LI v Minister for Immigration

[2013] FCCA 2005

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2005

Catchwords:  
MIGRATION – Application to review decision of the Migration Review Tribunal to affirm decision of delegate not to grant applicant a subclass 573 visa – no jurisdictional error identified.

Legislation:  

Migration Act1958
Education Services for Overseas Students Act2000
Migration Regulations 1994

Craig v State of South Australia [1995] HCA 58
Taylors v Taylor [1979] HCA 38
Maan v MAIC (2009) 179 FCR 581
Plaintiff S157/2002v The Commonwealth of Australia (2003) 211 CLR 476

Applicant: LIUXING LI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 8 of 2013

Judgment of: Judge Lindsay

Hearing date: 6 November 2013

Date of Last Submission: 6 November 2013

Delivered at: Adelaide

Delivered on: 6 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Freer

Solicitors for the Applicant: Warmings Solicitors

Counsel for the First Respondent: Mr D’Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Not applicable

ORDERS

1. The Application filed on 18 January 2013 do stand dismissed.

2. The applicant to pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of SIX THOUSAND FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6471.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 8 of 2013

LIUXING LI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

[Ex tempore Reasons settled from transcript]

1. Before me this afternoon is an application pursuant to s.476 of the Migration Act1958 (“the Act”) for an order by way of judicial review of a decision of the Migration Review Tribunal of 20 December 2012, which decision affirmed the decision of the delegate of the Minister to endorse, if I may use that expression, the cancellation of the applicant’s subclass 573 visa. The decision of the Tribunal is a privative clause decision and hence comes within s.474, so it is a migration decision in respect of which a review can be instituted pursuant to s.476.

2. But the review will only lie in respect of those decisions of the Tribunal which are vitiated by jurisdictional error.  Jurisdictional error is a concept explained in a number of High Court decisions such as Craig v State of South Australia, [199] HCA 58 and in respect of decisions under the Act, in Plaintiff S157/2002v The Commonwealth of Australia (2003) 211 CLR 476. So the decision of the Tribunal will only be liable to be the subject of an order for review if it has been made in excess of or for want of jurisdiction, or some other matter going to jurisdictional error is established such as a failure to accord the applicant procedural fairness.

3. The Application was filed as far back as 18 January of this year in this Court.  It came before the Registrar of the Court in February, and the usual suite of orders were made at that time; firstly listing the matter for hearing before me on 15 July 2013 and then ordering that an Outline of Submissions be filed by the applicant ten days prior to the hearing and by the first respondent three days prior to the hearing.  As matters transpired, and with the consent of the first respondent, the application was adjourned in July to today’s date.

4. The first respondent has filed an Outline of Submission.  The applicant has not fulfilled that obligation, and it was on account of the unavailability of an Outline of Submission that my Associate contacted the legal representatives who are on file as acting for the applicant yesterday to ascertain whether an Outline might be provided to me to read before today’s hearing, and she was advised and informed me that an application would be made for a further adjournment of the Application, and that the adjournment was neither consented to nor opposed by the first respondent’s legal representatives.

5. So when the matter came before me at approximately two thirty this afternoon, I dealt with the application for the adjournment.  At first it was promoted upon the basis of a suggestion that a Freedom of Information application directed to the Department had been made either prior to or at the time of the filing of the application, and that certain documents had been elicited as a result of that throughout the year, but that a particular document relating to a matter that is agitated in Ground 1 of the Application had only been drawn to the attention of the applicant’s legal advisers and his counsel within the last day or two, and naturally enough, with it being put to me that this document was of such significance as to warrant the matter being adjourned, and of course in the context of this application having been filed ten months ago, I asked to see the document that had given rise to the application to adjourn.  It was not available.  Not only was it not available after a period of time – after I left the bench and a period of time was given for its production – that ground of adjournment was no longer promoted.  Instead the ground of adjournment that was promoted, somewhat faintly, was the suggestion that a document within the Court Book prepared by the Minister pursuant to the order of the Registrar, had not been brought to the attention of counsel until very recently, as in the last day or two.

