LIN v Minister for Immigration

[2014] FCCA 485

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 485

Catchwords:
MIGRATION – Migration Review Tribunal – subclass 573 student visa – applicant provided no evidence of health insurance – whether the Tribunal misled the applicant.

Applicant: LONG LIN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 621 of 2013

Judgment of: Judge Riley

Hearing date: 20 February 2014

Date of Last Submission: 20 February 2014

Delivered at: Melbourne

Delivered on: 20 February 2014

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Advocate for the First Respondent: Christopher McDermott

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration and Border Protection”.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,600.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT MELBOURNE

MLG 621 of 2013

LONG LIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. The applicant is a citizen of the People’s Republic of China. On 15 March 2011, he applied for a subclass 573 student visa. The Minister’s delegate refused the application on 3 August 2011 on the grounds that the applicant did not pass the language test. On 30 August 2011, the applicant applied for review by the Migration Review Tribunal.

2. The Tribunal invited the applicant to attend a hearing by letter dated 7 February 2013. The Tribunal included in its letter a copy of the provisions of subclass 573, and also invited the applicant to provide certain evidence.  Point 3 in the Tribunal’s letter invited the applicant to provide:

   3.Evidence of adequate arrangements for health insurance during the period of your intended stay in Australia having regard to cl.573.225.  The Member considers that adequate arrangements for health insurance should cover the duration of the course or courses in which you have indicated you are enrolled and at least one additional calendar month.

3. That invitation appears to have not been sent to the correct address for the applicant’s agent.  However, it is clear from the court book that the agent received it.  The agent told the Tribunal by facsimile that he would like the hearing rescheduled: CB93.  Indeed, the agent expressly acknowledged receipt of the invitation to attend the hearing on 12 March 2013 at 1 pm. 

4. The Tribunal declined the request to postpone the hearing, but did permit the applicant to be represented by another agent from the same firm.  In any event, the agent responded to the invitation to provide documents by an undated letter which the Tribunal appears to have received on 1 March 2013: CB99.  In that letter, the agent said in relation to health insurance:

   6.The student will also finalise the health cover and provision (sic) evidence of fund (sic) in support of the application once the presiding member gives him some indication to do so.

5. At the hearing on 12 March 2013, the applicant was not represented by an agent.  However, he does appear to have been assisted by an interpreter.  The Tribunal handed down a decision on 10 April 2013 in which the Tribunal affirmed the decision not to grant the applicant a student visa on the grounds that the applicant had not provided evidence of health insurance for the duration of his intended stay. 

6. The applicant was not represented in relation to his application to this court. He did not file written submissions as directed by the registrar. The applicant, however, provided to the court at the commencement of the hearing a written statement. The substantive part of that statement is as follows:

   I would like to rely on the initial application that I have filed with this court on the grounds that the Migration Review Tribunal member denies me of the procedural fairness in that he failed to mention to the applicant to provide adequate health insurance documents.  On the day of the MRT hearing, the tribunal member only asked me to provide financial documents for his consideration of the review application.  He did not mention to me at any stage to provide other information including my health cover.  If the tribunal member had asked for my health cover as well as the financial documents, I would have easily provided that information to the tribunal.

   It is my belief that the tribunal member had abused his power and simply picked up an excuse to refuse my visa application.

7. The grounds set out in the application to this court were threefold.  The first ground is that:

   The tribunal denies the applicant procedural fairness in that the tribunal member at the tribunal hearing:1). failed to mention to the visa applicant to provide adequate health insurance documentation, rather than simply asking the visa applicant to provide financial documentation for his consideration of the review application…

8. The applicant supported his application with an affidavit affirmed on 7 May 2013.  In that affidavit, he said that he was currently organising for a transcript to be made of the Tribunal hearing.  He said:

   … once the transcript is made available, I will be able to show that the tribunal member only request (sic) the visa applicant to provide the financial documents, he did not mention to me any other documents to be provide (sic) to the tribunal for his consideration.

