Ruan v Minister for Immigration
[2014] FCCA 1866
•22 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUAN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1866 |
| Catchwords: MIGRATION – MRT decision – failure to apply for temporary business visa prior to expiry of substantive visa – whether visa expired for reasons beyond the control of the applicant – applicant claims subject to financial stress and depression at time visa expired – visa expiry date readily ascertainable – no jurisdictional error disclosed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.474; 476; 477 Migration Regulations 1994 |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Collector of Customs v Pozzolanic Enterprise Pty Ltd and Pressure Tankers Pty Ltd [1993] 43 FCR 280 Department of Employment v Ferguson (1997) 76 FCR 426 Su & Ors v Minister for Immigration & Citizenship [2007] FMCA 318 |
| Applicant: | YIBIN RUAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 100 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 4 August 2014 |
| Date of Last Submission: | 4 August 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 22 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Prince |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicant pay the costs of the First Respondent fixed at SIX THOUSAND AND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).
The application filed on 28 March 2014 be dismissed pursuant to Rule 16.01 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 100 of 2014
| YIBIN RUAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
This is an application to review a decision of the Migration Review Tribunal “the MRT” made on 21 February 2014, which affirmed an earlier decision of a delegate of the Minister for Immigration & Citizenship[1] not to grant the applicant a temporary business entry (Class UC) subclass 457 Visa “the visa”.
[1] As the Department of Immigration & Border Protection was then known.
Mr Yibin Ruan “the applicant” is a citizen of the People’s Republic of China. He applied for the visa in question on 31 May 2012. At the time of the application, he was present in Australia.
There is no controversy, arising between the applicant and the Minister for Immigration & Border Protection “the Minister” that Mr Ruan has previously legally entered Australia, as a consequence of a visa issued to him, by the Minister, pursuant to the provisions of the Migration Act 1958 “the Act” but which had expired prior to 31 May 2012.
The power to grant the relevant visa is conferred on the Minister pursuant to the provisions of section 65 of the Act. The Minister must be satisfied that each applicant for a visa has satisfied the relevant criteria prescribed by the Act itself, as well as any further criteria specified by any subsidiary regulation. So far as matters arising in this matter are concerned, the Migration Regulations 1994 “the Regulations” are applicable.
In this case, the relevant regulation, relating to the visa applied for by Mr Ruan, is set out in Part 457 of Schedule 2 to the Regulations. The criteria specified therein are applicable to any visa applicant, who is physically present, in Australia, at the time of the application. Each such applicant must satisfy one of the criteria as specified in criteria 3003, 3004 and 3005 of schedule 2 of the Regulations, if he or she does not hold a substantive visa at the time of application.
It is not in dispute that the applicant did not hold a substantive visa at the time of his application for the visa in question. The expression substantive visa is defined in section 5 of the Act. In effect, it means a visa issued pursuant to the provision of the Migration Act other than a bridging visa; criminal justice visa; or enforcement visa.
The applicant concedes that his earlier visa had expired at the time of his application for the visa. He has provided various reasons as to why this was so. In the main, these relate to financial difficulties arising from a business which he had purchased. Accordingly, it was incumbent upon the applicant to satisfy one of the schedule 2 criteria.
Criterion 3003 is not relevant in this case, as it applies to illegal entrants. Criterion 3005 is also not applicable to the applicant as it relates to persons to whom a visa or entry permit has not previously been granted. Accordingly, this case turns on the application of criterion 3004 to the applicant’s circumstances.
The applicable criterion 3004 consideration relevant to the current case is that the Minister must be satisfied that the relevant applicant was not the holder of a substantive visa because of factors beyond the applicant’s control. The current proceedings turn on this expression and its application, by the MRT, to the circumstances of the applicant as specified by him.
The grounds of the application
In his application, filed on 28 March 2014, the applicant seeks to quash the decision of the MRT made on 21 February 2014. In addition, he seeks an order that he granted a temporary business entry visa. The ground in support of his application is as follows:
“Criterion 3004 which implies factors beyond my control. Financial hardship and depression as a result of it are solid reasons to satisfy this criterion.”
The applicant has enlarged upon this ground in an affidavit which he filed in support of his application. He deposed that he had promptly informed the Department, when he became aware that he had overstayed on his earlier visa. In this context, he pointed to financial hardship and resultant depression as being factors which had resulted in him not applying for the visa at the appropriate time.
In addition, he indicated that his current employer was reliant upon him and, if he was granted a further visa, it would enable him to clean up the financial mess which had arisen during the period of his residence in Australia.
The Legal Framework to the Court’s decision
The decision not to grant the applicant the visa in question is a privative clause decision as defined by section 474 of the Act. This means that the decision is deemed to be final and conclusive. As such, it is not to be called into challenge in any court and is not subject to any prerogative writ.
However, the High Court of Australia, in Plaintiff 157/2002 v Commonwealth of Australia[2] has held that the provisions of section 474 do not prevent judicial review of decisions of the MRT which are affected by jurisdictional error or have been made in bad faith.
