Chansa v Minister for Immigration
[2009] FMCA 1275
•22 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHANSA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1275 |
| MIGRATION – Migration Review Tribunal – judicial review of cancellation of student visa – unsatisfactory performance and course progress – earning income in breach of no work condition – whether jurisdictional error. |
| Education Service for Overseas Students Act 2000 (Cth), s.20 Migration Act 1958 (Cth), ss.116(1), (1)(b) & (3), 357A(1) & (3), 359A, 422B, 474, 476, 499 Migration Regulations 1994 (Cth), reg.2.43, Schedule 8, Items 8101, 8202 |
| Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 |
| Applicant: | GLORIA CHANSA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 165 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 2 December 2009 |
| Date of Last Submission: | 2 December 2009 |
| Delivered at: | Perth |
| Delivered on: | 22 December 2009 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr D Estrin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 165 of 2009
| GLORIA CHANSA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
On 5 August 2009 the Migration Review Tribunal[1] handed down reasons for decision[2] affirming a decision of a delegate[3] of the Minister for Immigration and Citizenship[4] to cancel Ms Chansa’s subclass 572 Vocational Education and Training Sector visa.[5]
[1] “Tribunal”.
[2] “Tribunal Decision”.
[3] “Delegate’s Decision”.
[4] “Minister”.
[5] “Student Visa”.
This application, filed on 9 September 2009, seeks judicial review, under s.476 of the Migration Act 1958 (Cth),[6] of the Tribunal Decision.
[6] “Migration Act”.
Factual background
Ms Chansa is a citizen of Zambia and was granted a student visa on
1 August 2007,[7] to undertake a Diploma of Business at Cambridge International College.[8] Ms Chansa’s course ran from 23 July 2007 until 27 June 2008.[9]
[7] Court Book (“CB”) 31.
[8] “Cambridge”.
[9] CB 363.
On 4 July 2008, Cambridge issued a notice under s.20 of the Education Service for Overseas Students Act 2000 (Cth),[10] advising that
Ms Chansa was not achieving satisfactory course progress and had therefore breached condition 8202 of her visa.[11]
[10] “Section 20 Notice”.
[11] CB 34.
On 24 July 2008, Ms Chansa attended the offices of the Department of Immigration and Citizenship.[12] The Department issued Ms Chansa a Notice of Intention to Consider Cancellation[13] because she was in breach of condition 8202.[14]
[12] “Department”.
[13] “Student Visa Intention Notice”.
[14] CB 41.
The Delegate’s Decision, on 9 October 2008, was to cancel
Ms Chansa’s visa,[15] under s.116 of the Migration Act. Ms Chansa subsequently applied for and was granted a bridging visa E, with an attached “condition 8101 – no work”.[16]
[15] CB 46-53.
[16] CB 54-85.
On 20 October 2008 Ms Chansa applied to the Tribunal for review of the Delegate’s Decision,[17] and concurrently lodged an application for a waiver of the Tribunal application fee.[18] Ms Chansa:
[17] CB 87.
[18] CB 95.
a)attached a letter giving the following reasons for her poor performance at Cambridge:
i)her child had been operated on at Morningside Hospital in South Africa; and
ii)her parents’ involvement in a car accident on 27 April 2008; and
iii)that she had informed Cambridge of her parents’ car accident but that nobody cared;[19]
b)attached copies of her parents’ death certificates, showing that:
i)they had died in a road traffic accident on 27 April 2008;
ii)the informant, for the purposes of registration, in relation to her parents’ deaths was a “Godfrey Chansa”; and
iii)the parents’ deaths had been registered on 17 September 2008;[20] and
c)stated that she had a gross fortnightly income of $900.00, despite her Student Visa being subject to condition 8101 – no work.[21]
[19] CB 104.
[20] CB 106-107.
[21] CB 97.
The Tribunal requested further information regarding the fee waiver request.[22] Ms Chansa provided a response on 19 November 2008,[23] attaching bank statements (including a bank statement from Mwinga Kabwe Chrispin, Ms Chansa’s uncle) and copies of bills. The Tribunal refused the fee waiver request on 25 November 2008.[24]
[22] CB 117.
[23] CB 119.
