Wang v Minister for Immigration - [2007] FMCA 1480

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1480

MIGRATION – Visa – Student (Temporary) (Class TU) visa – Migration Review Tribunal – application for review of MRT decision affirming a decision of a delegate of the Minister refusing to grant the applicant a visa – applicant is a citizen of the People's Republic of China – regulation 572.235 – condition 8202 – applicant did not attend Tribunal hearing – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359A, 359(2), 360A, 362B, 379A(5), 379G, 424A
Migration Regulations 1994 cl.572.235 sch.2

SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 distinguished.
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 followed.

Applicant:

WEI WANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1022 of 2007

Judgment of:

Scarlett FM

Hearing date:

14 August 2007

Date of Last Submission:

14 August 2007

Delivered at:

Sydney

Delivered on:

14 August 2007

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms R. Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1022 of 2007

WEI WANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal signed its decision on

5^th March and handed that decision down on 14^th March 2007.

The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant, a Student (Temporary) (Class TU) visa.
The applicant seeks judicial review of that decision by means of an application and an affidavit filed on 27^th March 2007. In that application, he does not specifically seek any orders but I would expect that he would seek orders setting aside the Tribunal decision and remitting his application to the Migration Review Tribunal for determination according to law.
The applicant applied to what was then the Department of Immigration & Multicultural Affairs for a Student (Temporary) (Class TU) visa on 6^th March 2006.
A delegate of the Minister refused his application for a visa on 19^th July of that year. The basis of the refusal of the application was that the applicant did not satisfy cl.572.235 of sch.2 to the Migration Regulations 1994 because he had not complied substantially with the requirements of condition 8202 of his Sub-class 573 Higher Education Sector visa.
On 1^st August 2006, the applicant applied to the Migration Review Tribunal for a review of the delegate’s decision. The applicant nominated a representative to act on his behalf. He nominated David Yiu, of Australian Wah Education Centre, Post Office Box K590, Haymarket, New South Wales.
The applicant did not provide any other information to the Tribunal with his application. The Tribunal acknowledged the applicant’s application for review on 2^nd August 2006 and wrote to him on

8^th January 2007. That letter was headed “Invitation to Comment on Information and an Invitation to Provide Additional Information”.
The letter from its text was clearly intended to comply with both ss.359A and 359(2) of the Migration Act 1958 (Cth) (“the Act”).

A copy of the letter can be found at pages 50 and 51 of the Court Book.
The letter under ss.359A and 359(2) set out that the Tribunal must explain and invite comment on particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review.
The letter said:
“You are invited to comment in writing on the following information:
§You were granted your last student visa on 23 October 2002. This visa was subject to condition 8202 which required you to achieve an academic result that is certified by the education provider to be at least satisfactory;
§You attended Charles Sturt University from February 2005 to June 2005. The university advised that in that semester your academic performance was not satisfactory because you failed all four subjects you had undertaken. The above information is relevant because it may indicate that you have not complied with condition 8202 of your last-held student visa.”[1]
[1] See Court Book at 50
The letter under the provisions of s.359(2) invited the applicant to provide additional information that relevant to review the decision. The letter said,
“You are now invited to provide – evidence which may indicate that you have complied substantially with condition 8202 of your previously-held student visa – reasons for the non-compliance, if established – updated evidence relating to your current studies including academic results and attendance records.”
A reply was sent to the Tribunal, apparently from the applicant, printed in English and a copy of that document appears on pages 52 and 53 of the Court Book.
That letter referred to the applicant’s difficulty with study and a personal difficulty relating to illness and subsequent death of the applicant’s grandfather. The letter referred to the applicant’s wish to return to China to attend the funeral, but the applicant’s parents refused.
The letter referred to symptoms that the applicant suffered as a result of this situation and that he felt depressed and isolated and the applicant explained that this brought on another worse consequence in that he failed four subjects in the semester from February 2002 to June 2005 and realised that computing was not a suitable major for him.
The Tribunal wrote to the applicant on 6^th February 2007 inviting the applicant to attend a hearing on 5^th March 2007. That letter was addressed to the applicant’s representative. The applicant did not attend.
The Tribunal handed down its decision on 14^th March 2007 and a copy of the decision record can be found at pages 60 through to 69 of the Court Book.
The Tribunal noted that the applicant had not attended the hearing and determined, pursuant to the provisions of s.362B of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal decision considers the relevant law and quoted a version of condition 8202, which applied to the applicant’s last substantive visa, and set out details of the applicant’s academic history and noted,
“In May 2006, the delegate sought information concerning the applicant’s progress at Charles Sturt University (CSU).

