Chen v Minister for Immigration & Anor

[2014] FCCA 271

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 271

Catchwords:
MIGATION – Application for extension of time to seek review of decision of Migration Review Tribunal – whether satisfactory explanation for delay – whether merit in grounds of review – application refused.

Legislation:  
Migration Act 1958 (Cth)

Kaur v the Ministerfor Immigration & Anor [2010] FMCA 634
Kruger v The Commonwealth(“Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1
Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618

Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1

VN Railway Pty Ltd v Commissioner of Taxation [2013] FCA 265
Vu v the Minister for Immigration and Citizenship & Another (2008) 101 ALD 211; [2008] FCAFC 59
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726

Applicant: CHENG CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent MIGRATION REVIEW TRIBUNAL

File Number: SYG 1662 of 2013

Judgment of: Judge Barnes

Hearing date: 6 February 2014

Delivered at: Sydney

Delivered on: 6 February 2014

REPRESENTATION

Solicitors for the Applicant: Paul Guan and Associates

Counsel for the Respondent: Mr B.D. Kaplan

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

2. The application for an extension of time be refused.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,400. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1662 of 2013

CHENG CHEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 31 January 2013 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s subclass 573 higher education sector student visa.

2. The Applicant sought review by application filed in this court on 22 July 2013.  The application was accompanied by an affidavit sworn by the Applicant’s solicitor which simply attached a copy of the decision of the Tribunal.

3. In that application, which was filed some four and a half months after the 35-day time limit provided for in s.477 of the Migration Act 1958 (Cth) (the Act), the Applicant indicated that he sought an extension of time on the grounds that “[his] right to study in Australia has been terminated unlawfully.  Had the errors not been properly addressed, the losses [he] suffered could not be recovered in any other proper way or remedy”, and “[h]ad the error had not been properly addressed, the decision may damp (sic) the confidence to those international students who genuinely are seeking education in Australia.”

4. The application contains two substantive grounds. They are in essence that in its reasoning in relation to reg.2.432B(2)(b) of the Migration Regulations 1994 the Tribunal failed to follow s.6 in Direction 38 made under s.499 of the Act “properly” and that in its reasoning on reg.2.43(2)(ii)(b) the Tribunal “proceeded in a manner which rendered it unreasonable such as to constitute unreasonableness in the Wednesbury Corporation sense”.  Both grounds rely on the same particulars, which set out part of para.6 of the Direction and list various matters in relation to the Applicant’s circumstances.

5. As discussed with the legal representatives for the parties, the hearing proceeded on the basis that all of the issues that the Applicant wished to raise in relation to the application for the extension of time would be raised today and the merits of the grounds in the substantive application would be argued in full.  Hence I was in a position to consider the application for an extension of time and also, if any extension of time were to be granted, whether the grounds as pleaded were made out.

6. It is appropriate to deal first with the application for an extension of time.  In that context, it is relevant to have regard to the timing of the application.  As indicated, the Tribunal decision was dated 31 January 2013.  The Tribunal sent a copy of its decision to the applicant under cover of a letter of 1 February 2013.

7. Section 477(1) of the Act required the Applicant to commence the proceedings in this court within 35 days of the date of the migration decision, that being 31 January 2013.  The application was not filed until 22 July 2013 which, it is not in dispute, is approximately four and a half months outside the time provided for in s.477(1) of the Act.

8. However s.477(2) provides that the court may by order extend the 35-day period as it considers appropriate if: (a) an application for that order has been made in writing to the Court specifying why the Applicant considers it is necessary in the interests of the administration of justice to make the order and (b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

9. The Applicant did specify in writing in his application why he considered it necessary in the interests of the administration of justice to make the order as required by s.477(2)(a).  Hence it is necessary to consider whether the Court is satisfied that it is so necessary having regard to all the circumstances, including the factors referred to in Kaur v the Ministerfor Immigration & Anor [2010] FMCA 634 (and see WZASQ v Minister for Immigration & Anor [2013] FCCA 1726). It is not in dispute that factors of relevance include whether there is an adequate explanation for the delay in commencing the proceedings, the merits of the substantive application as well as the public interest which in this case was addressed in terms of the impact on the Applicant and other via holders not being granted an extension of time. It is also relevant to consider whether there would be any prejudice to the First Respondent in granting the extension sought. There is no suggestion that there is such prejudice.

10. As was pointed out in the response, the Applicant provided no explanation for his delay in commencing these proceedings at the time of filing his application.  However, in an affidavit affirmed on 31 July 2013 the Applicant acknowledged that the application was out of time, sought an extension of time and stated:

    The reason for the delay was that I was advised that I might be granted a visa to continue with my studies in Australia when I sought the Minister’s intervention under section 351 of the Migration Act 1958. However, on 21 June 2013 the request was declined.

11. The affidavit annexes a copy of an acknowledgement of the request for Ministerial intervention dated 12 March 2013.  There is no evidence before the Court as to the date on which Ministerial intervention was sought, but it was obviously some time prior to 12 March 2013 but after the Tribunal decision was received.  The application is not before the Court.  Also annexed is a notification of the result of the request for Ministerial intervention dated 21 June 2013.  The Applicant also addressed his personal circumstances in this affidavit.  There is no explanation provided in relation to the delay of about one month after the result of the request for Ministerial intervention was notified to the Applicant.

