Back v Minister for Immigration - [2016] FCCA 3423

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACK v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3423

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.368

Migration Regulations 1994 (Cth) schs.2, 3, cl.600.223

Cases cited:

Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Applicant:

AI SOOK BACK

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 839 of 2015

Judgment of:

Judge Riethmuller

Hearing date:

14 November 2016

Date of Last Submission:

14 November 2016

Delivered at:

Melbourne

Delivered on:

14 November 2016

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for judicial review be dismissed,
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 839 of 2015

AI SOOK BACK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

This is an application for judicial review of a decision of the Migration Review Tribunal, as it was then called, made on 25 March 2015.
The case has a sad history for the applicant. She came to Australia in 2005 on a student visa and undertook studies to attain a degree of Bachelor of Music, which she obtained in 2008, following which she returned to Korea to work as a music teacher. Some years later in 2011, the applicant was granted a further student visa to attend to complete a Master of Music degree in Australia. Her last student visa was granted in 2013 and was valid until 30 August 2014.
Unfortunately, the applicant’s father fell ill and ultimately passed away in 2014. It seems that this has caused a very severe grief reaction for the applicant, complicated by the nature of the relationship with her father, who she says was quite a strict disciplinarian when he was alive. The complications of her grief reaction have continued for some time. She believes that her father wanted her to complete her Master of Music degree.
On 3 October 2014, the applicant sought a tourist visa, being a subclass 600 visa, to return to Australia. This was valid until 16 December 2014. On the last day of this visa, she lodged an application for another subclass 600 visa, that is, another tourist visa. Unfortunately, at the time that she lodged that application, she did not demonstrate sufficient funds in her bank account to meet the relevant criteria and therefore the application was found to be invalid on the same day. It seems that the lack of funds in her bank account was through an error on her part, which she quickly remedied. She applied for a tourist visa again on 19 December 2014. This visa application was ultimately refused on 2 January 2015 by the delegate. The applicant then sought review of the refusal by the Migration Review Tribunal (as it then was). She has remained in Australia on bridging visas since that time.
The Tribunal dismissed her application and affirmed the decision of the delegate on 25 March 2015. The relevant facts before the Tribunal were relatively straightforward. The applicant had failed to apply for a tourist visa, prior to the expiration of her previous visa (because the first application was invalid due to failing to meet the criteria) and this application was made some three days late. The result under the regulations then in force was that clause 600.223(2) applied as the applicant was then in Australia at the time of application but no longer holding a substantive visa. As a result, the applicant was required to satisfy criteria 3004 in Schedule 3. This was a requirement of clause 600.223(2)(b).
A relevant factor under criterion 3004 was whether the applicant not the holder of a substantive visa on the day of the application because of factors beyond her control. Put simply, the tourist visa system that was in force at the time required that any further application for a tourist visa occur whilst the person held a visa, or if it did not, the reason for that was beyond the control of the person. This system ensured that there is no gap between substantive visas. Unfortunately, the applicant in this case not only left it to the last day of her previous visa to bring an application, but did so at a time when the requisite amount of money was not in her bank account albeit that it was, it seems, a relatively small sum that was required (around $1500).
The Tribunal went on to consider whether or not the applicant had ceased to hold the previous tourist visa without applying for a subsequent visa as a result of factors beyond her control. The Tribunal identified the relevant law on the point saying:
15. In considering whether these constituted factors beyond the applicant’s control, the Tribunal has had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and Sch. 3 criterion 3004. While the application in that case was dismissed by the Court, the judgement provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgement of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] that two useful points emerge from that case:
The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person. A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.
The Tribunal turned to consider whether the applicant had been given any incorrect advice and concluded that she was advised correctly with respect to visa validity dates. The Tribunal found:
17. The Tribunal finds that the applicant ceased to hold a substantive visa because of her inattention to the availability of funds held on her bank account. This was not beyond the visa applicant’s control, in the tribunal’s view. It was within the applicant’s control to be aware of the department’s visa application fees and balance of funds available on her bank account.
18. The tribunal accepts that the applicant was affected by her personal circumstances, the death of her father. The tribunal does not accept however that the effect of this was such that she could not be expected to be aware of the length of time during which the initial visitors’ visa was in effect.
At the time that the Tribunal made this decision, there was no material before it to show that the applicant was under some form of disability as a result of her mental health.
