Leung v Minister for Immigration and Citizenship
[2010] FCA 268
FEDERAL COURT OF AUSTRALIA
Leung v Minister for Immigration and Citizenship [2010] FCA 268
Citation: Leung v Minister for Immigration and Citizenship
[2010] FCA 268Appeal from: Leung v Minister for Immigration & Anor
[2009] FMCA 1122Parties: SHING CHI ROBERT LEUNG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 1346 of 2009 Judge: LANDER J Date of judgment: 25 March 2010 Catchwords: MIGRATION – appeal from decision affirming the cancellation of a Subclass 572 Vocational Education and Training Sector visa pursuant to s 116 of the Migration Act 1958 (Cth) – failure to review the decision according to law – circumstances for cancellation provided under reg 2.43 of the Migration Regulations 1994 (Cth) – non-compliance with Condition 8202 due to exceptional circumstances beyond the visa holder’s control Legislation: Education Services for Overseas Students Act 2000 (Cth) s 19
Migration Act 1958 (Cth) s 116
Migration Regulations 1994 (Cth) reg 2.43, Schedule 8 Condition 8202Date of hearing: 3 March 2010 Place: Adelaide (Videolink to Sydney) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Appellant: Mr D Oliveri Solicitor for the Appellant: Phoenix Attorneys Counsel for the Respondents: Mr A Markus Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1346 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SHING CHI ROBERT LEUNG
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
25 MARCH 2010
WHERE MADE:
ADELAIDE (VIDEOLINK TO SYDNEY)
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders made by the Federal Magistrate on 5 November 2009 be set aside.
3. The appellant’s application in the Federal Magistrates Court be allowed.
4.The decision made by the Migration Review Tribunal on 27 May 2009 affirming the first respondent’s delegate’s decision made on 23 February 2009 to cancel the appellant’s Subclass 572 Vocational Education and Training Sector visa be quashed.
5.The appellant’s application for a review of the delegate’s decision made on 23 February 2009 be remitted to the Migration Review Tribunal for determination according to law.
6.The first respondent pay the appellant’s costs:
(a)in the Federal Magistrates Court; and
(b)on this appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1346 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SHING CHI ROBERT LEUNG
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
25 MARCH 2010
PLACE:
ADELAIDE (VIDEOLINK TO SYDNEY)
REASONS FOR JUDGMENT
This is an appeal from an order of a Federal Magistrate dismissing the appellant’s application for review of a decision of the Migration Review Tribunal (the MRT) given on 27 May 2009, in which the MRT affirmed a decision of a delegate of the first respondent to cancel the appellant’s Subclass 572 Vocational Education and Training Sector visa (Subclass 572 visa).
The appellant is a citizen of Hong Kong who was born on 9 November 1989. On 22 December 2006 he was granted a Subclass 572 visa. On 5 August 2008 the Sydney Institute of Business and Technology (SIBT) certified that the appellant for his Certificate IV course, University Foundation Studies, had not achieved satisfactory course attendance for s 19 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). On the same day, SIBT sent the applicant a notice under s 20 of the ESOS Act notifying him of the particulars of the breach.
On 1 September 2008 the first respondent’s Department sent to the applicant a Notice of Intention to Consider Cancellation of his Subclass 572 visa.
The appellant replied to that notice giving two principal reasons for his unsatisfactory attendance: first, because of the distance he had to travel from his home to the college and weather and traffic meant that he often got to college late and he was marked as being late; and secondly, he absented himself from lectures because of stomach problems and was marked as a non-attendee.
On 23 February 2009 a delegate of the Minister decided to cancel the appellant’s Subclass 572 visa and the appellant was notified the same day. On 24 February 2009 the appellant applied to the MRT for a review of the delegate’s decision. On 27 May 2009 the MRT affirmed the decision of the first respondent’s delegate to cancel the appellant’s Subclass 572 visa. On 27 August 2009 the appellant applied to the Federal Magistrates Court for declarations that the MRT had fallen into jurisdictional error and for an order remitting the matter to the MRT to be dealt with according to law. On 5 November 2009 the appellant’s application was dismissed and the appellant was ordered to pay the first respondent’s costs in the sum of $4,500. It is from those orders that this appeal is brought.
