Wei v Minister for Immigration

[2014] FCCA 753

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 753

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal failed to afford the applicant procedural fairness – allegation that Tribunal’s decision was contrary to the evidence before it ‑ possible allegation that the Tribunal’s decision was affected by fraud – no jurisdictional error found ‑ application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 16
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158
SZFDEv Minister for Immigration and Citizenship [2007] HCA 35

Applicant: WENJIE WEI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent MIGRATION REVIEW TRIBUNAL

File Number: SYG 1670 of 2013

Judgment of: Judge Nicholls

Hearing date: 28 February 2014

Date of Last Submission: 28 February 2014

Delivered at: Sydney

Delivered on: 14 April 2014

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms E Warner Knight

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 22 July 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1670 of 2013

WENJIE WEI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 July 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 15 July 2013 which affirmed the decision of the delegate of the Minister (“the delegate”) to refuse the grant of a Student (Temporary) (Class TU) visa (“the visa”) to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”) (“Court Book” – “CB” – CB 1). He applied for the visa on 14 June 2012 (CB 1 to CB 37, including attachments). He was assisted in his application by a registered migration agent (CB 15 and CB 35).

2. On 27 June 2012 the applicant was contacted by the delegate by email requesting evidence of a “Confirmation of Enrolment” (“COE”) in a course of study that met the relevant regulatory requirements for the grant of the visa (CB 44). The delegate did not receive the requested COE from the applicant, and on 21 August 2012 refused the applicant’s application for the visa because he did not satisfy “reg.572.222” of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 44.3).

3. The applicant applied to the Tribunal for review of the delegate’s decision on 12 September 2012 (CB 47). He was again assisted by the same registered migration agent (CB 53). The applicant was invited to attend a hearing before the Tribunal and to provide evidence of a COE or “evidence that [he was] enrolled in or [was] the subject of a current offer of enrolment in a registered course” (CB 60.7). The applicant attended the hearing on 11 July 2013 ([12] at CB 67).

4. The Tribunal affirmed the decision of the delegate on 15 July 2013 to refuse the visa to the applicant. The applicant had not provided the requested evidence to the Tribunal at the hearing ([12] at CB 67). He was given further time to do so. No COE was provided to the Tribunal after that time elapsed ([12] at CB 67).

5. In these circumstances, the Tribunal found that there was no evidence that the applicant was “currently enrolled in or the subject of a current offer of enrolment in any course of study” and did not meet the essential requirements of Schedule 2 of the Regulations for “visa subclasses 570, 571, 572, 573 574 or 575”. Namely that the applicant did not satisfy cl.570.232, cl.571.232 or cl.572.231 of the Regulations ([14] – [15] at CB 67).

Legislation

1. The following clauses from the Regulations are relevant to the Tribunal’s decision:

   “570.232

   The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a)  a principal course; and

   (b) of a type that was specified for Subclass 570 visas by the Minister in a Gazette Notice:

   (i)  made under regulation 1.40A; and

   (ii)  in force at the time the application was made.

   …

   571.232

   The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a) a principal course; and

   (b) of a type that was specified for Subclass 571 visas by the Minister in a Gazette Notice:

   (i)  made under regulation 1.40A; and

   (ii)  in force at the time the application was made.

   …

   572.231

   The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a)  a principal course; and

   (b)  of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice:

   (i)  made under regulation 1.40A; and

   (ii)  in force at the time the application was made.”

The Application Before the Court

1. The application before the Court contains the following grounds:

   “1. The tribunal denied me procedural fairness and natural justice when it concluded and found that I did not meet an essential requirement of schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575 contrary to the evidence that was before the tribunal.

   2. The tribunal committed Jurisdictional error further by its conclusions and findings that I did not meet the criteria for either Subclass 576 (AusAid or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Student (Temporary) (Class TU) visa contrary to the evidence that was before the tribunal that my agent was responsible.”

Before the Court

1. The applicant appeared in person at the first Court date in this matter and was assisted by an interpreter in the Mandarin language. At that time I sought to explain to the applicant the role of the Court and the inability of the Court to consider the merits of his application for the visa or to grant him a visa. I urged the applicant to consider seeking legal advice, and made orders allowing him to file an amended application and evidence by way of affidavit to support his grounds. The matter was set down for final hearing.

