Cui v Minister for Immigration
[2007] FMCA 1255
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CUI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1255 |
| MIGRATION – Application to set aside order dismissing substantive application for non-appearance – re-instatement – whether reasonable excuse for non-attendance – whether arguable case – application refused. |
| Federal Magistrates Court Rules 2001, rr.13.03A, 16.05 |
| Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167 |
| Applicant: | DA WEI CUI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 120 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 30 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.G.A. Deckker |
| Solicitors for the Applicant: | Australian Legal Advisory Centre |
| Solicitor for the First Respondent: | Ms P. Mitchell |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application filed 12 April 2007 be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 120 of 2007
| DA WEI CUI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
First Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Court has before it an application filed 12 April 2007 which for present purposes I am prepared to regard as an application pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (the Rules) effectively seeking to set aside an order made by a Registrar of this Court on 7 March 2007 where the Registrar, amongst other orders, made an order in the following terms:
“2.The application be dismissed pursuant to Rule 13.03A of the Federal Magistrates Court Rules.”
That order made by the learned Registrar is what may genuinely be referred to as an order made in the absence of the appearance of the Applicant before the Registrar.
The Applicant before this Court has sought to rely on, in support of his application to set aside the Registrar's orders, an affidavit sworn by him on 25 July 2007. It is noted that the substantive application before the Court, which I take is now sought to be reinstated, was an application seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 15 December 2006. In its decision the Tribunal had affirmed a decision under review, finding that the visa Applicant is not entitled to the grant of a student temporary class TU visa (which I shall refer to as "the student visa").
In reaching its decision, the Tribunal had regard to what it describes as the operative version of condition 8202 which was a condition that applied to the particular subclass 571 visa at the relevant time. The Tribunal itself sets out the somewhat unfortunate history of this application, namely that the Applicant had first entered Australia on 11 July 2002 as the holder of a student temporary class TU visa subclass 571 which had been granted on 1 July 2002 and had been valid until 15 March 2005. The Tribunal correctly notes that that is the substantive visa which was most recently held by the Applicant and was subject to a number of conditions, including condition 8202. For convenience I incorporate in this judgment condition 8202 as it relevantly applied to the Tribunal and which I am satisfied has been accurately set out in paragraph 33 of the Tribunal decision:
“8202(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student -- the holder is enrolled in a full-time course of study or training.
(3) A holder meets the requirements of this subclause if:
(a) in the case of a holder whose education provider keeps attendance records -- the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)for a course that runs for less than a semester -- for the course; or
(ii)for a course that runs for at least a semester -- for each term and semester of the course; and
(b) in any case -- the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester -- for the course; or
(ii)for a course that runs for at least a semester -- for each term or semester (whichever is shorter) of the course.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full‑time course of study or training.”
Before this Court the Applicant, in seeking to set aside the order of the Registrar who had dismissed the application pursuant to r.13.03A of the Rules is required to satisfy the Court that there is a reasonable excuse for the Applicant's non-attendance before the Court on 7 March 2007. For present purposes I have noted the Applicant's affidavit to which I referred earlier, explaining, as he appears to, that he had allegedly responded to correspondence from the First Respondent's solicitors seeking the execution by the Applicant of proposed minutes of consent orders. Those minutes were enclosed in a letter dated 26 February 2007 to the Applicant in which the First Respondent's solicitors note that the first hearing was to take place on 7 March 2007 and appropriately and quite properly then enclosed proposed minutes of consent orders which were the orders the First Respondent suggested should be made by the Court to "enable this matter to be prepared for hearing".
Regrettably, there appears to be a dispute as to whether or not those consent orders were in fact signed by the Applicant, who unfortunately was then self-represented, and whether or not they were forwarded to the First Respondent's solicitors by the Applicant. Ms Mitchell, who appears on behalf of the First Respondent, has relied upon an affidavit sworn by her on 30 July 2007. For reasons which will become apparent it is not necessary for the Court to refer to either the Applicant's affidavit, nor indeed the detailed affidavit from Ms Mitchell, save to say that I am at least satisfied for present purposes that it may well be the case that the consent orders were signed by the Applicant and forwarded to the First Respondent and perhaps not either received by the First Respondent or perhaps not placed on the correct file.