[24] CB 138.
On 18 December 2008, Ms Chansa made a further request for a fee waiver,[25] attaching further bills and overdue notices.[26] After telephone discussions between Tribunal Officers and Ms Chansa (including two instances where she stated that she was at work),[27] the Tribunal, on 4 February 2009, refused Ms Chansa’s review of fee waiver application and sent her a letter to that effect.[28] Also on 4 February 2009,
Ms Chansa:
a)wrote an email to the Tribunal advising that she had been assaulted and her bag had been snatched;[29] and
b)paid the $1400 review fee charge.[30]
[25] CB 144-145.
[26] CB 146-150.
[27] CB 151-160.
[28] CB 161-162.
[29] CB 165.
[30] CB 169.
On 26 February 2009, the Tribunal wrote to Ms Chansa inviting her to provide further information.[31] On the same day, the Tribunal also wrote to Cambridge, requesting further information regarding Ms Chansa’s academic performance.[32]
[31] CB 174-175.
[32] CB 176-177.
The Tribunal received a letter from Ms Chansa on 17 March 2009 regarding the documents requested.[33] The letter:
a)requested an extension of time to provide her daughter’s medical reports; and
b)attached copies of :
i)her own and her daughter’s birth certificates; and
ii)further bank statements.
[33] CB 182.
The Tribunal granted the extension of time on 19 March 2009.[34]
[34] CB 192.
On 1 April 2009 the Tribunal received an email from Cambridge attaching:
a)policy documents;
b)Ms Chansa’s academic record;
c)a letter regarding Ms Chansa’s academic progress;
d)a certificate of attendance; and
e)a warning notice addressed to Ms Chansa.[35]
[35] CB 225-232.
On 6 April 2009, the Tribunal received a facsimile from Ms Chansa:
a)explaining delays in obtaining various documents from Zambia; and
b)attaching:
i)a letter from Ms Chansa’s chiefdom in Zambia; and
ii)a purported patient record for Ms Chansa’s daughter from the “University Teaching Hospital”.[36]
[36] CB 239.
Ms Chansa attended a review hearing before the Tribunal on 8 May 2009.[37]
[37] CB 253.
On 9 June 2009, the Tribunal wrote to Ms Chansa, inviting her to comment or respond to information and to provide information.[38] The Tribunal raised the following concerns it had about Ms Chansa’s claims:
a)the lack of a medical report to support her claims about her daughter’s medical treatment;
b)the authenticity of the patient record from the University Teaching Hospital, given that the Tribunal’s independent research showed that the hospital was in Zambia, not South Africa, and that the record contained errors;
c)information from Cambridge showing that Ms Chansa’s poor academic progress was already an issue on 21 April 2008, prior to the death of Ms Chansa’s parents, and that her attendance at class was 46% between 4 February 2008 and 27 June 2008;
d)Departmental file notes recording conversations between the Department and Cambridge academic and administrative staff indicating that Ms Chansa had not informed Cambridge of the death of her parents;
e)that even if the Tribunal was to find that Ms Chansa’s breach of condition 8202 was due to exceptional circumstances beyond her control, there was a discretion whether or not to cancel her Student Visa and that one consideration was, for example, whether Ms Chansa had been truthful in statements or had previously complied with visa conditions; and
f)that, given Ms Chansa’s bank statements which showed that she was earning more than $560.00 per week between 9 April 2008 and 8 July 2008, the Tribunal may conclude that the unsatisfactory course progress was due to the amount of paid work which Ms Chansa did, and not due to exceptional circumstances beyond her control.
[38] CB 266-271.
The Tribunal also invited Ms Chansa to provide:
a)bank statements;
b)further references in relation to the hours she worked; and
c)any advice received from the Department that she could work and study whilst on a bridging visa E. [39]
[39] CB 270-271. The Tribunal granted an extension of time for the provision of these documents: CB 275.
The Tribunal received a letter from Ms Chansa on 7 July 2009, addressing some of the issues raised by the Tribunal and attaching further bank statements, an employment reference, and employment hours and payment history.[40] Ms Chansa stated that:
a)her late mother had kept most of the documents and that her elder brother did not have access to the documents and belongings;
b)she had informed her school about her challenges;
c)she had worked because she was almost homeless before her father’s assets were dispersed;
d)a girl is differentiated from a boy as “Nankhata” which was common in Zambia; and
e)she acknowledged that the spelling on the hospital form was incorrect, but that her name had been spelled wrongly before on a visa.
