Ho v Minister for Immigration

[2017] FCCA 1750

FEDERAL CIRCUIT COURT OF AUSTRALIA

HO v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1750

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 65, 360, 360A, 362B, 368, 379A, 379C, 499
Migration Regulations 1994 (Cth), cl.572.223
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Applicant: KA YING HO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1347 of 2017

Judgment of: Judge Emmett

Hearing date: 27 July 2017

Date of Last Submission: 27 July 2017

Delivered at: Sydney

Delivered on: 27 July 2017

REPRESENTATION

Applicant appeared in person with a Mandarin interpreter

Solicitors for the Respondents: Ms Sharon Sangha
Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1347 of 2017

KA YING HO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 3 May 2017, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 4 April 2017 (“the Tribunal”).

2. On 1 June 2017, the applicant attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 9 June 2017.

3. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

4. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the Tribunal’s decision, as follows:

   “Background

   3. The applicant is a citizen of Hong Kong who arrived in Australia on 2 January 2009 as the holder of a Working Holiday (Subclass 417) visa (CB 27, CB 48). The applicant was subsequently granted a Student (Subclass 572) visa on 25 September 2013 valid to 15 March 2016 (CB 27). The applicant did not commence any of her scheduled courses, and enrolled in General English (Beginner to Advanced) courses in 2013 and 2014, but completed only one of them (CB 27). 

   4. On 4 January 2016, the applicant lodged a further Student (Subclass 572) visa on the basis of her enrolment in a Diploma of Management (CB 1-7). The applicant did not lodge any documents in support of her visa application.

   5. On 17 February 2016, the Department wrote to the applicant and invited her to provide further information in relation to her ability to meet the genuine temporary entrant criterion (CB 12-19). The delegate noted that the applicant last arrived in Australia on 17 March 2014 and did not commence any studies until 13 October 2014 (7 months after arriving in Australia), and that she cancelled a number of courses prior to commencing studies. The delegate requested a response by 16 March 2016. The applicant did not respond to the Department's invitation.

   6. On 17 March 2016, the applicant provided a letter dated 17 March 2016 from the Sydney College of Business and IT stating that the applicant was enrolled in a Diploma of Management with a commencement date of 18 May 2015 (CB 20). The letter stated that the applicant's enrolment was cancelled due to poor performance and she was now enrolled in their intervention program.

   7. On 12 April 2016, a delegate refused to grant the applicant a Student (Temporary)(Class TU) visa on the basis that the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations)(CB 21-31). In particular, the delegate was concerned that the applicant did not study for 7 months between her arrival in Australia on 17 March 2014 and her commencement in a Diploma of Business on 13 October 2014. The delegate found there was no evidence that the applicant had ties to her home country to demonstrate that she had a significant incentive to return home at the end of her stay in Australia. The delegate also found her failure to respond to the department's letter was not consistent with the behaviour of a genuine student who wants to secure a student visa. The delegate concluded that the applicant's lack of academic progress, study history, potential circumstances in Australia, immigration history and the lack of value of the courses to her future, she was using the Student visa program to circumvent permanent migration programs (CB 30).

   The Tribunal process

   8. On 22 April 2016, the applicant made an application for review to the Tribunal (CB 32-33). The applicant provided a copy of the delegate's decision with the application (CB 33).

   9. By a letter dated 24 January 2017, the applicant was invited to attend a hearing scheduled for 4 April 2017 (CB 37-40). The Tribunal's invitation was sent by email to the applicant's email address ([email protected]) as provided in her application for review, in compliance with s.379A(5), and was taken to have been received by the applicant that same day pursuant to s 379C(5) of the Act.

   10. On 28 March 2017 and 3 April 2017, the applicant was sent SMS text messages to the mobile number specified in her review application with a hearing reminder (CB 41-42).

   11. On 4 April 2017, the applicant failed to appear at her scheduled hearing.

   The Tribunal's decision

   13. On 4 April 2017, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal noted that the invitation to hearing letter dated 24 January 2017 was sent to the applicant by email but no response was received (CB 48, [4]). The Tribunal noted that the hearing invitation informed the applicant that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. The Tribunal also noted that an SMS hearing reminder was sent to the applicant's mobile phone but she failed to make contact with the Tribunal to explain her absence (CB 48, [4]).

   14. The Tribunal affirmed the decision under review on the same basis as the delegate, namely the applicant's failure to satisfy cl.572.223(1)(a) (CB 48, [5]). Clause 572.223(1)(a) required the Minister (or the Tribunal) to be satisfied that the applicant was a genuine temporary entrant. In considering whether the applicant met the genuine temporary entrant criteria in cl.572.223(1)(a), the Tribunal correctly considered Direction No 53, which in turn required it to consider the applicant against a list of factors. Those factors were set out in the Tribunal's decision (CB 49, [8]). The Tribunal noted that the factors are not to be used as a checklist but are intended to guide decision makers to weigh up the applicant's circumstances as a whole.

