WU v Minister for Immigration - [2004] FMCA 953

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION

[2004] FMCA 953

MIGRATION – Review of Migration Review Tribunal decision – refusal of a student temporary class TU visa.

Migration Act 1958 (Cth)

Baidakova v Minister for Immigration and Multicultural Affairs [1998]
Kim v Witton (1995) 59 FCR 258

Applicant:

QIAN WU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1182 of 2003

Delivered on:

16 November 2004

Delivered at:

Melbourne

Hearing Date:

16 November 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

Ms J.K. Macdonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The applicant’s application filed on 27 October 2003 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $5,020.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1182 of 2003

QIAN WU

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment.
The applicant in this matter did not appear this morning. The applicant was legally represented in the matter until August when her solicitors ceased to act. A notice of ceasing to act was filed on 17 August 2004. At the commencement of the hearing this morning the respondent appeared and I had the applicant's name called three times. She did not answer the call.
Rule 13.03A of the Federal Magistrates Court Rules deals with how proceedings should continue, if at all, in the default of appearance of a party. Those rules provide as follows:
13.03A. If a party to a proceeding is absent from a hearing (other than the first court date), the Court may do any of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c) if the party absent is an applicant or a respondent who has made a cross-claim — dismiss the application or the cross-claim;
(d)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
I therefore have a number of options as to how I can proceed with the matter. Given that it is a migration matter and has been pending for some time, it is appropriate that it proceed today. There is nothing before me to indicate any reason why it should not proceed or why the applicant has not appeared. The applicant has taken up a day of hearing time that could have been assigned to another applicant for review of a decision of the Minister. The applicant has filed contentions of fact and law setting out her case and argument. This is not an application where the case has not been clearly articulated in an outline of argument. In the circumstances I propose to proceed with the hearing generally as provided for under rule 13.03A(d), relying upon the applicant’s written submissions.
The option to proceed to hear a matter on its merits, in the absence of a party is not unreasonable when defendants fail to appear. Indeed, in cases involving discretionary remedies or orders it is necessary as such orders are not available by way of default judgement: an example of such a course can be found in Zomba Production Music (Australia) P/L v. Roadhouse Productions P/L (In liq.) [2001] FCA 1526. Whilst, in this case, the respondent doesn’t seek specific orders, (such as a declaration as to the validity of the Tribunal’s decision) the dismissal of the applicant’s claim has a similar effect. If the respondent cross-claimed for such a declaration there would be no question as to their ability to pursue a hearing today, pursuant to R13.03A(d). The fact that no cross application has been filed does not diminish the practical effect of a dismissal order following a hearing of the application. This is quite different to a common law claim by a plaintiff that may be summarily dismissed.
It would be unfortunate if the respondent were limited to an order under R13.03A(c) in a judicial review case as it would simply encourage respondents to always cross-apply for a declaration as to the validity of the decision which could be pursued under R13.03A(d). This would only be productive of unnecessary expenses in the litigation of judicial review cases and should not be encouraged.
I am of the view that proceeding under R13.03A(d) creates a final order, subject only to setting it aside under the specific power in rule 16.05 (which provides for setting aside judgments after they have been entered if they are made in the absence of a party). Clearly this rule (R16.05) is an exception to the usual principal of res judicata as it enables the court to set aside the orders if it subsequently transpires that the non-appearance of the applicant was for good reason or reasons beyond her control, effectively causing the hearing to have miscarried. There is no information before me at this stage about such matters and I need not consider them further now.
I therefore proceed to hear and determine the application. I have read the material, including the outline of argument filed on behalf of the applicant, the decision of the Migration Review Tribunal (‘the MRT’) and the outline filed on behalf of the Minister. I have also heard counsel on behalf of the Minister.
This case concerns an application for a student visa. On 24 May 2002 the applicant was granted a student temporary class TU visa which was valid until 15 March 2003 subject to the usual condition 8202 which relates to enrolment and course requirements. That condition provides as follows:
(3) A holder meets the requirements of this subclause if:
(a)In the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)     for a course that runs for less than a semester – for the course; or
(ii)     for a course that runs for at least a semester – for each term and semester of the course; and
(b)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory;
(i)      for a course that runs for less than a semester – for the course; or
(ii)    for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
The applicant was undertaking a diploma of business commerce degree at Monash University. It appears clear from the decision of the MRT that during the first semester of the course, whilst the applicant attended all of her classes, she failed every subject. In the second semester she repeated three of the four subjects and failed two of those three subjects. As a result of her failing two subjects two semesters in a row the university excluded her from the course. This is not surprising. Indeed, in years gone by, many universities would have excluded a student for failing every subject in one semester without the opportunity to repeat those subjects in the following semester.
The applicant then applied for a further student visa. One of the conditions that had to be satisfied was that set out in Part 573.212 of Schedule 2 of the Regulations which provides:
573.212If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.
The question for the MRT was, therefore, whether or not the applicant had substantially complied with condition 8202, in the circumstances of this case. Clearly there had been noncompliance with the academic performance part of condition 8202.
The MRT, when considering this, said that it had regard to the comments of Katz J in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 saying that his Honour said:
"Whether a person can be regarded as having `substantially complied' with a condition is not only a quantitative matter, or question of proportionality, but also a qualitative matter which may concern factors such as the bona fides of the Applicant, so that a person who has sought to comply with the condition but made an innocent error or was thwarted from complying with the condition through no fault of his or her own may be said to have `substantially complied' with the condition as distinct from a person who knowingly disregards the condition."