Section 116 of the Migration Act 1958 (Cth) (the Act) empowers the Minister to cancel a visa if the Minister is satisfied that the holder of the visa has not complied with a condition of the visa: s 116(1). If there exists prescribed circumstances for cancelling the visa, then the Minister must cancel that visa: s 116(3).
Regulation 2.43(2) of the Migration Regulations 1994 (Cth) (the Regulations) addresses the prescribed circumstances for the purpose of s 116(3) and provides:
(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 condition 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister 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.
Condition 8202 referred to in reg 2.43(2)(b)(ii)(A) provides:
(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full-time course of study or training.
(3) A holder meets the requirements of this subclause if neither the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(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.
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.
It was not in dispute on this appeal that Condition 8202 applies to the appellant.
Regulation 2.43(2)(b)(ii) relevantly requires the Minister to be satisfied first, that the visa holder has not complied with Condition 8202 and, secondly, that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
The MRT found that the appellant had not complied with Condition 8202(3)(b) in that the SBIT had certified that the appellant had not achieved satisfactory course attendance for the registered course which he was undertaking. That finding was not challenged before the Federal Magistrate or on this appeal.
The further question which the MRT was bound to consider was whether the appellant’s non-compliance was not due to exceptional circumstances beyond the appellant’s control: reg 2.43(2)(b)(ii)(B).
In the MRT the appellant relied upon other grounds not previously stated as being exceptional circumstances beyond his control. In a submission dated 8 April 2009 he claimed that in the first semester of 2008 his grandmother became ill. He said that he wanted to return to Hong Kong but his parents insisted on him continuing with his studies in Australia. Although he continued to attend school, he was often late because he was unable to sleep. He said that the real reason why he was unable to attend to his studies was his grandmother’s illness. His grandmother died in November 2008 and although he was able to attend her funeral he felt depressed. He said he was very close to his grandmother and her illness had made him homesick which had affected his studies. He produced a number of documents in support of his claims, including his grandmother’s death certificate. He said that he had not relied upon his grandmother’s illness in response to the Notice of Intention to Consider Cancellation of his Subclass 572 visa because he had relied upon the advice of a friend who had written his response.
The appellant also relied upon the two reasons which he had given in response to the Notice of Intention to Consider Cancellation of his Subclass 572 visa, but the MRT concluded that neither of those reasons amounted to exceptional circumstances. That finding was not disputed before the Federal Magistrate, nor is it on this appeal.
He attended before the MRT and was asked by the MRT why he had not contacted SIBT about his attendance problems, particularly, as the MRT noted, because SIBT could have provided information about the importance of meeting course requirements and of options for students to seek advice or assistance. The MRT put to him that it was difficult to accept that the appellant could not have sought assistance whether from SIBT or other professionals.
The MRT put to the appellant that he had not mentioned his grandmother’s problem to the SIBT or the Department. It said that caused the MRT to have further doubts whether this meant that his grandmother’s illness and death, and his claims of the effect on him, constituted exceptional circumstances.
He told the MRT that he had relied on his friend to write to the SIBT and to the Department explaining why he had not complied with his course study obligations, and he had not read the letters before they were sent.
The MRT said it was difficult to accept that the appellant would just accept letters being written by others without considering the contents. In an answer to the MRT the appellant said that he found his grandmother’s plight difficult and did not understand the seriousness of his own position. The MRT said it found it difficult to accept that the appellant was not aware of the seriousness of his position. The appellant’s rejoinder was that he was unhappy.
The MRT said:
33. The Tribunal asked if the applicant contacted SIBT about his attendance problems, especially his problems relating to his grandmother’s illness. He stated he was used to the Hong Kong system and did not feel there would be any point. The Tribunal indicated it was difficult to accept that as a student in Australia he would not have been able to contact SIBT about the problem, particularly given that SIBT would have provided information about the importance of meeting course requirements, and of options for students to seek advice or assistance. The applicant stated he was ‘moody’ or in a ‘low mood’. He did not seek medical help and just stayed at home and called home every day to ask about his grandmother. The Tribunal indicated again it was difficult to accept the applicant could not have sought assistance if this was a matter preventing him from attending classes, whether from SIBT or a medical professional, and thus might doubt this issue constituted exceptional circumstances beyond his control. The applicant stated that at the time he was very worried about his grandmother; he blamed himself and all he could do was think about her.