On 9 May 2006, the CSU informed the delegate that in term 1, 2005 the applicant did not achieve a satisfactory academic performance as he failed all four subjects he had undertaken.”
The Tribunal noted that the delegate, on 19^th July 2006, decided to refuse the ground for visa because the delegate found that the applicant had not complied substantially with condition 8202 that applied to the applicant’s last student visa. See Court Book, page 63.
The Tribunal noted the applicant’s failure to appear. The Tribunal’s findings and reasons are set out at pages 64 and 65 of the Court Book.
The Tribunal satisfied itself that the letter of 6^th February 2007 inviting the applicant to attend the hearing of the Tribunal had been set electronically to the applicant’s authorised recipient at the last fax number provided to the Tribunal by the recipient in connection with the review.
The Tribunal satisfied itself that the Tribunal had complied with ss.360A, 379A(5) and 379G of the Act.
The Tribunal addressed the issue as to whether, at the time of the decision, the applicant had complied substantially with condition 8202 of his Sub-class 573 Higher Education Sector visa.
The Tribunal was not satisfied that the applicant had complied substantially with condition 8202 of that visa.
The Tribunal stated that to comply with condition 8202(3)(b), the applicant must achieve an academic result that is certified by the education provider to be at least satisfactory for the semester and referred to the decision of the Full Court of the Federal Court in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55] and [56].
The Tribunal found that the applicant had not complied with the academic result requirements of condition 8202 on the basis that the certification of the course provider and noted that that aspect of condition 8202 was one to which the concept of substantial compliance has no logical application; either the condition is satisfied or it is not.
The Tribunal found that the applicant had not complied substantially with the conditions of the last-held student visa and was, therefore, not satisfied that the applicant met the requirements of cl.572.235 and affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) Visa.
The applicant commenced proceedings for review on 27^th March 2007. He provided an affidavit in which he said,
“(1) During the time studying in Charles Sturt University,

I failed most of the subjects due to family matters.