[40] CB 276-310.
On 22 July 2009, the Tribunal again wrote to Ms Chansa, inviting her to comment or respond to information.[41] This letter contains the same information as the letter dated 9 June 2009,[42] with some additions. This is because the Tribunal realised that its previous letter erroneously referred to a “decision not to grant [a] visa”, rather than a decision to cancel a visa.[43]
[41] CB 312-317.
[42] CB 266.
[43] CB 266.
The additional paragraphs in the Tribunal’s letter alerted Ms Chansa to its concerns in relation to her credibility. This arose because Ms Chansa had told the Department on 2 September 2008 that she had a scanned copy of her mother’s death certificate but was still waiting for her father’s death certificate. The Tribunal noted that the death of Ms Chansa’s parents was not registered until 17 September 2008 and the certificates were not issued until 13 October 2008.[44] The Tribunal also attached Ms Chansa’s academic record, the certificate of attendance and the warning notice from Cambridge.
[44] CB 316.
The Tribunal received Ms Chansa’s response on 29 July 2009.[45]
[45] CB 329-330.
Ms Chansa stated as follows:
a)in relation to her poor academic performance, that she had told Cambridge about her circumstances and that Cambridge had recommended that she may wish to go to Zambia and sort out any issues;
b)in relation to her financial declaration made for her Student Visa application, Ms Chansa stated that life was very different in Zambia and that it would be a lie to say that rentals would be paid at all times by her parents on weekly terms;
c)she had worked more than 20 hours during the holidays because she was allowed to, and that was why some of her earnings were high; and
d)at the time the Department requested her to provide death certificates for her parents:
i)the President of Zambia had died and all government institutions were closed, and therefore Ms Chansa was not able to manage the deadline given; and
ii)there was a misunderstanding in the way she explained herself to the Department.
On 4 August 2009 the Tribunal decided to affirm the Delegate’s Decision to cancel Ms Chansa’s Student Visa.[46]
[46] “Tribunal Decision”.
Tribunal Decision
Ms Chansa’s two main claims of “exceptional circumstances” were that:
a)her parents had died in April 2008; and
b)her daughter had an operation in South Africa in April 2008.
The Tribunal found that:
a)Ms Chansa was not a witness of truth for a number of reasons including the following:[47]
[47] CB 361.
i)
that at the hearing before the Tribunal on 8 May 2009
Ms Chansa said that she did not achieve satisfactory course progress due to:
1. the need for her daughter to have an operation; and
2. the death of both of her parents,
both of which events she said occurred in April 2008, and which she said resulted in her experiencing difficulty;[48]
[48] CB 362.
ii)that Ms Chansa told the Tribunal she had not experienced any problems with her course until she found out in early April 2008 that her daughter in Zambia required an operation, both her parents died in a car accident on 27 April 2008 and that she then found herself in financial difficulty and had to work to support herself, whereas the Tribunal noted that Cambridge College had sent her a warning notice on 21 April 2008 advising that her course attendance and progress were both unsatisfactory at that time;
iii)that the date of the warning letter was after Ms Chansa claims to have learned of the need for her daughter’s operation (early April 2008) and before the claimed death of her parents on 27 April 2009;[49]
[49] CB 363.
iv)that her course went from 23 July 2007 to 27 June 2008 and of the 11 subjects in the Diploma of Business, she passed two, confirming that Ms Chansa was experiencing attendance and course progress problems before April 2008;[50]
[50] CB 363.
v)she did not provide a medical certificate or report from the hospital relating to her daughter’s purported operation in South Africa in April 2008, after she informed the Tribunal on 17 March 2009 that she had asked her brother to obtain a medical report and required more time to provide it, and then informed the Tribunal on 3 July 2009 that her brother did not have access to her mother’s belongings and that she could not afford to send him to South Africa to obtain the medical report, with no explanation as to why her brother could not request the report from the hospital in writing;[51]
[51] CB 363.
