Zheng v Minister for Immigration - [2015] FCCA 972

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHENG v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 972

Catchwords:
MIGRATION – Application for Student (Temporary) (Class TU) visa – where applicant did not attend tribunal hearing – where application refused – no jurisdictional error established – application dismissed.

Migration Regulations1994 (Cth), cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of schedule 2

Applicant:

RENHUI ZHENG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

DNG 46 of 2014

Judgment of:

Judge Jarrett

Hearing date:

14 April 2015

Date of Last Submission:

14 April 2015

Delivered at:

Darwin

Delivered on:

17 April 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter.

Solicitor for the First Respondent:

Ms Newman

Solicitors for the First Respondent:

Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

The application filed on 2 October, 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 46 of 2014

RENHUI ZHENG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is aggrieved because a Migration Review Tribunal dealt with an application by him to review a decision of a delegate of the first respondent to refuse him a Student (Temporary) (Class TU) visa in his absence. The tribunal affirmed the delegate’s decision leaving the applicant without the student visa for which he applied.
The applicant claims that the tribunal’s decision to proceed in his absence was wrong. He claims that the tribunal did not consider the documents that he lodged with his visa application or for the review. He asks for an order setting aside the tribunal’s decision.
For the reasons that follow, the tribunal’s decision was not attended by any jurisdictional error. Procedurally, there was no difficulty or error with the course adopted by the tribunal. The tribunal’s decision is a privative clause decision and cannot be interfered with by this Court.
The applicant is a citizen of the People’s Republic of China.
He applied to the first respondent’s department for the grant of a Student (Temporary) (Class TU) visa on 21 February, 2013. However, on 26 April, 2013 a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy various criteria relevant to the grant of the visa. The department had written to the applicant pointing out the deficiencies in his application and asking for further information to cure those deficiencies. But the applicant failed to cure those deficiencies.
On 1 May, 2013 the applicant applied to a migration review tribunal for review of the delegate’s decision. In the section of that application entitled “Where do you want us to send correspondence about your application?” the applicant wrote “411 Musgrave Cre Coconut Grove NT 0810”. He gave no other contact details.
On 24 April, 2014 the applicant sent a completed “Change of Contact Details” form to the tribunal, stating that his contact address had changed to “41 Fifth Ave, Berala, NSW 2141”. He also gave a new postal address of “PO Box 609, Ashfield, NSW 1800” and an email address of “[email protected]”.
On 28 July, 2014 the applicant sent a fax to the tribunal. It appears that he was following up on a telephone call that he had received from a tribunal officer concerning his application. The letter records that the telephone call was about two weeks earlier. The suggestion in the letter is that the tribunal was to send some documents to the applicant by email. He said that he had not received them. He asked that they be sent to his email address “which is [email protected]”. That was a different email address to that which was notified in the “Change of Contact Details” form.
The next day, on 29 July, 2014 the tribunal sent to the applicant an invitation to appear before it to give evidence and present arguments. It was sent to his nominated postal address of PO Box 609, Ashfield NSW 1800. It was also sent by email to both the email address in the “Change of Contact Details” form and the email address in the applicant’s letter of 28 July, 2014.
By the hearing invitation, the applicant was invited to appear at 9.30 am on 2 September, 2014 at a location in Sydney.
By the hearing invitation dated 29 July, 2014 the tribunal requested that the applicant provide the following:
a)a certificate of enrolment, as required for the grant of a student visa;
b)documents that showed that the applicant was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa;
c)documents which showed the applicant’s past studies in Australia, including copies of all of his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to his past or intended studies in Australia;
d)an explanation of any gaps in the applicant’s enrolment and any documentary evidence relevant to that explanation;
e)documents which demonstrated that the applicant had sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period;
f)evidence that the applicant met the English language proficiency requirement for the visa;
g)evidence that the applicant had successfully completed secondary schooling to the year 12 level;
h)evidence that the applicant had made adequate arrangements in respect of health insurance; and
i)evidence of the applicant’s current medical assessment by the Department’s medical services provider to meet the health requirement for the visa.
The hearing invitation also provided:
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
On 30 July, 2014 the applicant replied by email (sent from the address nominated by him in his letter of 28 July, 2014) to the hearing invitation. He said:
