Su & Ors v Minister for Immigration & Anor

[2007] FMCA 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SU & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 318

MIGRATION – MRT decision – failure to apply for on‑shore visa before expiry of last substantive visa – whether because of factors beyond the applicant’s control – reliance on agent – visa expiry date shown in passport – open to Tribunal to find that applicant could have informed agent – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.359A(1), 360, 474, 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), Sch.2 item 457.211(d), Sch.3 criterion 3004

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Secretary, Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 655

First Applicant: PIN LIANG SU

Second Applicant: XIN QIONG SU

Third Applicant: WAN TING SU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG3253 of 2005

Judgment of: Smith FM

Hearing date: 5 March 2007

Delivered at: Sydney

Delivered on: 5 March 2007

REPRESENTATION

Counsel for the Applicant: First applicant in person

Counsel for the First Respondent: Mr G T Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

2. The first and second applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3253 of 2005

PIN LIANG SU

First Applicant

XIN QIONG SU

Second Applicant

WAN TING SU

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 8 November 2005 which seeks orders by way of judicial review in relation to a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down on 12 October 2005.  The Tribunal affirmed a decision of a delegate made on 7 April 2003 that the first‑named applicant did not qualify for the grant of a temporary business entry (class UC) subclass 457 visa, and that the second and third applicants, his wife and daughter, did not qualify as secondary applicants.  I shall refer to the first applicant as “the applicant”. 

2. The delay between the delegate’s decision and the present decision of the Tribunal is accounted for by an earlier decision of the Tribunal which was set aside by Hely J on appeal from a decision of this Court (see Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 655). I shall refer to his Honour’s reasons below.

3. The Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) has been repealed, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and the Acts Interpretation Act 1901 (Cth), s.8). The Court’s powers to set aside the Tribunal decision and send the matter back to the Tribunal are limited by s.474, so that I must first satisfy myself that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to make findings of fact as to the applicant’s qualification for the visa he seeks. I do not have power myself to decide whether the applicant should be granted this visa or any other permission to stay in Australia.

4. The history of the matter is as follows.  The applicant is a national of the People’s Republic of China.  While he was in China, on 11 December 2000 he was granted a subclass 457 visa on the basis of proposed employment as a cook in a restaurant in Australia.  The visa which was stamped in his passport at that time was in English, and expressly referred to the applicant being permitted to enter Australia and “to remain in Australia until 11 Dec 02” as a “class UC, temporary resident, subclass 457”.  The passports of the applicant’s wife and son were similarly stamped with visas showing the same date of termination.  The applicant used his visa to enter Australia on 28 December 2000, and his wife and son followed him in October 2001. 

5. During the currency of the visa, the applicant with the assistance of his employer, who he referred to as his uncle, employed an agent to obtain a further visa based on his continuing employment by this employer or another employer.  Unfortunately, the agent failed to lodge any application before the 457 visa granted in China expired on 11 December 2002.  On 23 December 2002, an application for an Employer Nomination Scheme (Residence) Class BW visa was lodged, and the applicant was given a bridging visa.  A substantive visa was refused on 4 March 2003, as a result of the sponsorship being withdrawn.  Before it was refused, on 20 February 2003 the applicant applied for the 457 visa which was refused in the decisions under review in the present matter. 

6. The applicant’s evidence concerning these events was summarised by the Tribunal: 

   26.The visa applicant provided to the Tribunal a submission dated 2 August 2005.  The visa applicant’s submission may be concisely and relevantly summarised as follows: 

   •The visa applicant had a migration agent.  In about July 2002 he went to see the agent to discuss seeking a further Subclass 457 visa.  The agent advised the visa applicant that the visa applicant could apply for a permanent visa rather than another Subclass 457 visa. 

   •The agent asked when the visa applicant’s visa ceased and the visa applicant indicated: ‘I told him it would be 28/12/02, which was two years after I arrived in Australia because that was how I understand the way to count two years’.  The agent said he would check from his file records. 

   •The visa applicant agreed to lodge an application for a permanent visa in the employer nomination category. 

   •In early October 2002 the visa applicant gave the agent all of the documents needed for the application.  The visa applicant asked the agent when his application should be lodged, and the agent stated it could be lodged in November 2002 as the sponsoring business had just had another successful sponsorship and it was best if there was a time gap between the 2 matters. 

