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Federal Circuit Court set aside decision of tribunal on the basis of apprehended bias, in favour of an Indian Student

Singh v Minister for Immigration & Anor [2016] FCCA 2343 (21 September 2016) Background The applicant is a citizen of India. He first came to Australia in March 2009. At that time he was the holder a student visa.[2]He applied for a Skilled (Provisional) (Class VC-485) visa, this was granted and was valid for 18 months between 22 November 2012 and 22 May 2014. His application for the visa, the subject of this review, was made on 21 May 2014. His statement of reasons for wanting to study a Diploma of Marketing and an Advanced Diploma of Marketing, was that those courses would qualify him to be a team leader or supervisor in the automotive industry.[3]Since arriving in Australia, the applicant had completed a Certificate III in Automotive Mechanic Technology, a Certificate III in Automotive Specialist, a Diploma in Business, and a Diploma of Frontline Management.[4] The Minister’s delegate refused the application on the basis that she was not satisfied that the applicant met the requirements of cl.572.223(1)(a) of Schedule 2 to theMigration Regulations 1994(Cth) (‘the Regulations’). At the time of the Tribunal hearing, the applicant had commenced a Diploma of Marketing course which was scheduled to end in January 2016. He proposed to then undertake a Diploma of Management course which would end in August 2016.[5] He was, at the time of the Tribunal hearing, working full time as a security guard with MMS Security.[6] The applicant was invited to attend at the Tribunal hearing to give evidence and present argument. He was also given a copy of the relevant Ministerial Direction, Direction No.53.[7] The date fixed by the Tribunal for the hearing was apparently not suitable for the applicant’s representative[8]and accordingly the Tribunal wrote to the applicant advising that it had re-listed the matter for a later date.[9] The applicant’s representative submitted materials to the Tribunal. Those materials included a statement of the applicant entitled “Statement Addressing Genuine Temporary Entrant Criteria”.[10] Tribunal hearing The Tribunal hearing took place on 5 February 2015. The applicant gave evidence. He was questioned closely by the Tribunal member about some aspects of his explanation for seeking to pursue further studies and the apparent change in direction of his career aspirations. The issue was identified by the Tribunal as being whether the applicant met the criteria of cl.572.223(1)(a). As it was required to do, the Tribunal had regard to the matters identified in Ministerial Direction No.53,[11]noting that the Direction was to be used as a guide only and not a definitive checklist. It kept in mind that the factors were to be used in weighing up the applicant’s circumstances as a whole.[12] The Tribunal specifically acknowledged having received the materials forwarded to it on the applicant’s behalf and confirmed on two occasions that it had taken them into account.[13] The Tribunal considered all of the factors identified in Direction No.53 and not simply those identified by the applicant in his statement.[14] The Decision Record discloses a lengthy and comprehensive recital of the applicant’s evidence. In particular, the Tribunal noted that it raised with the applicant a number of aspects of his evidence that it regarded as problematic for his case. It invited his response to those areas. Having considered the evidence of the applicant, the Tribunal made the following findings: The applicant’s immigration and academic history however satisfies the tribunal that the applicant is strongly motivated to remain in Australia for employment reasons.”[15]“The tribunal is also satisfied and finds that the applicant is attempting to use the student visa program to circumvent the intentions of the migration program.”[16]“… The tribunal does not accept the applicant’s claim that his studies in management and marketing will assist him to obtain an operations manager or manager position in India. Such a claim appears as no more than a ‘throwaway line’ without substance. For similar reasons the tribunal places no weight on the documents provided by the applicant referring to a drug epidemic occurring in the Punjab.”[17]   The ultimate finding of the Tribunal was expressed as follows:“On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).”[18] For those reasons, it affirmed the decision under review. In my view, the following paragraphs from the judgement really sum up the issue of procedural fairness and apprehended bias – The Tribunal summarised the evidence of the applicant in considerable detail. Significantly, it dealt with the exchange about the conversation with the uncle at paragraph 24 of the Decision Record: “He said that his uncle spoke with him andtold him to return to Australia to file the review and wait for the decision (referring to the tribunal process) …”[41] (emphasis added) As noted above, this was wrong. The Tribunal did not make any express finding that the applicant had fabricated this conversation, or that it demonstrated an inconsistency that reflected on his credit. The Decision Record shows that the Tribunal did not make findings as to the reliability, truthfulness or plausibility of specific aspects of the applicant’s evidence. It expressed its findings in terms of not being satisfied of the applicant’s genuine intentions towards study and its satisfaction that he was attempting to use the student visa program to circumvent the intentions of the migration program. Nonetheless, given the manner in which the hearing was conducted, and the exchange which occurred over this part of the evidence, the erroneous finding as to his evidence was significant. This is particularly the case given the Tribunal’s general finding of evasiveness on the part of the applicant: “… His answers at hearing on that issue were largely evasive. He referred to an original plan to assist his father in an automotive shop in Dubai however that purported plan changed such the applicant now claims that he will return to India and with his father to establish a security business. Despite asserting that there are many auto shops in India

