Liew & Anor v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 156

[2016] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S80 of 2016

B e t w e e n -

MEI AI LIEW

First Applicant

CHING TUNG SOPHIA CHONG

Second Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Decision

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 JULY 2016, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR:   The applicants move on a summons filed on 4 May 2016. They seek reinstatement of their application for special leave to appeal, which was deemed abandoned by operation of r 41.10.4.1 of the High Court Rules 2004 (Cth). The decision of the Federal Court of Australia from which they seek to appeal was given on 2 March 2016. The application for special leave to appeal was filed on 23 March 2016. The application was deemed to be abandoned by the end of 20 April 2016, and a notice to that effect was issued by a Deputy Registrar of this Court on 28 April 2016.

The second respondent, the Administrative Appeals Tribunal, has filed a submitting appearance. The first respondent, the Minister, does not contend that he will suffer prejudice by reinstatement of the application. He also does not dispute the explanation of the first applicant, Ms Liew, for not complying with the High Court Rules, such non-compliance having led to the abandonment of the application for special leave. Instead, the Minister opposes the application for reinstatement on the basis that the application for special leave is without merit, rendering any reinstatement futile. For the reasons which follow, I accept the Minister’s argument.

The applicants applied for Student (Temporary) Class TU visas on 6 July 2011. Ms Liew was the primary applicant; her daughter, who is the second applicant, applied as a member of Ms Liew’s family unit. On 28 September 2011, a delegate of the Minister refused to grant that visa because Ms Liew had not complied substantially with the conditions of her last substantive visa. At the time of the delegate’s decision, that was a requirement to be satisfied at the time of decision under cl 572.235 of Sch 2 to the Migration Regulations 1994 (Cth).

The last substantive visa held by Ms Liew before her application of 6 July 2011 was a student visa granted on 15 February 2010, and which expired on 17 July 2011.  That previous visa was subject to condition 8202, which relevantly provides that the visa holder must be “enrolled in a registered course.”

The applicants sought review of the delegate’s decision in the Migration Review Tribunal (“the Tribunal”, now the Administrative Appeals Tribunal).  The Tribunal affirmed the delegate’s decision.  By consent, the Federal Circuit Court then quashed the Tribunal’s decision and remitted the matter back to the Tribunal.    

On 20 March 2014, a second Tribunal again affirmed the delegate’s decision.

That Tribunal was satisfied that Ms Liew had breached condition 8202 of her previous visa.  It found that Ms Liew’s enrolment in a registered course was cancelled on 17 July 2010.  She re‑enrolled in that course on 24 January 2011, but that enrolment was cancelled for non‑commencement of studies on 19 February 2011.  On 25 July 2011, she enrolled in another course. 

The Tribunal accepted that the birth of Ms Liew’s child in February 2011 affected her ability to attend classes. However, it considered that circumstance did not prevent Ms Liew from being enrolled in a registered course. Thus, the Tribunal drew a distinction between enrolment in a registered course and class attendance. The Tribunal went on to find that the nature of Ms Liew’s breach of condition 8202 was significant. She therefore had not complied substantially with a condition of her previous visa, such that the requirement in cl 572.235 (which had not changed since the time of the delegate’s decision) was not satisfied.

The applicants sought review of the second Tribunal decision in the Federal Circuit Court.  They complained that the Tribunal failed to consider documents corroborative of Ms Liew’s evidence, given orally to the second Tribunal, that she stopped attending classes due to the effects of her pregnancy.  Those documents consisted of two emails that Ms Liew sent to the Department in early September 2011.  The first email stated that for around the last year of the period of her previous visa, she was “heavily pregnant and later busy looking after [her] newborn daughter”. The second email stated that she could not study for those reasons, and because she was not in good health after her daughter was born.  The Tribunal did not make any specific reference to those documents.

Judge Nicholls in the Federal Circuit Court considered that the emails were not cogent or corroborative evidence of the central issue on which the Tribunal’s decision turned.  His Honour observed that the central issue was Ms Liew’s ability to be enrolled in a registered course, not her ability to attend classes.  Accordingly, his Honour found that the Tribunal did not fail to have regard to evidence it should have considered. The application was dismissed. 

On appeal to the Federal Court, the applicants argued that Judge Nicholls erred by failing to uphold the ground of review relied on in the Federal Circuit Court.  Rangiah J found that the Tribunal was correct to distinguish between Ms Liew’s explanation for why she was unable to attend classes, and why she was not enrolled in a registered course.  Rangiah J accepted that it could be assumed the Tribunal did not take into account the emails, and that the emails may have been relevant to the credibility of Ms Liew’s evidence as to why she could not attend classes.  However, his Honour observed that the adverse findings the Tribunal had made on Ms Liew’s credit did not ultimately affect its decision.  This was because the emails did not deal with why Ms Liew was not enrolled in a registered course; accordingly, they could not have affected the Tribunal’s consideration of whether she had complied substantially with the condition of her previous visa that she be enrolled in a registered course.  Rangiah J concluded that Judge Nicholls was correct to find the Tribunal had not fallen into jurisdictional error.

The application for special leave argues that the Federal Court erred in failing to properly assess the applicants’ claims. Two bases are asserted for that error.

The first basis complains that Rangiah J failed to address Ms Liew’s claims on the basis that “they might possibly be true” and that his Honour adopted a “false assumption” as to the effect of Ms Liew’s pregnancy on her ability to attend classes.  It is not clearly articulated how that complaint could establish jurisdictional error on the part of Rangiah J as claimed; the complaint seems to seek merits review of the Tribunal’s decision.  In any case, the complaint does not fall within the ground of appeal before the Federal Circuit Court, which was the sole ground that came to be considered by the Federal Court. 

The second basis for the asserted error by the Federal Court involves a challenge to the distinction, drawn at relevant stages below, between enrolment in a registered course and class attendance.  The applicants argue that the cancellation of Ms Liew’s enrolment was the consequence of her non-attendance.  Therefore, they argue, the evidence of Ms Liew’s emails of early September 2011 was “directed” to her ability to be enrolled in a registered course. 

I cannot accept that to be so.  It did not necessarily follow that the consequence of Ms Liew’s failure to attend class would be the cancellation of her enrolment in a registered course.  The Tribunal was alive to the possibility that Ms Liew could seek a deferment of her enrolment on account of her pregnancy.  The Tribunal recorded that Ms Liew did not seek a deferment, going on to find that the reason proffered by Ms Liew for that failure did not indicate that she was unable to be enrolled.  Undoubtedly, the Federal Court did not err when it concluded that the Tribunal was correct to distinguish between Ms Liew’s explanation for why she was unable to attend class and why she was not enrolled in a registered course.  As a consequence, the Federal Court’s conclusion that the Federal Circuit Court rightly found that the Tribunal did not commit jurisdictional error is also undoubtedly correct.

The applicants have not demonstrated that the decision of the Federal Court is attended with sufficient doubt to warrant the grant of special leave.  Nor have the applicants raised any question of public importance warranting such a grant.  Given that the grounds for special leave are without merit, the application for reinstatement would be futile.  I am not persuaded that I should exercise my discretion to reinstate the application for special leave to appeal.  I dismiss the applicants’ summons with costs.

The orders I will make are therefore as follows:

1.        The summons be dismissed.

2.        The applicants pay the first respondent’s costs.

I publish my reasons and I direct that those reasons be incorporated into the transcript.  The Court will now adjourn.

AT 10.01 AM THE MATTER WAS CONCLUDED