Yu v Minister for Immigration and Anor (No.2)
[2005] FMCA 1676
•10 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YU v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2005] FMCA 1676 |
| MIGRATION – Visa – student visa – Migration Review Tribunal – application for review of decision by MRT affirming a decision of a delegate of the Minister to cancel the applicant’s Student (Temporary) (Class TU) visa – failure to meet course requirements – applicant a citizen of China – condition 8202. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Yang Yu v Minister for Immigration [2005] FMCA 1588 |
| Applicant: | YANG YU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3333 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 November 2005 |
| Date of Last Submission: | 10 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That leave is given to join the Migration Review Tribunal as a party to the proceedings.
The Migration Review Tribunal is joined as second Respondent.
The application is dismissed.
The Applicant is to pay the first Respondent’s costs fixed in the sum of $500.00 and I will allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3333 of 2004
| YANG YU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application under r 16.05 to set aside the judgment made on 23rd February 2005 dismissing the applicant's application for review of a decision of the Migration Review Tribunal, affirming a decision to cancel the applicant's Student Temporary Class TU Visa. The application had been listed for final hearing on 23rd February 2005 at 2.15 pm. When the applicant had not appeared by 2.45 pm and no message had been received from the applicant or from anyone on her behalf explaining her absence, I dismissed her application with costs under the provisions of r.13.03A(c) of the Federal Magistrates Court
Rules 2001. I also directed the respondent to write to the applicant, drawing her attention to the provisions of r 16.05. The Court's media neutral citation for the judgment is Yang Yu v Minister for Immigration [2005] FMCA 1588.The applicant has now filed an application seeking an order that the Court set aside its decision and allow her to lodge an application for review to the Full Court of the Federal Court. That part of the application is misconceived, but I will treat this as an application to set the judgment aside under r.16.05. The application was filed on 27th October 2005. The applicant has filed an affidavit in support of her application that says it was sworn or affirmed on 27th October 2005. The affidavit says in its entirety:
1.I sent an application notice of appeal by fax 9230 8295 on 4/3/2005.
I also posted the hard copy by mail on the same day. The Court says it has not received them.
It is a statement of the obvious that the contents of the affidavit do not give any grounds as to why the judgment should be set aside. I note that both the original application and this application do not refer to the Migration Review Tribunal as a party.
As the applicant's substantive application seeks orders in the nature of certiorari and mandamus against the Migration Review Tribunal, it is my view that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 requires that the Tribunal should be joined as a party. Accordingly I give leave to join the Migration Review Tribunal as a party to the proceedings and I order that the Migration Review Tribunal is to be named as the second respondent.
The applicant did not appear at Court when the matter was called at 10.15 am. I stood the matter down until 10.45 am. The applicant appeared at 10.35 am, having gone to another Court by mistake.
She told the Court that she had become ill on the day of the hearing. She went to see a doctor but did not bring a medical certificate with her. She thought that she may have the medical certificate at home and she would be able to bring it if given more time. She said that she did not tell the Court that she was unable to attend because of illness because she did not know how to notify the Court.
The applicant gave evidence with the assistance of a Mandarin interpreter but also speaks quite good English. She told the Court that a solicitor acting for the Minister had telephoned her at 8 o'clock that morning to see if she would be attending Court and she said yes that she would. She later became ill during the day and attempted to ring the solicitor's office but for some reason was unable to make contact. When asked by the Court why she waited to seek relief until
27th October this year, some eight months after the decision, she said that she had received a letter telling her that her appeal was rejected but the letter did not tell her that she could apply to have the decision set aside.
She faxed a notice of appeal to the Federal Court but did not get any reply from them, so she just waited believing that the matter was being processed. On 23rd October she went to the Federal Court, meaning the Registry, and asked them about the process of her application.
They could not find her fax nor could they find the hard copy of the fax that she had sent them. She told the Court that she went to the Registry at Queens Square on two occasions. They denied having any record of receiving any kind of communication from the applicant.
Turning to the substantive application for review of the decision of the Migration Review Tribunal, the applicant did say that she had obtained a medical certificate to say that she had been emotionally affected by a serious illness suffered by her mother. The affect of her mother's illness had quite an emotional affect on her as she was the only child of the family.
