Lei v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 279
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lei v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 279
File number(s): SYG 331 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 28 February 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether applicant satisfied public interest criterion 4020 – Tribunal not satisfied that compassionate or compelling circumstances justify grant of visa – no jurisdictional error established – application dismissed.
PRACTICE AND PROCEDURE – Adjournment application – adjournment refused.
Legislation: Migration Regulations 1994 (Cth) Sch 2 cl 500.217(1), Sch 4 cl 4020 Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 13 February 2025 Place: Parramatta Applicant: Self-represented by telephone Solicitor for the Respondents: Ms A. Wilford of Sparke Helmore ORDERS
SYG 331 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UN HA LEI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 4 March 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 February 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) subclass 500 visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Schedule 4 to the Migration Regulations 1994 (Cth) (Regulations) contains public interest criteria. Many visa subclasses include as a criterion to be satisfied at the time of decision one or more of the public interest criteria in Schedule 4.
Clause 4020 of Schedule 4, commonly referred to as “PIC 4020”, states in part:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
The criteria for the grant of a subclass 500 student visa are contained in Schedule 2 to the Regulations. Clause 500.217(1) states as a time of decision criterion:
The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
FACTUAL BACKGROUND
The applicant, a citizen of Hong Kong, arrived in Australia on 7 September 2015 as the holder of a student visa.
In October 2016, the applicant applied for a Child (Residence) visa.
On 1 August 2017, a delegate of the first respondent made a decision refusing to grant the applicant the Child (Residence) visa on the basis that she provided bogus documentation and false and misleading information in relation to her education. This decision was upheld by the Tribunal in April 2018.
In the meantime, on 29 March 2018, the applicant applied for a further student visa.
On 7 June 2018, the Department of Home Affairs sent the applicant a letter inviting the applicant to comment on potentially adverse information arising from:
(a)the decision refusing to grant the applicant a Child (Residence) visa on the basis that she had provided bogus documentation and false and misleading information in relation to her education; and
(b)the operation of cl 4020 of Schedule 4.
The effect of cl 4020 of Schedule 4, cl 500.217(1) of Schedule 2 and s 65 of the Act was that, unless the applicant could persuade a decision-maker that:
(a)cl 4020(2) did not apply; or
(b)if clause 4020(2) applied, pursuant to cl 4020(4), the decision-maker should waive the requirements of cl 4020(2),
the applicant could not satisfy cl 500.217(1) and so a decision-maker must refuse to grant the applicant a subclass 500 visa.
The applicant did not respond to the letter dated 7 June 2018.
On 7 December 2018, a delegate of the first respondent refused to grant the applicant the further student visa for which she applied in March 2018 because, in the manner explained in paragraph 11 above, she did not satisfy cl 500.217(1).
On 13 December 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 22 December 2020, the Tribunal invited the applicant to attend a hearing on 3 February 2021.
On 3 February 2021, the applicant appeared before the Tribunal with the assistance of a representative and an interpreter in the Cantonese language.
On 4 February 2021, the applicant provided a further statement to the Tribunal.
On 8 February 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
TRIBUNAL’S DECISION
The Tribunal identified that the issue before it was whether the applicant met PIC 4020 as required by cl 500.217(1).
First, the Tribunal addressed whether the applicant did not meet PIC 4020(2). The Tribunal put to the applicant that she had applied for the student visa on 29 March 2018, a date which was within three years of having been refused her application for the Child (Residence) visa on PIC 4020 grounds. In those circumstances, it appeared she could not satisfy PIC 4020(2) as required by cl 500.217. The Tribunal recorded the applicant’s reply as follows:
The applicant responded that she had applied for the visa after missing an opportunity to appeal the BT-802 Child Residence refusal decision. This was because she relied on an irresponsible agent at the time, who tricked her and did not tell her about the hearing at the Tribunal and the review was dismissed. She had no choice but to seek a student visa; she wanted to finish her studies.
The Tribunal, after considering the evidence before it, including the applicant’s answer in the above paragraph, found that the applicant did not meet PIC 4020(2).
