Federal Court of Australia

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 484

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application dated 17 November 2022 is dismissed.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs fixed in the sum of $7,5000.00 (incl GST).

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    This appeal was dismissed by an order made on 28 April 2023. Oral reasons were given on that day. These written reason for judgment are revised from the transcript.

Visa application

2    On 7 November 2016 the appellant, Ms Kuldeep Kaur made an application under the Migration Act 1958 (Cth) for a Student (Temporary) (Class TU) Student (subclass 500) visa.

3    Visa applications were also made by the appellant’s husband and son. The success of their applications depended upon the grant of a visa to the appellant.

4    An essential criterion for the grant of a Student (Temporary) (Class TU) Student (subclass 500) visa is that contained in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth). It is sometimes referred to as the genuine temporary entrant criterion. It is to the effect that the Minister must be satisfied that the visa applicant is a person who intends to stay in Australia only temporarily and for the purposes of study.

5    On 11 November 2016 a delegate of the Minister refused to grant the visa on the basis that the genuine temporary entrant criterion was not fulfilled.

6    The appellant and her family members applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. The Tribunal affirmed the decision, also on the basis that the genuine temporary entrant criterion was not fulfilled.

7    On 10 September 2019, the appellant commenced an application for judicial review of the Tribunal’s decision in the then-named Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (FCFCoA)). Her family members were not joined as parties.

Proceedings before the primary judge

8    The jurisdiction exercised by the primary judge was that conferred by s 476 of the Act. It is the same jurisdiction as that conferred on the High Court under s 75(v) of the Constitution. On that application, the onus was on the appellant to show that the decision of the Tribunal was affected by jurisdictional error:  Act, s 474; Craig v South Australia (1995) 184 CLR 163, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

9    The grounds of review alleged at the first instance were expressed in the following terms:

1.    The case officer did not consider my circumstances and evidence.

2.    Enough evidence provided, which is required, but not consider.

3.    I am not satisfied with this decision, because I provided all the evidence which is related to my case, In this decision he did not mention any of these evidence, look like he already make this decision before my hearing, so I request please reconsider my case, I really thankful to you.

10    The hearing of the application for judicial review was delayed for reasons related to the COVID-19 Pandemic. The application was eventually set down for hearing on 29 August 2022. Four days before the listed hearing date the appellant filed an application seeking an adjournment because of her “critical medical condition”. The application was supported by an affidavit sworn by the appellant annexing three letters: a letter from a medical specialist to the appellant’s general practitioner, a letter addressed to the FCFCoA from the general practitioner and a letter authored by the appellant directed to the primary judge containing assertions of fact and submissions.

11    The letter from the general practitioner stated:

I am writing to state that Kuldeep Kaur suffers from intermittent P/V bleeding and pain in lower abdomen due to a medical condition. Its onset and duration is unpredictable. She has is currently under care is a gynaecologist and is awaiting surgery.

12    There is more detailed information concerning the nature of the condition in the letter passing between the specialist and the general practitioner. Among other things, it refers to the appellant having experienced ongoing abnormal uterine bleeding for the past few years.

13    In the letter directed to the primary judge, the appellant described her health condition as critical because she had more than one kilogram of fibroids in her fallopian tubes and uterus. She said that she was unable to perform daily routines because of continuous bleeding and pain. She said that the pain and bleeding was uncertain and that she did not know what time it might start and when it might stop but once it started it was hard to “observe this pain”. She stated that her general practitioner and gynaecologist had recommended surgery. The need for surgery was confirmed by the medical documents supplied by the appellant.

14    The appellant stated that if anything happened during the hearing she would not be able to speak properly and did not want to waste the valuable time of the court. She sought to adjourn the hearing to an unspecified date after her surgery.

15    The primary judge heard submissions in support of the adjournment application at a telephone hearing on 29 August 2022. His Honour granted only a short adjournment to 2 September 2022.

16    On the new hearing date, the appellant attended the hearing in person and made oral submissions in support of her application for judicial review. She also presented detailed written submissions. She did not make any further adjournment application.

17    The primary judge dismissed the application for judicial review:  Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 751. His Honour explained (at [37] – [44]) why he did not grant an adjournment of the hearing for a longer period of time.

