Liu v Minister for Immigration

[2014] FCCA 2607

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2607

Catchwords:
MIGRATION – Application to set aside orders made pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – whether discretion to set aside orders should be exercised – whether decision of the Migration Review Tribunal (Tribunal) was a “primary decision” – no jurisdiction – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.338, 338(2), 347, 476(2)(a), 476(4)

Liu & Ors v the Minister for Immigration [2013] FCCA 2208

First Applicant: DESHENG LIU

Second Applicant: QI GUAN

Third Applicant: XUANCHEN LIU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2274 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 October 2014

Delivered at: Sydney

Delivered on: 28 October 2014

REPRESENTATION

First applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms N Senanayake
DLA Piper

ORDERS

1. The application in a case to set aside the orders made on 17 September 2014 is dismissed.

2. The first applicant pay the respondent’s costs of the application.

3. The respondent’s costs are set in the amount of $800.

.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2274 of 2014

DESHENG LIU

First Applicant

QI GUAN

Second Applicant

XUANCHEN LIU

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application to set aside orders that were made on 17 September 2014 dismissing an application the applicant filed on 14 August 2014. I made the orders on the first court date of this matter pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCCR). The application before me to set aside the orders I made on 17 September 2014 is made pursuant to r.16.05(2)(a) of the FCCR.

2. Whether or not the Court should set aside an order made in the absence of a party is a matter for the discretion of the Court. However, two factors must usually be considered. One is whether the party who applies to set aside the order has given evidence that explains to the satisfaction of the Court the party’s non-appearance on the day the order was made. Another factor – and usually more important factor – is whether there would be any utility in the Court setting aside its orders.

3. Where, as in this case, the order that is sought to be set aside is an order dismissing an application, the issue of whether there would be any utility in setting aside the order is to be determined by considering whether the application discloses an arguable claim for the relief the applicant seeks. 

4. I first turn to the evidence that explains delay. Here, the only evidence given by the applicant is that contained in an affidavit made on 7 October 2014 in which the applicant deposes he was “feeling unwell” and for that reason “was unable to attend the court hearing”. The affidavit provides no details about the nature of the ailment that prevented the applicant from attending the Court hearing on 17 September 2014. 

5. The explanation contained in the affidavit is wholly inadequate and cannot afford a basis for satisfying the Court that the applicant’s non-appearance was justified.  From the bar table, the applicant said he was sick, and he couldn’t make it because he had flu and fever. Asked why he did not attempt to contact the Minister’s lawyer, the applicant said he could not speak English. Again, I do not find that explanation satisfactory.

6. Although I do not find the applicant’s explanations satisfactory, that is not a factor I propose to rely on in determining whether I should set aside the orders I made on 17 September 2014. The determining factor will be whether there would be any utility in my setting aside the orders, and, as I note above, that turns on whether the application if reinstated discloses a reasonable claim for relief in this Court. 

7. The application the applicant, in effect, desires to be reinstated is one which seeks to challenge a decision of a delegate of the respondent made on 3 September 2012 refusing to grant the applicant a Business Skills (Residence) (class DF) (subclass 890) Visa. The application seeks to set aside that decision on grounds of fraud by his migration agent. 

8. In his response, and in submissions today, the Minister submits that I should “not set aside the orders I made on 17 September 2014 because it would be futile. It would be futile because the application when filed was incompetent and if reinstated would remain incompetent. The application was and will if reinstated be incompetent, the Minister submits, because the delegate’s decision is a “primary decision” within the meaning of s.476(4) of the Migration Act 1958 (Cth) (Act). The expression “primary decision” is there defined to mean a “privative clause decision” or a “purported privative clause decision” that is reviewable under Parts 5 or 7 of the Act whether or not it has been reviewed. 

9. Under s.476(2)(a) of the Act, this Court does not have jurisdiction to review a “primary decision”. There is no suggestion that the decision of the delegate in this case was a decision that could have been reviewed by the Refugee Review Tribunal. The only Tribunal that could have reviewed the decision is the Migration Review Tribunal and the circumstances in which such review is available are prescribed in Part 5 of the Act. 

