WU v Minister for Immigration

[2015] FCCA 439

FEDERAL CIRCUIT COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 439

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – application dismissed.

PRACTICE AND PROCEDURE – Summary dismissal – application summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999

Federal Circuit Court Rules 2001
Migration Act 1958

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: ZHIMIN WU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 234 of 2015

Judgment of: Judge Street

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Ms Given

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 234 of 2015

ZHIMIN WU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ, within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of a decision of the Tribunal on 15 January 2015. 

2. The grounds of the application are as follows:

   1. The Tribunal did not inform the applicant that it would vacate the hearing date of 11 February 2015 and make a decision within 2 days of the applicant’s response to the Tribunal’s hearing invitation dated 12 January 2015 (the hearing invitation). As a result the applicant was denied a reasonable opportunity be heard, in that she could not provide written submissions in support of her application in accordance with the Tribunal’s direction that she provide all documents she intended to reply on “within 7 days of receipt of [the hearing invitation]”.

3. At the commencement of the hearing of this matter, in respect of which the parties are notified that the Court may hear and determine all issues, or final issues, or may give directions for the future conduct of the proceedings, the Court raised the concern that the proceedings appeared doomed to failure, and was inclined to consider whether or not the matter should be disposed of summarily.

4. The Court identified that the ground identified in the application did not appear to reveal any jurisdictional error, particularly in light of the decision of the Tribunal that identified a particular history in which the applicant was invited to attend a scheduled hearing for 11 February 2015.  In that notification, under the heading Part 1, Who Will Take Part in the Tribunal Hearing, and a notation recorded:

   Please note that if you select “no” in response to the following question, the Tribunal may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before it.

5. In response to the question, “Will you take part in the Tribunal hearing scheduled for 11 February 2015?” the applicant, with her agent, ticked “no”.  It is clear from the material in the applicant’s affidavit that the applicant was alive to the response, and participated in a response that was sent to the Tribunal. 

6. The Tribunal, as it was entitled to upon receipt of that response and consistent with the notification that it had given, that it may make a decision on the application for review without taking further question, proceeded to do that on 15 January 2015.  There was no communication from the applicant or agent seeking an adjournment, requesting an opportunity to put in further written submissions, or seeking to raise any other matter that would have enlivened the Tribunal to any reason why it should not proceed as notified, to make a decision on the application for review. 

7. It’s clear from the reasons of the Tribunal that it turned its mind to whether or not any adjournment or further opportunity should be given to the applicant, and, in my opinion, it was open to the Tribunal to conclude as it did, that in light of the communication that the applicant did not wish to take part in the hearing, without the receipt of further submissions, the Tribunal should proceed to make a decision on the application for review.  I am satisfied that it cannot be said that no reasonable Tribunal in the circumstances could have come to the view that it should not make a decision on the application for review. 

8. The Tribunal noted that the application for review was in relation to the grant of a Student (Temporary) (Class TU) visa that the applicant had applied for on 14 March 2014. It was noted that the subclass that can be granted depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as, in this case, her principal course, whether the applicant has the support of a relevant minister or whether the applicant has applied on the basis of being a student guardian.

9. The Tribunal said:

   3. In the present case, the applicant applied on the basis of being a Student Guardian for her daughter who was intending to study in Australia. The delegate refused to grant the visa because the applicant’s daughter had turned 18 at the time of application and there were no exceptional reasons provided for the visa to be granted. The delegate found that the applicant could not satisfy cl.580.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

10. The Tribunal turned to consider the substance of the application and whether the applicant met, at the time of the decision, the criterion under clause 580.222 for a student guardian subclass 580 visa.  The Tribunal noted that no evidence had been provided to indicate that the criterion could be satisfied.  The Tribunal said it cannot be satisfied on the information that it has that the applicant meets the requirements of clause 580.222, and it has no other material to suggest the applicant meets the prescribed criteria for any other subclass in the Student (Temporary) (Class TU) visa category. 

11. Accordingly, the Tribunal found the applicant does not meet a criterion for the grant of a Student visa and must affirm the decision under review.  It is clear from the reasons, as well as the notification that was sent to the applicant, that ground 1 of the application is doomed to failure and has no reasonable prospect of success.  In relation to the statutory power under s.17A Federal Circuit Court Act 1999 and r.13.10 Federal Circuit Court Rules 2001, I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28:

    24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in FanCourt v Mercantile Credits Ltd said[48]:

    "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

    More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:

    "Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

    There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

    25. S.31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the Court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

    …

    59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

    60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

12. The applicant was asked whether there were any other grounds that the applicant could identify as to a jurisdictional error. The applicant maintained that the procedural requirements under the legislation were not satisfied.  It is clear from the decision of the Tribunal that the statutory requirements were complied with. 

13. In these circumstances, I am clearly satisfied that the proceedings have no reasonable prospect of success. The application is summarily dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2015