6. But on some quizzing about the significance of that document to the ground advanced, or any of the grounds advanced, it was conceded that it did not provide a ground for the adjournment of the Application either, so ultimately the application for the adjournment was abandoned.  Just in case I had misunderstood what was a reasonably confusing turn of events, I formally refused the adjournment application, and I think my explication of what transpired in relation to the promotion and then abandonment of two separate grounds for the adjournment is enough to indicate that in the end there was not an application of substance in respect of late receipt of documents for me to, in fact, have to address.

7. In that sense, the refusal of the application of the adjournment on that basis was axiomatic.  But there was a further ground for adjournment then promoted and that was the unexplained absence of counsel brief to appear this afternoon.  Mr Anderson of Counsel was told by Mr Freer, so I was told, that the arrangement had been that if the application for the adjournment was refused – and it was, although, strictly speaking, ultimately the application for the adjournment was not pursued – but, in any event, if the matter was to proceed, Mr Anderson was to appear and to make submissions. 

8. And, despite I think the reasonably generous opportunities being given to locate Mr Anderson or at least to come up with an explanation as to his non-attendance, he did not attend.  And that in itself, the unexplained absence of counsel, was itself promoted as a ground for the adjournment.  And I recognise the possibility that some misadventure, if I may use that expression, has befallen counsel and that, trying to make his way to Court, he has been prevented from doing so. 

9. None here in Court this afternoon can exclude that possibility and if that turns out to be the case and the applicant was denied the opportunity to have his submissions presented by briefed counsel, as distinct from the instructing solicitor who did his best in the absence of counsel to promote the grounds of the application, then if there is some reasonable explanation for the absence of counsel, that may – I am not saying it will – but it may ground a submission that, in truth, the applicant has not been given an opportunity to be heard. 

10. And that may ground an application being made for the setting aside of my order refusing the adjournment on that basis and any consequential orders I make in respect of my dealing with the application in accordance with High Court authority such as Taylor v Taylor [1979] HCA 38. And, if that is the case, no doubt if there is such a reasonable explanation for the absence of counsel, then that application may be promoted. But I cannot ignore the circumstance that this is the second time the matter has been listed and the second time an adjournment has been promoted. That is one of the reasons I refuse the adjournment, on that basis.

11. The other reason is the altogether unexplained, absence of an Outline of Submission.  Had Mr Anderson appeared, he would have been promoting his submissions without the Minister’s representatives or the Court having been given the opportunity to consider them other than at the very time they are put.  And there was simply no explanation for that provided when I inquired as to why that was the case, the Registrar having made such an order in February for the document to be filed ten days prior to the hearing and, of course, as I have indicated, this is the second hearing. 

12. And it is the fact that it is the second hearing of the matter which adds to my concerns about a further adjournment in these circumstances and circumstances of unexplained absence of counsel.  Given that, and an Outline not having been filed, an adjournment of the application in these circumstances, I think, would not have been something that was consonant with the integrity of the process of the Court.  And I was satisfied the matter should proceed. 

13. Another although less significant aspect of my decision not to accede to the adjournment on that basis was the opportunity I had taken to read the Court Book and then to consider the Tribunal’s decision in the light of the grounds advanced in the application.  And I had not at that stage, of course, heard any submissions, but the view I had formed, now confirmed since I have had the opportunity of hearing the submissions and reflecting upon them, was that the grounds were lacking in merit.  I am not satisfied that any of the grounds of jurisdictional error set out in the application have been made out and I will give my reasons for that in moment. 

14. But at the moment I am only indicating that, as a background matter, the provisional view I formed as to the inherent lack of merit in the grounds, now confirmed at the conclusion of the hearing, was a matter that also figured to some limited extent in my decision to refuse the adjournment on the basis of the unexplained absence of counsel. 

15. The applicant’s visa was cancelled when, on 24 May 2012, the University of Ballarat, in Adelaide, which is the institution he attended, certified for the purposes of clause 8202(3) of Schedule 8 to the Regulations under the Act that the applicant had not achieved satisfactory course progress for the purposes of s.19 of the Education Services for Overseas Students Act2000 and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students.

