Chen v Minister for Immigration
[2005] FMCA 576
•20 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION | [2005] FMCA 576 |
| MIGRATION – Visa – refusal of visa – Subclass 573 Higher Education Sector – Student (Temporary) (Class TU) visa – complied substantially with conditions of visa last held – condition 8202 – the fact that a student is enrolled at a University established under an Act of Parliament does not mean that there is a contract between the University and the student – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Education Services for Overseas Students Act 2000 (Cth), s.21 Migration Act 1958 (Cth), s.474 University of Western Sydney Act 1997 (NSW), s.8 Education Services for Overseas Students Regulations 2001 (Cth) Reg 3.04 |
| Abebe v Commonwealth (1999) 197 CLR 510 Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 Rajbhandari v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1130 – followed Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 – followed Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] MRTA 8095 – not followed |
| Applicant: | YING YING CHEN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3448 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 April 2005 |
| Date of Last Submission: | 20 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Overall |
| Solicitors for the Applicant: | Ren Zhou Lawyers |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3448 of 2004
| YING YING CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Migration Review Tribunal made on 29 October 2004 in which the Tribunal affirmed the decision of delegate of the Minister not to grant a further Student Temporary Class TU Visa to the applicant.
On 24 November 2004 the applicant lodged an application under s.39B of the Judiciary Act 1903 seeking the following:
a)A writ of certiorari.
b)A writ of mandamus.
c)A writ of prohibition and
d)Costs.
The grounds of the application are that Tribunal failed to consider the terms of the contract or against the terms of the contract which is subject to the relevant legislations and common law in the New South Wales state jurisdiction in which the education provider operates that governs the foundation of the relationship that exists between the student and his or her education provider.
The application contained the following particulars:
(a) Failure to consider what the terms of the contract between the applicant and his education provider on key issues for determining whether the applicant is enrolled, when and where he should attend studies and what his academic performance should be.
(b) Failure to ask itself whether the applicant's past contract does in fact stipulate that he had to undertake nine subjects in the semester or term and that he must pass more than one.
I adopt the background set out in paragraphs 2 to 12 of the respondent's outline of submissions. The applicant is a 27 year old Chinese citizen. The applicant first arrived in Australia on 6 October 1996, travelling on a Sub-Class 567 Student Visa valid until 1 July 1997. The applicant was granted a further Sub-Class 560 Visa on 11 July 1997 which was valid until 22 November 1997. The applicant was then granted a Sub-Class 457 (Business) (Long Stay) Visa as a dependent on 22 July 1997 valid until 28 October 2001. On 14 November 2001 the applicant was granted a Sub-Class 573 (Higher Education Sector) Visa on the basis of enrolment in a Bachelor of Business Accounting Course at the University of Western Sydney commencing on 5 March 2001 and due for completion on 31 July 2003. This Visa was originally valid until 19 April 2002. On that date it was extended until 31 August 2003. From 6 October 1996 to date the applicant has entered and exited Australia numerous times.
The applicant studied at UWS from March 2001 to December 2001. She failed to meet the minimum progression requirements of her course and as a result was suspended from her course for two sessions of study. She would have been allowed to re-enrol in March 2003, however the applicant, "resigned from her studies" on 27 March 2003.
On 18 August 2003 the applicant lodged a further application for a Sub-Class 573(Higher Education Sector) Visa. In her application the applicant noted that she held a Sub-Class 573 Visa issued on 19 April 2002. The course in respect of which the new visa was sought was a Bachelor of Business (Business Management) at Charles Sturt University.
On 25 August 2003 the delegate of the Minister invited the applicant to provide:
Academic transcripts and attendance certificates (original, certified or notarised copies) of previous courses of study, school reports, academic records showing completion of pre-requisite schooling, letter for UWS stating if you satisfactorily met course requirements while you were studying with them.
The delegate was subsequently supplied with academic transcripts, statement from the applicant dated 2 October 2003 and it received directly from the University of Western Sydney a letter dated 17 November 2003.
On 12 December 2003 the delegate refused to grant the visa because the applicant did not satisfy the criterion in clause 573.212 of the Migration Regulations 1994, because the applicant had failed to comply with condition 8202 which attached to her former Sub-Class 573 Visa. The applicant applied to the Tribunal to review that decision on 7 January 2004.
