Cao v Minister for Immigration

[2014] FCCA 324

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 324

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – no arguable case raised –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 359, 359A, 359C, 360, 476.

Federal Circuit Rules 2001 (Cth) r.44.12.
Migration Regulations 1994 (Cth) schs.2, 5A.

Cases:
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Applicant: ZIYU CAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2209 of 2013

Judgment of: Judge Nicholls

Hearing date: 12 February 2014

Date of Last Submission: 12 February 2014

Delivered at: Sydney

Delivered on: 12 February 2014

REPRESENTATION

Applicant In Person

Appearing for the Respondents Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 18 September 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $2,100.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2209 of 2013

ZIYU CAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), on 18 September 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 22 August 2013, which affirmed the decision of the Minister’s delegate to refuse a student visa to Mr Ziyu Cao (“the applicant”).

2. The Minister has filed a bundle of relevant documents in these proceedings, which is before me in an appropriate evidentiary context. I will refer to this bundle of relevant documents as the Court Book (“CB”). The following background can be ascertained.

Background

1. The applicant applied for a standard (Temporary) (Class TU) visa (“the visa”) on 18 November 2011 (CB 1 to CB 20). He was assisted by a registered migration agent. The delegate refused the grant of the visa. Relevantly, the applicant was required to satisfy the elements set out at cl.572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate found that the applicant was not a genuine applicant for entry and stay in Australia as a student as was required by the Regulations (CB 27 to CB 38).

The Tribunal

1. The applicant applied for review to the Tribunal on 25 July 2012 (CB 40 to CB 50). He continued to be represented (CB 46). By letter dated 30 July 2013 the Tribunal invited the applicant to comment on certain information which it said would, subject to his response, be the reason or a part of the reason for affirming the delegate’s decision. In the same letter, the Tribunal invited the applicant to provide certain information to it (CB 93).

2. The Tribunal’s letter required a response or information to be provided by 13 August 2013 (CB 94). Further, that the applicant could apply for an extension of time within which to respond. Finally, that if the Tribunal did not receive any response or information and no application for an extension of time had been made and allowed, the applicant would lose his entitlement to a hearing (CB 93 to CB 96).

3. The letter was sent to the applicant’s authorised recipient, his migration agent, by fax (CB 93). This was to the relevant fax number provided by the agent to the Tribunal (CB 46).

4. In the Tribunal’s decision record, the Tribunal recounted that it had written to the applicant and that he had made no response ([18] at CB 107 to [20] at CB 108).

5. The Tribunal found that its letter was, at least, an invitation pursuant to s.359A of the Act. That it was sent to the applicant’s authorised recipient at the last address provided and that no response of any kind had been received. In these circumstances the Tribunal found that, with reference to s.359C and s.360(3) of the Act, the applicant was not entitled to appear before it, and the Tribunal had no power otherwise to permit such an appearance. In the circumstances, the Tribunal proceeded to make its decision ([23] – [24] at CB 109).

6. The Tribunal also noted that it had invited the applicant to provide a number of documents that related to his current educational enrolment, evidence of his past studies, evidence relating to his English language proficiency and financial capacity relevant to the necessary assessment pursuant to Schedule 5A to the Regulations that the Tribunal was required to make for the purpose of its consideration pursuant to cl.572.223 (in particular 572.223(2)(a) ([25] at CB 109).

7. In the circumstances, given the applicant’s failure to respond, the Tribunal proceeded on the material before it, including what had been put before the delegate ([27] – [29] at CB 109).

8. In relation to the requirements of Schedule 5A the Tribunal found that the applicant did not meet the relevant English language proficiency requirements (cl.5A404), the financial capacity requirements (cl.5A405) and the requirements in cl.572.223 ([30] CB 109 to CB 110). It gave reasons for this ([31] – [34] at CB 110). In these circumstances the Tribunal found the applicant did not meet the requirement for the visa ([35] –[36] at CB 111).

Application before the Court

1. The sole ground in the application before the Court is in the following terms:

   “DIAC and MRT should grant my student visa…I meet all the conditions to grant my student visa.”

2. At the first Court date in this matter on 27 November 2013 the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. I explained to the applicant that the “ground” of the application proffered no assertion of legal error on the part of the Tribunal. At best his complaint appeared to be an expression of his grievance with the Tribunal’s conclusion. For him to succeed before the Court it was necessary to find some “legal mistake” in what the Tribunal had done.

3. The applicant claimed that he had a specific lawyer in mind who he wished to consult. I, therefore, gave the applicant a reasonable period of time within which to do this and set the matter down for mention today, 12 February 2014. I also made orders enabling the applicant to file any amended application and evidence by way of affidavit in support. Nothing further has been filed by the applicant.

4. When the matter was called today the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms M Stone appeared for the first respondent.

5. When the applicant was given the opportunity to make any submissions before the Court, the applicant stated that he had “nothing” to say. In essence, he wanted a visa. Given the state of the application before the Court and the lack of any satisfactory explanation from the applicant as to his failure to obtain legal advice, and nothing to inspire satisfaction of any reasonable prospect of obtaining such advice in the foreseeable future, it is appropriate that the matter proceed to a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

6. I should note here that the relief that the applicant really seeks, based on what he has previously said to the Court, and indeed as expressed in the ground of the application, is that he wants the Court to grant him a visa.  The Court has no power to do that.  The role of this Court is confined to the question of whether the Tribunal’s decision was attendant with some legal error such that, in some way, it failed in the proper exercise of its jurisdiction.  However, I did, for the purposes of the hearing and the consideration today, proceed on the basis that what the applicant could be taken to be seeking is a setting aside of the Tribunal decision record and its return to the Tribunal for reconsideration.

7. The applicant refers to “DIAC” in the application. I take that reference to be to the Minister’s department. To the extent, limited as it is, that the applicant directs his grievance to the Minister’s department, this Court has no jurisdiction to review the delegate’s decision (s.476 of the Act). Nor can the Court compel either the Minister, officers of his department or the Tribunal to grant the applicant the visa. Nor can the Court grant the applicant the visa.

8. The applicant complains that he meets the “conditions” for the grant of the visa. The time for him to have prosecuted that assertion was, ultimately, before the Tribunal. It cannot, now, in all the circumstances presented, assist him before the Court.

9. It is important to note that despite opportunity , the applicant has made no complaint about the process before the Tribunal. In any event, and in that regard, no legal error in the process of the conduct of the review before the Tribunal is apparent.

10. The applicant was invited pursuant to s.359A and s.359 of the Act to do certain things as set out above. There is no legal error apparent in the Tribunal’s approach here. The relevant letter complied with all relevant statutory and regulatory requirements.

11. Nor is there any legal error in the Tribunal’s reasoning concerning the loss of any entitlement to a hearing the applicant may otherwise, and initially, have had.

12. On the evidence before it, it was reasonably open to the Tribunal to make the findings that it did concerning the applicant’s failure to meet the relevant requirements such that the visa must be granted to him. (See s.65 of the Act, SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [ 2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)

Conclusion

1. There is nothing in the material before the Court to show that, even independently of the applicant’s ground, that the application can raise any arguable case for the relief that the applicant seeks. In these circumstances, it is appropriate that the application to the Court be dismissed pursuant to rule 44.12(1)(a) of this Court’s Rules. I will make that order accordingly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 25 February 2014