Guan v Minister for Immigration
[2010] FMCA 802
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GUAN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 802 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether the applicant complied substantially with condition attached to visa – application for judicial review out of time – Tribunal must direct correspondence to an authorised recipient until applicant directs otherwise – Tribunal did not breach s.359A – Tribunal did engage in the active intellectual process – not in the interests of justice for time to be extended for judicial review – application dismissed. |
| Migration Act 1958 (Cth), ss.359, 359A, 360, 368A, 379G, 424A, 476, 477 Migration Regulations 1994 (Cth), Schedule 2 cl.572.212, 572.226 |
| Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Minister for Immigration and Multicultural Affairs v Modi [2001] FCA 1656 Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 Kim v Witton and Another (1995) 59 FCR 258 Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323 |
| Applicant: | LIANG LIANG GUAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1007 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 July 2010 |
| Date of Last Submission: | 20 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2010 |
REPRESENTATION
| Appearing for the Applicant: | Mr N Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers |
| Appearing for the Respondents: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 7 May 2010 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount $6,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1007 of 2010
| LIANG LIANG GUAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 7 May 2010 Mr Guan made an application to this Court under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), signed on 15 May 2006 and handed down on 2 June 2006, which affirmed the decision of the delegate of the First Respondent who found Mr Guan was not entitled to the grant of a Student (Temporary) visa.
Background
Mr Guan is a national of the People’s Republic of China (“China”). On 15 March 2005 he applied for a student visa (see Court Book – “CB” – CB 1 to CB 20). He was assisted by a migration agent (CB 17). At that time he had already been studying in Australia since July 2002.
A delegate of the Minister refused this application on 25 August 2005. (CB 95 to CB 99). In essence the decision was based on a finding that Mr Guan had not met a condition attached to his previous student visa, being that he had not maintained at least an 80% attendance record throughout his studies.
The Tribunal
Mr Guan applied to the Tribunal for review on 8 September 2005 (CB 100 to CB 105). He continued to be assisted by the same migration agent (CB 101).
By letter dated 17 February 2006, and sent to his agent who was the authorised recipient for such correspondence, the Tribunal wrote to Mr Guan pursuant to s.359A of the Act inviting his comment on certain information which the Tribunal said would be the reason or a part of the reason for affirming the delegate’s decision.
This was information received from the applicant’s education provider which showed his attendance rates for terms in 2004 and 2005. (CB 114 to CB 115).
By letter dated 23 March 2006 the Tribunal invited Mr Guan’s comments on further information received from his education provider relating to his attendance rates for other academic terms in 2003 and 2004 (CB 129 to CB 131).
The Tribunal identified the central issue in the review as being whether Mr Guan “complied substantially” with condition 8202 attaching to the visa that he held at the time of the application for the visa referred by the delegate ([12] at CB 139).
The delegate’s decision was that Mr Guan did not satisfy, at the relevant time, cl.572.212 and cl.572.226 of Schedule 2 to Migration Regulations 1994 (Cth) (“the Regulations”):
“572.212
If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.
572.226
If the application was made in Australia, the applicant continues to satisfy the criterion in clause 572.212.”
The relevant part of condition 8202 as it was at the relevant time is:
“8202
(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.”
The Tribunal was not satisfied that the application had met the attendance requirements for various terms in relevant academic years. It found he had therefore breached condition 8202 for the visa he held at the relevant time ([38] at CB 143).
The Tribunal ultimately found that Mr Guan had not complied substantially with condition 8202, attached to his previous visa, and therefore found he did not satisfy cl.572.212 of the Regulations at the time of making the application for the visa, the subject of the correct application. The Tribunal affirmed the delegate’s decision.
Before the Court
At the hearing before the Court Mr N Dobbie appeared for Mr Guan. Ms D Weston appeared for the respondent. Written submissions were filed by both parties. The affidavits of Graham John Wood of 15 July 2010 and Mr Guan of 6 July 2010 were read into evidence (no objections). Mr Guan was cross-examined.
Competence
The date of the Tribunal’s decision was 15 May 2006. The date of the application to the Court was 7 May 2010.