vi)that the form purportedly issued by the University Teaching Hospital in Zambia regarding Ms Chansa’s daughter, reveals only that her daughter was referred to a clinic and does not confirm that she underwent an operation;[52]
[52] CB 363
vii)that as Ms Chansa’s course progress was unsatisfactory prior to April 2008, the Tribunal found that her non-compliance with condition 8202 was not due to her daughter’s need for an operation;[53]
viii)Ms Chansa’s claim to have told Ms Goodwin (her lecturer and head of studies at Cambridge) about her parents’ death, whereas there was no record of her telling anyone of this event, which was confirmed by Ms Goodwin, who said that she did not believe that Ms Chansa was being truthful in that respect;[54]
ix)that if the deaths of her parents had occurred, there had been no such information provided to Ms Goodwin from any of the other African students with whom Ms Chansa lived, about such deaths;[55] and
x)that another member of the staff at Cambridge told the Department that if the applicant had told Cambridge about her parents’ death, they would have offered her counselling and/or a deferral of her studies, and therefore the Tribunal found that Ms Chansa did not inform Ms Goodwin or anyone else on the staff at Cambridge about the death of her parents;[56]
b)Ms Chansa’s parents did not die in April 2008 and that the non-compliance with condition 8202 was not due to their purported deaths;[57]
c)Ms Chansa’s non-compliance with visa condition 8202 was due to Ms Chansa overworking, but that this was not an exceptional circumstance beyond her control;[58]
d)it could not be satisfied that Ms Chansa’s daughter had an operation in South Africa in April 2008 due to the questionable authenticity of the supporting documents, and that even if her daughter had been referred to a clinic requiring an operation, this was not an exceptional circumstance;[59]
e)in any event, Ms Chansa’s course progress was unsatisfactory prior to April 2008;[60] and
f)the circumstances in Direction 38 did not exist.[61]
[53] CB 363.
[54] CB 363.
[55] CB 363.
[56] CB 363-364.
[57] CB 364.
[58] CB 364.
[59] CB 363.
[60] CB 363.
[61] CB 362.
The Tribunal concluded that, even if the breach of condition 8202 was due to exceptional circumstances beyond Ms Chansa’s control and the prescribed circumstances for mandatory cancellation did not exist, it still had a discretion whether or not to cancel Ms Chansa’s Student Visa under s.116(1) of the Migration Act. The Tribunal ultimately found, however, that there were no exceptional circumstances which could give rise to such a discretion.[62]
[62] CB 348 and 364.
The Tribunal decided to affirm the Delegate’s Decision to cancel
Ms Chansa’s Student Visa on the basis that it was satisfied that
Ms Chansa’s non-compliance with condition 8202 was not due to “exceptional circumstances beyond her control”.[63]
[63] CB 364.
Legislation relevant to the visa
The Migration Act gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:
“116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa;
…
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled.”
Regulation 2.43 of the Migration Regulations 1994 (Cth)[64] sets out the prescribed circumstances referred to in s.116(3). For student visas in force on or after 8 October 2005, regulation 2.43(2) relevantly provides:
[64] “Migration Regulations”.
“2.43 Grounds for cancellation of visa (Act, s116)
…
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b)in the case of a Student (Temporary) (Class TU) visa:
(i)that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or
(ii)that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.”
Condition 8202 provides as follows:
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full‑time course of study or training.
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full‑time course of study or training.
Direction 38, made under s.499 of the Migration Act, effective from 19 September 2007, sets out matters to which a decision-maker must have due regard in determining whether non-compliance was due to “exceptional circumstances”. It does not specifically include family bereavement and ill-health, but does include political upheaval and natural disaster in a particular country, and requires consideration of all of the facts, with the weight to be given to relevant matters being a matter for the decision-maker.[65]
[65] Direction 38, at Part A, paras.4 and 6.
In effect, if the Tribunal was satisfied that there were exceptional circumstances beyond Ms Chansa’s control which led to a breach of condition 8202, then it did not have to cancel her Student Visa.
