Liu v Minister for Immigration

[2015] FCCA 2957

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2957

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Kim v Minister for Immigration [2008] FMCA 1577

Applicant: QINGCHUN LIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2908 of 2014

Judgment of: Judge Driver

Hearing date: 3 November 2015

Delivered at: Sydney

Delivered on: 3 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr K Eskerie of Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2908 of 2014

QINGCHUN LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 25 September 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Liu, a temporary student visa. 

2. Background facts relating to Mr Liu’s visa application and the decision of the Tribunal on it are conveniently set out in the Minister’s outline of submissions filed on 27 October 2015. 

3. On 22 October 2013, Mr Liu was granted a visitor (Class FA) (Subclass 600) visa. On 10 February 2014, the Minister’s Department received an application for a student visa from Mr Liu[1].

   [1] Court Book (CB) 1-24

4. On 13 February 2014, the Minister’s Department requested further information from Mr Liu in particular regarding health examinations and also exceptional reasons which Mr Liu considered applied in his case[2].  Mr Liu’s migration agent responded on 4 March 2014[3]. 

   [2] CB 52-58

   [3] CB 59-68

5. On 20 March 2014, a delegate of the Minister decided to refuse Mr Liu’s visa application[4]. This was because the delegate found that Mr Liu did not meet clause 572.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

   [4] CB 69-76

Tribunal proceedings

1. Mr Liu lodged an application for review of the delegate’s decision with the Tribunal on 8 April 2014 and appointed Ms Danyang Li of ABC Migration & Education Centre as his authorised recipient for the purpose of the Tribunal proceedings[5].

   [5] CB 77-78

2. On 22 August 2014, the Tribunal wrote to Mr Liu (via his authorised recipient) to invite him to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing[6].

   [6] CB 82 to 85

3. On 25 August 2014, Mr Liu appointed a new migration agent (and authorised recipient), Zuwen Yuan of ABC Migration & Education Centre[7] who provided Mr Liu’s response to the Tribunal’s hearing invitation[8].

   [7] CB 94

   [8] CB 92-93

4. On 17 September 2014, Mr Liu’s migration agent provided a submission[9] and supporting documents to the Tribunal in support of Mr Liu’s application[10].

   [9] Dated 16 September 2015

   [10] CB 95-110

5. On 25 September 2014, Mr Liu appeared before the Tribunal to give evidence and present arguments with the assistance of a Mandarin interpreter and his migration agent[11].

   [11] CB 111-112

6. On 26 September 2014, the Tribunal notified Mr Liu, via his authorised recipient, of its decision to affirm the decision under review[12].

   [12] CB 114-121

The Tribunal’s key findings

1. After setting out the relevant background to the application for review and the applicable law, the Tribunal noted that the issue in the matter was whether Mr Liu meets the criterion in clause 572.227 of Schedule 2 to the Regulations, which specifies that at the time of decision a person must satisfy a number of specified criteria as set out in Schedule 2[13].

   [13] CB118 at [8]

2. The Tribunal noted that the legislative requirements for the grant of a student (Temporary)(Class TU) visa as detailed in clause 572.227 of Schedule 2 to the Regulations includes a criterion for certain applicants who apply in Australia who must establish “exceptional reasons” for the grant of the visa[14]. Where this criterion applies, a person cannot enter Australia on another type of temporary visa and then obtain a Class TU visa on the basis of studying in Australia unless they establish exceptional reasons for the grant of the visa[15].

   [14] CB 118 at [8]

   [15] CB 118 at [8]

3. The Tribunal noted that the term “exceptional reasons” is not defined in the Migration Act 1958 (Cth) or Regulations[16]. The Tribunal then went on to note the consideration given to the term “exceptional reasons” by Smith FM in Kim v Minister for Immigration[17]and reproduced the non-exhaustive list of situations in which “exceptional reasons” may be found as set out in the Department’s PAM3 guidelines[18].

   [16] CB 119 at [12]

   [17] [2008] FMCA 1577. CB 119 at [13]

   [18] CB 119 at [14]

4. The Tribunal noted that the PAM3 guidelines are not binding on the Tribunal but may be a relevant consideration in determining what constitutes “exceptional reasons” in the individual circumstances[19].

   [19] CB 119 at [15]

5. The Tribunal then referred to the written submission provided by Mr Liu’s agent dated 16 September 2014 and set out the substance of Mr Liu’s submissions in support of finding that there are “exceptional reasons”[20]. The Tribunal also summarised Mr Liu’s evidence to the Tribunal[21] and further submissions made by Mr Liu’s agent[22].

   [20] CB 120 at [19]

   [21] CB 120 at [20]

   [22] CB 120 at [21]

6. The Tribunal found that Mr Liu’s reasons for wanting to study in Australia are not exceptional, being personal to him and relating to his own claimed study and career goals. The Tribunal found there was no benefit to Australia or bilateral benefit of any nature or significance.

7. The Tribunal accepted that Mr Liu had medical issues in February 2014 which perhaps meant that he could not travel for a brief period, but did not accept that this prevented him from returning to China other than temporarily.

8. The Tribunal found Mr Liu staying in Australia following his short period of recuperation did not create any exceptional or compelling reason for lodging a student visa onshore. Further, noting that the application was lodged on 10 February 2014 and the diagnosis of appendicitis occurred on 18 February 2014, the Tribunal did not accept that Mr Liu’s illness had anything to do with lodging the application onshore. The Tribunal further found that, notwithstanding his follow up health issues in late February and early March 2014, this did not prevent him from travel and return to China. The Tribunal found these were also matters personal to him and not an “exceptional reason”[23].

