Liew v Minister for Immigration

Case •

[2015] FCCA 1934

•

17 July 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIEW & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1934
Catchwords:
MIGRATION – Application for review of the decision of the Migration Review Tribunal – satisfaction of visa criterion – failure to substantially comply with conditions of last substantive visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 359AA

Migration Regulations 1994 (Cth), Schedule 2
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Applicant: MEI AI LIEW
Second Applicant: CHING TUNG SOPHIA CHONG
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1010 of 2014
Judgment of: Judge Nicholls
Hearing date: 23 June 2015
Date of Last Submission: 23 June 2015
Delivered at: Sydney
Delivered on: 17 July 2015

REPRESENTATION

Counsel for the Applicants: Mr L Karp
Solicitors for the Applicants: Christopher Levingston & Associates, Lawyers
Solicitors for the Respondents: Ms A Carr of DLA Piper Australia

ORDERS

  1. The name of the second respondent be changed to “Administrative Appeals Tribunal”.

  2. The application made on 11 April 2014 and amended on 23 June 2015 is dismissed.

  3. The applicants pay the first respondent’s costs set in the amount of $4,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1010 of 2014

MEI AI LIEW

First Applicant

CHING TUNG SOPHIA CHONG

First Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 April 2014 and amended on 23 June 2015 seeking review of the decision of the then Migration Review Tribunal (“the Tribunal”) which affirmed the decision of the Minister’s delegate to refuse Student (Temporary) (Class TU) visas (“the visa”) to Ms Mei Ai Liew (“the applicant”) and Ms Ching Tung Sophia Chong (“the second applicant”).

Background

  1. Before the Court in evidence is the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

  2. The applicant is a citizen of Malaysia, who arrived in Australia in 2005 and has remained in Australia as the holder of a series of student visas (CB 1). Relevant to the current matter, she applied for a further student visa on 6 July 2011 (CB 1 to CB 7). Included with the application were details of Certificates of Enrolments (“CoEs”). The second applicant, her daughter, was included as a member of the applicant’s family unit. A criterion for the grant of the visa was that the applicant had complied substantially with the conditions attaching to the last substantive visa she had held (see below at [12]).

  3. Also accompanying the application was a letter from the “Australian College of Vocational Studies” dated 27 July 2011 (CB 9). Relevantly, the letter stated:

    “The above mentioned student was originally enrolled as a full time student with our college studying Advanced Diploma of Tourism SIT60107, which commenced 18.05.2009 and due to complete 17.05.2011.

    At this time the student had recently given birth and found that the baby needed constant attention which caused her to miss some classes leaving, us with the unfortunate task of cancelling her enrolment.”

  4. In a letter dated 26 August 2011, the Minister’s department requested an explanation from the applicant as to her non-attendance at college between 17 July 2010 and August 2011 (CB 15 to CB 16).

  5. The applicant responded on 1 and 8 September 2011 with the following (CB 17 and CB 18) (her emails were recorded in the department’s files as “Event Notes”):

    1)1 September 2011 (CB 17):

    “Dear Silvia

    I have attached the required documents to my online application. During the period of 17/07/2010- 21/07/2011, I was heavily pregnant and later busy looking after my new born daughter. I have attached a letter from my school and the birth certificate of my second daughter as evidence. Thank you.

    Kind Regards

    Liew”

    2)8 September 2011 (CB 19):

    “Dear Silvia

    Thank you for asking for an explanation about why I was not studying from July 2010.

    I could not study because I was pregnant, I gave birth to my daughter on the 11th of February 2011. My daughter’s name is Belinda Ching Ning Chong.

    After she was born I was still not able to study because my body had to get back to good health and my daughter needed me to look after her. Now I can study, because I am in good health and my daughter does not need me to be with her all the time.

    I have attached my daughter’s birth certificate, a letter from my college (ACVS) which confirms what I have said and show that I can keep studying there, my health insurance and my COE for Oxford College.

    I hope you understand why I did not study for that period. I am genuine as a student and I would have studied during that period but my pregnancy and my daughter’s birth did not make that possible.