The requirement for jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[66] An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[67]
Consideration of the grounds of the application
[66] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[67] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Ground 1
Ground 1 is that the Tribunal erred in law by failing to:
a) give any, or any sufficient, consideration as to whether or not to request Ms Chansa to provide further corroborating evidence regarding the death of Ms Chansa’s parents and the hospitalisation of her child;
b) give any, or any sufficient, consideration as to whether or not to request Ms Chansa to provide the Tribunal with further evidence regarding the death of Ms Chansa’s parents or the hospitalisation of her child so as to ensure the hearing was fair and just.
Applicant’s submissions
In the affidavit of Ms Chansa, affirmed on 9 September 2009 and filed with the application to this Court,[68] Ms Chansa relevantly deposed that:
8.During the commencement of the Tribunal review, I indicated 2 circumstances that I have asked the Tribunal to consider that I believed to have amounted to exceptional circumstances beyond my control that has affected my ability to comply with Condition 8202, namely the death of my parents and my daughter’s need for an operation. The Tribunal was of the view that these 2 circumstances did not amount to exceptional circumstances beyond my control.
9.The exceptional circumstances include the death of my parents in April 2008. I had great difficulty in obtaining confirmation of my parent’s death. What evidence I obtained was disbelieved by the Tribunal without any justification.
10.The other exceptional circumstance was the hospitalisation of my child in April 2008. Again the Tribunal had no valid reason to believe that the evidence I had provided was not genuine.[69]
[68] “Ms Chansa’s Affidavit”.
[69] Ms Chansa’s Affidavit, paras.8-10.
In oral submissions at the hearing in this Court, Ms Chansa said that when she went to the Department, prior to her Student Visa being cancelled, she was asked to bring documents from “home” showing that her parents had died.[70]
[70] Transcript p.2.
Minister’s submissions
The Minister submits that:
a)the Tribunal wrote two letters, one on 9 June 2009 (including granting an extension of time requested by Ms Chansa), and another on 22 July 2009, to Ms Chansa pursuant to s.359A of the Migration Act.[71] In both letters, the Tribunal raised concerns in relation to Ms Chansa’s claims about the hospitalisation of her daughter and the death of her parents;
b)Ms Chansa had ample opportunity to address the Tribunal’s concerns in relation to evidentiary issues and that this ground cannot be made out. Moreover, it is for Ms Chansa to make out her case and advance whatever evidence or argument she wishes to put forward;[72]
c)in relation to the issue of the Tribunal acting in a way that is ‘fair and just’, under s.357A(3) of the Migration Act, it was held in Minister for Immigration and Citizenship v SZMOK[73] that the Refugee Review Tribunal equivalent of s.357A(3), s.422B(3) of the Migration Act, was not intended to qualify the exhaustive statement of the natural justice hearing rule found in s.357A(1) of the Migration Act.
[71] CB 266 and 312.
[72] Abebe v The Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; [1999] HCA 14 at para.187 per Gummow and Hayne JJ.
[73] (2009) 110 ALD 15 at 19 per Emmett, Kenny and Jacobson JJ; [2009] FCAFC 83 at paras.17-18 per Emmett, Kenny and Jacobson JJ (“SZMOK”).
Consideration
It was a matter for the Tribunal to consider whether the circumstances relied upon by Ms Chansa constituted exceptional circumstances or not. Ultimately the Tribunal, having found that Ms Chansa was not a witness of truth for a number of reasons, decided that Ms Chansa’s parents did not die in April 2008 and it could not be satisfied that
Ms Chansa’s daughter had had an operation in South Africa in April 2008. Thus, the exceptional circumstances said to exist by Ms Chansa were found not to exist by the Tribunal. The issues of credibility and authenticity of documentation which gave rise to the Tribunal’s findings were raised by the Tribunal with Ms Chansa in the s.359A letters, to which Ms Chansa had an opportunity to respond.
Ms Chansa’s credibility, and the authenticity of the documents put forward by her, in circumstances where those matters were raised in s.359A letters by the Tribunal, and responded to by Ms Chansa, are matters of fact for the Tribunal. The Tribunal considered and made factual determinations on Ms Chansa’s credibility and the authenticity of the documents which, on the available evidence, were open to it.
In these circumstances ground 1 is not made out by Ms Chansa.