   •The agent asked the visa applicant to pay his fees on 23 December 2002 and ‘later I knew that he had lodged my application on that day’. 

   •From early October 2002 to 23 December 2002 the visa applicant visited the agent once a week ‘to push him to lodge my application.  But he always told to give him a bit more time’. 

   •About 1 week before the application was lodged [on 23 December 2002], the agent asked for the visa applicant’s passport.  The agent then told the visa applicant that the visa applicant’s visa had already ceased.  ‘I then blamed him for not lodging my application earlier.  He said that I had told him it was 28/12/02.  I then said that even if it was 28/12/02, he should have lodged it earlier than then’.  About a week later on 23 December 2002 the agent went to see the visa applicant and stated that he could still lodge the application without any difficulties. 

   •The agent later lodged an application for a Subclass 457 visa on 19 February 2003. 

   •The visa applicant considers he was not the holder of a substantive visa because of factors beyond his control.  He did not have much education.  He could not speak English.  He knew nothing about migration law.  For these reasons, and also influenced by his uncle, he strongly relied on his agent. 

7. The difficulty faced by the applicant as a result of not applying for a new substantive visa prior to the expiry of the visa granted in China was identified in the decision of the delegate and the present Tribunal when rejecting the application for the 457 visa lodged on 20 February 2003. This arose from a time‑of‑application qualification for that visa provided in Sch.2 item 457.211(d) of the Migration Regulations 1994 (Cth) (“the Regulations”), which applied to persons who did not hold a substantive visa at time of application:

   457.211If the applicant is in Australia:  … 

   (d)     the applicant is not the holder of a substantive visa and: 

   (i)the last substantive visa held by the applicant was of a kind specified in paragraph (a), (c) or (ca); and

   (ii)the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005; … 

8. Both the delegate and the Tribunal addressed the need for the applicant to show that he satisfied Sch.3 criteria 3003, 3004 and 3005.  It is unnecessary to set out the terms of those three items.  The pertinent item which the applicant was required to satisfy appeared in criterion 3004, which relevantly provided: 

   3004If the applicant: 

   (a)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; …

   the Minister is satisfied that: 

   (c)     the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

   (d)     there are compelling reasons for granting the visa; and … 

9. In combined effect, the criterion in item 457.211(d) required the applicant to show the prescribed extenuating reasons for the delay in applying for a new substantive visa until after his previous substantive visa had expired, one of the required extenuating circumstances being that he “is not the holder of a substantive visa because of factors beyond the applicant’s control”. 

10. In the present case, both the delegate and the Tribunal were not satisfied that the applicant was not the holder of a substantive visa before ceasing to hold his previous substantive visa “because of factors beyond the applicant’s control”.  They refused the visa on that ground, and did not find it necessary to consider the issue of “compelling reasons for granting the visa” nor the other requirements of criterion 3004. 

11. The previous Tribunal’s decision on this point was set aside by Hely J because it “mechanically applied” a direction in a Departmental guideline to the applicant’s claims “rather than the statutory test” (see [14] of his judgment).  Hely J pointed to evidence which was before the previous Tribunal, and which was again presented to the present Tribunal, in which the applicant claimed that the reason why he had not applied for a new substantive visa before the expiry of his previous substantive visa was omissions on the part of his agent, in a situation where he had relied on his agent to submit an application within whatever time was required.  His Honour said: 

    17I respectfully disagree with the conclusion which his Honour reached.  In my view, the MRT proceeded upon the basis that the resolution of the issue before it was to be found in and by the application of par 6.5.27 of MSI 374 to the appellant’s claims.  Early in its statement of decision and reasons the MRT implied it should have regard to and apply the provisions of the MSI unless there are cogent reasons for departing from it.  Paragraph 21 of its statement of decision and reasons conveys that the MRT reached its decision because the appellant’s claim was grounded on bad or no advice by his adviser.  The MRT treats that as sufficient to dispose of the case by reference to agency principles (why otherwise quote par 6.5.26 of MSI 374?) rendering unnecessary a consideration of the more complex factual question of whether bad or no advice in all the circumstances might support a conclusion that factors beyond the appellant’s control were the cause of the problem with which he was confronted. 