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Recent migration law case where Federal Circuit Court refuses an application filed some 3 months out of time seeking review of a protection visa refusal by Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”)

BCF15 v Minister for Immigration & Anor [2016] FCCA 2340 (8 September 2016) In this case, court considered number of important issues such as review of authorities in regard to extension of time, what is “claim”, nature of tribunal proceedings. The applicant contended in this proceeding that the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), fell into jurisdictional error when it found that the applicant did not meet the criteria for a Protection (Class XA) visa set out in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). In this proceeding the applicant advanced four arguments by which he asserted the existence of jurisdictional error. The applicant applied to this Court out of time so he needed an order granting him an extension of time within which to bring this application for review.The Tribunal’s decision was made on 12 February 2015. The applicant had 35 days within which to apply to this Court under s.477(1) of the Act, that is to say by mid-March 2015. Instead, the applicant applied to this Court on 19 June 2015, several months out of time. None of the four grounds of review amount to jurisdictional error. It follows that none of the grounds of review are “arguable”, “reasonably arguable”, “sufficiently arguable” nor have any of the four grounds of review “reasonable prospects of success”.[96] In my view no point is served in granting an extension of time for the bringing of this application for the review of the Tribunal’s findings. I refuse the application to extend time.In this case I have decided to refuse to grant an extension of time as the legal criteria for the grant of such an extension were not met. Issue of delay was dealt at paragraphs 10-19 – Extension of time The Tribunal’s decision was made on 12 February 2015. The applicant had 35 days within which to apply to this Court under 477(1)of the Act, that is to say by mid-March 2015. Instead, the applicant applied to this Court on 19 June 2015, several months out of time. In this case I have decided to refuse to grant an extension of time as the legal criteria for the grant of such an extension were not met. As long ago as 1984, in the context of the review of administrative decisions generally (not specifically those under the Act) Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[8](“Hunter Valley Developments”) put forward a six-point list of issues to be considered in an application to extend time. Relevantly paraphrased, they amount to the following – it is the prima facie rule that a proceeding commenced outside of the period prescribed by legislation will not be entertained[9]and that it is a precondition to the exercise of the discretion in favour of the grant of an extension of time that the applicant for the extension must show an “acceptable explanation”for the delay and that it is “fair and equitable in the circumstances” to extend time;[10] action taken by the applicant is relevant to the question of whether an acceptable explanation for the delay has been furnished including whether the applicant has continued to make the decision-maker aware that he (the applicant) contests the decision and has not rested on his rights;[11] prejudice to the respondent in defending the proceeding is a material factor militating against the grant of leave;[12] conversely, the absence of prejudice is not sufficient to justify the grant of an extension of time;[13] the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted;[14]and considerations of fairness as between the applicant and other persons are also relevant.[15] In the specific context of the Act, the decision in Minister for Immigration andMulticultural and Indigenous Affairs v Sun[16]is relevant but it turned on a different issue than did the facts of this case. The need for the applicant to show “something very persuasive indeed”to justify the grant of leave after a year was considered in Jess v Scott.[17]In that case the Federal Court said “something much less significant”might be justified where the party was a few days late in meeting the prescribed time.[18] In Howard v Australian Electoral Commission[19](“Howard”), Branson J referred to the three factors relevant to the exercise of the discretion to grant or refuse an extension of time, namely – the importance of the question sought to be raised; the bona fides of the proposed appeal; and the prima facie strength of the proposed ground of appeal. An illustration of the Federal Court of Australia refusing leave was given in WAJU v Minister for Immigration and Multicultural and Indigenous Affairs[20]especially whether the substantial application was without merit. In SZMNO v Minister for Immigration and Citizenship,[21]Barker J catalogued some of the situations where an acceptable explanation for the delay was not offered. In SZTES v Minister for Immigration and Border Protection[22](“SZTES”), the Full Court of the Federal Court of Australia held that the test applied by a judge of this Court, namely, whether the substantive proceeding had no reasonable prospects of success, was not incorrect. InMZABP v Minister for Immigration and Border Protection,[23] Justice Mortimer of the Federal Court of Australia expressly countenanced language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable”or whether it has “reasonable prospects of success”citing SZRIQ v Federal Magistrates Court of Australia & Ors.[24]Mortimer J cautioned against transforming the extension of time application into a de facto full hearing. In SZTES,Wigney J held that a judge hearing an extension of time application must carefully distinguish between grounds of review that are hopeless and destined to fail as opposed to grounds that are weak. Where grounds are weak, as opposed to those being hopeless, it will rarely be appropriate to refuse to extend time. That said, as French J held in Seiler v Minister for Immigration, Local Government and Ethnic Affairs,[25]an applicant on the hearing of an extension of time application need not establish that his or her grounds of review will succeed. In this case, the applicant’s written submissions[26]did not even address the applicant’s need to seek and obtain an order extending the time for the bringing of the application for review. However, a solicitor employed by Victorian Immigration Lawyers swore