On 8 January 2004 the Tribunal wrote to the applicant acknowledging of receipt of the application and advising:
I have requested from the Department a copy of all documents that relate to your application. You should provide any documents or written arguments you wish the Tribunal to consider and which you have not already provided to the Tribunal or the Department.
On 24 March 2004 the Tribunal sent a facsimile to the University of Western Sydney seeking certain information. The University responded by letter of the same date.
On 2 April 2004 the Tribunal wrote to the applicant pursuant to ss.359A and 359 of the Migration Act inviting comments on information and seeking additional information. The applicant wrote a letter in reply which was undated but which was received on 7 May 2004. The Tribunal held a hearing on 18 August 2004 which the applicant attended and at which he gave evidence. On 29 October 2004 the Tribunal affirmed the decision to refuse the visa.
In his written submission, counsel for the applicant, Mr Overall, argued that the Tribunal had made an error of law in that it had either ignored or failed to take into account relevant material being:
i)The specific terms of the letter from the University of Western Sydney to the Tribunal dated 24 March 2004.
ii)The terms of the contract between the applicant and the University of Western Sydney at the relevant time and
iii)The apparent postponement of the suspension.
Counsel went on to refer to what it described as the "enrolment issue". He submitted that the Tribunal was required to determine whether or not the applicant was enrolled at the University of Western Sydney between August 2002 and March 2003. He noted that condition 8202 attached to the applicant's visa provides that the visa holder meet the requirement if the holder is enrolled in a registered course. I will have more to say on that later.
Without reference to the relevant correspondence and evidence from the University of Sydney and the contract between the applicant and the University of Western Sydney, Mr Overall submitted that the Migration Review Tribunal determined that the applicant's suspension was equivalent to her non-enrolment. In coming to this conclusion, he submitted the Tribunal failed to determine whether the status of suspension from a course of study was the same as non-enrolment. Mr Overall submitted that there was a significant difference between the status of non-enrolment referred to in condition 8202 and the status of suspension. Non-enrolment, he submitted, was permanent and suspension was temporary.
He went on to submit that in order to determine whether the applicant's contract with the university had been terminated, the Tribunal should have considered both the University of Western Sydney letter and the contract between the applicant and the university. It failed to do so he said. Without doing so the Tribunal could not determine whether or not the applicant student had been suspended or was no longer enrolled in the university.
Mr Overall went on to refer me to the decision of Yin Ching Wu v MIMIA [2003] MRTA 8095, a decision of the Migration Review Tribunal handed down on 28 November 2003. In that case the Tribunal considered the issue of enrolment and the legal relationship between a student and the education provider and I was given a significant quotation from the reasoning of the learned Tribunal in that case. In that case the Tribunal held that the applicant's visa was not cancelled because he was not enrolled in a registered course. It was a situation where I noted that the applicant, Mr Wu, had been enrolled in a course conducted by a private education provider, namely Catona Pty Limited, trading as "Alexander Education Group". The decision in Wu is, to my mind, a very strong part of the applicant's submission.
I was also referred to the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR pp 549. At pages 562 and 563 his Honour said:
That in a case where it is obvious that there is readily available material which is centrally relevant to a decision to be made, it seems to me that to proceed on a decision without making any attempt to obtain that information may properly be described as an exercise in the decision making power in a manner so unreasonable that no reasonable person would have so exercised it.
In this case Mr Overall submits that the Tribunal had it within its power to seek a copy of the contract between the applicant and the university, if of course there was one, and referred me to the provisions of s.21 of the Education Services For Overseas Students Act 2000 and to regulation 3.04 of the Education Services For Overseas Students Regulations 2001.
The Act provides, under s.21:
That a registered provider must keep records of each accepted student.
And sets out:
The records must consist of the student's current residential address and other details as described by the regulations.
And the regulations provide in regulation 3.04, sub-regulation (c):
That the provider must keep copies of written agreements to which the provider and student are parties.
The thrust of the submission is that if there was a contract between the university and the applicant, then that document should have been provided and if it were not provided, then the Tribunal should have exercised its power as set out by the Court in Prasad to seek a copy of that contract which is required to be kept by regulation 3.04.