Ground 2
Ground 2 is that the Tribunal also failed to accord Ms Chansa procedural fairness by drawing inferences regarding Ms Chansa’s failure to provide sufficient evidence of the death of Ms Chansa’s parents and the hospitalisation of her child. The said breach of procedural fairness amounts to a jurisdictional error.
Applicant’s submissions
Ms Chansa’s submissions in relation to this ground are the same as in relation to ground 1 above.[74]
[74] See para.34 above.
Minister’s submissions
The Minister submits that:
a)
the Tribunal had to be satisfied that the evidence presented by
Ms Chansa was authentic and sufficient for Ms Chansa’s case;
b)the inferences the Tribunal drew from the documentary evidence, along with Ms Chansa’s testimony, were factual matters within the Tribunal’s jurisdiction;
c)this ground is simply a disagreement with the Tribunal’s finding and is impermissibly attempting to engage in merits review;
d)the Tribunal made findings about the credibility and the genuineness of Ms Chansa’s claims and supporting evidence, which it was entitled to do, and did not breach the rules of procedural fairness;
e)in any event, s.357A of the Migration Act applies to exclude the common law procedural fairness hearing rule;[75]
f)the Tribunal went far beyond what it had to do to comply with the procedural fairness provisions in Part 5 of the Migration Act and provided Ms Chansa with an extensive opportunity to address all of its concerns, and did so even though the Tribunal’s “doubts” were part of its subjective appraisals or thought processes and need not have been put to Ms Chansa.[76]
[75] Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61.
[76] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26.
Consideration
The inferences to be drawn from Ms Chansa’s failure to provide sufficient evidence of the death of her parents and the hospitalisation of her daughter were, once the Tribunal had raised these issues in the s.359A letters and received a response thereto from Ms Chansa, inferences of fact for the Tribunal. There was no breach of the procedural fairness requirements of the Migration Act, and it is fair to observe that the Tribunal probably went further than it needed to in apprising Ms Chansa of its concerns with her written and oral evidence.
In the circumstances, ground 2 is not made out.
Ground 3
The Tribunal erred in law by failing to comply with principles of procedural fairness by failing to request Ms Chansa to provide her reasons for working over 20 hours per week during her course.
Applicant’s submissions
In Ms Chansa’s Affidavit, she relevantly deposes that:
12.I have read the [Tribunal] Decision and I verily believe that the Tribunal did not give any consideration to whether my excessive working hours could constitute exceptional circumstances beyond my control for the reason that I had to work to supplement the income provided by my sponsor and family, which was deficient to meet my needs during the term of my course and when my parents passed away and my child was hospitalised.
13.After concluding that I had worked over 20 hours per week during my course, the Tribunal did not ask me to provide my reasons for doing so.
14.The Tribunal did not ask me to provide the Tribunal with evidence of my financial difficulty to ensure that they gave due consideration to financial difficulties that I was experiencing and that it could have amounted to exceptional circumstances beyond my control.[77]
[77] Ms Chansa’s Affidavit, paras.12-14.
In oral submissions, Ms Chansa provided information in relation to the number of hours she worked during holidays and her rate of pay on those occasions. The Court cannot take these oral submissions into account as they go to the merits of the application to the Tribunal, and which if they were not, should have been put before the Tribunal.
Minister’s submissions
The Minister submits that the Tribunal, in its s.359A letters[78] gave
Ms Chansa an opportunity to comment on its concerns that she had been working more than 20 hours per week on a frequent basis between 9 April 2008 and 8 July 2008. Therefore, the Minister submits that this ground cannot be made out.
[78] CB 266 and 312.
Consideration
The Tribunal set out its concerns with respect to Ms Chansa’s working hours in the s.359A letters. Having done so, it expressly considered whether or not Ms Chansa’s excess working hours could constitute exceptional circumstances beyond her control, and came to the view that they did not constitute exceptional circumstances beyond her control. In so doing, the Tribunal took account of the reasons and information provided by Ms Chansa in relation to her working hours, and, in particular, the evidence concerning why she worked those hours, including her financial difficulties, about which there was considerable evidence before the Tribunal, and certainly sufficient evidence for it to arrive at the conclusion that Ms Chansa’s excessive working hours could not constitute exceptional circumstances beyond her control.[79] The Tribunal’s findings in relation to exceptional circumstances were findings of fact, open to the Tribunal, and do not reveal jurisdictional error.[80]
[79] CB 352, 356-360, 361 and 364.
