MFULA v Minister for Immigration

[2016] FCCA 161

FEDERAL CIRCUIT COURT OF AUSTRALIA

MFULA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 161

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the applicant voluntarily discontinued his studies – whether the Tribunal failed to properly invite applicant to respond to information – whether the Tribunal failed to carry out a statutory obligation – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.354, 357A, 359A, 359AA, 359B, 424A, 476, 477

Migration Regulations 1996 cl. 573.225, 573.223, Schedule 2

SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391

Applicant: GEORGE MFULA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2455 of 2015

Judgment of: Judge Street

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

Solicitors for the Applicant: Mr R Turner
Turner Coulson Immigration Lawyers

Counsel for the First Respondent: Ms A Douglas-Baker

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2430 of 2015

GEORGE MFULA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) in relation to the decision of the Tribunal made on 23 July 2015 affirming the decision of the delegate not to grant the applicant a student temporary class TU visa.

2. The applicant arrived in Australia in February 2005 as the holder of a subclass 573 student visa.  Since then, the applicant has either held a student visa or associated bridging visas.  The applicant's most recent student visa, a subclass 572, expired on 4 December 2013.  The applicant has remained continuously in Australia with the exception of a two-week period during which he went for a holiday to Sri Lanka.  The applicant is from Zambia and has not returned to Zambia.

3. Since arriving in Australia, the applicant has completed a number of courses of study.  The applicant applied to the Department for the student temporary class TU visa on 3 December 2013 which the delegate refused on 7 March 2014.  The delegate refused to grant the visa because the applicant did not comply with requirements of cl.573.225 and cl.573.223(2)(a) of schedule 2 of the Migration Regulations 1996.  That decision of the delegate was the subject of a review by a differently constituted Tribunal on 7 October 2014 (the first Tribunal).  The decision of the first Tribunal was the subject of orders made by consent on 19 February 2015 remitting the matter back to a differently constituted Tribunal.

4. The decision of the first Tribunal did, however, set out information provided by the applicant in relation to his church activities in Australia and records the applicant's evidence to that first Tribunal as summarised by the first Tribunal concerning a website relating to the applicant's church that the applicant had created, including YouTube videos of his preaching. That information relating to the applicant's involvement in the church and preaching from the website and YouTube clips were the subject of the first Tribunal recording that it had complied with s.359AA in relation to the applicant's interest in spreading his church in Australia and that he had an intention to permanently stay in Australia, rather than being here for the reason of study.

5. By a letter dated 19 March 2015, the second Tribunal invited the applicant to appear to give evidence and present arguments on 14 April 2015.  The applicant appeared at that hearing to give evidence and present arguments and confirmed at that hearing that he had no current enrolment in any course of study and that all his enrolments had been cancelled.  The second Tribunal, the subject of this application, concluded that the applicant's main purpose in remaining in Australia was to undertake what the applicant believes was his divine mission to open churches and preach the gospel in Australia, and that the applicant had enrolled in courses of study in Australia so as to permit him to remain here.  The Tribunal concluded that it was not satisfied the applicant genuinely intends to stay in Australia temporarily and the Tribunal found that the applicant did not meet the requirements of cl.573.223(1)(a).  Accordingly, the Tribunal found the applicant did not meet the essential requirements of cl.573.223, and affirmed the decision of the delegate.

6. The grounds of the application are as follows:

   1. The Tribunal failed to carry out its statutory duty

   PARTICULARS

   a. The Tribunal had information which was the reason, or part of the reason, for affirming the decision and failed to:

   (i) Give particulars of that information to the Applicant;

   (ii) Explain why it was relevant; and

   (iii) Give the Applicant a real oppo11unity to respond

7. This is an application for relief filed in this Court 11 days after the time required under s.477, and accordingly, the applicant requires an extension of time under s.477. Generally, an application for a breach in time under s.477 requires an adequate explanation for the delay weighed together with whether there are arguable grounds to warrant an extension of time in the interests of the administration of justice. I take into account the principles identified by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 at 56 – 70. The applicant's explanation for the delay was to blame a third party, and the explanation was less than fulsome or satisfactory. I do not regard the applicant as having provided a satisfactory explanation for the delay. However, of greater importance in determining whether an extension of time should be granted is whether there is an arguable ground in the application. It is clear that the solicitor that then commenced acting for the applicant after the applicant somehow became aware of the expiry of the time under s.477 acted with his usual efficiency and promptness. The grounds as articulated below are sufficiently arguable to warrant an extension of time under s.477 of the Migration Act 1958.

8. The grounds are not particularised. The content of the information said to enliven the obligation under s.359A. in the written submissions of the applicant identified two pieces of information said to fall within s.359A, being:

   (a) the PRISMS records,

   (b) the applicant’s website.

9. In relation to the alleged obligation under s.359A concerning the PRISMS records, the solicitor for the applicant, Mr Turner, took the Court to paras.13 and 15 which identified the applicant's arrival in Australia and certain courses he had undertaken, and relevantly, that the last of those courses ended in October 2013 and that the applicant then commenced a Bachelor of Business Accounting course at King's Own Institute on 17 March 2014. The PRISMS record indicated that the course was scheduled to run until 14 March 2016 but that his enrolment was cancelled on 17 September 2014. Reference was made by the solicitor for the applicant to paras.27, 30 and 39 and the enrolment of courses of study in the context of finding that the applicant was using the courses of study to permit him to remain here.

