Zhang v Minister for Immigration & Border Protection

[2014] FCCA 290

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 290

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth) ss.359A, 359C, 360
Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13
Migration Regulations 1994 (Cth)

Cases Cited:
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: YUN YING ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2144 of 2013

Judgment of: Judge Emmett

Hearing date: 20 February 2014

Date of Last Submission: 20 February 2014

Delivered at: Sydney

Delivered on: 20 February 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Cantonese interpreter

Solicitors for the Respondents: Ms Brooke Griffin (Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2144 of 2013

YUN YING ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Migration Review Tribunal dated 19 August 2013 and handed down on 16 August 2013 (“the MRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 12 September 2013, be dismissed on the basis that the grounds of the applicant’s application do not raise an arguable case for the relief claimed.

3. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. On 6 February 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

2. I also explained to the applicant that in circumstances where the grounds of their application did not raise an arguable case, the application may be dismissed.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The applicant confirmed that she wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application and submissions in support giving complete particulars of each ground of review relied upon by 13 February 2014.

5. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

6. The matter was listed for today for a show cause hearing pursuant to r.44.12 of the Rules.

7. The applicant was unrepresented before the Court this morning, although had the assistance of a Cantonese interpreter.  The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

8. The applicant relied on a submission filed by her on 13 February 2014, in the following terms:

   “My name is Yun Ying Zhang. I believe that I have been incorrectly treated in my student visa refusal application.

   I firstly engaged an agent, Mr Liu, to apply for my student visa application paid hit a lot of money for my application fees and tuition, totalling more than $5000. I didn’t know what happened only after he gave me a letter and didn’t explain anything.

   I went to a find a friend who read the letter and told me that it says my student visa application was refused. I tried to call my agent but he didn’t answer the phone.

   I believe that my agent lied to me and to the Immigration Department and it was my agent’s fault causing my application being refused.

   I hope the judge can seek justice for me and let me to stay in Australia and continue to study English.

   Thank you very much.”

9. In the applicant’s application for judicial review, filed on 12 September 2013, the applicant identified the grounds for review as follows:

   “1. MRT failed to give me a hearing.

   2. MRT breached procedural fairness.

   3. MRT has bias against me.”

10. Ground 1 makes an assertion that the MRT failed to give the applicant a hearing. I asked the applicant what she meant by this claim and she replied that the MRT did not listen to her explanations.

11. Ground 2 asserted that the MRT breached procedural fairness. I asked the applicant in what way the MRT had not shown her procedural fairness, and she responded that because she had not appeared and did not win.

12. Ground 3 asserts that the MRT was biased against the applicant. I asked the applicant in what way the MRT was biased against her, and she responded that she did not know what had occurred.

13. None of the submissions, both written or oral, disclose any error on the part of the MRT going to the MRT’s jurisdiction.

14. The first respondent read the applicant’s affidavit filed on 12 September 2013, annexing a copy of the MRT’s decision record.

15. I accept as accurate the first respondent’s summary of the background to the current proceeding, as follows:

    “3. The applicant arrived in Australia on 23 April 2012 on a tourist visa that was valid until 23 July 2012. A day before the expiry of her tourist visa, the applicant applied to the then Department of Immigration and Citizenship for a student visa.

    4. On 2 October, the applicant was interviewed by a delegate of the Minister and on 12 October 2012, the delegate refused the application for a student visa. The delegate was not satisfied that the applicant was a genuine applicant for temporary entry and stay as a student and therefore did not satisfy clause 570.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

    5. On 13 November 2012, the applicant lodged an application for review with the Tribunal.

    6. By letter dated 23 July 2013, the Tribunal wrote to the applicant at her nominated address for receiving correspondence and invited her to comment on or respond to information, pursuant to s 359A of the Act (the s 359A letter). Amongst other things, that letter informed the applicant that she had not provided evidence that she had a current Certificate of Enrolment. The applicant was to provide her comments or response by 15 August 2013.

    7. As no response was received from the applicant, the Tribunal proceeded to determine the application and, on 16 August 2013, affirmed the decision under review.

    8. The Tribunal found no evidence before it indicating that the applicant was enrolled in or was the subject of a current offer of enrolment in any course. It was therefore not satisfied that the applicant was enrolled in or was the subject of an enrolment of a principal course of study. As a result, the Tribunal found that the applicant did not satisfy clauses 570.232, 571.232 and 572.231 of the Regulations: at [14] of the statement of reasons.”

16. In relation to the first ground, the MRT’s decision record makes clear that the applicant failed to respond to the MRT’s letter, dated 23 July 2013, inviting her to comment on information which may be the reason, or a part of the reason, for affirming the decision under review in accordance with s.359A of the Act (“s.359A Letter”). There is nothing before this Court to suggest that the letter was sent otherwise than in accordance with the statutory regime.

17. Pursuant to ss.359C, the MRT was under no obligation to invite an applicant to appear before it in circumstances where the MRT had invited the applicant to give information and the applicant fails to do so before the time for giving information has passed. This was made clear to the applicant in the s.359A Letter.

18. In relation to the second complaint made by the applicant that she was denied procedural fairness, as stated above that complaint is wholly unparticularised and unsupported by evidence. The applicant’s failure to appear and the fact that she “did not win” do not demonstrate that she was denied procedural fairness. On the face of the MRT’s decision record, the applicant was invited to give information and upon the applicant’s failure to provide that information, the MRT exercised the discretion that it has under s.360(2) of the Act to proceed to make a decision without taking any further step to invite the applicant to appear before it. In light of the applicant’s failure to respond to the s.349 Letter, there is no error in the MRT taking that course.

19. In relation to the applicant’s third unparticularised complaint that the MRT was biased against her, a claim of bias is serious and requires evidence, such as a transcript of the MRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the MRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

20. A fair reading of the MRT’s decision does not disclose any prejudgment on the part of the MRT in the sense that the MRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

21. A fair reading of the MRT’s decision does not suggest that the MRT approached its task other than with a mind open to persuasion. There would not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the MRT, might reasonably apprehend that the MRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

22. The applicant claims in her submission filed on 13 February 2014 that it was her migration agent’s fault that her application was refused and that the agent had lied to her and to the Department of Immigration. Again, these are bare assertions, unsupported by particulars and do not by themselves disclose any jurisdictional error on the part of the MRT.

23. Whilst I make no final decision as to whether the MRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record and none has been identified by the applicant. The MRT referred to the relevant law and affirmed the decision under review, apparently in accordance with the statutory regime. There is nothing on the face of the MRT’s decision record to suggest that its findings were not open to it on the evidence and materials before it and for the reasons it gave.

24. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 12 September 2013, is dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  26 February 2014