However I do not have sufficient evidence before me to suggest that there has been any error at all on the part of the First Respondent in the procedures followed by the First Respondent in relation to the file in this matter nor otherwise. On the affidavit material I am prepared to give the Applicant the benefit of the doubt in relation to whether he did or did not forward signed minutes of consent orders which clearly would have resulted in procedural orders being made, rather than a significant dismissal order being made in the absence of the Applicant on 7 March 2007.
The Applicant otherwise refers to issues concerning his address which again for present purposes I am prepared to accept. In accepting that explanation it should be stressed that I do not see any fault or error on the part of the First Respondent in the manner in which the file had been handled or the matter dealt with by the Court on 7 March 2007. In simple terms, the First Respondent did not have on file the signed consent minutes from the Applicant and therefore proceeded accordingly, in the absence of the Applicant, to seek an order for dismissal pursuant to r.13.03A of the Rules.
In the circumstances I am prepared to at least make a finding that the Applicant in the detailed affidavit prepared by his legal representatives, who now appear on his behalf, has provided sufficient evidence of a reasonable excuse for not attending on 7 March 2007. However, that leaves open to the Court the question of whether or not the Applicant does have an arguable case which would otherwise justify reinstatement of this application. The issue is a fairly narrow one in the application of condition 8202 which is set out in the Tribunal decision at paragraphs 34 to 40 as follows:
“34.Condition 8202(3)(a) requires the review applicant to demonstrate that he attended at least 80% of the scheduled contact hours of his course. A letter from Ballarat Grammar School dated 4 March 2005 states that the review applicant attended 50% of classes in Mathematics, 80% of classes in Accounting, about 90% of classes in ESL, but that the School does not have attendance records for Chinese as a First Language since this course was taken externally. The first Tribunal, in a letter dated 5 September 2005, put to the visa applicant that evidence before it appeared to show that his attendance in terms 1, 2 and 3 in 2004 was less than 80% and invited him to comment upon this information The review applicant did not respond to the invitation to comment. The second Tribunal, in a letter dated 2 November 2006, invited the review applicant to provide additional information in support of his claims but he failed to respond.
35.Based on the evidence before it, the second Tribunal finds that the breach of condition 8202(3)(a) is made out.
36.Condition 8202(3)(b) requires the applicant to demonstrate that he achieved an academic result of each semester that is certified to be at least satisfactory to the education provider. The Tribunal notes the letter from Ballarat Grammar dated 24 March 2005 which states that the review applicant has satisfactorily passed at Year 11 level, and that some other units remain to be completed for him to meet the full VCE requirements. The Tribunal finds that this letter fails to certify that the visa applicant achieved an academic result that is certified by the education provider to be at least satisfactory, as required by condition 8202(3)(b).
37.The Tribunal invited the review applicant to provide a statement from the provider to the effect that he has achieved an academic result that is certified by the education provider to be at least satisfactory. The review applicant did not respond to this invitation.
38.Based on the evidence before it, the second Tribunal finds that the breach of condition 8202(3)(b) is made out.
39.Since the date of the consent orders of 5 May 2006 that set aside the first Tribunal’s decision, the Full Federal Court, per Heerey and Sundberg JJ, has held in Jayasekara v MIMA [2006] FCAFC 167 (Finkelstein J dissenting) that:
·Since the Migration Regulations include some conditions to which the concept of substantial compliance can have no logical application, the Regulations are to be read as not admitting any qualification of substantial compliance in such cases.
·The four paragraphs of condition 8202 are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs.
·The substantial compliance requirement might be apt in the case of paragraph 8202(3)(c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours.
·In the present case, it is not suggested there was any certificate at all. There was no compliance, let alone substantial compliance. Still less could reasons or explanation for non-compliance amount to compliance, substantial or otherwise.
·Baidakova and Kim dealt with different conditions, to which a substantial compliance criterion could be applied. In Baidakova the condition required a certain percentage of class attendance; in Kim it was a condition requiring temporary entry permit holder not to work.
40.The Court’s comment enjoin the Tribunal to apply the approach in Weerasinghe, and having done so, the Tribunal is not satisfied, after reviewing the evidence before it, that the review applicant substantially complied with the conditions of his last substantive visa, a requirement of clause 573.212 of Schedule 2 to the Regulations. The applicant as a whole must therefore fail.”
