Tayef v Minister for Immigration
[2016] FCCA 455
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAYEF v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 455 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision (Tribunal) – whether Tribunal misconstrued condition 8202(3) of Schedule 8 to Migration Regulations 1994 (Cth) – whether decision of delegate, when exercising power to cancel visa under s.116 of the Migration Act 1958 (Cth) (previous visa), that previous visa holder did not fail to comply with visa condition is relevant to determining whether the previous visa holder satisfied a criterion for the grant of a new visa, that criterion being that the previous visa holder complied with all conditions attached to the previous visa. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), Schedule 2, cl.572.235 Migration Regulations 1994 (Cth), Schedule 8, condition 8202, 8202(3) |
| Casse v Minister for Immigration Multicultural Affairs and Citizenship [2013] FCA 1007 Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 Kim v Witton (1995) 59 FCR 258 Singh v Minister for Immigration and Citizenship [2011] FMCA 972 |
| Applicant: | HASIB MOHAMMAD TAYEF |
First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 889 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondent: | Ms F Taah of Australian Government Solicitor |
ORDERS
The application for an adjournment is dismissed.
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
The applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 889 of 2014
| HASIB MOHAMMAD TAYEF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter was listed for hearing today. A few days before the hearing and, more particularly, on 22 February 2016, the applicant sent an email to the first respondent’s lawyer indicating that he proposed to apply for an adjournment of his application. By that application the applicant applied for judicial review of a decision made by the second respondent (Tribunal)affirming a decision of the delegate of the first respondent (Minister), not to grant the applicant a student temporary class TU visa.
At the hearing today the applicant did apply for an adjournment. The ground on which he applied for an adjournment was that his previous lawyer had ceased to act for him, and that he needed an opportunity to raise money with a view to retaining a new lawyer. From the bar table the applicant said that he had already provided to his former lawyer the amount of $6,000 and he believed that that was all the money he needed to provide for his lawyer to represent him in this case, but that, in the second half of January of this year, the applicant’s lawyer requested the applicant provide a further $6000. The applicant said, again from the bar table, that he had requested his parents to provide him with $1,500. When I suggested to the applicant that this might not be enough for a lawyer the applicant said he understood that, and he understood that he would need to raise $3,000 himself, and that he proposed to do this from the income he was earning. The applicant informed me that he earned between $350 to $400 per week after tax. The applicant was not cross-examined and I am prepared to accept and assume as true all that the applicant has said to me from the bar table.
Whether or not a court grants an adjournment of a hearing is an exercise of discretion, but it is a discretion which usually must be exercised having regard to a number of matters. There are two broad matters that a court normally considers. The first is the reason for which the party seeking the adjournment is not in a position to proceed, and the second matter is whether there would be any utility in the granting of the adjournment that is sought.
There are other factors which are related particularly to utility. These factors include prejudice to the parties. Account will usually need to be taken of any prejudice that may apply to the party seeking an adjournment if an adjournment is not granted, and regard must usually be taken of any prejudice that will be suffered by the party who opposes the adjournment. Whether or not there would be any utility in the adjournment impacts on the respective prejudices that the parties may suffer. If, for example, there would be no utility in the adjournment being granted then it would be difficult for the party seeking the adjournment to claim any prejudice if the adjournment is not granted. Correspondingly, the party resisting the utility would suffer some prejudice if only because it would be required to devote money and other resources to dealing with a matter for which there would be no utility in granting an adjournment.
I, therefore, turn now to the reasons given by the applicant for seeking the adjournment. Again, assuming that the statements the applicant gave me are true, his being unexpectedly told that he needed to raise another $6,000 would be a reasonable explanation for his not being in a position to conduct the hearing. He was told of that fact in the second half of January this year, and the notice of withdrawal of the applicant’s lawyer was filed on 8 February 2016.
I then turn to the question of utility if the adjournment sought by the applicant is granted and, here, there are two aspects to consider. The first is whether there is any realistic prospect that the granting of the adjournment sought by the applicant would result in the applicant securing the necessary funds to retain a new lawyer. The applicant, I failed to mention, seeks an adjournment of between three and four months. I am not satisfied that within that period of time the applicant would be able to raise the $4,500 which he accepts is the amount he would need to raise in order to retain a new lawyer. Even if he obtains $1,500 from his parents, it is difficult to see how, on a weekly income of $300 to $400, he would be able to raise the money in that time. This consideration, however, would not be determinative if I were satisfied that the application would have some reasonable prospect of success and it is to that question that I now turn.
To have been entitled to the student visa for which the applicant applied the applicant had to satisfy clause 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause required that, at the time of decision, the applicant had complied substantially with the conditions of the last substantive visa the applicant held and any subsequent bridging visa. The applicant previously held a substantive visa which was a subclass 573 visa (Previous visa). The applicant had been granted that visa on 31 May 2011 and was due to expire on 15 March 2013, and, of course, it has now expired.
The previous visa was subject to condition 8202 specified in Schedule 8 to the Regulations. Paragraph 3 of condition 8202 provided that the education provider has not certified for the registered course undertaken by the holder that the holder did not achieve satisfactory course progress or attendance. The applicant was enrolled by the University of Ballarat for a Bachelor of Business course. On 4 October 2012 the University of Ballarat certified the applicant did not achieve satisfactory court progress.
The delegate refused to grant the applicant the student visa he applied for because the applicant had substantially failed to comply with a condition of the applicant’s previously visa, namely, that the applicant’s education provider in relation to the Bachelor of Business course did not certify that the applicant did not achieve satisfactory course progress. The Tribunal affirmed the delegate’s decision for the same reason and I now turn to the Tribunal’s reasons.
The Tribunal first referred to the judgment of Sackville J in Kim v Witton[1] in which his Honour considered the matters that should be taken into account when considering whether a visa applicant has complied substantially with a visa condition. The Tribunal, however, noted there is no rigid test for determining that question, and that the matters Sackville J identified in Kim v Witton should not be regarded as exhaustive.
[1] Kim v Witton (1995) 59 FCR 258
The Tribunal then noted that some conditions were incapable of being substantially complied with. These were conditions that either could be complied with or could not be complied with. The Tribunal referred to the decision of the Full Federal Court in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs in which, by a majority, (Heerey and Sundberg JJ) held that a previous version of condition 8202(3) was a condition which could not be substantially complied with.[2]
[2] Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199
The Tribunal noted that the condition considered by the Full Court was different from condition 8202(3) that applied to the applicant’s visa application. The Tribunal nevertheless considered that the reasoning applied to that condition by the Full Court applied to the condition that applied to the applicant. In that regard, the Tribunal referred to Casse v Minister for Immigration Multicultural Affairs and Citizenship[3] and Singh v Minister for Immigration and Citizenship.[4]
[3] [2013] FCA 1007
[4] [2011] FMCA 972
The Tribunal then noted the applicant’s submission that was made through his agent that the delegate was estopped from relying on the applicant’s failure to comply with condition 8202(3). The agent’s argument was based on the following events. On 12 October 2012, after the University of Ballarat had sent a certificate that the applicant did not achieve satisfactory course progress, the Department of the Immigration and Citizenship (as the Department for Immigration and Border Protection was then known) (Department) sent the applicant a notice of intention to consider cancellation of the applicant’s visa under s.116 of the Migration Act 1958 (Cth). The basis of that notice was that the applicant may not have complied with condition 8202 because the University of Ballarat had issued a certificate stating the applicant did not achieve satisfactory course progress. On 8 November 2012 a delegate of the Minister decided not to cancel the previous visa.
The Tribunal did not accept the applicant’s submission that the delegate was estopped from relying on the applicant’s failure to comply with condition 8202. The Tribunal found the decision not to cancel “is worded very poorly and is logically wrong”. The Tribunal said there was no question that the applicant breached condition 8202(3) “because there was certification by his education provider of not having achieved satisfactory progress”. The Tribunal also said that estoppel “cannot operate to permit a party to evade the requirements of legislation”. Further, the Tribunal noted that the decision not to cancel was made under s.116 of the Act. The Tribunal found that different considerations, however, apply when considering whether a visa applicant satisfies criteria for the granting of a visa.
The Tribunal, therefore, concluded that the applicant could not satisfy clause 572.235 of Schedule 2 to the Regulations “because the applicant had been certified by his education provider as not having achieved satisfactory course progress thereby failing to comply with condition 8202(3) of his previous visa and condition 8202(3) is not a condition which is amenable to the concept of substantial compliance”.
I next turn to the application for review filed on behalf of the applicant in these proceedings. The application raises one ground and it as follows:
The Tribunal erred by misinterpreting the meaning of the term complied substantially in clause 572.235 of schedule 2 of the Migration Regulations 1994.
Particulars:
The Tribunal considered that it was not possible for a person to comply substantially with condition 8202(3) of a student visa even though a decision had been made to revoke a cancellation of the visa.
It will be seen that this ground does not question the authorities which have held that condition 8202(3) is one which is not amenable to the concept of substantial compliance. That would be a difficult thing to do having regard to the authorities referred to by the Tribunal and, more recently, the decision of Flick J in Mohammed v Minister for Immigration and Border Protection.[5]
[5] [2015] FCA 1060
In my opinion, there is no arguable case that a delegate’s previously declining to cancel a visa is relevant to the applicant’s not having satisfied condition 8202(3). What an official of the Department, or, indeed, what the Minister or his delegate may do, cannot affect the requirements of a valid regulation. As the Tribunal itself decided, the delegate’s decision was incapable of raising any estoppel against the Minister or, at any rate, I can see no argument where an estoppel could conceivably arise in the circumstances of this case. And what is also relevant, the decision not to revoke the previous visa, was the purported exercise of a discretion under a separate provision of the Act, namely, s.116, and which applied to an extant visa. What is currently in issue is the satisfaction of a different criterion which must be satisfied in relation to a different visa or, I should say, in relation to a process, namely, the application for the grant of a visa, and that is entirely different to the cancellation of a visa under s.116.
The applicant, therefore, in my opinion, has no arguable case for the relief the applicant seeks in his application for judicial review. For that reason alone, there would be no utility in granting the applicant the adjournment he seeks, even if the applicant were to manage to obtain the necessary money to retain another lawyer. Although one may feel, and I do, feel sympathy for the applicant, given that he has no arguable case, it would be better in his interests that the matter not continue beyond today.
In my opinion, it would not be in the interests of justice that I grant the applicant the adjournment he seeks and I dismiss the application for an adjournment.
After I delivered my judgment on the application for an adjournment I proceeded to hear the application for judicial review. I confirmed with the applicant the identity of the documents that were filed on his behalf, and I admitted into evidence the court book. I asked the applicant whether he wished to make any additional submissions, or any submissions, in support of the application for judicial review. The only thing the applicant submitted was that I was requested to take into account the pressure he felt himself to be under as a result of his failing seven of his eight subjects.
I acknowledge the applicant has felt that pressure, but the circumstances in which his education provider issued the certificate that he did not achieve satisfactory course progress are not matters that arise for consideration on this application for judicial review.
Given my conclusions that the applicant has no arguable case for the relief he seeks it must follow that I must order that his application for judicial review be dismissed and I, therefore, propose to make an order to that effect.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 3 March 2016
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