Wei v Minister for Immigration and Citizenship [2013] FCA 463

FEDERAL COURT OF AUSTRALIA

Wei v Minister for Immigration and Citizenship [2013] FCA 463 Citation: Wei v Minister for Immigration and Citizenship [2013] FCA 463

Appeal from: Application for leave to appeal from: Wei v Minister for Immigration and Citizenship & Anor [2013] FCCA 262

Parties: WENQIANG WEI v MINISTER FOR IMMIGRATION AND CITIZENSHIP

File number: NSD 754 of 2013

Judge: PERRAM J

Date of judgment: 7 May 2013

Catchwords: PRACTICE AND PROCEDURE – Appeal from the Federal Circuit Court of Australia – Whether interlocutory orders should be amended MIGRATION – Seeking an interlocutory injunction to prevent enforcement of a Notice of Intention to Remove from Australia issued by the Minister for Immigration and Citizenship

Legislation: Migration Act 1958 (Cth) ss 65, 116, 359, 359A, 359B, 477 Migration Regulations 1994 (Cth) reg 4.17(3), Sch 2 item 572, Sch 8 item 8202

Cases cited: Dècor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 cited SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 cited SZRQW v Minister for Immigration and Citizenship [2012] FMCA 1090 cited

Date of hearing: 7 May 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 19

Counsel for the Appellant: The appellant appeared in person via telephone with the assistance of an interpreter. Mr W Wei and Ms A Racule also appeared on behalf of the appellant.

Solicitor for the Respondent: Ms B Rayment of Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 754 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: WENQIANG WEI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: PERRAM J DATE OF ORDER: 7 MAY 2013 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 754 of 2013

