Lu v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2024] FedCFamC2G 1041

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lu v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1041  

File number(s):	PEG 260 of 2023
Judgment of:	JUDGE VASTA
Date of judgment:	5 September 2024
Catchwords:	MIGRATION – application for reinstatement – where the applicant failed to appear at hearing – where there was no reasonable excuse for the non-appearance – where the Court’s discretion to reinstate the case is not enlivened – application for reinstatement refused – application for review of Administrative Appeals Tribunal dismissed
Legislation:	Migration Act 1958 (Cth) – ss 359, 359AA
Division:	Division 2 General Federal Law
Number of paragraphs:	37
Date of hearing:	5 September 2024
Place:	Perth
Counsel for the Applicant:	the Applicant appearing on his own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

PEG 260 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LO-JUNG LU

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	5 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The application for reinstatement filed on 20 August 2024 is refused.

2.The application filed on 14 November 2023 is otherwise dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $1,000.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

(Ex tempore)

JUDGE VASTA

1. On 20 August 2024, the applicant, Lo-Jung Lu, asked this Court to reinstate his application for review of a decision of the Administrative Appeals Tribunal (“AAT/Tribunal”).  The basis of this application was that, on 25 July 2024, His Honour Judge Kendall dismissed the applicant's application because he did not appear at a hearing before Judge Kendall. 

2. To properly assess this application, the Court needs to be aware of the relevant circumstances behind this application.  The applicant is a citizen of Taiwan.  On 7 June 2021, the applicant applied for a student visa.  On 24 March 2022, the delegate refused to grant the applicant the student visa. 

3. Central to the reasons that the delegate refused to grant the visa, was that the delegate was satisfied that the applicant had previously entered Australia under another assumed identity. 

4. The applicant then asked the Administrative Appeals Tribunal to look at his application for a student visa again. 

5. When the matter then came before the Tribunal, all aspects of the applicant's application were looked at by the Tribunal.  It is noted that the delegate believed that the applicant had used the name “Wen Pao Lu” with a date of birth of 20 April 1998 when he came to Australia in 2012 and 2013.  The application for a student visa was made under the name of “Lo-Jung Lu” with a date of birth of 12 May 1998. 

6. The Tribunal was not particularly concerned with this aspect of the application, though.  Instead, the Tribunal was concerned that the applicant was not currently enrolled in a course of study. 

7. When the Tribunal sent the hearing invitation to the applicant for a hearing in September 2023, it informed the applicant that they were concerned that the applicant was not currently enrolled, and they enclosed the applicant's PRISMS record.  The hearing was not able to take place in September 2023, and it was adjourned to October 2023. 

8. Because it had adjourned the hearing, the Tribunal issued a further invitation to attend a hearing, and it also again sent the PRISMS record and a note that they were concerned that the applicant was not currently enrolled.  This meant that the applicant was well and truly put on notice that the issue of his enrolment was a matter that the Tribunal was going to focus upon to ascertain whether he met the criteria for the grant of a student visa. 

9. The hearing proceeded on 13 October 2023.  The Tribunal went through the delegate's finding of the applicant having, in effect, provided bogus information to the Department.  For reasons I do not need to go into, the Tribunal was not satisfied that the applicant had submitted false or misleading information. 

10. This meant that the only live issue for the Tribunal was whether the applicant met the condition in clause 500.211.  That clause requires that, at the time of the decision, the applicant must be enrolled in a course of study. 

11. The Tribunal commented that they had sent the applicant his PRISMS record and then asked him whether he was presently enrolled in a course of study.  The applicant conceded that he was not currently enrolled in a course of study.  The applicant said that he needed to have a visa in order to enrol in a course. 

12. The Tribunal said that this information was information that could cause them to not give the applicant a visa. The Tribunal said that the applicant could ask, if he wanted, for additional time to comment or to respond to the information, but it was a matter for the Tribunal to decide whether this would be allowed. 

13. The applicant said that he needed time to talk to his lawyer. However, the applicant had already told the Tribunal that his agent could not get a confirmation of enrolment because the applicant did not have a visa. 

14. The Tribunal said that, because the applicant had already said that this was what the lawyer had said, it could not understand why the applicant needed further time to talk to the lawyer.  So, for that reason, the Tribunal said that it would not grant an adjournment given that this issue had been well and truly ventilated by the Tribunal before the hearing occurred. 

15. Because the applicant could not satisfy clause 500.211, the Tribunal affirmed the decision not to give the applicant a protection visa. 

16. In his application for review to this Court, the applicant cited four grounds.  The first ground is that the Tribunal failed to afford procedural fairness; the second ground is that the Tribunal made a finding without supporting evidence; the third ground was that the Tribunal failed to provide written reasons for its decision; and, the fourth was that the Tribunal erred in construing the requirements of clause 500.211. 

