Chen v Minister for Immigration

[2008] FMCA 1194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1194

MIGRATION – Application to review decision of Migration Review Tribunal – student visa – alleged non-compliance with conditions – whether exceptional circumstances on grounds of illness and personal reasons – whether jurisdictional error.

Migration Act 1958 (Cth), ss.116(1) and (3), 474(1), 476(1) and (2) and 499
Migration Regulations 1994 (Cth), reg.2.43 and Item 8202

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
WAME v Minister for Immigration & Anor [2007] FMCA 1569

Applicant: NING CHEN

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 86 of 2008

Judgment of: Lucev FM

Hearing date: 21 August 2008

Date of Last Submission: 21 August 2008

Delivered at: Perth

Delivered on: 29 August 2008

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr A. Gerrard

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the Application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 86 of 2008

NING CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for review of the Migration Review Tribunal’s[1] decision to affirm the cancellation of the Applicant’s student visa.

   [1] “Tribunal”.

Background facts

1. The Applicant is a citizen of the People’s Republic of China (“PRC”).[2] On 15 April 2005 the Applicant was granted a Student (Temporary) (Class TU) subclass 571 visa.[3] The visa was subject to Condition 8202 among other conditions.[4]

   [2] Court Book (“CB”) 3, 26.

   [3] “visa”, CB 3, 8.

   [4] CB 8.

2. The Applicant studied at Perth International College of English between 4 July 2005 and 21 April 2006 for 41 weeks.[5]

   [5] CB 13.

3. The Applicant commenced studying Year 11 at Canning College in 2006.[6] The Applicant withdrew from his studies at Canning College on 7 May 2007 because he found the study difficult and was ill.[7]

   [6] CB 5.

   [7] “Letter of Withdrawal”, CB 6.

4. On 15 May 2007 Canning College informed the Department of Immigration and Citizenship[8] via the Provider Registration and International Students Management System[9] that the Applicant had withdrawn from his studies because of personal reasons and was returning to China.[10]

   [8] “Department”.

   [9] “PRISMS”.

   [10]  CB 2.

5. On 12 December 2007 Canning College emailed the Department a copy of the Applicant’s Letter of Withdrawal which was dated 7 May 2007.[11]

   [11] CB 5.

6. Subsequent to his withdrawal from studies at Canning College the Applicant enrolled to study at Kingston International College. By email dated 13 December 2007, Kingston International College advised the Department that the Applicant did not attend class and “was reported in PRISMS as non-commencement of studies on 27 July 2007”.[12]  

   [12] CB 7.

7. On 13 December 2007 the Applicant was interviewed by a delegate[13] of the Minister for the Department for Immigration and Citizenship.[14] During the interview the Applicant stated that he:

   a)deferred his studies because his grandparents in China had heart problems and he wished to go back and visit them;

   b)did not go back to visit his grandparents in China because his parents did not want him to return home;

   c)had not been studying in Australia since July 2007;

   d)was looking to enrol at university;

   e)had been sick for three months from around February 2007 after jamming his left hand thumb in a door where his fingernail came off; and

   f)had attended a medical centre and had medical certificates to prove that he had been sick for three months.[15]

   [13] “Delegate”.

   [14] “Minister”.

   [15] CB 12.

8. On 13 December 2007 the Applicant was issued with a Notice of Intention to consider cancellation of his visa[16] under s.116 of the Migration Act 1958 (Cth).[17]

   [16] “Notice of Intention”

   [17] “Migration Act”. CB 8-11. The Applicant acknowledged receipt of the Notice of Intention at point 14 on 13 December 2007 at CB 10.

9. The Notice of Intention set out the possible grounds for cancellation as follows:

   “PARTICULARS OF THE BREACH

   Client has not been enrolled and studying a full time CRICOS registered course since 27 July 2007.

   This is a possible breach of Section 116(1)(b) and Section 116(3) of the Migration Act of 1958 and Regulation 2.43(2)(b). Breach of student visa condition 8202.”[18]

   [18] CB 8. CRICOS stands for the Commonwealth Register of Institutions and Courses for Overseas Students.