ON APPEAL FROM THE FEDERAL circuit COURT OF AUSTRALIA BETWEEN: WENQIANG WEI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: PERRAM J DATE: 7 MAY 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On the morning of 7 May 2013 (this morning), in the Federal Circuit Court of Australia (formerly the Federal Magistrate's Court of Australia), a judge of that Court dismissed an application by Mr Wei for an interlocutory injunction restraining his deportation from Australia. That deportation was originally scheduled to occur at 11.00am this morning, but, as a result of the hearing in the Court below, that time has been postponed to 8.00pm this evening. Early this afternoon, Mr Wei filed, in this Court, a notice of appeal from the learned judge's decision and sought, as interim relief, an interlocutory injunction in this Court's appellate jurisdiction. As a matter of strict formality, the decision of the judge of the Federal Circuit Court of Australia was an interlocutory decision and accordingly is one which requires leave. 2 Technically, the notice of appeal is therefore incompetent and no point, quite properly, was taken about that aspect of the matter by Ms Rayment, who appeared for the Minister. The only issue was whether the injunction now sought in this Court should be granted. 3 The applicant for the injunction arrived in Australia from China in 2007 and applied for, and was successful in obtaining, a student visa Subclass 572 Vocational Education and Training Sector, pursuant to s 65 of the Migration Act 1958 (Cth) ('the Act') and Sch 2 item 572 of the Migration Regulations 1994 (Cth) ('the Regulations'). It is a condition of such a visa per Sch 8 item 8202 of the Regulations ('Condition 8202') that its holder satisfy the requirements set out in Sch 2 item 572 of the Regulations and one of the requirements is by Condition 8202(2)(a), that the holder of the visa be enrolled in a registered course. 4 It is accepted that where the holder of a Subclass 572 visa is not enrolled in a registered course, nevertheless, there will be no difficulty arising if there are exceptional circumstances beyond the visa holder's control which explain why they are not enrolled in a course. Mr Wei says in this Court, but I should add not in the Court below or to the Migration Review Tribunal ('the MR Tribunal'), that on or around 4 January 2011, whilst he was speaking to his parents in China by telephone, his mother began to cry and scream over the phone that police and security agents of the Chinese Government were taking herself and his father away on arrest to prison. 5 He also says that since that day, they have been in prison in China, without charge and that they were responsible for his finances and tuition in Australia. He says that he, after that event, became afraid for his own life and feared that agents of the Chinese Government would come and arrest him in Australia through their agents. In consequence of those events, he says that he decided to hide and ceased attending college. Because he ceased attending college, he eventually came to the attention of a delegate of the Minister who, on 29 November 2011, determined that the student visa should be cancelled under s 116(1)(b) of the Act on the basis that Mr Wei had failed to comply with Condition 8202 and had not satisfied the exceptional circumstances test. 6 As he was entitled, in due course, Mr Wei applied for a review of that decision by the MR Tribunal. On 4 January 2012, the MR Tribunal wrote to the applicant, pursuant to ss 359 and 359A of the Act, inviting his comments and response to information which the MR Tribunal considered might be part of its reason for determining the decision under review. The particular information the MR Tribunal referred to was information on PRISMS, which indicated that Mr Wei was not involved in any registered course between January 2011 and September 2011. Mr Wei did not respond to the MR Tribunal's invitation within the prescribed period (per the Act s 359B(2) and the Regulations reg 4.17(3)) and on 10 January 2012, Mr Wei's representative informed the MR Tribunal that they had contacted Mr Wei and requested him to provide supporting documents but they had not received any documents from him and he had 'nothing to submit' to the MR Tribunal. 7 I shall turn to the significance of that matter shortly. On 11 January 2012, the MR Tribunal affirmed the decision under review and the visa was, in consequence, cancelled. Some point thereafter, on 14 December 2011, not being the holder of a valid visa, Mr Wei was taken into immigration detention. On 6 March 2012, having been taken into immigration detention, Mr Wei applied for a protection (Class XA) visa, which application was refused by a delegate of the Minister on 17 April 2012. He sought a review of that decision before the Refugee Review Tribunal ('the RR Tribunal') on 20 April 2012 and on 18 June 2012, the RR Tribunal affirmed the delegate's decision not to grant a protection visa. On 23 July 2012, Mr Wei sought judicial review of that decision before the then Federal Magistrate's Court of Australia (now the Federal Circuit Court of Australia) which, on 20 November 2012, dismissed that application: see SZRQW v the Minister for Immigration (2012) FMCA 1090. 8 Subsequent to that, the applicant commenced proceedings in the High Court of Australia, again seeking judicial review of the RR Tribunal's decision. I was informed that those proceedings are still pending in the High Court and that the Minister's position was that they represented an abuse of process, the orders of the Federal Magistrate's Court remaining in place. After that, no substantive steps appear to have been taken. One event of legal significance did occur, however and this was that, on 15 March 2012, Mr Wei's student visa would have expired by effluction of time in any event. 9 On 23 April 2013, just over a year later, Mr Wei was served with a notice of deportation and that appears to have galvanised him into filing an application before what was then the Federal Magistrate's Court, seeking judicial review of the decision of the MR Tribunal which, it will be recalled, had been reached nearly 15 months beforehand, in January 2012. That application outlined two grounds upon which constitutional writs might be granted. The first was that the Tribunal had denied him procedural fairness and natural justice when it made its decision on 11 January 2012; and the second was that it denied him procedural fairness in circumstances where there were exceptional circumstances beyond his control. 