Katz J did not say this in the judgement, but referred to it. It is a statement by a member of the MRT in a case that was considered by Sackville J (Kim v Witton (1995) 59 FCR 258). Katz J took the term ‘qualitative’ to be a reference to the applicant’s bona fides, which his Honour found was a relevant consideration.
It appears from the comments of Katz J in Baidakova that substantial compliance may possibly be achieved, even if there is effectively no compliance of a particular condition, if there is good reason for non-compliance (such as reason through no fault of the applicant for failing to comply).
In this case, there has been significant noncompliance and the MRT had regard to it. The MRT also had regard to the surrounding circumstances of the visa applicant concerning her parents' relationship and the emotional impact that had upon her and her ability to study. They also took into account her attendance and marks that she received in a mid-semester test on Microeconomics, it being her latest results. Those results were 47.5 per cent, which is not an encouraging mark for the applicant if she was hopeful of passing the subject.
It does not appear that there are further facts or circumstances relied upon by the applicant before the MRT that the MRT did not touch upon in considering whether she had, in fact, substantially complied. The MRT set out its discussion in this regard at paragraph 31 where they said as follows:
31. On the basis of the guidance in PAM 3, the Tribunal is to have regard to circumstances beyond the control of the visa applicant, such as absence or failure due to illness, and whether the visa applicant is able to provide evidence in support of these circumstances such as medical certificates. The visa applicant stated that after commencing the academic year of 2002, her parent’s relationship irretrievably broke down which emotionally affected her ability to study. She claims that this absence of parental support, and the difficulties associated with her parent’s separation, were circumstances beyond her control which had an adverse affect on her studies. The Tribunal accepts that the break up of her parents marriage affected the visa applicant. It was clear that as an only child, the declaration by her parents that they would have separated shocked her greatly. However it also seems clear that the visa applicant is doing an inappropriate course, she would seem more suited to a teaching course than a business course. The new course and promising early results from her new course, are beyond the relevant period of the last visa held. However the latest results submitted of a mid-semester test of 47.5 per cent for Microeconomics, despite the 60 per cent tutorial mark, are not encouraging. The visa applicant impressed the Tribunal as a conscientious student, she had an excellent attendance record, but the upset of the parents separation and an inappropriate course have affected her. Her results are not good enough in the relevant visa period to state that she complied substantially, for indeed she did not. The Tribunal has no alternative but to find that she breached condition 8202.
The applicant, in her outline of argument, suggested that the MRT had erred in interpreting and in applying the law with respect to the meaning of the phrase "substantial compliance" or "substantially complied". I do not see any evidence of such an error.
The applicant suggests that the MRT erred in law by concluding that the poor results of the applicant were sufficient in themselves to prove that there had not been substantial compliance. I find no basis for this submission. Clearly the multiple failures of various subjects were a significant factor to which the MRT had regard. It is also clear that the MRT did not limit its inquiry to such matters. At paragraph 31 the MRT traverses a number of other factors that would be relevant to the applicant's circumstances and indeed even considers her more recent results in order to determine whether or not she had showed an improvement in her academic performance which may have, in part, assisted in her case or explained her circumstances. The allegation that the MRT limited its inquiry to her results at Monash fails.
The third ground is that the applicant alleges the MRT did not properly consider all of the circumstances that led to the alleged noncompliance. For the same reasons as set out above I am of the view that the MRT have traversed the circumstances and considered them in paragraph 31 of their decision.
The final matter raised in the contentions reads as follows:
4. Furthermore, the Tribunal's finding that the Applicant's low results prevented her from arguing successful for "substantial compliance" begs the question as to why the Applicant's results were so poor in the first place.
It does not appear to me that it is a matter for the MRT to be required to perform some form of academic or social assessment of the applicant to provide her with advice as to how she could improve her results or the specific reasons why her results are so low. It is for the applicant to establish to the MRT that she substantially complied, and she clearly failed to establish that fact to the MRT's satisfaction.
The MRT did consider factors that may have impacted upon her results such as her emotional state as a result of her parents' marriage breaking up and the suitability of the course that she has chosen. To the extent that the ground refers to a failure of the MRT to consider the circumstances leading to her results, I find that it fails. To the extent that this ground suggests that the MRT ought to pursue independent inquiries to form some sort of assessment of why it is her academic performance is low and that those inquiries should be beyond what the applicant has to put before the MRT, I find that this is not a task that the MRT is required to undertake on the authorities. In that sense the ground must also fail.
In the circumstances I therefore dismiss the application.
On the question of costs I have regard to the relevant scales in the Federal Magistrates Court Rules and the lump sum items for various stages. I also have regard to the nature of the matter and the appearance of an experienced counsel today properly prepared to argue the matter, having provided detailed contentions of fact and law as well as a book of authorities. It is clear that substantial preparation has been involved in the matter, and indeed perhaps more preparation than would normally be the case because of the poor quality of the applicant's contentions of fact and law. The respondent, quite properly and perhaps generously, has come prepared to meet whatever argument unfolded, or at least attempt to do so, to avoid the matter having to be adjourned to another date. Such conduct should not be the subject of a reduced costs order, but is effectively the result of the way in which the applicant has conducted the case.
In the circumstances I accept that the figure sought by the respondent of $5020.00 is a reasonable amount for costs. I make an order that the applicant pay the respondent's costs fixed at $5020.00.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: