Wei Su v Minister for Immigration - [2006] FMCA 1278

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEI SU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1278

MIGRATION – Refusal to grant student visa – unsuccessful review by Migration Review Tribunal – jurisdictional error said to arise from failure to consider power to obtain information pursuant to s.359 of the Migration Act – whether duty to consider exercise of power.

Migration Act 1958 (Cth), ss.359, 427, 476, 476(4)
Federal Magistrates Court Rules 2001, rr.44.05, 44.12(1)(c)
Migration Regulations 1994 (Cth) cl.571.223(2)(a)(i)(B)

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514

Applicant:

WEI SU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

ADG68 of 2006

Judgment of:

Lindsay FM

Hearing date:

10 August 2006

Date of last submission:

10 August 2006

Delivered at:

Adelaide

Delivered on:

1 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr S. Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr K. Tredrea

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application filed on 3 March 2006 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG68 of 2006

WEI SU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). The jurisdiction of the Court is the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
The provisions of sub-section 2 are not applicable. In particular the application relates to a decision of the Migration Review Tribunal and is not an application in relation to a “primary decision” as defined in s.476(4). Nevertheless s.474 of the Act is applicable. The decision of the Migration Review Tribunal which is the subject of this application, is a privative clause decision and accordingly final and conclusive unless the decision can be demonstrated to be a decision affected by jurisdictional error as that concept was described in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.
The application is made in accordance with r.44.05 of the Federal Magistrates Court Rules 2001. The application is for an order to show cause. The hearing was conducted upon the basis that I should make final orders in relation to the claim for relief and the grounds mentioned in the application pursuant to r.44.12(1)(c).
The applicant applied on the 21 March 2005 for a Student (Temporary) (Class TU) Visa Sub-class 571. She made the application as a previous visa of that class was about to expire. Her application was refused by the delegate of the Minister because she had not met the requirements of cl.571.223(2)(a)(i)(B) of the Migration Regulations 1994 (Cth) (the “Regulations”).
That particular Regulation requires evidence of sufficient funds to support the applicant for the period of her proposed study and stay in Australia. She had to provide evidence as to the availability of an amount of $16,750. It had to be from acceptable sources (essentially a close relative).
The delegate requested that information from the applicant in two letters, the first dated 31 March 2005 (CB 27) and the second dated 4 May 2005 (CB 30).
It is common ground that the applicant did not respond in a timely fashion to these requests.
The application was refused and the applicant advised of this in a letter dated 22 June 2005 (CB 34).
The application for review to the Tribunal was lodged on 21 July 2005. It was accompanied by two certificates of deposit, one was with the Agricultural Bank of China in the amount of RMB100,000 which sum was deposited on 29 October 2004. The name of the depositor was rendered only in Mandarin characters. The second deposit was with the China Merchants Bank for RMB50,000 deposited on 15 December 2004. The depositors name on that document is Su Cai Qun. He is the applicant’s father. He is the person described in paragraph 44 of the visa application as the applicant’s closest relative in China.
The Tribunal wrote to the applicant on 17 November 2005 (CB 55) advising her of the fact that the hearing was scheduled for 16 January 2006. In the meantime the applicant had changed address. She did not notify the Tribunal of her change of address.
On 16 January 2006 the Tribunal wrote to the applicant advising that a decision had been made and inviting the applicant to the formal handing down of the decision on 1 February 2006 (CB 58). The applicant was sent a copy of the Reasons for decision on 1 February 2006. Those letters were sent to her former address.
In its decision the Tribunal noted the requirements of cl.571.223(2)(a)(i)(B) of the Regulations. It correctly identified the requirements and also correctly identified the assessment level of the applicant which was a necessary part of the application of that Regulation. The Tribunal found, as it was bound to do on the information before it that it had inadequate information to be able to satisfy itself that the applicant had met the requirements of the Regulation.
At paragraph 19 of its Reasons the Tribunal noted that the combined value of the two deposits exceeded the amount required but said it had no information as to the relationship if any between the applicant and Mr Su. Strictly speaking that was not correct in the sense that Mr Su had been identified in paragraph 44 of the visa application as the applicant’s closest relevant in China (CB 8). When asked to describe the relationship of Mr Su to her in that paragraph the applicant had expressed herself in Mandarin. However, the Tribunal had no information as to the owner of the other deposit as it had not been translated. The Tribunal had no information as to whether the funds were from an acceptable source. That requirement arises from the requirements for assessment level 4 described in sch.5A to the Regulations. That this was a requirement is not in dispute. Also not in dispute was the requirement under that same schedule to the Regulations of evidence that the regular income of any individual providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
Section 359 of the Migration Act provides:
