Jiang v Minister for Immigration & Anor
[2007] FMCA 215
•16 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JIANG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 215 |
| MIGRATION – Application to review decision of Migration Review Tribunal – visa – student visa – condition 8202 – whether particulars of adverse information given – whether Tribunal asked correct question – whether Tribunal based decision on non-existent fact no jurisdictional error found. |
| Judiciary Act, 1903 (Cth), s.39B Migration Act, 1958 (Cth), ss.359A, 424A, 476 Migration Regulations 1994 (Cth) Schedule 2, reg 572.212 |
| Bachir & Anor v Minister for Immigration & Multicultural Affairs & Anor [2007] FMCA 115 Craig v State of South Australia (1995)184 CLR163 Cui v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1266 Du v Minister for Immigration & Multicultural Affairs & Anor [2007] FMCA 152 M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 NBKT v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 195 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 ; [2005] HCA 24 SZCNG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 503 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 |
| Applicant: | HAO JIANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGEONOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1272 OF 2005 |
| Judgment of: | Lucev FM |
| Hearing date: | 26 October 2006 |
| Date of last submission: | 26 October 2006 |
| Delivered at: | Perth (by video link to Sydney) |
| Delivered on: | 16 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Ray Turner |
| Counsel for the Respondent: | Ms K Morgan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant pay the Respondents costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1277 OF 2005
| HAO JIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGEONOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for judicial review under s.39B of the Judiciary Act, 1903 (Cth) of a decision of the Migration Review Tribunal (“the Tribunal”), affirming a decision by the delegate of the First Respondent (“the Minister”).
The application was originally filed in this matter on 18 May 2005. An amended application (“the Application”) was filed in Court on the day of the hearing. The Applicant applies for an order that the Respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act, 1958 (Cth) (“Migration Act”) in respect of the Tribunal’s decision of
9 May 2005.
Background facts
The Applicant was granted a Student Visa (Subclass TU-560) on
19 February 2001, valid until 15 March 2004, to undertake a Bachelor of Commerce at the University of Sydney. CB 3 & 45.
On 26 February 2001 the Applicant commenced study in the Bachelor of Commerce at the University of Sydney. The Applicant was excluded from the University of Sydney on 9 February 2004, having unsuccessfully exhausted the exclusion appeal process on that date. Consequently, the Applicant was no longer enrolled at the University of Sydney. CB 39.
The Applicant lodged an application for a Student (Temporary) (Class TU) visa with the Department of Immigration and Multicultural Affairs (“the Department”) on 13 March 2004. The basis for the Applicant’s 13 March 2004 application was his enrolment for an Advanced Diploma of International Business at the Intercontinental College of Business, with the Diploma Course commencing on 9 February 2004 and completing on 8 February 2005. CB1-16 and 18.
The Applicant was, apparently, granted a Bridging Visa on 15 March 2004. Minister’s submissions para.5.
The Minister’s delegate refused the Applicant a Student (Temporary) (Class TU) visa. CB 43.
On 5 October 2004 the Applicant applied for review by the Tribunal of the Minister’s delegate’s decision. CB 47-56.
The Minister’s delegate’s decision to refuse the grant of a Student (Temporary) (Class TU) visa (a subclass 572 visa) was affirmed by the Tribunal on 9 May 2005. CB 80-85.
Facts concerning Tribunal deliberations
The Tribunal wrote to the Applicant on 12 January 2005. CB 61-62. The Tribunal sought comment from the Applicant on adverse information contained in the Department’s file. That information was that the Applicant was excluded from studying at the University of Sydney by reason of the Applicant’s failure to achieve academic results considered “at least satisfactory” for semesters one and two of 2003.
The letter advised the Applicant that the information was relevant to the Tribunal’s review as the Applicant had to demonstrate substantial compliance with conditions to which his last substantive visa was subject. The Applicant’s subclass 560 visa was subject to condition 8202 requiring academic results certified by the University of Sydney as being at least satisfactory.
On 18 February 2005 the Applicant applied for an extension of time to provide information in answer to the 12 January 2005 letter. CB 63. On 28 February 2005 an extension of time was granted until 6 April 2005. CB 64-65. On 6 April 2005 a further extension of time was sought but it was declined on 13 April 2005. CB 66-67. The Tribunal advised the Applicant that it intended to make its decision without taking any further action to obtain further information, and that the Applicant had lost his entitlement to appear before the Tribunal at a hearing. CB 66-67.
A representative of the Applicant forwarded a “submission” to the Tribunal by facsimile on 13 April 2005 (although erroneously dated
13 February 2005) to the following effect:
“In response the applicant states that he did maintain regular attendance when he was attending lectures and classes at Sydney University. He does not agree with the information provided by the Education Provider that academic results were not considered “at least satisfactory”. My client would like an explanation for this conclusion drawn by the Education Provider. It might be possible for the Tribunal to investigate this point.
Whilst he does accept the fact that he might have failed some subjects, he also states that he also passed some. This in itself does not necessarily mean that he failed the course requirements, as he did apply himself to the course of study.
If further information is required, the Tribunal is welcome to request this from myself or the applicant, otherwise this case may have to proceed to a hearing.” CB 68.
The 13 April 2005 facsimile in the Tribunal’s file bears a hand written note as follows:
“has been viewed by MBR [member] seen by MBR on 18/4 and was factored into decision”. CB 68.
The Tribunal decision was handed down on 9 May 2005. CB 80-85.
Substantial compliance with condition 8202 of the subclass 560 visa was identified by the Tribunal as the central issue for review. The Tribunal reproduced an incorrect version of condition 8202, but the correct version of 8202 contained the same relevant provisions.
The Tribunal’s decision referred to material from the Department’s file. CB 83. This included the University of Sydney’s facsimile of 7 July 2004 advising that the Applicant had failed to meet course requirements in semesters one and two of 2003 and had been excluded from the Bachelor of Commerce degree in February 2004.
The Tribunal deals with the Tribunal’s letter inviting the Applicant to comment on the adverse material received from the University of Sydney. The Tribunal noted:
a)that no submission had been received by the Tribunal;
b)that the Applicant had in the Tribunal’s view been given ample opportunity to provide submissions, and that the expected submission had not been forthcoming;
c)that the Tribunal intended to, and was able to, proceed without doing anything further to obtain the expected submissions; and
d)the facsimile dated 13 April 2005, and its contents, and concluded that the contents did not change the Tribunal’s findings that the Applicant did not comply with condition 8202, and that no evidence had been provided to counter that finding.
The Tribunal found that the Applicant failed to meet the requirements of reg.572.212 of Schedule 2 of the Migration Regulations 1994 (Cth), by reason of a failure to substantially comply with condition 8202, and the Tribunal therefore affirmed the decision of the Minister’s delegate.
Application as amended
The grounds of the Application as amended are three:
a)Ground 1: that the Tribunal failed to carry out its statutory duty;
b)Ground 2: that the Tribunal applied the wrong test; and
c)Ground 3: that the Tribunal based its decision on a fact which did not exist.
Orders sought by Applicant
The Applicant seeks the following orders:
1. A declaration that the decision of the Refugee [sic – Migration] Review Tribunal of 9 May was made in error of jurisdiction and is, therefore, null and void.
2. That the decision of the Refugee [sic – Migration] Review Tribunal on 9 May 2005 be set aside.
3. That the matter be remitted to a differently constituted Tribunal to be re-heard according the Law.
4. Such further orders as the Court deems fit.
Ground 1
The Applicant’s particulars for Ground 1 are as follows:
“The Tribunal had information adverse to the Applicant and failed to give accurate particulars of that information to the Applicant.”
The Applicant’s written submissions in regard to Ground 1 are as follows:
“15. The Tribunal relied upon “the following information which was submitted to the department” which has been adverse to the Applicant.
“According to information contained on the department file you were excluded from studying at Sydney University because you failed to achieve academic results that were ‘at least satisfactory’ by your education provider for semesters 1 and 2 of 2003.”
These particulars do not accurately particularise the adverse information which was
a. “… …..this student should have been reported for SCV10 – Student Failed to Meet Course Requirements. As Mr Jiang has unsuccessfully exhausted the exclusion Appeal process.” CB 39
and
b. “The University has not provided a certificate by the education provider that his academic results have been ‘at least’ satisfactory.” CB 40
16. The Tribunal applied this adverse information as:
“20 ..... This information was the fact that the visa applicant had been issued with a student visa on 19 February 2001 to undertake studies at the University of Sydney; a Bachelor of Commerce and that the visa applicant did not comply with condition 8202 attached to that visa. The reason for this was that the visa applicant failed 22 out of 27 subjects that he studied.” CB 84
and
“25. The evidence before the Tribunal is clear. The visa applicant when enrolled in the Bachelor of Commerce degree at the University of Sydney on a student visa issued on 19 February 2001, indicates that the visa applicant failed 22 out of 27 subjects in 2001, 2002 and 2003. As a result of this the visa applicant was excluded from the course and he then went about exhausting the universities exclusion appeal’s mechanism without success.” CB 85
17. The Tribunal is required to give accurate particulars of adverse information to the Applicant, its failure to do so is a jurisdictional error.
SZEEU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2006] FCAFC2 (24 February 2006)”
The Minister’s written submissions are as follows:
Ground One: providing accurate particulars
18. The letter dated 12 January 2005 said the following:
“You are invited to comment, in writing, on the following information:
• According to information contained on the Departmental file you were excluded from studying at Sydney University because you had failed to achieve academic results that were considered ‘at least’ satisfactory’ by your education provider for semesters 1 and 2 of 2003.”
This information is relevant to the review because in order to satisfy the requirements for the grant of a student visa it is necessary for you to demonstrate that you have complied substantially with the conditions to which your last visa were subject. … As the University of Sydney found that you did not achieve academic results that they considered to be at least satisfactory, the Tribunal may find you were in breach of condition 8202 and you may therefore not meet the criteria for the grant of Subclass 572 visa that is the subject of this review.
19. The Tribunal referred to the following matters at para.25: CB 85.3
(a) the applicant was enrolled in a Bachelor of Commerce degree at the University of Sydney;
(b) the applicant failed 22 out of 27 subjects in 2001, 2002 and 2003;
(c) the applicant was excluded from the course; and
(d) the applicant exhausted the university’s exclusion appeal process without success.
20. The amended application and the applicant’s submissions assert that the section 359A letter was insufficiently particularised, specifically:
(a) that the applicant had unsuccessfully exhausted the exclusion appeal process; and
(b) that the University of Sydney had provided the information at CB 40 which the applicant describes as “the University has not provided a certificate by the education provider that his academic results have been ‘at least satisfactory’” (applicant’s written submissions at para [(15)].
21. First, in relation to the information in paragraph 20(a), although the Tribunal referred to that information in para [25] of the decision, it was not part of the reason for affirming the decision under review. The reason for affirming the decision under review was the failure by the applicant to obtain “at least satisfactory” results from the University of Sydney. This was directly dealt with in the s359A letter.
22. Secondly, in relation to the information in paragraph 20(b), the section 359A letter squarely identifies that the applicant failed to achieve academic results that were considered “at least satisfactory”. The applicant’s submissions seem to suggest that the phrase “the University has not provided a certificate” must be used in the letter.
23. The respondent Minister relies on the terms of the 12 January 2005 letter as:
(a) adequately particularising the information that was the reason for the Tribunal affirming the decision under review: that the applicant “had failed to achieve academic results that were considered ‘at least’ satisfactory ‘ by your education provider for semesters 1 and 2 of 2003” (CB 61); and
(b) the reasons why the information is relevant to the review (CB 62) was “that your academic results were certified by your education provider as being satisfactory. As the University of Sydney found that you did not achieve academic results that they considered to be at least satisfactory, the Tribunal may find that you were in breach of condition 8202…”
24. In the alternative, if the Court finds that the Tribunal has failed to comply with section 359A of the Act, which is not admitted, the respondent Minister submits that relief should be denied as futile: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [232]. The applicant was excluded from Sydney University and has exhausted all appeal processes. The applicant has not substantially complied with condition 8202 and therefore criteria 572.212 has not been satisfied. Any review by the Tribunal would come to the same result.”
Section 359A relevantly provides as follows:
(1)Subject to subsection (2), the Tribunal must:
(a)give to the Applicant, in the way the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the Applicant understands why it is relevant to the review; and
(c)invite the Applicant to comment on it; and
(2)…
(3)…
(4)This section does not apply to information:
(a) that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member; or
(b) that the Applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
The relevant sub-sections of s.359A of the Migration Act are identical to certain sub-sections of s.424A of the Migration Act. Hence, judgments on those sub-sections of s.424A are applicable precedents in relation to s.359A matters: Cui v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1266 at para 32 per Barnes FM; Du v Minister for Immigration & Multicultural Affairs & Anor [2007] FMCA 152 at para.15 per Cameron FM (“Du”).