Turning to her academic results, she admitted that she had gone through a period of unsatisfactory academic results, not having passed 14 units of study. She said that when she had studied at the Sydney Institute of Business and Technology she had difficulty during the first semester in adapting herself to tertiary study as it was significantly different from that which applied in China. In the second semester, the process of the course was somewhat different and there was in fact a change in the text book. She was of the belief that there were compassionate reasons why the Tribunal should have allowed her application for review.
For the respondent Minister, Ms Mak, solicitor, referred both to the applicant's application to set aside the judgment of 23rd February and her substantive application for review. She submitted that the applicant knew that the matter had been listed for hearing on that day and had in fact received a telephone call from the respondent's solicitors on the morning of the hearing. She understands and can speak English and possesses a mobile telephone. She was not able to make contact with the Court or with the applicant's solicitors. She had not produced any medical certificate relating to her illness. Ms Mak submitted that the applicant had not shown any exceptional circumstances that would justify the setting aside of the judgment of 23rd February.
Turning to the substantive application, Ms Mak submitted that even if the Court were to allow the applicant to re-argue the application for review, she had no prospects of succeeding with her substantive application. She had shown no ground of review that was likely to give any prospect of success. It produced no particulars and no further medical evidence. She conceded that there were copies of some medical certificates from a Dr Law and a Dr Lau and page 14 of the Court Book, but those had been taken into account by the Tribunal.
The principal difficulty for the applicant was that at 3rd September 2003 she had made unsatisfactory academic progress and her attendance was unsatisfactory. She referred to the certificate at page 37 of the Court Book from the Sydney Institute of Business and Technology, showing that for the applicant her attendance was classified as Not Satisfactory and her academic results were classified as Not Satisfactory. The respondent's view is that on the substantive case the applicant cannot succeed. In reply, the applicant indicated that if she were given an adjournment she would be able to return with a medical certificate relating to her absence from Court on the day of the hearing.
I have considered all of the material and I am not satisfied that the applicant took the necessary steps to advise either the Court or the respondent's solicitors of her inability to attend the hearing due to illness. She is studying in Australia and, unlike a number of applicants, has a reasonable command of English even though at times it was necessary for her to rely on the services of an interpreter. She had spoken to the respondent's solicitor on the telephone that morning at a time when, on her evidence, she was not feeling unwell and it seems surprising that she was not able to make contact with the firm to indicate that she had been taken ill.
She did on 4th March attempt to lodge an appeal against the decision.
It is perhaps understandable that she waited for six months thinking that the Court was taking a long while to process the material. It was after six months that she decided to make her own inquiries and bring this application to the Court. She has attended Court today.
I am satisfied that the applicant has explained the delay in bringing her application to set aside judgment. She is a young woman from another country and is of a somewhat gentle and retiring nature and I am prepared to accept that she was not more forceful in making inquiries from the Court, having sent in by facsimile and later by mail an application to lodge an appeal.
What I have to look at is whether there are grounds for setting aside the judgment made on 23rd February this year. I am certainly not satisfied that the applicant, if she were ill, made sufficient efforts to contact someone about the fact that she could not attend the hearing that afternoon. She knew the hearing was on and she should have known it was important. If she had obtained a medical certificate which would have been advisable, it could well have been attached to her affidavit.
Setting aside a judgment is not a matter of course; it is a matter that needs to be justified on the facts. In any event, I have read through the decision of the Migration Review Tribunal. I am not satisfied that there is any reviewable error. As Ms Mak for the respondent Minister submitted, the Tribunal did not have any discretion to set aside a visa cancellation where there was a substantiated breach of condition 8202. The breaches related to non-attendance, even though the non-attendance was only slightly below the required level of 80 per cent.
The other breach related to unsatisfactory academic performance and that involved in Semester Three, a failure of four units attempted, and that evidence is set out on page 37 of the Court Book. For unsatisfactory academic on 11th March 2004, the applicant was issued with a notice from the Sydney Institute of Business and Technology showing that she was excluded from the course.
Her substantive application to send the matter back to the Migration Review Tribunal does not show any merit on its face and is one which does not appear to me to have any prospects of success. The explanation for non-attendance at the Court hearing is to my mind insufficient. For these reasons I make the following order.
There is an application for costs which the solicitor for the respondent estimates at $500.00. The applicant does not have permission to work and has no funds to meet such an amount, certainly not in the short run. That is not of itself a ground not to make a costs order, but it is a matter that I would take into account in assessing time to pay. The amount sought is certainly within what I consider to be an allowable range for meeting an application of this type.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 15 November 2005
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