My grandmother was diagnosed with breast cancer and soon passed away. This is a special situation beyond my control.
(2) Although my studying related with computer skills is not good, however, I am now enrolled in commercial cookery and both academic results and attendance are satisfied.”
The applicant set out factual matters in his application which, in effect, expanded on that claim in his affidavit, including the claim to have felt depressed and isolated. He did not set out any grounds in which he alleged jurisdictional error on the part of the Tribunal.
The applicant gave oral evidence to the Tribunal which related to matters that were not on his affidavit. He confirmed that because of his poor academic results, his application for an extension of his visa was rejected. He said that his migration agent promised to handle all of the matters with the Tribunal, including providing a postal address.
He said that he knew nothing about the hearing until the agent told him that he had lost the case. He said that he did not know about the hearing.
He said that it was the agent who did not give him the opportunity to attend the Tribunal. He was not given the opportunity to make comments to the Tribunal. He wondered whether the Tribunal may have made an error. He said that the agent acted on his behalf in his name but the Tribunal did not make 100 per cent sure that the notice of the hearing had reached him.
He said he went to the agent and was told that the date of the first hearing had passed. He said the agent asked him to find an excuse, such as a medical certificate. He said he did attend the second hearing.
By this, I understand the applicant to be saying that he had not attended the first Court date of his application for review to this Court which was before a Registrar on 19^th April 2007. He attended before another Registrar on 3^rd May 2007 with the assistance of a Mandarin interpreter who provided a notice of change of address for service and the application was listed for hearing before me today.
The applicant said that his migration agent had not told him to attend Court. He said that his migration agent had been investigated because of some forged documents and he believed the agent had resulted in other serious conduct. He said that it was the agent’s fault and that it resulted in his losing the opportunity for a hearing before the Migration Review Tribunal.
He said it was not fair to him. He said that he did not make any complaint about the agent but was told by someone there that he was investigated by the Government.
In cross-examination, he confirmed that the agent did not tell him about missing the hearing for the Tribunal. He said the agent did not tell him about the hearing.
He said he heard from a friend that one should attend the hearing and he said that when he spoke to the agent about this, the agent said that he had found someone from his office to attend the hearing on his behalf. He believed that he was told that about the end of March.
He said that he found out about the hearing having taken place in a conversation with the agent in his office and said that he had gone to the agent’s office because the agent had called him. The agent told him that he had lost the case at the Tribunal and told him to appear to the Federal Magistrates Court.
It was then he believed that the agent said that someone else from his office had attended the hearing, but he said that he did not believe the agent. He said that he had never seen a copy of the Migration Review Tribunal decision. He said that, at about that time, he wanted to change to another agent and he was told a month prior to today’s hearing that the agent was under investigation. He was told that by a friend named Helen, whose surname he does not know, but is apparently a migration agent.
He told the Court that he had paid cash to the migration agent in the sum of $1,400.00 for the proceedings in the Migration Review Tribunal and had also paid $1,400.00 for the proceedings in the Federal Magistrates Court. He said that he had paid cash and that he had been given a receipt.
He was shown the statement that appears at pages 52 and 53 of the Court Book and identified that statement and confirmed that the material there had, in fact, come from him.
It is conceded, on behalf of the Minister, that David Yiu was not a migration agent but is currently under investigation.
For the Minister, it is submitted that there is no jurisdictional error on the part of the Tribunal.
The Tribunal affirmed the decision of the delegate on the same basis as the delegate had made the decision, which is that the applicant did not have a certification that he had achieved a satisfactory academic result and had not, therefore, complied with the conditions of his last substantive visa.
Accordingly, the applicant was not able to satisfy the primary criteria for the grant of a Sub-class 572 visa.
The Tribunal, it is submitted, had complied with ss.359A(1) and 359A(2) of the Act and had sought the applicant’s comments upon the adverse information provided by his former tertiary institution.
It is also submitted the applicant’s application for judicial review appears to seek merits review and does not demonstrate any jurisdictional error.
It is beyond doubt that the applicant, for whatever reason, did not comply with the requirements of condition 8202 of his Sub-class 573 Higher Education visa in that he did not achieve a satisfactory academic result and did not produce certification that he had.

Indeed, it is difficult to see how he could have considering his poor academic results in 2005.
The decision of the Full Court of the Federal Court, Tian v Minister for Immigration & Multicultural & Indigenous Affairs (supra) to which the Tribunal referred in its decision is, to my understanding, the current authority on the position and at [55] and [56], their Honours said,
“The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved and academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition, the Minister is not obliged or indeed entitled to go behind the certification.