The cases in relation to ss.359A and 424A make it clear that:
a)strict compliance with the section is necessary, and it is a denial of natural justice and an error going to jurisdiction not to strictly comply, which error invalidates the decision being reviewed: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at 183 per McHugh J; [2005] HCA 24 at para 77 per McHugh J; ALR at 203 per Kirby J; HCA at para 173 per Kirby J; ALR 211 per Hayne J; HCA at para 203 per Hayne J. (“SAAP”); SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 253 per Weinberg J; [2006] FCAFC 2 at para 163 per Weinberg J, (“SZEEU”); SZCNG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 503 at paras 62-64 per Barnes FM (“SZCNG”); Bachir & Anor v Minister for Immigration & Multicultural Affairs & Anor [2007] FMCA 115 at para.32 per Lucev FM (“Bachir”).
b)the question to be asked is “whether the information in question was a part (that is any part) of the reason for affirming the decision”: SZEEU FCR at 262 per Allsop J; FCAFC at para 215 per Allsop J; NBKT vMinister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 195 at para 25 per Young J (“NBKT”);
c)the whole of the reasons need to be considered in context to ascertain the reason(s) for the decision, and whether any particular information was a part of the decision maker’s reasoning: SZEEU FCR at 262 per Allsop J; FCAFC at para 216 per Allsop J; Bachir at para 32 per Lucev FM;
d)“Merely because something is contained in the text of the reasons … does not conclude the question as to whether it was part of the reason for affirming the decision”: SZEEU FCR at 262 per Allsop J; FCAFC at para 216 per Allsop J;
e)information which is not part of the reason for refusing a review application need not be disclosed: SAAP, ALR at 175 per McHugh J; HCA at para 50 per McHugh J; M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 at para.83 per Ryan J;
f)the information must be provided in writing: SAAP, ALR 179 per McHugh J; HCA at para 65 per McHugh J; NBKT at para 25 per Young J;
g)the Court “does not embark upon an enquiry as to whether the breach was so trivial as not to warrant relief”: NBKT at para 26 per Young J, citing SZEEU, FCR 265 per Allsop J; FCA at para 231 per Allsop J;
h)information is knowledge obtained by the Tribunal being told or apprised of a particular fact, subject or event: SZEEU, FCR at 259-260 per Allsop J; FCA at paras 204-205 per Allsop J; and
i)the Tribunal’s subjective appraisals, thought processes and determinations are not information for the purposes of s.359A, but distinguishing between what is and is not information on that basis “may be plain in some cases, but in other cases it may prove to be very fine, if not elusive”: NBKT at para 30 per Young J.
The fact that the Applicant had successfully exhausted the exclusion appeal process was not information which formed the reason, or part of the reason, for the Tribunal affirming the decision under review. The fact that it was adverted to by the Tribunal (CB 85 para.25) is not sufficient. On a proper analysis of the Tribunal’s decision it can be seen that the reason for affirming the decision under review related not to the exclusion appeal process, but to the Applicant’s results from the University of Sydney (CB 85, Para.25). Having regard to the principles set out at paragraph 27 above (and particularly sub-paragraphs (b), (d) and (e)) information as to the Applicant’s exclusion from the appeal process was not information required to be given to the Applicant by the Tribunal.
The Tribunal relied upon information that the Applicant had not achieved results considered at least satisfactory by the University of Sydney (CB 84-85, paras.20-22, 24 & 25); and therefore found that the Applicant had failed to comply with condition 8202, namely that the Applicant’s academic results were not certified by the University of Sydney to be at least satisfactory. It is not necessary, as the Applicant’s submissions seem to suggest, that the Tribunal advise the Applicant that the University of Sydney has not provided a certificate. The letter of 12 January 2005 clearly sets out the information used by the Tribunal as part of its reasons, and invites the Applicant to comment upon it. CB 61-62. That information includes the essential issue of the failure of the Applicant to achieve academic results considered at least satisfactory by the University of Sydney (CB 61), which issue lay at the core of the Tribunal’s reasons. Thus, the information was provided by the Tribunal in accordance with s.359A(1) of the Migration Act.