12. Insofar as it appeared, at least in closing submissions for the Applicant, to be submitted that the critical factor was the merits of the case, while the merits of the case may turn out to be the most significant factor in a particular case, that does not take away from the proposition that all of the circumstances should be taken into account.  Hence it is relevant to have regard to the delay.  The Act prescribes a time limit within which an Applicant is to seek judicial review.  The Applicant seeks, in effect, an exception to that time limit on the basis that it is necessary in the interests of the administration of justice.

13. The delay is not insignificant having regard to the 35 day time limit in s.477(1) of the Act.  I have considered the adequacy of the Applicant’s explanation for the delay.  In written submissions the Applicant addressed very briefly the explanation for the delay, suggesting that the Applicant just wished to have an opportunity to complete his proposed studies and then made a request for Ministerial intervention.  The Applicant’s evidence refers simply to the fact that he was advised he might be granted a visa to continue with his studies “when” he sought the Minister’s intervention.

14. The Applicant’s solicitor appeared to submit that the Applicant was a genuine student and that the basis on which he sought Ministerial intervention was such that in this case, the Court could be satisfied that the application for Ministerial intervention was itself an adequate explanation for the delay and that the case could be distinguished from circumstances where Ministerial intervention might be sought in relation to some other class of visa.

15. I am not persuaded on the evidence before the Court (which I noted does not include the application for Ministerial intervention) that the fact that the Applicant sought Ministerial intervention in relation to a student visa on the basis that he sought a favourable decision in place of the cancellation decision so that he could continue to hold a student visa is such as to satisfy me that the mere fact of the application for a Ministerial intervention is an adequate explanation for the delay. 

16. I accept that in some circumstances a request for Ministerial intervention may form part of circumstances which, considered in their entirety, provide an adequate explanation for delay.  However I am not satisfied that in the particular circumstances of this case, on the evidence before the Court that the Applicant has provided a satisfactory or adequate explanation for the delay.  In that regard, I have considered the limited explanation provided, the timing of the delay and what occurred after the notification of the result of Ministerial intervention.

17. It has not been established that the Applicant was ignorant of his obligation to seek review within a specified time limit or that he misunderstood the nature of the time limit.  Nor is there any suggestion that there was some responsibility on the part of those who represented the Applicant as migration agents or lawyers, whether by way of an oversight, slip-up or advice that the Applicant acted on inadvisedly.

18. The decision of the Full Court of the Federal Court in Vu v the Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59, in particular the judgment of Jessup J with whom Gyles and Besanko JJ agreed, is relevant in relation to the adequacy of an explanation for delay based on a request for Ministerial intervention, notwithstanding that that case concerned an application for leave to file a notice of appeal outside the time provided for in the Federal Court Rules 2001 (Cth).  The Federal Court found that an approach to the Minister under s.351 did not provide an acceptable explanation for the delay (see Vu at [28] to [30] per Jessup J). There is some commonality in the circumstances in Vu and this case, but there is no evidence as to the date on which Ministerial intervention was requested.  In both cases that the application to the Court was not made until about a month after the date of the notification of the result of the request for Ministerial intervention (see Vu at [28] to [30] per Jessup J).

19. The Applicant in this case was represented at the time of the Tribunal decision.  There is no suggestion that he was not aware of the time limit.  Rather, as in Vu, it may be inferred that the approach taken by the Applicant was that his application to the court for judicial review was a kind of “Plan B” (see Vu at [29]) to which resort was had once the approach under s.351 proved to be unsuccessful.

20. Even if that were not to be the case, on the limited evidence before the Court, particularly in circumstances where there is insufficient detail or specificity in relation to the “advice” that the Applicant received about seeking Ministerial intervention (beyond the fact that he might be granted a visa to continue with his studies) and having regard to the absence of evidence about the timing and circumstances of the application to the Minister and any explanation for what occurred after the notification was received, I am not persuaded that the Applicant has provided a satisfactory explanation for what is, having regard to the time limit provided for in the Act, not an insubstantial delay. 

21. I note that there is nothing in the evidence to establish that the Applicant is in any different position to all other persons (or at least all other student visa holders) affected adversely by a Tribunal decision to whom the judicial review provisions apply.  Notwithstanding the absence of a satisfactory explanation for the delay, it is appropriate to have regard to all of the circumstances. 

22. The application claimed there were two implications for the Applicant if the extension of time was not granted.  First it was asserted that his right to study was terminated unlawfully and that were the errors not properly addressed, the losses he suffered could not be recovered in any proper way.  I take this claim to mean that if it were apparent that there was a jurisdictional error on the part of the Tribunal then that factor would be of particular significance.  I agree.  However, for the reasons given below, this is not such a case.

23. The suggestion that as the “error” had not been properly addressed the decision may “damp the confidence to those international students who genuinely are seeking education in Australia” is also dependent on there being a jurisdictional error on the part of the Tribunal. 

24. The First Respondent conceded in written submissions that the decision had significant consequences for the Applicant.  There would be an adverse effect for the Applicant, particularly insofar as he is currently enrolled in a course.  I acknowledge that this is a factor that weighs in favour of the Applicant, as does the fact that there would be no prejudice to the First Respondent from an extension of time. 

25. However it is particularly important in a case of this nature to have regard to the merits of the substantive application.  In that respect I have borne in mind that the longer the unexplained or unsatisfactorily explained delay, the stronger the argument on the merits would need to be to grant an extension of time (see VQAN v the Minister & Multicultural & Ethnic Affairs [2003] FCA 1541 in relation to an application for leave to appeal out of time).

26. To consider the merits of the grounds relied on by the Applicant, it is necessary to outline the background to the application to the Tribunal for review, the applicable law and the Tribunal decision. 

