Wang v Minister for Immigration
[2014] FCCA 2177
•16 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2177 |
| Catchwords: COSTS – Whether application dismissed pursuant to r.44.12(1)(a) at immediate show cause hearing on the date of the first court date is dismissed at or before first court date, or after first court date. |
| Legislation: Migration Act 1958 (Cth), ss.116(1)(b), 119, 121, 123, 124, 127, 347(2)(a), 360, 360A, 362B, 379A(4) Migration Regulations 1994 (Cth), regs.2.44, 2.47, 2.55, Sch.1 Part 3 Div.1 Item 1, Sch.1 Part 3 Div.1 Item 2 Federal Circuit Court Rules 2001 (Cth), rr.16.05, 44.11(a), 44.12(1)(a) |
| Al Mamun v Minister for Immigration [2005] FMCA 147 SZHTI & Anor v Minister for Immigration & Anor [2006] FMCA 41 |
| Applicant: | WEI WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1488 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 16 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitor for the First Respondent: | Ms S Given of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application be set down for an immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,331.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1488 of 2014
| WEI WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 9 April 2014 by the applicant, Wei Wang, seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member L. Symons on 28 April 2014, affirming the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister“), to cancel the applicant’s Class TU visa (the “Student visa”).
The representatives of the Minister filed on 30 July 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a male citizen of China who is 33 years old (CB 1). He applied for a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa which was granted to him on 16 August 2012 (CB 48). Thereafter the applicant came to Australia.
On 4 October 2013 an officer of the Department of Immigration (the “Department”) wrote to the applicant (CB 48-51) at his then nominated address in Shandong, China to inform him that she intended to consider cancellation of the applicant’s Student visa under s.116(1)(b) of the Migration Act as a result of the applicant’s failure to comply with Condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”). This specific condition states the visa holder, in this case the applicant, meets the requirements if the visa holder is enrolled in a registered course.
Specifically, the officer stated:
… Based on the evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that you have not been enrolled in a registered course. Therefore, it appears you do not meet the requirements of conditions 8202(2)(a).
If you did not comply with condition s116(1)(b) of condition – 8202, your visa may be cancelled under paragraph 116(1)(b) of the [Migration] Act…
The letter also states that before any decision was made in respect of the applicant’s visa, he would be afforded an opportunity to comment on the grounds for cancellation identified in the letter. The timeframe for response to the letter was five days after the letter was taken to have been received by the applicant, which was 21 days after the date the letter was sent (as the applicant’s nominated address was outside of Australia).
On 26 November 2013 a delegate of the Minister cancelled the applicant’s Student visa and notified him by registered mail (the “NOC”) sent to an address in Woodberry, New South Wales (CB 52-62)
On 2 December 2013 the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 63-72). On this application he nominated his contact address as the address the delegate’s decision was sent to, being in Woodberry, NSW. The Tribunal wrote to the applicant the next day acknowledging receipt of the application.
On 17 February 2014, the Tribunal wrote to the applicant at his address in Woodberry seeking to invite him to a hearing before it on 1 April 2014 (CB 75-76). The letter was returned to the Tribunal marked “Return to sender – not at this address” (CB 77-80).
On 24 March 2014 an officer of the Tribunal contacted the applicant and spoke to him (with the assistance of a Mandarin interpreter) by telephone. During that conversation, the applicant indicated he had changed address from Woodberry, NSW. The officer also informed the applicant he would email him a copy of the hearing invitation (which was listed on 1 April 2014) and asked that the applicant respond with his updated postal address (CB 81).
An officer of the Tribunal emailed the applicant accordingly on 24 March 2014 (CB 82). The applicant responded to the Tribunal by return email on the same day, providing an updated address in Wallsend, NSW (CB 83). However, the applicant did not complete and return the attached “Response to hearing invitation”.
A hearing then occurred before the Tribunal on 1 April 2014 at the Tribunal, but the applicant failed to attend the hearing (CB 86-88).
Tribunal’s Decision
On 28 April 2014 the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa (CB 91-95), and wrote to the applicant the following day informing him of that decision (CB 90).
The Tribunal set out the steps taken in attempting to contact and contacting the applicant at [4]-[7] (CB 92) (also set out above).
The Tribunal then went on to consider whether the applicant, as the holder of the Student visa, breached condition 8202. It found that the applicant’s visa had been cancelled as he was not enrolled in a registered course since October 2012 (CB 93 at [11]) and this was supported by evidence from PRISMS at [12] (CB 93). It further found the applicant had been issued with a Notice of Intention to Consider Cancellation of his Student visa had been issued to him on 4 October 2013 (the “NOICC”) and there was no response to the NOICC from the applicant.
The Tribunal noted at [13] that the applicant did not attend the hearing before it. The Tribunal was not satisfied the applicant met the requirements of condition 8202(2)(a) as he had not been enrolled in a registered course since 17 October 2012 at [14], and found he had breached condition 8202 of his Student visa.
