REN v Minister for Immigration

[2018] FCCA 3322

FEDERAL CIRCUIT COURT OF AUSTRALIA

REN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3322

Catchwords:
MIGRATION – Student visa application – applicant sought and obtained adjournment and then notified Tribunal he would not attend hearing – Tribunal affirms decision to refuse visa application – application for judicial review – application dismissed for non-appearance – application reinstated by consent – show cause hearing – no reasonably arguable case – no factors warrant exercise of discretion to order application be listed for trial – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2 cl.572.223

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

Morad v El-Ashey [2017] FCA 1136

MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593

Nichol v Discovery Africa Limited [2016] FCAFC 182

Siddique v Minister for Immigration and Border Protection [2014] FCA 1352

Spencer v The Commonwealth (2010) 241 CLR 118

SZTTW v Minister for Immigration and Border Protection  [2014] FCA 837

SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6

Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Applicant: ZHIJIA REN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1754 of 2017

Judgment of: Judge A Kelly

Hearing date: 9 November 2018

Date of Last Submission: 9 November 2018

Delivered at: Melbourne

Delivered on: 21 November 2018

REPRESENTATION

The Applicant: In Person

Solicitor for the First Respondent: Ms Ward

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 10 August 2017 be dismissed.

2. The applicant pay the costs of the first respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1754 of 2017

ZHIJIA REN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 15 August 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 July 2017 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa.

2. For the reasons which follow, the application should be dismissed.  In substance, the applicant, who sought and obtained an adjournment of the hearing before the Tribunal, failed to appear at the re-scheduled hearing in circumstances where he informed the Tribunal that he would not so appear.  The applicant also failed to appear at the directions hearing in this proceeding; however, the Minister consented to an application for reinstatement and the parties then agreed that the matter proceed as a show cause hearing.  From my examination of the materials comprised in the court book and the Tribunal’s reasons, no arguable case is shown and no other reason is indicated why the court should exercise its discretion in favour of a conclusion not to dismiss the application.

Background

1. The applicant, a Chinese national aged 34 years first arrived in Australia on 19 February 2011 holding a Student (Subclass 573) visa.  The applicant subsequently enrolled in a number of courses including: (1) Bachelor of Business (Management); (2) Bachelor of Business (Marketing); (3) Master of Professional Accounting/Master of Commerce; and (4) Master of Professional Accounting.

2. As appears below, the applicant’s enrolment was cancelled in six of the seven courses of study that he had apparently proposed to undertake.  The course which the applicant has completed (on 20 August 2012) is a Master of Professional Accounting.  An examination of the visa application indicates that this course was undertaken within 12 months.

3. On 29 June 2015, the applicant applied for a Student (Temporary) (Class TU) Subclass 572 visa with the stated purpose of studying for a Diploma of Interpreting and an Advanced Diploma of Interpreting. 

4. On 30 June 2015, the Department of Immigration and Border Protection (the Department) acknowledged the applicant’s application.

5. By letter dated 2 July 2015, the Department requested more information from the applicant in relation to the Genuine Temporary Entrant criteria and his financial capacity. 

6. On 30 July 2015, the applicant’s representative provided the Department with a number of documents including the applicant’s statement of purpose, bank account statements and a Certificate of Enrolment (CoE) with the Australian Institute of Translation and Interpretation.  Included amongst those documents was a detailed statement in which the applicant explained his claim.

7. On 13 August 2015, the Department notified the applicant that his application for a Student visa had been refused. A delegate of the Minister refused the visa application on the substantive ground that the applicant did not meet the genuine applicant criteria prescribed by cl 572.223(1)(a) in Sch 2 of the Migration Regulations 1994 (Cth).

8. On 28 August 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

9. By letter dated 23 May 2017, the Tribunal invited the applicant and his wife to attend a hearing on 8 June 2017 to give evidence and present arguments relating to the decision under review.  The letter also requested that the applicant provide a copy of his current CoE together with documents showing he was currently enrolled in a course of study and those relating to his past studies in Australia.  An explanation was also sought for any gaps in enrolments in study.  None was provided.