The significance of the contract, if such there be, is again set out in Wu's case at paragraph 33 where the decision maker must consider the academic results of the applicant under condition 8202. At paragraph 33 the Tribunal says:
A view the decision- makers under the Migration Legislation may find a breach of condition 8202 without considering the terms of the contract and/or against the terms of the contract is surely flawed. The contract is the foundation for determining whether a student is enrolled, when and where he or she should attend studies and what his or her academic performance should be.
The thrust of the submission is that without that document being made available the Tribunal was not in a position to form a view on the enrolment of the applicant as set out in condition 8202 and how the applicant's examination results met the criteria for satisfactory academic progress.
The respondent's written submissions were also made available to me, prepared by Mr Potts of counsel. Mr Potts made it clear that in his view the Tribunal did not have a duty to make inquiries about the existence of a contract and the contents of the contract. He submitted that the decision of the Federal Court in Prasad set out an exemption to what was the current law. He referred me to the decision of the High Court in Abebe v Commonwealth (1999) 197 CLR 510, paragraph 187 where, in the context of an application for a Protection Visa the Court said:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a convention reason. The Tribunal must then decide whether that claim is made out.
Mr Potts, in his submissions, went on to consider the question as to whether it had been established that the applicant was in fact enrolled or not at the University of Western Sydney. He referred to a letter from the University to the Tribunal in consequence of a specific request from the Tribunal which stated, amongst other things:
In February 2002 Ms Chen transferred into the Bachelor of Business and Accounting and continued in this degree until she was discontinued from the university on 31 July 2003. Please see attached transcript.
I note a copy of the transcript is contained in the Court Book, pages 56, 57. The letter, in Mr Potts' submission, refers to the applicant having been discontinued from the university. It does not say anything expressly about the status of her enrolment or the status of her enrolment during the period of her suspension. Mr Potts referred the Court to an earlier letter from the university dated 17 November 2003 to which the Tribunal expressly referred. That letter said, inter-alia:
1. The applicant was enrolled as an international student from March 2001 to December 2001.
2. The applicant failed to meet the minimum progression requirements of her course and as a result was suspended from her course of study for two sessions of study.
3. Ms Chen was allowed to re-enrol in March 2003, however, Ms Chen resigned from her studies on 27 March 2003.
As Mr Potts pointed out, this letter clearly uses the language of enrolment and it is unsurprising that the Tribunal had a preference for it.
Mr Potts submitted that the applicant's own evidence was that she was not enrolled at the relevant time. In the light of that evidence it is unsurprising that the Tribunal did not need to refer specifically to the letter form the university but that does not mean that the Tribunal failed to have regard to it. The Court should not read the Tribunal's reasons with an eye attuned to perception of error. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Mr Potts submits that the Court could not be satisfied that the Tribunal did not have regard to that letter from the university. In any event he submits, even if the Tribunal did not have regard to the letter that would not have made any difference to the Tribunal's conclusion if it had.
As far as the contract between the applicant and the university is concerned; Mr Potts submits that the Court should not follow the reasoning set out in Wu v Minister, the decision of the Migration Review Tribunal. He refers to the broad and general statements of Wu which are not statements at law or even findings of fact and submitted that it was not self-evident that every relationship between a student and the university is a contractual one.
He reminded the Court that the decision of Wu v Minister is a decision of the Migration Review Tribunal, it is not binding on the Federal Magistrates Court. At best it may be persuasive.
He submitted, however, that the University of Western Sydney as constituted by the University of Western Sydney Act 1997, section 5 of that Act sets out that the university consists of a Board of Trustees, the staff, the graduates and the students of the university. The students are recognised by statute as part of the university. Section 8 of the Act charges the university with certain statutory mandates as to what it should provide. Section 9 of the Act empowers the university to provide educational facilities. He submits, however, the provision of such facilities would not, of necessity, be contractual.