27. The Applicant is a citizen of the People’s Republic of China.  On 16 October 2010 he was granted a student visa, apparently to study English and then a bachelor’s degree.  He came to Australia in October 2010.  He commenced an English Language Intensive Court for Overseas Students (ELICOS) course in October 2010. 

28. On 12 September 2011 the University of Queensland certified the Applicant as not achieving satisfactory course attendance in relation to the ELICOS course. The Department of Immigration and Citizenship issued a notice of intention to consider cancellation of his student visa under s.116 of the Act on 28 September 2011. The notice of intention was issued on the basis that the Applicant may have breached a condition to which his student visa was subject, that is, condition 8202(3)(b) which is found in Schedule 8 to the Migration Regulations1994.  It relevantly provides:

    (3)    A holder meets the requirements of this subclause if neither of the following applies:

...

(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.

1. The Applicant responded to the Notice of Intention to Cancel his visa on 4 October 2011 through his migration agent.  As part of that response he provided an explanation for his unsatisfactory course attendance in a written statement.  In particular, he explained that he had suffered a knee injury playing basketball in December 2010.  He claimed his knee became inflamed and worse in January 2011 and that he visited a local hospital in China where a doctor recommended rest and surgery.  He provided a medical certificate.  He addressed subsequent events.  He also provided some documentation in support of his contention that the decision-maker could be satisfied that the non-compliance was due to exceptional circumstances beyond his control. 

2. Under s.116(1) of the Act, the Minister may cancel a visa if satisfied that the holder has not complied with the visa.  Under s.116(3), the Minister must cancel such a visa in prescribed circumstances.  Regulation 2.43(2)(b)(ii) sets out prescribed circumstances in which the Minister must cancel a visa, relevantly:

   (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 Minuter 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. 

1. The delegate made a decision to cancel the Applicant’s student visa on 7 December 2011, finding non-compliance with condition 8202 on the basis of the University certification and that the breach was not due to exceptional circumstances beyond the Applicant’s control. 

2. The Applicant sought review of the Delegate’s decision.  He was invited to provide further material.  Subsequently he was invited to a Tribunal hearing on 5 October 2012 and advised to provide any further information.  The Applicant provided further information to the Tribunal on 5 October 2012, including a further written statement, submissions from his advisor and some additional supporting documentation.

3. Both the Applicant and his representative attended the Tribunal hearing.  The only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s account of the hearing.  There is no transcript of the Tribunal hearing in evidence.  In its account of the hearing the Tribunal indicated that it discussed with the Applicant in some detail the information he had provided and differences between the original information and subsequent information. 

4. He was questioned about whether there were grounds for cancellation and the requirements of condition 8202.  He admitted he was certified by the University for not meeting attendance requirements.  The Tribunal considered whether the reasons the Applicant provided for his non-compliance were exceptional, caused the breach and were beyond his control. 

5. Relevantly, the Tribunal recorded that it listed for the Applicant what it understood to be the exceptional circumstances that he had raised.  It then asked the Applicant if there were any other reasons he wished to raise as exceptional circumstances.  He said no.  However the Tribunal reconsidered his written statement and suggested that it raised an issue as to difficulties of communication with his first migration agent.  The Tribunal noted that this occurred after the cancellation, so that it could not be a cause for the breach of condition 8202.  In addition, the Tribunal went on to discuss claims that the Applicant had made at the hearing, (albeit not in his statement to the Delegate or the Tribunal) in relation to the issue of bus travel.

1. The Tribunal recorded its understanding of how the Applicant claimed that the various issues he had raised affected him.  It discussed those issues with him and put some information to him under s.359AA of the Act.  He chose to respond at the hearing.  The Tribunal invited the Applicant’s agent to make submissions at that stage.  He indicated he did not wish to do so.  At the end of the hearing, the Applicant was invited to provide additional evidence or submissions.  He referred to his attendance in his current course being 100 per cent and his operation being a success.  His migration agent made a brief submission, endeavouring to provide an explanation for inconsistent evidence the Applicant had given about the circumstances in which he had consulted a doctor in China.

2. In its findings and reasons the Tribunal found that the University of Queensland had certified the Applicant as not achieving satisfactory course attendance and that this constituted non-compliance with condition 8202(3)(b).  It pointed out that it was unable to look beyond the certification by the education provider in relation to the issue of breach.  No issue is taken with that part of the Tribunal reasoning. 

3. The Tribunal went on to consider whether the breach was not due to exceptional circumstances beyond the Applicant’s control as required by regulation 2.34(2)(ii)(b).  It referred specifically to Direction No.38. 

4. In its account of the relevant law the Tribunal had indicated that in considering whether it was satisfied a breach of condition 8202 was not due to exceptional circumstances beyond the Applicant’s control, it was necessary to have regard to Direction 38.  It summarised the obligation to have regard to certain policy and/or written advice, neither of which applied in the present circumstances.  The Tribunal stated at [21]:

   The above considerations are not intended to be exhaustive.  Rather, the Tribunal is required to consider ‘all of the facts of the case in total’ and come to its own view as to whether it is satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control.

5. In its findings and reasons the Tribunal reiterated that the matters in the Direction were not exhaustive and that it must consider all the facts of the case.  The Tribunal considered at some length the issues raised by the Applicant, in particular his knee injury and his claims that he was not aware he had to report his injury to the University, that he had not received warning letters from the University regarding his unsatisfactory attendance because he had changed his address,  that the University had failed to cancel his confirmation of enrolment in the final week of term after he sought a deferral, and that he sometimes missed the bus from his residence to the University or the buses arrived late. 