Section 477(1) of the Act provides that, to engage the Court’s jurisdiction under s.476 of the Act, the application to the Court must be made within 35 days of the Tribunal’s decision. The transitional arrangements introduced on 15 March 2009 (Migration Legislation Amendment Act (No.1) 2009 (Cth)) deem the date of any decision made prior to 15 March 2009 to be taken as made on that date for the purpose of s.477(1) (see Schedule 2 to the Migration Legislation Amendment Act (No.1) 2009 (Cth)).
But even with this, the application (as amended) before the Court is out of time.
Mr Dobbie before the Court also pressed the application that I should extend the time in the interests of the administration of justice pursuant to s.477(2).
In this regard I note the following relevant elements: the extent of the delay, the reasons for it, whether there is any merit in the grounds of the application, any prejudice to the Minister, the impact on Mr Guan and the exercise of the discretion itself.
Delay
While for the purposes of s.477(1) the delay in this case is over one year, the actual delay relevant to s.477(2) is just under four years.
The applicant’s explanation for this delay was initially that he had moved from the address originally given to the Tribunal as his residential address.
The applicant had engaged a migration agent to represent him before the Tribunal. The agent was nominated as the authorised recipient for correspondence in relation to the review (CB 101).
It is clear from the relevant material before the Court that the Tribunal properly directed various correspondence to the authorised recipient. In particular the letters inviting information (s.359 of the Act) and comments on information (s.359A of the Act).
On 28 March 2006 the agent informed the Tribunal (CB 132):
“… This is to inform that in regard to your letters dated 17 February 2006 and 23 March 2006, I had tried to contact Mr Guan many times including sending a letter to his residential address in the mail but I have received no reply at all by now.
Therefore, I have to withdraw my representation for him.”
Notwithstanding this, the Tribunal should have continued to send correspondence to the agent. Section 379G(1) provides that where an applicant gives notice that he wants an authorised recipient to receive documents on his behalf then the Tribunal must send these documents to the authorised recipient.
Section 379G(3) provides that the applicant may vary or withdraw this notice.
In the current case there is no evidence that the applicant ever gave such a notice to the Tribunal. The Tribunal sent its letter notifying the handing down of the affirmation of the delegate’s decision to the applicant’s residential address, as notified in his application for review. (CB 133).
Given the express provision of s.379G(3), and the absence in s.379G of any capacity for the authorised recipient to withdraw from that capacity, it was not open to the Tribunal to act in this way. Notwithstanding the authorised recipient’s advice, the relevant letter should still have been addressed to the authorised recipient. The Minister acknowledges this in submissions (at [7] of the written submissions).
However, the Minister also submits that the applicant was notified under the Act when he was provided with a copy of the decision on 14 April 2010. I do not agree.
The only evidence before the Court to which this submission can refer is the letter at Attachment “A” to the applicant’s affidavit. This letter is dated 14 April 2010. It is addressed to the applicant at the Villawood Immigration Detention Centre. It is clearly sent from an officer in the Minister’s department. The letter includes the following:
“… You sought merits review of that decision with the Migration Review Tribunal (MRT) on 8 September 2005. The decision by the MRT to affirm the decision to refuse to grant you a Class TU Subclass 572 visa was made on 2 June 2006.
The department has assessed your case and found that you were not correctly notified of this decision and therefore the bridging A visa you held with respect to your Student (Temporary) (Class TU) visa application is still in effect.
As you are the holder of a bridging visa, you are lawfully in Australia and are thereby released from immigration detention.
You have been re-notified of this decision on 14th April 2010 and given advice regarding any right you may have to seek Judicial review of that decision.”
There is no other evidence before the Court to show that the Tribunal itself notified the applicant of its decision on that date.
If the Minister therefore now seeks to assert that this letter constitutes notification of the Tribunal’s decision under the Act, then this submission must be rejected. The officers in the Minister’s department cannot purport to meet the Tribunal’s obligation to notify its decision, or at the relevant time to advise of the handing down of the Tribunal’s decision. Only the Tribunal can do this.