    18There was material before the MRT which raised as an issue whether the appellant relied upon his migration agent to advise him of the cut‑off date by which any further visa application was required to be made.  This material was both circumstantial, and direct in terms of the assertion that the appellant had ‘handed everything’ to his migration agent.  Whether that material was sufficient to satisfy the MRT of the fact of reliance on advice from the agent, and if so, whether that satisfied criterion 3004(c) were matters for the MRT to determine: cf Susaki v Minister for Immigration & Multicultural Affairs [1999] FCA 196. The MRT did not address those questions because it wrongly regarded par 6.5.27 of MSI 374 as dictating the outcome of the visa application.

12. I note that in his judgment Hely J did not find it necessary to enter into an interpretation of the test of “is not the holder of a substantive visa because of factors beyond the applicant’s control”.  His Honour in [18] said there were factual issues for the Tribunal, as to whether the delay in filing a substantive visa application was caused by reliance on advice from the agent.  His Honour also left it to the Tribunal to decide the questions of fact and law on whether, if there was such reliance, this satisfied the test in criterion 3004(c) of “factors beyond the applicant’s control”.  His Honour indicated that these were “matters for the MRT to determine”. 

13. The present Tribunal has now attempted to determine those matters without entering into a discussion as to the legal effect of the test.  Its reasoning was: 

    29.The visa applicant indicated that at the time he relied on his agent for all advice concerning particular migration matters. 

    30.The Tribunal considers that it was reasonable for the visa applicant to rely on his agent to advise him about the requirements of a particular visa application and which visa application was appropriate to apply for, particularly in light of the complexity of migration law and the visa applicant’s lack of education and lack of English.  Indeed, on the agent’s advice, the visa applicant gave instructions to the agent to lodge an application for a Class BW visa rather than a Subclass 457 visa. 

    31.The visa applicant also indicated that he considered the agent should have been aware that the visa applicant’s visa was not valid for 2 years from arrival and should have checked when it was due to cease.  However, it is also reasonable to consider that the visa applicant had a personal obligation to acquaint himself with the requirements of his Subclass 457 visa and the date when his visa was to cease.  A prudent person would have checked the visa and the visa conditions before entering Australia.  A copy of his passport shows a Subclass 457 visa with the words “Holder(s) permitted to remain in Australia until 11 December 2002”. If the visa applicant did not read or understand that clear statement, it is reasonable to consider that he was able to ask the Department or his agent to explain it. 

    32.At the hearing the visa applicant stated that he did not understand the visa.  He did not approach the Department about his visa and only asked his uncle, who stated he could stay for 2 years.  The visa applicant does not claim that the Department gave him wrong or confusing advice about when his visa ceased. 

    33.The visa applicant indicated that in a consultation in July 2002 he advised his agent that his Subclass 457 visa ceased on 28 December 2002 which was 2 years after his arrival in Australia on 28 December 2000.  The visa applicant indicated that he mentioned that particular date.  The visa applicant’s instructions to the agent were not correct because the visa applicant’s visa was to cease on 11 December 2002.  It appears reasonable to consider that the agent proceeded to prepare the application for the permanent Class BW visa on the understanding that the visa applicant’s visa was to cease on 28 December 2002, as this had been the visa applicant’s advice to the agent.  About 1 week before 28 December 2002 (ie around 16 December 2002) the agent asked for the visa applicant’s passport and then discovered that the visa applicant’s Subclass 457 visa had in fact ceased a few days before, on 11 December 2002. 

    34.The visa applicant argued that the application for the Class BW visa could and should have been lodged earlier, irrespective of the visa applicant’s incorrect oral advice to the agent, and that the agent should have checked earlier anyway.  At the hearing he stated it was up to the agent to know [about his visa validity] and to check.  Nonetheless, the Tribunal is not satisfied that the delay in lodgement of the application despite the visa applicant’s requests that it be lodged earlier, and/or the agent’s delay in checking the visa applicant’s visa, constitutes a factor beyond the applicant’s control.  The visa applicant should reasonably have been aware of the correct cessation date for his visa.  The visa applicant assumed that his visa was for 2 years from date of arrival, and gave incorrect oral advice to his agent that his visa ceased on 28 December 2002.  The agent did check the visa applicant’s passport before the incorrect date advised by the visa applicant and then discovered that the visa had ceased a few days before. 