18    With respect to the medical evidence, the primary judge referred to the appellant’s affidavit and its annexures and broadly summarised their content. His Honour said (at [40]):

…  In all the circumstances prevailing at the time, I was not prepared to adjourn the case for any lengthy period of time, particularly given what I regarded as the uncertain nature of Ms Kaur’s medical condition with her asserted inability to present her case.  …

19    I understand that aspect of the reasons to mean that the primary judge was not persuaded on the material before him that there was a connection between the appellant’s medical condition and her ability to present her case.

20    His Honour stated (at [40]) that he was concerned that:

  … as presently formulated, her case did not appear to have any obvious merits.

21    His Honour went on to say (at [44]):

Although sympathetic to Ms Kaur and whilst acknowledging the moment of these proceedings for her and her family personally, I did not consider it to be in the interest in the overall administration of justice for her case to be subject to any further delay. Particularly given my preliminary assessment that her case was tantamount to an application for merits review based on a plea to be able to remain in this country.

22    The primary judge referred to the decision in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 which he described as analogous. There, Davies J said (at [13]):

These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.

Notice of appeal

23    The appellant appeared self represented in this Court as she had done at first instance. Her notice of appeal contained the following contentions:

Respected Hon. Federal Circuit Court Judge mentioned in their judgement applicant asserts unable to present case due to medical condition. Hon. Judge in hurry to make decision, on phone hearing and on in person hearing other parties lawyer said your matter already too late because you filled this application for review in 2018 its already more than 4 years and we can not adjourned your date of hearing because of your medical condition its clearly showing they are in hurry to finish this matter without listening me if there is 4 years delay for this matter this is not because me its because Covid-19 everyone affected with this Covid-19 why opposition lawyers and hon. Judge put all blame on me for this. In my submission i cleared all the doubts which my case officer mentioned in his decision when he rejected my visa. When hon. Judge made this decision he not even talk about my submission, he said to me even If i want I can not change AAT decision.

I provide all the necessary documents related to my critical medical condition include all the doctor and specialists reports and written medical certificate which clearly showing patient medical condition is critical which cause her to explain all the matter to court because more than 1kg fibroids in her baby tube which cause continuously bleeding if Hon. Judge consider my medical condition and adjourned my hearing for some time then I definitely explain everything which favoured me to win this appeal and I can easily satisfied the Hon. Judge might be changed his decision.

24    Argument proceeded on the basis that the appellant alleged two appealable errors, namely that the primary judge had erred by:

(1)    refusing to grant an adjournment for a longer period of time; and

(2)    failing to have regard to submissions and material upon which the appellant had relied on her application for judicial review.

Adjournment

25    The power to grant or refuse to grant an adjournment is discretionary. In House v The King (1936) 55 CLR 499 (at 504 – 505), the High Court discussed the well established principles concerning the manner in which an appeal against the exercise of a discretionary power should be determined:

… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance.

26    The ground of appeal before me alleges that the primary judge failed to recognise that the appellant suffered from a medical condition that impaired her ability to present her case, and that she had been wrongly blamed for the long delay between the commencement of her application for judicial review and the date on which it eventually came on for hearing.

27    I accept that the delay resulted largely from the COVID-19 pandemic which caused disruption in both this Court and in the FCFCoA for which the appellant was not responsible. However, the contention that the primary judge blamed the appellant for that delay finds no support in the reasons for judgment. The primary judge did no more than to make the objective observation that a long time had passed since the application was filed, as a relevant factor in determining whether it was in the interests of justice for there to be any further delay. The delay was a relevant circumstance in light of his Honour’s stated concern that the grounds for judicial review appeared on their face to involve a challenge to the merits of the decision that did not give rise to jurisdictional error on the Tribunal’s part. The primary judge was entitled to have some regard to the apparent merits of the grounds of judicial review when deciding whether it was in the interests of justice for there to be any further delay in the final resolution of the application.

28    As to the medical evidence, the appellant did not suggest that the brief summary of that material set out in the reasons for judgment was inaccurate. The reasons of the primary judge are to the effect that the evidence did not clearly establish a connection between the medical condition and the ability of the appellant to present her case. That conclusion was open on the material before the primary judge. The medical evidence described the condition as one involving intermittent bleeding and pain and confirmed that medication had been prescribed to manage the bleeding. The appellant’s own description of the condition confirmed that the symptoms were intermittent.