34. The Tribunal stated the applicant had not mentioned the problem relating to his grandmother to SIBT or the Department, and the Tribunal therefore had further doubts that this constituted exceptional circumstances beyond the applicant’s control. He stated he did not see the letters written to SIBT or the Department, as they were written by friends. The Tribunal indicated it was difficult to see how the applicant would just accept letters being written by others without checking or considering the contents. He stated he let his friends help because his worries were so great; a friend indicated he had experience in such matters and could write a letter for him. The Tribunal raised its concern that he did not provide information about his grandmother. He stated he found his grandmother’s situation difficult to accept and also did not realise the seriousness of SIBT’s letter. When the Department asked him to explain any reasons for the non-compliance he was still worried about his grandmother, and this was why he did not add any information about this in the letter to the Department. The Tribunal indicated it was difficult to accept that the applicant did not understand the seriousness of the situation given the evidence submitted to the Tribunal indicated SIBT had issued a warning letter in June 2008 about his attendance and academic progress. The applicant stated he could not see the seriousness because he was unhappy. His friends advised him they had experienced similar situations and they were easy to resolve, so he let his friend write the letter.
The matters to which the MRT adverted to in paragraphs 33 and 34 could have allowed the MRT to reject that part of the appellant’s claim which relied upon his grandmother’s illness and death, and the effect upon his health.
In response to the appellant’s claims the MRT concluded:
43. The Tribunal accepts that the applicant had a close relationship with his grandmother and that he was worried when she became ill in early 2008, and that he suffered from unhappiness and depressed mood because of this and because he was discouraged by his parents from returning to Hong Kong to see her. The Tribunal also accepts that this may have triggered an element of homesickness, which the evidence submitted to the Tribunal indicates the applicant had experienced in the early stages of his studies in Australia. The Tribunal notes, however, that the applicant did not seek any counselling or other assistance from SIBT regarding these problems and their possible effect on his attendance, nor did he seek professional medical advice about the problem. The applicant has claimed that because of his depressed mood he did not take any action and did not realise the seriousness of the issues relating to his attendance. Whilst the Tribunal appreciates the applicant may not have been fully aware of the precise nature of his condition, the Tribunal considers that he was aware it was affecting his studies, including his attendance, and the Tribunal considers it was within his control to seek assistance, whether from SIBT or a medical professional, to address the problem.
44. The Tribunal also considers it was in the applicant’s control to raise the issue of the effect of his grandmother’s illness on his attendance when he lodged his internal appeal with SIBT. His evidence is that he was aware of the reason why he was sad or in a low mood, and the Tribunal considers therefore it was within his control to ensure that his appeal to SIBT contained details of the circumstances that caused his sadness or low mood, and consequently affected his attendance. The Tribunal does not accept, in the context of the evidence that he had received a warning letter from SIBT about matters including his attendance, that he would not have been aware of the seriousness of the issue.
45. The Tribunal also considers it was within the applicant’s control to provide details of the circumstances he considered caused his poor attendance to the Department when responding to the Department’s NOICC letter. At this stage SIBT had already reported the applicant in relation to non-compliance of condition 8202, and the Tribunal does not accept it was beyond his control to provide this information, particularly given the evidence in Mr Lam’s statutory declaration (provided to the Tribunal) that the applicant was upset when SIBT did not accept his letter to them giving reasons for his poor attendance. The Tribunal has considered the evidence that he just relied on his friends to submit the relevant letters, and did not pay regard to the contents. The Tribunal does not accept, however, even if the applicant was worried about his grandmother’s health, that it was not in his control to have input into the content of the letters even if he relied on his friends to draft them. Nor does the Tribunal accept that the applicant (or his friend) did not appreciate the significance of providing true details about the underlying cause of the applicant’s attendance problems either to SIBT or the Department. The Tribunal considers that if the circumstances of his grandmother’s ill health were of such significance that they affected his attendance, it was in the applicant’s control to provide such details to SIBT and/or the Department.
Notwithstanding the doubts expressed by the MRT, the MRT did not reject the appellant’s claims relating to his grandmother’s illness and death, and the effect upon his health. The MRT specifically found that the appellant had a close relationship with his grandmother that he became worried when she became ill in early 2008 and that as a result the appellant suffered from unhappiness and a depressed mood. He may have also suffered homesickness. In other words, the MRT accepted that the appellant’s claim in that regard was genuine.
