the Tribunal has not intellectually engaged with the relevant factors, that is not arguable.  My summary of the Tribunal’s reasons indicates that the Tribunal identified and did engage with the matters it was required to engage with. 

13. Then, turning to particulars, the first is that the Tribunal did not engage fully with “compelling exceptional/circumstances”. That is not arguable.  The Tribunal, as I have said, looked at the circumstances of the applicant. 

14. The second particular is the Tribunal failed to consider “the hardship the applicant would suffer”. Again, for reasons I have given, the Tribunal did consider whether the applicant would suffer hardship. 

15. The next three paragraphs of the particulars are conclusory, and are predicated on the matters already stated. Given that I found the matters already stated in paragraphs (a) and (b) of the particulars and also the particulars to paragraph 1 are not arguable, paragraphs (c), (d) and (e) of the particulars to ground 2 are not arguable. 

16. Ground 3 is a conclusory ground, and that is to the effect that the Tribunal “failed to ask correct questions and has incorrect questions”. The particulars to that ground refer to the particulars to grounds 1 and 2.  It also alleges the Tribunal has failed to engage with the totality of the evidence, and the Tribunal committed jurisdictional error.  Ground 3 adds nothing to the previous grounds and for the reasons I have given, given those previous grounds are not arguable, ground 3 is also not arguable. 

17. Ground 4 alleges the Tribunal denied the applicant procedural fairness.  It refers to unfair questioning of the applicant and it also refers to a misdirection by the Tribunal about whether it should accord the applicant procedural fairness.  And then it is asserted that the Tribunal committed jurisdictional error. Ground 4 is not arguable.  It is assertion.  No question is identified which it is alleged was unfair or how such questioning is said to be unfair. 

18. For an abundance of caution I should also refer to the ground set out in the current application.  As I have already said, it simply alleges that the Tribunal failed to exercise its jurisdiction by failing to consider all aspects of the applicant’s claims.  That is not particularised, and for that reason alone it is not arguable. In any event, to the extent that it relies on the grounds that I have considered, given I have concluded that those grounds are not arguable, the ground stated in the application filed on 26 October 2017 is also not arguable. 

19. I should also, again out of an abundance of caution, refer to two paragraphs in the applicant’s affidavit which may be considered to be relied on as ground 4 challenging the Tribunal’s decision.  The first is at paragraph 11 where the applicant deposes that:

    The AAT denied the procedural fairness and natural justice in not giving me the opportunity to properly consider my legal position.

20. Again, unparticularised as it is, it raises no arguable case of denial of procedural fairness or of any other jurisdictional error. 

21. Second, there is paragraph 12 of the applicant’s affidavit. The applicant there says:

    The AAT failed to determine my application for review according to law. In taking a view of the Migration Act and regulations that was unnecessarily limited and constricted and which fitted the AATs member’s personal view rather than a comprehensive view of the relevant law.

22. That appears to suggest bias by the Tribunal member or at least an unwillingness or inability by the Tribunal to engage with the statutory task it was required to engage with. Again, stated in such conclusory form, the ground – if that is what it is – in paragraph 12 of the applicant’s affidavit is not arguable.  And, in any event, to the extent it relies on the grounds stated in the application filed on 3 June 2019 the ground is not arguable because I found those grounds not to be arguable. 

23. My conclusion is that even if I were to set aside the orders of Judge Smith the applicant would not have a reasonable prospect of succeeding on any of the grounds on which he relies.  In other words, there is insufficient merit to warrant the setting aside of the orders. I would have arrived at this view even if I were satisfied the applicant had given an adequate explanation for not appearing before the Court on 7 June 2018, and for the delay in his doing something about the dismissal of his application sooner than he did. 

24. I therefore propose in a moment to make an order dismissing the application in a case. 

25. Ms Donald, who appears for the Minister, seeks that I order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $1,200. There is no reason why the usual order for costs should not apply in this case, and I am satisfied that the amount sought by the Minister is reasonable. So I also propose to make an order for costs in that amount. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis.

Date: 26 July 2019