Jin v Minister for Immigration
[2013] FCCA 2033
•20 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2033 |
| Catchwords: MIGRATION – Application for leave to file application for judicial review out of time – consideration of factors. |
| Legislation: Education Services for Overseas Students Act, s.20 |
| Fisher v Minister for Immigration & Anor [2007] 162 FCR 299 Jayasekara v Minister& Anor [2006] 156 FCR 199 Kim v Ministerfor Immigration & Anor [2011] FMCA 780 Hassan v Minister for Immigration & Anor [2012] FMCA 155 SZFDE v Minister for Immigration & Anor [2007] HCA 35 Minister for Immigration & Anor v SZLIX [2008] FCAFC 17 |
| Applicant: | SHENG SHU JIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1215 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 20 November 2013 |
| Date of Last Submission: | 20 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2013 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
Application for extension of time dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1215 of 2013
| SHENG SHU JIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before the Court this morning an application by Ms Jin for leave pursuant to s.477(2) Migration Act 1958, (Cth)[1] to permit the filing of her application for judicial review of a decision of the Migration Review Tribunal[2] out of time. The decision of the MRT was made on 8 February 2013 and in accordance with s.477(1) of the Act the application was required to have been lodged with this Court by 15 March 2013. It was not lodged until 31 May 2013 which means that it is seventy seven days late.
[1] “Act”
[2] “MRT”
Under s.477(2) the Court may extend the 35 day period if:
“(a)An application for that order has been made in writing to the court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)The court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
The applicant indicated in her application that she wished this matter to be considered by the Court and so it is only necessary for the Court to decide whether it is in the interests of the administration of justice to make an order extending time. The considerations that apply are two fold. Firstly, the Court must be satisfied that there was a good reason for the delay and secondly, the Court must be satisfied that there is, at the very least, a good argument for the applicant’s claim for judicial review. As Stone J said in Fisher v Minister for Immigration & Anor [2007] 162 FCR 299, consideration of the administration of justice involves:
“Consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”
In this case the applicant, Ms Jin, was studying at Macquarie University as the holder of a Class TU visa 573 class, this, though, was subject to Condition 8202 with its negative requirement that:
“A holder meets the requirements of this subclause if neither of the following applies:
(a)The education provider has certified a holder for a registered course undertaken by the holder as not achieving satisfactory course progress for:
(i)Section 19 of the Education Services for Overseas Students Act 2000; and
(ii)Standard 10 of the National Code of Practice for Registration of Authorities and Providers of Education and Training to Oversees Students 2007.
(b)The education provider has certified the holder for a registered course undertaken by the holder as not achieving satisfactory course attendance or:
(i)Section 19 of the ESOS Act 2000 and
(ii) Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.”
Ms Jin soon discovered that undertaking a course at Macquarie was not for her. She was not used to the way in which the course was presented, she was homesick and she found it too difficult and a strain upon her. She told the Tribunal and she has told the Court that she determined that she should continue with her studies with another education provider and enrolled with the Holmes Institute. What she did not do was to tell Macquarie University of her intentions and whilst she obtained a Certificate of Enrolment[3] from the Holmes Institute, there was no official transfer from Macquarie University to that education provider. As a result, although she was not studying any longer at Macquarie University and was studying at Holmes Institute, she received a notice under s.20 of the Education Services for Overseas Students Act certifying that she had not achieved satisfactory progress for her course. When the matter came to be determined by a delegate of the Minister the applicant advised the delegate that she had enrolled in Holmes Institute and was in fact doing quite well. The delegate took the view that a breach of Condition 8202(3)(a) had occurred. It is now accepted law that it is the certification by the education provider that constitutes the breech rather than the facts lying behind it.
[3] “CoE”
Ms Jin sought review of that decision from the MRT and attended a hearing before it. She made the same points to the Tribunal which she had made to the delegate, namely, that she had placed the matters in the hands of a migration agent and he had told her that, provided she had a CoE from Holmes Institute, that was all she needed. So she did not herself make any contact with Macquarie University. The Tribunal considered the matter. Ms Jin had told the Tribunal that she believed that she had substantially complied with the requirements of the Act but the Tribunal concluded, after considering the case of Jayasekara v Minister& Anor [2006] 156 FCR 199 that:
“There are some conditions to which the concept of substantial compliance is no logical application. Either the condition is satisfied or it is not: Jayasekara v MIMA [2006] 156 FCR 199. The cause in Jayasekara held by majority that the requirement of a certificate and the academic result component of condition A202(3) as it stood, when it considered that case, was one such condition.”
The Tribunal also accepted as the appropriate law that it was the issue of the certificate for the purposes of clause 8202(3) that constituted the breech; Kim v Ministerfor Immigration & Anor [2011] FMCA 780 and Hassan v Minister for Immigration & Anor [2012] FMCA 155 and stated in [34] [CB 74]:
The applicant claims that Macquarie University should not have reported her for unsatisfactory course progress as she was no longer a student at the university and she had moved to a different education provider in March 2009. The Tribunal notes, however, that the applicant’s enrolment at Macquarie University was not cancelled until 29 May 2009 and that she did not informed Macquarie University that she had changed to another education provider. In any case, the Tribunal is unable to look behind the certification. The decision by an education provider to issue a certificate for the purposes of cl.8202(3) is not reviewable by the Tribunal.”
On 13 November 2013 the applicant filed an affidavit with this Court which was intended to deal with the first task of the Court, namely to consider her reasons for the delay in filing the application. She said in the affidavit:
“1.After the MRT made the decision, my migration agent told me I must apply to the Minister. My agent did not tell me that I can apply to the court for review. This was never given to me as an option after the MRT.
2. My agent then proceed with a letter to the Minister.
…”
Whilst it is now accepted that it is possible for fraud on the part of a migration agent to constitute circumstances which might unravel a Tribunal’s decision; SZFDE v Minister for Immigration & Anor [2007] HCA 35, mere negligence does not necessarily amount to such fraud; Minister for Immigration & Anor v SZLIX [2008] FCAFC 17 per Tamberlin, Finn and Dowsett JJ where at [33] their Honours said:
“The simple fact of a failure to inform or ban negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.”
In this particular case I have no real evidence about what transpired between the applicant and the migration agent. In the Court’s experience in dealing with these matters since 2001, the story told by Ms Jin is not uncommon and it is very possible that what she says occurred did occur, but that would place the matter squarely within the realm of negligence and would not justify the Court either referring the matter back to the Tribunal for jurisdictional error or, in this case, extending the time when the delay was so considerable.
The Court has read the Tribunal’s decision based, as it is, upon what the Court believes to be a correct understanding of the law. It is of the opinion that there is no real prospect of success in the substantive application and, for those reasons, the application for extension of time is dismissed. I order the applicant to pay the first respondent’s costs assessed in the sum of $2,000.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 27 November 2013
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