As at 14 April 2010, when this purported notification was given, s.368A provided that the Tribunal must notify the applicant of a decision within 14 days after the day the decision was taken to have been made.
Clearly as at 14 April 2010 the Tribunal was well outside the 14 day requirement. Although I note that s.368A(3) provides that any such failure does not affect the validity of the decision.
What is left is that there is no evidence before the Court that the Tribunal notified the applicant of the decision under the Act as at 14 April 2010. There is no evidence before the Court that the department’s officer was empowered by the Tribunal to act on its behalf, or was also an officer of the Tribunal, to have been able to discharge the Tribunal’s obligation in this regard. For that matter there is no evidence before the Court as to what the departmental officer regarded as the incorrect notification by the Tribunal. In the circumstances it can only be inferred that this was the sending of the letter to the applicant’s residential address rather than to the authorised recipient.
I did note the words in the departmental letter: “You have been re-notified of this decision on 14th April 2010.” In the absence of any other evidence, this can only be read that the departmental officer was purporting to notify the applicant of the Tribunal’s decision. Such notification cannot be said to have been made under the Act.
If the Tribunal had so acted at any time on or about 14 April 2010 any such document would have or should have been included in the Court Book – the bundle of relevant documents which the Minister was ordered to file and serve in this matter (Order 1 of the Court made at the first Court date in this matter) and also in compliance with the Minister’s public position as a model litigant, which includes providing the Court with all relevant documents.
Alternatively, any such document could have been put before the Court by way of affidavit at any subsequent time, as indeed was the material attached to the affidavit of Mr Wood.
On the evidence before the Court the applicant has not been properly notified of the Tribunal’s decision under the Act. This point was not taken by the applicant before the Court. However for the purposes of the Court’s jurisdiction under s.477(1) in any event the department’s purported notification is not the basis on which the relevant time is said to start running.
However, when the applicant actually knew of the Tribunal’s decision such that he could then take action to seek judicial review may be relevant to the consideration under s.477(2).
For the purposes of s.477(2), the applicant’s explanation for the delay in coming to this Court so long after the date of the Tribunal’s decision was that even after he moved to a new residence by March 2006 he received several telephone calls from his agent to see when he could come into his office. He went there on one occasion. He took no steps to contact the agent after that. Nor did he provide any alternative addresses at which he could be contacted.
Ultimately his evidence was that over time he was concerned about the outcome of the Tribunal’s consideration but he: “… was very sure that they would tell me bad news. So I would not want to listen [to] that.”
Mr Dobbie submitted that the agent sought to “withdraw instructions” by his letter to the Tribunal, on the basis that he could not contact the applicant.
The answer in my view, based on the applicant’s evidence before the Court, was that he put himself in a situation where he would not, or could not be contacted by his agent so as to avoid hearing “bad news”.
It is only when the applicant was detected by the Minister’s department, having apparently “concealed” himself in the community, and was detained, that then gave rise to the sequence of events that led to the application being made to the Court.
In the intervening years not only did the applicant take no steps to ascertain the outcome of the Tribunal’s consideration, but took steps to avoid finding out.
On balance, even though it was not for an officer of the Minister’s department to concede error on the Tribunal’s part in its notification letter, nor that the officer was able to effect proper notification, what remains is that the applicant sought to avoid the consequences of what he said in evidence before the Court he was “very sure” would be “bad news”.
As an explanation of delay before coming to the Court that is not satisfactory.
The Merits of the Application to the Court
There are three grounds with particulars in the amended application. Mr Dobbie submitted that he did not press ground three.
Ground one asserts a breach of s.359A and s.360 of the Act. A number of instances in support were put.
Ground 1
Mr Dobbie advised that, in light of Mr Wood’s affidavit and the material annexed to it, and in light of Federal Court authority, particulars (a)(ii), (iii) and (iv) of ground one were only pressed formally.
These complaints related to information in the delegate’s decision. Mr Dobbie conceded that, on the authority of Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (at [16]), information contained in a delegate’s decision record is information given by the applicant to the Tribunal if and when an applicant gives that decision record to the Tribunal.