The respondent submits, in reply to the submission that Migration Review Tribunal had its own obligation under Prasad to seek a copy of the contract, if such there be, between the applicant and the university and then rely on it, as set out by the Migration Review Tribunal in Wu, is not correct. He submitted that the correct position on the law was summarised by Jacobson J in NAYU v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 528, paragraphs 18 to 21. In those paragraphs his Honour covered the relevant authorities and I quote:
There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application. See for example Abebe v Commonwealth of Australia 1999, 197 CLR 510, paragraph 187 per Gummow and Hayne JJ His Honour went on to say, that the authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances. In Prasad v Minister for Immigration and Ethnic Affairs 1985/6 FCR 155 at 169/170 Wilcox J pointed out that the circumstances under which a decision will be invalid for failure to make independent inquiries are strictly limited. His Honour observed that it is no part of the duty of the decision maker to make the applicant's case for him. His Honour said that it is not enough that the Court may find that the sounder course would have been to make more inquiries. The exception is, as his Honour said, in a case where it is obvious that material is readily available and is centrally relevant to the decision to be made. In those circumstances it would be an unreasonable exercise in decision making power for the decision maker to proceed without making an attempt to obtain that information. The observations of Sackville J in Minister for Immigration and Multicultural Affairs and Rajalingam 1999 93 FCR 220 at paragraph 116 are to the same effect.
Mr Potts submitted and rightly, in my opinion, that although his Honour's comments were directed to the Refugee Review Tribunal, there was no difference in the principle applicable to the Migration Review Tribunal. As the passage extracted from Prasad in the applicant's written submissions makes it plain; it will not be unreasonable for a Tribunal to make a decision without attempting to get further information unless the following circumstances arise:
a)It is obvious that there is readily available material.
b)That material is centrally relevant to a decision to be made.
He submitted, again rightly in my opinion, neither circumstance was present in this case. It was far from obvious that a contract was readily available and indeed he submits it continues to remain far from obvious that any such contract exists. Equally, even if such a contract existed, it is far from obvious that it was centrally relevant to the Tribunal's decision.
Mr Potts submitted that the Tribunal failed to consider the postponement of the applicant's suspension. He submits that that submission is wrong in fact as the Tribunal expressly adverted to the delay in the implementation of the suspension by the university, finding:
The Tribunal accepts that the University of Western Sydney may have postponed the commencement of the visa applicant's suspension.
The reference is at page 83 of the Court Book at paragraph 30.
Mr Potts submits that the applicant has misunderstood and misapplied the concept of enrolment and submitted in oral submissions before me today that enrolment is not just a pure question of law, it is, in part, a legal issue that was, in part, a question of fact. He referred the Court to authority which he submits would be persuasive, being Rajbhandari v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1130 paragraph 10 where Heerey J said:
That condition 8202 continues to apply for the term of the visa. The ordinary meaning of enrolled in this context connotes a relationship between student and education provider in relation to a particular course. A student does not cease to be enrolled merely because the particular series of lectures might have concluded. Usually an education provider will not be able to certify that that academic result was satisfactory or otherwise, thereby discharging its own obligations until the completion of some examination or other assessment. Of necessity this will normally take place after lectures have concluded.
Turning to the question of academic results. Mr Potts submitted that the law on the subject is not as set out in Wu's case but is set out by the Full Court of the Federal Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 238 paragraphs 55 and 56. In that case their Honours said:
A visa holder will comply with condition 8202 (3) if the Minister is satisfied of the matters contained in sub-clause (3) (a). The visa holder will meet the requirements of condition 8202 (3) (b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or indeed entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies, that is an end to the inquiry under condition 8202 (3) (b). On the other hand, if there is no certificate, compliance with 8202 has not been achieved.
Those basically are the submissions. What then are the conclusions that I should draw? For a start; I am not satisfied that there is any evidence of a contract between the University of Western Sydney and the applicant or indeed any other student. Regulation 3.04 refers to written agreements but to my mind it is designed to refer to the situation where students are enrolled with an education provider under section 20 of the Education Services For Overseas Students Act, not section 21. Section 20 relates to the situation, as in Wu's case, where the student is a student at a private education provider rather than a university that is established under an Act of Parliament. It may be recalled that the education provider at which Mr Wu was attending was in fact run by a company called Catona Pty Limited trading as the "Alexander Education Group".