    Thank you for your consideration.

    Liew Mei Ai.”

  6. The delegate refused her application on 28 September 2011 (CB 23 to CB 30). The delegate found that the applicant had not complied with cl.572.235 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), as at the relevant time. That is, she had not complied substantially with the conditions of her last substantive visa.

  7. The applicant applied for review of the delegate’s decision on 28 September 2011 (CB 32 to CB 41). She was assisted by a registered migration agent (CB 35).

  8. The applicant attended a hearing before the Tribunal on 18 July 2013. The applicant’s representative submitted a number of further documents to the Tribunal (CB 62 to CB 71). A differently constituted Tribunal affirmed the delegate’s decision on 22 July 2013 (CB 81 to CB 87). The applicant applied for review to the Court and the matter was remitted by consent on 4 October 2013 (see SYG 1815/2013).

“Current” Tribunal

  1. The applicant and her representative attended a hearing before the reconstituted Tribunal (“the Tribunal”) on 15 January 2014 and 3 February 2014 (CB 126 to CB 128). At this time the applicant was enrolled in an Associated Degree of Business at the Department of Training and Workforce Development ([8] at CB 136).

  2. The Tribunal affirmed the delegate’s decision on 20 March 2014 (CB 135 to CB 141). It identified the central issue to be whether the applicant had substantially complied with her last substantive visa, which was a subclass 572 visa granted on 15 February 2010 ([8] at CB 136 to [9] at CB 137).

  3. The Tribunal put to the applicant that her last substantive visa was subject to, relevantly, conditions 8516 and 8202 of the Regulations. In particular, the Tribunal focused on condition 8202(2), which related to the requirement that the applicant be enrolled in a registered course ([9] at CB 136 to CB 137).

  4. The Tribunal noted that whether the applicant had complied substantially with a visa condition was a “question of fact to be determined having regard to the particular circumstances of the case” ([10] at CB 137). Further, that while various authorities gave examples of the circumstances, there was no “rigid test” ([11] at CB 137).

  5. The Tribunal recorded that at the hearing it put to the applicant, pursuant to s.359AA of the Act, that she had not been enrolled for the whole period of her last held substantive visa, with reference to information available on “PRISMS (Provider Registration and International Student Management System)” ([13] at CB 137). It put to the applicant that the records indicated that she was not enrolled from 17 July 2010 to 24 January 2011 (about six months), and from 19 February 2011 to 5 July 2011 (more than four months) ([13] at CB 137):

    “As the tribunal put to the applicant at hearing in accordance with s.359AA, her last held Subclass 572 visa was granted on 15 February 2010, ceased on 17 July 2011 and was subject to condition 8202. This condition required the applicant to be enrolled in a registered course and the available PRISMS (Provider Registration and International Student Management System) records indicate that she was not enrolled for the whole of the period for which she held the visa. The applicant was enrolled in an Advanced Diploma of Tourism at the Australian College of Vocational Studies which commenced on 18 May 2009 and was due to finish on 17 May 2011. However, the PRISMS records indicate that this enrolment was cancelled by the College on 17 July 2010 for disciplinary reasons. These records indicate that she was not enrolled for the period from 17 July 2010 until she re-enrolled to undertake this course on 24 January 2011 (a period of almost 6 months). This enrolment was cancelled for non-commencement of studies on 19 February 2011. The records indicate that the applicant was not enrolled from this date until 5 July 2011, when she enrolled in a Diploma of Information Technology (Systems Administration) (a period of more than 4 months).”

  6. The Tribunal was satisfied from these records that the applicant was not enrolled for more than ten months out of a total period of seventeen months, and that this was a “significant breach” of condition 8202(2) of the Regulations ([14] at CB 137 to CB 138).

  7. The Tribunal considered the applicant’s reasons for the breach. However, it noted that it put to the applicant that it had concerns about her credibility “due to inconsistencies in her evidence” ([15] at CB 138). The Tribunal found that she gave inconsistent evidence as to “when and why she stopped attending classes… from 17 July 2010” and did not give an explanation as to why she did not maintain her January 2011 enrolment ([16] at CB 138).