2. At the final hearing the applicant appeared in person. He assisted by an interpreter in the Mandarin language. Ms E Warner Knight appeared for the Minister. I had before me the bundle of relevant documents filed by the Minister (“the Court Book”) and the written submissions filed by the Minister. Nothing further has been filed by the applicant

3. The applicant made the following points in his oral submissions to the Court. He had approached a migration agent to arrange for a student visa. His intention in doing so was to “go to college and start a business”. He claimed that he had paid a large sum of money to the agent and that the agent told him, at that time, that he would “contact” him. Despite paying this money he was not given a visa. He claimed the agent “cheated” him.

4. The applicant claimed that he had been in Australia for six years and could “not believe” that he would have to go back to China “after all these years”.

5. He further submitted that he hoped that before the Tribunal he would “get a bit more time to get another agent” because the agent did not “handle” his case “properly”. The applicant then said he did consult a “second agent” who advised that “they could not help” him with his “case”. It was not clear whether this occurred before or after the Tribunal made its decision.

6. The applicant then, without prompting, said that he had spoken (“turned”) to a lawyer about his case. I understood that he said he had approached “LegalAid”. He also stated that he approached a “Chinese lawyer here in Sydney”. It was not clear if this was a “LegalAid” lawyer. I noted with the applicant that any conversation that he had with his lawyer was subject to legal professional privilege and that he did not have to tell me what was said unless he wanted to (“waiver”). In any event, whatever was discussed is not relevant to the disposition of this case. What is of relevance is that the applicant had the opportunity to obtain legal advice about his matter before the Court.

7. It is of some benefit in reading the consideration below to note the following understanding derived from the material before the Court.

8. The issue determinative of the review before the Tribunal was that the applicant had not provided evidence that he was “currently” enrolled, or the subject of an offer of enrolment, in any course of study. On this basis the Tribunal could not be satisfied that he met a central criterion for a student visa. That is, that the applicant was enrolled in a course of study.

9. This matter, that is the need for a person to be enrolled or subject to an offer of enrolment in a course of study before they could be given a student visa, was a live issue as a result of the delegate’s decision.

10. A reference to dates is important here. The application for the visa was made on 14 June 2012 (CB 1). The applicant had made an application for another visa prior to that time, presumably, for the purpose of studying in Australia (see CB 4 to CB 5).

11. He was assisted in the making of the visa application in 2012 by a registered migration agent (“Bin Wang” – Questions 71 and 76 at CB 15). There is nothing to say he was an “education agent” (Question 73 at CB 15). However, the name of the migration agent’s organisation would suggest some connection to education (“Wonsen Enrolment and Visa Service” – CB 35). [The applicant has used the terms “migration agent” and “education agent” interchangeably before the Tribunal and the Court which has made it difficult to identify exactly which agent he claims “cheated” him – see ground two and below].

12. The application for review to the Tribunal on 12 September 2012 reveals that the same registered migration agent continued to represent the applicant (CB 53).

13. Amongst other matters, therefore, at the time of the delegate’s decision the applicant was represented by a registered migration agent, who continued to represent him before the Tribunal. It does not appear the registered migration agent attended the Tribunal hearing with the applicant (CB 62 and [12] at CB 67).

14. The Tribunal noted in its decision record that the applicant was represented by a “registered migration agent”. Yet his complaint before the Tribunal, as recorded by the Tribunal, was about his “education agent”. It may of course be that that meant the same thing to the applicant. However, before the Court the applicant was not clear as to the identity of the “education agent” to whom the complaints were directed, nor the timing of when he paid the money he claims to have paid and for which he said he was “cheated”.

15. The applicant sought to explain to the Court that he initially came to Australia with the assistance of an education agent from China. He said he came as a “normal student”. When he arrived in Australia his “Australian agent was missing”.

16. In context, I understood this to be as follows. His travel and entry to Australia as a student was arranged by an education agent in China. He was told there would be an education agent in Australia who would assist him. This agent “went missing”.

