Wu v Minister for Immigration
[2018] FCCA 1322
•22 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WU v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1322 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.360 |
| Cases cited: AMN16 & Ors v Minister for Immigration [2015] FCCA 2531 Minister for Immigration v SZFML (2006) 154 FCR 572; [2006] FCAFC 152 |
| Applicant: | QIULAN WU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2277 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Mr T Galvin of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 18 July 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2277 of 2017
| QIULAN WU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Ms Wu, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant to Ms Wu a medical treatment visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 15 May 2018.
Ms Wu is a Chinese national, who arrived in Australia on 1 September 2007 on a student visa.[1] Her last substantive visa ceased on 12 November 2012.[2]
[1] Court Book (CB) 71; [7]
[2] CB37 and 71; [7]
On 21 February 2017, Ms Wu applied for a medical treatment visa on the basis that she had arranged treatment for “post-medical conditions after recent termination of pregnancy surgery” for the period 20 February 2017 to 20 February 2018.[3]
[3] CB3–13
On 23 February 2017, the delegate refused to grant Ms Wu a medical treatment visa because she did not satisfy subclause 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[4] That subclause required, among other things, Ms Wu to satisfy criterion 3001 of Schedule 3, which she did not because she did not hold a substantive visa at the time of application and the visa application was not validly made within 28 days of her last substantive visa ceasing.
[4] CB35–37
Ms Wu subsequently applied to the Tribunal for review of the delegate's decision.[5] In that application, Ms Wu appointed Sophie Wang from Aussie Immigration Services as her representative and authorised recipient and provided an email address of [email protected] for correspondence with Ms Wang.
[5] CB38–39
By letter dated 22 May 2017, sent via email to Ms Wang, the Tribunal wrote to Ms Wu inviting her to give oral evidence and present arguments at a hearing on 23 June 2017 (hearing invitation letter).[6] The Response to Hearing Invitation form gave Ms Wu the option to indicate her intention to attend the hearing or not, and stated that if she selected “no”, the Tribunal may make a decision on the application without taking any further action to allow or enable her to appear before it.[7]
[6] CB50–60
[7] CB58
On 16 June 2017, the Tribunal received a completed Response to Hearing Invitation form in respect of Ms Wu, which indicated that she did not want to attend the hearing.[8] As a consequence, on the same day, 16 June 2017, at 3.31pm the Tribunal affirmed the delegate's decision.[9] A copy of its decision record was sent by email to Ms Wang at 4.11pm that day.[10]
[8] CB61
[9] CB70–74
[10] CB64
On 5 July 2017, the Tribunal received notification of updated contact details for Ms Wang, including a new email address of [email protected][11]
[11] CB75–77
On 13 July 2017, the Tribunal received a telephone call from Ms Wang stating that the she did not receive the decision record and requesting a further copy be sent to the new email address.[12] A further copy was sent by email to that new address later that day.[13]
[12] CB78
[13] CB79
Tribunal decision
The Tribunal found that Ms Wu was required to satisfy subclause 602.213 of Schedule 2 to the Regulations, which in her case rested on satisfying the requirements of subclause 602.213(5) because she did not hold a substantive temporary visa at the time of the application, the last substantive temporary visa she held was not a subclass 426 or subclass 403 visa, and she did not meet the requirements of 602.212(6).[14] Subclause 602.213(5) therefore required her to meet criteria 3001, 3003, 3004 and 3005 of Schedule 3.[15]
[14] at [11]–[12]
[15] at [12]
The Tribunal found that Ms Wu’s last substantive visa ceased on 12 November 2012.[16] The Tribunal consequently found that Ms Wu did not satisfy criterion 3001 because her application for the visa was not lodged within 28 days of that date.[17] The Tribunal therefore affirmed the delegate's decision.[18]
[16] at [14]
[17] at [15]
[18] at [16]
The present proceedings
These proceedings began with a show cause application filed on 19 July 2017. Ms Wu continues to rely upon that application. There is one ground in it:
Lack of procedural fairness. Tribunal decided on 16 June 2017 and did not allow the Applicant the opportunity to provide additional materials, up to the end of 16 June 2017, but that is the deadline set in the Tribunal's correspondence dated 22 May 2017.
The application is supported by an affidavit, which I received. In that affidavit, Ms Wu relevantly states the following:
[5]…the letter said to “please provide any additional documents or information that you may wish to rely on during the hearing to us by 16 June 2017”.
[6]The letter did not say that if I don't attend hearing, then I cannot provide the additional documents or information for my application.
[8]We discussed some other documents and materials to provide to the Tribunal on 16 June 2017 that will help my case.
[10]Around 2pm or 3pm, they email Tribunal to inform that I cannot go. They continue to prepare by additional documents to send to the Tribunal by 5pm.
[13]We discuss the documents and what to write, but then around 4.11pm, they get email from Tribunal (Attachment D). In the email, the Tribunal attach the decision…
[14]So now, we cannot send the documents because the Tribunal already decide.
