Wahab v Minister for Immigration

[2016] FCCA 1008

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAHAB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1008

Catchwords:
MIGRATION – Judicial review of a decision of the Second Respondent – application in a case for reinstatement – no arguable case for relief in substantive application – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.366(1)(a)

Migration Regulations 1994 (Cth), cl. 572.211, 575.211(2), 575.211(3), 575.211(3)(a), 575.211(3)(b), 575.211(3)(d), 575.211(4), 575.211(6), Sch 3. criterion 3005

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

Applicant: ABDUL WAHAB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1228 of 2015

Judgment of: Judge Hartnett

Hearing date: 12 April 2016

Delivered at: Melbourne

Delivered on: 12 April 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper

THE COURT ORDERS THAT:

1. The Application for reinstatement filed on 4 November 2015 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,256.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1228/2015

ABDUL WAHAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. The Applicant first filed an application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) by application filed 27 May 2015.  The grounds of that application were as follows:-

   “1. MRT decision was not made correctly i (sic) do not accept the decision, because my hearing was held over the phone when i (sic) was on bed rest due to illness provided with a medical certificate But  i (sic) wasn’t been (sic) granted an extension.

   2. Previously it was immigration fault due to an error in their online database/computer system, i (sic) have applied and supplied with all the documents but unfortunately i (sic) was been (sic) refused to grant a student visa.

   3. Immigration later on apologized and assigned me new visa officers with a NEW student visa application therefore i (sic) believe that my application had been wrongly accessed this time because due to the past student visa history in the immigration database which indicates that last time my application was lodged later than the due date.

   4.     All the evidence can be provided upon request.”

2. The First Respondent filed a response to that substantive application on 22 July 2015 seeking dismissal of the application.  The response noted that the application filed on 1 June 2015 sought judicial review of a decision of the Tribunal dated 29 April 2015, wherein the Tribunal affirmed a decision not to grant the Applicant a student visa.  The First Respondent opposed the orders sought by the Applicant on the basis that no arguable case for the relief sought was raised on the grounds as set out therein.

3. The matter proceeded before Registrar Allaway on 30 September 2015.  On that day, the Applicant failed to appear.  The Court ordered as follows:-

   “Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001, there being no appearance by the applicant

   THE COURT ORDERS THAT:

   1. The name of the second respondent be amended to Administrative Appeals Tribunal.

   2.  The application be dismissed.

   3.  The applicant pay the first respondent’s costs, fixed in the sum of $1,367.”

4. The Applicant filed an application in a case on 4 November 2015.  In essence, he sought reinstatement of his earlier application. 

5. The application in a case was supported by an affidavit of the Applicant affirmed 4 November 2015.  The Applicant said under the heading “Orders Sought” in his application in a case:-

   “1. I’m suffering with anxiety and depression due to my mum’s health issues which i’ve (sic) been going through since I Lodged my visa and now it’s getting more worst (sic) for me because i cannot travel till (sic) my decision, while on the other hand i (sic) cannot put my future on risk  I want to complete my studies so I can find a better job in my home country to build my career. 

   * Doctor reports on my current conditions will be provided along this application.”

6. The affidavit in support of the application in a case and filed by the Applicant failed to shed any further light on his health and nor did it go to the Applicant having an arguable case on his substantive application.

7. None of the brief paragraphs in the Applicant’s affidavit went to establishing jurisdictional error in the decision of the Tribunal.  The affidavit was, in essence, a plea to the Court to grant the Applicant a student visa.

8. The First Respondent opposes reinstatement of the Applicant’s application.

9. As set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, being a decision of Ryan J, in paragraph 7 under the heading “Principles governing an application for reinstatement”, the following is said:-

   “In circumstances where, as in the present case, 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, an 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.  As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement.”

10. In the exercise of the Court’s discretion, the Court finds the following.  The Applicant puts before it no reasonable excuse for his absence from the hearing in which the proceeding was struck out.  He says he failed to attend for medical reasons.  He puts no evidence before the Court of a medical nature whatsoever.  He further puts no evidence before the Court that links any aspect of his health on the day, to his inability to partake in the proceedings.  I note in his application in a case which was filed some months ago, the Applicant foreshadowed that he would put medical evidence before the Court.  He failed to do so.

11. Whilst there is no prejudice to the First Respondent in reinstating the matter and proceeding to a final hearing that could not be satisfied by an award of costs, there is simply no purpose in reinstating the proceeding because it has no merit.

