Lau v Minister for Immigration and Citizenship
[2007] FCA 691
•11 May 2007
FEDERAL COURT OF AUSTRALIA
Lau v Minister for Immigration and Citizenship [2007] FCA 691
Kim v Witton (1995) 59 FCR 258 cited
Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71 considered
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43 considered
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 citedKAI FAN LAU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 327 OF 2007
MANSFIELD J
11 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 327 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
KAI FAN LAU
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
11 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to appeal out of time from the decision of the Federal Magistrate given on 8 February 2007 limited to the manner of exercise of the discretion under s 116(1) of the Migration Act 1958 (Cth) by the Tribunal.
2.The costs of the application will be reserved to the judge hearing the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 327 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
KAI FAN LAU
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MANSFIELD J
DATE:
11 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time to file a notice of appeal from a judgment of the Federal Magistrates Court given on 8 February 2007. The time for appeal expired on 1 March 2007: see O 52 r 15(1)(a) of the Federal Court Rules (the Rules) so the applicant was five days late in appealing. Under O 52 r 15(2) of the Rules, the Court may extend the time within which an appeal may be instituted if there are “special reasons” to do so, as that expression is explained in Jess v Scott (1986) 12 FCR 187 at 195.
BACKGROUND
The applicant was born in Hong Kong on 30 May 1981. He is a British national. On 15 July 2003, the applicant was granted a Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). Under the Migration Act 1958 (Cth) (the Act) on 23 March 2005, the Department issued the applicant with a Notice of Intention to Consider Cancellation of the applicant’s visa. After conducting an interview with the applicant on 23 March 2005, the first respondent’s delegate cancelled the applicant’s visa for breach of Condition 8101.
Section 116(1)(b) of the Act permits a visa to be cancelled by the first respondent or a delegate if the holder has not complied with a condition of the visa. As the applicant is within Australia, the procedures prescribed by Subdiv E of Div 3 of Pt 2 of the Act were required to be followed before cancelling the visa. There is no suggestion that those procedures were not followed.
Subclass 573 (Higher Education Sector) visas are subject, inter alia, to Condition 8101: see cl 2.05(1) and (2) and cl 573.611(1)(b) of Sch 2 to the Migration Regulations 1994 (Cth). The obligation to comply with that condition is subject to subcl (2) of that clause. It is also not suggested that subcl (2) of cl 573.611 is relevant to the present circumstances.
Condition 8101 in Sch 8 to the Regulations is short and to the point. It provides: “The holder must not engage in work in Australia.” The delegate was satisfied that the applicant had breached that condition because he had been working at Stonemasons, at Marrickville. The applicant apparently acknowledged to the delegate that he was doing so. The decision to cancel the visa was a discretionary one, and the delegate noted the hardship by cancellation which the applicant claimed he would suffer, recorded as his inability to get his degree and the consequent disappointment of his parents. The applicant is recorded as saying that the financial support from his parents had reduced, so he had been working for one to two days per week for about three months, as he needed to support himself while studying.
The material indicates that the applicant was found working at Stonemasons on 23 March 2005. He was taken to the Department the same day where he was at 1:50 pm given a notice under s 119 of Intention to Consider Cancellation of the visa. He was then immediately interviewed, and was notified of the cancellation of the visa about 20 minutes later at 2:10 pm the same day.
On 31 March 2005, the applicant sought review of the delegate’s decision by the Migration Review Tribunal (the Tribunal). He claimed that the delegate had failed to consider his “special conditions”, i.e. his circumstances, seriously. The Tribunal’s role was to reconsider the delegate’s decision on the merits: see ss 348 and 349 of the Act.
By letter of 5 April 2005, the Tribunal invited the applicant to submit within 10 working days any further material he wished to present. The letter was returned unclaimed. Nothing turns on that fact, as the first respondent did not contend that that letter was sent in accordance with s 359 of the Act.