Ultimately, the position is that the information the Tribunal relied on to affirm the delegates decision was the absence of certification of a satisfactory academic result. If there was no certificate there was no compliance by the Applicant with condition 8202: Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at paras.55-56 per Ryan, Jacobson and Lander JJ; Du at para.24 per Cameron FM.
Even if the information was not given to the Applicant and it ought to have been under s.359A of the Migration Act, the Court considers that the “grant of relief would lack utility”: SZEEU, FCR at 265 per Allsop J; FCA at para.232 per Allsop J. It is abundantly clear that the Applicant has not satisfied condition 8202 because he has not achieved academic results certified as satisfactory by the University of Sydney. To remit the matter to the Tribunal on this basis for further hearing would be an exercise in futility.
Ground 2
The particulars to Ground 2 are as follows:
“(a) the Tribunal made findings in relations to and relied upon, the Applicant’s academic record.
(b) the correct test was for the Tribunal to consider whether the education provider had certified the Applicant’s academic results to [be] at least satisfactory.”
The test that the Applicant says should have applied is whether or not the Applicant substantially complied with condition 8202 which relevantly provides:
“8202(3)(b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory …”.
The Applicant asserts that the failure of the Tribunal to apply the correct test or to ask itself the right question is a jurisdictional error. Craig v The State of South Australia (1995) 184 CLR 163.
The Minister says that it is unclear what the Applicant contends in relation to Ground 2. The Minister points to the fact that the Tribunal considered condition 8202 and concluded that having been excluded the Applicant had failed to substantially comply with condition 8202. The Minister goes on to say that there can be no suggestion that the Applicant was certified as being “at least satisfactory” in relation to academic results for semesters 1 and 2 of 2003. The Minister says that the Tribunal was clearly assessing compliance with condition 8202 at para 22 (CB 84), and that it was not necessary for it to restate the condition (having stated the condition previously), and there was therefore not a failure to apply the correct test.
This ground has no substance whatsoever. It is apparent that the Tribunal did not ask itself the wrong question. The Tribunal recognised that the question was whether a certificate of the kind contemplated in condition 8202(3)(b) existed. If it did exist, there was compliance. If it did not, there was no compliance. The Applicant was clearly put on notice of the question to be addressed by the Tribunal. See Tian FCAFC at paras.55-56 and 71-73 per Ryan, Jacobson and Lander JJ; Du at para.24 per Cameron FM.
The Tribunal did not apply the incorrect test nor did it ask itself the wrong question. There is no jurisdictional error on this ground.
Ground 3
The particulars in support of Ground 3 are as follows:
“(a) the Tribunal based its decision, in part, upon the failure of the Applicant to provide submissions in respect of its invitation to comment on adverse information.
(b) The Applicant had provide[d] comments prior to the Tribunal’s decision”
The Applicant says that the Tribunal had asked for comments on the adverse information and had received those comments on 13 April 2005. CB 68 and 84 at para 22. The Applicant says that to base a decision on a fact that does not exist is to take account of irrelevant material which is jurisdictional error. Craig v State of South Australia (1995) 184 CLR 163.
The Minister says that the Applicant’s allegation that an incorrect statement of fact that no submissions had been received “to date” amounts to jurisdictional error is incorrect. The Minister says that to be a jurisdictional error the fact itself must be a jurisdictional fact, and the fact is not a jurisdictional fact. Further, the Minister says that the Tribunal took the submission into account in any event, finding that the contents of the 13 April 2005 facsimile in no way changed the Tribunal’s findings that the Applicant did not comply with condition 8202.
The Minister therefore says that there can be no suggestion that the Tribunal’s decision was based on an error of fact such that a jurisdictional error occurred.
The allegation that an incorrect statement of fact that no submissions had been received “to date” does not constitute jurisdictional error as it is not a jurisdictional fact. In any event, the Tribunal took the relevant submission into account, and specifically found that it did not change the Tribunal’s findings on non-compliance with condition 8202.
In the circumstances this ground does not disclose jurisdictional error.
Orders
The Court will order that the Application be dismissed, and that the Applicant pay the Respondent’s costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 16 March 2007
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