The Tribunal was unable to discuss with the applicant his reasons for not being enrolled in a registered course as he did not attend the hearing (CB 94 at [18]). It also found no evidence or explanation had been provided to it by the applicant to explain the non-compliance.
The Tribunal had regard to the purpose of the applicant’s travel and stay in Australia and noted there was no evidence the applicant had completed any courses of study since arriving in Australia. It further noted the purpose of a Student visa is to enable the visa holder to undertake study in Australia, and found the applicant had not fulfilled the purpose for which he had been granted the visa, particularly given the length of time spent in Australia at [19]).
The Tribunal found the breach of condition 8202(2)(a) was a significant breach at [20]. Ultimately, the Tribunal considered the evidence before it and was of the view there were not extenuating or compassionate circumstances that would outweigh the grounds for cancelling the visa, and affirmed the decision on review at [23]-[24].
Current Proceedings
The application filed on 2 June 2014 pleads the following grounds of review:
1. I was not given a chance to attend the interview.
2. I was very sick for the time of the interview.
3. MRT should give me another chance to attend the interview.
At the first court date directions hearing on 16 September 2014, I indicated the matter would be set down for an immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).
Applicant’s submissions
The applicant submitted at the show cause hearing that the NOICC (CB 48) was sent to an address in China, when the applicant resided in Australia. This address in China was his family’s former residence, but they no longer lived there. Accordingly, he had no idea the cancellation of his Student visa was being considered.
He also stated the Tribunal’s invitation to attend the hearing was sent to an address at which he no longer resided in Woodberry, NSW. Accordingly he did not know when the hearing at the Tribunal would occur and, in any case, was very sick when he did.
Minister’s Submissions
The Minister submits that the Tribunal did comply with all of its requirements under both the Migration Act and Migration Regulations and no arguable case for relief has been raised by the applicant.
Consideration
The applicant has sought to take issue with the addresses to which various correspondence from both delegates of the Minister and the Tribunal were sent. He claims that as a result of this correspondence being sent to incorrect addresses he never knew his Student visa was under consideration of being cancelled, then subsequently cancelled, or that he had been invited to a hearing before the Tribunal.
Notice of intention to consider cancellation of Student visa
In respect of the NOICC (CB 48-51), this was sent on 4 October 2013 to an address in Shandong, China. This is the same address that was provided by the applicant in his original Student visa application as his nominated “Address for correspondence”.
Relevantly, s.119 of the Migration Act states:
Notice of proposed cancellation
(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
…
Regulation 2.44 of the Migration Regulations states:
Invitation to comment--response
(1) For the purposes of subsection 121(2) of the Act (which deals with the time in which a holder must give comments, other than at interview), the periods set out in subregulation (2) are prescribed.
(2) The periods referred to in subregulation (1) begin when the visa holder is notified under subsection 119(2), or receives an invitation under subsection 120(2), as the case requires, and are:
(a) if the visa holder is in Australia--5 working days; or
(b) if the visa holder is outsideAustralia:
(i) where the cancellation of his or her visa is being considered in Australia--28 days; or
…
…
Note 1: Regulation 2.55 applies to the giving of a document relating to:
* the proposed cancellation of a visa under the Act; or
* the cancellation of a visa under the Act; or
* the revocation of the cancellation of a visa under the Act.
…
Regulation 2.55 of the Migration Regulations states:
Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
…
(3) Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
…
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
…
(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a placein Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
(b) in any other case--21 days after the date of the document.
…
Section 121 of the Migration Act states:
Invitation to give comments etc.
(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
…
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
…
In Al Mamun v Minister for Immigration [2005] FMCA 147 his Honour Smith FM stated at [4]:
Under s 121(1) the invitation is “to specify” how the response may be given, whether “at an interview between the holder and an officer” or otherwise. Under s 121(2) and (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a prescribed period or “a reasonable time” and may be extended. The implication from these provisions, in my opinion, is that there must be a reasonable interval of time allowed between the applicant being notified of the particulars of the grounds of the contemplated cancellation and the interview or other opportunity to respond.
On the evidence before the Court there had been no notification by the applicant to the Minister or his Department that he had an updated address at which he was to receive correspondence since the granting of his Student visa. Accordingly, despite the applicant’s complaint that this address was no longer used by him or anyone who could forward the applicant such correspondence, the Minister complied with its obligations under reg.2.55(3)(c) of the Migration Regulations.
In my view, on a fair reading of the NOICC, having regard to the relevant legislation set out at [28]-[31] above and the comments of Smith FM in Al Mamun (supra), all the relevant statutory requirements were complied with in the preparation and dispatching of the NOICC, as well as in respect of its contents. The period given for the applicant to respond to the NOICC was five days, however, no decision was made in respect of his Student visa until 26 November 2013. Taking into account the time periods allowed for in reg.2.55 of the Migration Regulations there was a period of one month during which the applicant could comment on the NOICC.
Accordingly, I am not satisfied any arguable case for relief has been raised by the applicant relating to any aspect of the NOICC, including the address to which it was sent.