The Tribunal sent a further two letters to the applicant, dated 10 and 20 May 2005 respectively, purportedly pursuant to s 359A of the Act, containing particulars of information which it considered would be the reason, or part of the reason, for affirming the delegate’s decision and inviting the applicant to provide written comments on that information within a specified time. Those particulars were that the applicant had been found working at Stonemasons, and his explanation (as recorded above) as to why he had done so. One letter concerned the possible breach of Condition 8101 and the later letter a possible breach of Condition 8202. It is accepted by the first respondent that the letter of 20 May 2005 had no relevant effect. Condition 8202 requires at least 80% attendance during a course of study. There is no apparent reason why the Tribunal might have thought that condition had been breached.
The Federal Magistrate recorded that the letter of 5 May 2005 was also returned to the Tribunal unclaimed on 12 May 2005.
That letter was addressed to the applicant’s nominated authorised recipient (in his application to the Tribunal) under s 379G(1). It was therefore taken to have been given to the applicant: s 379G(2), and, as contemplated by s 359B(2), the letter of 10 May 2005 specified a period for any response, namely 12 working days from its date. That period was in accordance with the prescribed period. The letter was also sent as a copy to the applicant at his address given in the application. There is nothing to suggest that it was not received by him at that address.
In the event that an applicant does not respond to a letter sent under s 359A within the prescribed period, s 359C(2) empowers the Tribunal to proceed to make a decision on the review without taking any further action to obtain the applicant’s views on the information. Moreover, the Tribunal was not obliged to invite the applicant to appear before it to give evidence and present arguments: s 360(2).
THE TRIBUNAL’S REASONS
The Tribunal correctly identified the need firstly to be satisfied that the applicant had failed to comply with Condition 8101, and secondly to be satisfied in all the circumstances that the visa should be cancelled, as reg 2.43(2) did not apply to make cancellation mandatory.
It proceeded on the basis that it was not obliged to take further action to obtain comments from the applicant, or to invite him to attend the hearing, because he had not responded to the letter of 10 May 2005 within the prescribed period. It did, however, have regard to the contents of his facsimile sent 9 June 2005, apparently in response to that letter.
In that facsimile, the applicant said that he had not been doing paid work at Stonemasons, but was doing voluntary training in polishing stones under the direction of an “uncle”, with a view to getting work only after he had been properly qualified and after the condition of his visa preventing him from working had been lifted. He said he had not explained the situation well to the delegate because he had been frightened.
The Tribunal was satisfied that the applicant had breached Condition 8101. Regulation 1.03 describes work as “an activity that, in Australia, normally attracts remuneration”. It found that the work the applicant was doing at Stonemasons, even if training, was work that normally attracted remuneration because polishing stones was part of the Stonemasons usual work activities. It also found that the applicant had been working part-time one to two days per week for three months doing that work, on the basis of what the applicant had said to the delegate. It did not make any finding that he had, in fact, been paid for that work.
It then decided to exercise the discretion to cancel the visa because “the reasons for not cancelling do not outweigh the reasons for cancelling the visa.” Although the discretion to cancel or not cancel a visa is unconfined by the Act, the first respondent had directed that decision-makers should take into account the matters raised by the visa holder as to why the visa should not be cancelled (see s 119(1)(b)(ii)), and the directions given under s 499 of the Act contained in Migration Series Instruction 368, clause 17.2. It identifies the primary considerations relevantly as
·the purpose of the visa holder’s travel to and stay in Australia;
·the extent of non-compliance with any conditions subject to which the visa was granted;
·the degree of hardship which may be caused to the visa holder and any family members;
·the circumstances in which the ground for cancellation arose;
·the person’s behaviour in relation to the Department, now and on previous occasions.
Secondary considerations are any other matters which the visa holder raises.
The Tribunal, when addressing the primary considerations seriatim, briefly identified the following
·the purpose of the applicant coming to Australia was to study;
·the applicant had not complied with Condition 8101;
·the applicant claimed that he would not be able to complete his degree, and his parents would be disappointed;
·the visa had been granted on the basis that the applicant had sufficient funds to study without working in Australia;
·the applicant had knowingly breached Condition 8101 (as his facsimile sent on 9 June 2005 indicated that he intended to apply to have the work limits on his visa lifted);
·and he had been co-operative;
It also, as another relevant factor, noted that the applicant had been found to have worked for one to two days per week for three months.