[80] Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 at para.52 per Dowsett, Greenwood and Collier JJ; Leung v Minister for Immigration & Anor [2009] FMCA 1122 at paras.24-26 per Smith FM.
In the circumstances, ground 3 is not made out.
Grounds 4 and 5
Ground 4 is that the Tribunal erred in law by failing to properly consider that the death of Ms Chansa’s parents and the hospitalisation of her child may constitute “exceptional circumstances” within the definition of “exceptional circumstances” referred to in Direction 37 Guidelines for the considering of cancellation of student visas for non compliance with Student Visa condition 8202 (or for review of such cancellation decisions).
Ground 5 is that the Tribunal erred in law in its interpretation of Direction 37 Guidelines for considering cancellation of student visas for non compliance with student visa condition 8202 (or for review of such cancellation decisions) made under s.499 of the Migration Act, in that the death of Ms Chansa’s parents and the hospitalisation of her child could be an “exceptional circumstance” under Direction 37.
Applicant’s submissions
Ms Chansa did not make any submissions in relation to these grounds.
Minister’s submissions
The Minister submits that:
a)both these grounds rely on a now superseded Ministerial Direction. It is true that Ministerial Direction 37, made under s.499 of the Migration Act, specifically refers to circumstances of bereavement of close family members as well as traumatic experiences. However, Direction 37 was replaced by Direction 38 with effect on and from 19 September 2007. The clauses upon which Ms Chansa seeks to rely no longer appear in Direction 38;
b)further and in any event, the Tribunal did not consider that the death of Ms Chansa’s parents and hospitalisation of her child could not constitute “exceptional circumstances”, because the Tribunal was simply not satisfied that these events occurred.
Consideration
These grounds must fail because Direction 37 had been replaced by Direction 38 at the time the Tribunal Decision was made. Further, in circumstances where the Tribunal had decided as a matter of fact that it was not satisfied that Ms Chansa’s parents were dead or that
Ms Chansa’s daughter had been hospitalised, the question of whether these events constituted “exceptional circumstances” does not arise.
Grounds 4 and 5 are therefore not made out.
Grounds 6 and 7
Ground 6 is that the Tribunal erred in law and denied Ms Chansa natural justice by failing to give any consideration as to whether
Ms Chansa’s excessive working hours could constitute exceptional circumstances beyond her control for the reason that Ms Chansa had to work to supplement the income provided by her family which was insufficient to meet her needs as a result of the death of Ms Chansa’s parents and the hospitalisation of the child.
Ground 7 is that the Tribunal erred in law by failing to identify that the financial difficulty suffered by Ms Chansa arising from the death of
Ms Chansa’s parents and the hospitalisation of her child constituted an exceptional circumstance beyond her control.
Applicant’s submissions
In Ms Chansa’s Affidavit, she relevantly deposes that:
11.During the review, I had also asked the Tribunal to consider other exceptional circumstances beyond my control, including the financial difficulties I have been experiencing and the hardship I experienced in regards to working.[81]
[81] Ms Chansa’s Affidavit, para.11.
Ms Chansa’s submissions in relation to this ground are otherwise partially the same as in relation to ground 3 above.[82]
[82] See para.46 above citing Ms Chansa’s Affidavit at para.12.
Minister’s submissions
The Minister submits that:
a)a Departmental file note dated 1 August 2008 records Ms Chansa as stating that there was no financial difficulty when her parents passed away;[83]
b)Ms Chansa, in a request for a waiver of the Tribunal application fee received on 18 December 2008, stated that she had been experiencing serious financial hardship only “since the death of both of her parents”;[84]
c)the Tribunal, having rejected Ms Chansa’s claims regarding her parents’ death and the hospitalisation of her daughter, considered and discussed whether Ms Chansa’s excessive working hours could constitute exceptional circumstances beyond her control.[85] It did not accept that her excessive working hours were due to financial difficulties after her parents’ purported deaths, partly because she had been working more than 20 hours per week prior to those purported events; and
d)the Tribunal considered all the relevant issues relating to the claimed financial difficulty and dealt with them correctly.