No challenge was made to the affidavit of Mr Wood. In light of that evidence, I find that the applicant did give the delegate’s decision record to the Tribunal at the time of the making of the application to it. As such, any information initially caught by s.359A(1) was excluded from the operation of that sub-section by the exclusion set out at s.359A(4)(b).
Therefore particulars (a)(ii),(iii) and (iv) to ground one do not reveal error on the part of the Tribunal.
Particular (i) asserts a breach of s.359A in that, in its letters of 12 February and 23 March 2006 (CB 114 and CB 129), the Tribunal failed to ensure that it gave the applicant particulars of the information that the Tribunal said would be the reason or a part of the reason for affirming the delegate’s decision and failed to ensure that the applicant understood why that information was relevant to the review.
The basis for the complaint is said to be the reference to parts of the applicant’s attendance record expressed in percentages:
“(i) In the letter of 12 February:
Term 3 of 2004 – 46.5% attendance. Term 1 of 2005 – 57%.
(ii) In the letter of 23 March:
Term 3 of 2003: 34.3%. Term 4 of 2003: 78.59%.
Term 1 of 2004: 74.24%. Term 2 of 2004: 56.5%. Term 3 of 2004: 45.0%.”
These latter percentages were said to have been provided to the Tribunal by the relevant education provider (Uniworld Colleges). This information was not in that form in the delegate’s decision record. Mr Dobbie’s submission was that the question to be considered was whether the letters complied with the requirements of s.359A.
Section 359A, at the relevant time, was in the following terms:
“(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.”
The applicant’s complaint is that the Tribunal found that the applicant did not comply substantially with condition 8202 of the visa in force at the time he made his application for the visa which the delegate refused.
The relevant part of condition 8202 at the time was in the following terms (see [14] of applicant’s submissions):
“8202
(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.”
In essence the complaint came down to a failure by the Tribunal, said to arise from the way its relevant letters were drafted. That is, its failure to make specific reference to condition 8202(3)(a)(ii) (given that (i) did not apply in the circumstances) led to the Tribunal not ensuring as far as is reasonably practical that the applicant understood the relevance of this information to the ultimate outcome of the review.
The Court was referred to the letter of 17 February 2006. It contained the following purported explanation as to relevance (at CB 115):
“… At the time of your visa application you held a Subclass 571 visa which was granted on 20 September 2002 and ceased on 15 March 2005. This visa had condition 8202 attached to it. This condition requires the holder to be enrolled in a registered course, to have maintained attendance in his or her registered course for at least 80% of the contact hours scheduled and to achieve an academic result that is certified by the education provider to be at least satisfactory.”
The thrust of the complaint is that, with the general reference to the attendance requirement being “80% of the contact hours scheduled”, the Tribunal did not present an accurate picture of the regulatory requirement, and this therefore led to it not ensuring as far as is reasonably practical that the applicant understood the relevance of the information to the review.
That is, the extract quoted above did not make it clear that the requirement was that the applicant needed to attend for at least 80% of the contact hours scheduled for each term of his course. The letter could be read as saying that he needed to have maintained an average of 80% over the entire course, instead of the need to achieve 80% for each term of the course.
The submission was further that merely referring to a breach was not sufficient. The Tribunal failed to link this breach to the substantial requirement in cl.572 of Schedule 2 to the Regulations that the applicant needed to continue to satisfy this requirement, which was a condition material to the requirement to be satisfied. That is why a breach of condition 8202 was relevant to the criterion that the applicant was required to meet and maintain. The absence of any such reference meant that the applicant was not in a position to meaningfully respond to the Tribunal.
No authorities were cited in support of this argument.
I do not agree that jurisdictional error is revealed in this regard.
It should be noted that the form of s.359A in force at the relevant time was different in two ways material to the way the applicant has chosen to argue his case now.
First, in s.359A(1)(a) there was no requirement for the Tribunal to give “clear particulars” of any information caught by that section, as applies now.
Second, in relation to s.359A(1)(b), there was no requirement on the Tribunal to ensure as far as is reasonably practicable that the applicant understood the consequences of the information being relied on in affirming the delegate’s decision in the way submitted by the applicant now.