The Tribunal then discussed three of those factors in more detail, namely the extent of non-compliance with any conditions; the degree of hardship which may be caused to the visa holder and any family members; and the circumstances in which the ground for cancellation arose.
Under the heading “The extent of non-compliance with any conditions”, it noted the finding that the applicant had knowingly worked in Australia without permission. It considered it “significant” that the applicant had not given further information to support the claim that his parents could not give him as much money as before, including that there was no documentary evidence. At that point it made no finding about the accuracy of the claim.
Under the heading “The degree of hardship which may be caused to the visa holder and any family members” the Tribunal said:
The review applicant has claimed that the cancellation of the visa will result in hardship to himself in that he will not be able to study, and will not be able to get his degree. Also his parents will be disappointed. The Tribunal is prepared to accept that the review applicant’s parents will be disappointed. However, the Tribunal has found that the review applicant knowingly breached a condition of his visa as to work and has not provided evidence to support his statement that his parents were not able to send him as much money. There is no evidence that the review applicant’s parents were unable to send him money, only that they could not send him as much money. The Tribunal does not find that the degree of hardship caused to the review applicant will be significant.
Under the heading “The circumstances in which the ground for cancellation arose”, the Tribunal said:
When the Tribunal considers each of the matters set out in policy it has reached a conclusion that the evidence and findings suggest that the visa be cancelled. The Tribunal has found that the review applicant knowingly breached the condition of his visa which was granted in order to enable him to study in Australia without working. The review applicant claimed that his parents could not send him as much money, so he needed to work. Regardless of this, the visa for which the review applicant was granted did not permit him to work. The review applicant breached that condition. The Tribunal has found that there will be some disappointment to the review applicant’s parents. However, the Tribunal does not accept that this factor outweighs the adverse findings made above. Thus, the Tribunal is of the view that the weight of the evidence indicates that the visa should be cancelled. The Tribunal therefore finds, in the exercise of its discretion, that the visa should be cancelled. As the Tribunal finds that the visa should be cancelled the Tribunal must affirm the delegate’s decision.
I have quoted those passages in full because there was some debate at the hearing about what findings the Tribunal had made and what it had and had not taken into account in exercising its discretion.
It then concluded that the reasons for not cancelling the visa do not outweigh the reasons for cancelling the visa.
THE APPLICATION BEFORE THE FEDERAL MAGISTRATE
The application to the Federal Magistrates Court to quash the Tribunal’s decision was made pursuant to s 39B of the Judiciary Act 1903 (Cth) and Pt 8 Div 2 of the Act.
The Federal Magistrate concluded that the applicant’s failure to respond to the letter of 10 May 2005 within the prescribed period meant that the Tribunal was entitled to make a decision on the review application without taking any further action to obtain the applicant’s comments, and without inviting him to appear to give evidence and present arguments.
Her Honour described the application as no more than an application seeking merits review, and as one not disclosing any jurisdictional error on the part of the Tribunal. She said that the findings of the Tribunal that there had been a breach of Condition 8101 were open to the Tribunal, by a combination of what the applicant said he had been doing and what he had said to the delegate, so that the activity at Stonemasons was one that normally attracts reimbursement (cf Kim v Witton (1995) 59 FCR 258 at 268). Her Honour also concluded that the Tribunal’s finding that the reasons for not cancelling the visa did not outweigh the reason for cancelling the visa was open to it on the material before it.
Consequently, the Tribunal decision was not infected by jurisdictional error and the application to the Federal Magistrates Court was dismissed.
THE PRESENT APPLICATION
The present application is supported by an affidavit of the applicant to which is annexed proposed grounds of appeal. There is substantial overlap in what is said in each of those documents.