[2] Plaintiff 157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Jurisdictional error is a difficult concept to explain. It does not entail a merits review or a re-hearing of the evidence arising in the decision concerned. It is a concept which goes to the essential fairness of the hearing process itself, not the fairness of the decision concerned.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[3]
[3] See Craig v South Australia (1995) 184 CLR 163
The hearing before me is not a merits review. Rather it is a judicial review. I must be careful not to confuse the two. It is the function of this Court to determine whether the decision of the Tribunal was within its legal powers.
It is not the function to examine the merits of the decision.[4] Accordingly this hearing is not a rehearing of all the available evidence. Rather the hearing is directed towards the legality of the Tribunal’s decision.
[4] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution”.
Accordingly, the Court has jurisdiction to entertain Mr Ruan’s application, but only so far as it discloses a jurisdictional error. As was said succinctly by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tanker Pty Ltd,[5] in respect of the task of judicial review:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[5] Collector of Customs v Pozzolanic Enterprise Pty Ltd and Pressure Tankers Pty Ltd [1993] 43 FCR 280
Pursuant to section 477 of the Act, any application to this court, in relation to a decision, made pursuant to the provisions of the Migration Act, must be made within 35 days of the date of that decision. In the case of the current matter, the application was filed three days after the time prescribed.
Pursuant to section 477(2) of the Act, the court has a discretion to extend the applicable time frame, if it considers that it is necessary to do so “in the interests of the administration of justice”.
In order for an applicant to avail himself of such an extension, it is necessary for a written request to be made as to why it is in the interests of the administration of justice to make an order extending time.
The applicant has not formally sought an extension of time, in writing, as he has not ticked the relevant box on the application form nor completed any details under the heading, which follows Grounds of application for extension of time.
The Minister neither consents to nor opposes the applicant being granted an extension of time in order to pursue his application. In these circumstances, particularly the shortness of time by which the matter is out of time, I propose to grant the extension of time required.
The hearing before the MRT
The applicant was invited to appear before the MRT to give evidence at the hearing scheduled for 20 February 2013. The applicant availed himself of this opportunity, as did his partner, Ms Zhao. The MRT also had available to it written representations, previously made to the Department, in respect of the applicant’s situation and how he had become aware that his earlier visa had expired.
In his first submission, the applicant stated that he had purchased a business, which had proven to be financially unviable. As a consequence he had incurred a significant degree of personal debt, amounting to $50,000.00, which he wished to repay.
In a later submission, made on his behalf by his migration agent, the applicant indicated that he had not been aware his earlier visa had expired because he was confused by the fact that his earlier student visas had normally expired in either March or August/September, which had not been the case with his subclass 485 visa.
It was also reiterated that the applicant had personally lost a large sum of money, which was attributable to the misleading and incorrect information provided to him by the vendor of the business, which he had purchased.
These claims were repeated before the MRT. In addition, the applicant indicated that his various financial worries, leading to him becoming depressed, had caused his mind not to be focussed on his visa situation. In these circumstances, it was asserted that his visa had expired for reasons beyond his control, namely his acute financial situation.
In answer to a question from the Tribunal, as to whether he had sought medical assistance in respect of his condition, the applicant indicated that he had been unable to afford such assistance.
The applicant confirmed that he had become aware that his visa had expired when his partner Ms Zhao had inspected his passport. Ms Zhao also confirmed that the applicant had experienced distress arising from his financial difficulties and she had been the means by which Mr Ruan had discovered that his visa had expired.
The Tribunal accepted the truthfulness of the applicant’s evidence regarding his parlous financial situation and the distress this would have occasioned him. It was also accepted that these circumstances were likely to have caused the applicant to be distracted.
However, the MRT did not accept that these were circumstances which were beyond the applicant’s control such as to provide exculpation in respect of why he had not taken the necessary steps to ensure that he held a substantive visa at the relevant time required.
In this context the MRT found as follows:
“I note that the circumstances in which the expiry of the applicant’s substantive visa were discovered demonstrate that the duration of his visa was readily ascertainable. I also consider that the applicant’s prompt action in approaching the Department demonstrates that it was within his capacity at all relevant times to maintain his lawful status in Australia.” [6]
[6] See Case Book at page 38
Essentially, the MRT found that the applicant was well aware that he had a visa and it had an expiry date, therefore it fell to him to be vigilant and remain conscious of the date on which it was due to expire. Accordingly, the fact that he had allowed the visa to expire, whether through inadvertence caused by stress or otherwise, was not a matter beyond his control. Rather, it was a matter within Mr Ruan’s control, as was demonstrated by the fact that Ms Zhao had been able to readily ascertain the fact of its expiration by inspecting his passport, which axiomatically remained within his control, at the relevant time.