17. It is against this background then that this Court needs to decide whether it should exercise its discretion and reinstate the application for review of the tribunal decision. 

18. As I have indicated during the course of this hearing, the Court looks at three aspects in deciding whether it should exercise its discretion.  The first is what is the reason for the applicant failing to appear before his Honour Judge Kendall on 25 July 2024?  The second is:  what, if any, prejudice is there to the Minister if the Court allowed the application to be reinstated?  The third is whether there is an arguable case for the relief sought in the substantive application itself. 

19. Mr Mayne, who appears for the Minister, has conceded that there is no prejudice sufficient to warrant the refusal of the application for reinstatement.  This means that I am only looking at two aspects. 

20. The applicant, in his affidavit of 20 August 2024, relevantly said the following at paragraph 2:

    [2] The email from the associate dated 24 May 2024 went to junk mail therefore I didn't know this matter was re-listed to 25 July 2024 [sic].

    At paragraph 3:

    [3]On 19 August 2024 at 10.08 am, I conducted my visa vevo check showing my visa expiry on 22 August 2024 as attached. I then went back to check junk emails and realised I missed the hearing listed on 25 July 2024.

21. This is the totality of the excuse that has been given by the applicant for his failing to attend the hearing. 

22. It is the obligation of the Court to let the applicant know that a hearing is on, but the only way that the Court can do that is to send the applicant an email to his registered “email address for correspondence” with the Court.  The Court did as it was supposed to do.  It is an obligation of the applicant to check his email.  This includes not only his inbox but his junk mail folder to ensure that he receives properly sent material from the Court. 

23. The excuse as to why the applicant did not attend on 25 July 2024 is totally unsatisfactory. 

24. In turning to whether there is an arguable case for the relief sought in the substantive application, the Court notes these things. 

25. It is very difficult to say that the Tribunal failed to afford procedural fairness. Section 359 and following is an exhaustive list regarding procedural fairness and natural justice. The Tribunal has complied with its obligations in this respect. The Tribunal told the applicant, on two occasions, that its focus would centre on his enrolment. The Tribunal had sent the applicant his PRISMS record on two occasions as well. The applicant was well and truly forearmed with all of the material that the Tribunal was looking at in questioning whether the applicant had a certificate of enrolment.

26. The Tribunal, in the hearing, asked the applicant whether he was enrolled, and he gave a truthful answer. The Tribunal was of the view that the answer given by the applicant could engage the provisions of section 359AA. The Tribunal complied with its obligations under that section. Even though the applicant did ask for an adjournment, such was considered, and it was open to the Tribunal to then reject that application for an adjournment.

27. In those circumstances, it seems to me that there is no arguable case that the Tribunal failed to afford procedural fairness. 

28. The Tribunal had the PRISMS record of the applicant and the applicant's own admission that he was not enrolled in a course of study.  In those circumstances, it seems to me that there would be no arguable case that the Tribunal's finding was made without supporting evidence. 

29. Whilst the Tribunal did give an oral decision on 13 October 2023, it did not reduce that decision to writing until 22 December 2023.  Whilst that meant that there was no written decision as at the time that the applicant filed his application on 14 November 2023, that does not mean that there has been a vitiation of the decision of the Tribunal.  Whilst it is that the Tribunal was required to reduce the oral reasons to writing before 22 December 2023, the failure to do so does not affect the validity of the decision.  

30. I am not satisfied that this would constitute an arguable case that there was a jurisdictional error in regard to the failure to put the decision into writing before 22 December 2023. 

31. As I said earlier, clause 500.211 says that, at the time of the decision, a visa applicant must have a certificate of enrolment in a course of study.  I cannot see how the Tribunal has misconstrued this particular clause. 

32. Therefore, I cannot see that ground 4 raises an arguable claim for jurisdictional error. 

33. The applicant appeared before me today unrepresented but assisted by an interpreter.  After I explained the procedures today, I asked the applicant to tell me why it is that I should reinstate his application.  He began to talk about his difficulties in being able to disprove what the delegate had ruled regarding the bogus information. 

34. I told him that he did not need to worry about that because the Tribunal had already ruled in his favour.  I then said that he needed to concentrate on why it was that he did not attend the hearing on 25 July 2024 and why it is that he says he has an arguable claim that the Tribunal made an error. 

35. He said to me that he felt that he did not have any ways to say it. 

36. Having considered this matter quite fully, I am not satisfied that my discretion should be exercised in reinstating this application. 

37. Having come to that conclusion, I refuse the application for reinstatement and, therefore, dismiss the application in a proceeding filed on 20 August 2024 with costs fixed in the sum of $1000. 

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       31 October 2024