HUANGFU v Minister for Immigration

[2016] FCCA 1421

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANGFU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1421

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – show cause hearing – whether the applicant has an arguable case – whether the Tribunal erred in finding that the applicant did not fulfil an essential criterion for the grant of a visa – whether the Tribunal was “over-objective” in its reasoning – no arguable jurisdictional error identified – application dismissed under r.44.12.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Schedule 2, cl.572.211(3)
Federal Circuit Court Rules 2001, r.44.12

Cases cited:

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: CHANGQING HUANGFU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3385 of 2015

Judgment of: Judge Street

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3385 of 2015

CHANGQING HUANGFU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 18 November 2015 affirming a decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa. The applicant is a citizen of China. The delegate refused to grant the applicant a Student Temporary (Class TU) visa on 13 May 2015. The grounds of the refusal were on the basis that the applicant did not satisfy cl.572.211(3).

2. That provision, in substance, required the applicant to hold a relevant visa within 28 days of making the application for the student visa.  The Tribunal noted that the applicant’s last substantive visa was held on 15 March 2015 and that it was not until 23 April 2015 that the applicant applied for the visa.  It was in those circumstances that the delegate held the applicant did not satisfy the prescribed criteria for a Student Temporary (Class TU) visa.  By a letter dated 20 October 2015 the Tribunal invited the applicant to appear at a hearing on 18 November 2015.  The applicant appeared on that date to give evidence and present arguments.

3. The Tribunal identified the requirements of cl.572.211 and the requirement that the applicant hold a relevant substantive visa within 28 days of making the current visa application. The applicant explained that he was a few days late and he did not realise the 28 day period had expired. The applicant provided no other reasons to the Tribunal for his delay. The Tribunal identified that it was a necessary criterion that the applicant meet the requirements of cl.572.211(3).

4. The Tribunal made a finding in relation to when the last substantive visa was held and found that the current application was not made 28 days after the last substantive visa ceased to be in effect. It was on that basis that the Tribunal found the applicant did not satisfy cl.572.211(3) and affirmed the decision of the delegate.

5. On 18 February 2016, a Registrar of the Court fixed the matter for a show cause hearing today and provided the applicant with an opportunity to file an amended application, affidavit and some submissions.  No such documents were filed.

6. The grounds of the application are as follows: 

   Orders sought by Applicant

   1, I disagree with Immigration and AAT's decision. They did not consider that I have been a genuine student and had not breached my visa condition. They did not consider the fact that I had compelling reasons. And I have provided explanation at AAT hearing to support my claim, however AAT did not give a good consideration.

   2, Immigration and AAT should granted my visa for student visa and allow me to continue my study.

   The Grounds of the Application are:

   1, I am a Chinese citizen and have been a genuine student since I arrived in Australia. I always obey my visa condition and never breached it.

   2, Tribunal's over objective in judging the explanation and the response of the applicant at the hearing

7. At the commencement of the hearing, the Court explained to the applicant that the matter was listed for a show cause hearing.  The Court explained that this required the court to be satisfied that the applicant had an arguable case.  The Court explained that an arguable case required the existence of an argument that the Tribunal’s decision was affected by relevant legal error.

8. The Court explained that the relevant legal error had to be one in which the Tribunal’s decision was either not lawfully made or was not fairly made.  The Court explained that it would identify the evidence and then hear submissions from the applicant and, provided that the applicant put submissions, it would hear submissions from the first respondent. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

9. In the present case, no submissions were put by the applicant.  It is entirely understandable why the applicant put no submissions.  There was no discretion in relation to the Tribunal in respect of the requirements that the applicant had to meet.

10. It was patent on the finding of the delegate that the applicant did not meet those requirements, but why the applicant had pursued then an application for review is not apparent. Having pursued this application in this Court, the applicant has exposed himself to an adverse order in relation to costs. 

11. In relation to ground 1, this is no more than a cavilling with the determination by the Tribunal and does not identify any arguable jurisdictional error.  In relation to para.2 of the orders sought, there is no foundation for the proposition that the Tribunal should have granted the visa.

12. It is apparent that the applicant did not meet an essential criterion for the grant of the visa.  Nothing in paras.1 or 2 under the orders sought identify any arguable jurisdictional error.  In relation to para.1 under grounds of the application, what is there said is nothing more than an invitation to an impermissible merits review and does not identify any arguable jurisdictional error.  In relation to para.2, the proposition that there was over-objective judging was baseless and has no foundation.

13. There is no conduct that was identified or that is apparent on the face of the material that could support any such allegation.  The adverse findings in the present case by the Tribunal were by reason of the fact that the applicant failed to meet an essential criterion for the grant of the visa.  The adverse findings by the Tribunal in relation to the applicant not meeting the criteria is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, impartial and independent mind to the determination of the matter on its merits. Nothing in para.2 identifies any arguable jurisdictional error. 

14. I take into account the principles and cautions expressed in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.  I am satisfied that the application fails to disclose any arguable jurisdictional error. 

15. The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016