Lai v Minister for Immigration

[2019] FCCA 2619

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2619

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – grounds seek impermissible merits review – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 362B, 379A, 379C, 476

Migration Regulations 1994 (Cth), reg.4.21, Sch.2, cl.572.223

Cases cited:

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1

Bala v Minister for Immigration and Border Protection [2019] FCA 600

Applicant: CHOOI HENG LAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1345 of 2017

Judgment of: Judge Nicholls

Hearing date: 9 September 2019

Date of Last Submission: 9 September 2019

Delivered at: Sydney

Delivered on: 18 September 2019

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

Legal Representative for the Respondents: Mr J. Tsaoasidis

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 3 May 2017 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1345 of 2017

CHOOI HENG LAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 3 May 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 April 2017 which affirmed the decision of the Minister’s delegate not to grant the applicant a student visa (“the visa”).

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book”) – “CB” – “RE1”).

Background

1. The applicant is a citizen of Malaysia (CB 1). The applicant arrived in Australia on 14 October 2012 (CB 37.4) on a tourist visa and was subsequently granted a student visa, which expired on 2 September 2015 (at CB 46.4). He applied for a further student visa, a Vocational Education and Training Sector (Subclass 572) visa, on 23 August 2015 (at CB 46.5, see also [2] at CB 91).

2. At the relevant time cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) applied to this application. The clause was in the following terms:

   (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;

   …

1. The delegate wrote to the applicant by letter dated 27 August 2015.  The letter was addressed to the residential address provided by the applicant in his application (CB 23 – CB 25 and CB 2).

2. The letter specifically asked the applicant to provide further information in relation to the “Genuine temporary entrant criterion” within 28 days from when he was taken to have received the letter.  (CB 26 – CB 31).

3. No response was received from the applicant. By letter dated 19 November 2015, the delegate gave the applicant a further 7 days to respond to the request for this information (CB 32 – CB 39) again the applicant made no response.

4. The delegate refused the visa on 16 February 2016 (CB 41 – CB 51). Upon considering the applicant’s immigration history, the delegate found that the applicant did not intend to remain in Australia “temporarily” (CB 50.1), and therefore did not meet the criteria in cl.572.223 of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 46).

The Tribunal

1. On 2 March 2016 the applicant applied for review of the delegate’s decision to the Tribunal (CB 52 – CB 53). The Tribunal wrote to the applicant on 3 March 2016, by correspondence sent to the email address included in the application for review (CB 53.6), acknowledging that the application had been received, and invited the applicant to provide evidence and/or submissions in support of his application (CB 65 – CB 67).

2. On 25 January 2017 a letter was emailed to the applicant at the email address included in the applicant’s application for review, inviting the applicant to attend a hearing before the Tribunal (CB 68 – CB 71).

3. In the letter of invitation to hearing, the Tribunal specifically requested the following (at CB 70.2 – CB 70.6):

   “Additionally, please provide this information so that a decision can be made as quickly as possible:

1.   A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

2.   Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

3.   Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

4.   An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

We will assess whether you intend genuinely to stay in Australia temporarily.

Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.

Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.”

1. The evidence before the Court reveals that the applicant did not respond to the Tribunal’s request, and made no other contact with the Tribunal.

2. The Tribunal’s relevant records (in evidence before the Court) reveal that the applicant did not attend at the hearing on the day and time that had been notified to him (CB 84 – CB 85). Although the hearing was scheduled to commence at 1:30pm (CB 69), the Tribunal waited until 2:40pm (CB 84 – CB 85).

3. In these circumstances the Tribunal decided to proceed to make a decision on the review without taking further action to enable the applicant to appear before it.

4. The Minister’s written submissions contain a fair summary (other than in one particular – see further below at [16]) of the Tribunal’s decision (at [11] – [15]):

   “11     In reaching its decision the AAT noted the following:

11.1The applicant did not provide any information in response to the delegate's request for information nor did he provide requested information to the AAT. The AAT therefore had before it the same information as was considered by the delegate (at [11]).

11.2 The applicant did not respond to either of the emails sent by the delegate, which sought information that addressed the genuine temporary entrant criterion (including matter set out in Ministerial Direction No. 53 ), namely the applicant's intended career path in Malaysia, his ties to Malaysia, bank statements and employment history (at [13]-[14]).

11.3 The lack of information contained in the application and the applicant’s failure to provide details as requested left the AAT with no information upon which it could make positive findings in relation to the applicant (at [15]).

12 Based on the lack of information before the AAT and the applicant's failure to respond to the delegate's request for information relating to the genuine temporary entrant criterion, the AAT found that that the applicant was not a genuine temporary entrant and had sought the visa to enter Australia for reasons other than those related to study (at [16]).

13 Having considered the applicant's circumstances, immigration history and other matters it considered relevant, the AAT was not satisfied that the applicant genuinely intended to stay in Australia temporarily and accordingly found that the applicant did not satisfy cl. 572.223(1)(a) (at [17]).

14 As the applicant did not satisfy cl. 572.223, the AAT found that the applicant did not satisfy any of the other student visa subclasses given that the same genuine temporary entrant requirements applied (at [18]). Further, the AAT found that there was no evidence before it that the applicant satisfied the requirements of subclass 580 (at [19]).

15The AAT affirmed the delegate's decision not to grant the applicant a Student visa (at [19]).”