To my mind, Wu's case can be distinguished on the basis that Ms Chen was a student of the University of Western Sydney. University of Western Sydney, like most universities is established under an Act of Parliament; in this case the University of Western Sydney Act 1997. It does not follow that there is a contractual relationship between the university and the student. Indeed, if, as is set out in section 5 of that Act, students are part of the university, it is difficult to see how the university could have a contract with a part of itself. To my mind, the obligations and the relationship between a student and the university as a whole are those which are set out in the statute and that an inquiry as to the existence of any contract would be fruitless and there would be no contract to find.
I note that the decision in Wu's case refers to the contract as being fundamental; a foundation for determining whether a student is enrolled, when and where he or she should attend studies and what his or her academic performance should be.
To my mind the decision in Wu, which as I said can be distinguished on the facts of this case, is misleading. There is no obligation on the Migration Review Tribunal, in the circumstances set out in this case, to make its own inquiries as to whether a contract exists or not. It was certainly not obvious that there was a contract between Ms Chen and the university. In my view there was not.
Neither of the conditions set out in Prasad's case have been made out and in any event, Prasad's case is an exception to the general rule. The general rule has been, with respect, most competently summed up by Jacobson J in NAYU v Minister for Immigration and Multicultural and Indigenous Affairs where his Honour referred to the decisions in Abebe and also in Rajalingam. The decision in NAYU is of course persuasive and the principles of comity would apply but unless the Court were satisfied that it could be distinguished or that it had been wrongly decided, then the Court would normally follow it. And, in my view, the decision in NAYU is one which is appropriate to be followed by this Court.
The decision in Abebe of course is a decision of the High Court of Australia and it is binding upon the Federal Magistrates Court. The decision of Sackville J in Rajalingham referred to in NAYU is of course a first instance decision of the Federal Court and to my mind I would regard it as persuasive and I would follow it.
I have indicated that as far as the question of the contract is concerned, especially as far as enrolment is concerned, that the decision in Wu's case can be distinguished. I turn again to the statement in paragraph 33 of that decision which appears to be a fundamental part of the decision in Wu:
A view the decision makers under the Migration legislation may find a breach of condition of 8202 without considering the terms of the contract and/or against the terms of the contract is surely flawed. The contract is the foundation for determining whether a student is enrolled, when and where he or she should attend studies and what his or her academic performance should be.
Insofar as one is considering a situation of a student at a university; to my mind Wu's case does not apply. Even more, where the situation of academic progress of that student is considered under condition 8202, paragraph 3(c), to my mind, with respect, the decision in Wu is wrongly decided. It does not set out the law. I do not intend to follow it because, in my respectful opinion, it has been wrongly decided. The law that is binding on this Court is the explanation set out by the Full Court of the Federal Court in Tian v Minister and that of course is a decision that is binding on this Court.
As far as enrolment is concerned; I am satisfied that I should follow thew first instance decision of Rajbhandari v Minister for Immigration. It is a decision that is persuasive and I would normally follow it unless I was satisfied it could be distinguished or had been wrongly decided. Neither of those circumstances apply.
In my view, whether or not the applicant was enrolled at the university makes no difference when there is clear evidence from the university that she had failed eight out of nine subjects. Failure means what it says on its face. Failure indicates that a student has not met the academic requirements and made satisfactory progress. In any event, to satisfy condition 8202, a student must be able to provide a certificate from the education provider that the student has made satisfactory education progress and that satisfaction must be the satisfaction of the education provider. That is what Tian's case is about and the applicant has just not been able to produce such a document. On those results it appears self-evident that there is no way that the university would bring such a document into existence.
The application will be dismissed.
Costs usually follow the event. The applicant, I note is an adult. She has been unsuccessful in her application. This is a matter where I consider it appropriate to make an order for costs. As to the quantum of costs, this is not a case where either party can attract any criticism as to the way the litigation has been conducted. Counsel on both sides provide succinct and interesting submissions on this point. There were well-prepared written submissions which were extremely helpful to the Court. Counsel's oral submissions were short and to the point and the entire proceedings were conducted in a way that meets the standards that I would expect counsel to conduct proceedings before the Court.
I note that the sum of $3800 is sought. That seems to me to be well within the range that the Court would provide.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 3 May 2005
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