6. The Tribunal found, for various reasons, that the Applicant’s non-compliance was either not due to the asserted reasons or did not amount to exceptional circumstances that were beyond his control.  Relevantly, in relation to all of the factors considered, the Tribunal was not satisfied that the claims made by the Applicant amounted to circumstances beyond his control. 

7. The Tribunal accepted that the Applicant had suffered an injury to his knee and that it was serious. However it found that his evidence about the injury was inconsistent.  It detailed inconsistencies, including in relation to whether he had suffered one injury to his knee (as appeared to be suggested to the Delegate) or whether he had suffered two injuries (an injury to his meniscus in 2007 and an injury to his anterior cruciate ligament (the ACL) on 15 March 2011) as he told the Tribunal.

8. The Tribunal considered in some detail the medical evidence that the Applicant put forward.  It identified inconsistencies between such documents themselves and with the Applicant’s evidence and also internal inconsistencies in the Applicant’s statements.  It placed varying degrees of weight on those documents.  The Tribunal was not satisfied that the Applicant’s meniscus injury was either exceptional or a reason for the Applicant’s unsatisfactory record of attendance.  It accepted that the injury to the ACL was an exceptional circumstance but had regard to the Applicant’s evidence that he did not seek medical attention in Australia regarding the injury.  Insofar as the Applicant claimed that he injured his ACL on 15 March 2011, the Tribunal found that having regard to the evidence it could not identify the date of that injury.

9. The Tribunal accepted that there may have been a miscommunication between the Applicant and his first migration agent and therefore placed no weight on his claim in his original statement that he injured his knee in December 2010.  Nonetheless, it had regard to specified inconsistencies in relation to when the injury occurred and issues in relation to the Applicant’s claim that he injured his ACL on 15 March 2011, in particular the fact that while he gave evidence that he did not attend the University for the two days after his injury, there was evidence from the education provider that he attended a counselling session on 17 March 2011 and that at that time he had advised the counsellor that his knee was getting better. 

10. In addition, the Tribunal did not find the Applicant’s reasons for not seeking medical treatment persuasive. It noted that he only sought treatment after he was certified by the University on 12 September 2011 and that there was no evidence to support his claim of an earlier consultation.  It had regard to conflicting medical evidence that he had provided.  The Tribunal was persuaded by a surgeon’s view expressed in February 2012 “after piecing the story together” that the Applicant may have first injured his ACL in 2009. 

11. On the basis of the evidence before it the Tribunal found that the Applicant had a longstanding injury to his knee.  It did not accept that he first injured his ACL on 15 March 2011 and re-injured it later in May 2011 having regard to the evidence before it about what occurred two days later. 

12. The Tribunal made adverse credibility findings in relation to the Applicant.  It found that he been inconsistent in many material respects in his evidence and that he had sought to exaggerate the effect of his knee injury on his attendance.  The Tribunal considered that if the injury to the Applicant’s knee was so severe as to have had the impact he claimed on his attendance he would have sought medical assistance in Australia.  Having regard to the fact that he did not do so until after he was certified, the Tribunal found that the Applicant’s non-compliance was not due to the injury to his ACL as he claimed.  The Tribunal reiterated that while it found that the ACL injury was exceptional, it could not be satisfied of the date of injury and therefore it found that the non-compliance and certification was not due to that injury.  In addition, the Tribunal found that the Applicant’s decision not to seek medical attention in Australia until after the certification was not beyond his control. 

13. The Tribunal considered, but rejected, the Applicant’s claims about his non-awareness of the obligation to report his knee injury to his education provider.  It found that he was aware of this obligation at least as early as 17 March 2011 when he attended the counselling session.  The Tribunal found that the certification was not due to the Applicant’s lack of knowledge of the need to report the injury. 

14. The Tribunal found not only that the Applicant was aware of the need to report his knee injury to the education provider but also that he had exaggerated his evidence about not knowing about the need to provide a medical certificate or that arriving late at class would mean that he was marked absent for the entire day.  The Tribunal did not accept these explanations for the non-compliance. 

15. The Tribunal considered the Applicant’s claim that he did not receive warning letters from the University.  It found that it was within the Applicant’s control to inform the University of his correct address and that, in any event, on his own account he kept himself aware of his attendance rate by checking the notice board.  It concluded that the certification was not due to non-receipt of warning letters and that the non-receipt was not an exceptional circumstance and not beyond the Applicant’s control. 

16. As to the University’s decision to refuse to cancel the Applicant’s enrolment, the Tribunal found that this was not an exceptional circumstance and that the certification was not a result of the University not cancelling the Applicant’s enrolment in the last week of enrolment.  It noted that at the time of his application for cancellation the Applicant’s attendance record was already non-complaint.

17. The Tribunal also addressed the Applicant’s claims about missing buses between the start of 2011 and the claimed injury to his ACL in March 2011.  It noted that his evidence at the hearing was that his knee injury had no effect on his attendance record up until mid-March 2011.  Rather he claimed that to travel from where he lived to the University he had to change buses.  It considered his complaints that if the bus was late, he had a long wait and if he caught a later bus, he would arrive late and there were few bus services.  The Tribunal found that buses arriving later than the scheduled time was not unusual or out of the ordinary, that the difficulties the Applicant described were not extraordinary circumstances and that it was within his control to ensure he caught an earlier bus service.  The Tribunal found that the bus travel was not an exceptional circumstance out of the Applicant’s control. 

