FEDERAL COURT OF AUSTRALIA

Waris v Minister for Immigration and Border Protection [2018] FCA 1481

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs, of and incidental to the application, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    The applicant came to Australia in October 2008 on a Student visa. The last visa of that kind was granted to him on 12 February 2015. One of the criteria, namely, condition 8202, as set out in Sch 8 to the Migration Regulations 1994 (Cth) made under the Migration Act 1958 (Cth) (the Act), is that the visa applicant be enrolled in a registered course. A delegate of the Minister then responsible for the administration of the Act, now the Minister for Home Affairs (Minister), then the Minister for Immigration and Border Protection, determined that the applicant had not been enrolled in a registered course since 16 March 2015. Accordingly, acting under s 116(1) of the Act, the delegate cancelled the applicant’s Student visa, as he was entitled so to do. The applicant then sought the review of that cancellation decision by the Administrative Appeals Tribunal (Tribunal). On 13 February 2017, the Tribunal decided to affirm the delegate’s visa cancelation decision.

2    The applicant then applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. That judicial review application became the subject of an application pursuant to the Federal Circuit Court Rules 2001 (Cth) (Rules) for the applicant to show cause why his judicial review application should not be dismissed summarily pursuant to r 44.12(1)(a). On 5 February 2018, for reasons for judgment delivered ex tempore that day, the Federal Circuit Court decided to dismiss the applicant’s judicial review application.

3    The effect of r 44.12(2) of the Rules is that an order of dismissal under r 44.12(1)(a) of those rules is interlocutory in nature. In turn, the effect of section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is that the applicant requires a grant of leave in order to invoke the appellate jurisdiction of this Court. The applicant filed an application for leave to appeal, together with a supporting affidavit made by him, on 14 February 2018.

4    Directions in respect of the hearing of that application were made by a Registrar on 28 March 2018. The Minister filed an outline, and a comprehensive one at that, as required, or rather as permitted, by the Registrar’s order. The applicant chose not to do that.

5    On the hearing of the application this morning, the applicant sought further time within which to prepare his case in relation to the application for leave. From the chronology which I have offered, it is apparent that in excess of six months have elapsed between when the applicant filed his application for leave to appeal and today. Further, well over four months have elapsed since the Registrar made the programming orders.

6    There is no evidence before me which would warrant the granting of an adjournment to the applicant. The Minister opposed the granting of such an adjournment. In my view, a lead time of six months is more than adequate time within which to prepare for the hearing of an application for leave to appeal. For that reason, I was not disposed to grant an adjournment.

7    Nonetheless, it is apt, before settling on this disposition to advert to the proposed grounds of appeal. There are three proposed grounds of appeal set out in the application for leave. They are:

1.    The Federal Circuit Court made a decision without considering all facts and information and disregarding the evidence it had on file

2.    The Federal Circuit Court erred in not assessing the review grounds submitted to Tribunal in regard to compelling and compassionate circumstances I had for not meeting the required migration regulation at the time of my visa application

3.    The Federal Circuit court failed to see that Tribunal did not allow procedural fairness and natural justice and erred in not having considered my exceptional circumstances.

[sic]

8    As a general observation in respect of these grounds it may be said that they do not, in terms, engage with the grounds of review pressed as jurisdictional error grounds before the Federal Circuit Court. Of course, error might additionally be found in the way in which the Federal Circuit Court dealt with the show cause application before it, as a matter of practice and procedure. Further, I do not exclude the possibility that, exceptionally, a substantive ground might be introduced in the exercise of appellate jurisdiction, even if not taken as a ground of jurisdictional error in the court below if the interests of justice so required.

9    The principles to be applied in relation to whether to grant leave to appeal from an interlocutory judgment were stated by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc [1991] 33 FCR 397. In essence, they are:

(1)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

10    That test is regarded as a cumulative one. The Federal Circuit Court did not dismiss the judicial review application after a hearing on the merits, but rather, summarily. To do so the court had to be persuaded that there was no reasonable prospect of success in respect of any of the pleaded grounds of review. The difficulty in relation to the grounds of the application is that they do not, in terms, engage with why it was that the Federal Circuit Court was in error in dismissing the judicial review application summarily.

11    Of course, if at least one of the proposed grounds of review were arguable, it would have been an error for the Federal Circuit Court to dismiss the application summarily. That court was not acting upon the equivalent of s 31A of the FCA Act, but rather under the show cause provision in the Rules. But even when one is asked to act under the equivalent of s 31A, the summary dismissal of a proceeding can, as Spencer v Commonwealth of Australia (2010) 241 CLR 118 demonstrates, be fraught. Sometimes, even when a case looks not to have merit, it can be better to deal with it substantively, rather than open for debate whether or not there was a case for summary dismissal.

12    These sorts of decisions are really tactical ones for respondents to make and hindsight can, at times, be a great teacher in that regard. As it happens, in this particular case, for the reasons given by the learned primary judge, the case was, in my view, one for summary dismissal. There was never any doubt, as a matter of fact, that the criterion for the engagement of the exercise of the discretion to cancel found in s 116(1)(b) of the Act existed. In other words, as a matter of fact, the position before the Tribunal was that the applicant had not complied with a condition of the visa, namely, condition 8202.

