Ding v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Ding v Minister for Home Affairs [2019] FCA 1036

Appeal from: Ding v Minister for Home Affairs [2018] FCCA 3782
File number: NSD 28 of 2019
Judge: GRIFFITHS J
Date of judgment: 5 July 2019
Catchwords:

ADMINISTRATIVE LAW – appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review from a decision by the Administrative Appeals Tribunal (AAT) – whether the primary judge erred in finding that the AAT did not act unreasonably in refusing an adjournment – appeal dismissed, with costs

PRACTICE AND PROCEDURE – application for leave to adduce further evidence on the appeal – where the further evidence was two Confirmation of Enrollment documents – no sufficient explanation why these documents were not adduced before the primary judge – where the documents do not have any probative value in the present proceedings, in circumstances where the facts they would be used to prove are controverted by other parts of the appellant’s sworn evidence

Legislation:

Migration Act 1958 (Cth) ss 353, 357A, 360, 363

Migration Regulation 1994 (Cth) Sch 2 cl 500.111, 500.211 500.212
Cases cited:

Ding v Minister for Home Affairs [2018] FCCA 3782

DZF17 v Minister for Home Affairs [2019] FCA 979

Ellis v Central Land Council [2019] FCAFC 1; 364 ALR 446

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599

Minister for Immigration and Border Protection v SZVFW

[2018] HCA 30; 357 ALR 408

NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24
Date of hearing: 2 July 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 44
Solicitor for the Appellant: Ms E Anang of Christopher Levingston & Associates
Counsel for the Respondents: Mr G Johnson
Solicitor for the Respondents: Mills Oakley

ORDERS

NSD 28 of 2019
BETWEEN:

MINNIE DING

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

5 JULY 2019

THE COURT ORDERS THAT:

1.The interlocutory application dated 14 July 2019 be dismissed. 

2.The appeal be dismissed. 

3.The appellant pay the first respondent’s costs, as agreed or assessed. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J:

  1. This appeal is from a judgment and orders of the Federal Circuit Court of Australia (FCCA).  The judgment, which is dated 18 December 2018, is reported as Ding v Minister for Home Affairs [2018] FCCA 3782. The appellant also seeks by an interlocutory application filed on 14 June 2019 to have leave to adduce further…

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Details
Case
[2019] FCA 1036
Decision Date

CaseChat Overview and Summary

In Ding v Minister for Home Affairs, the Federal Court of Australia dismissed an appeal against the decision of the Administrative Appeals Tribunal (AAT) to refuse a visa application and an interlocutory application to adduce further evidence. The appellant, a Malaysian citizen, had a long history of migration in Australia and applied for a Student (Temporary) visa. The delegate refused the application, and the AAT affirmed the decision. The primary judge dismissed the application for judicial review and the interlocutory application to adduce further evidence. The appellant appealed the primary judge’s decisions.

The legal issues in the appeal were whether the primary judge erred in finding that the AAT did not act unreasonably in refusing an adjournment and whether the primary judge erred in dismissing the interlocutory application to adduce further evidence. The Court held that the primary judge did not err in finding that the AAT did not act unreasonably in refusing the adjournment. The Court also held that the primary judge did not err in dismissing the interlocutory application to adduce further evidence. The proposed evidence, two Confirmation of Enrollment documents, did not have any probative value in the present proceedings, in circumstances where the facts they would be used to prove were controverted by other parts of the appellant’s sworn evidence.

The Court dismissed the interlocutory application and the appeal. The Court held that the primary judge did not err in finding that the AAT did not act unreasonably in refusing the adjournment. The Court also held that the primary judge did not err in dismissing the interlocutory application to adduce further evidence. The Court held that the proposed evidence did not have any probative value in the present proceedings, in circumstances where the facts they would be used to prove were controverted by other parts of the appellant’s sworn evidence.

The Court ordered that the interlocutory application dated 14 July 2019 be dismissed and that the appeal be dismissed. The appellant was ordered to pay the first respondent’s costs, as agreed or assessed.

Orders

Orders of the court

1. The interlocutory application dated 14 July 2019 be dismissed.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, both the interlocutory application and the appeal will be dismissed, with costs. Summary of background matters The appellant is a citizen of Malaysia. She has a long migration history in Australia, dating back to 1989 when she was apparently granted her first student visa. There is evidence that she has lived in Australia, although not continuously, from that time and that she undertook various educational courses. On 25 November 2016, she applied for a Student (Temporary) (Class TU) subclass 500 visa (visa). The Minister’s delegate refused the visa application on 8 February 2017 because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that she intended to stay in Australia only temporarily. The delegate concluded that the appellant failed to satisfy the genuine temporary entrant criterion in cl 500.212 of Sch 2 to the Migration Regulation 1994 (Cth) (Regulations). The appellant sought a review of that decision in the Administrative Appeals Tribunal (AAT). The application for review was unsuccessful. The AAT found that, at the time of its decision (i.e. 5 July 2018), the appellant did not satisfy the requirements of cl 500.211 of Sch 2 to the Regulations. Prior to the hearing in the AAT, the AAT sought further information from the appellant by letter dated 13 April 2018 sent to her then migration agent, with specific reference to Ministerial Direction No 69 and the assessment of applicable temporary entrant criteria. A copy of Ministerial Direction No 69 was provided to the appellant with the request for further information. The appellant was asked to provide the information by responding to a questionnaire, which was titled “Request for Student Visa Information under s 359(2) of the Migration Act 1958”. Question 6 required the appellant to give information about the educational courses she was enrolled in while in Australia, while question 9 asked whether she had “a current Confirmation of Enrolment or letter of offer in a course of study”. The 13 April 2018 letter also stated that it was a requirement for the grant of the visa that the appellant was enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The AAT acceded to the appellant’s new migration agent’s request for an extension of time to respond to the questionnaire. The appellant’s response to the AAT’s request was provided by an email dated 14 May 2018 from her migration agent, which attached a copy of the completed questionnaire. In response to question 6, the appellant gave details of various educational courses she had been enrolled in since October 2006. She also stated that she had been enrolled in a Diploma of Marketing and Communications at the Australian Study Link Institute between the period November 2016 and October 2017. Further, she stated that she was enrolled in a Advanced Diploma of Marketing and Communications at the same institution during the period November 2017 to November 2018.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

No reference was made by the primary judge to the important findings of the AAT in [10] of its decision record. His Honour relied upon other matters in rejecting the legal unreasonableness claim. Those other matters are relevant to the issue of legal unreasonableness but so was the finding in [10]. That is for two reasons. First, the material was relevant to the Court’s assessment of legal unreasonableness. Secondly, it demonstrated the immateriality of any error on the AAT’s part in refusing the adjournment request because, on the appellant’s own sworn evidence, she was not enrolled in a course of study at the relevant time. Conclusion For these reasons, the interlocutory application to adduce fresh evidence is dismissed, as also is the appeal. The appellant should pay the Minister’s costs as agreed or assessed.

Ratio Decidendi

Legal Principle Established

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