I have received the letter that inviting me to a appear before the tribunal. Maybe I have no time to return to the NSW in September. I am very sorry with this, could I apply for modify the date to attend the hearing please.
(errors in the original)
About 2 weeks later, on 13 August, 2014 the tribunal wrote to the applicant at both of his email addresses as follows:
The tribunal has considered your request to postpone the hearing, received on 30 July 2014.
You have given no reasonable reason for an inability to attend. In the circumstances the request is refused, and the hearing will proceed as scheduled on 2 September 2014 at 9.30 am.
It was apparent from the terms of that email that the applicant had not completed and returned the form of response to the hearing invitation.
The applicant did not attend the scheduled hearing. The tribunal’s decision records that he did not contact the tribunal to explain his absence following the hearing.
On 3 September 2014, the tribunal affirmed the decision not to grant the applicant the visa.
The tribunal’s reasons for decision recorded the procedural matters that I have just recited. They record the tribunal’s determination to proceed in the applicant’s absence. The tribunal was undoubtedly entitled to do so. The applicant had been made aware of the hearing date and had engaged with the tribunal about a possible adjournment of that date. The refusal of the adjournment was properly communicated to the applicant. His submissions to me on this review confirm that he knew before the appointed hearing dates that the adjournment had been refused by the tribunal.
The tribunal noted that the issue before the delegate was whether the applicant met the requirements of clauses 572.225, 572.223(2), 572.224 and 572.235 of the Regulations. The tribunal noted that whether the applicant complied with those requirements remained uncertain. However, the main issue for the tribunal was whether, at the time of its decision, the applicant met the enrolment requirements for the visa.
The tribunal noted that, with limited exceptions, clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of schedule 2 of the Migration Regulations 1994 (Cth) required that at the time of its decision, an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under reg.1.40A for the relevant subclass at the time of application.
The tribunal had written to the applicant setting out the evidence which he was required to provide to the tribunal. The tribunal noted that the applicant did not attend the tribunal hearing and did not provide any evidence of meeting the “various requirements” for the grant of the visa.
The tribunal found, correctly with respect, that there was no evidence before it that at the time of the decision the applicant was enrolled in, or had a current offer of enrolment in, any applicable course of study. Therefore, the applicant did not meet clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of schedule 2 of the Regulations. The tribunal also found that there was no evidence that the applicant met the criteria for either a subclass 576 (AusAid or Defence Sector) or 580 (Student Guardian) visa, the remaining subclasses of Class TU.
The tribunal affirmed the decision not to grant the applicant the visa.
The applicant has not specified any grounds of review in his application. Instead, his application, under the heading “Grounds of Review” says “Please see the separate page”. That was a reference to his accompanying affidavit to which is attached the following statement:
To Whom It May Concern,
This is Renhui ZHENG. I am writing this letter to support my application to the Federal Circuit Court of Australia.
I lodged my student visa application on 21/02/2013. My student visa application was refused on 26/04/2013. I lodged the MRT review and waited for more than 1.5 year to be allocated to a case officer.
When I was asked to present in the MRT on 2nd September 2014. I was preparing mentally for the interview. However, I later found out that I can't do it. When I was facing authority, I am speechless. I realized that my English is not good enough to respond in front of the judge. So I decided to write to the case officer to postpone the interview. I don't know why the officer said he didn't receive my reason for postpone. I certainly listed out my reason because I think I need more time to prepare the documents, having documents send from overseas and prepare my speech in the MRT. As I take the matter very seriously.
I was informed that I can't have the interview postponed. I was very disappointed and I had no idea that they didn't receive my statement in regards to my reason for postpone. In the letter, I also said that I will prefer provide written statement and send the documents required to the MRT, instead of confronting with the judge. I will be freaked out.
As I know, I should have the right to respond by writing instead of attending interview. However, they didn't consider my written documents and affirm the decision because I didn't attend the interview.
I think it is very wrong. I should have the right to be reviewed by any documents I provided to them. And I don't think the interview will favour my case. Although they will provide translator, my friend, who had the similar experience told me that the translator doesn't like him, and translate the words into different tones and meanings, which made the officer confused, dislike the applicant, and made unfavourable decision.
