Wang v Minister for Immigration - [2007] FMCA 1455

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1455

MIGRATION – Student visa – unsatisfactory course attendance and results – living in a de-facto relationship – no compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen – no denial of natural justice – no errors of law – application dismissed.

Migration Act 1958 (Cth), ss.357A, 359, 359A, 359C, 360, 474
Migration Regulations 1994 (Cth), reg.571.323

SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 33

Applicant:

JIA LIN WANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1256 of 2007

Judgment of:

Turner FM

Hearing date:

8 August 2007

Date of Last Submission:

8 August 2007

Delivered at:

Sydney

Delivered on:

8 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms L. Clegg

Solicitors for the Respondents:

Ms N. Johnson of Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1256 of 2007

JIA LIN WANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed on 18 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 27 February 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicant arrived in Australia on 17 May 2003 on a subclass 573 visa, which was valid until 27 August 2006 (Court Book “CB” 107). That visa was cancelled on 7 February 2005 under s.116 of the Migration Act 1958 (Cth) (“the Act”) on the basis that the applicant breached condition 8202 of her visa which relates to satisfactory attendance and results at courses (CB 144).
On 31 January 2005 the applicant (as a secondary applicant) and her de-facto partner (Mr Yan Wang) applied to the Department of Immigration and Multicultural and Indigenous Affairs for a Student (Temporary) (Class TU) visa. The applicant was included in the application as a member of the family unit of the applicant, Mr Yan Wang, who was her de facto spouse (CB 1).
Regulation 571.323 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) required that the applicant meet public interest criteria 4013, which required that the applicant was not affected by a risk factor, relevantly in this case that a previous visa had been cancelled. On 13 October 2006 the Tribunal wrote to the applicant (CB 131) inviting her to comment on her visa being cancelled under s.116 of the Act as that may indicate that she did not meet public interest criteria 4013.
On 24 November 2005 a delegate of the first respondent rejected the applicant’s student visa application because she failed to satisfy reg.571.323 of the Migration Regulations (CB 108) as the delegate was not satisfied that the applicant met the requirements of public interest criterion 4013 (CB 143). The delegate found that the applicant was affected by a relevant risk factor, namely, her previous visa had been cancelled. Mr Yan Wang’s application was successful (CB 105-8).
On 13 March 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Migration Review Tribunal (CB 109).
By decision signed on 27 February 2007, the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a Student (Temporary) (Class TU) visa. In considering the applicant’s claims, the Tribunal found (CB 144-5) (highlighting added):
The Tribunal has before it the Department’s and the Tribunal’s case files relating to the applicant. The Tribunal has had regard to the material referred to in the delegate’s decision.
At the time of the application the applicant was the holder of a Subclass 573 student visa which was valid until 27 August 2006. On 7 February 2005 the applicant’s visa was cancelled under section 116 of the Act on the ground that she breached condition 8202 of the visa.
On 15 September 2006 the Tribunal wrote to the applicant inviting her to provide additional information indicating that she meets public interest criterion 4013. The applicant requested an extension of time to respond to the Tribunal’s letter and on 13 October 2006 the Tribunal wrote to the applicant granting her request. The Tribunal also advised the applicant that if the Tribunal did not receive the requested information within the prescribed (extended) deadline, the Tribunal may make a decision on the review without taking any further action to obtain the information or to invite the applicant to appear before the Tribunal. In the event, the Tribunal did not receive the requested information within the prescribed deadline and the Tribunal has proceeded to make a decision on the material before it.
On 5 December 2006 the Tribunal received a written submission from the applicant. In the submission the applicant summarises the events leading up to the cancellation of her student visa. In relation to public interest criterion 4013, the applicant cites the following as compelling circumstances justifying the granting of the visa within 3 years after the cancellation:
·    She has been in Australia for 3.5 years.
·    She would have difficulty getting into university in China if she were to return.
·    She had been living with her de facto partner, who is a Chinese student studying in Australia and doing well in his studies, since she arrived in Australia.
·    The applicant and her partner have committed very much in time and money on their studies in Australia. “It will be a disaster if I or we have to be forced to go back. Our education and career or even relationship will be great[ly] affected.”
Since the applicant’s last Subclass 573 student visa was cancelled on 7 February 2005 under section 116 of the Act on the ground that she breached condition 8202 of the visa, the Tribunal finds that she does not meet subclause (2) of the public interest criterion 4013. In relation to subclause (1) of public interest criterion, the Tribunal has considered the applicant’s submission in which she cites certain circumstances which she feels are sufficiently compelling to justify the granting of the visa within 3 years after the cancellation. The Tribunal notes that these circumstances all relate to the effects and consequences of the refusal of her visa application on her and her partner, who is also a Chinese student studying in Australia. The Tribunal considers that the circumstances cited by the applicant do not constitute either compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
It follows from the preceding findings that the applicant does not meet public interest criterion 4013. The applicant therefore does not meet clause 573.323 of the Regulations, nor clause 323 of the other subclasses of Class TU visas.
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).