17. When he first came to Australia the applicant was under 18 years of age. He studied at a high school (CB 5). Given that he was under 18, I can take judicial note (given the relevant regulatory scheme) that the applicant would have required a “guardian” for the purposes of the visa. He told the Court that his “guardian” also went “missing after a year”. It was not clear whether the guardian was his father or an “agent in Pitt St” who assisted him. Further, he submitted that he had three or four agents while in Australia and that Mr Bin Wang, a “migration agent” (see above at [19]), was “different” to these other agents. This was left unexplained.

18. The applicant’s submissions to the Court were confused. However, I understood that the “education agent” against whom he sought to now complain was Mr Wang. At best, it appears that this was the “education agent” against whom he raised concerns before the Tribunal. I will return to this specific issue below.

19. The circumstances referred to above appear to underpin both the applicant’s grounds in his application. Other than the references to the Court Book above, none of the remainder, including the complaints against his agent (other than what is in the Tribunal’s decision record) was put before the Court in an evidentiary context.

20. It must be noted that the applicant volunteered to the Court that he had sought legal advice. Further, he has been given a reasonable opportunity to provide evidence to the Court. However, the applicant’s complaints remain expressed as no more than submissions. Except, perhaps, for what he put in his affidavit, made on 22 July 2013, filed at the time of the application to the Court (see [45] below).

21. There may be some circumstances where the offer of an opportunity, even at the “late” stage of a hearing, to give oral evidence from the witness box may assist an unrepresented applicant to overcome this deficiency (SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146). This is so even in circumstances where that opportunity to provide evidence, in this case about five months, and the receipt of legal advice, have not resulted in any evidence by way of affidavit.

22. In any event, this was not necessary in the current case because the consideration of the applicant’s grounds proceeded on the following factual basis. He had paid money to his agent (most probably Mr Wang), and that he had expected his agent to arrange student enrolment and conduct visa arrangements for him. That is, the consideration proceeded on the basis of, and in light of, the factual assertions made by the applicant.

Consideration: Ground One

1. Ground one asserts a denial of procedural fairness. However, the subsequent “explanation” in the ground is said to be that the denial of procedural fairness arose because the Tribunal concluded that the applicant did not meet an essential requirement of the relevant visa criteria. The applicant says that this conclusion was contrary to the evidence before the Tribunal.

2. It is trite to say that the notion of procedural fairness, generally, is directed to the relevant process not necessarily to the outcome, or decision, made by an administrative decision maker, in this case the Tribunal. An applicant is entitled to a fair process, not necessarily the “correct” outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

3. In any event, it was reasonably open to the Tribunal to conclude that the applicant did not meet a relevant and critical requirement for the grant of the visa. The applicant applied for a student visa. The regulatory requirement for evidence of current, or prospective, enrolment, in a course of study would appear to reflect a logical policy position that student visas be granted to those who genuinely intend to study.

4. The applicant was put on notice by the Tribunal that the production of evidence of enrolment, or an offer of enrolment, was a critical issue in the outcome of the review. This was done by the Tribunal’s letter of 17 May 2013 (CB 60 to CB 61) and what was said to the applicant at the hearing before the Tribunal ([12] at CB 67)

5. I note further that the applicant would have been on notice as a result of the delegate’s decision that this was a “live” issue in the disposition of his application (CB 44.5). To the extent that ground one refers to a denial of procedural fairness, none is evident in this regard (SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

6. Although not specifically raised by the applicant, I also considered whether the Tribunal’s response to the applicant’s request to the Tribunal at the hearing for more time to provide the COE may lead to some revelation of legal error (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 16 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1).

7. However, the Tribunal did consider the applicant’s reasons for seeking further time, and did give the applicant further time to provide the relevant evidence ([12] at CB 67).

8. It is important to note that on the applicant’s own evidence before the Tribunal, he had no actual knowledge about enrolment in any educational course, or the obtaining of any COE ([12] at CB 67). The applicant’s evidence to the Tribunal was that he relied on his agent for these matters ([12] at CB 67). Notwithstanding the relatively short time the Tribunal gave the applicant after the hearing, this was in all the circumstances, and in particular given the time that he had previously had, a reasonable time within which to contact his agent to pursue the matter of the COE.