12. The Applicant in ground 1 of his substantive application claims that he was required to attend the Tribunal hearing by telephone and thus, although he does not, in fact, argue this ground, perhaps suggests he was unable to effectively participate in the proceedings.  What, in fact, he wanted was an extension of time in respect of the Tribunal hearing.  What occurred was that the Applicant contacted the Tribunal and forwarded to it a medical certificate.  That medical certificate said that he was receiving medical treatment and would be unfit to continue his usual occupation during the period in which the matter was to proceed before the Tribunal.  The Applicant said in his correspondence:-

    “Please find the attached medical certificate.  I’m on a bed rest due some illness.  Kindly please advise me next step.”

13. The Tribunal, on 21 April 2015, contacted the Applicant via telephone and invited him to attend the scheduled hearing of 23 April 2015 via telephone.  The case note records:-

    “…The applicant accepted the invitation and has provided the following number to be contacted on 0426 179 810 during the hearing.”

14. The Tribunal then confirmed that discussion in correspondence of 21 April 2015 to the Applicant.  Relevantly, that correspondence said:

    “…As per your discussion with the president member on 21 April 2015, your hearing on 23 April 2015 will now be conducted via telephone. Your hearing via telephone will proceed as part of multi list and you will be contacted between 10.30 to 11.30 am…”

15. During the course of the hearing, as the Applicant says in oral submissions made this day, he “explained them whole situation”.

16. The Tribunal Statement of Decision and Reasons (‘the Decision Record) clearly sets out the discussions had between the Tribunal and the Applicant, and in particular paragraph 17 of the Decision Record records:-

    “Asked on what basis he believed the matter could be reviewed, Mr Wahab told the hearing he had been on holidays, his parents had been visiting and there had been delays in receiving documents.  He thought his visa had been current until the end of December and when he realised the date had expired.”

17. The Tribunal is entitled to conduct a Tribunal hearing by telephone pursuant to s.366(1)(a) of the Migration Act1958 (Cth) (‘the Act’). The Tribunal Decision Record discloses that the Applicant was able to effectively and meaningfully participate in the hearing.

18. Grounds 2 and 3 of the substantive application are really a statement of the factual history of the matter from the Applicant’s perspective and at best seek merits review, which of course is not a function of this Court. 

19. Mr Wahab arrived in Australia on 19 January 2011 as the holder of a Subclass 572 Student visa which was current until 14 November 2012. 

20. Clause 572.211 of the Migration Regulations 1994 (Cth) (‘the Regulations’) states:-

    “(1)  If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

    (2)  An applicant meets the requirements of this subclause if the applicant is:

    (a)  the holder of a visa of one of the following classes or subclasses :

    (i)  Border (Temporary) (Class TA);

    (iii)  Cultural/Social (Temporary) (Class TE);

    (iv)  Educational (Temporary) (Class TH);

    (v)  Electronic Travel Authority (Class UD);

    (ixa)  Maritime Crew (Temporary) (Class ZM);

    (x)  Medical Practitioner (Temporary) (Class UE);

    (xi)  Retirement (Temporary) (Class TQ);

    (xiii)  Student (Temporary) (Class TU);

    (xiiia)  Superyacht Crew (Temporary) (Class UW);

    (xv)  Temporary Business Entry (Class UC);

    (xva)  Subclass 400 (Temporary Work (Short Stay Activity));

    (xvb)  Tourist (Class TR);

    (xvc)  Visitor (Class TV);

    (xvi)  Working Holiday (Temporary) (Class TZ);

    (xvii)  Temporary Work (Long Stay Activity) (Class GB);

    (xviii)  Training and Research (Class GC);

    (xviiia)  Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;

    (xix)  Temporary Work (Entertainment) (Class GE);

    (xx)  Special Program (Temporary) (Class TE);

    (xxi)  Subclass 600 (Visitor); or

    (b)  the holder, as the spouse, de facto partner or a dependent relative of a diplomatic or consular representative of a foreign country, of a Diplomatic (Temporary) (Class TF) visa; or

    (c)  the holder of a special purpose visa; or

    (d)  the holder of a visa of one of the following subclasses:

    (i)  Subclass 303 (Emergency (Temporary Visa Applicant));

    (ii)  Subclass 427 (Domestic Worker (Temporary)--Executive);

    (iia)  Subclass 485 (Temporary Graduate);

    (iii)  Subclass 497 (Graduate--Skilled).