   15. The Tribunal found that it had no submissions from the applicant and relied on the material before it, namely the Department file (CB 49, [10]). Based on the “cumulative information” available to the Tribunal, it found that:

   a. the applicant had not completed any VET courses as required by her visa,

   b. had only completed English courses since being granted a Student visa,

   c. made no academic progress, and

   d. had not complied with conditions 8202 and 8616 of her Student visa (CB 49, [13]).

   16. The Tribunal did not accept that the applicant was genuinely participating in the student international program and found that she was using it as “a pathway to maintain residence in Australia” (CB 49, [14]). Based on the evidence of the applicant's circumstances overall, including her immigration and limited study history and other matters the Tribunal considered relevant, including in respect of Direction 53, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The Tribunal concluded that the applicant did not meet cl.572.223(1)(a) of Schedule 2 to the Regulations and affirmed the decision under review (CB 50, [15]-[16]).”

8. The applicant was unrepresented before the Court this morning, although had the assistance of a Cantonese interpreter.

9. I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

10. The applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with directions or otherwise. 

11. The applicant confirmed that she relied on the grounds of her application for judicial review, filed on 1 June 2017. The grounds of review are as follows:

    “1. I contacted AAT on 5 April 2017 and they didn’t say my case was over. Later, AAT send me the decision on the same day and tell me the case was over.

    2. It is wrong for AAT said the decision was made on 4 April 2017 it should be 5 April.

    3. It is wrong to say that they have no power to take any further action on 5 April. AAT should accept my request.”

12. The grounds of the application were interpreted for the applicant and the applicant was invited to say whatever she wished in support of the grounds.

13. At the heart of the applicant’s complaint was a submission that the Tribunal had failed to give her a further hearing date and reinstate her matter after she had failed to appear at the hearing.

14. The only submission made by the applicant was to repeat that she had not been given an opportunity to explain her failure to attend the Tribunal’s hearing. When I asked her why she had failed to attend, she said it was because she was unwell. I said to the applicant that there was no evidence before this Court that the applicant had made any attempt to seek an adjournment of her hearing before the Tribunal prior to its scheduled date and time because she was unwell or for any other reason.

15. Following notification to the applicant that her application had been refused, the applicant rang the Tribunal on 5 April 2017 at 10.57am. The Tribunal’s file note indicates that the applicant said she had missed the hearing on 4 April 2017 and wanted to book another time for the hearing. The applicant sent an email at 11.01am on 5 April 2017 saying no more than:

    “I am sorry that I missed the interview yesterday.  Can you please arrange another day for me. Thank you very much.”

16. The applicant agreed that was the only communication that she had with the Tribunal and that she had not provided any further information and had not provided any medical certificate to the Tribunal or informed the Tribunal that she had been unwell. 

17. There is no complaint made by the applicant that the notice of invitation to hearing before the Tribunal was sent pursuant to s.360 of the Act was sent other than in accordance with section 360A of the Act.

18. Where an applicant has been invited to a hearing in accordance with s.360 of the Act, pursuant to s.362B of the Act the Tribunal may take one of three courses:

    i)Make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

    ii)Dismiss the application without any further consideration of the application or information before the Tribunal.

    iii)Reschedule the applicant’s appearance before it.

19. In the case before this Court, the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

20. In considering whether to proceed to make its decision on the review without taking any further action to allow or enable the applicant to appear before it, the Tribunal noted that an invitation to hearing had been duly sent to the applicant. The Tribunal noted there was no response received from the applicant. The Tribunal further noted that the hearing invitation informed the applicant that if she did not attend the hearing and a postponement was not granted the Tribunal may make a decision without further notice. The Tribunal also noted that a hearing reminder was sent by SMS to the applicant’s mobile phone, however, there was no response received from the applicant prior to the time and date at which the hearing before the Tribunal was scheduled.

21. There is no error in the manner in which the Tribunal exercised its discretion pursuant to section 362B(1A)(a) of the Act in decision to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. In the circumstances, the exercise of the Tribunal’s discretion was open to it and exercised according to law.

22. The Tribunal’s decision was made in accordance with s.368 of the Act. Section 368 of the Act requires the Tribunal to set out its decision on the review; set out the reasons for its decision; set out the findings on any material questions of fact; refer to the evidence or any other materials on which the findings of fact were based; and, record the day and time the statement is made.

23. Pursuant to s.368(2) of the Act, the Tribunal’s decision is taken to have been made by the making of the written statement on the day and at the time the written statement is made.

24. Pursuant to s.368(2A) of the Act a Tribunal has no power to vary or revoke a decision made pursuant to s.368 of the Act.