10. By letter dated 14 April 2015, the Tribunal gave the applicant clear particulars of information in relation to PRISMS records that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.  That letter referred to the enrolment in the King's Own Institute and the duration of that course and the cancellation of that course, including the last day of study by the applicant, being 25 July 2014.  The Tribunal noted that the information is relevant to its consideration of the matter before it because:

    It indicates [the King's Own Institute] allowed you to commence studies even though your visa had been refused, contrary to your assertion at the hearing that they had a policy which prevented international students who had a student visa from studying.

    The letter indicated that:

    If the Tribunal accepts this information, it may conclude that you voluntarily discontinued your studies.

11. It was the voluntary discontinuance of studies that the Tribunal identified may lead it to conclude that the applicant had no genuine interest in completing the studies and that his purpose in enrolling was to provide a reason for him to be granted a visa that would allow him to remain in Australia.  The Tribunal noted this may lead the Tribunal to conclude that the applicant attempted to mislead about the reasons why he was not currently studying any subject, and that that may lead to the Tribunal not to accept other information or assertions by the applicant.

12. That written letter complied with the requirements of ss.359A and 359B. An argument was advanced that the timing of the letter following the hearing that had occurred on 14 April 2015 in some way fell outside the scope of s.359A. There is nothing in the construction of ss.359A or 359B that supports a construction that an invitation under s.359A to comment or respond to information must be given prior to any hearing.

13. To the extent of the PRISMS records information relating to the cancellation of the applicant's course, the obligations of s.359A were complied with in relation to the letter sent on 14 April 2015. I do not regard any other information within the PRISMS records as being information enlivening any obligation under s.359A. Accordingly, there was no breach of s.359A by the Tribunal in relation to the PRISMS records.

14. In relation to the applicant's reliance upon the website information, the content of the information said to be gleaned from the website was that he had migrated to Australia and that the applicant had been called into his church and the applicant was preaching in his church. That information was all information identified by reference to the website and YouTube clips referred to by the first Tribunal which put that matter to the applicant in accordance with the requirements of s.359AA at the first Tribunal hearing. The first respondent submitted it relies upon SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291 at [299] to [300] that a differently constituted Tribunal could rely upon an earlier compliance with s.424A being an equivalent provision in this case to s.359A. The decision refers to the particular member who constitutes the Tribunal being required to turn his or her mind to the question of whether particular information ought be the reason or part of the reason for deciding to affirm the delegate's decision. Whilst the Court in that case did not determine whether the Tribunal had been reconstituted, the Court appears to have taken into account the earlier compliance with the equivalent provision of s.359A. To the extent that the decision in the Full Court supports a construction that the second Tribunal can rely upon earlier compliance with s.359A by an earlier Tribunal, I am bound by that decision.

15. The reference to a particular member who constitutes the Tribunal is capable of being understood as requiring a second Tribunal, differently constituted, to separately comply with the obligations under s.359A. It is relevant, however, to take into account the scheme of Part V and in particular ss.354 and 357A. The principle contended for by the first respondent as flowing from SZEPZ is consistent with the scheme of the Act. I find that the second Tribunal was entitled to rely on the compliance with s.359A by the earlier Tribunal insofar as information of the applicant's church and preaching activities was derived from the website and YouTube clips. This is a further reason why there is no breach of s.359A.

16. Further, in this case, the Tribunal identified the information that the applicant had provided to the first Tribunal. That information was, in my opinion, information concerning the applicant's establishing of the church and preaching activities and was given by the applicant during the process that led to the decision that's under review within s.359A(4)(ba) of the Act. Accordingly, the information in relation to the website concerning the applicant's migration to Australia and being called to the ministry and preaching was all information to which s.359A(1) did not apply by reason of s.359A(4)(ba). I do not accept the submission by the solicitor for the applicant that the information from the website to which the Tribunal referred was different from the information that had been identified as being given by the applicant at the first Tribunal summarised in paras.24 through to 30 of the second Tribunal's decision. From the second Tribunal's reasons, it is apparent that the second Tribunal raised that information relating to the applicant’s preaching activities that the applicant had given at the first Tribunal's hearing and the second Tribunal put that to the applicant in accordance with s.359AA. It was suggested that the Tribunal had not complied with the requirements of s.359AA in that there had been alleged non-compliance with s.359AA(1)(b)(iii), which refers to an obligation upon the Tribunal to advise the applicant that he may seek additional time to comment on or respond to the information. The transcript records the Tribunal stating to the applicant that it was putting the information before the applicant seeking his comments or his response, and to that end, reminding the applicant of:

    “your right to seek…”

17. Following which there was an interruption. The applicant had earlier been informed of his right to seek an adjournment. Notwithstanding the omission of the reference to adjournment, the content and meaning of what was said by the Tribunal to the applicant complied with the requirements of s.359AA. Accordingly, no jurisdictional error is made out in relation to s.359A in relation to information derived from the applicant's website.

18. Further, I do not accept that either alleged information from PRISMS or the website was the reason or part of the same enlivening an obligation under s.359A. It is the cessation of the applicant’s study which was information admitted before the first Tribunal and the second Tribunal that was the reason or part of the reason for affirming the decision under review by the second Tribunal.

19. Counsel for the first respondent also advanced that there was a difference between the information gleaned from the website and the information gleaned from the YouTube video clips.  The substance of the information, both on the website and the YouTube clips, was the preaching activity by the applicant.  In my opinion, there is no substantial difference in that information so far as the alleged obligations under the Act are concerned.

20. For the reasons I have given, there was no breach of s.359A and, notwithstanding the extension of time, the application fails to make out any jurisdictional error. The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 February 2016