Lin v Minister for Immigration

[2013] FCCA 2212

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2212

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.137L, 359, 359A

Migration Regulations 1994 (Cth)

Applicant: WUGEN LIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1928 of 2013

Judgment of: Judge Driver

Hearing date: 17 December 2013

Delivered at: Sydney

Delivered on: 17 December 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R Ray

Clayton Utz

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1928 of 2013

WUGEN LIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 19 July 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Lin) a temporary student visa. 

2. Mr Lin is a Chinese national who arrived in Australia in August 2007 on a student visa valid until March 2010. He was subsequently granted a further student visa. He applied to the Minister’s Department for the visa in issue on 20 May 2011. The Minister’s delegate refused that visa on 16 September 2011. That was on the basis that Mr Lin did not satisfy clause 572.235 of schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate found that Mr Lin had not complied substantially with the conditions on his previous student visa as a result of a gap in his studies.

3. Mr Lin sought review before the Tribunal.  He was invited to appear at a hearing and did so on 18 July 2013.  Mr Lin was assisted by a migration agent who did not attend the hearing.  At the hearing the Tribunal discussed with Mr Lin his student history in Australia and his past compliance with visa conditions, his current enrolment status and his future plans.  Mr Lin submitted a course description for the diploma of accounting at Australis Institute of Technology and Education and stated that he intended to study in that course if he was granted a further student visa. 

4. Prior to the Tribunal hearing in a letter dated 9 May 2013, the Tribunal wrote to Mr Lin pursuant to ss.359A and 359(2) of the Migration Act 1958 (Cth) (Migration Act) inviting him to provide comments on, or respond in writing to, certain information. The letter provided particulars of information about Mr Lin’s current enrolment status and his study and visa history in Australia from the records of the Minister’s Department and a system known as the Provider Registration and International Student Management System (PRISMS). That is a database maintained by the then Department of Education, Employment and Workplace Relations. The letter also invited Mr Lin to provide certain information relevant to the review. Mr Lin’s agent responded on his behalf and sought to explain gaps in Mr Lin’s studies.

5. In its decision the Tribunal found that Mr Lin had not complied substantially with the conditions on his last substantive visa.  That led the Tribunal to affirm the decision under review.  The Tribunal’s finding was made on the basis that Mr Lin did not comply substantially with condition 8202(2)A on his prior student visa requiring him to maintain enrolment in a registered course.  The Tribunal reproduces the text of condition 8202 at [11] of its reasons[1]:

   (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…

   [1] Court Book, page 62

6. The Tribunal found that Mr Lin was not enrolled in a registered course between at least 29 April 2010 and 18 July 2011.  This was a period of over a year.  His student visa was in effect until 22 May 2011.  The Tribunal considered at [17][2] of its reasons and following the issue of whether Mr Lin has complied substantially with the visa condition.  The Tribunal referred to relevant authorities and considered in that context the explanations advanced by Mr Lin for the gap in his enrolment.

   [2] Court Book, page 63

7. Mr Lin referred to problems he encountered at Lamart College which went into liquidation and closed following his enrolment there.  The Tribunal accepted the fact but discounted the explanation on the basis that that enrolment post-dated the relevant period.  At the hearing Mr Lin had referred to financial difficulties encountered by his family.  The Tribunal accepted that Mr Lin could not afford to pay tuition fees over the relevant period.  The Tribunal accepted on the basis of that explanation that Mr Lin did not deliberately flout the visa condition.  Nevertheless, the Tribunal concluded that Mr Lin had not complied substantially with the visa condition. 

8. These proceedings began with a show cause application filed on 19 August 2013.  Mr Lin continues to rely upon that application.  There are two grounds of review advanced in the application:

   1. The Tribunal failed to offer the applicant an opportunity to provide a COE after the hearing.  During the hearing the applicant indicated that he planned to enrol in a registered course and he could provide a COE after the hearing.  The Tribunal failed to offer him the opportunity to provide such document.

   2.The Tribunal failed to take into consideration that the applicant’s breach of student visa condition was due to exceptional circumstance beyond his control.  The applicant was previously enrolled in a registered course but was forced to withdraw from the course due to the closure of the education-provider.  The closure of the college had significantly disturbed the applicant’s study plan.  The applicant non-enrolment was also due to his parents’ financial hardship.

9. With that application, Mr Lin filed an affidavit, which I accepted as a submission. 

10. I have before me as evidence the court book filed on 24 September 2013. 

11. Mr Lin asserts that the Tribunal failed to give him the opportunity to provide evidence of future enrolment intentions.  It appears from the Tribunal decision that the Tribunal was willing to accept that Mr Lin had future enrolment plans, but those future plans did not bear on the issue of whether Mr Lin had in the past substantially complied with the condition on his visa. 

12. Mr Lin also asserts that the Tribunal had failed to take into consideration the problems he had encountered with Lamart College.  The Tribunal did take that consideration into account but discounted it on the basis that those problems post-dated the relevant period. 

13. Mr Lin further asserts that the Tribunal did not take into consideration the fact that his breach of the condition was due to exceptional circumstances beyond his control, namely his family’s financial hardship.  In my view, the notion of exceptional circumstances beyond the control of the visa holder does not have the relevance in relation to refusals of a visa that has in relation to certain visa cancellations[3].

    [3] See s.137L of the Migration Act

14. In any event, the Tribunal did take into account the financial circumstances of Mr Lin and his family.  While those circumstances satisfied the Tribunal that the breach of the visa condition was not a deliberate flouting of it, it did not overcome Mr Lin’s difficulty that there had been substantial non-compliance with the visa condition. 

15. I conclude that Mr Lin has been unable to advance any arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

16. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale.  When I informed Mr Lin of that he indicated he understood but made no submissions bearing on the issue of costs.

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 19 December 2013