Second, the Tribunal considered whether, pursuant to PIC 4020(4), there were compelling or compassionate circumstances to waive the requirements of PIC 4020(2). The Tribunal initially considered the applicant’s credibility. The Tribunal concluded at [33] that “the applicant contrived to enrol in her current course when she learned the Tribunal had dismissed her review of the child visa decision” and “she did this as someone hoping to extend her stay, rather than as a genuine student”. The Tribunal added that the applicant had not provided evidence that she was misled by her previous agent, and these matters “cause[d] the Tribunal significant concern in relation to the applicant’s credibility about her intentions and truthfulness in that regard”. The Tribunal then considered whether there were “compelling circumstances that affect the interests of Australia” or “compassionate or compelling circumstances that affect the interests of an Australian citizen [or] permanent resident”. The Tribunal summarised the applicant’s various claims in support of there being “compassionate or compelling circumstances”, which claims the Tribunal noted were “moveable” and “varying”. The Tribunal referred to and considered the applicant’s claim that her father, a permanent resident, would be adversely affected by a decision to refuse the visa. In light of the applicant’s immigration history and the inconsistencies in her evidence, the Tribunal was not satisfied that a case for the waiver was made out. Accordingly, the Tribunal concluded that the requirements of PIC 4020(2) should not be waived and affirmed the decision under review.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to 13 February 2025
On 4 March 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision (Application). The Application included three grounds of review as follows (reproduced as written):
1.The tribunal has failed to consider relevant fact and erred in jurisdictional fact.
Particulars:
a. The Tribunal has concluded that “the applicant contrived to enrol in her current course when she learned the Tribunal had dismissed her review of the child visa decision” [para 33], where the applicant enrolled in the course the Diploma of Business she was studying from 2 October 2017.
2.The Tribunal has failed to consider the matter according to law.
Particulars:
a. The Tribunal had failed to consider the compassionate or compelling circumstances that affect the interest of the Australian permanent resident father in its decision under subclause 4020(4)(b).
b. The Tribunal had failed to consider the compassionate or compelling circumstances that affect the interest of the Australian permanent resident brother in its decision under subclause 4020(4)(b).
3.The Tribunal has misconstrued relevant statutes and denied the applicant procedure fairness.
Particulars
a. The Tribunal in the hearing stated that waiver only applicable to compassionate or compelling circumstances affecting Australia or Australian citizen, where sub clause 4020(4)(a) only requires “compelling circumstances” and not “compassionate”.
b. The Tribunal has failed identify that “compassionate or compelling circumstances” affecting Australian permanent resident can also be a waiver to PIC 4020 when asking the question in the hearing, it only noted “Australia, Australian Citizen” and later “New Zealand Citizen”, it failed give the applicant a real chance to explain compassionate or compelling circumstances in relation to her Australian permanent resident father, and especially in relation to the Australian permanent resident brother.
The Application was prepared and filed by a lawyer.
On 8 April 2021, a registrar made procedural orders, including that, upon a hearing date being fixed, the applicant file and serve a written submission 28 days before the hearing.
Following a period of inactivity, on 11 December 2024 the parties were notified that the matter was listed for hearing on 13 February 2025.
On 26 December 2024, the applicant’s solicitor on the record lodged a Notice of Withdrawal as Lawyer.
The Notice of Withdrawal as Lawyer attached a document titled “Notice of Intention to Withdraw as Lawyer” which the applicant’s solicitor certified was served on the applicant at least 7 days before 26 December 2024. The Notice of Intention to Withdraw as Lawyer informed the reader that the proceeding was listed for hearing on 13 February 2025 and included the time of the hearing and address of the Court. The Notice of Intention to Withdraw as Lawyer also included an email address for the applicant (Applicant’s Email Address). At the hearing on 13 February 2025, the applicant confirmed this was her email address.
On 4 February 2025, my associate sent a reminder email to the parties, including to the applicant at the Applicant’s Email Address, which included the date, time and place of the hearing on 13 February 2025. Although my associate initially used an incorrect address for the applicant, the Court’s record indicates an email from my associate to the correct address, being the Applicant’s Email Address, a few minutes later. Ms Wilford also re-forwarded the first email, which was accidentally sent to an incorrect address, to the Applicant’s Email Address and copied in my associate.
The applicant did not file a written submission before the hearing on 13 February 2025. The first respondent filed a written submission on 30 January 2025.
Hearing on 13 February 2025
Introduction
At the time scheduled for the hearing to commence (10:15 am on 13 February 2025), Annabelle Wilford from Sparke Helmore was in the courtroom to appear for the first respondent, but the applicant was not present in the courtroom. My associate phoned the applicant. The applicant answered the phone and explained that her (former) lawyer had told her that the hearing was in 2026, rather than on 13 February 2025.
The hearing then commenced with Ms Wilford in the courtroom appearing for the first respondent, the applicant participating by phone, and a Cantonese interpreter also in the courtroom.
