Hassan v Minister for Immigration and Multicultural Affairs [2002] FCA 74

FEDERAL COURT OF AUSTRALIA

Hassan v Minister for Immigration and Multicultural Affairs [2002] FCA 74

MIGRATION – application for a long-stay visa – whether genuine intention to visit –applicant notified through solicitor intention to seek adjournment one day before hearing and of intention to cease to act – duty registrar promptly notified solicitor of need to produce evidence of alleged medical condition if adjournment to be granted - no supporting evidence of ill health produced – solicitor granted leave to cease from acting for the applicant – adjournment refused – no error of law in any event apparent in the reasons for decision of Tribunal. Migration Act 1958 (Cth) s 474 Migration Regulations 1994 (Cth) Part 686 Schedule 2 MUNAWAR HASSAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOTHER N 1575 of 2001 CONTI J 5 FEBRUARY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1575 OF 2001

BETWEEN: MUNAWAR HASSAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 5 FEBRUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1575 OF 2001

BETWEEN: MUNAWAR HASSAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: CONTI J

DATE: 5 FEBRAURY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Applicant is a national of Pakistan born on 25 October 1973. He entered Australia on 2 February 2000 on a sub-class 456 business visa which enabled him to remain here legally until 2 May 2000. The Applicant sought to remain in Australia for a period longer than that specified in the above-mentioned visa. He claimed that he wished to visit more destinations in Australia and especially to attend the Sydney Olympic Games. As a consequence, the Applicant applied for a long-stay (visitor) (class TN) visa on 20 April 2000. On 21 June 2000, a delegate of the Respondent, the Minister for Immigration and Multicultural Affairs, refused to grant a long-stay visa. 2 The Applicant applied to the Migration Review Tribunal ("the Tribunal") for review of the decision of the Minister on 18 July 2000. On 11 July 2001, the Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a long-stay (visitor) (class PN) visa. As in the case of the delegate, the Tribunal was not satisfied that the expressed intention of the visa applicant to visit Australia was genuine. 3 When the matter was before the Tribunal for hearing, it ascertained that the Applicant had been living in Australia with a friend for a period of 16 months. Despite his stated plans to travel around Australia, the visa Applicant has in fact spent the majority of the past 16 months in Sydney visiting friends. The only travel undertaken on the part of the Applicant appears to have been to Newcastle, Kiama and Gunnedah. 4 The Tribunal considered the financial means and level of support assistance available to the Applicant. The Tribunal pointed out that on a number of occasions, the Applicant gave conflicting evidence in relation to his access to funds during the period of his stay in Australia. The Applicant was unable to satisfactorily explain the source of those funds. The Tribunal was prepared to concede that despite such discrepancies and inconsistencies, the Applicant did have access to some funds from overseas and that he is receiving some level of financial support from an overseas source during his stay in Australia. The Tribunal, however, was not satisfied on balance that such level of financial support was sufficient for his proposed period of stay. Accordingly, the Tribunal concluded that the purpose of the Applicant's visit to Australia was not consistent with a genuine visit as required by Part 686 of Schedule 2 to the Migration Regulations 1994 (Cth). 5 The Tribunal then considered whether there were any circumstances that could induce the Applicant not to return to Pakistan. The Tribunal pointed out that the Applicant has previously been refused a visa for the USA and New Zealand. Despite the fact that his mother and siblings continue to reside in Pakistan, the Tribunal was not satisfied on balance that the Applicant had any personal, financial, employment or other commitments that would induce him to return to Pakistan upon the expiration of any authorised period of stay. The Tribunal noted that the Applicant no longer continues to hold a student visa which would enable him to return to the Philippines to resume his studies. 6 The Tribunal's final conclusions are relevantly extracted as follows: "The Tribunal has considered all of the evidence before it. On balance, the Tribunal was not satisfied that the visa Applicant intended genuine visit to Australia. The visa Applicant has been in Australia for a period of over 16 months. The visa Applicant has been unable to satisfactorily explain his intentions in remaining in Australia for this lengthy period. … The Tribunal finds on balance that there is a greater incentive for him to remain in Australia than to return to Pakistan. There is no evidence before the Tribunal that he is eligible to return to the Philippines to resume his studies. He has not been able to satisfactorily explain to the Tribunal why he chose not to return to the Philippines to complete his studies at the expiry of his original visa…For all the reasons stated above the Tribunal was not satisfied that the visa Applicant is a genuine visitor to Australia." 7 On 28 November 2002, an application was filed in this Court for relief under s 39B of the Judiciary Act 1903 (Cth), which specified no particulars of the purported grounds upon which relief was sought. The form of the application for review provided that on the grounds stated in the accompanying affidavit of Mr Warren Nguyen, a solicitor and migration agent, the Applicant claims: "1. An order that a writ of certiorari be directed to the Second Respondent to quash its decision of 11 July 2001. 2. An order that a writ of prohibition be directed to the First Respondent prohibiting him from acting upon, giving effect to or proceeding further upon the decision of 11 July 2001. 3. An order that a writ of mandamus be directed to the Second Respondent to redetermine the Applicant's visa application according to law. 4. An order that the First Respondent pay the costs of the Applicant." 