To the extent that the applicant’s arguments now referred, even by implication, to these aspects in the current version of s.359A, then they cannot assist him. But in any event, on either version his case is not made out.
To the extent that the applicant also complains that the Tribunal should have made specific reference to the relevant part of the Regulations, that argument on its own does not assist him.
The Tribunal was not required (and is not required now) to provide the applicant with a scholarly, learned, or detailed dissertation on the law. In fact such an approach may get in the way of what it is obliged to do.
The procedural fairness requirement embodied in s.359A as it was, and indeed as it is, is part of the fairness principle that the applicant knows the case put against him and is given the opportunity to respond.
In my view a plain, simple explanation uncluttered by, what would be to a lay person, meaningless references to the minutiae of the Regulations is to be preferred as meeting this objective.
In any event s.359A, as it was, obliged the Tribunal to give to the applicant, in the way that the Tribunal considered appropriate in the circumstances, particulars of any information that it considered would be the reason or a part of the reason for affirming the delegate’s decision.
Further, it had to ensure as far as was reasonably practicable that the applicant understood the relevance of this information to the review it was conducting.
In both letters, whether read individually or together, and in any plain, holistic reading, the applicant was told of his attendance rates in relation to particular terms of his course (two in the first letter, four additional in the second). The letters set out the percentage attendance for each of the various terms relating to his course of study.
In each letter he was told that these had been provided to the Minister’s department and the Tribunal by the relevant education provider.
On any plain reading, when read in context of the whole of the letters, the applicant would have understood, and this was made even plainer in the second letter (CB 130), that for each of the terms for which percentage attendances were given to the Tribunal his attendance was less than 80%.
In context, given that none of the attendances referred to was over 80%, the applicant’s submission now that the Tribunal’s letter may have left open the possibility that this was meant to be an average of 80% over the entire course, as opposed to each term, cannot be made out.
It does not take any great mathematical ability to understand that there could have been no confusion given that the applicant never exceeded 80% attendance for any of the terms itemised.
In reality the applicant would have understood that his attendance record for each of the many terms itemised was below, and in some instances far below, the required standard of attendance.
His attention was plainly directed to this. There was sufficient particularity given so that the applicant understood the deficiency in his attendance rates and the source of the information.
Both letters made it clear that his attendance was such that it could lead the Tribunal to find that he was in breach of the requirement set out in condition 8202 (which was referred to in both letters) that he needed to achieve a certain level of attendance. In context for each term of study itemised.
Ms Watson’s description of the applicant’s argument as being a “technical” one is generous. The complaint is not made out.
I should just note that an additional argument put by the applicant before the Court at the hearing, at least inferentially, that relied on what the Tribunal eventually found, may have come up against the temporal difficulty for such an argument identified by the High Court in SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 at [17] as it related to s.424A, and by analogy s.359A. (“Would be” not “what was”.) I note also that Federal Court authority does allow for consideration of the Tribunal’s decision record in these circumstances, but only as it may assist in what the Tribunal considers “would be” the reason at some anterior point in time (SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 at [15] to [16], SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [14] to [17] and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36]). In any event, whatever the situation, this does not assist the applicant.
While the ground as stated in the application also pleaded a breach of s.360 none of the particulars appeared to relate to any such breach. No mention, other than in passing, was made of any such breach in either written or oral submissions on behalf of the applicant. In any event, on what is before the Court, no such breach is evident.
Ground Two
Ground two asserts error in that the Tribunal failed to make a finding on a claim said to have been made by the applicant. Namely that the applicant had claimed that in some academic classes he would be “marked” as absent even if he were only five minutes late, and in other circumstances he was not allowed to attend class (relevant to completion of assignments).
In short, these were the applicant’s explanations to the Minister’s department as to why his attendance record indicated a less than 80% rate for the relevant terms. The applicant’s pleading is to be understood that the Tribunal fell into jurisdictional error because it did not make a separate and specific finding in relation to this.
While the matter was canvassed in written submissions to the Court, at the hearing no submissions of substance were made. At best it appeared that this also was a ground “preserved”.
In any event, the answer to the applicant’s ground is to be found in the authorities to which the Tribunal itself referred in its decision record.
