Lu v Minister for Immigration
[2010] FMCA 140
•19 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LU v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 140 |
| MIGRATION – Application for an extension of time. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Migration Act 1958 (Cth), ss.137J, 359A, 477 |
| SZLHP v Minister for Immigration (2008) 172 FCR 170 |
| Applicant: | PENG LU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3032 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 2 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Austin Haworth Lexon Legal |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application under s.476 of the Migration Act is extended up to and including 14 December 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3032 of 2009
| PENG LU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Ms Peng Lu) seeks an extension of time for the bringing of her application filed on 14 December 2009, which seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 11 April 2007. Under transitional provisions relating to the time for filing such an application prescribed by s.477 of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal decision is deemed to have been made on 15 March 2009. The application was not filed within the prescribed time limit of 35 days, pursuant to s.477 and hence an extension of time is required if the Court is to deal with the application.
Evidence and submissions
The request for an extension of time is supported by the affidavit of Ms Lu affirmed on 26 February 2010. Ms Lu was cross-examined on her affidavit. In addition to Ms Lu’s affidavit and the evidence obtained in cross‑examination, I have before me the book of relevant documents filed on 29 January 2010.
The applicant submits that, for the purposes of s.477(2) of the Migration Act, it is necessary in the interests of the administration of justice to make an order extending the time for the filing of the application. The Minister opposes such an order.
The applicant submits that she was in a vulnerable position due to personal difficulties and was taken in by a confidence trickster who persuaded Ms Lu to place her affairs in the hands of a “lawyer” known only as “Chris”. Ms Lu says she proceeded on the basis that she had succeeded in obtaining a visa and the truth only became known when she contacted the Minister’s Department. Ms Lu had been living unlawfully in Australia between May 2007 and December 2009. She says that since her discovery of the true position she has been preparing for this present case.
The Minister submits that Ms Lu was knowingly concerned in a purported scheme to obtain a visa by some irregular process and that she is not the innocent victim she claims to be. The Minister submits that there was no fraud on the Tribunal in any event. The Minister submits that Ms Lu’s delay in bringing the present proceedings is excessive, that the explanation for it is inadequate and that there is no serious issue to be heard in this Court.
Consideration
The applicant was granted a sub-class 573 visa on 25 August 2004. Departmental records indicate that the applicant’s visa would have been automatically cancelled, pursuant to s.137J of the Migration Act, on 2 June 2005. The applicant applied to the Minister for revocation of the cancellation of her visa on 23 October 2006. The delegate decided not to revoke the visa cancellation on 17 November 2006 and notified Ms Lu of that decision on the same day.
The applicant’s visa was automatically cancelled because she was sent a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) in relation to breaches of a condition of her visa relating to attendance or satisfactory academic performance and she did not comply with the notice or attend an office of the Department to make herself available to explain the breach alleged in the notice. In considering the applicant’s written application for revocation of her visa cancellation, the Minister’s delegate acknowledged that the applicant had submitted claims to have had a miscarriage and to have suffered psychological issues but that these did not constitute “exceptional circumstances beyond the visa applicant’s control”. The applicant applied to the Tribunal on 28 November 2006 for review of the delegate’s decision.
The applicant was represented before the Tribunal by a registered migration agent.
The Tribunal invited the applicant to comment on her poor attendance as set out in the s.20 notice and to explain any exceptional circumstances beyond her control which may have caused her failure of attendance. The Tribunal notes that the applicant “chose not to respond” to the invitations, either personally or through her advisor. The Tribunal noted that it did not have medical evidence of the claimed miscarriage. The Tribunal also stated that it was not willing to revoke the cancellation as the applicant had made no effort to clarify the medical issues which she appeared to claim were responsible for her failure of attendance during the period of her course. The Tribunal noted that she had not made herself available to be questioned about her individual circumstances at a hearing nor responded to the invitation to comment issued pursuant to s.359A of the Migration Act. The Tribunal stated that it was very unsatisfactory for the applicant not to have provided medical evidence in support of her claimed condition.
The Tribunal was not satisfied that there was adequate evidence present to make a finding of “exceptional circumstances beyond the visa holder’s control” as a basis for the applicant’s non compliance with the attendance requirement of condition 8202 attached to her student visa.
The Tribunal did not, in its reasons, deal with any issue concerning the validity of the notice issued under s.20 of the ESOS Act or the operation of the automatic cancellation under s.137J.
In her affidavit, Ms Lu deposes as to her education history and her personal circumstances. She deposes as to her psychological difficulties following her miscarriage and the breakdown of her personal relationship. She deposes as to her agent’s view about her prospects of success before the Tribunal and her concern about the likely outcome. She says that she was told of the invitation to comment but not the hearing invitation by her agent. It appears, however, from her evidence that Ms Lu withdrew instructions from her agent during the Tribunal process in about March 2007. That was the same month that the invitation to comment was issued by the Tribunal. Ms Lu deposes that a Chinese woman she met recommended to her a lawyer called “Chris” who had been successful in the woman’s case. The woman advised the applicant not to lodge any more documents with the Tribunal. Ms Lu says that she paid the woman $24,000 in cash by instalments for the payment of legal fees to “Chris”. She made further payments over time which, in total, exceeded $93,000. She has recently obtained a receipt for these payments. Ms Lu deposes that she proceeded on the belief encouraged by the Chinese woman that she had been successful in obtaining a visa and did not know that she was living illegally following the Tribunal decision (which she had no knowledge of). She deposes that she only discovered the truth on 3 August 2009 when she contacted the Minister’s Department to enquire about a return visit to China.
Under cross-examination, Ms Lu conceded that she paid a very substantial amount of money over time to a person who she did not meet (having acted through the Chinese woman as an intermediary) and whose full name she does not know on the understanding that this was part of a process to “get around” the Tribunal. This raises the question whether Ms Lu must have known that she was part of some illegitimate process (assuming that anything was in fact done or intended to be done on her behalf). It is plausible that Ms Lu may have been tricked into believing that she had obtained a visa and was ignorant of her real status following the decision of the Tribunal. The real question at a trial of this matter would be whether there had been any fraud on the Tribunal and, if so, whether the applicant was knowingly concerned in it[1]. It is not appropriate in this interlocutory judgment to express any concluded view on what the outcome of a testing of that issue would be. It is sufficient, for present purposes, to note that the issue would be a serious one to be tried.
[1] See SZLHP v Minister for Immigration (2008) 172 FCR 170 from [11] per Branson J
While the period of delay in the filing of this application is significant, I am willing to accept that Ms Lu was ignorant of her status until August 2009 and that since then she has been actively engaged in obtaining advice and evidence for the present application. She has, in my view, adequately explained the delay.
I have concluded that it is appropriate that the issues should be tested at a final hearing and that, in the circumstances, it is necessary in the interests of the administration of justice to make an order extending time for the filing of the application until 14 December 2009. I will so order.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 March 2010
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