Li v Minister for Immigration
[2006] FMCA 1565
•5 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1565 |
| MIGRATION – Cancellation of Student (Subclass 573) (Higher Education Sector) visa– failure to comply with condition 8202 of the Migration Regulations 1994 (Cth) – cancellation pursuant to s.116 of the Migration Act 1958 (Cth) – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116, 359, 476 Migration Regulations 1994 (Cth), reg.2.43, condition 8202 |
| Minister for Immigration v Ahmed [2005] FCAFC 58 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Wu v Minister for Immigration (1994) 48 FCR 294 Yilmaz v Minister for Immigration [2000] FCA 906; 100 FCR 495 Zubair v Minister for Immigration [2004] FCAFC 248 |
| Applicant: | HAO XING LI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG1133 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Cantonese interpreter |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Ms A Nesbitt of Sparke Helmore Lawyers |
ORDERS
The application filed on 18 April 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1133 of 2006
| HAO XING LI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 18 April 2006 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 7 April 2006, affirming a decision of the delegate of the first respondent made on 18 October 2005, cancelling the applicant’s a Student (Subclass 573) (Higher Education Sector) visa pursuant to s.116(1) of the Act.The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Background
The Tribunal decision of Michael Northcott, reference N05/05547, provides the following background material. The applicant, who is a national of the People’s Republic of China (“the PRC”), was granted a Student (Subclass 573) (Higher Education Sector) visa on 27 February 2004. On 18 October 2006, the delegate proceeded to cancel the applicant’s visa on the basis that he had failed to achieve academic results which were at least satisfactory in semesters 1 and 2 of 2004 and semester 1 of 2005. The applicant applied to the Tribunal for review of that decision on 20 October 2005.(Court Book (“CB”) 42)
Had the applicant’s student visa not been cancelled it would have been valid for stay in Australia until 27 January 2006. The visa was subject to a number of conditions as stipulated in the Migration Regulations 1994 (Cth) (“the Regulations”), including condition 8202.
The applicant departed Australia while on this visa on 23 January 2005 and returned on 20 February 2005. On 16 August 2005, the applicant’s course provider, Macquarie University, issued a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) relating to his academic performance. The notice said that if he failed to attend the Department within 28 days of it, his visa would automatically be cancelled.(CB 44) The notice stated the particulars of the applicant’s breach:
8202(3)(b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory.
Particulars of the breach – failure to achieve satisfactory academic results. (CB 44)
On 12 September 2005, the applicant attended the Department, where a Departmenta l officer issued him a Notice of Intention To Consider Cancellation (NOITCC):
Macquarie University (Macquarie) has determined that in the semester running from 01/03/2004 to 30/06/2005, your academic results were not satisfactory. This is because you failed 8 subjects out of 10 subjects you were enrolled in. As a result, you have failed to comply with condition 8202(3)(b) of your student visa. (CB 4-5)
The applicant was invited to respond to the NOITCC at a Department interview at 9.30am on 18 October 2005. The applicant attended the interview and responded to the NOITCC.(CB 45) On that date the delegate decided to cancel the applicant’s Subclass 573 visa.
The delegate recorded that the applicant stated:
…accounting was very hard as a subject for him. At the beginning of A/N’s degree he really worked hard and passed two subjects but for the second semester A/N could not concentrate as his girlfriend was visiting him and the subjects were very hard for him.
Applicant’s claim
On 9 January 2006, the applicant’s agent Pac-Rim International Group Pty Ltd wrote to the Tribunal setting out the following claims:
a)The applicant was significantly and adversely impacted by his ex-girlfriend’s decision to discontinue study in Australia and return to China. This affected him emotionally and physically;
b)The applicant was unable to work and was likely to suffer financial hardship as his parents would withdraw financial support if informed of the visa cancellation; and
c)The Minister’s delegate failed to consider the applicant’s other academic achievements, including the completion of the Foundation program at the University of Sydney and attaining a Certificate and Diploma of Commerce at the Sydney Institute of Business and Technology, Macquarie University.(CB 22-23)
A convenient summary of the Tribunal’s findings are contained in the written submissions prepared by Ms Wong, counsel for the respondents. I rely on paragraphs 13 to 16 of those submissions:
13. The MRT commenced its reasons for decision by stating the background to the proceedings: CB 42. The MRT then stated the legal principles applicable to determining the Applicant’ s claims, and summarised the evidence submitted by the Applicant in support of his application: CB 42-46.
