Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 244
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 244
File number(s): BRG 99 of 2022 Judgment of: JUDGE VASTA Date of judgment: 20 February 2023 Catchwords: MIGRATION – application for adjournment notwithstanding adjournment refused four days earlier and there was no change of circumstances – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth): s 360(2)(a) Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 20 February 2023 Date of hearing: 20 February 2023 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf Solicitor for the First Respondent: Minter Ellison Lawyers ORDERS
BRG 99 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MIN CHEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
20 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application filed on 4 March 2022 is dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 31 January 2022 the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the Applicant, Min Chen, a student visa.
The background to the matter is that the Applicant is a citizen of China. He applied for another student visa on 2 May 2019. On 3 January 2020, a delegate of the Minister refused to grant the Applicant the student visa. It would seem that the reason that the delegate refused to grant the Applicant the visa was because he was not a genuine applicant for entry and temporary stay.
The Applicant asked the AAT to look at the matter again. That application was filed on 23 January 2020. What the material, before the Tribunal, showed was that the Applicant had, on 14 February 2020, enrolled in a Bachelor of Nursing at the Torrens University. Now, according to that “confirmation of enrolment”, the course was due to commence on 17 February 2020 and to finish on 5 December 2021.
The Tribunal, because of their huge workload, did not get around to getting to a point where they could have a hearing of the matter until August 2021. On 5 August 2021, the Tribunal sent the Applicant a letter which invited him to provide information to satisfy the Tribunal that he was, (1), enrolled in a registered course of study and, (2), that he met the genuine temporary entrant criterion. The Applicant was given until 19 August 2021 to provide that information.
The letter said that if the Tribunal did not receive the information by that date, then it could reach a decision on the review without taking any further action. On 19 August 2021, the Tribunal received the completed response form from the Applicant. In that form, the Applicant stated that he did not complete the Bachelor of Nursing. He accepted, in that form, that he was no longer enrolled in that course, and he accepted that he did not have a current enrolment in any other registered course of study. He also consented to the Tribunal deciding the review without a hearing.
The Tribunal, nevertheless, did not make a decision there and then. On 12 August 2021, the Tribunal obtained the PRISMS record of the Applicant. Those records confirmed that the Applicant’s enrolment in the nursing course at Torrens University had been cancelled on 14 April 2021 when he informed Torrens that he had ceased studies in that course. The PRISMS records also disclosed that the Applicant was not, at the date on which the search was undertaken, enrolled in any other registered course of study.
Now, even though the Tribunal could have dealt with the matter there and then again, the Tribunal decided to send the Applicant a further letter. They did so on 22 October 2021 and asked the Applicant to comment, in writing, on the information contained in the PRISMS record concerning his non-enrolment. The letter quite categorically stated that the Tribunal could rely on that information in the review and, in so doing, that it might result in a finding that the Applicant was not currently enrolled in a course of study and therefore not entitled to the visa.
The Applicant was given until 5 November 2021 to provide his comments and response to the information. He was told that he could ask for more time.
On 4 November 2021, his representative, a Ms Diane Chen, sent an email to the Tribunal in which she stated that the Applicant had been trying to re-enrol in his course at times, and she attached a copy of the correspondence with Torrens to substantiate that.
The agent asked for another four weeks. The Tribunal granted that request and extended the time within which to respond to the letter of 22 October, and the new date by which the response had to be given was 3 December 2021.
On 2 December 2021, the agent asked for a further extension of time, saying that the Applicant was unable to provide a CoE at that time and he needed further time to sort out the issues with Torrens which apparently stemmed from overdue tuition fees for that course.
The Tribunal did not give any further extension. As the Applicant had consented, in the original response form that the Tribunal could reach a decision on the review without a hearing, this meant that the Tribunal had no power to permit the Applicant to appear. The Tribunal then conducted the review on the papers.
Notwithstanding all of this, it did not conduct its review until 31 January 2022. The Tribunal wrote, in its reasons, that they declined to give any more time to the Applicant because he had been given ample time to sort out his issues with Torrens or, if he could not do so, to secure enrolment in another registered course of study.
The Tribunal said that the fact that the Applicant had given no indication, in his correspondence, as to when the Tribunal could expect him to produce a current certificate of enrolment for that, or any other, course, did nothing to warrant a postponement. The Tribunal noted that it did have other documents in the form of a psychiatric report dated 1 June 2020 and some other medical evidence about his mental health.
The Tribunal noted that that material had been provided to Torrens University to support an application for a temporary relaxation of the nursing course requirements on medical grounds. The request was for a five-month relaxation.
The Tribunal also noted the personal statement that was dated 18 August 2021. In that personal statement it was clear that the Applicant was no longer relying upon the medical condition to explain the eventual cancellation of his enrolment of the nursing course with Torrens that occurred in April 2021.
None of the correspondence by the agent indicated that the mental health condition had anything to do with the cancellation. The Tribunal said at paragraph 21:
In any event, whatever ongoing significance the applicant’s mental condition might have to his current enrolment status, the Tribunal is quite unable to accede to an application to postpone the review until such time as he gets his house in order and secures an enrolment.
