Ang v Minister for Immigration
[2020] FCCA 422
•7 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANG v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 422 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – application for reinstatement – application for judicial review of the decision of the Administrative Appeals Tribunal affirming the decision of the delegate of the first respondent refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) visa – Administrative Appeals Tribunal found that the applicant was not a genuine applicant for entry and stay as a student temporarily as required by cl.500.212 of the Migration Regulations 1994 (Cth) – applicant failed to appear at scheduled final hearing date in this Court and proceeding was dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – reasons provided by applicant for non-appearance at final hearing inadequate – asserted substantive ground had no reasonable prospects of success such as to justify an order for reinstatement of the proceeding – Application in a Case for reinstatement dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 109, 499 Migration Regulations 1994 (Cth) |
| Cases cited: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 |
| Applicant: | DAVID SHAW FUI ANG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1884 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2020 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms S. Sangha |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed in this Court on 12 December 2019 is dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to the Application in a Case in the sum of $1,000.
Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 12 March 2020 to file any Application for leave to appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1884 of 2018
| DAVID SHAW FUI ANG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
I am hearing an Application in a Case filed by the Applicant on 12 December 2019, which is supported by his affidavit dated 12 December 2019. The Application in a Case seeks reinstatement of his substantive Application filed in this Court on 6 July 2018, which was dismissed by me under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) at its scheduled final hearing on 19 November 2019. The final hearing date had been scheduled in Court in the Applicant’s presence on 10 August 2018, with him then telling me that this date was “suitable”.
In his affidavit in support of his Application in a Case, the Applicant states that he did not appear at the final hearing because:
…I was very nervous the night before and couldn’t fall asleep. I took two sleeping pills and then woke up too late the next morning.
At the hearing of the Application in a Case Ms Sangha, who appeared for the Minister, cross‑examined the Applicant on his affidavit. The Applicant said that he had received the two pills from his uncle who had told him that they were “sleeping pills”, and that they were not pills which had been personally prescribed by a doctor for him.
I note that at the final hearing on 19 November 2019 I made the dismissal order at approximately 10:49am in open Court, and that no attempt was made on that day by the Applicant to contact the Court to advise of any problems that he might have had in getting to the Court hearing or seeking to stand the final hearing down to the afternoon of 19 November 2019, which I could have and would have done if so requested. In cross-examination the Applicant agreed that he had not contacted either the Court or the lawyers for the Minister on 19 November 2019 about waking up late, and that he had taken a month or so to file the Application in a Case, because he had to make up his mind whether he would do so or not.
The principles governing an application for reinstatement of an application after it has been dismissed for absence of appearance under r.13.03C(1)(c) of the Rules were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7], as follows:
[7]In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement
(emphasis added)
A similar statement of principle was made by Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] – [6], in the following terms:
[4]As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
[5]However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
[6] The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
Guided by the above principles, I find that the Applicant has not given any reasonable excuse or adequate explanation for his failure to attend the Court on 19 November 2019. I note that there is no evidence that the Minister has been actually prejudiced by the Applicant’s non-appearance on that date, other than with respect to costs, but mere absence of prejudice does not of itself militate in favour of a reinstatement order.
In my view, the Applicant has not provided an adequate or reasonable explanation for not appearing at the scheduled final hearing because most participants in litigation are nervous about taking part in Court hearings, including sometimes Counsel. That is not an excuse for not appearing at the hearing. In my view, it is a completely inadequate reason to simply assert that he slept in because of the effect of two sleeping pills. This Court would not be able to conduct its business in any reasonable or efficient manner if applicants in proceedings before it could use such an excuse for not appearing, particularly when every Judge of the Court here at 80 William Street has approximately four or five hundred matters in their list waiting for a date for hearing to be allocated.
However, I now turn to assess whether the substantive Ground the Applicant relies upon has any reasonable prospects of success.
Background to Substantive Application
The Applicant is a male citizen of Malaysia aged 25 years.
By Application filed in this Court on 6 July 2018 he sought to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 5 June 2018, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), dated 3 October 2016 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
The Applicant first came to Australia on 2 August 2011 as the holder of an Electronic Travel Authority (Class UD) (Subclass 976) visa. On 19 November 2011 the Applicant was granted a Subclass 571 Student visa, which was followed by the grant to him on 23 May 2014 of a Subclass 572 Student visa expiring on 10 September 2016. He has studied and completed courses in High School Preparation, Junior Secondary School and English and Management.
He applied for the Student visa here under consideration on 1 September 2016, and had just recently finished a Diploma of Management from the Sydney College of Business and IT (Sydney College). He wished to study under the Student visa for a Diploma of Software Development and an Advanced Diploma of Information Technology, both again, at the Sydney College. Included with, and in support of, his Student visa application form was an undated Personal Statement of the Applicant.
Relevant Statutory Requirements for the Grant of the Student Visa.
Relevantly to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), which required, inter alia, that he be a “genuine applicant for entry and stay as a student”.
