Chen v Minister for Immigration

[2013] FCCA 939

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 939

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:
Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Applicant: QIANG CHEN

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 527 of 2013

Judgment of: Judge Driver

Hearing date: 25 July 2013

Delivered at: Sydney

Delivered on: 25 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Carr
DLA Piper

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 527 of 2013

QIANG CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 15 March 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal).  The Tribunal made its decision orally on 20 February 2013.  The Tribunal’s written statement of reasons was prepared on the same day and certified on behalf of the Tribunal’s District Registrar the following day.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Chen, a temporary student visa. 

2. The following statement of background facts relating to this matter is derived from the Minister’s outline of submissions filed on 18 July 2013. 

3. Mr Chen is a citizen of People's Republic of China (China) born on 26 June 1991.[1]  He arrived most recently in Australia on 27 February 2012.

   [1] Court Book (CB) 1.

4. Mr Chen applied for a Student (Temporary) (Class TU) visa on 25 March 2011.[2]  In that application Mr Chen indicated that he intended to study years 11 and 12 at Sydney Jacaranda College beginning on 14 March 2011 and ending on 18 November 2012.  Mr Chen also indicated that he had attached evidence of his enrolment to the application form.[3]  The application was refused on 22 July 2011.[4]

   [2] CB 1-17.

   [3] CB 5.

   [4] CB 24-28.

5. Mr Chen applied to the Tribunal for review of the delegate's decision on 15 August 2011.[5]

   [5] CB 29-37.

6. On 29 January 2013, the Tribunal wrote to Mr Chen inviting him to appear before it at a scheduled hearing on 20 February 2013.[6] The letter also invited Mr Chen to provide a certificate of enrolment as required by clause 571.222 of Schedule 2 to the Migration Regulations 1994 (Cth), or evidence that he was enrolled in, or was the subject of a current offer of enrolment, in a registered course.

   [6] CB 42-43.

7. Mr Chen attended the hearing and stated that he thought his agent had provided the required certificate to the Department.  Mr Chen also stated that when he received the Tribunal’s hearing invitation that he learnt that his agent's office had closed down during 2012.

8. Mr Chen stated that he last studied in April 2011 and was not currently enrolled in any course.  However, Mr Chen said that he could enrol in a course after the Tribunal hearing.

The decision of the Tribunal

1. The Tribunal noted that Mr Chen had been asked to provide a certificate of enrolment,[7] however, such evidence was never received by the Tribunal.[8]

   [7] See [15] at CB 51.

   [8] See [19] at CB 51.

2. The Tribunal noted Mr Chen’s claims that he had previously provided a copy of a certificate of enrolment.  However, this was found not be sufficient to meet the relevant regulatory requirements.[9]

   [9] See [16] and [19] at CB 51.

3. Further, the Tribunal noted that the application had not been made on the correct form, nor was there anything to indicate any failure of an electronic transmission of a certificate of enrolment.[10]

   [10] See [20] at CB 52.

4. The Tribunal also noted that there was nothing before it to evidence that at the time of decision Mr Chen was currently enrolled in, or was the subject of a current offer of enrolment, in any course of study.[11]

   [11] See [21] at CB 52.

5. Consequently the Tribunal found that Mr Chen did not meet an essential prescribed criteria for any Student (Temporary) (Class TU) visa.[12]

   [12] See [23] at CB 52.

6. I had before me as evidence the court book filed on 13 May 2013. 

7. I also received an affidavit by Joseph Morgan Smith-Davies made on 22 July 2013.  That affidavit dealt with service of the Minister’s written submissions upon Mr Chen.  Mr Chen claimed not to have received those written submissions.  The submissions were, however, read to him by the interpreter before I came on the bench.  I do not consider that he has been disadvantaged by not having prior access to the submissions. 

8. The application before the Court says three things.  First it says, as a statement of fact, that the Minister’s Department rejected Mr Chen’s application for the visa.  That is true.  Secondly, it says that the Tribunal affirmed the delegate’s decision.  That is also true.  Thirdly, it says that Mr Chen seeks the opportunity of fair justice in order to obtain the visa he seeks. 

9. It was apparent when this matter came before me for first court date directions on 17 April 2013 that the application was defective in that it did not assert any jurisdictional error by the Tribunal.  Mr Chen appeared in person on that day with the assistance of a Mandarin interpreter.  I recall raising the problem with him.  I gave Mr Chen the opportunity to file and serve an amended application.  He has not taken up that opportunity. 

10. In the absence of any asserted jurisdictional error, Mr Chen obviously cannot demonstrate an arguable case of jurisdictional error.  I have read the material in the court book myself and it is plain that Mr Chen was unable to obtain the visa he sought because he was not enrolled in a course of study.  The case was a straightforward one for the Tribunal, which probably explains why the Tribunal dealt with it orally. 

11. I have decided that the judicial review application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $2,700.  Mr Chen did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  26 July 2013