Lee v Minister for Immigration

[2013] FCCA 2364

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEE & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2364

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – application did not raise an arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 476.

Migration Regulations 1994 (Cth), Sch 2.
Federal Circuit Court Rules 2001 (Cth), r.44.12.

First Applicant: SOOJIN LEE

Second Applicant: SOON SUK HONG

Third Applicant: YOUNG PYO HONG

Fourth Applicant: JUEUN HONG

Fifth Applicant: SEONGEUN HONG

Sixth Applicant: SEONGPYO HONG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1509 of 2013

Judgment of: Judge Nicholls

Hearing date: 8 October 2013

Date of Last Submission: 8 October 2013

Delivered at: Sydney

Delivered on: 8 October 2013

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Mr M Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Border Protection”.

2. The application made on 3 July 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The first and second applicants pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1509 of 2013

SOOJIN LEE

First Applicant

SOON SUK HONG

Second Applicant

YOUNG PYO HONG

Third Applicant

JUEUN HONG

Fourth Applicant

SEONGEUN HONG

Fifth Applicant

SEONGPYO HONG

Sixth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 July 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 25 June 2013 which affirmed the decision of the first respondent’s delegate to refuse student visas to the applicants.

Background

1. I have before me today, a bundle of relevant documents filed by the Minister, (the “Court Book” – “CB”).  Included in this bundle of documents, it is a copy of the Tribunal’s decision record.

2. The principal applicant for the visa was Ms Soojin Lee (“the first named applicant”). Her husband and four children applied for visas as members of her family unit (“the applicants”). All are nationals of South Korea. The application was made on 3 August 2012 (CB 1 to CB 20). It was refused by the Minister’s delegate on 14 September 2012.

3. The applicants applied to the Tribunal for review of the delegate’s decision on 20 September 2012 (CB 29 to CB 49). The first named applicant and her witness appeared before the Tribunal on 21 June 2013, and gave evidence.

4. The Tribunal identified the relevant issue in the review at [17] (CB 71):

   “The issue in the present case is whether the first named applicant (the applicant) satisfies cl.572.211. That criterion requires that if the visa application is made in Australia, the applicant holds a specified substantive visa at that time, or alternatively, if not such a visa holder:

   ·   the last substantive visa was of a specified type: cl.572.211(3)(b); and

   ·   the visa application was made within 28 days after the day when that last substantive visa ceased to be in effect; or if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation – the later of day when that last substantive visa ceased to be in effect and the day when the applicant is taken to have been notified of the Tribunal’s decision: cl.572.211(3)(c); and

   ·   the applicant satisfies Schedule 3 criterion 3005: cl.572.211(3)(d).”

5. The Tribunal’s reason for its decision is set out at [18] (CB 71):

   “In this case, the visa application was made in Australia, and the evidence before the Tribunal from the Department’s records and the applicant’s evidence at hearing is that the applicant did not hold a substantive visa of a type specified in the criteria. Having withdrawn their religious worker visa applications, the applicants were in the situation of not holding a substantive visa at the time the current application was lodged. Because the applicant did not hold a substantive visa, the applicant must meet the requirements of subclause (3) set out above.”

6. The Tribunal then found at [19] (CB 71) that:

   “The last substantive visa held by the applicant was an Electronic Travel Authority (Class UD) visa (subclass 976) which does not meet the requirements of cl.572.211(3)(b). On that basis, the Tribunal finds that the applicant does not satisfy cl.572.211(3), and therefore does not meet the requirements of cl.572.211 of Schedule 2 to the Regulations.”

   As a consequence, her family members could not, therefore, satisfy the relevant criterion for the visa applicable to them.

Application Before the Court

1. The application before the Court contains three grounds:

   “1. At the time we applied for the Student visa, the staff at the immigration desk in Lee st, Sydney did not inform us that this visa could be refused.

   2. We have four children who are attending school. They have settled in very well and have made many friends at school. We have made many good relationships within the school with teachers and other parents.

   3. Our wish is to stay lawful so that our children can continue their studies. This is the best path we have decided so that we do not have to leave Australia to change our visa condition.”

Before the Court

1. The first named applicant appeared, in person, at the first Court date in this matter on 24 July 2013. On that occasion she was assisted by an interpreter in the Korean language. She was appointed as the litigation guardian for her four children. She confirmed that she also sought to represent her husband in these proceedings.