16. Ultimately, that first leg, as it were, in the process of cancellation was not the subject of any of the Grounds of Review.  What was, the second leg, which arises from the circumstance that Regulation 2.43(2)(b)(ii)(B) of the Migration Regulations required the Tribunal to be satisfied that the non-compliance with condition 8202, was something that was due to exceptional circumstances beyond the applicant’s control, and it is that aspect of the matter, the failure of the Tribunal to identify circumstances that warranted it not being satisfied that the non-compliance was due to exceptional circumstances beyond the applicant’s control, that is the basis of all of the Grounds of Review that are agitated.

17. In those circumstances, it is unnecessary for me in these reasons to go into the scheme of the legislation relating to the 8202 certifications provided by the institutions; that was discussed in the decision of the Full Court of the Federal Court in Maan v MAIC (2009) 179 FCR 581.

18. The applicant is a citizen of the People’s Republic of China.  He arrived in Australia in January 2005.  At that time he held a Subclass 571 visa and then a series of other visas were held by him, but on 4 January 2011 he was granted the Subclass 573 visa which was the subject of the cancellation notice and the subject of this application.  And the cancellation was given pursuant to that clause because of unsatisfactory course progress.

19. Doing the best I can to understand the material that was before the Tribunal, there were three subjects that were failed by him.  There had been a series of warnings given to him of unsatisfactory course progress and, as I say, that led on 18 May 2012 to the Department giving the applicant a Notice of Intention to consider cancellation.  The certification was provided on 24 May 2012 and the applicant then provided material which ultimately was considered by the delegate and was unsuccessful in persuading the delegate that the student visa should not be cancelled.

20. The first ground of the Application alleges a jurisdictional error associated with the Tribunal failing to have regard to the failure of the relevant educational institution to adopt a student at risk standard or, in the alternative, to disseminate or apply such a standard to Adelaide staff and students such as was required by Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

21. The jurisdictional error was associated, it is said, with the Tribunal failing to have regard to that circumstance as constituting an exceptional circumstance beyond the visa-holder’s control.  That particular contention is the matter that was the subject of specific reference in a written submission made to the Migration Review Tribunal on 26 November 2012, which is to be found at CB [49], and especially set out at pages 2 and 3 of that letter; the obligations for monitoring course progress are there set out and, in that letter, the applicant summarises his position in relation to that as a requirement that the institution be proactive in notifying and counselling students who are at risk.

22. Those written submissions are referred to in the last reference of paragraph 57 of the Submission.  Paragraph 40 of the Reasons, the last sentence notes the applicant’s claims as to the education provider’s breach of Standard 10.  There is no other reference to that in the summary of the oral evidence of the applicant or the submissions put on his behalf in the statement of the Tribunal’s reasons, although there is a discussion of the matters which, as it were, ground that submission, matters relating to what the applicant said were the explanations for his poor academic performance over the relevant period.

23. The applicant asserts, CB [51], in his letter of November 2012, that it is his view that he was a student at risk.  He says he was displaying physical signs that something was wrong and he was not performing as well as he has done in class participation and any group work and, indeed, socially.  He said all these are signs that, he believes, should have been identified by his lecturers that, perhaps, he was at risk.  And he goes on to say his grades were obviously suffering.  He failed a number of subjects in one semester and was not counselled but offered further subjects.

24. The assertion is that he was a student at risk. Now, there is no indication in the letter of 26 November 2012 or in any of the other material put to the Tribunal whether that expression “student at risk” is a term of art or an expression that is specifically defined in the code.  So, all we are left with in that regard are the applicant’s assertions that he was a student at risk or, alternatively, that he was perhaps at risk as he expresses it.  There is no further information provided by the applicant in documentary form and no indication in the Tribunal’s assessment of his evidence of any explications or as to any fleshing-out of that assertion, that he was a student at risk and as to how it was that school staff, teaching staff or other staff, were said to be on notice of that.

25. Essentially the submission is – and it was a part of Mr Freer’s submissions to me this afternoon – that the educational institution itself ought to have taken responsibility for the applicant’s failure to satisfactorily complete his course progress. That submission would have had more substance if there had been any evidence that the applicant had responded to the various warnings and notices that had been given by the educational institution as to his difficulties in that regard. They are described in the Tribunal’s decision at CB [67].