Notice of cancellation of Student visa
On 26 November 2013 a delegate of the Minister cancelled the applicant’s Student visa and sent the NOC (CB 52-62) to the applicant by registered post at an address in Woodberry, NSW. The applicant indicated at the hearing that he had called the Department of Immigration at some point between 4 October 2013 and 26 November 2013 and informed the Department of his then current residential address. I am satisfied the NOC complied with ss.123, 124 and 127 of the Migration Act and reg.2.47 of the Migration Regulations and need not be addressed further. This is supported by the fact that the applicant applied to the Tribunal for review of the delegate’s decision to cancel his Student visa within the prescribed time as set out in s.347(2)(a) of the Migration Act and nominated on that application the same address in Woodberry as the address at which he lived and wished to receive correspondence
Invitation to appear before Tribunal
The Tribunal’s invitation to appear before it was sent to the applicant on 17 February 2014 (the “Invitation”) (CB 75-76) to the address nominated at Woodberry. The Tribunal complied with its obligations under ss.360, 360A and 379A(4) of the Migration Act. There is no evidence before the Court the applicant informed the Tribunal he had changed his address in the intervening period before the hearing and this was not disputed by the applicant at the hearing.
After the invitation was returned to the Tribunal (CB 77-80), an officer of the Tribunal contacted the applicant by telephone and ascertained his email address (CB 81). A copy of the Initiation was then forwarded to the applicant by email on 24 March 2014 (CB 82) and the applicant responded on the same day and provided his updated address for service (CB 83). However, the applicant failed to provide a response to the Invitation itself.
I am not satisfied an arguable case for relief has been raised in respect of the Invitation by the applicant. In my view there is no error in the discharge of the Tribunal’s obligation under Division 5 of Part 5 of the Migration Act.
Failure to appear at hearing
The applicant’s first ground of review in his application complains that he was not given a chance to attend the Tribunal hearing. However, for the reasons stated above (particularly at [37]-[39]), this claim raises no arguable case for the relief sought.
His second ground of review states he was very sick at the time of the Tribunal hearing and he made oral submissions to similar effect. These submissions are not supported by any documentary evidence, and the applicant himself indicated he failed to notify the Tribunal that he was sick at the time of the hearing. Section 362B of the Migration Act states:
Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal then proceeded to make a decision on the review, which it was entitled to do pursuant to s.362B. Accordingly, this ground raises no arguable case for the relief claimed and must fail.
The third ground of review states that the Tribunal should give the applicant another chance to attend the interview. This ground does not allege any error on the part of the Tribunal and raises no arguable case for the relief claimed.
Conclusion
The applicant has not made any other complaints in respect of the Tribunal’s decision. Notwithstanding, I have read the contents of the Court Book and Decision Record and, on a fair reading thereof, no error is apparent. Consequently, there is no arguable case for the relief claimed by the applicant and the application should be dismissed with costs awarded to the Minister.
Costs
When the matter was dismissed on 16 September 2014 I awarded the Minister his costs, fixed in the sum of $3,326. However, in my view, this amount does not reflect the intention of the Court having regard to a number of factors.
His Honour Driver FM in SZHTI & Anor v Minister for Immigration & Anor [2006] FMCA 41 stated at [14]-[16]:
14. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in the sum of $2,500 based upon para (b) of item 1 of Pt 2 of Sch 1 to the Federal Magistrates Court Rules. The costs scale is somewhat ambiguous in these circumstances. A sum of $1,000 is prescribed where a proceeding is concluded at or before the first court date. The sum of $2,500 is prescribed where a proceeding is concluded at an interlocutory hearing under r 44.12. The Rules do not specifically deal with the situation where, as here, an immediate hearing under r 44.12 is conducted at the first court date.
15. In my view the sum of $2,500 prescribed under para (b) of item 1 of Pt 2 of Sch 1 to the Rules is intended to deal with a hearing following a first court date. The scale of costs is an event based scale where costs are assumed to increase over time as more work is done. In my view, where an immediate hearing under r 44.12 is conducted at the first court date the correct prescribed amount is $1,000, pursuant to para (a) of item 1 in Pt 2 of Sch 1. If in a particular case that is inadequate recompense to the Minister it is open to the Minister to seek that a higher amount be fixed in accordance with r 21.02(2)(a).
16. In this matter an immediate hearing was not sought by the Minister. A court book had been prepared and filed but counsel had not been engaged and no submissions had been prepared. I find that the appropriate amount of costs prescribed under the Rules in this case is $1,000. Lest there be any doubt, I will fix costs in that amount.
This was an application for review of a decision of the Refugee Review Tribunal that was also dismissed at an immediate show cause hearing on the date of the first court date (and later affirmed on appeal: see SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702). I am guided by his Honour’s reasons as the circumstances of the dismissal of those proceedings and status of the matter at the time of its dismissal reflect the current proceedings. I note, however, the amounts prescribed in the scale have changed.
Accordingly, noting that the Minister’s representatives raise no objection (despite maintaining their original submission) to the varying of the orders of the Court made on 16 September 2014, I will amend order 3 of those orders, pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) to read “The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $1,331.00”.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 16 September 2014
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