The application

In her application, the applicant set out five grounds as follows:
(1)The decision maker ignored relevant material.
(2)The decision maker acted in breach of the rules of natural justice.
(3)The decision maker failed to follow the procedures required by the Migration Act 1958.
(4)The decision maker failed to address or make findings in relation to claims made by the applicant.
(5)The decision maker showed apprehended or ostensible bias.

Findings as to the grounds in the application

Ground one alleges that the Tribunal ignored relevant material. The Tribunal wrote to the applicant on 15 September 2006 (CB 123) inviting the applicant to give it additional information relevant to the review, by 24 October 2006. The applicant sought an extension of time. An extension to 21 November 2006 was granted (CB 131). The applicant failed to provide additional information by that date (CB 144). The applicant did however, send a written submission to the Tribunal that was received on 5 December 2006. The Tribunal took that submission into account in reaching its decision (CB 144-145). The Tribunal stated that it considered the applicant’s submission but decided that the circumstances cited by the applicant do not constitute “either compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, or Australian permanent resident or an eligible New Zealand resident.” That decision was properly open to the Tribunal on the material before it. It has not been established that the Tribunal ignored relevant information. Ground one is rejected.
Ground two alleges a denial of natural justice. The effect of s.357A of the Act is that Division 5 of Part 5 of the Act is an exhaustive statement of the natural justice hearing rule applicable to this matter. Section 359 provides for the Tribunal to invite an applicant to provide additional information that they consider relevant. The Tribunal complied with that section (CB 123). Section 359A requires the Tribunal to give to the applicant particulars of information that the Tribunal considers would be the reason, or part of the reason for affirming the decision that is under review, and as far as is reasonably practicable to ensure that the applicant understands why the information is relevant to the review, and to invite the applicant to comment on it. The Tribunal complied with s.359A by letter dated 13 October 2006 (CB 131).
Section 360 requires the Tribunal to invite the applicant to appear at the hearing. The Tribunal did that by letter dated 28 February 2007 (CB 139). No breach of any provision in Division 5 has been shown. There was no denial of natural justice. Ground two is dismissed.
Ground three alleges that the Tribunal failed to follow the procedures required by the Act. The Court refers to the reasons for rejecting ground two. In addition, the Court finds no breach to have been established of any other provision in the Act.
The applicant alleges that as the documents relevant to her case were not sent to her by the Tribunal until 6 November 2006, she had insufficient time to respond to the Tribunal’s invitation to provide further information. The Court finds that the month between

6 November and 5 December 2006 was sufficient time and opportunity for the applicant to respond, and that the Tribunal took into account the applicant’s submissions dated 5 December 2006 (CB 144.8)
The applicant complains that she was denied a hearing. The Tribunal wrote to the applicant on 13 October 2006 (CB 131) granting an extension of time until 21 November 2006 and advising her that:
If you are unable to provide comments by 21 November 2006, you may request in writing that you be allowed additional time in which to respond. Such request would need to be received before 21 November 2006.
The applicant alleges that “she responded to the Tribunal on the date of the deadline” (21 November 2006) but there is no evidence that a letter was sent by the applicant, or received by the Tribunal, before 21 November 2006 as required.
The Tribunal stated as well in its letter dated 13 October 2006 (CB 132):
If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your comments or to invite you to appear before the Tribunal.
The Tribunal therefore complied with s.359C(1) of the Act, which provides that if a person does not give the information before the time for giving it has passed the Tribunal may make a decision on the review without taking any further action to obtain the additional information. The Tribunal did however consider information received on 5 December 2006 (CB 144-145). The Tribunal complied with the Act and was entitled to make a decision on the review without conducting a hearing. As s.359C(1) and (2) apply to the applicant, the applicant was not entitled to appear before the Tribunal: s.360(2)(c) and s.360(3). The Court refers to the decision of Tracey J in M v Ministerfor Immigration and Multicultural Affairs (2006) 91 ALD 629 at [46] as follows:
Section 363A operates to remove any residual discretion the Tribunal may have had to permit an applicant to appear notwithstanding his or her loss of an entitlement to do so.
Ground three is rejected.
Ground four alleges that the decision maker failed to address or make findings in relation to claims made by the applicant. This allegation is not correct. The Tribunal addressed the applicant’s claims at CB 144.9-145.4. Ground four is rejected.
Ground five alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”:SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”:Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Bias has not been established. Ground five is rejected.

Conclusion

The Court finds that the Tribunal’s decision is a privative clause decision which has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: Mary Giang

Date: 24 August 2007