14. The MRT found that the Applicant had not complied with condition 8202 attached to his visa as Macquarie University had certified that the Applicant had not achieved satisfactory academic results in three semesters since the granting of his visa on 27 February 2004: CB 46. As a result, the MRT determined that a ground for cancellation of the Applicant’s visa pursuant to s.116(1)(b) of the Act had been made out: CB 46.
15. The MRT held that no exceptional circumstances beyond the Applicant’s control existed to explain the non-compliance with condition 8202, and further held that (CB 47-48):
(a) the Applicant’s enrolment in an Information Technology course at Pacific College of Technology was irrelevant to the question of non-compliance due to exceptional circumstances;
(b) the adverse effects upon the Applicant by the departure of his ex-girlfriend were usual circumstances in his life and dealing with them were not beyond his control;
(c) the Applicant did not suffer any medical illness or have any family or financial problems dining the three semesters in which he did not achieve satisfactory results; and
(d) it was within the Applicant’s power to improve his results and it was no argument “that Macquarie University did not tell him what results he had to do to achieve in order to achieve at least satisfactory results”.
16.As the Applicant had breached condition 8202 and that breach was not due to exceptional circumstances beyond his control, the MRT found that his visa should be cancelled pursuant to subsection 116(3) of the Act and paragraph 2.43(2)(b)(ii) of the Regulations: CB 48. The MRT affirmed the decision of the Minister’s delegate to cancel the Applicant’s Subclass 573 (Higher Education Sector) visa: CB 48.
On 18 April 2006, the applicant filed an application for review under s.39B of the Judiciary Act. On 27 June 2006, the applicant filed an amended application, which contained the following ground of review:
1. The Tribunal commit a jurisdictional error in that it failed to comply with Subparagraph 2.43(2)(b)(ii) of the Migration Act 1958:
(a) before exercising mandatory cancellation under section 116 of the Migration Act 1958 (the Act), the Minister must be satisfied that the student visa holder has not complied with condition 8202, and that the non-compliance is not due to circumstances beyond the student visa holder’s control.
Particulars
(a) The applicant used to cohabit with his girlfriend, Ms Xin Lin who was also an international student in Australia. The applicant had developed a very serious relationship with his then girlfriend. The applicant had no other family or close friends in Australia and greatly relied on her emotionally and received all supports that she might give to him. Later she decided to depart from Australia back to her home country, which produced an very strong adverse impact on the applicant’s life and studies, causing the applicant suffer from Stress and Anxiety clinically.
(b) The applicant comes from a totally different cultural and educational background from Australia’s, which practically impinged on his academic performance. When the applicant’s results in his University were less satisfactory, the applicant did not ever seek any help from any counselor form his University, since he was not encouraged to do so in the past. The applicant did not ever receive any help from his educational provider at the time when the applicant encountered difficulties with his studies in the University.
(c) The applicant non-compliance of his visa condition 8202 is due to circumstances beyond the applicant’s control.
The above errors of the Tribunal affected its exercise of power amounting to jurisdictional errors. (copied without alteration or correction)
Submissions
The applicant appeared as a self-represented litigant with the assistance of a Cantonese interpreter. He confirmed that he would rely upon his amended application. He had not prepared any written submissions in accordance with the consent orders signed on 9 May 2006. When the applicant was invited to address the Court with any oral submissions in support of his application, he provided a summary of all the proceedings to date before the delegate and the Tribunal. The applicant also explained his personal circumstances, which he claimed led to the cancellation of his student visa. This included an admission that the University course he was enrolled in was, in effect, beyond his ability and educational background. Although he had initially been successful in two subjects, the change in his personal circumstances and the increasing difficulty of the subjects made him unable to continue to satisfy University requirements.
The applicant also recounted parts of the conversation with the delegate at the meeting of 12 September 2005. Ms Wong correctly submits that this may have been a complaint in respect of way the delegate dealt with the applicant. I shall return to this issue.
Ms Wong, in her written submissions, submits that the applicant’s claim was that the Tribunal committed a jurisdictional error by failing to comply with reg.2.43(2)(b)(ii) of the Regulations. It failed to decide that the applicant’s non-compliance with condition 8202 was due to circumstances beyond his control. In the amended application, the applicant states that he had “developed a very serious relationship with his then girlfriend” and “greatly relied on her emotionally and received all supports that she might give to him”. The applicant further states that when his girlfriend decided to depart from Australia, it “produced a very strong adverse impact on the applicant’s life and studies, causing the applicant suffer from Stress and Anxiety clinically”. The amended application further states that the applicant “comes from a totally different culture and education background from Australia’s, which practically impinged on his academic performance”, and that the applicant “did not ever receive any help from his education provider at the time when the applicant encountered difficulties”.