10 I interpolate that the reference to exceptional circumstances is a reference to Condition 8202 attached to the Subclass 572 student visa. The application confronted a difficulty that it was outside the time limit of 35 days prescribed by s 477 of the Act and it was necessary, therefore, for Mr Wei to seek – and he did seek – an extension of that time. The application, filed in the Federal Magistrate's Court, sought an interlocutory injunction, restraining his removal by the Minister from Australia. The application was given a return date of 14 June 2013 by the registry staff of the Court. No attempt at that time was made, perhaps understandably, to seek to bring forward the time at which the application would be returnable, including, presumably, any application for an interlocutory injunction. 11 A Notice of Intention to Remove from Australia was then served upon Mr Wei yesterday, that is 6 May 2013, and that brought forth the application which was made earlier today in the Federal Circuit Court which was dealt with by the learned judge this morning. His Honour refused to grant the injunction. Because of time pressure, the written reasons of his Honour are not available for consideration, however, notes were taken during the course of the hearing by Ms Rayment of what had been said in his Honour's oral reasons, delivered ex tempore at approximately 10.40am this morning. Ms Rayment read her notes out, which I am prepared to proceed upon the basis represent an accurate recording of his Honour's reasons. 12 Effectively, his Honour dismissed the application for two reasons; first, he found that the extensive delay of nearly 15 months meant that Mr Wei had little likelihood of obtaining an extension of time under s 477 of the Act with the common conclusion, perhaps implicit, that the application for judicial review, was out of time. Secondly, he concluded that the balance of convenience did not favour the granting of the injunction. This application for an interlocutory injunction in this Court's appellate jurisdiction was called on for hearing at approximately 4.30pm this afternoon and these reasons are being delivered at approximately 6.00pm. The disposition of the application takes place in the context which includes the fact that the orders of the judge below are interlocutory and therefore, as an appeal in this Court will necessarily require as a central precondition, the grant of leave. 13 The circumstances in which leave will be granted are well known and set out in the Full Court's decision in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397 and that is, perhaps putting the matter a little loosely, that there is reason to believe that the decision of the Court below is attended by sufficient doubt to warrant appellant intervention, and also, that substantial prejudice would flow to the proposed appellant, supposing the decision to be wrong and leave not to be granted. Those principles inform the approach which should be taken to the grant of an injunction. The injunction in question is an equitable injunction and therefore, the requirements are, again speaking loosely, that I should be satisfied that there is an arguable case for a grant of leave and I should be satisfied that the balance of convenience favours the making of the injunction. 14 I am prepared to assume, as I think perhaps the learned judge was, that there is an arguable case that he might obtain judicial review. During the course of argument before me this afternoon, the proposition was put by Mr Wei's brother, who I permitted to make submissions on his behalf, that they had been told by their advisor that they need not respond to the letter which had been sent to Mr Wei, inviting his input into the decision as to whether his visa should be cancelled. I am prepared to assume, for the purposes of argument, that that is the effect of what was said. 15 I am also prepared to overlook the fact that that matter appears not to have been ventilated before the learned judge this morning. If I were to accept all of those matters, which I do, for present purposes, there may well be an argument available that the High Court's decision in SZFDE v the Minister of Immigration (2007) 232 CLR 189 at [48] may mean that the process contemplated by the statute as being required to be taken in the case of the visa cancellation did not in fact take place. If that be so, then it may be that there is an argument that the statutory regime has had its operation "subverted": cf my own remarks in the Full Court in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [83]. 16 The other arguments advanced by Mr Wei as to why he might be entitled to judicial review are perhaps not so promising. That he now has an explanation which he can put before the Federal Circuit Court as to why he went into hiding and as to why exceptional circumstances might be demonstrated for the purposes of Condition 8202, probably may not ultimately be of great assistance in demonstrating that the MR Tribunal committed a jurisdictional error by failing to consider that matter, when that matter was not put to it. In any event, however, I accept the existence of an arguable case and the difficulty, it seems to me, which confronts Mr Wei is that the proceedings, although undoubtedly of considerable personal significance to him, appear to me to lack utility. 17 The visa expired by effluction of time on 15 March 2012. If Mr Wei's contentions were ultimately accepted and the MR Tribunal's decision to cancel his visa was set aside, he would still have no visa because it would have necessarily expired on 15 March 2012. Thus, the consequence of Mr Wei succeeding in his proceedings would not be that he ceased to be an unlawful non-citizen, it would simply be that it could be said in his favour, that he had not been the subject of a visa cancellation. Having that said about him would not be a sufficient reason, when weighing the balance of convenience, to prevent the deportation which is proposed for this evening from occurring. 18 In those circumstances, although I accept there is an arguable case for judicial review and although that could have the consequence of removing from Mr Wei's immigration record the blot on his name constituted by a visa cancellation, accepting all that to be so would not lead to the conclusion that his deportation would be prevented because he would remain, at all times, an unlawful non-citizen and the Minister's authority to deport him in those circumstances would not be touched. That is a sufficient reason to dismiss the present application. 19 The federal judge was also not satisfied about the 15 month delay. In this Court, an explanation was proffered in respect of that. I do not need to resolve whether that explanation is sufficient or satisfactory. It is sufficient to observe only that I cannot see that the proceedings have any utility, and in those circumstances, I dismiss the application for the injunction with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 7 May 2013