ZEESHAN v Minister for Immigration
[2018] FCCA 2430
•10 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZEESHAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2430 |
| Catchwords PRACTICE & PROCEDURE – Dismissal for non-appearance – applicants failed to appear when case was called – applicants later appeared – case reopened on the same day. PRACTICE & PROCEDURE – Show cause hearing – unpaticularised grounds – sought impermissible merits review – tribunal lacked discretion to take into account circumstances urged by applicant or waive requirements under migration regulations – application summarily dismissed. |
| Legislation Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a), 44.12 Migration Regulations 1994, sch.2, cl 485.212, |
| Cases cited AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68 |
| First Applicant: | SAMRA ZEESHAN |
| Second Applicant: | ZEESHAN AZIM |
| Third Applicant: | AYMAN ZEESHAN |
| Fourth Applicant: | RAMIN ZEESHAN |
| Fifth Applicant: | SHAMIR ZEESHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1238 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 10 August 2018 |
| Date of Last Submission: | 10 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 August 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Third Applicant: | In person |
| Solicitors for the Third Applicant: | None |
| Fourth Applicant: | By his litigation guardian, the First Applicant |
| Solicitors for the Fourth Applicant: | None |
| Fifth Applicant: | By his litigation guardian, the First Applicant |
| Solicitors for the Fifth Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 13 June 2017 is dismissed
The applicants pay the first respondent’s costs fixed in the sum of $3 606
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1238 of 2017
| SAMRA ZEESHAN |
First Applicant
And
| ZEESHAN AZIM |
Second Applicant
And
| AYMAN ZEESHAN |
Third Applicant
And
| RAMIN ZEESHAN |
Fourth Applicant
And
| SHAMIR ZEESHAN |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
On 7 February 2017, I made orders by consent directing that this case go forward under the show cause procedure provided for by r 44.12 of the Federal Circuit Court Rules (“rules”). In the same orders, I directed the applicants to file and serve any amended application, any affidavits and any supplementary court book 28 days prior to today’s hearing date. None of those documents were filed. In fact, today on the hearing of this application at 11:30am when the case was called, the applicants did not appear and I made orders under r 13.03C(1)(c) of the rules dismissing the proceeding and ordering the applicants to pay costs.
The applicants subsequently emerged later than the time fixed for the hearing of this proceeding and asked me to hear whatever she wanted to say in the case. Later in the afternoon and I dealt with her case with her present in court assisted by Ms Patel, a very experienced interpreter. The second applicant (the first applicant’s husband), third, fourth and fifth applicants (the first and second applicants’ children) appeared but did not make any submissions.
Under the show cause procedure, a judge in my shoes has power under r 44.12 of the rules to make a number of orders including an order dismissing the whole case.
However, statements of principle from the High Court of Australia in Spencer v Commonwealth of Australia[1] and from the Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration & Border Protection[2] have held that an order for the summary dismissal of a proceeding should not be lightly made. I have proceeded in my task today with that instruction in mind.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 68
By application filed in this court on 13 June 2017, the applicant, as first applicant, and her three dependents sought judicial review of a decision of the Administrative Appeals Tribunal made on 15 May 2017.
Pursuant to that decision, the tribunal affirmed the decision made by the minister’s delegate not to grant the applicants the skilled (provisional) (class VC) visas that they sought. The minister’s delegate’s decision was dated 5 January 2017.
Before descending to the details of the application, it is relevant to point out the grounds on which the applicant relied. They are largely discursive. That was understandable given that the first applicant was a litigant in person and there was some doubt whether English was her first language it is useful to record her grounds in full as they appeared in the application (with errors in the original) –
1.Misleading terminology used by the designated case officer. On December 2, 2016 the officer asked us to furnish the documents and mention categorically that the attached checklist contained all the information and descriptions that was required by department for “Each Applicant”. The officer refused our case due to non-available of PTE result. This requirement was not even mentioned on checklist. (Annexure‑A)
2.The designated overlooked the information provided because;
a.He did not even wait for the documents he asked for and issued refusal,
b.He did not incorporate the details of our newborn baby in the refusal letter. These details were already provided to him earlier. (Annexure‑B)
3.Though we have already provided all the evidence of the main applicant’s critical medical condition to the tribunal, they have acknowledged that the condition was severe and due to severity of the medical condition, applicant was unable to provide the required documents. (Annexure‑C)
The delegate
The delegate decided to refuse to grant the applicants the visas they sought largely because the first applicant did not have the required English level proficiency. Specifically, the delegate found that the applicant did not hold a specified passport exempting her from having to take an English test. She responded in the negative to the question whether she had undertaken a specified test in the 36 months immediately preceding the visa application.
The delegate found that the first applicant did not satisfy cl 485.212 of sch 2 to the Migration Regulations (“regulations”). The delegate refused the visa applications of the second, third and fourth named applicants, that is to say, the first applicant’s husband and children, on the basis that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 485 visa and there was no evidence that they met the primary visa criteria in their own right.
The tribunal
Being dissatisfied with the delegate’s decision, the applicant sought a merits review by application filed 21 January 2017. On 13 April 2017 the tribunal wrote to the applicants inviting them to a hearing at which they could present their case and give evidence on 10 May 2017. The applicants duly appeared before the tribunal on 10 May 2017 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The reasons of the tribunal referred to information given by the first applicant at the interview to the effect that by reason of health complications encountered during her pregnancy and the birth of her youngest son in September 2016, she was unable to sit the PTE academic test that she had originally booked on 17 September 2016.
The first applicant told the tribunal she did in fact sit the test on 8 November 2016, but did not do as well as she hoped as she was then unwell, with the consequence that the overall score she obtained was 47, rather than the required score of 50. The tribunal and the first applicant discussed the relevant law in relation to English tests for subclass 485 visa holders and that test results were limited to those obtained in the three years immediately preceding the date of a visa application lodged in this case on 30 September 2016.