Clause 500.212 of the Regulations at the time of decision provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Decision of Delegate
In her Decision Record the Delegate set out the genuine temporary entrant criterion comprised in cl.500.212 of the Regulations and summarised Ministerial Direction No. 69, which set out the factors to be taken into account mandatorily for assessing the genuine temporary entrant criterion for the Student visa, which Ministerial Direction had been made pursuant to s.499 of the Act.
In the result, the Delegate was not satisfied that the Applicant intended to genuinely stay temporarily in Australia and refused to grant the Student visa to the Applicant. In particular, the Delegate was:
a)not satisfied that his proposed study in Australia would assist him in finding employment in Malaysia;
b)was concerned that the Applicant’s intention to be in Australia was motivated by factors other than study;
c)considered that since he had arrived in Australia on 12 March 2013 he had been onshore for 1260 days and out of Australia for only nine days; and
d)his study history did not demonstrate a genuine intention to study as a student in Australia.
Decision of Tribunal
The Applicant applied to the Tribunal for merits review of the decision of the Delegate on 17 October 2016 through his registered migration agent and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time. He then appeared before the Tribunal at a hearing on 13 December 2017 to give evidence and present arguments together with his migration agent in attendance and an interpreter.
By the time of the Tribunal hearing, his Diploma of Software Development course had been cancelled for unsatisfactory course progress and his Advanced Diploma of Information Technology had been cancelled for non-commencement of studies. He lodged at the Tribunal hearing a Confirmation of Enrolment in a Certificate IV in Business which had started on 10 July 2017.
From [10] – [11] of its Decision Record the Tribunal set out cl.500.212 of the Regulations and summarised Ministerial Direction No. 69.
From [13] – [16] of its Decision Record the Tribunal recorded the evidence given and discussion at the Tribunal hearing. The Applicant told the Tribunal that his career plan upon return to Malaysia was to run his father’s grocery store: see [16] of the Decision Record.
At [15] of its Decision Record the Tribunal stated the following:
[15] The applicant told the Tribunal his current enrolment in a Certificate IV in Business was a mistake and he wants to transfer to Accounting as it will be useful in future. The applicant confirmed he had been enrolled in IT courses but declared he had not found it useful and he had failed subjects.
The core findings of the Tribunal were expressed from [17] – [18] of its Decision Record, as follows:
[17] The Tribunal has considered the evidence individually and cumulatively and is not satisfied the applicant is a genuine student in Australia. Although the applicant has some family members in Malaysia and declared he intends to run his deceased father’s business, there appears to be little incentive to return after his studies. He has an aunt in Australia and is able to support himself through money left by his father and by working in a restaurant. The Tribunal was particularly concerned about the applicant’s vagueness and inability to answer straightforward questions. The applicant explained that he was nervous which the Tribunal understands but the questions put to him were only in relation to his study history in Australia.
[18] The Tribunal is also not satisfied the applicant needs to study Accounting in order to run a grocery store. In his original GTE letter accompanying his visa application the applicant said he wanted to complete a software design course and return to Malaysia to find the job of his dreams. The Tribunal accepts a person may change their career plans but is not satisfied in this case that the applicant has demonstrated how additional studies will be of benefit to him.
Accordingly, the Tribunal was not satisfied that the Applicant intended to stay temporarily in Australia and that he did not meet cl.500.212(a) of the Regulations and it affirmed the Delegate’s decision not to grant the Student visa to the Applicant.
Ground of Attack on Tribunal Decision in this Court
The Applicant relied upon the following Ground:
1. The Tribunal made a jurisdictional error as it failed to access the applicant’s eligibility for a student visa as a family dependant of his wife who is also a student visa holder. The Tribunal has the updated information of the applicant’s marital status. The applicant is currently married to Sherrene Leow Jhoe Chyi and therefore the Tribunal should have also consider granting him a student visa on the ground that of being a secondary applicant to the wife’s student visa.
Consideration
Unfortunately for the Applicant this Ground is quite hopeless because he never previously claimed that he was married, let alone that he was a family dependant of a wife, as he has indeed again claimed in Court this morning from the Bar Table. Rather, he expressly stated in his Student visa application form that he had “never married”. He never thereafter at any time, on the evidence before me, made any claim at any stage of the processing of the Student visa application that his marital status had changed and that he had become married. He never claimed to be married at all, let alone to be married to one Shereene Leow Jhoe Chyi, who is referred to in the Ground.
Further, the Applicant at all times sought to satisfy the primary criteria for the grant of the Student visa and never sought to satisfy the secondary criteria comprised in cls.500.311 to 500.318 of the Regulations as a member of the family unit of a person who held a Student visa.
Accordingly, in my view the Tribunal did not fall into jurisdictional error by failing to consider him as a secondary applicant to a Student visa holding wife.
The Ground is not made out and has no reasonable prospects of success.
