Tan v Minister for Immigration

[2017] FCCA 1983

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1983

Catchwords:
MIGRATION – Application for an order to show cause – consideration of factors – substantive application seeking review of former Migration Review Tribunal decision – whether there are reasonable prospects of success – no reasonable prospects of success – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Migration Act 1958 (Cth), ss.363A, 476, 499

Migration Regulations 1994 (Cth), sch.2, cl.573.223

Cases cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219

Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241

Applicant: SWEE TEIK TAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1155 of 2015

Judgment of: Judge Nicholls

Hearing date: 17 July 2017

Date of Last Submission: 17 July 2017

Delivered at: Sydney

Delivered on: 17 July 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

ORDERS

1. The application made on 27 April 2015 and amended on 3 July 2017 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1155 of 2015

SWEE TEIK TAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 27 April 2015 and amended on 3 July 2017 seeking review of the decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which on 27 March 2015, affirmed a decision of the Minister’s delegate (“the delegate”) not to grant the applicant a student visa.

2. In evidence before the Court today is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the applicant’s affidavit of 27 April 2015 which accompanied the application to the Court. 

3. In effect, the complaint made in that affidavit is mirrored, and expanded upon to some extent, by the grounds of the amended application before the Court.  The Minister filed written submissions in this matter on 7 July 2017. I note the relevant background to the case is set out at [3] – [7] of those submissions. Having regard to the evidence before the Court, I am satisfied that the Minister’s summary of the background is a fair summary.

4. For reasons of convenience today, I adopt as contextual background, those parts of the Minister’s written submissions as follows

   
   

   ([3] – [7] of the Minister’s written submissions):

   “[3] The applicant is a 51 year old national of Malaysia. He arrived in Australia on 6 July 2010 and was granted a TU 572 visa on 7 October 2010, which expired on 26 December 2012. He was granted another visa, which was expired on 17 September 2014.

   [4] On 11 September 2014, the applicant applied for the visa. The Department wrote to the applicant on 23 September 2014 inviting him to comment on, inter alia, 3 significant gaps in his study, being 19 August 2011 to 6 July 2012; 31 July 2013 to 11 November 2013, and 11 May 2014 to 17 September 2014: RD 15. The Department invited the applicant to comment, inter alia, on his failure to complete the majority of his courses in Australia.

   [5] Since arriving in Australia, the applicant’s study history (set out in the delegate’s reasons for decision, RD) was as follows:

   - Diploma of Management (01/11/10 – 07/03/11) cancelled;

   - Diploma of Management (11/04/11 – 16/09/11) cancelled;

   - Diploma of Management (11/04/11 – 16/09/11) cancelled;

   - Diploma of Management (20/04/11 – 16/09/2011) cancelled;

   - Advanced Diploma of Management (16/05/11 – 28/10/11) cancelled;

   - Diploma of Accounting (18/07/11 – 11/01/13) cancelled;

   - Diploma of Accounting (01/11/11 – 26/10/12) cancelled;

   - Certificate III in Business (06/07/12 – 03/01/13) finished;

   - Certificate IV in Business (04/01/13 – 03/10/13) cancelled;

   - Certificate IV in Business (08/02/13 – 07/11/13) cancelled;

   - Diploma of Management (04/10/13 -03/07/14) cancelled;

   - Diploma of Management (08/11/13 – 07/08/14) cancelled;

   - Diploma of Business (11/11/13 – 11/05/14) finished; 29

   - Certificate IV in Marketing (17/09/14 – 17/03/15) studying;

   Currently enrolled up to 13/11/16:

   - Diploma of Marketing (13/04/15 – 17/01/16) approved; and

   - Advanced Diploma of Marketing (08/02/16 – 13/11/16) enrolled.

   [6] The visa application was refused by a delegate on 11 December 2014 on the basis that the applicant did not satisfy the requirements of cl 573.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant was not a genuine student, principally due to his record of study.

   [7] On 22 December 2014, the applicant lodged an application for review with the Tribunal: RD 35.”

