WANG v Minister for Immigration

[2013] FCCA 55

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG  v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 55

Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the applicant was denied procedural fairness – whether the Migration Review Tribunal was biased – whether the Migration Review Tribunal breached s359A of the Migration Act 1958(Cth) – no jurisdictional error – application dismissed.

Legislation: Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 359, 359A, 362B 379G, 474
Migration Regulations 1994 (Cth), Schedule 2, Part 572

Cases cited: Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240
Minister for Immigration and Citizenship v Cham Nam You [2008] FCA 241
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant: TINGJI WANG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2131 of 2012

Judgment of: Judge Emmett

Hearing date: 17 April 2013

Date of Last Submission: 17 April 2013

Delivered at: Sydney

Delivered on: 17 April 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: (Clayton Utz)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2131 of 2012

TINGJI WANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 24 August 2012 and handed down on the same day (“the Tribunal”).

2. The Tribunal affirmed a decision of a delegate of the First Respondent (“the Delegate”) to refuse the Applicant a student visa on the basis that the Applicant had failed to satisfy the Delegate and the Tribunal that he was enrolled in, or the subject of, a current offer of enrolment in a course of study.

Background

1. On 1 September 2008 the Applicant was granted a subclass TU-572 Student Visa valid until 15 March 2011.

2. On 31 July 2011, the Delegate refused the Applicant’s application for a protection visa.

3. On 5 August 2011, the Applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.

4. On 24 August 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

5. On 28 September 2012, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Schedule 2 to the Regulation contains condition 572.235 which states:

   “If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”

2. The last substantive visa held by the Applicant was subject to condition 8516, pursuant to cl.572.611. That condition required the Applicant to continue, during the period of that visa, to satisfy the primary or secondary criteria for the grant of the visa. One of the primary criteria for the last substantive visa appeared in cl.572.231 of Sch 2 to the Regulations. It relevantly required the Applicant to be enrolled in or the subject of a current offer of enrolment in a course of study.

The Delegate’s decision

1. On 19 February 2010, the Applicant ceased studying the Advanced Diploma of Hospitality Management at Carrick Institute of Education and commenced a new course, an Advanced Diploma of Tourism with at the Australian College of Vocational Studies Pty Ltd (“Vocational Study Australia”). The Applicant’s last day of attendance in the new course was reported as 12 May 2010.

2. On 18 April 2011, the Applicant was requested to provide evidence of enrolment and attendance in an appropriate full time course of study from 12 May 2010 onwards. On 16 May 2011, the Applicant submitted documents including a statutory declaration. The Delegate found that no supporting documents were submitted from Vocational Study Australia supporting the Applicant’s claims that he was studying at that institution from 13 May 2010 to 15 March 2011.

The Tribunal’s review and decision

1. On 5 August 2011, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided no further documents in support of his review application.

3. On 3 July 2012, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 20 August 2012 to give oral evidence and present arguments. The Applicant did not attend that hearing and did not give oral evidence.

4. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in written submissions as follows:

   “8. The Tribunal found that the Applicant had not complied substantially with condition 8516.  The Delegate's decision indicated that the Applicant had changed course providers on 19 February 2010 from the Carrick Institute of Australia to Vocational Study Australia (new provider).  However, the new provider had reported that the Applicant had ceased his studies and his last day of attendance was 12 May 2010.

   9. The Applicant had claimed in a statutory declaration made on 13 May 2011 that he had studied at the new provider from 15 March 2010 to 15 March 2011.  The Applicant also stated in his statutory declaration that he had asked the new provider for transcripts and attendance certificates.  However, the provider had told the Applicant that "they could not issue any requested documents".  The only further material provided by the Applicant in support of this claim was 2 payment details from the new provider. 

   10. The Tribunal was not satisfied that the payment details were evidence that the Applicant was enrolled in a registered course from 13 May 2010, i.e. immediately after his last date of attendance at the old provider, to 15 March 2011, i.e. when the last substantive visa ceased.  The Tribunal did not accept the evidence in the statutory declaration that the Applicant had studied in this period but the new provider was unable to issue documents proving that study.  The Tribunal noted the above information was consistent with electronic records before it.

   11. In these circumstances, the Tribunal found the Applicant "failed to comply with condition 8516" of the last substantive visa "because he did not continue to satisfy cl 572.231, being a primary criterion for the grant of the visa".  The Tribunal found the breach to be significant and the Applicant, who had not appeared at the hearing, had not offered any explanation as to why he was not enrolled.  On the limited information before it, the Tribunal was not satisfied that the Applicant was unable to enrol in a course at the relevant time.

   12. Accordingly, after concluding that the Applicant also did not satisfy other subclasses of the visa, the Tribunal affirmed the Delegate's decision.”

The proceeding before this Court.

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 28 November 2012, the Applicant attended a directions hearing before a Registrar of this Court. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the directions hearing, for his assistance, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

5. The Applicant confirmed that he relied on the grounds contained in the application, filed on 28 September 2012, as follows:

   “1. My agent failed to confirm my hearing date.

   2. It is in breach of procedural fairness.

   3. I was biased against by RRT.”

6. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1 and Ground 2

1. Grounds 1 and 2 are unsupported by particulars, evidence, or written submissions.

2. In relation to Grounds 1 and 2, the Applicant said that his agent had failed to tell him about the hearing date of his case and that the Tribunal had sent the letter of invitation to his agent and not the Applicant.

3. Neither complaint establishes any jurisdictional error on behalf of the Tribunal.

4. In his application for review to the Tribunal, lodged on 5 August 2011, the Applicant appointed a representative and nominated that representative as his authorised recipient. In such circumstances, pursuant to s.379G of the Act, the Tribunal must give the authorised recipient any document that it would otherwise have given to the Applicant, instead of the Applicant.