It is not the case that the Tribunal failed to note the applicant’s explanations to the Minister’s department as to his attendance record. It plainly acknowledged this as part of the evidence and material before it (see [21] at CB 141).
Broadly, the applicant’s written submissions assert that the Tribunal failed to give meaningful consideration, in the sense of engaging in a active intellectual process (Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140), in relation to the issue of the applicant’s statements as to his attendance rates (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).
The Tribunal relied on Federal Court authority (Minister for Immigration and Multicultural Affairs v Modi [2001] FCA 1656 at [23]) which addressed what was said by Gray J in Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 at [17] in response to what had been earlier said in Kim v Witton and Another (1995) 59 FCR 258 that (at CB 139):
“… the considerations listed by Sackville J in Kim were not to be elevated to the status of relevant considerations in every case. The circumstances of the case will determine the statutory duty of the decision-maker, and there is no rigid test.”
The Tribunal properly saw the issue it was required to address as being whether the applicant complied substantially with condition 8202 of the visa he held at the time of making the application for the visa refused by the delegate ([12] at CB 139).
It understood that in determining substantial compliance there was no rigid test and that it was the circumstances of the cases that would determine the outcome.
In this regard the Tribunal considered Mr Guan’s attendance record in relation to his studies, and took into account his submission to the Minister’s department, although it appears in part this related to his high school studies. It noted that he had been sent letters by the education provider warning of irregular attendance and on at least one occasion the length of his failure to attend.
Importantly, the Tribunal had regard to the applicant’s submissions which contained his relevant explanations (see in particular [41] at CB 143 to CB 144). It plainly noted the explanation given by Mr Guan in relation to the matter of his attendance and the recording of it (including his lack of attendance).
At its highest, the applicant’s complaint, as explained in written submissions, appears to be that the Tribunal did not make specific findings in relation to the applicant’s explanations as to his poor attendance record. Namely that in some classes he would be marked as absent if he were five minutes late and in some circumstances he was not allowed to attend classes (due to lack of content in assignments).
The short answer, as submitted by Ms Watson, is that the Tribunal does not have to make specific findings on each piece of evidence provided in explanation by an applicant (Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323 at [70] to [85]).
The Tribunal must deal with a claim in the context of the relevant statutory or regulatory text. The Tribunal did that. The applicant’s claim was that he had substantially complied with the relevant condition attached to his previous visa. The Tribunal plainly addressed this. It gave proper consideration and, on any plain reading of its decision record, engaged in the active intellectual process which the applicant’s submission claims it failed to engage.
It is clear that the Tribunal, in weighing what was before it, found the circumstances of the large gaps between actual attendance and the target of at least 80% attendance, the warning letters he received from the education provider, the length of time or the number of terms (six) over which he failed to attend for at least 80% of contact hours, and the continuance of this even when he changed courses to outweigh the explanations that he had provided for this record.
Ground two is not made out.
Exercise of the Court’s Discretion
The applicant’s explanation for the four year delay in coming to this Court is not satisfactory, even in light of the Tribunal’s action in the sending of the letter of notification and more recently the Minister’s officers purporting to act on behalf of the Tribunal. On the other hand there is no real prejudice to the Minister if the time were extended by which the applicant can make his application to the Court. This can be offset however by that nothing of substance was put before the Court to show the impact on the applicant if time were not extended.
At best the applicant’s evidence was that he has suffered great hardship because of the Tribunal’s decision, and that he has lost the chance of being granted a student visa. It must be said that, on what is before the Court, more recently this appears to be due to the applicant’s own doing, his own action in avoiding “bad news”, including, earlier, over a period of some years, consistently failing to attend classes at the satisfactory level of attendance.
But all of this is overshadowed by the lack of any real merit in the application to the Court. Of the two grounds that survived one was at best “preserved”, the other, even when argued substantially by his legal representative, is simply not made out.
Conclusion
In these circumstances it is not in the interests of the administration of justice that the time for the making of the application to the Court be extended pursuant to s.477(2). The application, as amended, is therefore dismissed as not competent.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 22 October 2010
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