5. Similarly, the Minister’s written submissions outline the evidence that was before the Tribunal, and the Tribunal’s decision. I am similarly satisfied that the Minister’s summary of the evidence and of the Tribunal’s decision, is a fair and reasonable summary, and for the purposes of convenience today I adopt [8] – [18] of the Minister’s written submissions as follows: 

   “[8] The principle issue for the Tribunal was whether the applicant met the requirements of cl 573.223(1)(a) of Schedule 2 to the Regulations, which sets out a criterion for the grant of the visa in the following terms:

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant’s circumstances; and

   (ii) the applicant’s immigration history; and

   (iii) If the applicant is a minor – the intentions of a parent, legal guardian or spouse of the application; and

   (iv) any other relevant matter

   …”

   [9] In reaching a decision with respect to the cl 572.223(1)(a) criterion, the Tribunal was required (by s 499(2A) of the Migration Act 1958 (the Act) to consider the factors set out in a Ministerial Direction (Direction 53), which had been issued by the Minister under s 499(1) of the Act.

   [10] A number of points should be made about the operation of Direction 53.

   [11] The first is that a decision-maker is not required slavishly or mechanically to recite all the matters set out in Direction 53. In determining whether a factor in Direction 53 has not been considered, the ‘question is whether a particular decision in substance can be understood to have regard to the matters set out in the Direction’. In the present case the Tribunal was aware of requirements of Direction 53 and had regard to each of the requirements set out in Direction 53.

   [12] Secondly, even if a decision-maker does not refer to a particular factor in detail that does not mean that the decision-maker did not consider such a factor. A direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.

   [13] Thirdly, it would be inappropriate to draw an inference that a decision-maker has not considered a particular matter in circumstances where (a) ‘the reasons are otherwise comprehensive and the [matter] has at least been identified at some point’; and (b) ‘it was unnecessary for the decision-maker to make a finding on the matter because it was ‘subsumed in findings of greater generality’.

   [14] The applicant appeared before the Tribunal on 19 March 2015: RD 65. The Tribunal asked the applicant to provide details of his current and previous studies. The Tribunal’s account of the applicant’s responses shows, as the Tribunal found, that he appeared to have little idea of what course he was currently enrolled in, or of his previous courses. The applicant also gave very vague evidence as to his living arrangements and employment in Australia. The Tribunal found that his evidence ‘appeared to be misleading on purpose’: RD 74-75 [9]-[15].

   [15] The Tribunal considered whether the applicant was a ‘genuine applicant for entry and stay as a student’ within the meaning of cl 572.223(1) of Schedule 2 to the Regulations. The Tribunal noted that it must also have regard to Ministerial Direction 53 when assessing the criteria

   
   

   in cl 572.223(1): RD 75-76 [19]-[20].

   [16] The Tribunal noted that the applicant had over 2 months to respond to the concerns raised with him by the Department as to the genuineness of his stay as a student in Australia before the delegate had made his decision in December 2014: RD 76 [21]. The Tribunal found that the applicant was not a credible witness, including because it found the applicant knowingly provided vague and misleading answers in response to the Tribunal’s questions at the hearing: RD 76 [22].

   [17] The Tribunal noted, in particular, the length of time the applicant had been in Australia as a holder of a student visa; his limited academic progress (completing only two qualifications); 9 of 11 of the applicant’s certificates of enrolment have been cancelled; he repeatedly enrolled in short-term, inexpensive and unrelated courses, and he demonstrated very limited knowledge of the course he had been enrolled in and also his current study: RD 76 [23]. It stated at RD 76-77 [24]:

   The Tribunal has considered the evidence provided by the applicant, including that one of his education providers closed down whilst he was enrolled, he was aware of rumours of another being sold whilst enrolled and therefore pre-emptively moved; that he is a carpenter and supports himself through work in Australia and plans to open his own business upon return to Malaysia and that his wife and family continue to reside in Malaysia. However as stated above, the Tribunal did not find the applicant to be a credible witness, and instead found that he repeatedly failed to provide relevant evidence, and knowingly provided vague and misleading evidence. In addition, despite being asked by the department (in correspondence dated 23 September 2014) to provide supporting documentation regarding his circumstances, including employment, he failed to do so.