[Error in the Original.]

1. At [5] of its decision record (CB 91) the Tribunal, in contradiction to what was otherwise stated in the Tribunal’s records, stated that the applicant did appear at the hearing on “11/04/17”.

2. Given what is set out elsewhere in the Tribunal’s decision record, for example, the “paucity of information” to which the Tribunal refers ([16] at CB 93), and the Tribunal’s hearing records, the Tribunal’s statement at [5] of its decision record (CB 91) is plainly an error.  However in the circumstances it is not an error that is material to the exercise of its jurisdiction.

The Application before the Court

1. The grounds of the application to the Court are in the following terms:

   “1. I was not giving a fair consideration about the student application.

   2. I was stud[y]ing English for long time and I tried very hard.

   3. I don’t know why I was not considered genuine temporary entrant criterion. I tried very hard and should be given a opportunity.”

[Errors in the Original.]

1. The applicant appeared in person before the Court.  He was assisted by an interpreter in the Mandarin language. Despite the opportunity provided by orders made by a Registrar of the Court on 1 June 2017, the applicant has not filed any amended application, nor further evidence by way of affidavit, nor any written submissions.

2. Before the Court the applicant submitted that he had nothing to say. The Court directed the applicant’s attention to the grounds of the application. The applicant explained that these were drafted by an agent who was now in China. The applicant was unable to assist in explaining his grounds.

3. The applicant referred to “documents” that he said he had been trying to obtain from the agent. He subsequently explained these contained information about his “school”.

4. It was not clear, nor did the applicant seek to otherwise explain, how these documents were relevant to the application before the Court. The applicant has had since 1 June 2017 (the date of the relevant orders by the Registrar) to obtain these documents and file them by way of affidavit. In any event, the applicant made no request for further time, or seek an adjournment of the hearing for this, or any other purpose.

Consideration

1. Ground 1 asserts that the applicant was not given a “fair consideration” of his student claims.

2. No explanation of this has been proffered by the applicant. In the absence of any particularity whatsoever what remains is that, at best, this is an assertion that the applicant had genuinely intended a temporary stay in Australia when he applied for the visa. There is no legal error in the Tribunal’s finding to the contrary. The Tribunal’s conclusion in this regard, and the findings which informed it, were all reasonably open on what was before the Tribunal.

3. As such, this complaint rises no higher than a request for impermissible merits review.  Ground 1, as it apparently stands, is not made out.

4. In his submissions, the Minister suggests that ground 1 may be an attempt to allege a denial of procedural fairness. If so, then, on the evidence, such an assertion cannot be sustained.

5. The applicant was invited by letter, dated 25 January 2017, to a hearing pursuant to s.360 of the Act (CB 69 – CB 71). The letter complied with all of the relevant statutory and regulatory requirements.

6. The invitation advised the applicant of the time, date, and place of the hearing (s.360A(1) of the Act). It was sent by one of the methods set out in s.379A of the Act, as is required by s.360A(2) of the Act. The invitation was sent electronically by email pursuant to s.379A(5) of the Act, to the email address provided by the applicant.

7. The hearing invitation complied with the requirement for a prescribed notice (s.360A(4) of the Act and reg.4.21 of the Regulations). The applicant is taken to have received the letter at the end of 25 January 2017 (s.379C(5) of the Act).

8. The hearing invitation set out the effect of s.362B of the Act (s.360A(5) of the Act).

9. As set out above, there is no dispute now that the applicant did not appear at the hearing. In the circumstances, the Tribunal had the power to proceed to a decision without taking further action (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 163 ALD 1). There is nothing in the circumstances presented to indicate that the Tribunal acted unreasonably in proceeding in this fashion.

10. Grounds 2 and 3 variously assert that the applicant was studying English, he tried hard, and did not know why he was not considered to be a genuine temporary entrant.

11. As the Minister submits, the grounds, at best, seek impermissible merits review and do not indicate, let alone reveal, jurisdictional error.

12. The applicant’s complaint that he did not know why he was not considered to be a genuine temporary entrant ignores the Tribunal’s reasoning (and for that matter, the delegate’s similar reasoning) that, as it had noted with the applicant in writing, the applicant’s failure to respond to the delegate, and the paucity of information provided, meant he was unable, or did not show, that he intended a temporary stay as he had been requested to demonstrate.

13. In short, the Tribunal could not reach the requisite level of satisfaction in relation to cl.572.223(1)(a) of Schedule 2 to the Regulations because the applicant, despite ample opportunity to do so, had not provided sufficient material such that the requisite level of satisfaction could be reached.

14. The Minister submits, for the sake of completeness, that although the Tribunal did not expressly refer to specific factors in Ministerial Direction No. 53 (“MD No. 53”), it should not be readily inferred that they were not considered.

15. In circumstances where the Tribunal made specific reference to MD No. 53 and the relevant factors, and indeed put the applicant on specific notice of this in its letter of invitation to hearing, this allows the finding that the Tribunal plainly knew of the relevance of the Ministerial Direction, but that the factors were not sufficiently germane to warrant express mention (Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [17]). This is particularly so where the applicant made no response whatsoever to the Tribunal’s invitation for him to provide information in relation to these matters.

Conclusion

1. In all, the grounds of the application are not made out. It is appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  18 September 2019