9. No legal error is revealed in ground one.

Ground Two

1. The complaint in ground two appears to have two elements. First, that the Tribunal committed jurisdictional error in concluding that the applicant did not meet the criteria for either a subclass 576 or subclass 580 visa.

2. The Tribunal found that there was no evidence before it that the applicant satisfied all the criteria for these visas (see [14] at CB 67). These findings were probative of what was before the Tribunal. The material in the Court Book reveals the absence of relevant evidence that the applicant met these requirements at the relevant time.

3. As the Minister submits, there is no error in the Tribunal’s findings here that the applicant did not meet the relevant requirements. Indeed, nor has the applicant told the Court why he asserts that he did. I also agree with the Minister that there was no obligation on the Tribunal to further “investigate” or explore these visa categories with the applicant. The applicant had ample opportunity to put any such evidence before the Tribunal.

4. Second, the applicant submitted that the Tribunal fell into error by failing to grant the applicant a visa because his agent “was responsible”. In context, this appears to be a complaint that the applicant did not provide evidence that he met the visa criteria, but did provide evidence that his agent was “responsible” for this state of affairs.

5. Two things are of immediate note. First, this complaint contradicts the earlier complaint in the applicant’s ground that there was evidence before the Tribunal that he met the visa criteria.

6. Second, in his affidavit of 22 July 2013, filed with the Court at the time of making his application, the applicant repeats (at [10]) the words of ground two of the application. In that sense it can be said that the applicant has sought to put evidence, that is his own evidence, before the Court that his agent was responsible for the conduct of his affairs before the Tribunal. Perhaps it can be said that implicit in this is that the failure to put the relevant evidence before the Tribunal lay with the agent.

7. Beyond that, it is not entirely clear to what the applicant refers when he says that there was evidence before the Tribunal that his “agent was responsible”.

8. A part of the Tribunal’s account of the hearing may provide some context if not explanation ([12] at CB 67):

   “… The Tribunal referred to its hearing invitation letter, in which the Tribunal had also invited the applicant to provide evidence of this, and asked if the applicant had such evidence. He stated he did not, and raised a number of issues in relation to his education agent, and the fact that he had paid that agent sums of money to arrange his studies, including enrolment but that problems had occurred including in relation to in his previous enrolment, and the agent had not acted as the applicant expected he would. The applicant confirmed to the Tribunal that he was not currently enrolled in any course, and indicated that his agent had told him only that he would send evidence of enrolment to the Department ‘soon’, and that the applicant should not ‘worry about’ the Tribunal’s processes. The Tribunal stated that without evidence of enrolment or offer of enrolment, the applicant would not be able to satisfy prescribed criteria for a student visa. The Tribunal asked whether the applicant had details of the course of study that his agent said he was arranging for the applicant. The applicant stated he was unsure, but that he wanted to study business management. He stated again that the agent told him he would arrange CoE. The Tribunal stated it was concerned the applicant did not appear to have any details about the course the agent was purportedly arranging for him, including where he would be studying and what level of qualification he would be studying…”

1. As set out above, it was not necessary to give the applicant any further opportunity to put further evidence before the Court in relation to his matter. When offered the opportunity to say anything before the Court, the applicant did not offer anything of further substance. In any event, as set out above, I have proceeded on the basis of viewing the applicant’s case at its highest. That is, to consider the ground on the basis of accepting his “factual” submissions.

2. The following relevant facts can be ascertained from the evidence and submissions before the Court:

   1)The applicant was assisted by the same registered migration agent in making his application for the visa (CB 15 and CB 35) and in his application for review to the Tribunal (CB 53).

   2)The applicant wanted to study “business management” ([12] at CB 67).

   3)The applicant relied on the agent’s statement to him that he would “arrange a COE”.

   4)As a “stranger” in Australia, he had no knowledge of visa application procedures. Over the years that he had been in Australia he had relied on a number of agents and he relied wholly on his agent to make all relevant arrangements for him. His agent told him to leave all the arrangements to him.