13    That then enlivened a discretion as to whether to cancel. That discretion was limited only by the subject matter, scope and purpose of the Act. By that I mean that s 116 does not, in terms, specify particular bases upon which the visa might, notwithstanding the non-compliance with a condition, not be cancelled. The subject is not one consigned, as a matter of public administration, to a discretion at large, but is rather informed, as a matter of practice, by particular guidelines and considerations specified by the Minister in the Procedures Advice Manual. Such manuals have aim of consistency in public administration. It was certainly open to the Tribunal to have regard to considerations set out in such a manual sitting, as it did, in place of the primary decision-maker, although, of course, the Tribunal was not limited by such specifications.

14    As it happened, after the conduct of a hearing, in which the applicant gave evidence, the Tribunal determined nonetheless that the case was one for cancellation. In so doing, the Tribunal took into account the predicament in which the applicant found himself as the result of lending to a friend, the sum of $10,000, which might otherwise have been deployed in payment of student phase.

15    There was also evidence as to the applicant’s family being a potential source of funds. Likewise, there was evidence before the Tribunal in relation to housing difficulties, as well as, at a generalised level only, evidence by a certificate from a medical practitioner as to an anxiety condition suffered by the applicant. The latter evidence, as the primary judge came to note, did not descend to a level of detail as to an inability on the part of the applicant to participate in a hearing. The applicant had been represented before the Tribunal at interlocutory stages by a migration agent, but was not so represented at the hearing itself.

16    Further detail as to the proceedings before the Tribunal is set out in the reasons for judgment of the learned primary judge.

17    As to the grounds of review which were pleaded in the judicial review application, each was addressed by the learned primary judge.

18    The first was an allegation that the Tribunal had failed to accord the applicant procedural fairness, as enlarged upon, apparently orally, on the hearing of the show cause application. The basis for this related to the applicant’s medical condition. It may be accepted that, if an applicant’s evidenced mental state were such as to demonstrate an inability to participate in a hearing, the requirement to provide a hearing, if sought, would not be met. However, there was no error, having regard to the evidence before the Tribunal, in the conclusion reached by the primary judge that this ground was not reasonably arguable.

19    The second ground of review alleged a failure on the part of the Tribunal to comply with s 359A of the Act by a failure to give the applicant clear particulars of the reasons upon which the case might be decided adversely to him. More particularly, that section requires that clear particulars be given of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.

20    But amongst other things, that requirement does not apply to information that an applicant gives for the purpose of the application for review (see s 359A(4)(b)). Nor does it apply to the Tribunal’s subjective thought processes. The applicant’s case in relation to non-compliance by the Tribunal with s 359A of the Act rose no higher than an assertion that the Tribunal had failed to give clear particulars of information which it was not required to give him. Thus the conclusion reached by the primary judge that non-compliance with s 359A did not afford a reasonably arguable basis for jurisdictional error was plainly right.

21    Ground 3 alleged a failure on the part of the Tribunal to give the applicant an opportunity to address the issues and grounds upon which the visa was cancelled, but there is nothing to indicate that such an opportunity, in other words, a hearing, was not afforded to the applicant. The conclusion of the primary judge that the applicant himself had given the Tribunal a copy of the delegate’s decision which set out the reasons for cancellation indicated that the applicant had had an opportunity to address issues was doubtless right, insofar as it went. But in any event, as the Tribunal’s reasons demonstrate, the basis for cancellation was patent, the question being whether the applicant satisfied the Tribunal that as a matter of discretion, cancellation should nonetheless not follow.

22    There was no formal onus of proof in a proceeding such as the Tribunal conducted, but it was nonetheless in the applicant’s interests to adduce such material as he could in order to achieve a favourable exercise of discretion. It is apparent that he endeavoured to do this, but the result was nothing more than an unremarkable value judgment made on the whole of the evidence by the Tribunal for reasons logically explained. As the primary judge also concluded, that conclusion was one reasonably open on that material. However one approached Ground 3, it was not reasonably arguable.

23    Ground 4 was that the Tribunal had made a decision disregarding the applicant’s evidence and assessing the documents and evidence which the applicant submitted in paper form and also his oral submissions. But the reasons of the Tribunal display a comprehensive engagement with all of the foregoing. There was an earlier decision of the Tribunal made in 2014, which was favourable to the applicant in relation to the question of the cancellation of a visa. Her Honour’s conclusion that that previous decision did not bind a subsequent Tribunal in respect of a subsequent review on different evidence was plainly right.

24    Coming then to the grounds of the application, Ground 1 has no reasonable prospect of success insofar as it is meaningful at all. It is plain from the reasons for judgment of the learned primary judge that the facts and circumstances of the case were addressed by her Honour.

25    As to Ground 2, each of the judicial review grounds was expressly addressed. It was not for her Honour to make any value judgment at all in relation to the merits of whether there existed compelling and compassionate circumstances on the part of the applicant, such as to warrant non-cancellation. That was a subject permissibly considered and indeed considered by the Tribunal as to Ground 3.

26    Ground 3 concerns an alleged failure on the part of her Honour to see at least an arguable case of a denial of procedural fairness by the Tribunal. For reasons which I have already given, whether one approaches that on the basis of an asserted failure to afford a hearing, as required, or non-compliance with s 359A, the decision below was plainly right. There was just no arguable case. As to the closing reference in Ground 3, to exceptional circumstances, once again, the question as to whether there existed exceptional circumstances, such as not to warrant cancellation as a matter of discretion was one for the Tribunal, not for the Federal Circuit Court.

27    What follows from the foregoing is that the proposed grounds of appeal are not attended with sufficient prospect of successfully demonstrating error on the part of the Federal Circuit Court in relation to the summary dismissal of the judicial review application to warrant a grant of leave to appeal.

28    Accordingly, the application must be dismissed.

Associate:

Dated:    02 October 2018