Lu v Minister for Immigration
[2005] FMCA 178
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LU v MINISTER FOR IMMIGRATION | [2005] FMCA 178 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Student (Temporary) (Class TU) visa no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.357A, 366A
Migration Regulations 1994 (Cth), Sch.2, cl.570.212
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(d)
Migration Legislation Amendment (Overseas Student) Act 2000 (Cth), Sch.4, Item 4(3)
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
| Applicant: | YANG LU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2611 of 2004 |
| Delivered on: | 9 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Mr B Cramer of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2611 of 2004
| YANG LU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 28 July 2004 and handed down on 5 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 26 February 2004 to refuse to grant a Student (Temporary) (Class TU) visa to the primary applicant, Mr Yang Lu.
Background
Mr Yang Lu (the applicant), a national of the People’s Republic of China, born on 25 June 1982, applied for a Student (Temporary) (Class TU) visa on 11 March 2003. The delegate’s decision to refuse to grant a visa was made on 26 February 2004. The applicant lodged an application for a review of the delegate’s decision with the Tribunal on 15 March 2004.
The applicant applied for a new visa on 11 March 2003. At the time of the visa application, the applicant held a subclass 560 visa which was subject to condition 8202. The previous visa was granted on
29 November 2000 and was valid until 15 March 2003. The delegate refused the visa application because the applicant did not satisfy clause 570.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the applicant had complied substantially with condition 8202 of the previous visa.
The Tribunal’s findings and reasons
The Tribunal noted that the delegate had asked the applicant to provide documentation relevant to compliance with condition 8202 attached to his previous visa. It also noted that the delegate had invited the applicant to attend an interview. The applicant failed to do either.
The Tribunal sent a hearing invitation to the applicant which also asked the applicant to bring documentation relevant to his compliance with condition 8202 attached to his previous visa. On 4 June 2004 the applicant’s representative requested an adjournment of the hearing on the basis that he was leaving for a one month business trip. On 7 June 2004 the Tribunal wrote to the applicant’s representative declining his request for an adjournment on the basis that his presence at the hearing was not essential as a representative is not entitled to address the Tribunal unless the Tribunal is satisfied that exceptional circumstances exist (s.366A). In addition, the Tribunal noted in its letter that the representative’s firm had two other registered migration agents who could attend the hearing. The applicant attended a hearing on 29 June 2004, however, he did not provide the documentation requested. He claimed that his representative had all the documents and that he could not obtain them. At the time of the Tribunal’s decision, it had not received the requested documents.
The Tribunal was unable to be satisfied that the applicant had complied substantially with condition 8202 of the previous visa (clause 570.212), and therefore the delegate’s decision.
Application for review of the Tribunal’s decision
On 23 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 1 February 2005 the matter was listed before me in a non compliance directions list because of the applicant’s failure to comply with orders of the Court in respect of the filing of documents as ordered by the Court Registrar at a first Court date directions list on 13 September 2004. At that non compliance hearing, further orders were made requiring the applicant to file and serve an amended application giving full particulars of each ground of review relied upon by 11 February 2005. The applicant complied with those orders and filed an amended application which contained the following grounds:
“1.The Migration Review Tribunal (“the MRT”) failed to follow the requirements of the Migration Act 1958.
2.That the Tribunal denied the Applicant procedural fairness in that it relied upon information adverse to the Applicant without giving the Applicant an opportunity to comment upon that information.
3.The MRT did not make a genuine and realistic attempt to make the decision in a bona fide manner in that:
a)The decision record contained pro-forma and repeated material.
b)The Tribunal did not afford to the Applicant “the benefit of the doubt” when there was no material to the contrary to what was being asserted by the Applicant.
c)The Tribunal did not notify the Applicant of material adverse to the Applicant and upon which it intended to rely.”
Relevant legislation
At the time of the visa application, clause 570.212 provided:
“If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held or last held, by the applicant is, or was subject.”
The previous visa was in effect on 21 December 2000. Accordingly, the version of condition 8202 to which that visa was subject was as provided in Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Student) Act 2000. Item 4 relevantly provides:
“(3)The condition is that:
(a)in the case of the holder of a subclass 560 visa who is an AusAID or secondary school exchange student – the holder is enrolled in a full-time course of study; and
(b)in any other case – the holder is enrolled in a registered course; and
(c)in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester of the course; and
(d)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester (whichever is shorter) of the course.”
The hearing
The self represented litigant failed to appear at the hearing. The matter was called and attempts were made to locate the applicant outside the Court. However, there was no appearance by the applicant.
