Guo v Minister for Immigration and Border Protection
[2015] FCA 134
•27 February 2015
FEDERAL COURT OF AUSTRALIA
Guo v Minister for Immigration and Border Protection [2015] FCA 134
Citation: Guo v Minister for Immigration and Border Protection [2015] FCA 134 Appeal from: Application for extension of time: Guo v Minister for Immigration & Anor [2014] FCCA 2745 Parties: LANFANG GUO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number(s): NSD 1231 of 2014 Judge(s): SIOPIS J Date of judgment: 27 February 2015 Date of hearing: 24 February 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 29 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First Respondent: Ms N Blake
Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1231 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: LANFANG GUO
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
27 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for extension of time to appeal is dismissed.
2.The applicant is to pay the first respondent’s costs in the sum of $3,500.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1231 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: LANFANG GUO
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
27 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to extend time to appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 3 November 2014, dismissing the applicant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).
On 26 February 2013, the applicant, who is a citizen of China, lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a Student (Temporary) (Class TU) Subclass 572 visa.
On 2 April 2013, a delegate of the first respondent refused to grant the applicant a student visa.
THE TRIBUNAL
On 22 April 2013, the applicant sought a review of the delegate’s decision before the Tribunal.
Clause 572.231 of Sch 2 of the Migration Regulations 1994 (Cth) requires, in effect, that at the time of the decision, the applicant must have been enrolled in, or be the subject of a current offer of enrolment in a course of study that is a principal course, and is of a type specified under the Migration Regulations for subclass 572 visas.
According to the electronic records of the Provider Registration and International Student Management System available to the Tribunal, the applicant was not enrolled in, nor the subject of a current offer of enrolment in a qualifying course. On 4 September 2013, the Tribunal wrote to the applicant pursuant to s 359A of the Migration Act 1958 (Cth), referring to this information and stating that this information may lead the Tribunal to find that the applicant did not satisfy cl 572.231 of Sch 2 of the Migration Regulations.
The Tribunal’s letter also stated that on the information available to it, during the period of approximately two years, that the applicant had been in Australia, she had been enrolled in educational courses for a total of approximately two months. The Tribunal said in the letter that the information may lead the Tribunal to find that she was not a genuine applicant for entry and stay as a student, and, accordingly, may not meet cl 572.223 of Sch 2 of the Migration Regulations.
The s 359A letter invited the applicant to comment upon the information in the letter and informed the applicant that the Tribunal may make a decision on the review without further consulting the applicant if she failed to provide any comments by 27 September 2013.
The applicant did not provide any comments to the Tribunal by the prescribed period, or apply for an extension of time to do so.
The Tribunal proceeded to consider the applicant’s claims without inviting the applicant to a hearing. The Tribunal found that there was no evidence before the Tribunal that the applicant was then enrolled, or had a current offer of enrolment in any applicable course of study. On 1 October 2013, the Tribunal, therefore, affirmed the decision of the delegate to refuse to grant the applicant a student visa.
THE FEDERAL CIRCUIT COURT
The applicant made an application for judicial review of the decision of the Tribunal to the Federal Circuit Court. The applicant’s grounds of review were:
1.MRT HAVE DESCRIMINATIO [sic] ON ME, FAILED TO CONSIDER MY REAL SITUATION.
2.MRT FAILED TO COMPLY WITH THE PROCEADURE [sic] FAIRNESS.
The Tribunal considered each of these grounds of review, as well as a third ground of review which was raised during the applicant’s oral submissions.
On 3 November 2014, the Federal Circuit Court dismissed the applicant’s application for judicial review.
THE APPLICATION FOR EXTENSION OF TIME
The applicant has set out three proposed grounds of appeal in her draft notice of appeal:
1.Bias of the Honour, Judge of Federal Magistrate Court [sic] against the Applicant.
2.Error of the Honour, Judge of the Federal Magistrate Court [sic], in failing to hear the evidence given by the applicant.
3.Error of the Honour, Judge of the Federal Magistrate Court [sic], in failing to identify the jurisdictional error made by the Second Respondent.
At the hearing in this Court, the applicant advanced no oral argument in support of the grounds of appeal, other than to say that her migration agent had told her to ignore the s 359A letter.
There is, for the following reasons, no sufficient prospect of the applicant’s appeal succeeding, to warrant the grant of an extension of time.
As to the first proposed ground of appeal, there was no evidentiary basis at all advanced for the making of the allegation of bias in this proposed ground.
As to the second proposed ground of appeal, there was no evidentiary basis advanced before this Court, upon which to found the allegation made in this proposed ground. No affidavit, nor transcript, was produced in evidence to support this proposed ground of appeal. In any event, it is apparent that the primary judge accepted the truth of the applicant’s claim before him that the applicant’s migration agent had told the applicant to ignore the s 359A letter.
The third proposed ground of appeal requires greater consideration, because this proposed ground of appeal, calls for consideration of the grounds of review considered by the primary judge.
I deal first with the third ground of review because this was raised by the applicant in oral submissions before this Court.
The primary judge made the following observations about this third ground of review:
23.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 by 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.
In my view, the primary judge did not fall into error in relation to this issue.
It is the case that there may be circumstances where the fraud of a third party (in migration cases, sometimes, the fraudulent conduct of a migration agent) may vitiate the decision of the Tribunal. One such example, is the case of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. However, it is also established that mere negligence, inadvertence, or incompetence, will not constitute fraud so as to warrant judicial intervention (Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33], SZSXT v Minister for Immigration and Border Protection (2014) 307 ALR 31 at [52]).
In this case, there was no allegation made by the applicant that there was any fraudulent conduct by the migration agent in question. The evidence went no further than that the migration agent told the applicant to ignore the s 359A letter. That evidence does not reach the level of an allegation of fraud. The primary judge gave the applicant an opportunity to expand upon that allegation, but the applicant did not. In those circumstances, the primary judge did not err in finding that the conduct of the applicant’s migration agent did not give rise to a circumstance as would suggest that the Tribunal’s decision might be affected by any factor as would justify setting it aside.
As to the other grounds of review, the first ground of review was treated by the primary judge as amounting to an allegation of bias and a failure to consider the applicant’s claim; and the second ground of review was treated as alleging a breach of procedural fairness by failing to give the applicant a hearing.
In relation to the first ground of review, the primary judge rejected each of those contentions. First, said the primary judge, there was no evidence of bias. Secondly, the primary judge found that the Tribunal considered whether the applicant satisfied the criteria; and that, in the absence of the applicant responding to the s 359A letter, and putting evidence before the Tribunal, the Tribunal did not fall into jurisdictional error in making its decision on the basis of the evidence before the Tribunal. The primary judge did not err in this respect.
In relation to the procedural fairness complaint, the primary judge found that in giving notice to the applicant under s 359A, the Tribunal had complied with the Migration Act, and that, in the absence of a response to the notice by the applicant, the Tribunal was obliged to make its decision without giving the applicant a hearing. In my view, the primary judge did not err in coming to this view (Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [25]-[32]).
Accordingly, I find that there is not a sufficient prospect of success to warrant extending the time for the applicant to appeal.
The application is, accordingly, dismissed with costs.
I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 27 February 2015
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