    (3)  An applicant meets the requirements of this subclause if:

    (a)  the applicant is not the holder of a substantive visa; and

    (b)  the last substantive visa held by the applicant was:

    (i)  a student visa; or

    (ii)  a special purpose visa; or

    (iii)  a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

    (iv)  a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

    (v)  a Subclass 497 (Graduate--Skilled) visa; and

    (c)  the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:

    (i)  the day when that last substantive visa ceased to be in effect; or

    (ii)  if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation--the later of:

    (A)  the day when that last substantive visa ceased to be in effect; and

    (B) the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal's decision; and

    (d)  the applicant satisfies Schedule 3 criterion 3005.

    (4)  An applicant meets the requirements of this subclause if:

    (a)  the applicant is the holder of a Subclass 560, 562 or 572 visa that is subject to condition 8101; and

    (b)  the application was made on form 157P or 157P (Internet); and

    (c)  the applicant gives to the Minister evidence that the applicant has commenced a course of study for which the visa held was granted.

    (6)  An applicant meets the requirements of this subclause if:

    (a)  the applicant is the holder of a Subclass 570, 571, 573, 574, 575 or 576 visa; and

    (b)  the application was made on form 157A or 157A (Internet); and

    (c)  the applicant gives to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which the visa held was granted; and

    (d)  the Minister is satisfied that there are exceptional circumstances justifying the change in enrolment.”

21. Schedule 3, criterion 3005 of the Regulations provides as follows:-

    “A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)  this Schedule; or

    (b) Schedule 6 of the Migration (1993) Regulations; or

    (c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

    Note: Section 10 of the Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.”

22. On 3 December 2012, the Applicant applied for his second Subclass 572 Student visa. He made that application after the expiration of his previous visa. This second visa was granted to him on 13 March 2013, having been earlier refused, with that refusal rectified on the basis of Sch.3 criteria. That second visa was current until 3 December 2014.

23. On 23 December 2014, and clearly after the expiration of the second visa, the Applicant lodged a further application for a student visa. On 14 January 2015, a delegate of the Minister made a decision to refuse the application on the basis that the Applicant had previously been granted a visa on the basis of Sch.3 criteria.

24. On 3 February 2015, the Applicant applied to the Tribunal for a review of the delegate’s decision.

25. The Applicant was invited to appear before the Tribunal on 23 April 2015 to give evidence and present arguments and did so by telephone, as described above. 

26. The Tribunal explained to the Applicant that on the evidence that he had provided to the hearing, he was not able to satisfy Public Interest Criterion (PIC) 3005 and therefore did not meet cl.572.211, which was an essential requirement for the grant of a student visa and a matter in which the Tribunal had no discretion.

27. The fact that the Applicant had lodged his third application for a student visa on 23 December 2014 while he was, for the second time, not holding a substantive visa, with his previously held student visa ceasing to be effect on 3 December 2014, was determinative.

28. This was because the Tribunal found, at the time of application for this third student visa, the Applicant was not the holder of a substantive visa of the type described in cl.575.211(2), (4) or (6) of the Regulations and that he did not meet those provisions. The issue was, then, whether he met the remaining requirements of cl.575.211(3). As he was not the holder of a substantive visa at the time of application, he met the requirements of cl.575.211(3)(a). As his last substantive visa was a 572 student visa, the Tribunal found the applicant met cl.575.211(3)(b) of the Regulations.

29. The Tribunal was further satisfied that the Applicant met cl.575.211(3)(c) of the Regulations because he made his application within 28 days after the day when his last substantive visa ceased to be in effect when he made his application on 23 December 2014. However cl.575.211(3)(d) of the Regulations required the applicant to meet PIC 3005. Information on the file and the evidence he gave at the hearing indicated that he previously held a student visa which ceased to be in effect on 14 November 2012. After it had expired on 3 December 2012, he lodged an application for another student visa. As he was not the holder of a substantive visa at the time, the visa was granted using the provisions of Sch.3 to the Regulations. Thus, the Applicant did not meet PIC 3005. In not meeting that provision, the Tribunal found the Applicant did not meet cl.572.211 of the Regulations and noted to the Applicant that the criteria of cl.575.211 were not matters in which the Tribunal had a discretion. The Tribunal was thus required to affirm the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

30. The substantive application discloses no arguable case for the relief claimed.  The application in a case is dismissed and costs will follow the event.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  29 April 2016