   [18] The Tribunal therefore affirmed the decision under review. Its decision dated 27 March 2017 was notified to the applicant by letter dated 30 March 2015:  RD 70-77.”

   [Errors in original. Footnotes omitted. I note also that in context, the reference to the Tribunal decision as being 27 March 2017 at [18] of the Minister’s written submissions should be read as 27 March 2015.]

6. On 4 February 2016, a Registrar of the Court set this matter down for a hearing pursuant to Part 44 of the Federal Circuit Court Rules
   2001 (Cth) (“the FCC Rules”). 

7. While the applicant has filed an amended application, I understood the Minister’s position to be that he maintains that that amended application does not raise an arguable case for the relief that the applicant seeks. That relief, as set out in the application and the amended application is, in essence, that the Tribunal’s decision be quashed and the matter remitted to the Tribunal for reconsideration according to the law.

8. There are two grounds in the amended application. They are in the following terms:

   “1. The second respondent had made jurisdictional errors by having failed to follow the provisions of S363A Migration Act.

   Particulars

   a. S363A provides, ‘Tribunal does not have power to permit a person to do something he or she is not entitled to do’.

   b. At the tribunal hearing the tribunal again and again demanded the information for his employer.

   c. As his employer had told him not to tell anyone about their business to avoid anything that might incriminate them. So, when the applicant tried to avoid the question diplomatically, the tribunal did not ask the reason but simply came to a conclusion that he was not a credible witness.

   d. The tribunal has asked him to do something he was not entitled to.

   2. The second respondent had acted unreasonably in either in determining whether the applicant has satisfied the requirements of cl 572.223(1), ie whether he was a genuine student, and in coming to a conclusion that he was not a credible witness.

   Particulars

   a. The Tribunal had not given proper considerations to the impacts upon his studies by the closure and ownership changes of his former educations providers and had failed to find that the length of the time it took him to complete the proposed course was due to the factors beyond his control.

   b. The tribunal had given too much consideration to the courses he enrolled, which was inexpensive but had not given proper considerations to the relevance of these courses to his study purposes.

   c. The tribunal has asked the applicant to do something he was not entitled to and unreasonably found that he was not a credible witness, as stated in Ground 1.”

   [Errors in original.]

9. The issue before the Court today is whether the grounds of the application raise an arguable case for the relief sought. As mentioned above, I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

10. If the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] - [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

11. Before the Court the applicant appeared in person.  He was assisted by an interpreter in the Mandarin language. The Minister was represented by a senior solicitor. When asked to make submissions in relation to the grounds of his amended application, the applicant confirmed that they were the grounds that he wanted the Court to consider. In essence, the applicant made two complaints.   

12. First, that he had been told by his employer not to speak about his employment, and that is why, at the Tribunal hearing, he did not answer relevant questions by the Tribunal concerning the nature of his work while in Australia which, in part, led the Tribunal to form the view that the applicant was not a credible witness. 

13. His second complaint, as I understood it, was to seek to explain a matter that was relevant before the Tribunal. This was the explanation as to his various enrolments and courses that he had attempted to study in Australia.  Both these matters are, in effect, the subject of the two grounds of the amended application.  The applicant stated that he had drafted those grounds. However, it was clear that he did not understand the basis on which those grounds sought to assert legal error. 

14. For example, ground one makes reference to s.363A of the Act. The applicant said that he had read s.363A of the Act. It was clear that he had not understood what was set out there. It became apparent that while the applicant had two complaints about the Tribunal’s decision record, his capacity to explain those complaints in some arguable and proper legal context was lacking.

15. The applicant asked if it was “too late now” to obtain legal advice. I understood that to be an application for an adjournment so that he could obtain legal advice. The application was refused. The bases for the refusal were first, the applicant has had more than a reasonable opportunity to obtain proper legal advice in this matter. His application to the Court has been on foot since 27 April 2015.