18. The Tribunal then (at [94]) stated that it had considered the Applicant’s claims “individually and in combination as to why he did not achieve satisfactory course progress.”  On the evidence before it, the Tribunal was satisfied the breach of condition 8202 was not due to exceptional circumstances beyond his control. 

19. For “the reasons given” the Tribunal was satisfied the Applicant did not comply with condition 8202, that the ground for cancellation in s.116(1)(b) was made out and that the non-compliance was not due to exceptional circumstances beyond the Applicant’s control.  Hence it concluded that circumstances arose in which the visa must be cancelled under s.116(3) of the Act. 

20. The grounds in the application take issue with the reasoning of the Tribunal.  As indicated, the first ground in the application is that:

    In its reasoning on regulation 2.43(2)(b)(ii)(B) for the grounds of cancellation under s.116(1)(b), the Tribunal has failed to follow Section 6, Direction No.38 made under Section 499 Migration Act 1958 properly.

21. Direction 38 was made under s.499 of the Act which provides that the Minister may give written directions to a person or body having functions or powers under the Act about specified matters. This Direction relevantly contains guidelines for considering cancellation of student visas for non-compliance with condition 8202 or for the review of such cancellation decisions.

22. After a preamble in which the reasons for a Direction about the exercise of powers under reg.2.43(2)(b) are canvassed, the Direction summarises the effect of s.116(3) and reg.2.43(2)(b).  It specifies matters (not relevant for present purposes) to which the decision-maker must have regard. It continues in para.6 as follows:

    Decision-makers must consider all of the facts of a case in total.  The weight to be given to relevant matters is a matter for decision-makers.  Decision-makers must come to their own view as to whether they are satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. 

23. In essence, the Applicant’s contention is that the Tribunal failed to have regard to the expression “in total” in the manner in which it considered the facts of this case.  There is no suggestion that the Tribunal failed to identify particular relevant factors.  Rather, in the particulars it is asserted that the Tribunal “considered the following facts in isolation and failed to identify the significance of them to the event in total.”  Eleven factors are listed as follows:

    (a)The Applicant has not been in Australia very long.

    (b)The Applicant then had limited English.

    (c)As a result of (a) and (b) the Applicant then might have limited ability to understand and comply with the rules and policies on attendance prescribed by the education provider and even to follow their instructions.

    (d)He was and is a genuine student overall, and he has been making all his efforts to complete his proposed study.

    (e)He has had long standing knee injuries, which was serious enough to the extent he required surgery. Nevertheless, he had done his best to go attending classes.

    (f)The education provider’s policy on attendance records-being late be marked as being absent, as this policy has contributed to his small lower attendance record (78% in February 2011), which was the reason contrary to his claim 90% or 100% attendance record prior to the occurrence of his serious knee injury.

    (g)For the sake of his studies in Australia, he cancelled in surgery arrangements in China which was scheduled in December 2011 and chose to undertake his surgery in Australia, which occurred in April 2012.

    (h)He sought medical advice from the experts working in the Chinese military through his parents but was not able to disclose the name of the medical experts for the reason of secrecy.

    (i)On 18 April 2012 he undertook surgery to reconstruct his ACL and repair the medical meniscus.

    (j)The surgeon surmises, “piecing together, I suspect that (the applicant) has sustained a complete disruption of his anterior cruciate ligament in the original injury which occurred in 2009. Since that time has suffered from episodic giving way, pain and locking.”  The Tribunal places weigh on these documents.

    (k)His current attendance at QAT course was 100%.

24. First, insofar as it was submitted that the Tribunal erred in failing to consider what occurred after the date on which there was non-compliance with condition 8202 (including circumstances such as the Applicant’s later study and attendance and his solicitor’s claim in these proceedings about the genuineness of the Applicant’s study because he had gone on to study some other course) there is no basis for such a contention.

25. The Direction relates to whether the decision-maker is satisfied that there has been non-compliance with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.  The non-compliance in question was the certification by the University on 12 September 2011 in relation to the Applicant’s attendance in the ELICOS course.  The Applicant cited no authority in support of the proposition that subsequent events were relevant to whether or not such non-compliance was within the last paragraph of regulation 2.43(2) (that is, not due to exceptional circumstances beyond the visa holder’s control).  It has not been established (and nor is it arguable) that matters relied on in this case that are said to have occurred after September 2011 should have been taken into account by the Tribunal based on para.6 of the Direction, in determining whether the non-compliance in September 2011 was due to exceptional circumstances beyond the Applicant’s control.  This is not a case in which subsequent events inform and explain earlier events.

26. The Applicant also submitted that the Tribunal was required to take a global discretionary approach having regard to the genuineness of an Applicant’s intention to study as a student. However what the Tribunal is obliged to do is to consider the words in the Migration Act and Regulations. It did so and found that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. The applicable provisions do not give the Tribunal some general discretion to waive a non-compliance with condition 8202 or to have regard to whether there was substantial compliance (insofar as that is implicit in the submissions for the Applicant).

27. More specifically, it was submitted that the Tribunal was obliged under para.6 of the Direction to adopt an “integrated balanced approach”  although this concept was not clarified in any meaningful sense in submissions.  Reliance was placed on an extract from the Preamble which commences midway through a sentence, as follows:

    …is satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to the stated intention of the applicant to comply with the conditions of their student visa and other relevant matters.