   5)The applicant had little knowledge about the details of the course his agent was to arrange for him. At no time, on the evidence and submissions before the Court, did the applicant himself provide any detail to the Tribunal about any proposed course of study. (Other than in general terms – see above).

   6)No COE was ever provided to the Tribunal.

3. In SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158, a matter before the Full Federal Court and involving allegations of fraud by a third party in relation to a Refugee Review Tribunal, the Full Court said (at [65]):

   “Having found the facts, it will be necessary for the Federal Circuit Court to apply SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501.”

4. In applying the High Court and Full Federal Court authority to the facts in the current matter no fraudulent conduct or “fraud like” conduct can be said to arise from the agent’s actions such as have the “immediate consequence of stultifying the operation of the legislative scheme to afford natural justice” to the applicant (SZFDEv Minister for Immigration and Citizenship [2007] HCA 35 at [49] (“SZFDE”)).

5. I note that such conduct can be of “infinite variety” (SZFDE at [8] and SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 at [33] per Finkelstein J). However, the applicant’s unhappiness with his agent because “problems had occurred” in relation to his education enrolment, and that the agent “had not acted as the applicant expected he would” in arranging his enrolment, obtaining a COE and, ultimately, obtaining the grant of the visa, does not rise to the level of conduct that the authorities provide could lead to the process before the Tribunal being “stultified”.

6. It may be that the applicant feels he was “cheated” by his agent given that he paid money for the procurement of a visa, and this did not occur. But the applicant’s own view of these events, his own interpretation or description of them, does not alter the situation that the facts as presented do not rise to a position of finding that the agent’s conduct was fraudulent, or indeed that there was any other relevant conduct that can be said to “stultify” the process before the Tribunal.

7. On the applicant’s account he left his enrolment and migration affairs in the hands of his agent. The agent did not secure a successful outcome for him. Even considering the applicant’s submissions as if they were put in some evidentiary context, it is not possible to say that the agent induced the applicant to pay him money while knowing that he could not obtain enrolment in a course of study or a COE for him.

8. Given the number of relevant possibilities that may flow form the word “cheated” in the applicant’s description of what he said had occurred, that word requires special attention.

9. To produce the kind of conduct that would “stultify” the Tribunal’s decision a number of elements would need to be present in the circumstances presented by the applicant. For example, that the agent took money from the applicant, promising a COE and visa, in circumstances where the agent knew that neither could be procured for the applicant.

10. There is nothing in the applicant’s account to be able to reasonably find that the agent engaged in such conduct knowing that he could not produce the desired results, or having no intention to try to achieve the applicant’s desired outcome.

11. For example, and despite the opportunities provided to him before the Tribunal and the Court, the applicant did not seek to recount any conversation with the agent, where the agent made promises that could be seen to be knowingly unachievable.

12. In my view, what the applicant has told the Court, and previously the Tribunal, reveals that he was not “cheated” on the basis of any fraudulent conduct by the agent, but that he felt “cheated” because he did not get the outcome he sought. This is an important distinction. The applicant may have held the agent “responsible” for the conduct of his enrolment and visa affairs, but that alone does not allow for a finding of fraud or other such relevant conduct.

13. Nor does the applicant’s ground lead to any revelation that the Tribunal, otherwise, fell into jurisdictional error in this regard. The Tribunal reported the applicant’s evidence in its decision record, but it also reported that it told the applicant it was concerned that he, the applicant, “did not appear to have any details about the course the agent was purportedly arranging for him, including where he would be studying and what level of qualification he would be studying” ([12] at CB 67). Given that the applicant was the prospective student, the Tribunal’s concerns were reasonably open to it in the circumstances.

14. If the applicant chose to leave his affairs in the hands of his agent, absent any evidence of fraudulent conduct or wrongdoing, no jurisdictional error is revealed in circumstances where the agent simply failed to obtain the COE and/or consequently the student visa. There is no evidence before the Court, nor has the applicant even given any indication or made submissions as to why the agent failed to obtain the COE. In these circumstances, it is not open to the Court to speculate in this regard. No jurisdictional error is revealed in ground two.

Conclusion

1. In the circumstance it is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  14 April 2014