Wei v Minister for Immigration & Anor

[2013] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 262

Catchwords:
MIGRATION – Application for injunction to restrain removal of the applicant from Australia until substantive judicial review application determined – not in the interests of the administration of justice – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.116, 476, 477

SZRQW v Minister for Immigration & Anor [2012] FMCA 1090
Vu v Minister for Immigration & Citizenship [2008] FCAFC 59
Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293

SZOCH v Minister for Immigration [2010] FMCA 300

Applicant: WENQIANG WEI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 847 of 2013

Judgment of: Judge Nicholls

Hearing date: 7 May 2013

Date of Last Submission: 7 May 2013

Delivered at: Sydney

Delivered on: 7 May 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application in a Case made on 7 May 2013 is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 847 of 2013

WENQIANG WEI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an Application in a Case, made today (7 May 2013), seeking an “injunction” restraining the Minister for Immigration and Citizenship from removing the applicant from Australia. The applicant had made an application to this Court, on 23 April 2013, seeking an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), in which to bring an application pursuant to s.476 of the Act, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 11 January 2012, which affirmed the decision of a delegate of the respondent Minister to cancel the applicant’s student visa.

2. I have before me documents relating to the application for an extension of time, including an affidavit made by the applicant on 23 April 2013 which provides some explanation of his claims before the Tribunal. Annexed to that affidavit is the Tribunal’s decision record (“DR”).

3. The applicant appeared in person, via telephone, and was assisted by an interpreter in the Mandarin language. Ms B Rayment appeared for the respondent Minister.

4. I explained to the applicant that, in order for his Application in a Case to be successful, he would need to show that his application to the Court (the extension of time application) raised a “relevant legal issue”. That is, whether there was a serious legal question which required hearing by this Court. The Minister’s position was that he opposed the applicant’s Application in a Case and that the balance of convenience did not favour the grant of the relief sought by the applicant in his Application in a Case.

5. Some background to this matter is necessary at this point.

6. The applicant was granted a Subclass 572 Vocational Education and Training Sector visa on 27 April 2010 ([2] at DR 2). That visa was cancelled by a delegate of the Minister on 29 November 2011, under s.116(1)(b) of the Act, on the basis that the applicant did not comply with condition 8202 of his visa ([2] – [3] at DR 2). That is, the condition requiring him to remain enrolled in a relevant educational course.

7. The applicant applied to the Tribunal on 19 December 2011 for review of the delegate’s decision. On 11 January 2012 the Tribunal affirmed the delegate’s decision.

8. In his application to the Court seeking an extension of time, the applicant’s grounds are:

   “1. The Tribunal decision is vitiated by jurisdictional error.

   2. I did not know that I had a right of Judicial Review fro[m] the decision of the Tribunal.

   3. The first time I knew that I had a right of review was when with my limited English read the decision.

   4. I have been suffering from mental illness and have depressed since being in detention as a result of the cancellation of my student visa.

   5. Exceptional circumstances beyond my control.”

9. Before the Court, the applicant sought to further explain these grounds. He claimed that he had paid money to the school he attended to help him, and that they had not told him of the opportunity to seek judicial review of the Tribunal’s decision.

10. The grounds of the applicant’s substantive application are:

    “1. The Tribunal denied me procedural fairness and natural justice when it made its decision on 11 January 2012.

    2. The Tribunal denied me procedural fairness given that there were exceptional circumstances beyond my control that dictated that my visa should never have been cancelled.”

11. The first Court date in this matter was set down for 14 June 2013. The matter was placed in the docket of Judge Emmett.

12. Before the Court today, the applicant claimed that he had not received certain notices from the Minister’s department in relation to the cancellation of his visa. However, he did not provide any evidence of this to the Tribunal, nor had he complained about it before the Tribunal (see [26] at DR 5 to [27] at DR 6).

13. Further, the applicant claimed that the Tribunal had not taken into account his explanation of relevant exceptional circumstances. The Tribunal’s decision record indicates that the applicant did not appear at a hearing before the Tribunal ([27] at DR 6). [The Tribunal sought information from the applicant pursuant to s.359A of the Act. This included information in relation to “discretionary considerations”. His representatives advised the Tribunal that after contacting the applicant there was “nothing to submit”. Given s.359C of the Act, and s.360(3) and s.363A, the applicant had no right to appear at hearing before the Tribunal ([26] at DR 5 to [29] at DR 6).] The applicant was given the opportunity to put forward any exceptional circumstances to the Tribunal. He did not do so. Further, on the documentary evidence before it, the Tribunal was of the view that exceptional circumstances could not be made out ([35] at DR 7).

14. In my view there is no serious question of law to be heard in these proceedings, and the balance of convenience in this matter favours the Minister.

15. First, the applicant’s argument today in support of his Application in a Case was that he wanted the opportunity to go before the Court on 14 June 2013 in relation to his substantive application so that he could “talk” to the Court about it.