    35.After 11 December 2002 the visa applicant ceased to hold any visa until he was granted a Bridging C visa on 23 December 2002. 

    36.After considering the legislation and evidence cumulatively, the Tribunal is not satisfied that the visa applicant ceased to be the holder of a substantive visa after 11 December 2002 because of factors beyond his control. 

    … 

    41.The visa applicant ceased to hold a substantive visa on 11 December 2002.  Schedule 3 criterion 3004 therefore requires that the Tribunal must be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control.  The visa applicant indicated that he mistakenly believed that his visa was valid until 28 December 2002, which was 2 years after his entry to Australia.  In fact, the visa was valid for 2 years after the visa was granted.  The visa applicant’s visa clearly showed the actual date the visa ceased.  It is reasonable to consider that the visa applicant was able to seek an accurate and authoritative translation of the visa label.  The visa applicant stated at the hearing that his uncle told him he could stay for 2 years.  However, the visa applicant did not seek advice from the Department when the visa was placed in his passport or at any other time.  The visa applicant indicated that he handed everything to his agent.  However, the visa applicant did not show his passport to his agent until after his visa ceased. 

    42.The visa applicant also told the agent that his visa was current to 28 December 2002 which was 2 years after he arrived, and he mentioned that particular date.  The agent could have checked the exact date but relied on the visa applicant’s oral advice, and only checked when he asked for the visa applicant’s passport about 16 December 2002 (ie 1 week before the application for a BW visa was lodged).  This was before 28 December 2002. 

    43.After considering the legislation and evidence cumulatively, the Tribunal is not satisfied that the visa applicant was not the holder of a substantive visa because of factors beyond his control.  The Tribunal finds that the visa applicant does not satisfy Schedule 3 criterion 3004.  The Tribunal has therefore not gone on to consider the remaining requirements of criterion 3004. 

    (emphasis in original) 

14. The applicants were represented at a first court date by a barrister on direct instructions, but for most of the proceeding in this Court they have been unrepresented.  Understandably, they have not been able to present a submission addressing the legal effect of criterion 3004(c). 

15. Counsel for the Minister has submitted that no misapprehension as to the effect of that criterion is shown in the reasoning of the Tribunal.  He has not cited any authority which has explored its effect, and I assume there is none. 

1. I am aware of some authorities which have considered tests of a relevant event occurring “beyond the control” of a person.  The judgment of Mansfield J in the Full Court in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151 at 159‑162, contains a discussion of cases arising under trademarks and social security legislation. It would be dangerous to transpose directly what was said in those judgments into the present context, due to significant differences in the legislative context. However, in my opinion, two useful general points emerge.

2. 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. 

3. Secretary, Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426 which is discussed by Mansfield J in Secara (supra), points to the need to examine the particular situation of the person, and indicates that this may include a consideration of matters personal to their own circumstances.  It also makes the point that it is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring. 

4. Examining the present reasoning of the Tribunal, I consider that it has probably approached the factual situation before it in a correct manner, and I am not persuaded that it has applied a misunderstanding of the legal effect of the statutory test. 

5. The Tribunal investigated the reasons for the delay in the applicant’s substantive visa applications being made until after the expiry of his 457 visa.  Although it accepted the applicant’s claim that he relied upon his agent to make a visa application within time, it appropriately examined the factual context of that reliance.  It identified elements which were within the applicant’s control in relation to properly informing his agent, and by which he could have avoided the mistake into which he and his agent unwittingly stumbled in December 2002.  These were the availability to the applicant of information in his passport clearly showing the actual date of the visa expiry, and the availability to him of measures to properly inform himself and his agent about that information, including by showing the passport to the agent or to other obvious sources of advice. 

6. In my opinion, it was open to the Tribunal to point to these elements as giving rise to its inability to be satisfied that the applicant was not the holder of a substantive visa because of factors beyond his control.  I am not persuaded that the Tribunal made any jurisdictional error when arriving at that conclusion. 