26. There is the letter of 4 November 2011, a letter of 15 March 2012, and then on 23 April 2013, and the fact that he had been excluded from the Bachelor of Business course and had twenty days to appeal the decision.  There was no opportunity taken by the respondent, on the basis of the information before the Tribunal, to provide further information to the education provider in relation to those concerns that were specifically raised with him.

27. He was content before the delegate, and again before the Tribunal, to rely upon an assertion that such correspondence never reached him and that is the subject of some specific attention in the Tribunal’s decision, particularly at paragraph 69, where it was satisfied that, in fact, by an inspection of the file, that the letters had been sent to the addresses that were provided by the applicant to the educational institution and that includes a change of address.  The Tribunal deals with this submission specifically at paragraph 72 of its reasons, where it summarises his personal problems, his decision to enrol in the summer semester and his failure again to complete the subject during that part of the course. 

28. And the Tribunal finds that – and I am looking here at the middle of paragraph 72 – it was up to the applicant to seek counselling or medical treatment or raise such personal issues with his education provider.  And then the Tribunal goes on to note that no medical evidence was provided in relation to the specific claims of depression and that was so because there is some degree of controversy about that matter arising on the material.  In other words there simply is an assertion by the applicant that the education institution was obliged to be proactive in dealing with his circumstances, which were at the root of his unsatisfactory course performance.

29. There is a finding by the Tribunal that it was up to the applicant to seek counselling or medical treatment or to raise such personal issues with the education provider, and it must be acknowledged that in that finding there is no specific addressing of the assertion of the applicant made vis-à-vis a letter of 26 November 2012 that the Tribunal had to be proactive.  But as I have indicated, there was nothing before the Tribunal which purported to substantiate what is set out in the letter.  If there were some aspect of his evidence which has been overlooked in the Tribunal’s reasons the applicant has had an opportunity to provide a transcript and then to point to those passages in the transcript where the applicant fleshes out the assertion that is made in the letter, but he has not done that.

30. In fact, there is nothing provided other than that assertion as to the applicant being a student at risk and as to the educational institutions, officers and teachers being aware that he was such a student at risk.  Essentially the inference that the Tribunal was asked to draw was that the failure of the applicant to satisfactorily complete the subjects was itself a ground for inferring that he was a student at risk and a ground for inferring that the educational institution should be proactive.

31. In my view the Tribunal was not obliged to make a specific finding in relation to a contention that had been asserted in such an unexplicated way and a way that was so absent the relative detail.  What is important it seems to me is that the specific matters going to what the applicant asserts were the reasons for his unsatisfactory course performance were themselves the subject of specific consideration by the Tribunal.

1. The reference to standard 10 is noted and in my view it is given sufficient consideration by the Tribunal consonant with the extent to which the argument relating to it has been put by the applicant. 

2. I am not satisfied that Ground 1 has been made out.

3. Ground 2 really pitches that ground that was asserted in Ground 1 in a different way.  It is said that the failure to take into account the reference to the code in the letter was a matter that constituted a failure to take into account a relevant consideration.

4. But I cannot discern in the way that Ground 2 has been drawn any difference in substance from the way in which it has been asserted in Ground 1.  Ground 1 simply asserts that the Tribunal committed a jurisdictional error in failing to either have regard to the standard itself or failed to disseminate the standard, that those matters were not given sufficient regard by the Tribunal and how that differs from an assertion as articulated in Ground 2 that it was a failure to take into account a relevant consideration is not clear to me.

5. I do not think the ground is different in substance from Ground 1 and Ground 1 having been found by me not to have been made out, Ground 2 is not made out either. 

6. Ground 3 asserts that in finding that the combination of the fact that the applicant’s three year defacto marital relationship had terminated during or shortly prior to his studying the particular courses that were failed, taken together with his situation arising from that as to his living conditions and sole liability for rent, the failure by the Tribunal to regard those matters either individually or in aggregate as not constituting an exceptional circumstance beyond the visa holder’s control, is a matter indicative of jurisdictional error.

