Guo v Minister for Immigration

[2014] FCCA 2745

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2745

Catchwords:
MIGRATION – Student visa – refusal – review by Migration Review Tribunal (“Tribunal”).

ADMINISTRATIVE LAW – Allegation that Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased, failed to consider the applicant’s claims and denied the applicant procedural fairness.

Legislation:

Migration Act 1958, ss.359A, 359C, 360, 363A, 379A, 379C, 474

Migration Regulations 1994, reg.4.17, cls.570.232, 571.232, 572.223, 572.224, 572.225, 572.231, 572.235, 573.231, 574.231 and 575.231 of sch.2, cl.4005 of sch.4, cls.5A404, 5A405 and 5A406 of sch.5A

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: LANFANG GUO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2641 of 2013

Judgment of: Judge Cameron

Hearing date: 3 November 2014

Date of Last Submission: 3 November 2014

Delivered at: Sydney

Delivered on: 3 November 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr B.D. Kaplan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2641 of 2013

LANFANG GUO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of China, applied for a Student (Temporary) (Class TU) subclass 572 visa on 26 February 2013. On 2 April 2013 her application was refused by a delegate of the first respondent (“Minister”) on the basis that she did not satisfy the criteria contained in pt.572 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant Legislation

Student visa

1. At the time of the Tribunal’s decision, cl.572.231 of sch.2 to the Regulations provided that at the time of decision, an applicant for a subclass 572 visa must be:

   … enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a)a principal course; and

   (b)of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice:

   (i)made under regulation 1.40A; and

   (ii)in force at the time the application was made.

2. With limited exceptions that do not apply in this matter, cls.570.232, 571.232, 573.231, cl.574.231 and 575.231 require that the same criteria be met for their relevant subclasses.

Conduct of Tribunal

1. Section 359A of the Act relevantly provides:

   Information and invitation given in writing by Tribunal

   (1)Subject to subsections (2) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   ...

2. Section 359C of the Act relevantly provides:

   …

   (2)    If the applicant:

   (a)is invited under section 359A to comment on or respond to information; and

   (b)does not give the comments or the response before the time for giving them has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

3. Section 360 of the Act provides:

   Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)    Subsection (1) does not apply if:

   (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)subsection 359C(1) or (2) applies to the applicant.

   (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

Background facts

Delegate’s decision

1. The delegate refused to grant the applicant a student visa on the basis that he was not satisfied that she met the requirements of cls.572.223, 572.224, 572.225 and 572.235 of sch.2 to the Regulations, cls.5A404, 5A405 and 5A406 of sch.5A to the Regulations and Public Interest Criterion 4005 as she had failed to provide, when requested, any evidence of her English language proficiency, financial capacity, previous schooling, medical examinations, overseas student health cover or evidence of substantial compliance with the relevant regulations.

Review application

1. On 22 April 2013 the applicant applied to the Tribunal for review of the delegate’s decision. On 4 September 2013 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting her to comment in writing on information that it considered would be the reason or part of the reason for affirming the delegate’s decision. The Tribunal made particular reference to electronic records from the Provider Registration and International Student Management System (“PRISMS”) database of the Department of Education, Employment and Workplace Relations which indicated that she was not enrolled in, or the subject of a current offer of enrolment in, any course. The Tribunal also relevantly provided the following information:

   a)electronic records from the PRISMS database indicated that the applicant’s last day of study in any course was on 26 April 2013 when she completed a General English course of four weeks’ duration;

   b)the same records indicated that the applicant was last enrolled in a Certificate IV in Business and a Diploma of Management due to commence on 13 May 2013 but did not commence the former and both enrolments had been cancelled;

   c)the same records indicated that since the time the applicant first commenced studies in Australia, she had completed a High School Preparation course between 18 July 2011 and 16 September 2011 and a General English course between 25 March 2013 and 26 April 2013; and

   d)according to electronic movement records of what is now the Department of Immigration and Border Protection, the applicant arrived in Australia on 25 April 2011 and had resided in Australia since that date apart from the period between 30 December 2011 and 11 February 2012.

2. The Tribunal informed the applicant that it deemed that information relevant because it might lead it to find that she was not a genuine applicant for entry and stay as a student. 

3. The Tribunal advised the applicant that it should receive any comments or response she might wish to make by 27 September 2013. It advised that if it did not receive her comments within the period allowed or as extended, it might make a decision on the review without taking any further action to obtain her views on the information. The Tribunal further advised that she would also lose any entitlement she might otherwise have had under the Act to appear before it to give evidence and present arguments.

