Wu v Minister for Immigration
[2011] FMCA 447
•6 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 447 |
| MIGRATION – Extension of time – discretion to extend time – false or misleading material provided by applicant – prerogative relief discretionary – relief would be denied even if technical breach established – applicant confined to material put before the Tribunal. |
| Federal Magistrates Court Rules 2001, r.13.03C Migration Act 1958 (Cth), ss.55, 359B, 363(1)(b), 474 Migration Regulations 1994, reg.1.15B, subclass.880.22, 880.223, 880.224 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu ShanLiang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | DAREN WU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 19 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing date: | 6 June 2011 |
| Date of Last Submission: | 6 June 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2011 |
REPRESENTATION
| The Applicant did not appear |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application for judicial review filed on 13 January 2011 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the amount of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 19 of 2011
| DAREN WU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex-tempore and Revised)
The applicant has been refused a Skilled – Independent Overseas Student (Class DD) visa (the “visa”) and seeks judicial review of that decision.
The applicant applied for a visa on 22 August 2005 (Court Book (“CB”) 1). The application was refused by a delegate of the Minister on 8 April 2008 because the delegate was not satisfied that the applicant had “vocational English”, as defined by reg.1.15B of the Migration Regulations 1994 (the “Regulations”).
The visa applicant lodged a review application with the Migration Review Tribunal (the “MRT”) on 29 April 2008. The MRT (the first Tribunal) affirmed the decision of the delegate on 28 October 2008 (CB 89). The visa applicant applied to the Court on 5 February 2009 for judicial review of the Tribunal’s decision. The matter was remitted by consent to the MRT for reconsideration according to law on 25 May 2009. Upon remittal, a differently constituted Tribunal (the second Tribunal) reconsidered the matter. On 14 October 2009 the second Tribunal affirmed the decision of the delegate (CB 146). The applicant lodged an application for judicial review with the Court and on 13 November 2009 the matter was remitted by consent to the MRT for reconsideration according to law. By decision 16 December 2010, the MRT affirmed the decision of the delegate (CB 198).
By application filed on 13 January 2011, the applicant seeks judicial review of the decision of the MRT dated 16 December 2010.
The grounds of the application are:
(1)MRT required further submissions, however MRT did not consider the further submissions at all.
(2)I request for extension of time to collect more evidence to prove my claims, however MRT simply just reject the request
By orders on 2 March 2011, the matter was listed for final hearing by the Court at 10.15am on 6 June 2011.
By letter to the Court dated 21 May 2011, the applicant advised that his grandmother had been hospitalised for heart surgery, and it was “important and urgent” that he “go back to China and be with her at this time”. The applicant stated:
If it is not possible to postpone the hearing, would you please advise me another option so that we can deal with this problem more appropriately? Otherwise, I have to withdraw from this case.
I was wondering if it is possible for me to submit my documents in a month. I apologize for any inconvenience this may have caused”.
The Court responded on 27 May 2011 by advising that a copy of the applicant’s letter had to be sent to the other side, and that:
“consideration will only be given to an administrative adjournment if it is by consent. Should you obtain the consent of the other party, please notify chambers in writing …
If consent is not obtained prior to the Court date, the matter will remain listed at 10.15am on 6 June 2011 and any applications may be made in Court on that day”.
The Court did not receive a notification of consent by the Minister to an adjournment, and the matter remained listed for 6 June 2011.
The applicant sent an email to the Court on Saturday 4 June 2011 stating that he had not heard from the Court or the other side. Therefore, the latest advice to the applicant is that the matter remains listed for 6 June 2011.
The applicant failed to appear at the hearing on 6 June 2011, and pursuant to r.13.03C of the Federal Magistrates Court Rules 2001, his application was held in his absence. The matter was listed for 10.15am on 6 June 2011, and the applicant had not appeared by 10.30am.
Given that the relief sought by the applicant is discretionary, for the reasons set out at the end of this decision, granting an adjournment would not have affected the outcome of the judicial review.
Also, the applicant sought an adjournment to enable him to “submit documents in a month”. It appears that the applicant wants to re-submit documents put before the MRT. The Court has had regard to the material put before the MRT and contained in the Court Book.
Insofar as the applicant wishes to submit material that was not put before the MRT; an applicant for judicial review is confined to material put before the Tribunal see SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145 per McKerracher J at [27]:
“27 An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:
It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”
The applicant had been given several years to provide evidence that he had attained vocational English (CB 210-211). The MRT sent the applicant a letter on 2 August 2010 inviting the applicant to provide written submissions by 8 September 2010 that he had “vocational English” (CB 160).
The MRT set out the history of invitations to the applicant to provide evidence of his vocational English (CB 210 [48] – [50]).