The applicant seeks judicial review on the basis of three grounds. The first ground points to an error contained in the decision of the Tribunal. At paragraph 6 of its decision the Tribunal recounts that the applicant appeared before the Tribunal to give evidence and present arguments on 26 November 2014. This is clearly wrong given the date sequence of the application and the decision. However, it is only the date that is in error. The records confirm, as does the applicant in court today, that she did appear before the Tribunal to give evidence on 25 March 2015. In my view, this is nothing more than a typographical error and does not affect the reasoning of the Tribunal, nor when one reads the Tribunal’s decision as a whole, does it indicate that the Tribunal were misconceived as to any relevant fact or circumstance of the case before them. In these circumstances I am not persuaded that this typographical error is such as to justify judicial review of the Tribunal decision by way of setting it aside.
The second ground that the applicant relied upon was that the applicant sent an email to the Tribunal in April providing material indicating that she had had mental health issues as a sequela from the death of her father. The Tribunal declined to have regard to these materials the Tribunal was then functus officio, that is, had completed its task and therefore no longer had power to change its decision. The time at which the Tribunal becomes functus officio is defined in section 368 of the Act. The relevant provision for this case is section 368 subsection (2) which provides:
How and when written decisions are taken to be made
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
In this case, the Tribunal’s decision is in writing and endorsed on the face with the date and time of the decision statement being 25 March 2015 at 2.19 pm (see court book p.125). In these circumstances the Tribunal’s powers had come to an end at that date and it was not open to the Tribunal to revisit its decision.
The third ground relates to whether or not the applicant’s depression was such as to demonstrate that she was incapable of participating in the hearing in a proper way and consequently therefore did not receive a fair hearing. She also frames this ground on the basis that her depression would demonstrate that it was beyond her control that she had not applied for the further visa in the time allowed.
The test for whether or not she was able to function sufficiently to participate in the hearing process and have a proper hearing is described in Minister for Immigration and Citizenship v SZNCR [2011] FCA 369. In that case, Tracey J summarised the test as follows:
30. The argument focussed on what an applicant must prove in order to successfully establish a contravention of s 425 of the Act. Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.
In this case there is limited material before the Court as to the mental state of the applicant at the relevant time. She has not filed an affidavit with a report by an expert squarely addressing her mental state at that date. There is, however, material in the court book by way of hospital notes from Eastern Health at page 141, which provide as follows:
Relapse to depressive episode in context of failure to prove herself to her abusive and obsessional father. Heartbroken that she could not finally prove herself t him. Has developed her own strong work ethic / obsessional traits and perceives depression as a failure / sign of weakness.
Plan
Psychoeducation given that her feelings were understandable given her past and recent stressors; however, her prior depressive episode had ‘primed’ her for relapse to depression
Stella to recommence escitalopram (already has packet). Has students coming tomorrow so will take table when CATT call tomorrow and will then be reviewed in afternoon. Direct supervision Sunday. Discuss Monday need for daily vs switch to alls.
Once more table requires referral to psychologist under MHP for discussion about her ambivalent attitude toward her father and the impact of this on her mental state and assistance with coping skills
As counsel for the Minister points out, her mental health was not so poor at that time as to result in the hospital suggesting that she not continue to provide tuition to students, nor requiring her to be hospitalised. It appears that those progress notes were made at or about the time of the decision, being dated 20 March 2015. It does not appear to me that that material shows that the applicant’s mental health was such as to come within the test as described by Tracey J. Clearly, she was capable of attending to her own needs and providing tuition for students. She certainly was not unfit to attend a hearing, nor could it be said on that material that she was denied a real and meaningful opportunity to attend and participate in the hearing process. In these circumstances, I am not persuaded that the Tribunal erred or that for reasons beyond the Tribunal’s control or knowledge, the applicant did not receive a fair hearing.
To the extent that the applicant says that these circumstances are arguably sufficient to show that her failure to hold a substantive visa at the time of application were due to matters beyond her control, it seems to me that this is, effectively, an application for a merits review of the Tribunal’s decision. She explains that she chose not to place evidence before the Tribunal at the time as she was embarrassed about her medical condition, and explains that that embarrassment is somewhat heightened given her cultural background. These are not matters, though, that are sufficient to show that a judicial review order setting aside the decision of the Tribunal should be made, but rather further facts and circumstances that could have been put before the Tribunal at the relevant time.
In the circumstances, I am therefore not persuaded that the applicant has established an error of law on the part of the Tribunal, either with respect to substantive law or the process of the Tribunal. The reality is that the applicant will need to apply for a visitor visa or a student visa offshore in order to again obtain a substantive visa. It is difficult to understand why she had not simply applied offshore in the circumstances of her particular case. These, however, are matters for the applicant and not for the Court.
I therefore order that the application be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 13 January 2017