Therefore I prefer written communication. So that I can state more clear about myself. I hope the court can take my case into consideration and I want to apply against them for the unfair right I got in my review process.
Regards,
Renhui Zheng
As to the matters raised by the applicant in his letter:
a)The applicant appears to have understood the tribunal’s response to his adjournment application to the effect that he has given no reasonable reason for the adjournment with him having given no reason for his adjournment request. Unlike the first respondent’s submissions, I do not think that the applicant is suggesting in his letter that he had sent a statement of reasons or another letter to the tribunal setting out his reasons for the adjournment. In my view he is referring to his email of 30 July, 2014 and the reason set out therein. The tribunal did not suggest in its reply that the applicant had given no reason for his adjournment request, rather, he had given no reasonable reason.
b)The applicant requested more time to prepare documents, get documents sent from overseas and prepare his speech to the tribunal. However, there is no explanation from the applicant as to why he had not already undertaken those tasks, given that he had made his application in May, 2013 the hearing was to take place in September, 2014 and he takes the matter very seriously.
c)In his letter, the applicant says that he prefers to make his submissions in writing and send documents to the tribunal. However, knowing that the tribunal had refused his request, the applicant made no attempt to make any written submissions to the tribunal. Indeed, despite a direction to do so, he made no written submissions to this Court either, in support of his application for review.
d)The tribunal only had the documents that the applicant had submitted to the minister’s delegate before it, and the application for review by the tribunal. The applicant had submitted no other documents to the tribunal. He provided no evidence to this court that he had done so.
The matters raised in the applicant’s letter do not demonstrate any jurisdictional error, or any error at all, on the part of the tribunal.
There does appear to be one factual error in the tribunal’s reasons. At paragraph 6 of the reasons for decision, the tribunal refers to an email from the applicant dated 13 August 2014 and headed “MRT hearing 2 September 2014 - request to postpone hearing”. There does not appear to be any such email sent by the applicant to the tribunal. The court book, however, contains the following documents:
a)At page 97, an email sent on behalf of the tribunal to the applicant on 13 August 2014 rejecting his request for the adjournment made on 30 July 2014;
b)At page 98, an email from “Microsoft Exchange” to [email protected] sent on 13 August, 2014 at 4.09pm with the subject “Relayed: MRT hearing 2 September, 2014 – request to postpone hearing” containing the message:
Delivery to these recipients or distribution lists is complete, but delivery notification was not sent by the destination:
‘[email protected]’
Subject: MRT hearing 2 September, 2014 – request to postpone hearing [SEC=UNCLASSIFIED]
c)At page 99, an email from “Microsoft Exchange” to [email protected] sent on 13 August, 2014 at 4.09pm with the subject “Relayed: MRT hearing 2 September, 2014 – request to postpone hearing” containing the message:
Delivery to these recipients or distribution lists is complete, but delivery notification was not sent by the destination:
‘[email protected]’
Subject: MRT hearing 2 September, 2014 – request to postpone hearing [SEC=UNCLASSIFIED]
It seems likely that the tribunal member has erred in considering that the applicant had sent an email to the tribunal on 13 August, 2014. The tribunal sent one to the applicant (which by its terms refers to the applicant’s email of 30 July, 2014) and the email exchange server seems to have sent transmission reports (for want of a better description) to the tribunal. The transmission reports meet the tribunal member’s description of “an email with a subject heading “MRT hearing 2 September 2014 - request to postpone hearing” that contained no other information other than an email address.
The first respondent submits, and I accept, that the error made by the tribunal in that regard is not an error which goes to the tribunal's jurisdiction. It is an error of fact only which was of little consequence to the tribunal’s determination.
I accept the first respondent’s submissions that the tribunal dealt with the applicant’s adjournment request reasonably. It exercised its discretion to consider the applicant’s request for adjournment, having regard to the reasons advanced by the applicant for the adjournment.
The applicant’s reason for requesting an adjournment of the hearing was that he may have no time to return to NSW in September. The applicant did not explain that statement any further. He did not say where he expected to be during September, why he may not be in New South Wales, or how likely it was that he would not be in New South Wales. The applicant’s most recent address provided to the tribunal was an address in New South Wales.
The tribunal’s refusal of the applicant’s adjournment request involved no error of law.
No jurisdictional error is apparent in the tribunal’s decision. The application for review must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 April, 2015.

Associate:

Date: 17 April 2015