Adjournment application
The applicant asked for an adjournment of the hearing. In relation to this request:
(a)I asked the applicant why she was not present in the courtroom. The applicant stated that her lawyer told her the hearing was “next year” and the applicant understood this to mean that the hearing was in 2026.
(b)The applicant did not dispute that she had received, or may have received, a notice from her former lawyer in the second half of December 2024 stating that the hearing was on 13 February 2025 and an email from the Court stating that the hearing was on 13 February 2025.
(c)I asked the applicant why she wanted an adjournment. The applicant replied that she wanted to prepare some documents for the court. When I asked the applicant to specify the documents she wanted to prepare, she gave a long answer which was difficult to understand. As explained below, the applicant has a grievance concerning the conduct of a migration agent engaged in connection with her application for the Child (Residence) visa referred to in paragraphs 7 and 8 above, the applicant wants to apply for another child visa, and the applicant wants to remain in Australia to assist her father. The long answer appeared to relate to these matters.
(d)The applicant initially wanted to communicate with the Court over the phone in English. As a backup, I checked that the applicant and interpreter could understand each other in Cantonese.
(e)Ms Wilford stated that the first respondent opposed the applicant’s request for an adjournment.
I refused to grant the applicant an adjournment. I consider that the applicant was properly notified of the 13 February 2025 hearing date by a notice from her former lawyer in December 2024 and by two emails on 4 February 2025. I was not persuaded by the applicant’s evidence that her former lawyer told her that the hearing was in 2026. I did not consider the applicant was prejudiced in preparing her case by refusing to grant an adjournment. I also did not consider the applicant was prejudiced in presenting her case by participating in the hearing by telephone. One reason is that the applicant spoke functional English and, where she wanted to use an interpreter, an interpreter was available to her. A second reason is that, in case the applicant considered she was prejudiced in participating in the hearing by telephone, I offered for my associate to email the applicant a Webex link so that the applicant could participate in the hearing by video link. The applicant declined this offer. A third reason is that, although the applicant did not have the Application or the Tribunal’s decision in front of her, she had had over four years to prepare her case and I considered that I could take steps during the hearing to reduce any prejudice to her from not having these documents in front of her. A fourth reason is that, if I adjourned the hearing, this would cause the first respondent to incur additional costs, which is a prejudice to the first respondent.
Applicant’s oral submissions in support of Application
The applicant recalled the decision of the Tribunal dated 8 February 2021 refusing to grant her a student visa. I reminded the applicant that she had applied to the Court for judicial review of the Tribunal’s decision. I explained to the applicant that the Court’s role was limited to considering whether or not there was a jurisdictional error in the Tribunal’s decision and, if the applicant wants to win the Court case, she must persuade the Court there is a jurisdictional error in the decision. I explained to the applicant the main categories of jurisdictional error, such as the making of a finding by the Tribunal which was not supported by any evidence or which was contrary to the evidence before the Tribunal, or the Tribunal ignoring an important item of evidence provided by the applicant to the Tribunal or a submission made by the applicant to the Tribunal, or the procedure of the Tribunal being unfair, or the Tribunal making a finding which was very unreasonable.
I then invited the applicant to make any submission she wanted to make in support of her application to the Court. The applicant stated that she did not believe there was a mistake in the Tribunal’s decision. The applicant then explained:
(a)In connection with her application for a Child (Residence) visa, her father engaged a migration agent for her, the agent provided fake documents to the Department without the knowledge of the applicant, and this caused the three year penalty.
(b)The applicant then appealed to the Tribunal. However, the agent she engaged did not tell her about the hearing date in the Tribunal and so she was not aware of the hearing date.
(c)The applicant reported the conduct of the agent to the Department. The agent’s licence was suspended.
The applicant’s position appeared to be that, to the extent that she had not provided some of this information to the Tribunal at the hearing in February 2021, she wanted the Court to consider these matters in deciding whether the Court could assist her.
CONSIDERATION
Although the applicant’s approach at the hearing on 13 February 2025 appeared to be that there was no error in the Tribunal’s decision, it is appropriate to consider the grounds in the Application which were prepared by the applicant’s former lawyer, and then consider the applicant’s oral submissions.
Ground 1
The Tribunal stated at [33]:
The Tribunal has considered whether the applicant made strategic use of the visa program and if so, the impact on her credibility as a witness. It concludes that the applicant contrived to enrol in her current course when she learned the Tribunal had dismissed her review of the child visa decision. She did this as someone hoping to extend her stay, rather than as a genuine student. The Tribunal notes the applicant has not provided evidence that she was misled by her previous agent. This causes the Tribunal significant concern in relation to the applicant's credibility about her intentions and truthfulness in that regard.