29    The appellant’s oral submissions in this Court did not address this aspect of the material before the primary judge. To the extent that the ground of appeal itself contains material in the nature of submissions I have had regard to them. The material does not disclose error of the kind discussed in House v The King. Given the intermittent nature of the symptoms of the medical condition I consider it was open to the primary judge to conclude that the evidence about the effect on the appellant’s ability to present her case was uncertain. His Honour did not commit appellable error by failing to adjourn the hearing until after the unknown date of the appellant’s surgery.

Alleged failure to consider submissions

30    The primary judge (at [33]) stated that the appellant’s submissions did not provide any obvious grounds for a finding of jurisdictional error. However, he went on to summarise the arguments the appellant had asserted as follows (at [34]):

•    The Tribunal had not given any consideration to the fact that she had been able to financially support herself, during her period in Australia, which had enabled her to complete her course in August of 2021;

•    She needed to remain in Australia to provide financial support for her family, both in Australia and in India, particularly her son;

•    She had been granted temporary visas and did not intend to live in Australia permanently;

•    She intended to open a multimedia and printing company in India and her qualifications would enable her to run such a company;

•    The refusal of a visa to her would affect her child’s future visa applications; and

•    She had never previously contravened any conditions relating to visas granted to her in the past.

31    The primary judge concluded:

35    In my assessment, the applicant’s submission is a summary of her various contentions that she personally merits the granting of the visa in question and further, that it would be unfair to both her and her family, if the visa was not granted. In essential terms, it is a plea to the court to exercise a discretion, which it does not have, to allow her to remain in Australia.

36    I appreciate that the applicant is not legally qualified. However, my impression is that her application and the written submissions which support it can be characterised as an inchoate appeal to quash the relevant decision on the basis solely that the applicant is dissatisfied with it and would prefer the outcome was different.

32    In this Court, the appellant made oral submissions in support of her grounds of appeal with the assistance of her husband as a McKenzie friend. The submissions were largely to the effect that the Tribunal ought to have made findings different from those conveniently and correctly summarised in the Minister’s written submissions.

33    This Court also has before it the written submission relied upon by the appellant in the proceeding before the primary judge. It is evident from [33] – [36] of the primary judge’s reasons that he did, in fact, have regard to those submissions and that he properly understood them. He characterised the submissions as involving an attack on the merits of the Tribunal’s decision and concluded that they did not disclose jurisdictional error. That characterisation was correct.

34    The appeal must therefore be dismissed.

Interlocutory application

35    The appellant filed an interlocutory application seeking to join her husband as a party to the appeal. In her supporting affidavit she deposed that her husband was a party to the review application before the Tribunal but she had received information that he should not be joined as a party to the application for judicial review.

36    Rule 36.31 of the Federal Court Rules 2011 (Cth) relevantly provides:

(1)    Each party to the proceeding in the court appealed from who may be affected by the relief sought in a notice of appeal, or who might be interested in maintaining the judgment under appeal, must be joined as an appellant or respondent to the appeal.

(2)    A person must not be named as an appellant without the person’s consent.

(3)    If the relief sought in a cross-appeal might affect a person not a party to the appeal, the person must be joined as a respondent to the cross-appeal.

(4)    A person who is not a party to an appeal or a cross-appeal, but is a person mentioned in subrule (1) or (3), may apply to the Court to be joined as a party.

37    The appellant’s husband was not a party to the proceeding in the court appealed from. He is not a person named in r 36.31(1) or r 36.31(3) and accordingly he is neither required to be joined as a party, nor is he a person who may apply to the Court to be joined. He has made no application to intervene in accordance with r 36.32(1) of the Rules and I am not satisfied that the requirements for intervention are met.

38    I accept that the immigration status of the appellant’s family members is dependent upon the outcome of her own visa application. However, that circumstance does not warrant the joinder of persons as parties who were not parties in the court appealed from. Had the Tribunal’s decision with respect to the appellant’s visa been set aside, this Court would expect that the Minister would accede to orders granting an extension of time for any separate application the appellant’s family members might bring in the FCFCoA for consequential relief to ensure that their dependent visa applications are determined according to law.

Associate:

Dated:    28 April 2023