10. Whether or not a decision is reviewable under Part 5 of the Act depends, in the first instance, on whether the decision is “an MRT-reviewable decision” within the meaning of s.338 of the Act. Under s.338(2) of the Act, a decision to refuse to grant a non-citizen a visa will be an MRT-reviewable decision if:

    (a) the visa could be granted while the non-citizen is in the migration zone; and

    (b)  the non-citizen made the application for the visa while in the migration zone; and

    (c)  the decision was not made when the non-citizen:

    (i)  was in immigration clearance; or

    (ii)  had been refused immigration clearance and had not subsequently been immigration cleared; and

    (d)  where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

    (i)  the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

    (ii)  an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

11. Whether or not a decision is reviewable under Part 5 of the Act also depends on s.347 of the Act which provides:

    (1) An application for review of an MRT‑reviewable decision must:

    (a) be made in the approved form; and

    (b) be given to the Tribunal within the prescribed period, being a period ending not later than:

    (i) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

    (ii) if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

    (iii) if the MRT‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

    (c) be accompanied by the prescribed fee (if any).

    (2) An application for review may only be made by:

    (a) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or

    (b) if the MRT‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or

    (c) if the MRT‑reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or

    (d) if the MRT‑reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.

    Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).

    (3) If the MRT‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.

    (3A) If the primary decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:

    (a) was physically present in the migration zone at the time when the decision was made; and

    (b) is physically present in the migration zone when the application for review is made.

    (4) If the MRT‑reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may:

    (a) request the opportunity to appear before the Tribunal; and

    (b) request the Tribunal to obtain oral evidence from a specified person or persons.

    A request must be made in the approved form and must accompany the application for review.

    (5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).

12. It was held by Judge Cameron in Liu & Ors v the Minister for Immigration[1] that the decision made by the delegate in this very case was an MRT-reviewable decision and, hence, a decision that is reviewable under Part 5. That it was held in that case that the Migration Review Tribunal (Tribunal) did not have jurisdiction to entertain the application that Mr Liu had made to the Tribunal does not deny the delegate’s decision the character of being a decision that is reviewable under Part 5. The reason the Tribunal did not have jurisdiction to deal with Mr Liu’s claim was because the application to the Tribunal was made outside the time limited for the making of such an application. As I have noted above, the expression “primary decision” is defined to mean a decision that is reviewable under Part 5 of the Act whether or not it has, in fact, been reviewed.

    [1] Liu & Ors v the Minister for Immigration [2013] FCCA 2208

13. In my opinion, the application which the applicant filed in these proceedings was incompetent because the decision which it sought to challenge is a primary decision. Being a primary decision, this Court will not have jurisdiction to entertain the application. It would consequently be futile to set aside the orders I made on 17 September 2014. 

14. Before me, the applicant made a number of submissions.  First, the applicant says he does not understand English and he does not have legal qualifications. I accept those submissions. However, that does not affect or determine whether this Court does have jurisdiction.  Secondly, the applicant submitted that since the Court registry accepted the filing of his application, the Court should see through the claims for relief made in his application. I do not accept this submission.  It misunderstands the function of a Court registry. The function of a Court registry is to receive documents filed by persons who invoke or seek to invoke the jurisdiction of the Court. The exercise of the Court’s judicial powers, however, are vested in its judges, and in appropriate circumstances, by a delegation in a registrar. It is for a judge of the Court to consider whether the Court does have jurisdiction. The filing, in this case, of the application was simply a mechanical means by which the applicant could seek to invoke the jurisdiction of the Court, and was nothing more.

15. Thirdly, the applicant asked, in what I would take to be a rhetorical fashion, if this Court did not have jurisdiction, which Court does. That is a matter about which the applicant should seek legal advice. This Court is a court of limited jurisdiction. There may well be another Court in the federal system to which the applicant may seek the redress which he has sought in this Court.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 November 2014