[15]The letter on 22 May 2017 is confusing. First it say I can provide “documents”, but then the Tribunal did not allow it. If I know by saying I do not attend the hearing, then I cannot provide documents, then I would agree to go to hearing.
I also have before me as evidence the court book, filed on 8 September 2017 and the affidavit of Kirsty Anne Underwood, made on 15 May 2018, which simply corrects the record in relation to a particular document.
Ms Wu was cross-examined on her affidavit. Her evidence was not entirely satisfactory. Although, on its face, the affidavit suggested that Ms Wu was deterred from providing documentation to the Tribunal, on 16 June 2017, by the receipt of the Tribunal’s decision, Ms Wu, in her oral evidence, stated that the decision was not received on that day. She maintained that consistently with the documents appearing in the court book. The Tribunal’s decision was not received until requested by her agent, on 13 July 2017.[19]
[19] CB78
Ms Wu was unable to explain either what the documents were about which she proposed to send to the Tribunal or why the documents were not submitted to the Tribunal as planned on 16 June, if indeed Ms Wu and her former migration agent were at that time ignorant of the Tribunal’s decision.
As I pointed out to Ms Wu in oral submissions, I am left with the impression either that there were no documents or that no real opportunity was lost because nothing was submitted to the Tribunal prior to Ms Wu and her agent becoming aware of the Tribunal decision, on or about 13 July.
I conclude that there is no substance to the ground of review, and it does not point to any arguable case of jurisdictional error. I otherwise agree with the Minister’s submissions.
I accept the following submissions by the Minister. First, the statement made in Ms Wu’s affidavit that she was deprived the opportunity to provide further documents to the Tribunal is directly contradicted by documents on the Tribunal file. The file note of the telephone conversation of 13 July 2017 between a Tribunal officer indicates that Ms Wang, Ms Wu’s representative and authorised recipient, had not received the Tribunal's decision and that she requested a further copy be provided to her new email address.[20] Logically, therefore, the assertion that Ms Wang was in the process of preparing additional documents to send to the Tribunal on the afternoon of 16 June 2017, but then decided not to do so because she received the Tribunal's decision at 4.11pm, is at best misleading and potentially a fabrication.
[20] CB78
Secondly, when providing her response to the Tribunal's hearing invitation (indicating that she did not wish to attend a hearing), Ms Wu did not attach further documentary evidence, nor did she foreshadow that she intended to provide further documentary evidence (either by the end of that day or by some other time).[21] If Ms Wu intended the Tribunal to have regard to further documents, despite electing not to attend the hearing, presumably Ms Wu would have attached the documents to the same correspondence or mentioned that further documents would be forthcoming. When the Tribunal received correspondence from Ms Wu on 16 June 2017 (being its deadline) it had no way of knowing that she might have intended to send further correspondence later that day. In the absence of some contrary indication from Ms Wu, it was reasonable for the Tribunal to have inferred that Ms Wu’s response on 16 June 2017 was her response to the Tribunal's letter, and not a partial response.
[21] CB61–63
Thirdly, Ms Wu has not identified what documents, if any, were being prepared to provide to the Tribunal on 16 June 2017 nor has she explained how they could possibly have affected her review application. In particular, it was not possible for Ms Wu to satisfy the criteria for the grant of a medical treatment visa because she could not possibly satisfy criterion 3001. Accordingly, even if it was accepted that Ms Wu was proposing to provide additional documents to the Tribunal, those documents could not possibly have affected the outcome of the review.
Fourthly, the hearing invitation letter clearly states that the purpose of the invitation to provide additional documents or information by 16 June 2016 was for Ms Wu to rely on such material during the hearing.[22] By electing not to attend the hearing, that invitation became redundant because Ms Wu consented to a hearing not taking place.[23] Nevertheless, the Tribunal would have been obliged to consider any material submitted by Ms Wu prior to making its decision.
[22] CB52
[23] Migration Act, s.360(2)(b)
Fifthly, the available case law supports the approach taken by the Tribunal. In SZIMG v Minister for Immigration,[24] Rares J applied the decision of the Full Federal Court in Minister for Immigration v SZFML[25] in holding that “once the applicant for review consents to the Tribunal deciding the review without him or her appearing before it, the Tribunal can proceed under [s.360(2)(b) and s.360(3)] to determine the application for review on the basis of the consent”.[26] The approach taken by the Tribunal here conforms with that proposition, and the Tribunal was empowered pursuant to s.360(2)(b) and s.360(3) of the Migration Act to proceed to make a decision on the review as soon as it received Ms Wu’s consent for a hearing not to be held.[27]
[24] (2008) 167 FCR 362; [2008] FCA 368
[25] (2006) 154 FCR 572; [2006] FCAFC 152
[26] at [19]–[21]
[27] see also AMN16 & Ors v Minister for Immigration [2015] FCCA 2531 at [14]
I conclude that Ms Wu was unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 19 July 2017 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs, in the sum of $3,606. Ms Wu claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 25 May 2018
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