Li v Minister for Immigration

[2014] FCCA 1450

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1450

Catchwords:
MIGRATION – Review by Migration Review Tribunal of decision refusing applicant a Student (Temporary) (Class TU) visa – no appearance by or on behalf of the applicant – proceed with hearing pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) ‑ application for student visa lodged more than 28 days after the date on which applicant held last substantive visa – no jurisdictional error – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 13.03C(1)(e)

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant: HEYAN LI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3016 of 2013

Judgment of: Judge Manousaridis

Hearing date: 1 July 2014

Delivered at: Sydney

Delivered on: 1 July 2014

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents: Ms E. Warner Knight
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the amount of $5,000. 

3. The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3016 of 2013

HEYAN LI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. There was set down for hearing before me today an application for judicial review of a decision of the second respondent (Tribunal), affirming the decision of a delegate of the first respondent (Minister), not to grant the applicant a Student (Temporary) Class TU visa (student visa).  I had the matter called today but there was no appearance by the applicant. 

2. Before the matter was called, my associate telephoned the mobile telephone number the applicant had recorded as being her mobile telephone number on the application.  On the first occasion, there was no answer.  On the second occasion, the telephone was answered.  My associate asked whether she was speaking to Heyan, Li and there was no response.  A further two attempts were made, this time by my associate dialling the mobile number and handing the telephone to the interpreter who is here today, but on both occasions, the phone was not answered.

3. I have also been given and received into evidence a copy of a letter dated 19 June 2014 from the solicitor for the Minister to the applicant, in which the following was stated: 

   “We refer to the above matter and enclose by way of service a sealed copy of the first respondent’s submissions.  We remind you that your hearing is listed at 10.15 am on 1 July 2014 at the Federal Circuit Court, John Maddison Tower, 88 Goulburn Street, Sydney.  Please note, should you fail to appear on the above date, orders may be sought that your application be dismissed with costs, without further notice.” 

4. I am satisfied that the applicant had notice of the hearing today and that reasonable attempts have been made to contact her and inform her that the hearing was on before me today. The Minister in those circumstances has applied for an order pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed. I prefer not to deal with the matter on that basis. What I propose to do is to deal with the matter pursuant to Rule 13.03C(1)(e), which empowers the Court to proceed with the hearing generally or in relation to any claim for relief in the proceeding. In the remainder of these reasons, I will, therefore, deal with the application. First, I will refer to the background out of which the application arises.

5. As I say, the application before me is one for judicial review of a decision of the Tribunal, affirming the decision of a delegate of the Minister not to grant the applicant a student visa.  One criterion the applicant was required to satisfy in order to be granted the student visa was that she applied for the student visa within 28 days of the last substantive visa.

6. The applicant did hold a substantive visa and this ceased to have effect on 30 August 2012.  The applicant did not, however, apply for the student visa within 28 days.  She applied for the student visa on 22 July 2013.  The applicant gave evidence before the Tribunal, as recorded in the Tribunal’s decision. The applicant claimed that she lodged her application for the student visa late “because her agent did not keep her informed” and that she “applied to do an – a MBA, that she received misleading information from the school and from her migration agent.”

7. The Tribunal decided it had no discretion to accept an application for a student visa that was lodged more than 28 days after the date on which an applicant’s last substantive visa ceased to have effect.  The Tribunal therefore affirmed the delegate’s decision not to grant the student visa.  In her application for judicial review, the applicant, who is not legally represented, raises a number of grounds of review.  The first is as follows:

   “I disagree with Immigration and MRT’s decision.  They do 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 not to extend my visa when it was expired and I tried my best to seek help.” 

8. There is nothing in the Tribunal’s reasons that indicates that the Tribunal did not consider the applicant to be a genuine student.  Nor can it be said that the Tribunal did not consider the applicant’s claim that she had compelling reasons to explain why she did not apply within the required time.

9. The Tribunal noted that the applicant had given evidence that she was not currently studying but that she had wanted to study and, as I noted above, the Tribunal referred to the applicant’s evidence about why she did not apply for the student visa within the required time.  The reasons why the Tribunal decided that the applicant was not entitled to a student visa was that the applicant did not lodge her application within 28 days of the day her previous substantive visa ceased and the Tribunal was of the view that it had no discretion to extend the time by which that application could be made.  Accordingly, the first ground fails. 

10. The second ground is as follows: 

    “DIBP and MRT did not give a good consideration as I was totally mislead [sic] for delaying my visa extension application….I did not extend my student visa due to a situation beyond my control.  I always obey my visa condition and never breached it.  I am a victim by the misleading information.” 

11. This ground, as recognised in the Minister’s submissions, calls for consideration of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.

12. In that case, the High Court held that the conduct of the appellant’s agent constituted fraud and this had the “immediate consequence of stultifying the operation of the legislative scheme provided for by Part 7 of the Migration Act 1958 “to afford natural justice to the appellants”.[1]  The Court emphasised that the “appeal turned upon the particular importance of the provisions of Division 4 of Part 7 of the Act for the conduct by the Tribunal of review and the place therein of … sections 425 and 426A”.[2] 

    [1] (2007) 232 CLR 189, at [49]

    [2] (2007) 232 CLR 189, at [53]

13. The Court also drew a distinction between fraud and negligence.  In that regard, the Court said:

    “In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected to the detriment of that person by bad or negligent advice or some other mishap, should not be heard to complain that the detriment vitiates a decision made.  The outcome in the present appeal stands apart from and above such considerations.”

14. In my opinion, neither the decision nor reasoning in SZFDE applies to the case before me.  First, the applicant’s allegation against her migration agent is that she received misleading information.  By itself, that falls short of any allegation of fraud.  Secondly, and perhaps more fundamentally, even if there was evidence of fraud, that circumstance cannot enlarge the requirement fixed by a regulation that an application for a student visa be filed within 28 days of the date on which the last substantive visa ceased to have effect. In the words of the Tribunal, it had no discretion to accept an application for a student visa made more than 28 days after the date the last substantive visa ceased.  Accordingly, ground 2 also fails.

15. The third ground is that it was not fair that the applicant was refused a visa.  As the Minister submits, this ground is not particularised.  It appears to be an expression of the applicant’s opinion of the merits of the Tribunal’s decision.  That does not constitute jurisdictional error.  If the ground is intended to be one in which it is claimed the Tribunal failed to accord procedural fairness, there is no basis on the material for the making of any such submission.  Ground 3, therefore, also fails.

16. The end result of my reasoning is that none of the grounds specified in the application for review has been made out and the application should be dismissed. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  10 July 2014