10. On 20 December 2007 the Applicant was interviewed by the Delegate. The Applicant stated that he had medical certificates to show that he could not study while he was not enrolled.[19]  During the interview the Applicant provided:

    [19] CB 18.

    a)an unsigned witness statement which stated that the Applicant was:

    i)assaulted in Northbridge at about 12:30am on 11 December 2007 by being punched in the face; and

    ii)taken to Royal Perth Hospital by ambulance.[20]

    b)a police reference number for the report about the assault;[21] and

    c)

    a medical certificate from the Central City Medical Centre which stated that the Applicant had received medical treatment on

    
    12 December 2007

    .[22]

    [20] CB 14–16.

    [21] CB 17.

    [22] CB 17.

11. The Applicant provided a certificate from Kelvyn Chong of Traditional Chinese Massage in Northbridge WA which stated that the Applicant:

    a)had not been feeling well;

    b)

    had attended the massage clinic between 15 August 2007 and

    
    15 November 2007

    for treatment; and

    c)was suffering from numbness and pain in his left arm.[23]

    [23] CB 19.

12. When questioned by the Delegate, Kelvyn Chong stated by email that the certificate did not mean that he felt the Applicant was unfit for classes or study while he was receiving remedial massage treatment.[24]

    [24] CB 21.

13. On 8 January 2008 Murdoch University wrote to the Department by email and confirmed that there was no record of an application from the Applicant to study at Murdoch University in the 2006, 2007 and 2008 International Admissions databases.[25]

    [25] CB 22.

14. On 8 January 2008[26] the Delegate cancelled the Applicant’s visa under ss.116(1)(b) and 116(3) of the Migration Act and reg.2.43(2)(b)[27] of the Migration Regulations 1994 (Cth).[28]

    [26] The letter from the Department is dated 8 January 2007: CB 23 and 24.  This is presumably an error and was meant to state 8 January 2008 because the Department referred to a meeting on 13 December 2007 in the letter and at CB 29 the Decision Record states that the visa was cancelled on 8 January 2008.

    [27] CB 23-25.

    [28] “Regulations”.

15. The Delegate found that the reasons for not cancelling the visa did not outweigh the grounds for cancellation.[29] The Delegate stated that the visa was cancelled because the Applicant had not been enrolled in a CRICOS registered course since 27 July 2007 in breach of the visa Condition 8202.[30] The Delegate concluded that the Applicant was able to attend classes from 27 July 2007 onwards because the Applicant’s remedial massage therapist stated that the certificate from the Traditional Chinese Massage centre ‘does not mean that I feel or he is unfit for classes or study’ while he was receiving treatment.[31]

    [29] CB 24.

    [30] CB 29.

    [31] CB 29.

Application to the Tribunal

1. On 14 January 2008 the Applicant applied to the Tribunal for a review of the Delegate’s decision.[32] On 24 January the Applicant paid the Tribunal’s fees and the Tribunal’s registry received the application.[33]

   [32] CB 38.

   [33] CB 39, 40.

2. The Tribunal invited the Applicant to comment on, or respond to, information that would influence the Tribunal’s decision. The information provided to the Applicant was as follows: 

   “You were granted a Student (Temporary) (Class TU) subclass 571 visa on 15 April 2005. This visa included a number of conditions including Condition 8202.

   By letter dated 7 May 2007 you requested that your education provider, Canning College, allow you to withdraw from your studies and this request was accepted by the education provider.

   You subsequently received a confirmation of enrolment to study at Kingston International College on 26 June 2007 but did not commence your studies at this education provider and your enrolment was cancelled by the education provider on 27 July 2007.

   At an interview with the Department conducted on 13 December 2007 you stated that you discontinued your studies in May 2007 because you wished to return to China to visit your grandparents who had heart problems. However at this interview you confirmed that you did not return to visit your grandparents after you discontinued your studies but remained in Australia.

   You have provided evidence to the Department, in the form of a certificate from Mr Kelvyn Chong of Traditional Chinese Massage, that you were suffering from numbness and pain in your left arm and visited that clinic for treatment from 15 August 2007 to 15 November 2007. However, Mr Kelvyn Chong subsequently informed the Department by email that this certificate simply verified that you had sought treatment but did not mean or imply that you were unfit for classes or study during the period.”[34]

   [34] CB 44-45.

3. The Tribunal found the above information relevant because it indicates that the Applicant was not enrolled in a registered course from 27 July 2007 onwards as required by Condition 8202(2) of the Applicant’s visa.