[83] CB 347.
[84] CB 341.
[85] CB 364.
Consideration
For reasons set out above,[86] the Tribunal clearly took into account whether Ms Chansa’s excessive working hours could constitute exceptional circumstances by reason of her alleged family circumstances. The Tribunal found that Ms Chansa’s excessive working hours could not constitute exceptional circumstances because it found that the alleged family circumstances on which her claims were based were not true. Ground 6 must therefore fail.
[86] See para.49 above.
Ms Chansa provided evidence to the Department in support of her claim that her financial difficulties started after the death of her parents and that was a reason why she was working in excess of her allowable working hours.
The Tribunal found that Ms Chansa was working in excess of her allowable working hours prior to the claimed death of her parents and hospitalisation of her child.
The Tribunal clearly considered the evidence provided by Ms Chansa in relation to her claimed financial difficulty and consequently, whether her excessive working hours (due to the claimed financial difficulty) could constitute exceptional circumstances beyond her control, and found that it did not because of the inconsistencies in the evidence as provided. Ground 7 must therefore fail.
Ground 8
Ground 8 is that the Tribunal erred in law by failing to give any, or any sufficient, consideration as to whether or not to request Ms Chansa to provide the Tribunal with further evidence of her financial difficulty, so as to ensure the hearing was fair and just.
Applicant’s submissions
Ms Chansa’s submissions in relation to this ground are partially the same as in relation to ground 3 above.[87]
[87] See para.46 above, citing Ms Chansa’s Affidavit at paras.13-14.
Minister’s submissions
The Minister submits that:
a)Ms Chansa had several opportunities to provide further evidence of her financial circumstances;
b)if the Tribunal cannot be satisfied on the basis of the material presented that Ms Chansa’s claims are genuine, it does not have a duty to make further inquiries,[88] or to investigate Ms Chansa’s claims;[89]
c)whilst not specifically claimed in the application, the Minister notes that this ground uses the phrase “fair and just”, which appears in s.357A(3) of the Migration Act;
d)in SZMOK it was held that the Refugee Review Tribunal equivalent of s.357A(3), s.422B(3) of the Migration Act, was not intended to qualify the exhaustive statement of the natural justice hearing rule found in s.357A(1) of the Migration Act; [90] and
e)no criticism can be made of the manner in which the Tribunal dealt with Ms Chansa’s claims and evidence.
[88] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 16 per Gleeson CJ, at 21-22 per Gummow and Hayne JJ, at 49 per Callinan J; [2004] HCA 32 at para.19 per Gleeson CJ, at para.43 per Gummow and Hayne JJ, at para.124 per Callinan J.
[89] NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at paras.18–21 per Jacobson J.
[90] ALD at 19 per Emmett, Kenny and Jacobson JJ; FCAFC at paras.17-18 per Emmett, Kenny and Jacobson JJ.
Consideration
The Tribunal did request evidence of Ms Chansa’s financial difficulties, and Ms Chansa did provide evidence of her financial difficulties. The Tribunal was obliged to do no more than it did, and the circumstances do not give rise to a duty to make further enquiries or to further investigate Ms Chansa’s claims. Having herself raised the question of financial difficulty, and the Tribunal having requested information in relation to it, it was for Ms Chansa to put, in as fulsome a way as she considered necessary, evidence of her alleged financial plight. Ms Chansa put before the Tribunal (both in relation to the fee waiver application and the substantive review application) considerable financial material. If she failed to put sufficient material before the Tribunal that is a deficiency of her own making, rather than the Tribunal’s.
In the circumstances, ground 8 is not made out.
Conclusion and Orders
The Court concludes that:
a)Ms Chansa has failed to make out any of the grounds of application; and
b)no jurisdictional error has been established on the part of the Tribunal, and the Tribunal Decision is therefore a privative clause decision under s.474 of the Migration Act, and the Tribunal Decision is, accordingly, not subject to judicial review under s.476 of the Migration Act.
Therefore, the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S Gough
Date: 22 December 2009
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