   [23] CB 120 at [22]

9. The Tribunal therefore concluded that Mr Liu did not satisfy clause 572.227 of Schedule 2 to the Regulations[24].

   [24] CB 120 at [23]

The present application

1. These proceedings began with a show cause application filed on 21 October 2014. Mr Liu continues to rely upon that application. He has not taken up the opportunity I afforded him in directions made on 25 November 2014 to file an amended application or additional evidence. The application contains six paragraphs as an attachment to the application:

   Orders sought by Applicant

   1, I disagree with Immigration and MRT’s decision.  They did not consider that I have genuine intention to apply for student visa onshore.

   2. They did not consider the fact that I had compelling reasons not to apply for subclass 572 offshore.  I have provide sufficient evidence to support my application, however DIBP and MRT did not give a good consideration of my situation was out of my control.

   3, DIBP and MRT should granted my student visa application and allow me to study in Australia.

   The Grounds of the Application are:

   1, I am a Chinese citizen and have a genuine intention for student visa.  I could not lodge my subclass 572 visa offshore due to situation beyond my control.

   2, I had been terribly sick before my visa expired and I could not take airplane to depart Australia.  In MRT hearing, I have provided with the member with detailed explanation and evidence for my special situation.

   3, MRT member did not show any concerns to my explanations at the hearing, I don’t think I have been fairly treated.

   (errors in original)

2. The first three paragraphs, under the heading “Orders sought by Applicant”, express Mr Liu’s disagreement with the Tribunal decision and the fact that he considers he had established exceptional reasons.  The further three paragraphs, under the heading “Grounds of the Application”, refer to Mr Liu’s background, his sickness and what Mr Liu considers to be the Tribunal member’s lack of concern at the Tribunal hearing. 

3. I received as evidence a short affidavit by Mr Liu filed with his application and the court book filed on 23 December 2014. 

4. I declined to receive into evidence a medical statement from the Campsie Medical Health Centre dated 2 October 2014, given that it substantially post-dated the decision of the Tribunal.  Further, there is no factual dispute that Mr Liu was diagnosed as suffering from appendicitis and underwent a medical procedure at around the time he applied for the student visa. 

5. There is nothing before me to indicate any want of procedural fairness by the Tribunal in the course of the review or any breach of the statutory code of procedure binding the Tribunal.  In my opinion, the only possible arguable legal issue could arise from the Tribunal’s consideration of whether the reasons advanced by Mr Liu for applying for the visa in Australia were exceptional, thereby permitting him to apply for the visa onshore. 

6. It is plain that the visa criteria[25] are intended to discourage onshore applications for the class of visa sought by Mr Liu.  He had come to Australia on a visitor visa and, in order to support his desire to study in Australia, he elected to apply onshore.  As is recorded at [19] of the Tribunal’s reasons[26], Mr Liu saw advantage in applying onshore as he could commence his studies earlier.  On any view, that could not be considered an exceptional circumstance.

   [25] which are reproduced at CB 75

   [26] CB 120

7. Mr Liu encountered difficulties in pursuing his plan because he became sick and was diagnosed with appendicitis.  He underwent a procedure in hospital and it appears there were post-operative complications.  It may well be that that illness prevented Mr Liu from travelling back to China for a time, but it was abundantly clear to the Tribunal that that was not Mr Liu’s intention in any event.  He intended to apply onshore in order to obtain an advantage. 

8. The only time pressure on Mr Liu making a visa application appears to have been that his visitor visa would expire.  Had he been applying offshore, it does not appear to me that there would have been any time pressure.  Accordingly, it did not logically follow that his temporary inability to travel placed an insuperable obstacle in the way of making an offshore application. 

9. It was, in my view, clearly open to the Tribunal on the material before it to conclude that Mr Liu’s reasons for applying in Australia were not exceptional.  I have considered whether the last sentence at [22] of the Tribunal’s reasons, in which the Tribunal says:

   These matters are also personal to him and not an exceptional reason.

   could be suggestive of a jurisdictional error.  As the Tribunal acknowledges, non-binding guidance is provided by the PAM3 departmental guidelines. 

10. Examples of exceptional reasons are set out at [14] of the Tribunal’s decision[27].  Those examples include circumstances that would be personal to the applicant.  Accordingly, the Tribunal’s statement that the matters pertaining to Mr Liu were personal to him could not, in my opinion, be taken as a suggested prohibition on a personal circumstance being an exceptional reason.  The Tribunal’s discretion is extremely wide and there is no reason in logic or law why a personal circumstance cannot be an exceptional reason.

    [27] CB 119

11. Properly understood, in my opinion, the Tribunal’s reasoning was that the matters advanced by Mr Liu were personal to him in that they reflected his personal choices.  The consequence of his choices did not support a conclusion that there were exceptional reasons for his failure to apply offshore or his desire to apply onshore. 

12. I otherwise agree with the Minister’s written submissions. 

13. Neither the “orders sought” nor “grounds of application” identified by Mr Liu in his show cause application, raise meaningful grounds of judicial review.  Rather, they appear to disagree with the Tribunal’s factual findings and the outcome of his application.

14. Mr Liu has failed to establish an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Liu did not wish to be heard on costs.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  9 November 2015