Having decided to conduct the hearing on the papers, what was clear was that the Applicant did not hold a current confirmation of enrolment. Therefore, the pre-requisite in cl 500.211 was not met. Given the Applicant could not meet that criteria he was simply not eligible for a student visa.
For that reason the Tribunal affirmed the decision not to grant the Applicant the student visa.
On 4 March 2022, the Applicant, as I have earlier indicated, asked this Court to review that decision.
The grounds of the review were that the Applicant did not give real consent to dispense with the need for a hearing because he was misled by his migration agent or, alternatively, because of the fraud of the migration agent. There was no other evidence given to the Court upon this review; however, it was noted as particulars these nine aspects:
(a)The migration agent drafted a statement to the Tribunal purporting to be for the Applicant or from the Applicant.
(b)The Applicant was led to believe by implication that this was acceptable conduct, when it was, in fact, criminal conduct (according to the particulars).
(c)The Tribunal, having reviewed the written material and not being satisfied it should decide the review in the Applicant’s favour, invited the Applicant to attend a hearing.
(d)The migration agent informed the Applicant that he should not attend the hearing because, if he did so, he might say something that was inconsistent with the statement which the migration agent had prepared and submitted to the tribunal.
(e)The Applicant, suffering from depression, was subjected to pressure from the migration agent not to attend the hearing for this reason.
(f)It should be inferred that the migration agent was concerned to avoid the Tribunal realising the migration agent’s misdeed in drafting the statement purporting to be from the Applicant.
(g)Having regard to s 360(2)(a) of the Migration Act 1958 (Cth) (“the Act”), the Applicant was bound to fail in the review unless he attended the hearing, and thus had nothing to lose by attending the hearing and stood only to gain if he attended the hearing.
(h)Without “real consent” the Applicant succumbed to the migration agent and allowed her to represent to the Tribunal that the Applicant consented to the Tribunal deciding the review without a hearing.
(i)In the circumstances, there has not been real consent under s 360(2)(b) of the Act.
As I have said, there was no evidence put before the Court, whatsoever, that would enable the Court to come to any conclusion that there was “not real consent” or that the agent had acted fraudulently. It is not insignificant that the Applicant has had 51 weeks to do so. This is especially so when the matter was subject to orders made by Registrar Van Der Westhuizen in Chambers.
The orders were that the matter was listed for final hearing which ended up being today’s date 20 February 2023 and that the court book bundle needed to be filed and paginated, and no later than two weeks from the date of these orders, being 3 June 2022, the Respondent serve a copy of the court book.
The Registrar ordered the filing of written submissions from the Applicant 14 days before the hearing and from the Respondent seven days before the hearing, and that the parties had liberty to apply to vary those orders by email to the migration team.
The parties later asked me to extend the time for those filings, and, on 23 January 2023, I did so. Still, there was no material put before the Court.
What had occurred, though, was that a notice of intention to withdraw as lawyer was filed on 1 February 2023. That notice says that, at least seven days before that date, that is, 1 February 2023 so, I gather, either the 23 or 24 January 2023, the solicitor had given the Applicant the notice of intention to withdraw.
On 7 February 2023, a new notice of address for service for a solicitors firm called Stephens & Tozer was filed with this Court. On 9 February 2023, the original solicitors filed a notice of withdrawal of lawyer.
There was no filing of submissions, as per my order, from the Applicant. On 13 February 2023, that is, seven days ago, the Minister filed their submissions as per the orders made on 23 January 2023.
On 16 February 2023, the new solicitors for the Applicant sent an email to the Court asking for an adjournment and saying that they had the consent of the Minister for the matter to be adjourned. No reason was given for the adjournment, and the adjournment was refused, and the hearing remained as listed today, 20 February 2023.
Notwithstanding that the Court had said that the matter would not be adjourned and would remain listed for hearing, the solicitor, a Mr Sahay, appeared before the Court today to again ask for the adjournment.
He gave no reasons for the adjournment other than to say that his firm had just recently come into the matter. I noted that “recently” meant 13 days ago. When I pressed for more information as to why there was a need for an adjournment, all that was said to me was that if they, the solicitors, had not received consent from the Minister to an adjournment, then they, the solicitors, would not have come in to represent the Applicant.
This seems to me to be a very strange statement to made, because the solicitor came into the matter on 7 February 2023 according to the notice that was filed, yet it was not till nine days later did they ask for the adjournment. There could not have been any way that the solicitors for the Minister could have made such a consent to an application for an adjournment before 7 February 2023.
Nevertheless, it would have been clear to the solicitor that the Court was not giving the adjournment on Thursday, 16 February. That meant that the solicitor had all of the rest of Thursday, all of Friday and the weekend to get this matter ready for hearing. The solicitor did not give me any reason why this had not been done.