25. The Tribunal’s decision recorded the day and time the statement was made as 4:48pm on 4 April 2017. Accordingly, the Tribunal had no power to vary or revoke its decision after 4:48pm on 4 April 2017.

26. In the circumstances, s.5(9) and s.5(9A) of the Act have the effect that the applicant’s application for judicial review was finally determined on 4 April 2017 at 4.48 pm and the Tribunal was functus officio from that time.

27. The applicant’s request to the Tribunal to reschedule another hearing was made by the applicant at the earliest on 5 April 2017 at 10.57 am by telephone. The applicant confirmed her request by email on 5 April 2017 at 11.01am.

28. In the circumstances, the Tribunal’s refusal to accede to the applicant’s request that she have another hearing was the only course open to it.

29. The Tribunal then went on to consider the applicant’s claims and evidence.

30. The Tribunal noted that the applicant was required to meet at the time of decision criterion clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), which relevantly states:

    “(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a) The Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i) the applicant’s circumstances; and

    (ii) the applicant’s immigration history; and

    (iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv) any other relevant matter; and

    (b) …”

31. The Tribunal’s decision record makes clear that the Tribunal rejected the applicant’s claims because the Tribunal found that the applicant did not satisfy the genuine temporary entrant criterion in cl.572.223(1)(a) of the Regulations.

32. The Tribunal noted that the applicant was required to comply with mandatory conditions 8202 and 8516 of the Regulations. Condition 8202 required continual study and Condition 8516 required maintenance of enrolment.

33. The Tribunal noted that the applicant had never successfully completed any course at Vocational Education and Training level (“VET”) and never made any course progress in the time she commenced her participation in the international student program. The Tribunal found that the applicant had used these programs as a pathway to maintain residence in Australia.

34. The Tribunal referred to Direction No.53, Assessing the genuine temporary entrant criterion for student visa applications, made under s.499 of the Act and noted those specified factors as follows:

    “(i) the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the courser to the applicant’s future;

    (ii) the applicant’s immigration history, including any previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    (iii) if the applicant is a minor, the intentions of a parents, legal guardian or spouse of the applicant; and

    (iv) any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable ot the applicant.”

35. The Tribunal also noted that the factors specified were not to be used as checklists, but were intended to be a guide to assist decision makers in weighing up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion.

36. The Tribunal noted that it had not received any submissions from the applicant and therefore was solely reliant on the information currently available to the Tribunal, being the Department’s file.

37. The Tribunal noted that the decision by a delegate of the first respondent (“the Delegate”), dated 12 April 2016, noted that the applicant failed to respond to the Department’s request for comment and failed to provide supporting documentation in relation to her application.

38. The Tribunal noted that the Department’s file indicated that the applicant had only undertaken English level courses, completing the last one on 20 September 2015 and had not maintained enrolment. The Tribunal found that in those circumstances, the applicant was in breach of primary Condition 8516.

39. The Tribunal noted that the Department’s file also indicated that the applicant had not completed any course at VET level, only ever having completed introductory language level courses.  

40. The Tribunal noted, as had the Delegate, that the applicant had made no academic progress and had not complied with two primary conditions, being Condition 8202 requiring continual study, nor maintaining enrolment, being Condition 8516. The Tribunal noted the applicant provided no further information as requested by the Delegate to explain her absence from study since 20 September 2015.

1. The Tribunal noted that it had considered all the evidence before it, including the applicant’s non-compliance with primary conditions, her failure to successfully complete any course at VET level, and her failure to have made any progress in any course in the time she commenced her participation in the International Student Program.

2. For those reasons, the Tribunal did not accept that the applicant was genuinely participating in the International Student Program, but rather was using it as a pathway to main residence in Australia.

3. Ultimately, the Tribunal concluded that, based on the evidence before it, including the applicant’s immigration and limited study history, it was not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal was not satisfied that she intends to stay genuinely in Australia temporarily, having regard to the evidence advanced and considered cumulatively.

4. The Tribunal was, therefore, not satisfied that the applicant met the criterion in cl.572.223(1)(a) of the Regulations and, accordingly, affirmed the decision under review.

5. The Tribunal’s findings would appear to have been open to it on the evidence and material before it and for the reasons it gave. 

6. It was for the applicant to satisfy the Tribunal that she met the relevant criteria. In the absence of the Tribunal being satisfied that the criteria were met, s.65(1)(b) of the Act provides that the Tribunal must refuse the applicant’s visa application and affirm the decision under review.

7. While I make no final decision as to whether or not the Tribunal’s decision is affected by a jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the Tribunal’s decision record.  The Tribunal referred to the relevant law in affirming the decision under review.

8. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 3 May 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  7 August 2017