Ministerial Direction No. 69
The Minister as a model litigant raised Ministerial Direction No. 69 and submitted that the Tribunal had complied with its obligations thereunder, with which submission I agree. Clause 6 of Ministerial Direction No. 69 states administrative decision-makers “should have regard to the applicant’s circumstances in their home country” and cl.9 then sets out specific circumstances in the home country to which regard is to be had. For example, cl.9(d) refers to military service commitments in the home country that would present a significant incentive for the relevant applicant not to return to the relevant home country. However, cl.1 of Ministerial Direction No. 69 exhorts that:
…decision-makers should not use the factors specified in this Direction as a checklist.
In my view the Tribunal’s obligation, pursuant to Ministerial Direction No. 69, to consider the Applicant’s circumstances in his home country and in Australia, is to be seen through the prism of, and to be informed by, the actual claims made by the Applicant in connection with his home country. The requirement is expressed in Ministerial Direction No. 69 as, “decision-makers should have regard to…”, as I have pointed out.
However, that mandatory requirement did not mean that the Tribunal was bound to ritualistically and punctiliously refer in its Decision Record to each of the factors set out in Ministerial Direction No. 69. The Full Court of the Federal Court of Australia comprised of Stone, Foster and Nicholas JJ in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi), in considering a similar mandatory requirement as comprised in s.109(1)(c) of the Act and reg.2.41 of the Regulations, said at 277 – 278 [83] as follows:
[83]In our view, it is incumbent on the visa holder who is engaged in the visa cancellation process envisaged by s 109 to articulate facts, matters and circumstances to which he or she suggests the Minister should have regard as required by reg 2.41. The reg 2.41 criteria direct the Minister’s attention to particular factors at a general level but it is for the visa holder to shape and mould the Minister’s consideration of those criteria by reference to his or her individual circumstances. Whilst the Minister must, of course, have regard to material, information and documentation in his possession which properly fall within the purview of the reg 2.41 criteria, irrespective of their source, it will largely fall to the visa holder to flesh out that material in order to enable the Minister’s discretion to be properly exercised. For example, consider the criteria in reg 2.41(a), (e), (f) and (k). If the visa holder does not address those criteria with evidentiary material and submissions, it is not likely that there will be much material (if any) before the Minister for him or her to consider and evaluate. In that event, it is not likely that there will be much for him or her to say about those criteria.
Ministerial Direction No. 69 sets out many factors to be considered, but specifies that such factors are not to be considered as a checklist. It does not indicate or require any of those factors to be accorded primacy or preponderance. In such circumstances, the following statement of principle of the Full Court of the Federal Court of Australia comprised of Emmett, McKerracher and Foster JJ in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 at [44] is pertinent:
[44]The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]–[59]).
(emphasis added)
To similar effect more recently Colvin J in Nguyen v Minister for Home Affairs [2019] FCA 892 stated at [6] as follows:
[6]Further, there may be important differences in the way the mandatory obligation is expressed. A requirement that a decision-maker must have regard to a particular matter may require that it be considered or it may require that the matter must be given weight as a fundamental element when making the decision: Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 at [50]‑[56] (Parker J, Malcolm CJ and Anderson J agreeing). Where there are a large number of prescribed circumstances to which the decision‑maker must have regard that counts against a conclusion that each of them is to be given weight in a central or fundamental way: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [60]‑[62]. The precise nature of the obligation to 'have regard to' specified matters is dependent upon the terms of the legislation and the particular circumstances in which the provision is to be applied: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [216]‑[231].
(emphasis added)
In Khadgi the Full Court had said at 271 [61] – [62]:
[61]We respectfully agree with Sackville J in Singh where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context. As his Honour said at [54] (p 163):
…. a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.
[62]In our opinion, the prescribed circumstances to which the Minister must have regard in the present case are of the latter kind. There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Act. It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
In this case the Tribunal had specific regard to the Applicant’s plans as claimed upon his return to Malaysia at [16] – [18] of its Decision Record, and referred specifically to his family position in Malaysia as well as his plans and family position in Australia, including having an aunt here. In my view, the Tribunal did not fail to comply with Ministerial Direction No. 69 and such a Ground, if taken by the Applicant, would not have reasonable prospects for success.
Conclusion
In my view, the Applicant would fail to establish that the decision of the Tribunal was affected by jurisdictional error. There would be no utility in any reinstatement of the substantive Application and his Application in a Case filed in this Court on 12 December 2019 is to be dismissed.
Postscript
I note that the decision on 24 February 2020 of the Full Court of the Federal Court in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 comprised of Logan, Derrington and Thawley JJ held that Ministerial Direction No. 53, which relevantly is on all fours with Ministerial Direction No. 69, did not impose a jurisdictional obligation on a Tribunal to make a finding in respect of each factor mentioned in Ministerial Direction No. 53, irrespective of its materiality to the particular case under consideration, or that the Tribunal had to laboriously set out each of the factors and deal with them seriatim.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 27 February 2020
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