9. Notwithstanding that statement in his affidavit, the applicant has not filed a transcript of the Tribunal hearing. He told the court that he did not have one. It is not entirely clear from the Tribunal’s statement of reasons whether the Tribunal raised the issue of health insurance at the hearing. In the Tribunal’s summary of the hearing, the Tribunal said the following:

   36.The applicant had provided no evidence of current health insurance but a letter from his migration agent advised

   
   

   “.. The student will finalise the health cover and provision evidence of fund in support of the application once the presiding member gives him some indication to do so. (sic)

   37.The Tribunal noted that the financial evidence provided did not satisfy the requirements.

   38.The Tribunal told the applicant that while it was aware his representative was overseas, the information sent with the hearing invitation clearly detailed the evidence required for him to be granted a visa, yet most of it had not been provided.

10. It seems clear from that summary that, at the hearing before it, the Tribunal mentioned the hearing invitation letter and the evidence mentioned in it.  As I have said, whether the Tribunal specifically mentioned the health insurance information during the Tribunal hearing is not clear.  However, it is clear that the Tribunal gave the applicant a further two weeks to provide the required evidence.  It is clear that the Tribunal brought to the applicant’s attention at the hearing the letter dated 7 February 2013.  And it is also clear that that letter set out the requirements relating to health insurance. 

11. Whether or not the Tribunal specifically raised the issue of health insurance at the hearing before it, the requirements of natural justice were satisfied by the letter dated 7 February 2013.  The applicant’s agent clearly received that letter, notwithstanding the error in the address, because he responded to it and acknowledged receipt of it.  In these circumstances, it cannot be said that there was any jurisdictional error in the Tribunal failing to afford the applicant procedural fairness in relation to the health insurance requirements. 

12. The second ground in the application is that:

    The tribunal denies the applicant procedural fairness in that…

    
    

    2). The delegate made the primary decision based on the applicant’s failure to provide evidence he met the English language proficiency requirement, the tribunal member was not able to support such decision, however, the tribunal simply picked up another issue of the adequate health insurance to deny the visa applicant as a genuine applicant for a student visa.

13. The Tribunal was entitled to decide the application on the basis of different factors to those on which the delegate determined the matter.  If the Tribunal intended to do that, however, the Tribunal was required to alert the applicant to the issue on which the decision might turn. 

    
    

    The Tribunal did that in the letter dated 7 February 2013 when it asked for evidence of adequate arrangements for health insurance.  There was no error in these circumstances in the Tribunal determining the matter on the basis upon which it did. 

14. The third ground in the application is that:

    The Tribunal denies the applicant procedural fairness in that… 3).   The tribunal misled the visa applicant and shift (sic) the visa applicant’s attention to provide the financial documents and failed to mention to the visa applicant that he also need (sic) to provide other documents as well apart from financial documents.

15. The applicant has not provided a transcript of the hearing before the Tribunal to substantiate this claim.  In any event, the letter from the Tribunal dated 7 February 2013 set out what was required.  In these circumstances, there is no basis for the claim that the Tribunal misled the visa applicant as alleged.  At the hearing, the Tribunal drew the applicant’s attention to the letter dated 7 February 2013 and gave the applicant a further 14 days to provide the required material.  There was no jurisdictional error in relation to ground 3. 

16. During the hearing before this court today, the applicant said that he thought that health insurance should not be bought until the Tribunal sent the matter back to the Department. If that is so, the applicant was under a misapprehension. He was required to provide evidence of adequate arrangements in relation to health insurance; he provided no such evidence.

17. The written document that the applicant provided to the court today does not advance the matter.  The applicant said in his statement that if the Tribunal member had asked for health cover, as well as the financial documents, he would have easily provided that information to the Tribunal.  However, it was for the applicant to make out his case.  The Tribunal had provided to the applicant a copy of the relevant criteria for the subclass of visa that he sought.  The Tribunal had also asked the applicant specifically for evidence of certain matters, including health insurance, in its letter date 7 February 2013. 

    
    

    The Tribunal was not required to do any more than that. 

18. All in all, it does not seem to me that there is any jurisdictional error in the Tribunal’s decision. Consequently, the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  24 March 2014