16. Second, on what the applicant told the Court today, he had engaged a lawyer in relation to these proceedings. There is some indication of that having occurred on the Court’s file. The lawyer subsequently withdrew from representing the applicant. Therefore, the applicant has had the benefit of some legal advice. 

17. Third, the applicant did not seek any adjournment of the hearing following the notification of the withdrawal of his lawyer which was filed on 21 June 2017. The applicant elected to come to Court without a lawyer, and sought to press the two grounds of the amended application himself, which he said he had drafted.

18. Ground one asserts that the Tribunal failed to comply with s.363A of the Act. At the relevant time, that section was in the following terms:

    “Section 363A

    Tribunal does not have power to permit a person to do something he or she is not entitled to do

    If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.”

19. The applicant’s complaint appears to be that at the hearing with the Tribunal, the Tribunal repeatedly asked the applicant to provide information about his employment in Australia. The Tribunal relied on what it said was his unresponsiveness, to find adversely to his credibility as a witness before it. 

20. The ground alleges that the Tribunal breached s.363A of the Act because his employer had told him not to “tell anyone” about his employment, because it might “incriminate” both of them. Just what is meant by “incriminate”, was not explained by the applicant before the Court today.

21. The Tribunal’s error is said to be that the Tribunal should not have drawn the adverse inferences that it did, because it breached s.363A of the Act by requiring the applicant to do something it was not empowered to compel him to do.

22. As the Minister submits, correctly in my view, the ground has no legal merit. First, s.363A of the Act is not available to the applicant in the circumstances as set out in his ground, and as he has sought, albeit in a limited way, to explain before the Court today.

23. As is clear on a plain reading of s.363A of the Act, that section prevents the Tribunal from acting contrary to any other provision in Division 5 of Part 5 of the Act. There is nothing in the evidence before the Court to show, or even indicate, that the applicant’s unwillingness to disclose matters about his employment to the Tribunal, even matters that might “incriminate” him or his employer, fall within the ambit of any other provision of Part 5 of the Act (Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498).

1. In short, the applicant’s reliance, through his ground, on s.363A of the Act is misconceived, because he has misunderstood the scope and object of that section of the Act.

2. It is also to be remembered that the applicant had applied for a student visa. This is, properly, the central focus of the Tribunal’s consideration. To be granted the visa, the applicant was required, amongst other matters, to satisfy cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

3. It is clear from any plain reading of its decision record, that the Tribunal had specific regard, as it was required to do, to cl.572.223(1)(a) of Schedule 2 to the Regulations. In addition, the Tribunal also had regard to Ministerial Direction 53, with reference to s.499 of the Act, and this is set out at [18] (at CB 75) to [19] (at CB 75 to CB 76) of the Tribunal’s decision record.

4. Given what was set out in the relevant criteria, it was reasonably open to the Tribunal to proceed on the basis that the applicant’s employment situation in Australia was relevant to each of the items at cl.572.223 of Schedule 2 to the Regulations. I note in particular, cl.572.223(1)(a)(i), (ii) and (iv) of Schedule 2 to the Regulations.

5. The applicant would have been on notice as a result of the delegate’s decision that the lack of evidence about his employment details, and about his employer, was a “live” issue (see the delegate’s decision record at CB 32.7).

6. On the evidence, it was reasonably open to the Tribunal to draw the adverse inferences that it did from the applicant’s unresponsive replies to its questions.  The fact that his employer told him not to say anything about his employment because it might incriminate him, and the applicant’s consequent adherence to what he said he was told, is not a matter that reveals any legal error in what the Tribunal has set out as its reasoning in relation to the matter that was before it. No legally arguable case is raised by ground one. 

7. Ground two asserts that the Tribunal acted unreasonably in its consideration as to whether the applicant met the requirements of cl.572.223(1) of Schedule 2 to the Regulations, in relation to whether he was a “genuine student”, and in relation to its finding that he was not a credible witness.

8. The particulars to the ground complain as follows. First, that the Tribunal failed to give proper consideration to the “closure” of his former education provider’s facilities, and the subsequent, and consequent, difficulty that the applicant had in completing his educational course. 