28. Taking the Applicant’s argument at its highest and proceeding on the basis that compliance by the Tribunal with the Direction is mandatory, it is important to consider what the Preamble actually says.  The Direction is expressed as providing “guidelines.”  Whatever its force, it is not of itself legislation.  The part of the Preamble relied on by the Applicant appears in the following paragraph:

    To be eligible for a student visa all applicants must satisfy the legislative requirements include that the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to the state of intention of the applicant to comply with conditions of their student visa and other relevant matters. (Emphasis added). 

29. The Preamble goes on to state that the ability of a student to make satisfactory course progress and maintain satisfactory attendance is an “indicator of the student’s bona fides as it indicates that the student is genuinely engaged in studies.”  Reference is made to the responsibilities of education providers under the applicable legislative scheme and it is explained that:

    Given the existence of the powers in the legislation to revoke automatic visa cancellation and to cancel a visa, the Government considers it desirable to give decision-makers at the primary and the merits review level, directions about the performance of functions and the exercise of powers under paragraph 137L(1)(b) of the Act and subparagraph 2.43(2)(b)(ii)(B) of the Regulations in relation to breaches of non-compliance with condition 8202 (as amended on and from July 7 2007).

30. The Direction contains specific guidelines in relation to the issue of considering cancellation of student visas for non-compliance with student visa condition 8202.  It addresses circumstances in which the decision-maker “must have due regard to” policy advice and written notification of concerns about the “process” leading up to non-compliance and reporting thereof.  These matters are not relevant to the circumstances of the case.  Beyond this, the Direction contains the general proposition that decision-makers must consider “all of the facts of a case in total.”  

31. I am not persuaded that, read in the context of the Preamble, this obligation requires the Tribunal to have regard to considerations such as the “genuineness” of a student assessed in light of the student’s achievements after the non-compliance or an assessment of whether the student intends to comply in the future with a student visa or wishes to stay in Australia as a genuine student. 

32. The Minister contended primarily that the command in para.6 of the Direction did not call for the application by the Tribunal of some special test and that there was “no particular significance” attached to the words “in total.”  That may be so, but, nonetheless I accept the Applicant’s contention that the words “in total” must add something to the earlier words in the Direction.  Hence there may be an issue about whether there has been compliance with the Direction if a Tribunal simply considers individual issues raised by an Applicant and, having done so, fails to consider the combination of the claims made by the Applicant.  It may well be that the words “in total” require a consideration of all the circumstances relied on by an Applicant in relation to a non-compliance in combination. It is not necessary to reach a conclusion on this issue in this instance because on the assumption there is such a requirement it was satisfied in this case. 

1. In the particular circumstances of this case the Tribunal’s considered “all of the facts of the case in total.”   As the First Respondent submitted, the Tribunal considered individual circumstances raised by the Applicant (in context and as they overlapped) and then, having in essence found that the matters claimed were not beyond the control of the Applicant and/or were not exceptional or a cause of the non-compliance, considered all the claims in combination.  Given its specific findings in relation to the matters raised by the Applicant this general finding sufficed.  It was not necessary in the particular circumstances of this case for the Tribunal to do more than indicate (albeit briefly) that it had considered the Applicant’s claims in relation to whether the non-compliance was due to exceptional circumstances beyond his control both individually and in combination.  There may be circumstances in which particular claims made by an Applicant would lead to a different result when considered in combination.  However having regard to the clear findings made by the Tribunal, not only in relation to credibility, but also in relation to whether particular facts amounted to exceptional circumstances, the timing of the knee injury whether the claimed circumstances were beyond the Applicant’s control, this is not such a case. 

2. In the circumstances of this case it has not been established that there is even an arguable case that the Tribunal failed to consider all of the facts of a case “in total” as required by Direction No.38, let alone reasonable prospects of success or a jurisdictional error.  

3. Insofar as there is some suggestion that an “integrated balanced approach” requires something more, in the absence of clarification of such submissions it has not been established that other words should be substituted for “in total.”  They are ordinary words of English and they should be given their ordinary meaning.

4. As it has not been established that the Tribunal failed to act in accordance with the Direction (or that there is an arguable case in this respect), it is not necessary to determine whether the Minister is correct in his submission that it was not necessary for the Tribunal to consider the Applicant’s claims cumulatively.  The Tribunal did consider the Applicant’s claims in combination insofar as it was necessary to do so on the facts of the case and having regard to its findings.  It cannot be said that the Tribunal merely considered each of the matters raised by the Applicant in isolation.

5. Beyond this, the Applicant’s submissions appeared to take issue with the merits of the Tribunal decision, particularly insofar as the solicitor for the Applicant reiterated on a number of occasions that the Tribunal “would have found” or “should have found” that the Applicant was a genuine student.  For example, it was suggested in the written submissions that  “The short period of a littler lower attendance was due to his knee problems.  It was exceptional circumstances beyond the visa holder’s control.”  Such contentions seek merits review.  Merits review is not available in this court. 

6. Moreover, insofar as the Tribunal placed varying degrees of weight on the Applicant’s oral and documentary evidence, it proceeded in accordance with para.6 of the Direction.  Findings of fact were matters for the Tribunal.  As discussed further in relation to ground 2, the findings of fact were open to the Tribunal on the material before it for the reasons that it gave.  The Applicant has not established an arguable case of jurisdictional error on the basis contended for in Ground 1.

7. Ground 2 is based on the same particulars as Ground 1.  It is contended that the Tribunal proceeded in a manner which rendered the decision unreasonable such as to constitute unreasonableness in the Wednesbury Corporation sense. 