The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry and to condition 8202(3)(b). On the other hand, if there is no certificate, compliance with condition 8202 has not been achieved.”
In this case, of course, there is no certificate from the education provider that the applicant has achieved an academic result that is at least satisfactory. So there is no compliance with condition 8202(3)(b).
The applicant’s case, at least so far as the applicant gave evidence today, alleges some inappropriate behaviour on the part of his purported migration agent in not informing him of the hearing of the Migration Review Tribunal.
The applicant is not legally represented and appears not to have had any legal advice in these proceedings. It is appropriate that the Court should consider whether the decision of the High Court of Australia in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 applies.
In my view, it does not. This is a matter where, in my view, the decision in the High Court in SZFDE (supra) can be distinguished on the facts.
It is significant that the hearing is the first time that applicant has alleged any bad behaviour on the part of his purported migration agent. It may well be that this person is under investigation and it may well be that this person is not a migration agent at all. It may well be, on the basis of the applicant’s evidence today, that the person concerned has accepted money, (a), for the purpose of an application to the Migration Review Tribunal, which should be properly the province of a registered migration agent, and, (b), has accepted money for the commencement of proceedings in the Federal Magistrates Court, which should properly be the province of a legal practitioner who holds a practising certificate.
Indeed, if the applicant’s handwritten affidavit and application are anything to go by, $1,400.00 allegedly paid has been money very poorly spent.
But the applicant’s case falls far short of proving the sort of fraud that would be required to bring this case within the ambit of the decision in SZFDE v Minister for Immigration & Citizenship.
In that case, the applicant’s legal advisors took appropriate steps to allege fraud on the part of the former migration agent and directions were made for service of those documents upon the person concerned who was given the opportunity to attend Court with his own legal advisor and was given the opportunity to make submissions should he have chosen to do so in respect of the allegations that have been made. As it turned out, in that case, the person chose not to do so.
The applicant in SZFDE also provided strong corroborative evidence which would go towards the fraud that was alleged. In this case there is none.
The proof provided by the applicant falls far short of the proof that is necessary to allow this Court to be satisfied of any fraud.
It may well be that the applicant received poor service from this person who appears not to be a migration agent but that, of itself, is not sufficient. It may well be that this person is under investigation but that, of itself, is not sufficient. It may well be that it is incumbent upon the Minister to pursue the allegations made by the applicant even in the relatively vague and unformed manner that they have transpired before the Court today in order to ascertain whether the person concerned has committed some offence. It may well be appropriate for the Minster to, in fact, refer a copy of this judgment to the Migration Agents Registration Authority or such other body in order that further investigations take place.
But the allegations before me fail because of lack of evidence.
Mindful as I am that the applicant is not legally represented, I have examined the decision of the Tribunal independently of the applicant’s claims.
I am satisfied that the Tribunal did write to the applicant under the provisions of s.359A of the Act.
That section is similar in its operation to s.424A which is more commonly seen before this Court. Section 424A(1) says:
“Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.”
In my view, the Tribunal’s letter of 8^th January 2007 did just that.

Comments were received from the applicant or on the applicant’s behalf which the Tribunal considered. I am satisfied that there is no failure to comply with s. 359A.
The Tribunal, in the absence of the applicant, proceeded to decide the review under the provisions of s.362B of the Act.
That section is similar in its operation to s.426A which applies to proceedings in the Refugee Review Tribunal. That section says:
“(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.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it has rescheduled.”
In this case, the Tribunal did satisfy itself that it had complied with the requirements of ss.360A, 379A and 379G of the Act, having issued an appropriate invitation under s.360 of the Act.
The Tribunal forwarded its letter to the representative whose name and address which appeared on the applicant’s application for review.
In my view, there was nothing to indicate to the Tribunal that there was anything suspicious or untoward in that arrangement and there was nothing to alert the Tribunal of any fraud or misfeasance on behalf of the applicant’s representative.
All that the Tribunal knew was that the applicant had been properly invited to attend the hearing and the applicant did not turn up.
There was nothing which would justify the Tribunal rescheduling the hearing and I am satisfied that the Tribunal complied with s.362B of the Act.
Ms Francois, counsel for the respondent Minister, commented that the applicant, notwithstanding his disbelief of what he said he had been told by the agent in respect of the Migration Review Tribunal hearing, still used the agent’s postal address originally as his address for service when he commenced proceedings in the Federal Magistrates Court and, on his own evidence, complied with the agent’s advice to commence proceedings in this Court.
That point alone would indicate that the Court, if it were necessary, should review the applicant’s evidence with some scepticism. But the fact is the applicant’s evidence fell far short of proving what he wished to prove.
In my view there is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474 of the Act.

It follows then that no orders in the nature of certiorari or mandamus are appropriate and the application will be dismissed.
There is an application for costs. The amount sought is $4,100.00 which is certainly well within the range. It is a figure I understand is inclusive of counsel’s fees and I consider it appropriate.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 23 August 2007