The solicitor made a very damning admission to me that he had not even read the material and certainly did not read the decision of the Tribunal. I put to the solicitor the very simple proposition that an allegation of fraud was all that had been put before the Court and yet there was no evidence of such fraud put before the Court even though there had been 51 weeks to do so. The solicitor said that he cannot speak for what had happened before, but he had only been in the matter for that time and he had not taken proper instructions.
Again, there was no reason why proper instructions had not been taken in the last 13 days, and certainly since 16 February 2023 when the solicitor knew that the matter was not going to be adjourned. I refused the adjournment. The solicitor said that he did not wish to remain and asked for leave to withdraw, which was given. This meant that the Applicant appeared unrepresented. The Applicant kept saying that he could not tell me what error had been made without legal representation.
When I put to him that this was his application and that he must know whether there was an error or not, he conceded that he did know that there was an error by the Tribunal. I asked him to articulate that. After many false starts the Applicant finally did articulate his story.
He said that when he had been studying in 2018, he began to suffer depression. He started isolating himself from his peers and from his studies. He understood that his visa was going to end, and he had not attended to getting his visa extended.
He said that he had three different migration agents. He said that it was the second agent that he spoke to. This agent (he could not remember the name of but who had made out that he was a solicitor, but he actually was not a solicitor) submitted a statement for him. The Applicant said that he was able to be re-enrolled. He said that he did not think the second agent was very good, and so he got a third agent. It would seem from what the applicant had said that this third agent was the woman Diane Chen of whom the Tribunal spoke in their reasons.
He said that this agent got him a certificate of enrolment for two years at Torrens. The Applicant said that he moved to Brisbane in 2020. He said that after the move he was struggling. He said that he could not move his enrolment to ACU and that he had to keep his enrolment at Torrens. He said that he was now away from his social circle that he had in Melbourne. He said that he was fighting with his family. He said that his father was the person who was giving the financial support.
He said that he was being berated by his father with words to the effect that the father had given him about half a million dollars to support him in his studies, but that the Applicant had achieved nothing during that time. He said that the father’s disappointment and berating did nothing for his mental health. He said that his father does not understand depression and simply kept piling on the pressure.
The Applicant said that his diagnosed depression got worse, and he had to increase his medication to cope. Nevertheless, he was doing well in his studies at Torrens. He said, however, that, because of the visa restrictions, he could not work and because of COVID-19 he could not do much at all, and so the isolation continued. He said that he could not ask for any more money from his father.
The Applicant said that all of these pressures compounded upon each other and it was not good for his mental health.
He said that, at one stage, he had to cut-off his medication, and then, because of the cutting off of medication, he could not function. He said that he could not go to the practical study parts of his degree at the university because COVID would not allow the travel.
The Applicant explained to the Court that he works hard, and he studies hard, and he does well and that he can do everything that a graduate nurse can so. He said but it was stressful, too stressful, to keep studying in this way.
He said to the Court that, if he had a student visa, he could get a better offer than the nursing degree from Torrens. He said that he tried to defer his studies at times, but that they rejected that request.
He said that, through his lawyers (and he named them as Timpson Lawyers), he tried to sort out his visa problems. But he said, in going through things with Timpson Lawyers, they found that his problems stemmed from Diane because Diane convinced him not to appear at the Tribunal and that he, himself, really wanted to go to the hearing.
As I explained to the Applicant, the fact was that he did not have a certificate of enrolment. The Tribunal brought that to his attention very early on by asking for it, and the Applicant acknowledged, in his reply, that he did not have that certificate. The Tribunal, though it was quite unnecessary for them, gave the Applicant another chance to comment on this fact and even extended the time within which he could get another certificate of enrolment.
It was not as if the Applicant did not realise the significance of not having a certificate of enrolment. This is especially so when it can be seen that the Tribunal: -
·had brought it to his attention in their August letter,
·had given him another chance to give them a CoE by the October letter,
·had then given him a further four weeks, after the original time limit had expired, to provide a CoE
·did not make a decision for nearly two months after that, just in case the Applicant could have provided that CoE.
Whether the Applicant had appeared before the Tribunal, or not, could make no difference to the fact that he had no certificate of enrolment. When he has no certificate of enrolment, the Tribunal cannot give him a student visa.
There is no evidence as to any fraud, or any misdeed, that the agent Diane Chen perpetrated. That is something that must be proved and proved to the hilt by the Applicant; it is not something that is apparent on the record and not something that the Tribunal could ever have known about, even if it were correct.
But even if this did establish an error, it would not be a jurisdictional one because it could not have in any way, shape or form, led to a different conclusion.
If there were an error, it was not material and, therefore, not jurisdictional.
There is no need to go through the grounds that the Applicant had put before the Court because, as I have said, there is no evidence to back any of that up, and even if they could disclose an error, it was not a jurisdictional one.
The only course that is open for the Court, no matter how sympathetic the Court may be to the plight of the Applicant, is that there is no jurisdictional error that has been illustrated.
This means that the application for review must be dismissed with costs in the sum of $5900.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 29 March 2023
0
0
0