Chiu v Minister for Immigration
[2007] FMCA 479
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHIU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 479 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a Student (Subclass 572) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116, 359A, 359B, 359C, 360, 379C, 483A Migration Regulations 1994 (Cth), reg.2.43(2)(b)(ii), 4.17(3) |
| SZBEL v Minister for Immigration (2006) 231 ALR 592 |
| Applicant: | SHUN KIT CHIU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG2124 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Counsel for the Respondents: | Mr G Kennett |
| Advocate for the Respondents: | Ms S Zarucki of Clayton Utz Solicitors |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 10 August 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2124 of 2005
| SHUN KIT CHIU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 10 August 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 15 July 2005, affirming a decision of the delegate of the first respondent made on 2 March 2005, cancelling the applicant’s Student (Subclass 572) visa. The applicant seeks relief against the decision of the Tribunal.
A Court Book ("CB") prepared by the respondents’ solicitors was filed on 21 October 2005 and is marked Exhibit "A". It was read into evidence.
Background
The Tribunal decision of S. Pinto, reference N05/01348, contains the following background information, which I adopt for the purposes of this judgment:
10.The review applicant entered Australia as a holder of a Subclass 560 (Student) visa on 12 January 1996. This visa was valid until 15 March 2000. The review applicant was then granted several student visas after this date until 18 March 2003.
11.On 18 March 2003, the review applicant was granted a Subclass 572 (Vocation Education and Training Sector) visa with condition 8105 (work limitation) among others, attached. This visa was valid until 2 March 2005.
12.The review applicant last held a Subclass 572 visa. This was granted on the basis of enrolment in a Diploma of Information Technology course at Central College.
13.The review applicant’s Subclass 572 visa was cancelled on 2 March 2005 due to an alleged breach of Condition 8202.
14. On 4 February 2005, the review applicant was issued with a notice from Central College pursuant to section 20 of the Education Services for Overseas Students Act 2000, informing him that he was in breach of a condition of his visa relating to academic performance and that if be failed to attend an office of the Department within 28 days, then his visa would be automatically cancelled. The notice stated that
Particulars of breach:
Lack of academic progress.
15.On 15 February 2005, the review applicant attended an office of the Department and was issued with a Notice of Intention to Consider Cancellation (NOICC) pursuant to section 116 of the Migration Act. This notice stated that a breach of condition 8202 may have occurred in relation to the review applicant’s failure to maintain an academic result considered to be at least satisfactory for each term of the review applicant’s course. The notice also requested the review applicant to attend an interview on 2 March 2003 at 9:30am.
16. On 18 February 2005, the Department contacted the review applicant’s education provider and requested information in relation to the review applicant’s enrolment. On 22 February 2005, Central College confirmed that the review applicant was enrolled at the College between 11 March 2003 and 7 December 2004. The College also advised the Department that the review applicant’s academic performance was unsatisfactory as he had only passed 3 subjects since Term 2 of 2003. A copy of the review applicant’s unofficial academic transcript was also provided. The review applicant’s academic transcripts confirm that out of the 23 (total) subjects enrolled during this lime, he only passed 3. The College stated that the review applicant did not achieve an academic result which was considered to be satisfactory in Semester 1, 2, 3 and 4 of 2004.
Tribunal’s findings and reasons
A summary of the Tribunal's reasons are contained in the first respondent’s written submissions prepared by Mr Kennett and I adopt paragraphs 5 to 9 of those submissions:
5. On 7 March 2005 the Applicant lodged an application for review of that decision by the Migration Review Tribunal.(CB 21)
6. On 12 April 2005 the Tribunal received from Central College a collection of documents relating to the Applicant’s academic performance (which had earlier been supplied to the Department). Among them was a questionnaire asking whether the Applicant had “achieved an academic result considered to be at least satisfactory in each term of 2004, to which the College had answered “No” in each case.(CB 31)
7. Pursuant to s.359A of the Migration Act 1958, the Tribunal wrote to the Applicant’s adviser inviting him to comment on the information received from Central College.(CB 37) The letter noted that condition 8202 required academic results “that are deemed at least satisfactory by your education provider”, and that failure to comply with the condition “shall lead to mandatory cancellation of your visa”.
8. The Applicant’s response (which was made out of time in 21 June 2005)(CB 45) did not question the accuracy of that information or the breach of condition 8202 but advanced various circumstances as reasons why his visa should not be cancelled. The Tribunal held a hearing on 24 June 2005 and heard evidence from the Applicant and his wife.(CB 57 [23]-[25])
9. The Tribunal was not in any doubt, based on the material supplied by Central College, that the Applicant did not achieve results that the College considered satisfactory throughout 2004, and accordingly he had breached condition 8202.11.(CB 58 [25]-[29]) Pursuant to s.116(3) of the Migration Act and reg.2.43(2)(b) of the Migration Regulations,(Conveniently set out at CB 54-55) that made cancellation of the visa mandatory. The Tribunal accepted that the Applicant had had several problems during 2004, but noted that its only role was to determine whether a breach of the condition had occurred.(CB 58)
Application for review of the Tribunal’s decision
On 10 August 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act setting out the following grounds:
1.The MRT fail to consider the applicant’s evidence.
2.The MRT did not consider the circumstances of the applicant.
3.The MRT decision was made unfairly to the applicant and contrary to the law.