4. The Tribunal told the Applicant that the Tribunal must affirm the decision of the Department unless the Applicant can show that the breach occurred because of exceptional circumstances beyond the Applicant’s control. The Tribunal told the Applicant that:

   “Given the statement made to the Department by Mr Chong that he did not consider you unfit for studies or to attend classes and given that you stayed in Australia after you discontinued your studies, and in the absence of any information to the contrary, the Tribunal may find that your injured hand and your desire to visit your ill grandparents in China do not constitute exceptional circumstances beyond your control in your case.”[35]

   [35] CB 45.

5. On 27 February 2008 the Applicant requested an extension of time to respond to the Tribunal’s letter of 21 February 2008.[36] The Tribunal gave the Applicant until 6 March 2008 to provide any further information relevant to the review of the Department’s decision. The Tribunal did not receive any further information from the Applicant.[37]

   [36] CB 49.

   [37] CB 70.

6. On 14 March 2008 the Tribunal affirmed the Department’s decision to cancel the Applicants visa.[38]

   [38] CB 64–72.

The Tribunal’s decision

1. When reviewing the Department’s decision to cancel the Applicant’s visa the Tribunal outlined the background to the matter which is similar to background described above.

2. The Tribunal went on to consider:

   a)the relevant law including:

   i)s.116(1)(b) and 116(3) of the Migration Act;

   ii)reg.2.43 of the Regulations; and

   iii)Condition 8202 found at Item 8202 of the Regulations;

   b)whether there were any exceptional circumstances out of the Applicant’s control to explain why the Applicant was not enrolled in a registered course of study or training;

   c)the various authorities relating to the meaning of the term ‘exceptional circumstances’;

   d)Direction No. 38 (‘Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202…’)[39] made pursuant to s.499 of the Migration Act;  

   [39] “Direction”. The Guidelines are also for ‘the review of such cancellation decision and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations)’: CB 66.

   e)the reasons the Applicant gave to the Department for not being enrolled in a course of study or training since 27 July 2007 including;

   i)his injured thumb;

   ii)the illness of his grandparents; and

   iii)the assault;

   f)the Letter that the Tribunal wrote to the Applicant informing the Applicant of the information which would influence the Tribunal’s decision;

   g)the Applicant’s request for an extension of time to provide information; and

   h)

   the failure of the Applicant to provide the Tribunal with further information by the new date to provide information, that being

   
   6 March 2008

   .

3. Having considered the above matters the Tribunal concluded that:

   a)if the Applicant had not complied with Condition 8202(2) and there were no exceptional circumstances to explain the non-compliance with Condition 8202(2), the Minister had to cancel the Applicant’s visa according to reg.2.43(2) of the Regulations;

   b)the Applicant breached Condition 8202 because the Applicant had not complied with Condition 8202(2)(b) which required the Applicant to be enrolled in a full-time course of study or training; and

   c)there were no exceptional circumstances to explain why the Applicant was not enrolled in a course of study or training because:

   i)there was no medical evidence to support a claim that the Applicant was unfit or unable to study or participate in training due to numbness and pain in his left arm;

   ii)the Applicant did not return to China so the illness of his grandparents did not preclude him from enrolling in a course of study or training;

   iii)the Tribunal found that the assault on 12 December 2007 was an isolated incident and the Applicant did not provide further evidence to show that the assault precluded him from enrolling in a course of study or training.

Grounds of Review

1. The Applicant made an Application on 5 June 2008 for review of the Tribunal’s decision.

2. The Applicant has not set out any grounds in the Application. The Applicant has only sought a ‘return of student visa’.

3. The Applicant’s Affidavit sworn 5 June 2008 said that he did not comply with Condition 8202(2) because he lost his school fees after being robbed and assaulted, an incident said to have been reported to the police and documented.

4. During the hearing, the Applicant began to discuss the merits of his case. When asked by the Court, the Applicant could not identify any jurisdictional errors with the Tribunal’s decision.

Requirement for jurisdictional error

1. The Tribunal’s decision can only be set aside if jurisdictional error is shown in the Tribunal’s decision.[40]

   [40] Migration Act, ss.474(1) and 476(1) and (2); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para. 76 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ (“S157/2002”).

