Lau v Minister for Immigration

[2007] FMCA 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 102

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether Migration Review Tribunal erred in failing to comply with s.359A of the Migration Act 1958 (Cth) – whether Migration Review Tribunal erred in proceeding to make its decision without taking any further step to invite the applicant to attend a hearing – whether Migration Review Tribunal erred in failing to exercise discretion under s.116 of the Migration Act 1958 (Cth) not to cancel visa.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.116; 116(1)(b); 359A; 359A(1); 359C; 360; 360(2); 424A(1); 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Kim v Whitton (1995) 59 FCR 258

Applicant: KAI FAN LAU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG2036 of 2005

Judgment of: Emmett FM

Hearing date: 31 January 2007

Date of last submission: 31January 2007

Delivered at: Sydney

Delivered on: 8 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent: Ms T. Wong

Solicitors for the Respondent: Mr O. Young, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2036 of 2005

KAI FAN LAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 6 July 2005 and handed down on 6 July 2005.

2. The applicant was born on 30 May 1981 and is from the Hong Kong Special Administrative Region of the People’s Republic of China (“the Applicant”).

3. The Applicant arrived in Australia on 18 August 2000 on a Subclass 560 (student) visa, valid until 23 March 2001. The Applicant last held a Student (Temporary) (Class TU) visa, which was granted on 15 July 2003.

4. On 23 March 2005, a delegate of the First Respondent (“the Delegate”) cancelled the Applicant’s Student (Temporary) (Class TU) visa on the basis that the Applicant breached condition 8101 of his visa. Condition 8101 was a condition attached to the Applicant’s student visa that prohibited him from engaging in work in Australia. The Applicant was found working at Stonemasons by the Immigration Compliance Field Team on 23 March 2005.

5. On 31 March 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 6 July 2005, the Tribunal affirmed the decision of the Delegate to cancel the Applicant’s Student (Temporary) (Class TU) visa.

6. On 2 August 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Tribunal proceeding

1. On 5 April 2005, the Tribunal wrote to the Applicant acknowledging receipt of his application for review and requesting the applicant to “forward any documents or written arguments you wish the Tribunal to consider”.

2. On 10 May 2005, the Tribunal wrote to the Applicant in purported compliance with s.359A of the Act inviting comment from the Applicant on particulars of information the Tribunal considered would be part of the reason for affirming the decision under review. Relevantly, the letter identified the following information:

   “Departmental information indicates that you were located working at Stonemasons, 52 Murray Street, Marrickville. Your last substantive visa, a Subclass 573 (Higher Education Sector) visa had condition 8101 (no Work) attached; and

   At your interview on 23 March 2005, you were recorded as having stated that you need to work to pay rent and buy food because your parents can no longer afford to provide you with enough money to support yourself. You were also recorded as having stated that you worked part – time, 1 to 2 days a week for 3 months.”

3. The letter informed the Applicant as to the relevance of the information, namely that it is a requirement of the Applicant’s visa that he comply with condition 8101 which required that the Applicant not engage in work in Australia. The letter gave the Applicant 12 working days from the date of the letter to respond. The letter informed the Applicant that, if the Tribunal did not receive any comments or additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the Applicant’s comments or to invite the Applicant to appear before the Tribunal. The letter was sent to the Applicant’s residential address and to the Applicant’s nominated recipient.

4. In the circumstances, the Tribunal’s letter dated 10 May 2005 was sent in compliance with s.359A of the Act.

5. The letter dated 10 May 2005 addressed to the Applicant’s nominated recipient was returned unopened to the Tribunal on 12 May 2005.

6. On 6 June 2005, the Applicant responded to the Tribunal’s letter by a facsimile letter bearing the date 16 May 2005. However, the response did not comply with the timetable set in the letter dated 10 May 2005.

7. Prior to the expiration of the time period referred to in the Tribunal’s letter dated 10 May 2005, the Tribunal purported to send another letter on 20 May 2005, in purported reliance on s.359A of the Act, to the Applicant and his authorised recipient, again inviting comment on certain information. The time period specified in that letter was 5 working days from the date of the letter. However, the letter contained an error in respect of the relevance of the information in that it referred to condition 8202, rather than condition 8101. For that reason, the First Respondent conceded that the letter dated 20 May 2005 was not sent in compliance with s.359A of the Act.

8. In any event, the Applicant’s response was not received by the Tribunal until 6 June 2005, that date clearly being in excess of the time specified in either of the Tribunal’s letters of 10 May 2005 or 20 May 2005.

9. Having sent the letter dated 10 May 2005 in accordance with s.359A of the Act, the Tribunal was entitled, pursuant to s.359C of the Act, to make a decision on the review without taking any further action to obtain the Applicant’s views on the information where the time specified in the letter for comments had passed. Plainly, that time had passed.

10. In those circumstances, the Tribunal was entitled to make a decision on the review without taking any further action to obtain the Applicant’s views on the information.

11. Further, pursuant to s.360(2) of the Act, the Tribunal was not obliged to invite the Applicant to appear before it to give evidence and present arguments in circumstances where it had sent a s.359A letter to which there had been no response.

12. In its decision the Tribunal was satisfied that the Applicant had been sent an invitation to comment in accordance with s.359A of the Act and had failed to respond within the time. The Tribunal held it was entitled to proceed with its review without taking any further steps either to invite the Applicant to attend a hearing or to seek further comment.

