Chen v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1523

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1523

YEN LIN CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL

Q 152 OF 2004

DOWSETT J
3 NOVEMBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 152 OF 2004

BETWEEN:

YEN LIN CHEN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

3 NOVEMBER 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the first respondent’s costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 152 OF 2004

BETWEEN:

YEN LIN CHEN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	3 NOVEMBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant entered Australia on 2 October 2000, holding a Subclass 676 (Visitor) (Short Stay) visa.  On 13 January 2004 he was granted a Subclass 573 (Higher Education Sector) (Student) visa.  His activities between October 2000 and January 2004 do not appear clearly from the evidence.  They are largely irrelevant for present purposes.  It seems, however, that in that time he undertook a course in English in contemplation of his undertaking a course leading to the degree of Bachelor of Commerce in Griffith University, which course was to commence on 1 March 2004.

2. The higher education sector visa granted on 13 January 2004 was subject to a condition that he not engage in work in Australia.  I am told that after the commencement of his course he would probably have been granted a fresh visa which would have entitled him to work for up to 20 hours a week during term time and for longer periods during vacations.  Nonetheless, for present purposes his visa was subject, at all relevant times, to the condition that he not engage in work in Australia.

3. On 27 February 2004 he was found at a 7-Eleven store, apparently performing the duties of a shop assistant.  It subsequently emerged that he owned a 42 per cent share in the business.  Work rosters demonstrated that he had worked on 23 out of the 28 preceding days, for about 130 hours in total.  The applicant offered various explanations, including that on the date on which he was found working, he was merely filling in for an employee who was absent for a short time. 

4. In any event, the respondent gave notice of intention to consider cancelling his visa pursuant to s 116 of the Migration Act 1958 (Cth) and subsequently cancelled it. The applicant applied to the Migration Review Tribunal for review of that decision. The Tribunal affirmed the decision. The applicant now seeks review pursuant to the Judiciary Act 1903 (Cth).

5. In the course of argument, it was conceded that the Tribunal’s determination that there had been a breach, giving rise to the s 116 discretion was not infected by any reviewable error. However the applicant submits that the Tribunal failed to recognize that cancellation was discretionary. The Tribunal clearly recognized this at [34]. More particularly, the applicant submits that the Tribunal:

   ۰failed to appreciate and/or give appropriate weight to the fact that once the applicant had commenced his course on 1 March, he would probably have been granted a visa which would have permitted him to work for up to 20 hours a week;

   ۰did not consider the consequences for the applicant of the cancellation of the visa; 

   ۰failed to appreciate, or to give appropriate weight to the fact that the applicant had made a substantial capital investment in the business in which he was found to be working;

   ۰failed to appreciate that it must reach its own decision in this matter and not merely endorse the decision made at first instance; and

   ۰failed to give appropriate weight to various prescribed policies and merely paid “lip service” to them.

6. These grounds invite a detailed examination of the reasons of the Tribunal.  However such examination should not be carried out with too acute an eye for possible error.  It is, in my view, important to keep in mind that many of the matters which the Tribunal considered in its reasons were matters raised by the applicant, either when interviewed by the Departmental officers, or in submissions which were belatedly made to the Tribunal on behalf of the applicant.  It seems that he was primarily arguing that his activities did not constitute work for present purposes, that his involvement in such work was of such limited extent as not relevantly to constitute work, and that the visa condition had a particular meaning.  These matters went to the question of whether the applicant had breached the condition in his visa.  However some of these matters were also relevant to the exercise of the discretion.  I consider that from [34] to the end of its reasons, the Tribunal was considering both the question of breach and the exercise of the discretion.  I proceed upon that basis. 