8. In written submissions the Applicant relied on Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223 and the citation of that case by Brennan CJ in Kruger v The Commonwealth(“Stolen Generations case”) [1997] HCA 27 at [36] in support of the proposition that “when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably for the legislature is taken to intend that the discretion be so exercised.”  The Applicant also referred to remarks by Professor Gallagher in Discretionary Powers: A Legal Study of Official Discretion 1986, to the effect that the requirement that officials exercising discretion comply with the canons of rationality means, among other things, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power.

9. The Applicant did not address to the First Respondent’s submissions to the effect that unreasonableness was only available as a challenge to discretionary decisions, not factual findings, except to contend that Ground 2 was not a challenge to factual findings but rather to the Tribunal reasoning.  Authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618 particularly at [22] – [30] per French CJ and VN Railway Pty Ltd v Commissioner of Taxation [2013] FCA 265 at [69] – [70] per Tracy J were not addressed in the Applicant’s submissions.

10. In any event, taking the Applicant’s claims at their highest and proceeding on the basis that the authorities in relation to unreasonableness leave room for the Applicant’s contention that if the Tribunal decision was unreasonable then that would amount to a jurisdictional error, it has not been established that there is an arguable case that this Tribunal decision was so unreasonable that no reasonable decision-maker could have made it or that there was no “intelligible justification” for the decision (see Minister for Immigration and Border Protection v Singh (2014) FCAFC 1 at [30] referring to Li at [76] albeit in relation to the exercise of a power by the Tribunal).

11. It is apparent from the Applicant’s written submissions that issue is taken with the Tribunal’s reasoning in relation to each of the factors listed in the particulars which set out the various matters that the Applicant raised in evidence before the Tribunal or now asserts.  Thus it is contended that the Applicant:

    might have exaggerated the impact of his knees circumstances upon his attendance at the hearing, some of his evidence given should not be accepted uncritically, but he indeed, has given evidence that he had knee injuries and required surgery, which had been accepted by [the Tribunal].  Though his surgery appeared to reconstruct his ACL relating to his claimed recent injuries, it is still reasonable to expect that it was related to old injuries, and it is unreasonable to accept there was some impacts of the condition upon his normal study. Further medical evidence from Dr. Dr.(sic) David Morgan from Queensland Hips and Knees stated that his ACL (anterior cruciate ligament) might have occurred in 2009.  It means that the so“new” injuries were also “old” injuries as meniscus.

12. To some extent this contention seeks merit review or challenges a factual finding.  In any event, as counsel for the First Respondent pointed out, the Tribunal had regard to the fact that the Applicant himself said that his earlier injury to his meniscus was unrelated to the injury to his ACL.  There is no basis for suggesting that the Tribunal’s reasoning in this respect was not reasonable (on the basis that it was reasonable to expect that the Applicant’s later injury was related to old injuries). 

13. To the extent that it is contended that it was unreasonable for the Tribunal not to find that the earlier injury adversely affected the Applicant’s attendance, again the Applicant’s own evidence (referred to by the Tribunal) was that it had no such effect.  The Tribunal was persuaded by the opinion of the Applicant’s surgeon who “suspect[ed]” that the Applicant injured his ACL in 2009. However there is nothing in the surgeon’s statement and nor is there anything pointed to in the medical evidence before the Tribunal that undermines or is inconsistent with the Tribunal’s finding that the certification by the University was not due to the Applicant’s ACL injury or that his decision not to seek medical attention in Australia until after the certification was not beyond his control such as to render its reasoning unreasonable.

14. The solicitor for the Applicant also submitted that that Applicant did not seek medical assistance immediately after he got injuries and that it was unreasonable to say that the injuries did not have an impact upon the Applicant’s normal studies.  It was contended that he was a. basketball player and “he might believe that he has proper experience and other resources to deal with the injuries.”  Again this contention strays into seeking merits review.  Insofar as it is based on the premise that the Tribunal was critical of the Applicant for not seeking medical advice immediately after he was injured, the Tribunal’s account of the hearing records that it asked the Applicant why he did not seek medical treatment after the injury to his ACL.  The Tribunal found that if the injury had been as severe as to have the impact on attendance claimed by the Applicant, he would have sought earlier medical assistance in Australia.  It has not been established that such reasoning was unreasonable, that no reasonable decision-maker could have engaged in such reasoning or could have reached the decision of which this reasoning was part.

15. Insofar as the Applicant contended that it was “unreasonable to say that it was just because the Applicant was not ill or had not got injuries” that he did not provide medical certificates to the education provider or did not follow its instructions, the Tribunal did not find that the Applicant was not ill or that he did not have injuries.  It accepted that he had sustained an injury to his knee.  It was satisfied that this was an exceptional circumstance, but found that the certification was not due to that injury and that the decision not to seek treatment in Australia until after certification was not beyond the Applicant’s control.  The Tribunal addressed separately (not based simply on a contention or a conclusion that the Applicant was not ill) the issue of his failure to provide medical certificates to the education provider.  It found that he became aware of that obligation in March 2011 (not July as he claimed at the hearing), that he had knowledge of the need to report his injury and that his non-compliance was not due to his lack of knowledge. 

16. It was also claimed in submissions that the Applicant had claimed that his knee injuries caused his walking difficulties and caused him to get up late or that he had complained that the bus came late and that as a result he missed the bus, was late to class and marked absent.  It was submitted that it was unreasonable to conclude that it was within the Applicant’s control “that he should go up early enough to catch the bus to school if we took into account his claimed condition.”