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3)If an invitation is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies–by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
The jurisdictional error that is said to have arisen in this case is that the Tribunal did not consider the exercise of its power to obtain information under subsection 1 of that section. It is contended that if it had done so it could have satisfied itself relatively easily of the matters referred to above. That is to say, it could have had translated the second deposit certificate, it could have inquired as to the applicant as to the identity of Mr Su, it could have asked the applicant to explain to it all of the matters relating to the source of the funds and the regularity of income referred to above. Whilst it was conceded that there was no duty to obtain the information or no general duty to inquire on the part of the Tribunal it is said that the circumstances of this case in their totality were sufficient to require the Tribunal to consider whether to exercise the power. The failure to do so is said to be a jurisdictional error in that it indicates that the Tribunal did not understand its role and that such lack of understanding amounted to a constructive failure to exercise jurisdiction.
Apart from what is alleged were the relatively straight forward nature of the inquiries, the other matters which in aggregate were said to give rise to the requirement to consider whether or not to exercise the power were:
a)the fact that the applicant in the absence of such inquiry was bound to fail;
b)to the error as to the contention that there was no information as to the identity of Mr Su.
c)the failure to translate the second deposit
d)the failure of the applicant to attend the hearing.
The difficulty the applicant has with this contention is that for me to so find would be to refuse to follow a decision of the Full Court of the Federal Court which is precisely on point namely, WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277. That decision related to a review of a decision of the Refugee Review Tribunal. The relevant grant of power to enable that Tribunal to obtain evidence is set out in s.427 of the Act. It is not in precisely the same terms as s.359, but is not materially different. The Court was there considering failure by the Refugee Review Tribunal to make inquiries of the applicant’s legal practitioner relating to whether or not certain advice discouraging a particular submission had been proffered by that legal practitioner. The Full Court first noted that s.427 did not impose any legal obligation on the Tribunal to make the inquiries (see paragraph 24 of the judgment). They then say at paragraph 25:
“By a parity of reasoning, it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power. Moreover, there is either a legal obligation to exercise the power or there is not. If there is not, we do not agree that there could be some "confluence of circumstance and claim" which somehow enlivened some dormant residual obligation under s 427(1)(d). To that extent we would respectfully disagree with the proposition advanced by Allsop J in Gomez and Azzi. It is conceivable that failure by the Tribunal to make some particular enquiry might be relevant to a finding by the Court on review that there was a lack of good faith and that as a consequence the Tribunal's decision was beyond jurisdiction. But in such event the error would be lack of good faith and not the breach of any legal obligation under s 427(1)(d). No such obligation exists.”
WAGJ was followed by Edmunds J in the Federal Court in SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514. This again was a case relating to a review of the Refugee Review Tribunal and the alleged failure to consider the exercise of the power to obtain information pursuant to s.427 of the Act.
His Honour says at paragraph 20 of that judgment:
“One of the difficulties which any such argument would face is that the Full Court has held in WAGJ (which concerned the parallel power to instigate ‘enquiries’ under s 427), that the Tribunal is not under a duty even to consider exercising the relevant power. Such a construction is inconsistent with the decision not to exercise the power being ‘unreasonable’ in any sense relevant to validity. While WAGJ concerned the statutory grounds of review under the former s 476 of the Act, the same is not true of other cases denying the existence of a duty to enquire: see VSAF of 2003 at [20]. The principle established is equally applicable in cases concerning the Constitutional writs: the Tribunal does not fail to comply with its obligations under the Act if it fails to make, or to consider making, an enquiry.”
It is not conceded by the respondent in this case that there was a failure to consider the exercise of the power pursuant to s.359. Neither is it conceded that the matters which it is said would have satisfied the Tribunal that the requirements of the Regulations have been met were to be easily obtained. But it is unnecessary for me to determine such matters. The Full Court of the Federal Court has decided that a power to obtain information such as is provided in s.359 does not give rise to a legal obligation to consider whether the power should be exercised. That being the case any failure so to do cannot amount to a jurisdictional error. True it is that earlier decisions of single Justices of the Federal Court had suggested there would be circumstances where such an obligation to exercise the power arose (they are the cases referred to in the passage cited above from WAGJ). The applicant contends that such circumstances exist in this case. But the Full Court of the Federal Court has determined otherwise and the doctrine of stare decisis requires me to find in accordance with their determination.
In these circumstances the application for review is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms K. Clarke

Date: 1 September 2006.