16. To the extent that the applicant relied simply on the fact that he had been given a Court date for his extension of time application to argue in support of his Application in a Case, as I explained to the applicant, that, in itself, was not sufficient cause to restrain the Minister from proceeding with his removal. The central issue today is whether the application raises a legal issue to be tried.

17. Second, to the extent that the applicant had raised claims to protection in Australia (including in his affidavit of 23 April 2013 and before the Court) these claims were considered by the Refugee Review Tribunal and its decision was the subject of judicial review (SZRQW v Minister for Immigration & Anor [2012] FMCA 1090 (per Judge Emmett, delivered on 20 November 2012) (“SZRQW”)).

18. For immediate purposes the substantive application sought to be brought before the Court challenges a decision of the Migration Review Tribunal concerning the cancellation of the applicant’s student visa. To the extent that events in China may be relevant to this, the Tribunal plainly addressed this (see [33] at DR 6).

19. Third, the substantive application faces another hurdle. It was made outside the time limit set out in s.477(1) of the Act for the making of such applications. (The Tribunal decision was made on 11 January 2012, the application to the Court on 23 April 2013.)

20. The applicant told the Court today (albeit not in any evidentiary context) that he had the assistance of a lawyer “in Chinatown”. [There is no lawyer on the record in this matter. Nor was the applicant represented before the Court in SZRQW – see [23] of that judgment.]

21. Nonetheless, he claimed that his lawyer told him to “withdraw” his “application” to the Minister with regard to his protection visa given that he had subsequently chosen to pursue this application to the Court. At best, I understood this was an attempt by the applicant to explain the delay in coming to the Court. That is that he had previously sought the Minister’s intervention to grant him a protection visa.

22. On its own this is not a satisfactory explanation for the delay. On his own submission, the applicant had the benefit of legal advice and chose to pursue Ministerial intervention with respect to a protection visa instead of coming to the Court (Vu v Minister for Immigration & Citizenship [2008] FCAFC 59 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed, Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 citing Hayne J in Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364, Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [15] per Goldberg J and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [16] – [24] and [36] per Black CJ, Sackville and Sundberg JJ. See also my discussion in SZOCH v Minister for Immigration [2010] FMCA 300 at [38] and [53] – [54]).

23. Further, the applicant’s evidence in his affidavit of 23 April 2013 (at [19]) is that he did not know he had a right of judicial review in relation to the Tribunal’s decision. This does not explain the delay as the applicant then goes on to provide in his affidavit that the first time he “knew [he] had a right of review was when with my limited English read the decision” (at [20] of the affidavit of 23 April 2013). There is nothing in the decision of the Tribunal that says that the applicant has a right of (judicial) review such that he could say that the first time he knew of the option of judicial review was when he read the Tribunal’s decision.

24. Further, as the Minister submitted, the applicant’s explanation that he did not know of the option to pursue judicial review should be rejected given that the applicant had already pursued judicial review in this Court, and the High Court previously (albeit in relation to the decision of the Refugee Review Tribunal).

25. Fourth, the two grounds of the substantive application (which at the current time is, in any event, not competent) do not make out an arguable case for the relief sought. At best, the grounds assert error on the part of the Tribunal because, on the applicant’s contention, exceptional circumstances meant that his visa should never have been cancelled.

26. The Tribunal’s decision makes clear that the applicant’s visa was cancelled pursuant to s.116(1)(b) of the Act because the applicant had ceased enrolment in a course of study. Such enrolment was a condition (8202) of his visa ([30] at DR 6). The Tribunal found that the applicant had ceased to be enrolled and therefore was in breach of his visa condition ([32] at DR 6).

27. Contrary to the applicant’s assertion now, the Tribunal did have regard to the matter of exceptional circumstances ([19] at DR 4 to [20] at DR 5 and [33] at DR 6). The grounds of the application, therefore, seek to challenge the Tribunal’s factual findings. No arguable case is revealed in the circumstances.

28. Fifth, the applicant claimed before the Court that he had not received certain notices from the Minister’s department. In context, this appeared to be notices in relation to the cancellation of his visa. As I said to the applicant, the opportunity to put that complaint was before the Tribunal. There is no evidence to support that allegation. [The Tribunal did address the matter of the Notice of Intention to Cancel the Visa ([24] at DR 5).]

29. On the evidence before the Court, I am not satisfied that it is in the interests of justice to grant the “injunction”. The explanations provided by the applicant as to the delay in bringing his substantive application to this Court were not satisfactory. Further, even if time were to be extended, the substantive application seeking review of the Tribunal’s decision did not present a serious legal question to be tried by the Court.

30. I agree with the Minister’s submission that the balance of convenience does not favour the grant of the relief sought by the applicant in his Application in a Case. That application should be dismissed. I will make an order accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 10 May 2013