7. I turn to the assertion that the Tribunal failed to appreciate, or give appropriate weight to the fact that the applicant would, after 1 March, have been in a position to work for up to 20 hours a week.  It is clear that the Tribunal appreciated this matter.  As was pointed out by counsel for the applicant, it is an expert Tribunal which can be taken to have a general understanding of the various provisions of the regulations.  At [13] of the reasons the Tribunal refers specifically to this matter, as it does elsewhere in the reasons, particularly at [36] et seq.  The Tribunal was clearly aware of the possibility that, after 1 March, the applicant may have been granted a visa which would have entitled him to work for up to 20 hours a week.  However, that was not the position with which the Tribunal was faced.  The applicant’s current visa was conditional upon his not working at all.  In face of that, the evidence demonstrated quite extensive engagement in work over almost a month.  In those circumstances the Tribunal was not obliged to give significant weight to the fact that after 1 March he might have obtained a visa which would have permitted him to work.  Had the position been that the applicant had arranged to commence work once he had an appropriate visa, but was asked by his employer to commence at an earlier time because of some emergency, the Tribunal might, perhaps, have taken a different view.  That was not the case.  I see nothing in this point. 

8. It is said that the Tribunal did not take into account the consequences for the applicant of the cancellation of his visa.  This is a very difficult argument for the applicant to mount.  His submissions to the Tribunal said very little about such consequences although clearly, one consequence would be that he would not be able to pursue his chosen course in Australia.  Another would be that he would presumably be required to leave Australia.  Such consequences were so obvious as not to require express discussed by the Tribunal in its reasons.  One or two other claims of prejudice were raised or hinted at in the applicant’s submissions to the Tribunal.  One arose out of the applicant’s financial investment in the business.  The Tribunal addressed this matter at [39], concluding that no evidence had been led to demonstrate that this would lead to any hardship.   The applicant also submitted, at par 5 of his submissions to the Tribunal, that the applicant was living with his cousin in Australia who was an Australian citizen, and that:

   ‘… there would be extreme hardship should the visa be cancelled.  The family would suffer both here and in Taiwan and in all probability the business would have to close.’

9. If this was a reference to the applicant’s interest in the business it was disposed of by the Tribunal at [39]. If it was a reference to the interests of his family generally, as it seems to have been, then to the extent that any direct adverse effect was shown, it was dealt with at [46]. It cannot be said that the Tribunal overlooked the possible consequences, to the applicant or to anybody else, of his visa being cancelled.

10. It is asserted that the applicant has made a substantial investment in the business.  For present purposes I cannot see that this matter has any relevance.  The visa in question was, as I understand it, designed to facilitate his study in Australia.  It had nothing to do with investment.  In any event, the Tribunal was clearly aware of the investment.  I cannot see any error in the way in which it dealt with that matter. 

11. As to the submission that the Tribunal failed to appreciate the true nature of its decision and proceeded upon the basis that it need only endorse the decision of the Tribunal below, the applicant purports to rely upon the decision of Spender J in Alkiswani v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1314. In that case, his Honour considered that the Tribunal had failed to address the appropriate question because it had merely decided that the Minister’s decision in question was open and endorsed that decision. That is not a conclusion which I would draw concerning the Tribunal’s conduct in this case. If one looks particularly at [42], [44], [45] and [46] it is clear that the Tribunal drew its own conclusions as to various matters relevant to its decision. Although, at [47], it observed that the delegate’s decision was ‘… the preferable or correct one’, in my view that statement merely reflected its own conclusions.  As has been pointed out to me, the relevant provisions of the Act provide that the Tribunal may affirm the original decision.  See Migration Act 1958 (Cth) at s 349(2). I see no basis for criticism of the decision in this respect.

12. Finally, it is said that the Tribunal merely paid lip-service to various policy guidelines.  I see no basis for that criticism.  It is not necessary to deal further with it.  In the circumstances the application will be dismissed.  I order that the applicant pay the respondent’s costs of the proceedings.  I note that the second respondent has appeared to indicate that it will abide the order of the Court save as to costs.  I do not understand it to seek any costs order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             26 November 2004

Counsel for the Applicant:	Mr L Boccabella
Solicitor for the Applicant:	A J Torbey & Associates
Counsel for the Respondent:	Mr S A McLeod
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	3 November 2004
Date of Judgment:	3 November 2004