LIANG v Minister for Immigration

[2015] FCCA 189

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIANG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 189

Catchwords:
MIGRATION – Migration Review Tribunal – Student visa class TU subclass 573 – failure to appear at hearing – whether the Tribunal erred in refusing to grant an adjournment. 

Legislation:  
Migration Act 1958

Applicant: SHUAI LIANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 331 of 2014

Judgment of: Judge Street

Hearing date: 29 January 2015

Date of Last Submission: 29 January 2015

Delivered at: Sydney

Delivered on: 29 January 2015

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: N/A

Counsel for the Respondent: Mr Pearce

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application be dismissed. 

2. The applicant pay the First Respondent’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 331 of 2014

SHUAI LIANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this application, the Court has jurisdiction pursuant to s.476 of the Migration Act 1958 and the applicant seeks to challenge a decision of the Tribunal delivered on 23 January 2014 on the following ground:

   I appointed my lawyer (Wang Lawyers Pty Ltd) to apply for an extention of my scheduled hearing on 20 January 2014, my application was submitted along with the evidence of my unfitness (Medical Certificate). However, the Tribunal determined not to grant me a further hearing.

   Pursuant to Section 362B(2) of Migration Act 1958 (Cth), Tribunal should consider my health condition and reschedule further hearing so that I would have a chance to present my argument before the tribunal. [sic]

2. The matter was fixed for hearing before this Court today and the applicant has been called and has not appeared.  Although the Court could, on that basis alone, summarily dismiss the proceedings, I will deal with the matter on a final basis as it was fixed for hearing.

3. In this case the delegate delivered a decision on 24 June 2013 in which there was a careful consideration of the grounds for cancellation of the visa and an assessment of the claims of the applicant and findings adverse to the applicant were made and those findings were clearly open based on the evidence identified by the delegate. The delegate said:

   Having considered the evidence before me, I’m satisfied that the client has breached condition 8202 and I am satisfied that the reasons for cancelling his visa outweigh the reasons for not cancelling his visa. 

4. The delegate considered other identified factors. The delegate concluded:

   After careful consideration of all the information before me, I am satisfied there is a ground for cancelling Shuai LIANG’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa and I am satisfied the reasons for cancelling the visa outweigh the reasons for not cancelling it. 

5. The applicant sought a review but failed to attend the hearing on 20 January 2013.  The Tribunal’s reasons identified the relevant law in relation to procedural matters.  The Tribunal explained that on 20 December 2013 the Tribunal wrote to the applicant, advising that it had considered all the material before it in relation to his application and was unable to make a favourable decision on that information alone.

6. In the letter dated 20 December 2013 the Tribunal invited the review applicant to give oral evidence to present arguments to the hearing on 20 January 2014.  The applicant was advised that if he did not attend the hearing and postponement was not granted, the Tribunal may make a decision on his case without further notice.  No response was received by the applicant and the applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. 

7. The Tribunal made an attempt to contact the applicant by telephone prior to the hearing on 20 January 2014 but was unable to do so.  On the afternoon of 20 January, the applicant’s newly appointed representative, Mr Wang, of Wang Lawyers, forwarded the Tribunal an appointment representative and medical certificate stating the applicant was unable to attend the hearing due to health problems and requested another hearing. 

8. The Tribunal considered the applicant’s request, but for the reasons that follow below, determined not to grant the application for further hearing. 

   8. First, the Tribunal notes that the medical certificate from Dr Guo refers to the applicant being unfit to continue his usual occupation. Nothing in that document indicates that the applicant is unable to continue his is unable, due to any medical condition, to participate in a hearing or give evidence at a hearing. Secondly, the Tribunal is mindful that the applicant resides at Riverwood but has travelled to Campsie to see a doctor and then to the city to instruct a lawyer. The applicant’s movements do not suggest that he was ill to the extent of being unable to participate in a hearing. Thirdly, the Tribunal is also mindful of the fact that the applicant did instruct Mr Wang on the same day. The appointment of representative form was signed by the applicant on 20 January 2014. No explanation has been offered by the applicant as to how he was able to instruct a lawyer but unable at the same time to appear before Tribunal. The Tribunal is not convinced by the presented evidence that the applicant’s claimed illness prevented him from appearing before the Tribunal to give evidence and present arguments.   

   9. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. The Tribunal then proceeded to engage in a careful consideration of its discretion in relation to cancellation of the visa and concluded that it affirmed the decision to cancel the applicant’s Class TU visa. 

10. In my opinion, there is no substance in the alleged ground of jurisdictional error.  It is clear the Tribunal afforded the applicant procedural fairness and the opportunity to appear and adduce evidence and the explanation for the failure to attend was clearly wanting in both merit and substance. On the material before this court, it was open to the Tribunal, in the exercise of its discretion and in the circumstances of the important work that it has to perform, to come to the views it did in relation to the applicant, who failed to appear at the notified hearing, was clearly aware of the hearing date and obviously the review applicant was fit and able to attend upon a lawyer and to obtain a certificate, but deliberately failed to appear before the Tribunal at the fixed hearing time.  It was consistent with the dictates of procedural fairness for the Tribunal to decline the belated adjournment and the finding made that the illness did not prevent his attendance at the hearing was both open and a cogent reason for the adverse exercise of the discretion to refuse an adjournment. In my opinion, there was no jurisdictional error in the approach by the Tribunal to the application for adjournment.  In these circumstances, there is no jurisdictional error as alleged in the application.  The applicant has again failed to appear before this Court on the return date for the hearing of his application and, for the above reasons, the application is dismissed. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 January 2015