The appellant contended before the Federal Magistrate that the MRT had failed to consider whether his grandmother’s illness and death, with its consequence upon his health, were within the concept of exceptional circumstances. The appellant contended that instead the MRT addressed irrelevant matters and engaged in an assessment whether the consequences to the appellant were within the appellant’s control. It was contended before the Federal Magistrate that the MRT had fallen into jurisdictional error by failing to exercise its jurisdiction in regard to the matter to be considered under reg 2.43(2)(b)(ii)(B).
The Federal Magistrate rejected the appellant’s contentions. First, the Federal Magistrate found that the MRT was not bound to isolate the illness of the grandmother as constituting all of the exceptional circumstances and to consider that illness alone under the control test. He was of the opinion that the grandmother’s illness and death, and the appellant’s mental condition, were interwoven and should have been the subject of the inquiry.
He said:
19.In my opinion, it was very relevant for the Tribunal to consider whether it was satisfied that Mr Leung’s mental condition at relevant times during 2008 was so incapacitating in its effects on his motivation and capacity to exercise appropriate judgment as to his own behaviour, as to remove from his control his ability to address his difficulties of attending college by raising them with his education provider or seeking medical help. The Tribunal addressed that issue in [43], and it made a factual assessment adverse to Mr Leung in relation to that issue. Its adverse assessment provided the reason for its decision.
20.This reasoning did not engage in any characterisation of whether Mr Leung’s circumstances were ‘exceptional’, but may have assumed that they might be so characterised, including his grandmother’s illness and its effects on Mr Leung’s mental state. In effect the Tribunal assumed that if Mr Leung’s mental state did give rise to serious mental illness of the nature put forward, then it would have been due to exceptional circumstances. However, it did not accept that he had suffered from an illness sufficient to put out of his control his ability to remedy its effects on his attendance at college and the issue of a negative certificate by SIBT in relation to his attendances. Mr Leung therefore failed before the Tribunal under the ‘beyond the visa holder’s control’ test in reg.2.43(2)(b)(ii)(B).
He was of the opinion that the inquiry which the MRT conducted and explained in paragraphs 44 and 45 of their reasons was appropriate. He dismissed the application and ordered the appellant to pay the first respondent’s costs fixed at $4,500.
The MRT has accepted in paragraph 43 that the appellant’s grandmother’s illness and death impacted upon the appellant such that he became unhappy and suffered from a depressed mood and, as a result, homesickness. It has not however made any finding as to whether or not those matters constituted “exceptional circumstances”. Moreover, the MRT has not made any finding that the appellant’s non-compliance with Condition 8202 was due to the circumstances which it accepted. Indeed, it has not addressed that issue at all. Instead, the MRT in paragraphs 43 to 45 addressed the issue whether the circumstances which it accepted in paragraph 43 were within the control of the appellant. In other words, the MRT rather proceeded upon the unstated assumptions that the circumstances, which included the appellant’s unhappiness and depressed mood and resultant homesickness, amounted to exceptional circumstances and that they had led to the appellant’s non-compliance with Condition 8202, and addressed the question whether those exceptional circumstances were beyond the appellant’s control.
It concluded, I think, on a proper reading of paragraphs 43 to 45, that those exceptional circumstances were not beyond the control of the appellant because he could have taken the actions referred to in those paragraphs to alleviate his unhappiness and his depressed mood.
The appellant contended on the appeal, as he had before the Federal Magistrate, that the inquiries carried out by the MRT as reported in paragraphs 43 to 45 addressed matters not relevant to the issue whether the appellant’s grandmother’s illness and the appellant’s resultant depression were exceptional circumstances beyond the appellant’s control. Therefore it was contended the MRT had identified the wrong issue. He contended that the Federal Magistrate was wrong to conclude otherwise.
Assuming that the MRT did proceed upon the unstated assumption that the appellant’s grandmother’s illness and later death, and the effect upon the appellant’s health were exceptional circumstances, the MRT needed to consider whether the appellant’s non-compliance with Condition 8202 was due to those exceptional circumstances and, if it was, whether the exceptional circumstances were beyond the appellant’s control.
The MRT has not made any finding as to whether the non-compliance with Condition 8202 was due to the exceptional circumstances. It proceeded, as I have said after accepting the appellant’s claims, to consider the question of control.