On 2 October 2017, the applicant commenced a Diploma of Business which had a scheduled completion date of 7 September 2018. On 29 March 2018, the applicant lodged the student visa application on the basis of enrolment in a Bachelor of Business with Torrens University. The applicant’s CoE for the course notes an enrolment date of 29 March 2018 and a course commencement date of 17 September 2018. The “current course” referred to by the Tribunal at [33] is the Bachelor of Business in which the applicant enrolled on 29 March 2018. The applicant’s reference in ground 1 to the Diploma of Business which the applicant commenced in October 2017 is not relevant to the Tribunal’s reasoning process at [33].
The applicant enrolled in the Bachelor of Business on 29 March 2018. Where an applicant does not appear at a hearing before the Tribunal, s 362B of the Act provides for a two-stage dismissal process. It appears from the Tribunal’s decision at [25] that the “initial dismissal”, which is the first stage of the dismissal process, occurred before 29 March 2018, although the “confirmation of dismissal” (Tribunal at [25]) which may occur after a “reinstatement period of 14 days” (Tribunal at [28]) did not occur until 12 April 2018 (Tribunal at [13(a)]). In the circumstances, I consider that it was open to the Tribunal to infer at [33] that, by 29 March 2018, the applicant was aware of the “initial dismissal” and “contrived to enrol in” the Bachelor of Business on 29 March 2018.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
It is asserted in particular (a) that “the Tribunal failed to consider the compassionate or compelling circumstances that affect the interest of the Australian permanent resident father”. However, the Tribunal expressly considered this matter at [34]-[37] in deciding whether there were compelling or compassionate circumstances. That the Tribunal was not persuaded by the applicant’s claims does not mean the Tribunal did not consider them. I do not accept that the Tribunal failed to consider the applicant’s claims concerning compassionate or compelling circumstances affecting her father.
It is asserted in particular (b) that “the Tribunal failed to consider the compassionate or compelling circumstances that affect the interest of the Australian permanent resident brother”. However, the applicant did not make any claims about compassionate or compelling circumstances affecting her brother. The Tribunal is not obliged to consider a claim not expressly made unless it clearly arises from the materials before the Tribunal. The applicant did not contend to the Court, or identify materials in support of a contention, that there was a claim which clearly arose from the materials before the Tribunal.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
Particulars (a) and (b) refer to something stated by “the Tribunal in the hearing” and “when asking the question in the hearing”. In the absence of a transcript of hearing, unless the asserted representation by the Tribunal member is recorded in or evident from the Tribunal’s reasons for decision, this contention cannot be established. I am not persuaded that the Tribunal misconstrued PIC 4020 in this manner.
Further, the Tribunal at [20] fairly summarised PIC 4020(4) and at [36]-[38] expressly indicated that it was considering whether “compelling or compassionate circumstances” exist. I am not persuaded that the Tribunal misconstrued PIC 4020(4) or erroneously limited its consideration to “compelling circumstances”.
Particular (b) asserts that the Tribunal “failed to give the applicant a real chance to explain compassionate or compelling circumstances in relation to her … father and … brother”. First, in the absence of a transcript of hearing, there are significant difficulties for the applicant in persuading the Court that the Tribunal member did not invite her to explain compassionate or compelling circumstances relating to her father or brother. Second, the Tribunal, in various parts of its decision, in particular at [34], recorded evidence given by the Tribunal at the hearing concerning whether there were compelling or compassionate circumstances. Third, the applicant’s representative attended the hearing and, as recorded in the Tribunal’s decision at [35], provided a post-hearing which addressed the issue of compelling or compassionate circumstances affecting the applicant’s father. I do not accept that the Tribunal did not give the applicant a real chance to address the issue in PIC 4020(4).
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Applicant’s oral submissions
A summary of the applicant’s oral submissions at the hearing on 13 February 2025 appears in paragraph 36 above. To the extent that the applicant provided the Court with information she had provided to the Tribunal, the fact that the Tribunal was not persuaded by that information does not establish a jurisdictional error in the Tribunal’s decision. To the extent that the applicant provided the Court with information which she did not provide to the Tribunal, there can be no error by the Tribunal in not considering information which was not before it.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Ms Wilford sought costs in the amount of $6,500 which was less than the first respondent’s solicitor/client costs. The applicant did not oppose this amount. This amount appears reasonable. I will make an order in this amount.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 28 February 2025
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