The tribunal informed the delegate that any test undertaken after that date could not be taken into account irrespective of the score that was obtained. From paragraph 9 of the tribunal’s reasons, it was evident that an exchange took place between the applicant and the tribunal to the effect that any refusal of the decision represented a disaster for the first applicant and her family as her two older sons were then at primary school and her youngest son, a baby, would suffer as a result.
The tribunal took into account the elements of cl 485.212 and made various findings and reached various conclusions. It is useful to summarise the principal ones among them. They were –
a)the tribunal correctly identified the principal issue for its consideration was whether the first applicant satisfied cl 485.212 of sch 2 to the regulations, in that the applicant had undertaken a language test specified in a relevant instrument and had achieved the score required in accordance with the specified requirements;
b)the relevant instrument specifying language test scores, relevant periods and passports was IMMI15/062;
c)the tribunal found that the applicants lodged their subclass 485 visa application on 30 September 2016, to which the first applicant answered in the negative that she had undertaken an English test within the preceding 36 months;
d)the tribunal found that the first applicant undertook a PTE academic English test on 8 November 2016, in which she obtained an overall score of 44 points and the applicant undertook another PTE academic test on 2 May 2017, in which he achieved an overall score of 48 points; and
e)the first applicant had not undertaken any other English test in the 36 months immediately preceding the lodgement of the relevant application for a visa.
The tribunal found that the first applicant was not able to satisfy cl 485.212(a) as she did not undertake a specified English test within the required period in which she obtained the required score.
The tribunal found that it had no discretion within the law to overlook or waive that requirement, a point discussed with the first applicant. The tribunal acknowledged the distress that the outcome may have caused the first applicant but pointed out in paragraph 16 of its reasons that it had no discretion in respect of subclass 485 visa criteria. The tribunal pointed out that it was open to the applicant to seek the intervention of the minister.
In paragraph 18 of its reasons, the tribunal found that the applicant did not meet the requirements and therefore, did not satisfy the criteria for the grant of the relevant visa.
In this court
In her application to the court today, the first applicant relied on three grounds. As mentioned above, they were largely discursive. They did not contain particulars. In a long line of cases in the Federal Court of Australia, the absence of particulars to grounds in an application for judicial review is frequently fatal to the application and can form the basis of the dismissal of the application for that reason alone.
Those cases include WZAVW v Minister for Immigration and Border Protection,[3] WZATH v Minister for Immigration and Border Protection,[4] AQN15 v Minister for Immigration & Border Protection,[5] BHK15 v Minister for Immigration and Border Protection[6] and a decision handed down last week in MZARG v Minister for Immigration and Border Protection.[7] None of the grounds alleged in this case were supported by particulars, so it was well-nigh impossible to divine the propositions of fact or law on which the first applicant relied to base her contentions that the tribunal erred.
[3] [2016] FCA 760
[4] [2014] FCA 969
[5] [2016] FCA 571
[6] [2016] FCA 569
[7] [2018] FCA 624
Insofar as the first applicant asserted that she was given an inadequate opportunity to explain her medical condition to the delegate that contention at a factual level might be correct but is incorrectly made in this court because, as the case of Zubair v Minister for Immigration and Multicultural and Indigenous Affairs[8] held, this ccurt is concerned with the activities of the tribunal not the delegate.
[8] (2004) 139 FCR 344
Ground one
Under ground one the applicants sought to agitate matters akin to a merits review. A long line of cases of indisputable veneration in the High Court has held that it is not appropriate in a judicial review application for the judge to embark on a re-evaluation of a finding of fact. Cases such as Chan Yee Kin v Minister for Immigration and Ethnic Affairs,[9] Attorney-General (NSW) v Quin,[10] Australian Broadcasting Tribunal v Bond[11] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang[12] have so held. The proposition is beyond debate.
[9] (1989) 169 CLR 379
[10] (1990) 170 CLR 1
[11] (1990) 170 CLR 321
[12] (1996) 185 CLR 259
Ground two
Under ground two the applicants wished to visit again the activities of the delegate. For reasons already mentioned, the activities of the delegate fell beyond the scope of judicial review in this court and, in dismissing ground two, I place particular reliance on the observations of the Federal Court in Zubair previously cited above.
Ground three
Ground three was again not easy to follow. However, it appeared to me that the real gravamen of the ground lay in the first applicant’s contentions that she ought to have been granted a visa because in fact, at least according to her, she met the elements of cl 485.212. In my view, she did not. She did not undertake a language proficiency test in the three years before the day on which the visa application was lodged. The tribunal so found. It had no discretion to take into account any circumstances urged by the applicant, nor to waive that requirement. The tribunal did as it was required to in correctly applying the law to the circumstances of that case.
Conclusion
In my view, none of the grounds have succeeded.
In those circumstances, I am satisfied that the applicant has not demonstrated that she has an arguable case. That is not the end of the matter. The cases in the Federal Court have held that, irrespective of a conclusion that the applicant may face an order for the summary dismissal of the proceeding, it is nevertheless competent for the court to refuse to summarily dismiss the proceeding. Those cases include Siddique v Minister for Immigration and Border Protection[13] and SZTTW v Minister for Immigration and Border Protection.[14] Now, I have considered those decisions but take the view that the tribunal made no error in the case and, in the exercise of my discretion, no useful purpose would be served in not doing as r 44.12 of the rules authorises me to do, namely, to summarily dismiss this proceeding.
[13] [2014] FCA 1352
[14] [2014] FCA 837
I dismiss this proceeding and order the applicant to pay the minister’s costs fixed in the sum of $3 606.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 3 September 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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