17. However there was no evidence before the Tribunal to suggest that the Applicant’s injury prevented him from catching early buses to the University.  The contention by the Applicant in relation to the reasonableness of the Tribunal’s reasoning misunderstands the basis for the Tribunal’s reasoning in this respect. 

18. The evidence of the Applicant was that his knee injury had no effect on his attendance in the period between his commencing study in 2011 and injuring his ACL in March 2011.  However, he claimed that he had bus problems at that time.  According to the Tribunal he also claimed that his attendance in early 2011 was 90%.  Insofar as the Applicant now seeks to raise some new issue, there is no evidence that he raised such issue with the Tribunal. 

19. The Applicant also takes issue with the Tribunal’s approach to a written statement from his landlord to the effect that he and his wife took care of the Applicant for a few days when he hurt his leg. The statement referred to the Applicant hurting his leg on 17 March 2011.  It was contended in written submissions that the landlord “wrong stated it” as 17 March 2012, and that without further inquiries it was unreasonable for the Tribunal to reject this evidence as being irrelevant to the matter concerned.

20. There is nothing before the court to suggest that the Applicant claimed or provided evidence to the Tribunal to suggest that his landlord made some typographical or other error in his statutory declaration such as to throw the Tribunal reasoning into doubt.  Although the case is not pleaded in these terms, I add for the sake of completion that this is not a case in which there was a critical matter the existence of which was easily ascertained such that the Tribunal was under an obligation to make further inquiries (Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1) before reaching the conclusion that it did.

21. The next part of the Applicant’s written submissions asserts that it was unreasonable to expect that the Applicant (who is said to have said that he had not been in Australia long, had limited English and did not understand many things very well in Australia) would have known and followed requirements which he was told about when he attended orientation at the commencement of his studies or at the counselling sessions. 

22. There was limited evidence about what occurred during orientation, except that the Applicant agreed that the University provided information about his attendance. There is some evidence of what the Tribunal was told about what occurred at the counselling sessions, but not to the extent suggested in submissions.  This submission disagrees with the merits of the Tribunal’s findings and seeks to put to the court further explanations for the Applicant’s non-compliance.  It has not been established that the issues that are now raised affect the reasonableness of the Tribunal reasoning as contended or in any way establish an arguable case of jurisdictional error.  It was open to the Tribunal to find that the Applicant was aware that he had to report his injury and provide medical certificates to the University and that if he arrived late to class he would be marked absent.

23. Finally, the Applicant contended that it was unreasonable that the Tribunal did not consider his attendance and academic performance at Queensland Academy of Technology and Queensland University of Technology (after the time of non-compliance) because this was said to be relevant to the scope and purpose of the “statutory enactment”. Such study post-dated the certification by the University.  It was not unreasonable for the Tribunal to fail to have regard to the Applicant’s subsequent academic achievements in the context of considering whether non-compliance with a condition that was related to certification of attendance at an earlier time (in another course) was due to exceptional circumstances beyond the visa holder’s control. 

24. Ground 2 as pleaded is not made out.  Nor is there an arguable basis for this ground on the material before the court and having regard to the Applicant’s written and oral submissions.

25. I note for the sake of completeness that in the course of the hearing it appeared that the Applicant may have intended to raise an issue in relation to whether the Tribunal complied with s.353(2)(b) of the Act which requires that “The Tribunal in reviewing a decision shall act according to substantial justice and the merits of the case,”  although there was no such ground in the application and no application for leave to file an amended application.

26. Counsel for the First Respondent addressed this possibility and drew attention, in particular, to the discussion of the effect and meaning of s.353(2) by French CJ in Li at [14] – [16] (and see Hayne, Kiefel & Bell JJ at [53]). However in submissions in reply the solicitor for the Applicant appeared to concede that there was no intention to allege that a failure to comply with s.353(2)(b) of itself amounted to jurisdictional error. Rather, it was said that this section was relevant when the Court was considering whether the Tribunal’s reasoning was reasonable. Whatever the merits of this somewhat undeveloped argument, even if regard is had to s.363(2)(b) there is no basis for a contention of Wednesbury unreasonableness. Section 353(2)(b) was also said to support the Applicant’s arguments in relation to Ground 1 about the meaning of “in total” and to reinforce the contention that the Tribunal must act in accordance with the Direction. 

27. As discussed above, taking the Applicant’s arguments at their highest about the need for the Tribunal to comply with the Direction, no failure to follow the Direction is apparent.  The Tribunal did, as para.6 of the Direction requires, consider all of the facts of the case “in total.”  It was open to the Tribunal to consider the individual matters raised by the Applicant and then to consider the circumstances in combination in the manner in which it did having regard to the findings it made, in particular in relation to the absence of matters beyond the Applicant’s control or that matters were not a cause of the non-compliance.  This is not a case in which it can be inferred that the Tribunal did not in fact consider the factors in combination insofar as it was obliged to do in accordance with the Direction. 

28. It has not been established that either of the grounds in the application has a reasonable prospect of success or is arguable.   Insofar as the Applicant’s contention was that even if there was not a satisfactory explanation for the delay if jurisdictional error was established then the case would be of such merit that it would be appropriate to grant an extension of time this has been established. 

29. Having regard to all the circumstances of this case in particular the absence of a satisfactory explanation for delay and the absence of merit in the grounds in the application, notwithstanding the implications for the Applicant of the absence of an extension of time, I am not satisfied that it is necessary in the interests of the administration of justice to make the order sought under s.477(2) of the Act.  The extension of time should be refused.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  20 February 2014