The applicant complains that the learned Federal Magistrate did not carefully consider his submissions and that he was disadvantaged in the conduct of the application because he did not receive the material which the first respondent had been directed to provide by orders made on 30 August 2005 until immediately before the hearing on 31 January 2007. He also complained, he says, of not having received the reasons of the Tribunal, so that he had to pursue them by application under the Freedom of Information Act 1982 (Cth) to secure the relevant material. Those documents also assert that he was not aware of the terms of Condition 8101 and that he did not intend to breach any of the conditions of his visa and that he had undertaken activities at Stonemasons because of financial hardship. His explanation for not having appealed promptly from the decision of the Federal Magistrate was that he had not had time because he was still awaiting a response to his request under the Freedom of Information Act. He also said that the Federal Magistrate had misunderstood the nature of the proceeding, having regarded it as concerning an application for a protection visa.
Certain matters can be dealt with briefly.
The Federal Magistrate clearly understood the nature of the proceeding and the issues to be addressed. The reasons for judgment demonstrate that. The applicant’s contention was based upon a misdescription of the Tribunal’s decision in the index to the book of documents prepared by the first respondent’s solicitors. That is clearly only a clerical error. It did not mislead the Federal Magistrate.
The solicitor for the first respondent at the hearing of the application acknowledged that the applicant only apparently received the book of documents prepared by the first respondent’s solicitors at the hearing before the Federal Magistrate on 31 January 2007. He said that the applicant had been sent the book of documents in accordance with the directions given on 30 August 2005, but that it had been returned unclaimed. The applicant did not challenge that. The applicant also said that he had applied for an adjournment of the hearing so that he could read and address the material in the book of documents, and because he had graduated about one month beforehand and so had not had enough time to prepare for the hearing. The Federal Magistrate, he said, had declined to adjourn the hearing.
The particular complaint that the Federal Magistrate had wrongly refused an adjournment application was not raised in the grounds of appeal. Nor was it supported by any evidence, and the transcript of the hearing before the Federal Magistrate was not before the Court. The applicant did not seek an opportunity to adduce any further evidence on the topic. Consequently, his assertions, except as acknowledged by the first respondent, cannot be acted upon. There is therefore no merit in his complaint on the material before me. In any event, to refuse an adjournment in the circumstances outlined by the applicant would not involve any error on the part of the Federal Magistrate which should be corrected on appeal. One reason for the adjournment sought was plainly specious. The other was in his hands to have overcome: he was at the directions hearing on 30 August 2005, assisted by an interpreter, so he was quite unjustified in simply sitting back until the hearing without contacting the solicitors for the first respondent to chase up the book of documents. He was also present, as he acknowledged, when the Tribunal decision was given and received its reasons. Finally, the applicant accepted that, having read the material in the book of documents, there was in fact nothing more he would have said to the Federal Magistrate about it, so that it cannot now be said that he was deprived of an opportunity to address that material in a way which might have affected the decision of the Federal Magistrate. Consequently, in any event, the adjournment sought would have served no useful purpose to the applicant.
The findings of the Tribunal that the applicant breached Condition 8101, and that he did so consciously, were open to the Tribunal. The applicant had said that he had done those activities in his first interview with the Department on 23 March 2005, and he said in his facsimile sent on 9 June 2005 that he was aware of the condition of the visa that he should not work. I agree with the Federal Magistrate that no jurisdictional error is shown on the part of the Tribunal in making those findings.
I do not consider the applicant has any reasonable prospects of success on those contentions, so they do not provide special reasons why he should be given an extension of time within which to appeal.
However, in my judgment, there is a reasonable argument available to the applicant that the exercise of the discretion whether or not to cancel the visa involved jurisdictional error on the part of the Tribunal. That is because the Tribunal may have failed to address that issue in accordance with law. I do not need to, and do not, finally determine whether the Tribunal committed jurisdictional error in exercising its discretion under s 116. I shall confine myself to determining whether there are matters which are arguable on behalf of the applicant, in the face of the first respondent’s contention that he has no prospects of establishing jurisdictional error.
In Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71, Gray J at 90-92 addressed the question whether the decision-maker in exercising the discretion under s 116(1) of the Act was bound to comply with the directions in a Migration Series Instruction. His Honour in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43, in a different factual context, decided that the prescriptions in a Policy Advice Manual published also under s 499 of the Act were not binding, and so were not relevant considerations to a decision-maker as that expression is explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. By reason of the decision in Sandoval, I think it is arguable that at least the primary considerations in the Migration Series Manual referred to at [16] above were required to be addressed by the Tribunal.