Discussion
The Minister submits that the question of whether the applicant’s financial hardship and resulting depression amounts to circumstances beyond his control is matter of fact solely for the MRT to determine. On the other hand, by necessary implication, the applicant asserts that the MRT has fallen into some species of jurisdictional error by failing to consider in a realistic or practical sense the circumstances which led to the expiration of the visa in question.
Mansfield J in Department of Employment v Ferguson[7] considered the meaning of the expression in a social security context, particularly a decision to cancel an allowance in circumstances where the applicant concerned had not complied with a condition relating to the grant of that allowance and whether this was beyond the applicant’s control.
[7] Department of Employment v Ferguson (1997) 76 FCR 426 at 438
Mansfield J said as follows:
“…the focus of the expression upon occurrences which the person concerned could not realistically prevent. It recognises that it is ‘the operations of nature and the activities of strangers’ that are the sorts of factors which it is designed to accommodate.”
It was held that, in appropriate circumstances, the expression could accommodate internal factors going to the state of mind or physical condition of the person concerned occasioned by illness and certainly could include external circumstances but would not “permit consideration of matters which are entirely internal, for example, forgetting.”
Accordingly, it was held in Ferguson that whether a matter was beyond someone’s control was an issue of fact. The question to be asked being whether the matter arising could be characterised as being of a kind about which the person concerned could have personally done something to avoid it occurring. If so, it was a matter within the control of the person concerned, if not, it was not within his or her control.
His Honour provided both what he characterised as an internal example of a circumstance beyond someone’s control – illness – and an external example – a transport strike. This was in the context of a failure to attend a case management interview for social security purposes. However, I think for obvious reasons, the context of both such exemplars is crucial and must be a matter of fact for the administrative body involved to determine.
In Su & Ors v Minister for Immigration & Citizenship[8] Smith FM also had cause to consider the implication of the expression beyond the control of a person in a migration law context. His Honour cautioned about the dangers arising from transposing what was said in one particular legal context to another. I acknowledge those implicit perils.
[8] Su & Ors v Minister for Immigration & Citizenship [2007] FMCA 318
However, after referring to a number of authorities, including Ferguson and other cases relating to trademark extensions and the like, Smith FM said as follows in Su:
“The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person. A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.”
Smith FM went on to point out that it would usually be necessary to examine the particular situation of the person claiming that any matter was beyond his or her control, which might include a consideration of matters personal to their own circumstances. However His Honour considered that it was difficult to regard something as being beyond the control of a person if the relevant event was caused by forgetfulness or misunderstanding on his or her part or where it was within the capacity of the person concerned to appreciate what was needed to be done to avoid the event occurring.
Conclusions
In my view, in the current matter, the MRT correctly approached the factual situation before it, regarding to expiration of the applicant’s substantive visa. It concluded that it was within the capacity of Mr Ruan to appreciate what he needed to do to avoid his visa lapsing. Accordingly, it was regarded, by the Tribunal, as a matter of forgetfulness of lack of oversight, on Mr Ruan’s part, rather than a matter beyond his control.
In my view, such a finding was clearly open to the MRT on the facts available to it, particularly that the relevant information was readily ascertainable by Mr Ruan, through an inspection of his passport. In addition, Mr Ruan, as the visa holder in question was clearly aware that he held a visa and it would expire at some date in the future. As such, it was found, by the MRT, to be within his power to ascertain when that would be, even if he himself had forgotten the exact date in the period since the granting of the visa.
Essentially the MRT accepted that it was axiomatic that Mr Ruan knew what needed to be done to rectify his visa situation because he did it. His failure to do so earlier being explicable only by his forgetfulness of the date on which it had expired.
The MRT had regard to the personal circumstances of the applicant, including the likely distress occasioned to him by the failure of the business purchased by him. In this circumstance, it noted that Mr Ruan had not sought medical assistance and, as such, there was no external evidence of this internal factor germane to his position.
As such, it was a factual matter for the Tribunal to determine whether the applicant’s depression in a loose sense and his other financial misfortunes were factors outside the control of the applicant, which directly led to his failure to attend to his visa requirements in time. It concluded that they were not. I do not have authority to conduct my own hearing into this matter and reach my own conclusions in respect of it, if I am satisfied, as I am, that the Tribunal correctly considered the legal issues germane to it.
The responsibility of the MRT was to consider the applicant’s personal circumstances to determine whether the matter of the visa expiration was beyond his control. This was a matter of fact. The decision in question indicates that the Tribunal considered all the facts asserted by the applicant and reached a conclusion in respect of them. I can see no error in how it has applied the statutory considerations in question, in reaching the conclusion that the fact of the applicant’s visa having expired was not a matter beyond his control.
As I am not persuaded that the Tribunal’s decision is affected by jurisdictional error, I must dismiss the application. As costs are sought, I will order that the applicant pay the first respondent’s costs fixed in the sum of $6,646.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 22 August 2014
CORRECTIONS
Text has been removed from paragraph 23.
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