For the purposes of clarifying the issue of attendance by the applicant, the respondent tendered and applied for an affidavit of Benjamin Alexander Cramer sworn on 23 February 2005 (the affidavit of Mr Cramer) to be admitted into evidence. Annexed to the affidavit of Mr Cramer was a facsimile transmission dated 22 February 2005 from the applicant headed “Notice of Non Appearance”. This document was faxed to the respondent’s solicitors on 22 February 2005 at 7.34 p.m. and contained the statement:
“I wish to advise you that I am unable to appear for the hearing scheduled on Wednesday, 23 February 2005 at 2.15 p.m.”
No other material or explanation was supplied to indicate the reason for the applicant’s non appearance.
I am satisfied that at the directions hearing before the Court Registrar and before me at the non compliance directions hearing, the applicant was provided with material which indicated the location of the Court where the hearing was to be held and that the correspondence had been issued subject to those directions which detailed the time, date and location of the hearing. Consequently, I directed that in accordance with Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth) the hearing be proceeded with generally, although the applicant had failed to attend.
The respondent was represented by Mr Cramer, Solicitor, who filed written submissions prior to the hearing, supported by oral submissions during the hearing itself. A Court Book prepared by the respondent solicitors was filed and served on 16 November 2004. The applicant was ordered to file and serve written submissions five days prior to the hearing but this order was not complied with.
Respondent’s submissions
The solicitors for the respondent filed written submissions prior to the hearing which contained the following contentions:
a)Grounds 1 and 2 of the amended application were generic in form and were not explained by any particulars or submissions. Ground 2 also ignored the fact that s.357A of the Act applied to this case so that Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it dealt with. Consequently, these grounds cannot be sustained.
b)Ground 3 of the amended application appeared to contain an allegation of bias. However the particulars were insufficient to identify the basis for the allegation and the allegation was therefore without substance.
c)The Tribunal’s conclusion, that it was not satisfied that the applicant had complied substantially with condition 8202 of the visa held or last held at the time the visa application was made, was open to it on the material before it. It is for an applicant to make out his claims, not the Tribunal: Minister for Immigration & Ethnic Affairs v Guo & Anor (“Guo & Anor”) at 596; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170.
Reasons
The delegate's decision dated 26 February 2004 (CB pp.33-35) indicates that the applicant was scheduled to meet with a delegate on two occasions. On the first occasion the applicant attended with a migration agent and another interview was scheduled. The applicant did not attend the scheduled interview and failed to indicate the reason for his non attendance. The applicant's conduct was similarly noncommittal in relation to the scheduled Tribunal hearing. The Tribunal decision dated 28 July 2004 (CB pp.57-61) indicates that a request was submitted to reschedule the hearing. The Tribunal rejected this request and the hearing date was maintained. Although the applicant attended the hearing, he did not provide any of the evidence requested.
In a covering sheet attached to the amended application filed on
11 February 2005, the applicant indicated that he was aggrieved by the decision of the delegate as he had been refused a student visa. However, the applicant has not demonstrated any real conviction or dedication to the prosecution of his case before the delegate, the Tribunal or this Court. The obligation is on the applicant to make out his case. Having regard to the fact that the Tribunal only had before it the facts alleged by the applicant that were contained in his original application was the only information on which it could proceed.
The delegate forwarded correspondence to the applicant and, under separate cover, to his agent requesting outstanding documents that were required by the delegate to evidence the applicant met the criteria for a grant of a student visa. Despite this being raised by correspondence and in the one face to face meeting that the applicant did attend, the documents requested were never delivered. The Tribunal raised this issue with the applicant and his adviser in correspondence but again, the requested material, which included a confirmation of enrolment, attendance records, academic transcript and results, were not supplied. Evidence of the relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to make out his case: Guo & Anor per Kirby J at 596.
I accept the submissions made by the respondent in respect of the pleaded grounds contained in the applicant’s amended application filed on 11 February 2005.
Condition 8202 is a mandatory condition imposed on all primary student visas. The condition contained within 8202 is that the student visa holder must achieve an academic result that is certified by the education provider to be at least satisfactory for each semester. The other requirement of condition 8202 relates to satisfactory attendance for the scheduled lecture hours. It is these records covering the academic results from the courses undertaken during the period of the applicant’s first student visa that have not been supplied. As the condition is mandatory it must be proved by the submission of the appropriate records. The applicant has failed to comply with this requirement and the Tribunal does not have discretion in respect of this non compliance.
Conclusion
For the reasons set out above, I am satisfied that the Tribunal has not made a jurisdictional error and the application filed in this Court on
23 August 2004 should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 March 2005
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