2. At that time, I sought to explain to the first named applicant that the Court could not make a decision as to whether she and her family should be granted visas. The sole question for the Court was whether in making its decision the Tribunal fell into legal error.

3. Given that the grounds of the application did not appear to assert any such error I urged the first named applicant to seek legal advice. I gave her some time to do this and set the matter down for a show cause hearing today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

4. When the matter was called today the first named applicant appeared in person. She was again assisted by an interpreter in the Korean language. Mr M Alderton appeared for the Minister.

5. The issue before the Court today is whether the application before the Court raises an arguable case for the relief sought.

6. I note that nothing further has been filed by the applicant in these proceedings. The principal applicant stated that she had consulted a lawyer and volunteered to the Court that the lawyer had told her that there was nothing wrong with the Tribunal’s decision.  The sole complaint pressed by the first named applicant before the Court was a complaint about the purported advice which she said she was given by staff at the Minister’s Department. This appears to be the subject of ground one of the application.

7. This matter was raised before the Tribunal ([22] at CB 72):

   “The Tribunal can accept the applicant’s claim that she and her husband have tried to follow all advice they have been given and have endeavoured to abide by visa conditions at all times. The Tribunal accepts and has sympathy for the fact that the applicant is actively studying and that her four children are well settled in school here. The applicant claims that she was given wrong advice by the Department that she and her husband would be able to make successful student visa application onshore after withdrawing their religious worker visa applications. However, even if they were wrongly advised, the Tribunal has no discretion in the matter to consider circumstances that may have caused them to make an application which had no prospects of success. The Tribunal has no alternative but to affirm the decisions under review.”

8. As the Minister’s representative submitted today, there is no legal error in what the Tribunal has stated at [22] (at CB 72). First, I note that the very matter of the first named applicant’s complaint was raised and considered by the Tribunal.  Second, as the Minister submits, there is no evidence before the Court as to what the first named applicant and her husband may have been told by officials of the Minister’s department. The first named applicant has had the benefit of legal advice and was given the opportunity by the Court to provide such relevant evidence.  Third, as the Minister submits, there is no obligation on the Minister’s department to give any such advice. Fourth, even if some “incorrect” advice had been given to the applicants then, I agree with the Minister, that would not affect the validity of the Tribunal’s decision.

9. Further, I agree with the Minister as to the operation of the principle of estoppel in this regard. That is, that the task that the Act sets for the Tribunal, on receipt of the application for review, was whether the Tribunal could reach the requisite level of satisfaction that the applicant met the necessary criteria for the grant of the visas. There is nothing before the Court to show that the Tribunal failed in any obligation required by the Act. No arguable case is raised in these circumstances.

10. Grounds two and three of the application assert the reasons that the first named applicant and her family want to remain in Australia. No assertion of legal error with reference to the Tribunal’s decision is made. Nor can I otherwise see any legal error, in the Tribunal’s decision. The Tribunal correctly identified the relevant law, and the criteria that the first named applicant, and her family, were required to meet, such that the visa must be granted to them. The Tribunal’s findings of fact were all reasonably open to it on the material that was before it. There was nothing to show the Tribunal misunderstood or misapplied the relevant law. The Tribunal’s application of the law to the facts as found was orthodox.

11. Importantly, in light of the first named applicant’s complaint about purported advice from the Minister’s department and their reason for wanting to stay in Australia, the Tribunal’s finding that it had no discretion in this matter does not reveal legal error. Clearly, the Tribunal had some sympathy for the applicants, but correctly found that it had no discretion to take into account “exceptional circumstances”. The first named applicant was required, amongst other things, to meet the criterion set out at cl.572.211(3) of Schedule 2 of the Migration Regulations 1994 (Cth). She did not. Importantly, the application before the Court makes no challenge to this.

12. Given the lack of evidence about what the first named applicant claims she was told by officers of the Minister’s department, some care must be taken with what follows. It may be that if the applicants sought to press this complaint by writing to the Minister personally and seeking his intervention pursuant to s.351 of the Act, that those in the Minister’s department responsible for such matters may be able to investigate to see if any such misleading advice was indeed given to the applicants as is now asserted.

13. However, this is not a task in which it is proper for the Court to intrude. For the Court, the question is whether there is any arguable case raised by the application before the Court to support the request for the relief that the applicants seek. As no arguable case for the relief sought is raised by the application, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make that order.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014