It will be evident from those passages that a fundamental issue arose regarding the Applicant's attendance. It is also clear that some degree of confusion has arisen in this application, both before the Tribunal and, to some extent, in the affidavit material of the parties, directly out of the contents of the letter of 4 March 2005 by the education provider. That letter is reproduced in the Court book which had been filed in the earlier proceedings where by consent the matter was remitted. Those proceedings, MLG 1525 of 2005, though the subject of consent orders do not reveal the basis upon which the matter was remitted. Nevertheless, the Court Book does relevantly contain the letter from the education provider dated 4 March 2005, the contents of which I incorporate in this judgment as follows:
“To Whom It May Concern:
Re: David Cui
Certificate of Attendance
For Mathematical Methods and Further Mathamatics David only attended 50% of classes.
Chinese as a First Language was taken externally of the School and therefore we have no records of attendance.
David abandoned his Accounts subject early in the year. He completed the first semester with an 80% attendance and after missing the exam decided to drop the subject.
David attended most of his ESL classes = 90%
If you require further information about attendance please contact Mr Rob Gray, VCE Co-ordinator on 03 5339 1191.”(sic)
It is apparent from that letter that again some confusion appears to arise in relation to the attendance of the Applicant in the particular subjects for which he had been enrolled. Further confusion arises in the Tribunal's decision in the matter in which it refers to those subjects and in particular seems to refer to an attendance in classes "in mathematics", whereas the letter of 4 March 2005 refers to what I now accept to be two separate subjects, namely, "mathematical methods and further mathematics".
Once the number of subjects is revealed it would appear that the Applicant had enrolled for the following: mathematical methods; further mathematics; Chinese as a first language, taken externally; and English as a second language. It would appear that the Applicant had abandoned, according to the correspondence, the accounts subject, having completed the first semester with 80% attendance but then having missed the exam and then decided to drop the subject.
It is clear to me, on a proper analysis of the material before the Court, that even if one were to make allowance on the affidavit material for the Applicant's attendance record for external Chinese of 100% and have regard to his attendance at the ESL class of 90%, with 50% of each of the mathematics classes, that in the circumstances the Applicant would still fail to achieve an attendance of the required amount of 80% and, accordingly, having failed to achieve that attendance record would be in breach of condition 8202 as indicated by the Tribunal in the extract of its findings set out earlier in this judgment.
I can see no basis upon which the Court can then find in the present case that there has been an error made by the Tribunal on the material now available. Even if one were to give to the Applicant the benefit of 100% attendance in the external Chinese subject, and even after having made allowance for what appears to be a less than adequate item of correspondence from the education provider, it seems to me that the irresistible conclusion is the one reached by the Tribunal free of jurisdictional error in its application of condition 8202 and, in particular, in its application of the principles which bind this Court of the Full Court decision in the matter in Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167.
It is strenuously argued for and on behalf of the Applicant, that there are otherwise errors that might constitute jurisdictional error, despite the vague and unspecified nature of the original substantive application drawn by the unrepresented Applicant. In my view any errors are errors of a kind which would not provide any or any proper basis upon which the Court would be able to conclude that there is a jurisdictional error of a kind which would justify remittal. Even if I am in error in the way in which I have assessed the substantive issue, and in error in finding, as I do find, that there is no arguable case, it seems to me on the affidavit material currently before the Court in any event it would be futile to remit the matter to a differently constituted Tribunal, as the facts and circumstances in support of the Applicant's argument that he has complied with condition 8202 would simply not improve to a point where he could satisfy the Tribunal, or indeed a delegate, that he has indeed complied with the attendance requirements of condition 8202 as it then applied to the Applicant.
My conclusion therefore is that whilst I am prepared to accept that there may be grounds upon which the Court is able to find that the Applicant had a reasonable excuse for not attending Court on 7 March 2007, I am not otherwise satisfied that the Applicant has demonstrated he has an arguable case and, further, in my view I am satisfied that there is indeed a degree of futility in any event in this matter and that it is appropriate in those circumstances, for the reasons given, that the application seeking reinstatement filed 12 April 2007 should be dismissed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 July 2007
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