7. The applicant’s application to the Court contains one ground: 

   The grounds of the application are that the Second Respondent exceeded jurisdiction in making the decision to refuse to grant a visa to the Applicants. 

   Particulars 

   In arriving at its finding that the First‑named Applicant did not meet the requirements of Schedule 3, criterion 3004(c) of the Migration Regulations, the Second Respondent failed to consider the First‑named Applicant’s claim that he had relied on his migration agent’s undertaking to check his file to determine when his visa would cease and when he would therefore need to make a further application for a visa. 

8. In my opinion, this ground fails in its premise that the Tribunal did not consider the applicant’s claim that he had relied on his migration agent’s undertaking to check his file to determine a date when the visa would cease.  The Tribunal expressly referred to the applicant’s evidence to that effect and, in my opinion, a fair reading of its reasoning indicates that it had considered whether that fact sufficiently established that the applicant did not obtain a substantive visa in time because of factors beyond his control.  As I have indicated, the Tribunal has concluded that this reliance was insufficient, because it was within the applicant’s control to ensure that his agent would be properly informed, including by the simple step of being shown his passport.  I consider that this reasoning was open to the Tribunal. 

9. The applicant has filed a written submission for today’s hearing.  In paragraphs 1 through 8 there are arguments which, in my opinion, do not identify jurisdictional error by the Tribunal but argue with the merits of its reasoning only.  Paragraphs 9, 10 and 11 raise contentions which might be capable of amounting to jurisdictional error: 

   9.What is important is that if this was the reason the Tribunal affirmed the primary decision, it never put it to me for comments and I feel that my right has been deprived. 

   10.I remember my adviser requested the Tribunal during the hearing that if the Tribunal found anything negative to me, it should give me a chance for explanation and this was accepted by the Tribunal member at the hearing. 

   11.The conclusion of this Tribunal was that it was my fault not to provide correct visa expiry date to my agent to cause my application lodged on a date after my first visa expired, which was different from the conclusion of the last Tribunal, which held that it was my agent’s fault not to lodge my application before my first visa expired, however my agent’s fault was also my fault. 

10. The complaint that the Tribunal’s opinion that the applicant was able to produce the situation where his agent was properly informed was “never put it to me for comments” appears to raise issues going to s.359A(1) and possibly s.360 of the Migration Act. The Tribunal’s conclusion that the proper informing of the applicant’s agent was a matter within the applicant’s control flowed from information in the applicant’s passport, being the date of expiry shown in the visa itself. However, that piece of information was the subject of a s.359A(1) invitation for comment in a letter dated 7 July 2005. I think this sufficiently, albeit by implication, drew the applicant’s attention to the relevance of that piece of information. The applicant subsequently filed a detailed submission in which he recounted the events which were ultimately summarised by the Tribunal in the extract above.

11. As to what occurred at the hearing attended by the applicant on 8 September 2005, it is not possible for me to make findings in the absence of a transcript.  I am not satisfied that the possible significance of the visa expiry date shown in the applicant’s passport was not discussed with the applicant at the hearing, nor am I satisfied that anything was said by the Tribunal which suggested that some further procedural step would be followed by the Tribunal before it arrived at an adverse decision, as is alleged in para.10 (cf. Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1).

12. The contention in para.11 of the applicant’s written submission, contrasting the reasoning of the decision of the Tribunal which was set aside with the reasoning of the present Tribunal, does not, in my opinion, raise or identify jurisdictional error.  Hely J identified why the reasoning of the previous Tribunal failed to address the statutory test.  The present Tribunal has, in my opinion, attempted to address that test, and has not made the same error as the previous Tribunal.  As I have explained above, I am not satisfied that its reasoning demonstrates any misapprehension of the relevant test.  The test did not require the characterisation of a person or persons who were “at fault”, but required an investigation of the causes of the applicant not being the holder of the substantive visa at the time of application, to consider how it might have been avoided.  I consider the Tribunal has undertaken that investigation without applying irrelevant considerations in relation to blame or fault. 

13. Considering all the submissions made by the applicant in his written submissions and what he said to me today, I have not been persuaded that this Tribunal’s decision is affected by jurisdictional error.  I must therefore dismiss the application. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  16 March 2007