CHEN v Minister for Immigration

[2017] FCCA 2671

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2671

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – application for extension of time – merits of the application lacking – not in the interests of administration of justice to extend time – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: XIAOJIE CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1723 of 2017

Judgment of: Judge Street

Hearing date: 1 November 2017

Date of Last Submission: 1 November 2017

Delivered at: Sydney

Delivered on: 1 November 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1723 of 2017

XIAOJIE CHEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 November 2016 affirming a decision of the delegate to cancel the applicant’s class TU visa.

2. The applicant is a citizen of China, and on 1 April 2016 was sent a letter, being a notice of intention to cancel his Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa pursuant to s 116 of the Act because the PRISMS record showed the applicant was in breach of Condition 8202(2)(a) because he had not been involved in any registered course of study since 31 March 2014.

3. On 11 April 2016, a notice of cancellation was sent to the applicant in circumstances where no response had been received by the applicant to the notice of intention to cancel sent on 1 April 2016. That decision of the delegate identified the condition 8202 on which the applicant had been granted the visa. The delegate was satisfied that the ground for cancellation being for breach of condition 8202 in respect of s 116(1)(b) was made out. The delegate found, as a matter of discretion, that the visa should be cancelled.

The Tribunal decision

1. The applicant applied for review on 18 April 2016. In that application for review the applicant provided an email address for correspondence. The Tribunal sent an invitation to hearing to that email address provided by the applicant on 14 October 2016 inviting the applicant to attend a hearing on 22 November 2016. The applicant failed to appear on that date and the Tribunal decided to proceed to determine the application under review.

2. The Tribunal in its reasons identified the background to the application for review and identified the requirements of condition 8202. The Tribunal found that the applicant had not complied with condition 8202(2) by reason of not being enrolled in a registered course. The Tribunal identified the steps taken to invite the applicant to appear at the hearing and the failure of the applicant to do so and failure to respond to the invitation to hearing letter.

3. The Tribunal turned to the discretionary consideration as to whether the visa should be cancelled and was satisfied, having taken into account the material provided by the applicant, including alleged medical material, that the visa should be cancelled.

Proceedings before this Court

1. The application in this Court was filed on 2 June 2017, 157 days outside the time required under s 477.

2. On 29 June 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a hearing of an application for an extension of time under s 477. The Court explained that there were three issues in that regard: first, whether the applicant had a satisfactory explanation for the delay; second, whether there was any prejudice to the first respondent, and none was suggested; and, third, the merits of the application.

2. The Court explained that the merits involved considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was the subject of a reasonable argument that the Tribunal’s decision was either unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was the subject of a reasonable argument that the Tribunal’s decision was unlawful or unfair, the Court would extend time and fix the matter for hearing on another occasion. The Court explained that if not satisfied that the decision of the Tribunal was the subject of reasonable argument that it was unlawful or unfair and that there was no satisfactory explanation for the delay, the Court would dismiss the application for an extension of time with costs. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table, the applicant sought to maintain that there were excuses for his failure to appear before the Tribunal. The applicant suggested that he had not authorised a relevant address and had not received the email. The court book reveals the applicant emailing the Tribunal shortly after the Tribunal’s decision was sent to the applicant. There was no evidence to support the applicant’s assertions he did not receive the notification.

2. On the material before the Court, the notification was sent to the correct email address, as identified in the application for review filed on the applicant’s behalf. The suggestion by the applicant that the email address was unauthorised is completely lacking in substance. The applicant proffered an explanation in relation to his failure to pursue his course and made an assertion that he was enrolled in an accounting diploma on 28 March 2014. The applicant explained that it was for medical reasons that he had not been able to progress that diploma. The applicant’s explanations from the bar table for his failure to undertake study are less than satisfactory and do not address the relevant issues that arise under s 477.

3. Nothing said by the applicant provided a satisfactory explanation for the delay. Nothing said by the applicant identified any arguable error in the review by the Tribunal.

Reasonable explanation for the delay

1. In considering first whether the applicant has a reasonable explanation for the delay it is apparent on the material before the Court that the applicant pursued ministerial intervention following the decision of the Tribunal. The pursuit of ministerial intervention reflects a deliberate decision to pursue that avenue rather than Court redress. On that ground alone the application for an extension of time should be refused. There is no satisfactory explanation for the delay.

Grounds in the application

1. Further, the grounds in the application disclose no reasonably arguable case of jurisdictional error.

2. The grounds of the application are as follows:

   1. The Tribunal made jurisdictional error in making decision of cancelling my student visa.

   2. The Tribunal affirm the decision of immigration was because of my absent of hearing. My previous lawyer did not inform the hearing date so that I missed the hearing to present all the evidence what I could approve that I was enrolled in a registered course.

3. The bare assertion in Ground 1 does not identify any arguable jurisdictional error.

4. Ground 2 fails to address any arguable jurisdictional error and asserts that the applicant’s lawyer did not inform him of the hearing date. The review application identified the applicant’s email address, and it was to that email address that the invitation to hearing was sent. It is apparent that it was the same email address that the applicant used to respond hours after being notified of the decision of the Tribunal. Ground 2 does not identify any arguable case of jurisdictional error.

5. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. The merits of the application are sufficiently lacking to warrant any extension of time as being necessary in the interests of the administration of justice.

Conclusion

1. Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 November 2017