8 The supposed grounds of review however stated in the affidavit of Mr Nguyen read as follows: "(a) exceeded its jurisdiction in making its decision to affirm the First Respondent's decision; and (b) constructively failed to exercise its jurisdiction in arriving at its decision." Thus no indication was given as to the respect in which or reasons for which there was any such excess of jurisdiction or constructive failure to exercise jurisdiction. The grounds of review, such as they were, had all the indications of a mere stalling tactic designed to delay the Applicant's exodus from Australia. 9 On 4 February 2002 at 4:06pm, that is to say, late in the afternoon of the day preceding the allocated hearing date, Warren Nguyen and Associates, the solicitors and migration agents then on the record for the applicant, wrote by facsimile to the registrar of the Court. That letter, omitting formal parts, read as follows: "We advise that the client is sick with an asthmatic attack and has gone to hospital today. We are no longer retained by the client. We will hand over to the client, all the files when he recovers and comes to see us. We thank you in anticipation." 10 The facsimile response of the Duty Registrar of the Court of 4 February 2001, sent at 4.33 pm in the afternoon of 4 February 2002, was in the following terms: "I refer to your facsimile sent today that you are no longer retained by the applicant whom you inform has gone to hospital today and is sick with an asthma attack. To withdraw as the solicitor for the applicant on the Court record, requires that there be compliance with Order 45, Rule 6 or Rule 7 of the Federal Court Rules. Rule 6 provides that where the retainer has been determined, the party may file a Notice of Change of Solicitor. Rule 7 provides that where a solicitor ceases to act, then an affidavit attaching notice to the applicant that the solicitor has ceased to act be filed and served and a period of seven days notice is required to be given to the solicitor's client. A notice of change solicitor may then be filed. Until either of those procedures are complied with, as solicitor, you remain on the record or else leave is given that you be removed from the Court record. Consequently as an officer of the Court, as this matter is listed tomorrow for hearing, there is, I suggest, an obligation you attend and seek leave to withdraw as the solicitor and inform the Court of your instructions. If the applicant is unwell to attend Court tomorrow, medical evidence of his incapacity is required and it might be prudent if a relative or friend of the applicant attend. I understand that Mr Gilani has been assisting the applicant." 11 Mr Nguyen did appear in Court, after I had commenced giving ex tempore reasons for judgment. He tendered a communication which was addressed to his client on 4 February 2002 in which he set out, amongst other things, the following: "We advise you again that your case was listed for hearing on Tuesday, 5 February 2002 at the Federal Court on Queens Square, Macquarie Street, Sydney 2000. We note however that you phoned us at 4:00 pm on Monday, 4 February 2002 telling us that you are sick and are about to enter hospital. You also asked us to hand back the matter for you [sic] and you will contact the Court yourself after you are discharged from hospital." It is apparent that the applicant has not been in touch directly with the Court or with his solicitor, in respect to the above communication. Consequently, the assertion made by the applicant through the solicitor's letter of 4 February 2002 that he is sick with an asthmatic attack and has gone to hospital on 4 February 2002, has not been purportedly verified. 12 There is therefore no sufficient or other reason before me to justify postponement of the proceedings. I am not satisfied that this virtually last minute and unsubstantiated claim of sickness is genuine. 13 As I have already foreshadowed, no submissions have been received by or provided to the Court which supported the supposed grounds of the application for review. It is thus not possible to identify the reason why it is claimed that the exercise of decision-making function undertaken by the Tribunal miscarried. Nothing in the Tribunal's reasons or in the materials in the Court book disclose any basis for contending, let alone concluding, that the Tribunal did not act in good faith in reaching its decision, or that the decision was not reasonably referable to the decision making power given to the Tribunal, or that the decision exceeded any relevant limits set out in the Australian Constitution, or that there has been a failure to observe or comply with any provisions of the Act or any other requirement imposed by law in respect of the decision which the legislature required to be observed or complied with for there to be a valid decision. There is no apparent error or abuse of power reviewable, given the terms of s 474 of the Act. 14 In the absence of any material before the Court to sustain the contrary view, I am of the opinion that the application for review of the Tribunal decision plainly is without foundation and viability, and likewise the application for adjournment informally and indirectly before the Court. The application for review must be dismissed with costs. 15 In the afternoon following the hearing of the proceedings, there was received by the Court from the Applicant direct a facsimile message excluding formal parts as follows: "I, Munawar Hassan would like to inform The Federal Court of Australia that I cannot able to attend my case hearing on Tuesday, February 5, 2002 due to sickness. I got an Asthmatic attack yesterday on Monday 4th Feb. and still not in good condition, therefore I cannot able to attend my case hearing on time. I hope my solicitor has already informed yesterday about my sickness and my absence from court hearing. I hope Court will consider my excuse and set another date for my hearing so I shall be thankful. Please do not hesitate to contact me should there any questions in relation to my case. In future please also send a carbon copy of any document related to my case on following given address. Hoping for your kind consideration regard above matter." Nothing contained in that letter requires in my opinion the revocation of the orders made in the circumstances I have earlier described. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.