In its decision on 16 December 2010, the MRT affirmed the decision of the delegate on the basis that the applicant does not have vocational English (CB 211 at [50]). That finding of fact was open to the MRT on the material before it and is not amenable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
The Court refers to the following decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
And at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual findings of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:
16 “I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.
The MRT found that as a result of the applicant not having “vocational English” (the applicant did) “not meet subclass 880.223” (of the Regulations which) “is a mandatory criterion”, (and left it) “no alternative other that to affirm the decision under review” (CB 211 [50]).
Subclass 880.223 is “time of decision criteria” (880.22) and requires that “The applicant has vocational English”.
The MRT found also that the applicant gave information that “deliberately misrepresented his test scores” (CB 211.2). That finding of fact is not amenable to review.
At the time of the decision, clause 880.224 of the Regulations provided as follows (CB 211 [51]):
No evidence has become available since the time of application that the information given to satisfy Subdivision 880.21, or to meet the requirements of item 1128CA of Schedule 1, was false or misleading in a material particular.
However, the MRT did not rely on the provision of false material by the applicant to affirm the decision of the delegate; it affirmed the decision because the applicant had “not produced evidence of vocational English for the purposes of subclass 880.223” (CB 214 [56]).
Ground One
This ground is factually incorrect – it asserts that the MRT “did not consider the further submissions at all”. The MRT set out the applicant’s submissions received on 6 December 2010 (at CB 207 [39]) and dealt with the relevant part of the submissions in it reasons (CB 210.8).
The applicant stated that “Hales’ word is a lie” (CB 207.9). But the MRT had found that Hales had advised the MRT that “he has never started with us and therefore never completed” (CB 206.1). The MRT considered the applicants submission that “Hales told a lie” and that
St George Institute was untruthful, in its reasons (CB 213 [55]). The MRT therefore considered the submissions by the applicant.
An error of law has not been established. Ground one is dismissed.
Ground Two
As to the applicant’s claim that the MRT did not grant an extension of time to enable the applicant to collect more evidence, the Court accepts the submission by the first respondent that “the applicant has not identified any breach of the procedural code considered by Division 5 of Part 5 of the Act”.
Section 357A(1) of the Act provides:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The power to extend time for the provision of information is discretionary [s.359B(4) and (5) of the Migration Act 1958 (the “Act”)]. Section 363(1)(b) gives the MRT a discretionary power to adjourn a review from time to time. Section 55 of the Act provides as follows:
(1)Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2)Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
The Court accepts the following submissions by the first respondent:
“Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the Tribunal in the present context is the legislative direction that it must conduct its review in a manner which "is fair, just, economical, informal and quick." Procedural decisions of tribunals… should not be lightly disturbed: NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118, per Flick J.
The MRT is generally under no duty to use its permissive statutory powers: see WAGJ of 2002 v MIMA [2002] FCAFC 277 at [21], [24]-[25]. The MRT is also not required to give reasons for its exercise of discretion: SZHSQ v MIMA [2006] FCA 1295. But in any event, the first respondent contents that the MRT did in fact provide reasons as to why it decided to not adjourn. In the Full Federal Court decision in Huo v MIMA [2002] FCAFC 383, which upheld a decision of Conti J in Huo v MIMA [2002] FCA 617, the applicant complained that the MRT should have waited for a related decision. Conti J concluded at [31]:
(emphasis added)
The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal's decision on the JNZ application… there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.
Similarly, in Chen v MIMA [1999] FCA 1022 at [26], Marshall J found that there was no error in the Tribunal offering a three week adjournment when the applicant requested a 6-8 week adjournment “having regard to the statutory command in s420(1) of the Act for the MRT to provide a “quick” review.
No error in the MRT’s exercise of discretion is manifest”.
The MRT set out full reasons for refusing to grant more time to provide evidence (CB 210 [48]).
An error of law has not been established. Ground two is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Even if the Court had found a technical defect as alleged by the applicant it would not grant discretionary relief, as the applicant “deliberately misrepresented” his IELTS test scores (CB 211.2). Such conduct should not be engaged in by an applicant.
Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [10]:
The appellant, in our view, has so conducted himself both in relation to the Minister and to the Court as to disentitle himself to the award of discretionary relief even if it be assumed that his fresh ground of appeal has technical merit.
And at [11]:
“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90].
And at [12]:
As was said of the writ of mandamus in The King against Commonwealth Court of Conciliation and Arbitration ; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at [400]:
“the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld”.
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
And at [14]:
…We would deny him the relief sought even if he could make out the ground relied upon. It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant.
Relying on that decision, the application for judicial review would not be granted even if a technical defect had been established. The applicant has been dishonest, as he deliberately misrepresented his IELTS results.
The application for judicial review is dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Associate:
Date: 10 June 2011
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