13. However, the Tribunal acknowledged that, whilst out of time, the Applicant had responded to the invitation to provide additional information and the Tribunal noted that it took into account the Applicant’s response.

14. In particular, the Tribunal noted that the Applicant stated that he was engaged in polishing stones at Stonemasons during the relevant period. The Tribunal found that such activity in Australia normally attracts remuneration.

15. The Tribunal also had regard to admissions made by the Applicant at the Departmental interview held on 23 March 2005 that he worked 1 to 2 days a week for about 3 months. The information contained in the Departmental interview was part of the information the subject of the s.359A letter. In the circumstances, the Tribunal’s consideration of that information did not breach s.424A(1) of the Act because the Tribunal had complied with s.359A(1) of the Act by its letter of 10 May 2005 to the Applicant.

16. Because the Tribunal found that the Applicant had engaged in work in Australia and was thereby in breach of condition 8101 of his visa, the Tribunal noted that it must consider whether to exercise its discretion to set aside the cancellation.

17. Section 116 of the Act states that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. For reasons identified by the Tribunal in its decision, the Tribunal found that the Applicant knowingly breached condition 8101 in that he was aware that he was not permitted to work in Australia as a condition of his visa. As a consequence, the Tribunal found that, although the Applicant may have intended to study in Australia, the fact that he was working and had not provided any financial evidence to support his statement that his parents financial situation had deteriorated, indicated to the Tribunal that the Applicant intended to work in Australia in breach of the conditions held on his visa at the time the visa was granted.

18. The Tribunal considered it significant that the Applicant did not provide further information to the Tribunal to support his statement at the Departmental interview that his parents could not give him as much money as before.

19. The Tribunal noted that no documentary evidence was provided to the Tribunal in support of the Applicant’s reason for breaching a condition in his visa which did not permit him to work.

20. The Tribunal did not find that the degree of hardship caused to the Applicant by reason of the imposition of condition 8101 would be significant.

21. In weighing the evidence before it, the Tribunal concluded that the Applicant’s visa should be cancelled and exercised its discretion accordingly.

22. In conclusion, the Tribunal found that the Applicant breached s.116(1)(b) of the Act and that the reasons for not cancelling his visa do not out weigh the reasons for cancelling the visa.

The proceeding before this Court

1. On 2 August 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. That application is in the following terms:

   “I was found in Stonemasons on 52 Murray St Marrickville by the immigration officers just because I was trained at that time. Before I am interested in polishing stones as a result the boss in Stonemasons was willing to cultivate me. Also because I didn’t hold work limitation Visa yet. I just received training and the boss didn’t pay me. Please consider my special situation.”

2. On 30 August 2005, the Applicant was directed to file and serve an amended application and any evidence upon which he intended to rely on. On 19 October 2005, the Applicant was directed to file and serve written submissions in support of his application no less than 14 days prior to the hearing. Other than a change of address, no document has been filed by or on behalf of the Applicant in support of his proceeding.

3. The Applicant was unrepresented before this Court although had the assistance of an interpreter. He confirmed that he wished to proceed with his application.

4. Plainly the application, in its terms, does not disclose any error of the Tribunal capable of review and does no more than seek merits review, an exercise that this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272).

5. It is clear from the Tribunal’s decision that it understood the nature of the Applicant’s claim before it and its statutory duty.

6. The Tribunal sent a letter to the Applicant at his last known address for service on 10 May 2005, pursuant to s.359A of the Act. The letter gave particulars of information it considered would be part of the reason for affirming the decision under review, explaining the relevance of the information and inviting the Applicant to comment upon it. The letter provided a time for the provision of the information and informed the Applicant that, if no comment was received from him by the date due, then the Tribunal could proceed to make a decision on the review without taking any further action to obtain the Applicant’s views on the information.

7. The Applicant did not respond to the Tribunal’s invitation to give additional information or comments within the time specified. In the circumstances, pursuant to s.360 of the Act, the Tribunal was not obliged to invite the Applicant to appear before it to give evidence and present arguments. The Tribunal was aware of its discretion to proceed with its review. Its decision to proceed is without error.

8. Even though the Tribunal was not obliged to consider the Applicant’s letter dated 16 May 2005 and faxed to the Tribunal on 6 June 2005, the Tribunal did proceed to have regard to its contents.

9. It is clear the Tribunal understood its statutory duty in considering whether or not the Applicant had breached a condition of his visa. The Tribunal found that the Applicant had breached the condition of his visa that he not be engaged in work in Australia. The Tribunal was aware that a breach of condition 8101 occurred if the Applicant engaged in an activity that in Australia normally attracts remuneration (Kim v Whitton (1995) 59 FCR 258 at 268). The Tribunal found that the activity engaged in by the Applicant in polishing stones was an activity that normally attracts remuneration and therefore was in breach of condition 8101 of the Applicant’s visa. Those findings were open to the Tribunal on the material before it and for which it gave reasons.

10. The Tribunal went on to consider the Applicant’s claims of hardship that he would suffer if his visa was cancelled in determining whether it should exercise its discretion to cancel the Applicant’s visa. The Tribunal’s finding that the reasons for not cancelling the visa did not outweigh the reason for cancelling the visa was open to the Tribunal on the material before it and for which it gave reasons.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  2 February 2007