Mr Markus, who appeared for the respondent, contended that the MRT proceeded in the way that it did upon the most beneficial view to the appellant. That might be so. However, the MRT should have made findings as to whether it accepted that the appellant had made out “exceptional circumstances”; and whether it accepted that the appellant’s non-compliance with Condition 8202 was due to those exceptional circumstances. Lastly, it should have addressed the question of control.
It is necessary to proceed in that logical fashion because each finding informs the issues that follow. A finding needs to be made whether the circumstances are exceptional. Next, a finding needs to be made whether those exceptional circumstances were the reason why the visa holder failed to comply with Condition 8202 and the particular failure. Once those findings are made the MRT can address the final issue, which is whether the non-compliance was due to exceptional circumstances beyond the visa holder’s control in the light of its previous findings of facts.
The non-compliance with Condition 8202 in this case was by the SIBT giving and the appellant receiving a certificate that the appellant had not achieved satisfactory progress.
The circumstances which were found to exist include both the appellant’s grandmother’s illness and death, and the effect upon the appellant’s health. Clearly, it could not be said that the appellant’s grandmother’s illness and death was within the appellant’s control. The MRT therefore inquired into whether the appellant’s health (i.e. unhappiness, depressed mood and homesickness) was within the appellant’s control.
The MRT concluded in paragraph 43 that it was within the appellant’s control to seek assistance from SIBT or a medical professional, notwithstanding that the appellant may not have been fully aware of the precise nature of his condition. He could have, the MRT concluded, also raised the issue with the SIBT when he lodged his internal appeal: paragraph 44. It rejected his claim that he was unaware of the seriousness of the issue. Lastly, the MRT concluded that it was within the appellant’s control to provide details of his circumstances to the Department when responding to the Notice of Intention to Consider Cancellation: paragraph 45.
The MRT has made no finding that if the appellant had, as it claimed he could have, sought assistance from SIBT or a medical professional he would have received such treatment that would have enabled him to keep an attendance record that would have meant that he complied with Condition 8202. In the absence of a finding that he would have been able to keep an attendance record that would have meant that he had not breached Condition 8202, the MRT has failed to address the question of control even if it assumed the two matters to which I have referred, namely exceptional circumstances and that the non-compliance was due to the exceptional circumstances.
The MRT has decided in paragraphs 44 and 45 that the appellant could have raised the issues with the SIBT and the Department. However, that is not a relevant consideration. The grounds for cancellation in reg 2.43 arise if the Minister is satisfied that the visa holder has not complied with Condition 8202. A visa holder has not complied with Condition 8202 if the education provider has certified that the visa holder is not achieving satisfactory course progress. The failure to comply with the Condition is as a result of the certificate by the education provider. The notice is also the trigger for the operation of s 19 of the ESOS Act and Standard 11 of the National Code 2007.
Regulation 2.43(2)(b) is engaged when the education provider gives the certificate; in this case under Condition 8202(3)(b). The prescribed circumstances which obliged the Minister to cancel the Subclass 572 visa under s 116(3) had already occurred when the MRT said that he could have raised the issues with SIBT or the Department.
The MRT has not made any finding that if the appellant had done what it was said he could have done the education provider’s certificate could or would have been withdrawn. Nor has any finding been made that the Minister could or would have not cancelled the appellant’s visa.
In short, the MRT did not decide all three issues which needed to be addressed to determine whether reg 2.43 was engaged. It did not determine whether the circumstances relied upon by the appellant were exceptional circumstances. It did not determine whether those circumstances were the cause of non-compliance with Condition 8202. It purported to inquire into whether the circumstances which it accepted were beyond the appellant’s control, but did not complete the inquiry.
For those reasons, the MRT has failed to exercise its jurisdiction. The Federal Magistrate erred in dismissing the appellant’s application.
The following orders should be made:
1.The appeal be allowed.
2.The orders made by the Federal Magistrate on 5 November 2009 be set aside.
3.The appellant’s application in the Federal Magistrates Court be allowed.
4.The decision made by the Migration Review Tribunal on 27 May 2009 affirming the first respondent’s delegate’s decision made on 23 February 2009 to cancel the appellant’s Subclass 572 Vocational Education and Training Sector visa be quashed.
5.The appellant’s application for a review of the delegate’s decision made on 23 February 2009 be remitted to the Migration Review Tribunal for determination according to law.
6.The first respondent pay the appellant’s costs:
(a)in the Federal Magistrates Court; and
(b)on this appeal.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 25 March 2010
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