  8. The Tribunal considered that the applicant had provided a different account of when she had stopped attending classes to the account proffered to the differently constituted Tribunal. Further, that the reasons that she gave to the Tribunal as to why she stopped attending classes were “different from the reason set out in the letter from her education provider” that was before the Tribunal with her application ([18] at CB 138 to [19] at CB 139).

  9. The Tribunal did not accept that her failure to be enrolled was due to her pregnancy or associated conditions ([22] at CB 139). It was not satisfied that “anything prevented [her] from being enrolled in a registered course, as opposed to attending classes, from July 2010, particularly as she was able to re-enrol on 23 January 2011” ([22] at CB 139).

  10. The Tribunal “considered the applicant’s statement that she [did not] breach the conditions of her visa on purpose”, but noted that she “did not seek advice from the Minister’s department during this period nor did she seek a deferment of her enrolment from her education provider” ([24] at CB 139). The Tribunal was not satisfied that the applicant’s pregnancy or subsequent care of her infant “prevented the applicant from doing so” ([24] at CB 139).

  11. The Tribunal found that the applicant’s breach of condition 8202 was “significant” and, therefore, that the applicant had not substantially complied with all the conditions of her last substantive visa ([25] at CB 139). Therefore she did not meet cl.572.235 of Schedule 2 to the Regulations for the grant of the visa.

Application Before the Court

  1. The sole ground of the amended application is as follows:

    “1. The Tribunal failed to lawfully exercise its jurisdiction by failing to consider documents corroborative of the applicant’s evidence at hearing that she stopped attending her classes in mid 2011 because of the effects of her pregnancy.

    Particulars

    (a) ‘Event Notes’ dated 1 September 2011 and 8 September 2011, at Court Book pages 17 and 18 respectively.”

Consideration

  1. In short, the applicant contends that the Tribunal’s decision does not reveal that it considered the “Event Note” (emails) containing information provided by the applicant in explanation of her


    non-compliance with the conditions of her last substantive visa at the relevant times. These letters, sent by email as stated above, were provided to the department in response to a letter dated 26 August 2011 asking for such an explanation.

  2. The Minister submitted that although the emails are not expressly referred to in the Tribunal decision record, on a fair reading, it can be seen that the Tribunal did consider the entirety of the applicant’s “explanation”, as contained in those letters.

  3. The context relevant to the consideration of the applicant’s ground is as follows. The applicant had applied for a student visa. A criterion for the grant of the visa was that the applicant had complied substantially with the conditions attaching to her previous substantive visa. This also was a student visa.

  4. The Tribunal identified as relevant to the disposition of the review, condition 8202(2) of the Regulations which attached to her previous substantive visa. This related to the requirement that the visa holder be enrolled in a “registered” education course for the period of the visa.

  5. The Tribunal understood that whether the applicant had substantially complied with this condition was a question of fact to be determined by having regard to the particular circumstances of the case. The Tribunal cited relevant authority in this regard ([10] at CB 137 - Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 (at 271) and Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436).

  6. The particular circumstances were that the applicant had enrolled in an Advanced Diploma of Tourism which commenced on 18 May 2009. The enrolment was cancelled on 17 July 2010. The applicant enrolled again on 24 January 2011. There was a gap between the two periods of enrolment of about six months.

  7. The applicant gave evidence before the Tribunal. There is no transcript of the Tribunal hearing in evidence before the Court. On the Tribunal’s account, which is in evidence before the Court, the applicant’s explanation for this “gap” was that she fell pregnant in May 2010 and ceased attending classes ([17] at CB 138).

  8. The applicant again enrolled in an Advanced Diploma of Tourism which commenced on 24 January 2011. This was also cancelled, on 19 February 2011, for “Non-commencement of studies” (see CB 51). The Tribunal found that her next enrolment was not until 5 July 2011 (in a diploma of Information Technology (Systems Administration)). The “gap” here was more than four months ([13] at CB 137). The reason the applicant gave for her non-attendance was that she was pregnant with her (second) child.