2. The decision would involve jurisdictional error if the Tribunal:

   a)identified a wrong issue;

   b)asked the wrong question;

   c)ignored relevant material; or

   d)relied on irrelevant material,

   e)in a way that affected the Tribunal’s exercise of power resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act.[41]

   [41] 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; Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ, WAME v Minister for Immigration & Anor [2007] FMCA 1569 at paras. 13-14 per Lucev FM.

Section 116

1. Under s.116 of the Migration Act, the Minister can cancel a visa where the visa holder has not complied with a condition of the visa. Section 116 provides that:

   (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; or

   
   

   …

   (3)     If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Regulation 2.43

1. Regulation 2.43 of the Regulations sets out the prescribed circumstances referred to in s.116(3) of the Migration Act. For student visas in force on or after 8 October 2005, reg.2.43(2) relevantly provides:

   (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

1. Condition 8202 relevantly provides as follows:

   (3) A holder meets the requirements of this subclause if:

   (a) in the case of a holder whose education provider keeps attendances records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

   (i)     for a course that runs for less than a semester – for the course; or

   (ii)     for a course that runs for at least a semester – for each term and semester of the course; and

   (b)     in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

   (i)     for a course that runs for less than a semester – for the course; or

   (ii)     for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.

Compliance with Condition 8202

1. The Applicant has not challenged the finding that the Applicant has not been enrolled in a full-time course of study or training since 27 July 2007.  Therefore the Tribunal addressed the proper question – namely whether the Applicant breached Condition 8202, and was correct in finding that the Applicant breached Condition 8202.

2. The Tribunal was therefore correct in finding that the Applicant was in breach of Condition 8202(2), unless there were exceptional circumstances for not complying with Condition 8202(2).

Exceptional Circumstances

1. This Court must assess whether the Tribunal properly considered the Applicant’s claim that he had exceptional circumstances which explained why he could not study.

2. The Tribunal did not misconceive what might constitute ‘exceptional circumstances’. The Tribunal properly referred to information including:

   a)Federal Court authorities;

   b)Federal Magistrates Court authorities;

   c)policy considerations (even though none were relevant in the present case); and

   d)the residual and final discretion vested in the Tribunal.

3. The following issues were correctly assessed by the Tribunal as not constituting exceptional circumstances.

The Assault

1. The assault was properly characterised by the Tribunal as not constituting an exceptional circumstance. The Tribunal relevantly considered the fact that the Applicant did not provide information about the assault to the Department.

2. In any event, there was no medical evidence provided to the Tribunal to show that the assault affected the Applicant’s ability to study after the assault occurred on 11 December 2007.  Furthermore, as the assault occurred on 11 December 2007, the Applicant’s ability to study from 27 July 2007 to 11 December 2007 could not have been affected.

The Applicant’s Ill Grandparents

1. The Tribunal was not in error in finding that the Applicant’s ill grandparents did not constitute exceptional circumstances, because the Applicant did not return to China to visit them and there is no other evidence indicating any reason why their illness in China might then have precluded the Applicant from studying.

1. During the hearing, the Applicant stated that he did not return to China to visit his ill grandparents because his grandparents wanted the Applicant to stay in Australia. This statement (so far as the Court might have regard to an unsworn statement from the Bar table on an application for judicial review) only reinforces the Tribunal’s finding that the Applicant was able to study from 27 July 2007 onwards, rather than constituting a reason for the Applicant not being able to continue his studies.

The Applicant’s Illness

1. The Tribunal told the Applicant that Mr Chong told the Department that his certificate did not mean or imply that the Applicant was unfit for classes or study while the Applicant was receiving treatment. The Applicant did not provide any further information or medical evidence to support a claim that he was unable or unfit to study from 27 July 2007. Given the clarification from Mr Chong, the Tribunal was not in error in finding that the certificate of Mr Chong was not evidence which showed that the Applicant was unfit for classes or study after 27 July 2007.

2. During the hearing the Applicant stated that a doctor told him to rest and not to go back to school. Despite having been given the opportunity to do so, the Applicant put no evidence before the Tribunal to substantiate that claim. The Court cannot now engage in merits review, and the Tribunal properly considered the material put before it.

Conclusion and Orders

1. The Tribunal properly considered the law and the evidence and made no jurisdictional error. The Court therefore orders that the Application be dismissed.  

2. The Court will hear the parties as to costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lucev FM

Deputy Associate:  Michele Lord

Date:  29 August 2008