9. Second, that the applicant elected to pursue what he described as “inexpensive” courses.  The complaint is that the Tribunal did not give proper consideration to the relevance of those courses to what he has described as his “study purposes”. 

10. The difficulty for the applicant now is that the Tribunal did consider the applicant’s claims in this regard. I refer here to [24] (at CB 76 to CB 77) of the Tribunal’s decision record, and the Tribunal’s references generally through its decision record, but in particular the reference at [25] – [26] (at CB 77) to cl.572.223(1)(a) of Schedule 2 to the Regulations, and the relevant matters contained there.

11. In the circumstances before it, the Tribunal found adversely to the applicant’s credit.  It was reasonably open to the Tribunal to find that the applicant’s explanation, and the applicant’s evidence in relation to these matters, did not outweigh its concerns, comprehensively explained about the applicant’s lack of credibility. Further, his repeated failure to provide relevant evidence, and what the Tribunal found to be his vague and misleading evidence. 

12. The weight to be assigned to evidence that is proffered before it is a matter for the Tribunal to determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [151], SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 and Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464). Further, the Tribunal gave a reasonable and cogent explanation for its reasoning.

13. Despite the opportunity to do so, the applicant has not provided any transcript of the Tribunal hearing to the Court. The only evidence before the Court as to what was said, or what occurred at the Tribunal hearing, is the Tribunal’s own references in its decision record. In the absence of any other evidence, it is not open to the Court to speculate or to assume what otherwise may have happened (NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241 at [21]). The Court can only proceed on the evidence that is put before it.

14. The second particular to ground two complains that the Tribunal placed greater weight on considering the courses in which the applicant had been enrolled, rather than considering the relevance of these courses to his “study purposes”.

15. It must be said that it is difficult to see how the Tribunal can be criticised for having regard to the applicant’s actual study history, in the context of his immigration history. Given, in particular, that one of the items the Tribunal was specifically required to consider was the applicant’s immigration history, to which, as a person who claimed to be a student in this country, the study history and the visas held were highly relevant.

16. The applicant complains about the Tribunal’s approach, but this was a matter that the Tribunal was specifically required to consider. If it is that the applicant’s particular seeks to complain that the Tribunal did not give appropriate weight to the relevance of these courses to his study purposes, then, as I said earlier, the assignment of weight in the analysis that the Tribunal is required to undertake, is a matter for the Tribunal. There is no legal error in circumstances where the Tribunal gives reasons for how it assigned, and why it assigned, the weight that it did.

17. In any event, the applicant’s ground appears to misunderstand that the Tribunal’s concerns about the applicant’s responses to its questions, and the lack of evidence and detail, were not confined to the question of what the applicant describes as the “purposes” of his courses. The Tribunal’s concern, as is clear from its decision record, was that the applicant’s evidence was consistently unhelpful to the applicant’s ability to satisfy the relevant criteria for the grant of the student visa. 

18. The applicant, or whoever assisted him in drafting the grounds of his amended application, appears to have overlooked the fact that the applicant had applied for a student visa. His study history in Australia was relevant to the consideration that the Tribunal was undertaking.  That is, it was relevant to the Tribunal’s task. 

19. The third particular can only properly be understood as repeating ground one.  It lacks legal merit for the reasons that I have already stated in relation to ground one.  In all, there is no legal merit, or a legally arguable case arising from ground two. 

20. Rule 44.13 of FCC Rules provides that at a hearing of an application to show cause, an applicant is confined to the grounds of the application. The applicant confirmed for the Court today that those grounds were the grounds stated in the amended application that he filed on 3 July 2017.

21. I did consider whether it was appropriate in the interest of justice to dispense with r.44.13 of the FCC Rules pursuant to r.1.06 of the FCC Rules. However, I cannot see, on the material before the Court, that there is any reason to dispense with that Rule. In all, there is no arguable case arising from the grounds of the application as amended, for the relief that the applicant seeks. It is appropriate to dismiss the application, as amended, pursuant to r.44.12(1)(a) of the FCC Rules. I will make the appropriate order.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  21 August 2017