  9. In relation to this “gap” the Tribunal found that the applicant had given inconsistent evidence to it compared with the evidence given to the previously constituted Tribunal, and with what was stated in a letter from the relevant college, dated 27 July 2011, and which she had submitted to the department with her visa application.

  10. A copy of that letter is reproduced in the Court Book (CB 9). The reason advanced in the letter for the cancellation of the applicant’s enrolment (on 17 July 2010 – see CB 51) was that she had recently given birth which caused her to miss classes because the baby needed constant attention.

  11. The Tribunal found that this was inconsistent with the applicant’s evidence at the hearing before it. Further, that this evidence was inconsistent with evidence she had given to the previously constituted Tribunal. In short, that evidence was that she had fallen pregnant for a second time, and this was the reason for the cancellation. It is of note that the Tribunal found a number of inconsistencies in the applicant’s own evidence as to relevant dates (see [17] – [18] at CB 138).

  12. The Tribunal found that the applicant was “not a witness of truth” and it did not accept that she had “…been truthful in her evidence” ([22] at CB 139). Importantly, given the applicant’s ground, this finding of untruthfulness was particularly focussed on her evidence as to why she was “unable to [be] enrolled in a registered course for 2 significant periods of time totalling more than 10 months out of the total period of about 17 months that she was the holder of” (emphasis added) the last substantive visa ([22] at CB 139).

  13. In relation to the first gap, the Tribunal reasoned that she had not sought to defer her enrolment and it found that it was not satisfied that the applicant’s pregnancy resulted in her inability to be enrolled in the “first gap” period (July 2010 to January 2011) ([17] at CB 138, [22] and [24] at CB 139).

  14. In relation to the second period, the Tribunal accepted that the applicant’s ability to attend classes at that time was affected by the birth of her child. However, it found that this did not prevent her from being enrolled up to July 2011 (see [23] at CB 139).

  15. Before the Court a point of dispute arose between the parties concerning what the Tribunal was said to have relevantly found, as arising from the circumstances outlined above. The applicant’s position appeared to be that the Tribunal found that it was not satisfied that anything prevented the applicant from being enrolled or attending classes for the total period of the ten month gap (see for example, the applicant’s written submissions at [18]). The applicant made no distinction between attendance and enrolment.

  16. In this regard, the applicant directed attention to [22] of the Tribunal’s decision record (at CB 139):

    “In the tribunal’s view, the applicant is not a witness of truth and does not accept that she had been truthful in her evidence as to why she was unable to [be] enrolled in a registered course for 2 significant periods of time totalling more than 10 months out of the total period of about 17 months that she the holder of the Subclass 572 visa. It does not accept that her failure to be enrolled in a registered course from July 2010 was due to her pregnancy or associated conditions. The tribunal is not satisfied that anything prevented the applicant from being enrolled in a registered course, as opposed to attending classes, from July 2010, particularly as she was able to re-enrol on 23 January 2011.

  17. It is by now trite to say that Tribunal decisions must be read fairly, including, holistically (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). I agree with the Minister that the Tribunal’s reasoning (at [22] at CB 139) was directed to making a distinction between the applicant’s ability to be enrolled in a course and the different ability to attend classes. In short, the relevant finding was that her pregnancy did not prevent her from being enrolled. In context, the applicant could have been enrolled without necessarily attending classes in the period of the gap. The Tribunal made no finding as to attendance. This, in my view, is made clear with the words, “…enrolled in a registered course, as opposed to attending classes…”, as they appear at [22] (CB 139).

  18. The thrust of the applicant’s ground is that the Tribunal failed to consider two emails dated 1 and 8 September 2011, respectively, which were said to be corroborative of the applicant’s evidence at the hearing that she stopped attending classes in mid-2010 because of the effects of her pregnancy.

  19. The documents are reproduced at CB 17 and CB 18. They are described as “Event Notes” and are records of emails received from the applicant. They are reproduced at [6] above.

  20. The applicant submitted that these “notes” were made in response to a request from the Minister’s department, dated 26 August 2011, for her to explain her non-attendance at classes for the period July 2010 to August 2011 (CB 15 to CB 16).