5. On 3 July 2012, in accordance with s.379G of the Act, the Tribunal faxed to the Applicant’s authorised recipient a letter enclosing an invitation to the Applicant to appear before the Tribunal on 20 August 2012 to give evidence and present arguments relating to the issues arising in his case. The letter informed the Applicant that the Tribunal would only change the hearing date for “good reason”. The letter requested the Applicant to contact the Tribunal immediately if he was unable to attend the hearing on that date. The letter informed the Applicant that if he failed to attend the scheduled hearing, then the Tribunal may make a decision without taking any further action to allow or enable the Applicant to appear before it.

6. On 9 July 2012, the Applicant’s representative sent a Response to Hearing Invitation signed by the Applicant indicating that he would take part in the Tribunal hearing scheduled for 20 August 2012.

7. In a letter, dated 14 August 2012 to the Tribunal from the Applicant, the Applicant stated that he could not attend the scheduled hearing and provided no other reason, explanation or request. On 16 August 2012, an officer of the Tribunal confirmed by telephone with the Applicant’s representative that the Applicant would not be attending the Tribunal hearing.

8. In its decision record, the Tribunal noted the communications referred to above and, in the circumstances, decided to make its decision on the review without taking any further action to enable to Applicant to appear before it, pursuant to s.362B of the Act.

9. As stated above, the Tribunal was bound to communicate with the Applicant’s representative as his authorised recipient, including in sending the Applicant an invitation to appear before it. The Tribunal complied with its statutory obligations in inviting the Applicant to appear before it. Having received a letter from the Applicant stating that he would not be attending, the Tribunal confirmed that information with the Applicant’s representative.

10. In the circumstances, there was no denial of procedural fairness by the Tribunal. The Tribunal was entitled to exercise its discretion pursuant to s.362B of the Act and there is nothing before this Court to suggest that the Tribunal exercised that discretion other than according to law.

11. Any failure of communication between the Applicant and his representative, cannot in the circumstances establish any jurisdictional error on behalf of the Tribunal.

12. Accordingly, Grounds 1 and 2 are not made out.

Ground 3

1. Ground 3 is unsupported by particulars, evidence, or written submissions.

2. In support of Ground 3, the Applicant submitted that the Tribunal should have invited him to another hearing.

3. As stated above, the Tribunal properly exercised its discretion under s.362B of the Act for the reasons referred to above. The Tribunal’s decision not to invite the Applicant to another hearing does not, by itself, establish bias on the part of the Tribunal.

4. The mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

5. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

6. Accordingly, Ground 3 is rejected.

Section 359A of the Act

1. The Applicant makes no other complaint about the Tribunal’s decision record, including any of its findings.

2. However, in accordance with its obligations as a model litigant, the First Respondent referred to the Tribunal’s statement that “electronic records before the Tribunal indicate that the Applicant was not enrolled in any course, and was not undertaking any study between 13 May 2010 and 15 March 2011.” It is not clear whether those records were before the Delegate.

3. The First Respondent’s solicitor, Mr Oliver Jones, referred to information before the Delegate that on 19 February 2010 the Applicant left one educational institution to commence a new course of study at Vocational Study Australia. The Delegate stated that, “Vocational Study Australia subsequently reported the Applicant for cessation of studies with the Applicant’s last day of attendance reported as 12 May 2010.” The Delegate further noted that no supporting documents were provided from Vocational Study Australia to support the Applicant’s claims that he studied until 15 March 2011.

4. The electronic documents referred to by the Tribunal showed that the Applicant ceased study at one institution on 19 February 2010 and had his last day of study with Vocational Study Australia on 12 May 2010.

5. The Tribunal noted that no documentary evidence was provided that the Applicant was enrolled in any institution from 13 May 2010 and no attendance records or academic records were provided to cover the period 13 May 2010 until 15 March 2011.

6. On the evidence before it, the Tribunal found that by failing to be enrolled in any course between 13 May 2010 and 15 March 2011, the Applicant had breached condition 8516, and that breach was significant. The Tribunal noted that the Applicant had not provided any evidence to the Tribunal about whether he failed to appreciate that he was in breach of condition 8516 or the circumstances that contributed to that failure. The Tribunal did not accept the Applicant’s evidence to the Department that Vocational Study Australia had told him they could not provide him with requested documents.

7. Mr Jones submitted that the information provided in the electronic records before the Tribunal were substantially the same as the information referred to in the Delegate’s decision, indicating that the Applicant was not enrolled in any course and was not undertaking any study between 13 May 2010 and 15 March 2011. (See Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240 at 259 per North, Greenwood and Beskano JJ; Minister for Immigration and Citizenship v Cham Nam You [2008] FCA 241 at [26] per Sundburg J.)

8. Mr Jones further submitted that the information in the Delegate’s decision was given to the Applicant for the purpose of his review because the Delegate’s decision was attached to his application to the Tribunal for review of the Delegate’s decision. Mr Jones submitted that, in those circumstances, the information in the electronic records was not information required to be given to the Applicant for comment by reason of s.359A(4)(b) of the Act.

9. I accept those submissions and am satisfied that there was no information that enlivened the obligations of s.359 of the Act.

10. However, even if the Tribunal had breached s.359 of the Act, in light of the evidence before the Delegate and the Tribunal, the likelihood of a differently constituted Migration Review Tribunal coming to a different conclusion is so negligible that in the exercise of the Court’s discretion, there would be no utility in granting the Applicant the relief that he seeks from this Court.

Conclusion

1. The Tribunal made findings based on the evidence and material before it. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date:  17 April 2013