7. It is manifest from the reasons of the Tribunal, however, that those circumstances – the background to the relationship, the reason it failed, the impact of that upon the applicant’s financial position – were all matters that were the subject of some attention by the Tribunal in its determination; there is no quibble about that.  The quibble is that the Tribunal did not give it sufficient weight or did not regard it as amounting to an exceptional circumstance.

8. That, it seems to me, is an invitation to reconsider the factual finding of the Tribunal for it is an invitation to the Court to consider afresh the circumstances and it come to a different conclusion as to whether they constitute an exceptional circumstance.  That is not the function of a hearing of this nature.  This is not a merits review; this is a review the success of which is predicated on the identification of jurisdictional error.

9. Ground 4 is in a similar vein.  It goes to the Tribunal’s findings in relation to the contention by the applicant that he did not receive the correspondence I have referred to earlier in these ex tempore reasons, which was putting him on notice of the education provider’s concerns about his performance.  Again, the fundamental problem with the ground is that it is an invitation to reconsider the factual finding of the Tribunal.

10. But in addition to that there is no indication as to why the Tribunal’s apparently careful consideration of the material on the file (as to the correspondence having been sent to the last address provided by the applicant to the educational institution) is wrong, or as to in what way the Tribunal finding that such a dispatch by the educational institution to those addresses did not result in the applicant receiving the documents concerned.  There is no indication of these matters in the ground itself and, of course, we are not assisted by an Outline of Submission and there is nothing in the Tribunal’s reasons to indicate that there was ultimately any real controversy about these matters.

11. The non-receipt of the material was certainly asserted.  In one instance the assertion was in fact withdrawn by the applicant, but there was a general assertion of non-receipt of the material, but ultimately, for the reasons it gave, the Tribunal was satisfied that the material had been dispatched to the last given address for the applicant.  And as I have indicated in any event the ground itself as it is formulated is really an invitation to come to a different factual conclusion.

12. The fifth ground, the alleged jurisdictional error associated with the failure to take into account a relevant consideration being the circumstance that the applicant had almost completed his degree studies by the time that his girlfriend left him and then he fell into those consequent financial difficulties, was again a matter that was picked up today by Mr Freer.  But there was nothing before the Tribunal in relation to this, as to the proximity of the near completion of the degree to these events.

13. It was not for the Tribunal to make the applicant’s case for him and it is manifestly not appropriate for me to have regard in a jurisdictional error identification exercise to a factual circumstance that I am told the Tribunal was not told about.  There is no substance in Ground 5 in my view. 

14. The sixth ground alleges a jurisdictional error, being the taking into account of an irrelevant consideration.  That is, that the applicant could have sought deferral of his studies or transferred to another course, which is certainly a finding the Tribunal made.

15. And that is said to be something it was not entitled to take into account given that the conditions of the applicant’s visa precluded such course of action.  And then there is an assertion about the visa being due to expire on a certain date, and there being no assumption of approval for a further visa extension.  I must admit some difficulty in understanding precisely what is being put there.  The course failures were in respect of subjects in 2011. 

16. The finding by the Tribunal that the applicant would have been aware he was not passing and could have approached a course co-ordinator and sought deferral or transfer from his studies in those circumstances, seems unexceptional, but, of course, it was always subject to anything the applicant had to put – or did put in relation to his inability to do that.  Once again I think we are drifting into circumstances where, in truth, the Court is being asked to revisit a factual matter.

17. In this case, the Court has been asked to revisit a relatively factual matter that is ancillary to the Tribunal’s principal findings, and to take a different view of the admittedly limited material that was before the Tribunal in relation to this topic.  I am not satisfied that that ground advances any argument that I am prepared to accept in relation to those circumstances constitutes a jurisdictional error. 

18. None of the grounds advanced having been made out, the application will be dismissed.

19. It seems to me costs should follow the event.  There will be an order that the applicant pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of SIX THOUSAND FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6471.00).

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Lindsay.

Associate: 

Date:  27 November 2013