I do not need to finally determine the precise findings made by the Tribunal in the passages referred to above at [20]-[21] above. However, I shall make some observations about those passages. The Tribunal has not expressly said that it had taken into account the hardship to the applicant of being unable to complete his degree. One view of its reasons is that it did take that matter into account, although it has not expressly said that it has done so. I accept the submission on behalf of the first respondent that inevitably it must have done so. It is such an obvious aspect of hardship. It is also allied with the findings, which the Tribunal made, that there will be some disappointment to the applicant’s parents. The disappointment would flow from the applicant’s incompleted academic study, because that is why he said that his parents would be disappointed.
However, in other respects I do not read the Tribunal’s reasons as clearly making any findings as to the extent of non-compliance with Condition 8101 or to the circumstances in which the ground for cancellation arose. Arguably, the Tribunal has merely found that the condition was not complied with, and that the applicant knew at the time he undertook the “work” that it was not complied with. The Tribunal noted the applicant’s various (and apparently inconsistent) explanations. Arguably, it did not find whether he was paid for the “work” he was undertaking, or whether his explanation that he was doing that “work” voluntarily out of interest and for training with a view to obtaining paid employment later, was correct or incorrect. Even if it had found that he was working for money, arguably it did not find how much work he was doing or how much he was being paid. Nor is it clear that it found whether his explanation for him undertaking that “work”, namely the reduction of funding from his parents had occurred, was accepted nor as to the extent to which his family support had been reduced. Of course, any facts found on those questions would have been based on the very limited information the applicant had provided, but that may simply have meant that findings were made adversely to the applicant. I do not think it is clear that the Tribunal made those findings. Moreover, in my view those matters, or some of them, are or may have been significant to the Tribunal’s decision and may be within the import of the Instruction published under s 499 of the Act. By way of example, if the applicant was not being paid, the extent of his non-compliance with the “no work” condition may have a different dimension than if he was being paid. If he was working for one hour per week, and being paid for one hour per week, that may have a different dimension from if he was working 20 hours per week. If he was working to manage a short term financial difficulty, that may be different from working, and intending to work, for the continuance of his course. In the Instruction itself, the following appears:
For example, a visitor who is located working illegally may have committed a more serious breach of conditions than a student visa holder who is found working two hours over the allowed twenty hours per week, but is still attending lectures and meeting course requirements;
The arguable failure of the Tribunal to make findings on those matters, in my judgment, indicates an arguable case that the Tribunal committed jurisdictional error in the exercise of its discretion. Those matters may be matters which the Tribunal should have addressed, but did not address. There is a reasonable argument that the Tribunal therefore misapplied the law in the exercise of its discretion.
In my view, the fact that the applicant has an arguable case to demonstrate jurisdictional error on the part of the Tribunal, given the consequences to him of leave to appeal being refused, constitutes special reasons under O 15 r 2 of the Rules. I accordingly propose to allow the application by giving the applicant leave to appeal out of time from the decision of the Federal Magistrate given on 8 February 2007 limited to the manner of exercise of the discretion under s 116(1) by the Tribunal.
The costs of the application will be reserved to the judge hearing the appeal.
I should note that the arguable ground of jurisdictional error on the part of the Tribunal was not explicitly identified before the Federal Magistrate. It emerged in the course of submissions on this application, prompted by a general reference in the proposed notice of appeal to the decision of the Tribunal being unfair and not carefully considered. I am mindful of the observations of the Full Court in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18] about the circumstances in which a new or refined proposed ground of appeal should be allowed in such circumstances, but as the applicant was not represented and because the Federal Magistrate was asked to consider generally the way in which the Tribunal had exercised its discretion under s 116(1), I think this is a case in which the point should be allowed to be considered on appeal.
I will hear the parties as to how the appeal should now progress.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 10 May 2007
Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr B Cramer Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 8 May 2007 Date of Judgment: 11 May 2007
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