10. On 7 June 2017, the Tribunal was informed that the applicant was suffering from a cold and hypertension (attaching copies of prescriptions and a medical certificate) and requested the hearing scheduled for 8 June 2018 be postponed.  Via email response, the Tribunal granted the applicant’s request.

11. On 14 June 2017, the Tribunal invited the applicant and his wife to attend a rescheduled hearing on 13 July 2017. The applicant was sent four SMS hearing reminders.

12. On 12 July 2017, the applicant emailed the Tribunal stating that he “would not join the hearing tomorrow” and he did not do so.

13. The Tribunal affirmed the delegate’s decision to refuse the application.

14. By letter dated 13 July 2017, the Tribunal provided the applicant with a written statement of reasons affirming the decision under review.  Those reasons confirm the Tribunal’s finding that the applicant was not currently enrolled in a course of study.

Procedural history

1. On 10 August 2017, the applicant filed an application for judicial review of the Tribunal’s decision.  No application for relief was made in respect of his spouse who had been named in his visa application.

2. On 11 September 2017, the Minister filed a response opposing the making of orders sought in the application on the following bases; namely, that the application: (1) did not provide a legal ground of review; (2) sought to invite the Court to undertake a review of the merits of the Tribunal’s decision; (3) did not establish any jurisdictional error in the Tribunal’s decision; and (4) did not raise an arguable case for relief.

3. The application was set down for Directions Hearing on 18 April 2018.  As there was no appearance on that date by the applicant, the application was dismissed with costs.

4. On 11 May 2018, the applicant filed an application in a case seeking reinstatement of the application.

5. The application for reinstatement was supported by an affidavit of the applicant affirmed on 11 May 2018 stating the reasons why the applicant did not attend the Directions Hearing on 18 April 2018. The applicant deposed that his application for judicial review and accompanying affidavit had been prepared by a firm of solicitors, and that he did not check whether the contacts listed in the application were correct.  The applicant stated that he did not subsequently receive any correspondence from the court regarding a date for directions.

6. On 15 May 2018, orders were made by consent that the application in a case filed on 11 May 2018 be allowed thereby reinstating the application.  A further order was made that the matter be listed for a Show Cause Hearing on 9 November 2018.  Though given an opportunity to file submissions in relation to his application, the applicant did not do so.

7. Before me the applicant said that he had asked a lawyer to take his case but that the lawyer had declined to do so.  Having regard to the history of the matter including that a consent order had been made in May 2018, I declined to further adjourn the hearing.

Applicable principles

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).

2. Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.

3. The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6, [10] (Smith J).

4. As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118.

5. Caution must be exercised when considering whether to grant summary judgment.  Such caution is equally appropriate upon the determination of a show cause hearing.

6. The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim.  Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding.  So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.

7. In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:

   a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;

   b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;

   c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;

   d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;

   see at [46]-[49].  The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).

8. In SZUTB, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352,

   
   

   [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.”  That is, the residual discretion remains to be considered.

9. I apply those principles in determining this show cause application.

10. The ground of review as advanced by the applicant read as follows (verbatim): 

    My intention of applying for 573 visa is only to learn knowledge and skills to improve my capacity.  Now I have been an accountant in my company, although many courses have been cancelled, I still passed many courses and obtain qualification.

    So I think it is a misunderstanding about the refusal of my visa application.

11. Although the applicant was provided a Mandarin interpreter for the purposes of the hearing, he was quite able to proceed with the application without that assistance.  Before me, the applicant agreed that he had sought and obtained an adjournment from the Tribunal and then contacted the Tribunal to inform it that he would not join the hearing.

12. The applicant submitted that he believed in his heart that he was a genuine student.  PRISM’s records confirm the contrary conclusion.   The Tribunal was amply justified in the conclusion it reached.

Conclusion

1. As the applicant has not satisfied the court that an arguable case for relief is demonstrated respecting the existence of jurisdictional error, I cannot conclude that the applicant’s ground of review would have a reasonable chance of success. 

2. Nor am I persuaded that discretionary considerations militate in favour of a conclusion that the show cause application should otherwise be adjourned for a final hearing: r 44.12(1)(b).

3. It follows that the application should be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Judge A Kelly

Date: 21 November 2018