  21. The applicant’s argument was that the information which the applicant gave, as at September 2011, predated any suggestion of any inconsistency between the letter from the College on 27 July 2011, and the explanation the applicant gave as to why she was not studying. The importance and significance of this was said to include the timing of the provision of that information and the corroborative nature, at an earlier time, of the applicant’s evidence at the hearing, which the Tribunal found was inconsistent.

  1. There is no dispute that the Tribunal did not make any specific reference to these documents in its decision. The applicant says, in the circumstances, the Tribunal failed to have regard to cogent evidence that it was required to consider and this revealed jurisdictional error.

  2. The applicant relied on Minister for Immigration and Citizenship v  SZRKT [2013] FCA 317 (“SZRKT”) at [111] – [112] for this proposition:

    “[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

    [112] As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.”

  3. There can be no doubt that the Tribunal may fall into error if it overlooks a cogent, corroborative, document, which is central to the applicant’s case (see also, generally, Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”) further to SZRKT).

  4. In his submissions, the Minister argued that the emails were not evidence corroborative of the applicant’s claims as they were simply the applicant’s statements given in explanation, as at September 2011, for her non-attendance at her course.

  5. The applicant’s argument before the Court emphasised the corroborative nature of these emails, in particular, in the temporal context in which they appear. That is, as at March 2014, the Tribunal found inconsistencies in the applicant’s evidence. However, it was argued that the emails of September 2011 provide corroborative evidence from that time, that were relevant to the Tribunal’s finding, and the Tribunal therefore should have considered the emails in that context.

  6. The difficulty for the applicant now is that she did not explain that relevance beyond the general reference to the adverse credibility finding. As was made clear in SZRKT it is not every piece of evidence that the Tribunal must deal with. Rather, it includes evidence that in the circumstances of each case has some relevance to the assessment of the applicant’s claims. As was also made clear in SZSRS (at [29]), “[t]he fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”

  7. In the circumstances of the current case it is clear that at the impugned part of the Tribunal’s analysis ([22] at CB 139), the Tribunal made clear that what it specifically did not accept as truthful in the applicant’s evidence, was “why she was unable to be enrolled in a registered course for 2 significant periods of time”.

  8. It is to be remembered that the issue for the Tribunal was whether the applicant had substantially complied with the conditions attaching to her previous substantive visa which required her to be enrolled in a registered course (see [9] at CB 136 to CB 138).

  9. At [22] (at CB 139) of its decision record the Tribunal, on any plain reading, was focussed on this question of enrolment. The emails were directed to a different question to that of enrolment That is, her


    non-attendance at classes. There is a distinction between the two concepts. The Tribunal made that plain when it found that ([24] at CB 139):

    “The tribunal is not satisfied that anything prevented the applicant from being enrolled in a registered course, as opposed to attending classes, from July 2010, particularly as she was able to re-enrol on 23 July 2011.”

    [Emphasis added.]

  10. This is emphasised in the following paragraph of its analysis ([23] at CB 139):

    “The tribunal accepted that the birth of the applicant’s second child in February 2011 affected her ability to attend classes at that time. However, it does not accept that it prevented her from being enrolled for the period until July 2011, particularly considering her re-enrolment on 23 January 2011.”

  11. In this light, I agree with the Minister’s submissions that, notwithstanding the absence of an express reference to the emails in the decision record, the applicant has not satisfactorily demonstrated that the emails had the characteristic described in SZRKT and SZSRS such that the Tribunal should not have “overlooked” them.

  12. The emails were not cogent or corroborative evidence of the central issue on which the Tribunal’s decision turned. That is, the question of enrolment. As the Minister submitted, the emails were no more than an expression of the applicant’s claims as at September 2011, which the Tribunal otherwise addressed in the events leading to its ultimate analysis of the applicant’s complaints as against the relevant criteria for the visa. The emails did not contain any information that was not otherwise appropriately addressed by the Tribunal.

Conclusion

  1. In all, the sole ground of the application does not reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 17 July 2015

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