Recent migration law case where Federal Circuit Court refuses an application filed some 3 months out of time seeking review of a protection visa refusal by Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) Read More »

Recent full court decision where the father appealed against final parenting orders which permitted the mother to relocate the children from Melbourne to regional Victoria

In Ulster & Viney [2016] FamCAFC 133 (28 July 2016) the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) heard the father’s appeal against an order of Judge Bender permitting the mother to relocate with children of 9 and 7 from Melbourne to Gippsland. The case provides guidance as to the Meaning of “daily routine” in the context of matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant. Dealing with this issues, His Honours commented, “[91] We agree with counsel for the mother’s submission that the section is to be interpreted in the context of a divided family, where parents live separately and apart from one another, and that it does not require ‘daily physical association with each and every procedure or activity that occurs – each day or each weekday’. [92] Here, the practical effect of the orders is that the children would have significant block periods of time with the father during school holidays and when alternate weekend and special overnight occasions are taken into account they would probably spend something like 95 – 100 nights annually (and associated days) in his care. There can be no doubt that this provided the father with the opportunity for active participation (involvement) in the children’s daily routine (albeit only to a limited extent during the school week). [93] It follows the orders satisfy each element of s 65DAA(3). [94] Consideration of the second limb of the test is thus required; namely whether, the primary judge erred in the exercise of her discretion by, in the circumstances of this case, finding that the amount of time ordered is ‘substantial and significant’. [95] The second question is to be considered in the context of her Honour’s determination that the children’s best interests were served by being in the mother’s primary care. Another important contextual matter is that the primary judge was also satisfied it was in the best interests of the children to permit the mother’s application for their relocation. ( … ) [101] As has already been mentioned, the time orders largely coincide with those which the father advanced. Although the father did not concede that orders along these lines amounted to ‘substantial and significant time’, we are satisfied they are. ( … ) [102] … [T]he primary judge considered not only the amount of time the children would spend with the father but also its significance in terms of the children’s relationship with him and the extent to which he would be involved in their lives. Her Honour thus considered both the quantitative and qualitative elements of ‘substantial and significant time’.” Strickland J dissented, allowing the appeal, saying (from [4]): “I agree with their Honours’ finding, and their reasons therefor, in relation to the meaning of ‘daily routine’ in s 65DAA(3)(b)(i) … but not with their reasons for rejecting the complaint of the father that the order made by her Honour was not one ‘which can properly be said to provide for “substantial and significant time” in any broader sense of that expression’ (emphasis omitted) relying on what the Full Court said in Eddington and Eddington (No 2) [2007] FamCA 1299 ( … ) [5] It is beyond doubt that the time the children are to spend with the father is ‘extremely limited’ and pales in comparison with the amount of time they enjoyed with him prior to separation and under the interim orders. The magnitude of that change and its effect on the relationship between the children and the father is amply described by the family report writer … namely: ‘ … Such a proposal entails the children moving from seeing [the father] six nights per fortnight to only two. This is a high magnitude change. The children and [the father] enjoy a strong and sound relationship which would be eroded and compromised if their time with him is reduced to such an extent. This would entail a significant loss for them which would not be in their interest.’ [6] On that basis the following submissions made by the father’s senior counsel in the written outline of argument are entirely apt, and I accept them as accurate: ‘In the context of this case the time spent under the proposal is neither substantial nor significant. The time is a small fraction of that enjoyed with the father before the implementation of such orders and its significance to the children is to be measured only by the degree of loss that will be occasioned to them and the erosion and compromise of their relationship with him occasioned by that reduction. Substantial and significant time is that time sufficient to enable children to feel that their parents are involved in all aspects of their care flowing from them being exposed to their parents in a variety of settings. Such settings may include activities on holiday and weekend as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. The orders proposed by the [mother] fall short of orders that allow such a balanced and rich relationship with their father. Under that proposal he ceases to be an active participant in their lives as ordinarily lived by them. He becomes a person whom they visit when they take time out from their lives.’ [7] Their Honours look to justify her Honour’s finding and consequent order by looking at the respective proposals of the parties in the event that relocation was permitted, and by noting their similarity. However, with respect, that misapprehends the task of a primary judge in considering s 65DAA of the Act in a case where relocation is sought. As the primary judge correctly indicated in her reasons for judgment (at [97]), ‘a relocation matter is to be determined in the same way that all parenting matters are determined’. Thus, it is putting the cart before the horse to approach s 65DAA

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Changing existing parenting orders

As circumstances change, the needs of children often change and previous parenting orders are no longer relevant or need to be varied to take into account the changes in circumstances. Before proceeding with an application for variation, the applicant needs to be aware of the real risk of achieving a worse arrangement than is currently in place and the costs associated with litigating. Please contact our office to discuss your situation.

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