4.The MRT had not given the applicant enough time to explain his circumstances.
5.The MRT fail to take exceptional circumstances in the account.
6.The MRT erred in law to take no account of the change of circumstances. (copied without alteration or correction)
At the first Court date on 20 September 2005, the applicant appeared in person and I made orders that he must file and serve complete particulars of each ground of judicial review raised in his application and for which no particulars were provided, by 29 November 2005. In the alternative, I gave the applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon, by the same date. The applicant failed to comply with either of those orders.
Submissions and reasons
The applicant appeared as a self-represented, litigant who was fluent in English and did not require an interpreter. The applicant appeared at a second directions hearing on 2 February 2006 at which orders were made that he should file and serve short written outline of submissions and a list of authorities 14 days prior to the final hearing. This order was also not complied with. When the applicant was invited at the hearing to make oral submissions, he said that he had discussed his matter with a solicitor, but the solicitor was not available to appear on his behalf. I reminded the applicant that he had attended the directions of 2 February 2006 when he indicated that he was in a position to proceed to final hearing. Consequently, on that date, the final hearing was scheduled and sealed orders were issued with that information. No solicitor had filed a notice of appearance on behalf of the applicant. The applicant requested the opportunity to telephone his solicitor to discuss the matter before proceeding with the hearing. I granted the applicant a brief adjournment to enable him to telephone his solicitor to obtain advice, however, I said to him that I would not entertain a substantial adjournment as this matter had been listed for final hearing for approximately 13 months.
After a brief adjournment of 15 minutes, the applicant said to the Court that he had spoken to his solicitor and that he now had oral submissions to make. However, the oral submissions presented were a recitation of the claims previously made to the Tribunal. These predominantly concerned the domestic difficulties he experienced with his girlfriend (now his wife) and other personal difficulties which he claimed impacted on his academic study. No reference was made to any of the grounds of review containing the original application to this Court.
Mr Kennett for the respondents, in his written submissions, argues that the six grounds of review in the application should be addressed as follows:
a)Ground three is a general allegation of unfairness and an error of law, which need not be considered further;
b)Ground four contends that the Tribunal did not give the applicant enough time to “explain his circumstances”; and
c)Grounds one, two, five and six contend, in various ways, that the Tribunal did not take into account the material the applicant put before it as to why his visa should not be cancelled.
Mr Kennett submits that ground four may point to a failure by the Tribunal to provide a hearing in accordance with s.360 of the Act. However, that the applicant faces at least three difficulties in succeeding in his argument:
a)First, the applicant’s argument is not supported by any evidence. The only material before the Court about the conduct of the Tribunal hearing are the Tribunal’s reasons, which sets out a short summary of the evidence given by the applicant and his wife.(CB 57) It does not reveal that the applicant was prevented from saying what he wanted to say. No transcript of the Tribunal hearing has been made available to this Court.
b)Secondly, the Tribunal is not obliged to hold a hearing in circumstances where the applicant has not responded to its s.359A letter within the time frame required (which in this case included an extension of time at the applicant’s request).(CB 39-42) In accordance with ss.359B and 379C of the Act and reg.4.17(3) of the Migration Regulations 1994 (Cth) (“the Regulations”), the applicant was required to respond to the letter within 12 working days after 13 April 2005 (ie. by 29 April 2005).(CB 38) A request for a further extension was refused.(CB 42) As the applicant’s response was not received by 18 May 2006, ss.359C and 360 operated to remove his right to an oral hearing. The Tribunal would not have erred even if it had declined to hold a hearing at all.
c)Thirdly, to the extent that the “circumstances” which the applicant referred to were the extenuating circumstances which he put before the Tribunal, they were irrelevant to its decision for the reasons given. They were not “issues arising in relation to the decision under review”: SZBEL v Minister for Immigration (2006) 231 ALR 592 at [33] – [34]. No error would have arisen from declining to hear from the applicant about them.
Mr Kennett submits that for the same reasons, grounds one, two, five and six must also fail. Section 116(3) of the Act provides that a visa must be cancelled if “prescribed circumstances” exist. Regulation 2.43(2)(b)(ii) at the relevant time described a “circumstance” in relation to cancellation of a Student (Class TU) visa as one where “the Minister is satisfied that the visa holder has not complied with condition 8202”.
Mr Kennett also submits that as the delegate found that the applicant had breached condition 8202, the Tribunal’s only option was to affirm the cancellation of his visa. The Tribunal took into account the applicant’s circumstances to the extent that it was entitled to do so.
The applicant was forwarded a copy of the first respondent’s written submissions prior to the hearing. The applicant did not receive them because of a change of address. He filed a notice of change of address for service one day prior to the hearing. Just before the commencement of the hearing, he was given a copy of those submissions and some time to read them. When invited to respond to the respondents’ written or oral submissions, the applicant declined the invitation, indicating that he was not in a position to respond and requested another opportunity to seek assistance from a solicitor in the preparation of his case.
I said to the applicant that since the directions hearing in February 2006, he had not filed any documents in response to Court orders and did not appear to have made any steps in preparation of the final hearing. I reminded the applicant that he had been given a substantial period of time in which to prepare for his case and make all necessary enquiries for assistance. Despite this, there was no evidence that any effort had been made to prepare for the hearing.
Conclusion
I am satisfied that none of the grounds of review contained in the original application filed in these proceedings can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 28 March 2007
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