4. The applicant did not provide any comments or response to the Tribunal by 27 September 2013 and did not apply for an extension of time to do so.

The Tribunal’s decision and reasons

1. As the applicant failed to provide comments within the prescribed period, the Tribunal considered that, pursuant to ss.359C, 360(3) and 363A of the Act, she was not entitled to appear before it and it proceeded to make a decision without taking further steps to obtain her comments.

2. Referring to the information in the PRISMS database, the Tribunal affirmed the delegate’s decision on the basis that the applicant had not met the enrolment requirements for a student visa contained in cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of sch.2 to the Regulations as there was no evidence, at the time of its decision, that she was enrolled, or the subject of a current offer of enrolment, in any applicable course of study.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.MRT HAVE DESCRIMINATIO ON ME, FAILED TO CONSIDER MY REAL SITUATION.

   2.MRT FAILED TO COMPLY WITH THE PROCEADURE FAIRNESS.

   (Errors in original)

2. A bundle of relevant documents forming a Court Book was tendered in evidence and is exhibit A. 

3. The Minister also relied on the affidavit of Natasha Simone Blake, affirmed on 17 February 2014, which set out the procedure by which the Tribunal’s s.359A letter of 4 September 2013 was sent to the applicant. Relevantly, annexed to Ms Blake’s affidavit was an Australia Post lodgment record bearing the same registered post number as appeared on the reproduction of the 4 September 2013 letter found in the Court Book. The lodgment record identified a letter having been sent to the applicant at an address in Griffith which she had advised in her application to the Tribunal as her address in Australia and as the postal address for correspondence from the Tribunal. That lodgment record also bore a date stamp indicating that the postal item in question had been received at the Alexandria Bulk Mail Lodgment Centre on 6 September 2013. I note that Ms Blake was of the view that the date stamp said 5 December 2013 but, in the circumstances of the case, any disagreement between us on that point is of no relevance.

Ground 1

1. The first ground of the application contained two elements.  The first was an allegation of discrimination on the part of the Tribunal, presumably against or to the disadvantage of the applicant.  An allegation of that sort is, in substance, an allegation of bias and so an allegation which must be clearly alleged and proved.  No evidence was adduced by the applicant to suggest that the Tribunal was biased in fact or gave the appearance of possible bias in its conduct of the review and I am not persuaded that the Tribunal’s decision record supports conclusions of that sort. 

2. The second element of the first ground of the application was an allegation that the Tribunal failed to consider the applicant’s claims.  In this case, the issue before the Tribunal was whether the applicant satisfied the criteria for the grant of a student visa.  There was no evidence before the Tribunal that the applicant satisfied the enrolment criteria applicable to the various student visa subclasses potentially relevant to her circumstances, even though she had been invited to address the Tribunal’s concerns on that issue.  As there was no evidence to satisfy the Tribunal that the applicant met those criteria, it did not need to consider any other aspect of her claims or situation because, as a result of the lack of such evidence, it was obliged to affirm the delegate’s decision. 

Ground 2

1. The second allegation was not particularised but it can be assumed to refer to the fact that the Tribunal made a decision on the review without hearing from the applicant in person. Notwithstanding that the applicant did not have an oral hearing before the Tribunal, that did not amount to a denial of procedural fairness. The Tribunal’s letter of 4 September 2013 was posted, I find, on 6 September 2013 which satisfied s.379A of the Act and so the applicant was deemed by s.379C of the Act to have received the letter on 13 September 2013. The fourteen day period for a response provided by the letter reflected the response period prescribed by reg.4.17(4) of the Regulations.

2. As the giving of the s.359A notice complied with the Act, the Tribunal was obliged to make its decision without giving the applicant an oral hearing. Consequently, it did not err by proceeding to a decision without one.

Ground 3

1. At the hearing of this application, the applicant said in addresses that she had received the s.359A letter but had been told by her agent to ignore it. For present purposes, I am prepared to accept that allegation as fact. I asked the applicant if she wanted to suggest any reason why her alleged agent, who was not mentioned in any of the documents reproduced in the Court Book, would have given her such advice. She did not make any submission which suggested that the Tribunal’s decision might have been affected by any factor which would justify it being set aside. If she had done so, it would have been necessary that she give evidence on the issue and be cross-examined but as she did not I was, as I said, willing to accept for present purposes her submissions as factually correct.

Conclusion

1. I am not persuaded that any basis justifying the setting aside of the Tribunal’s decision has been demonstrated, whether in the form of jurisdictional error or any other reason. 

2. Consequently, the application will be dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  25 November 2014