Ms Wong submits that the applicant did not make any claim before the Tribunal of suffering from a medical condition. Nor did he submit any medical evidence to the Tribunal to substantiate any claims of suffering from clinical levels of stress or anxiety. The applicant also did not claim to have suffered difficulties due to cultural and educational differences between China and Australia at his Tribunal hearing or at any other time prior to the hearing in this Court. Ms Wong submits that the Tribunal did consider all the claims made by the applicant regarding alleged exceptional circumstances beyond his control.
It determined that none of those alleged circumstances satisfied the requirements in reg.2.43(2)(b)(ii)(B) of the Regulations.(CB 47) It is submitted that the Tribunal correctly applied the legal tests and its findings were reasonably open to it on the evidence submitted by the applicant.
Ms Wong submits that the amended application amounts to a request for merits review of the Tribunal decision to affirm the cancellation of the applicant’s visa. Such review is not within the jurisdiction of this Court and all requests to adduce fresh evidence relevant only to the merits of the Tribunal’s decision should be refused: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259. It is submitted that the Tribunal decision demonstrates that the Tribunal complied with procedural requirements as stated in Part 5, Division 5 of the Act.
It gave the applicant numerous opportunities to submit evidence in support of his application. The Tribunal carefully considered the evidence presented by the applicant and no jurisdictional error can be found in the manner in which it approached its statutory obligations.
Ms Wong submits that she reviewed the Tribunal’s procedures to determine whether it had complied with its obligations under s.359A of the Act. Ms Wong submits, and I accept her submission, that the Tribunal did comply with its obligations under that provision. Information of the exceptional circumstances was supplied by the applicant through his agent through correspondence or at the Tribunal hearing of 16 March 2006.
I now return to the comments made by the applicant in respect of the conversation with the delegate at the Department meeting on
12 September 2005.
Although the applicant did not formulate a complaint against the delegate, this may be due to difficulty as a self-represented litigant. With the benefit of legal assistance these comments may have been presented as a complaint against the conduct of the delegate. However, it is not immediately apparent what the nature of the complaint might be. Even if there were jurisdictional error affecting the decision of the delegate, it was cured by the decision of the Tribunal: Wu v Minister for Immigration (1994) 48 FCR 294 at [298] – [299] per Wilcox J.
That a Tribunal decision cures a delegate’s decision was approved by the Full Federal Court in Yilmaz v Minister for Immigration [2000] FCA 96; 100 FCR 495 at [92] per Spender, Marshall and Gyles JJ:
The decision in Alvaro (supra) makes it clear that sections such as s415, which permit the review body to exercise all the powers and discretions that are conferred by the Act on the original decision-maker, and which provides for it to make its own decision on the merits, will cure many defects which may have rendered the original decision invalid. Once the jurisdiction of the review body (here, the RRT) is enlivened, the decision it makes supersedes the original decision, and the invalidity of the original decision is irrelevant. As Alvaro illustrates, the section permits discretions and powers to be exercised by the RRT which were never even considered by the original decision-maker. See, in a comparable setting; McDougall v Warringah Shire Council (1993) 30 NSWLR 258.
There is clear authority that administrative tribunals have the power to review and consider legally invalid as well as valid decisions of the Minister’s delegate: Zubair v Minister for Immigration [2004] FCAFC 248; Minister for Immigration v Ahmed [2005] FCAFC 58. Consequently, an allegation that the delegate in his decision-making process committed jurisdictional error does not assist the applicant before this Court, as any alleged error has been cured by the subsequent decision of the Tribunal.
Conclusion
The applicant in these proceedings is a self-represented litigant whose summary to the Court does not identify errors made by the Tribunal, let alone any jurisdictional error. The applicant relied entirely on his amended application filed on 27 June 2006. The particulars contained in the amended application invite this Court to examine the merits of the Tribunal decision, an exercise that this Court is not permitted to perform. To undertake my obligations to the self-represented litigant, I have reviewed the Tribunal decision together with all the supporting material provided in the Court Book. I am unable to identify any jurisdictional error. I accept the submissions of Ms Wong and agree that the matter should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 30 November 2006
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