Lin v Minister for Immigration
[2006] FMCA 1150
•11 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1150 |
| MIGRATION – Student visa – Judicial Review – Migration Review Tribunal – whether jurisdictional error – misinterpretation of Regulations 572.212 and 572.226 – wrong finding of fact – whether irrelevant consideration – meaning of ‘complied substantially’ – whether error of law. |
| Migration Regulations 1994, Sch 2, cl 572.212, 572,226, Sch 8, condition 8202(1) Education Services for Overseas Students Act 2000, s.20 Migration Act 1958, s.359A |
| Craig v South Australia (1999) 184 CLR 163 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | FENG LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 481 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 14 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Zindilis |
| Solicitors for the Applicant: | Zindilis Barristers & Solicitors |
| Counsel for the Respondents: | Mr E J C Heerey |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 481 of 2005
| FENG LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIFRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 6 April 2005. In its decision, the Tribunal affirmed a decision under review, finding that the Applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa (the student visa).
The Applicant is a 23-year-old male citizen of China who arrived in Australia on 6 August 2000 under a subclass 560 student visa. On 14 September 2000, the Department of the First Respondent granted the Applicant a further subclass 560 visa. On 22 November 2001, the Department granted the Applicant a subclass 572 student visa.
In 2002, the Applicant enrolled at Holmesglen Institute of TAFE (Holmesglen).
On 13 November 2002, the Applicant applied for a further subclass 572 student visa which was granted and expired on 30 July 2004. That visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Commonwealth) (the Regulations) which provides relevantly as follows:
“8202(1) The holder … must meet the requirements of subclauses (2) and (3).
(3) A holder meets the requirements of this subclause if:
(a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i) for a course that runs for less than a semester – for the course; or
(ii) for a course that runs for at least a semester – for each term and semester of the course; and
(b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i) for a course that runs for at least a semester – for the course; or
(ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.”
In 2003, the Applicant enrolled in 24 subjects in the course, "Certificate IV in Information Technology (Programming)" of which he failed 16 subjects (Court Book page 66). A statement of results dated 24 June 2004 reveals that the Applicant enrolled in eight subjects in 2004 in the course, "Diploma of Information Technology (Software Development)". According to that statement (Court Book page 67) the Applicant failed all of the eight subjects.
On 28 July 2004, the Applicant applied for a subclass 572 student visa and on that day he was granted a bridging visa. On 10 August 2004, Holmesglen sent the Applicant a notice (the s.20 notice) under s.20 of the Education Services for Overseas Students Act 2000 which stated in part that the Applicant had breached a condition of his student visa relating to satisfactory academic performance. Particulars of the breach were provided in the following terms:
“You made unsatisfactory academic progress during the past semester, passing less than 50% of modules undertaken. Your attendance during semester 1 2004 was 74%”.
The s.20 notice also states the following:
“You were counselled at the International Centre regarding non‑attendance. You were contacted regarding your Academic Progress. You did participate in the Academic Progress Review as invited. You should now make an appointment to meet with a DIMIA officer to discuss your situation so that they may make a decision regarding your visa.
Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter.”
It is noted that the relevant subclass 572 visa had in fact expired on 30 July 2004, approximately two weeks prior to the date of the notice.
On 25 August 2004, a delegate of the First Respondent made a decision to refuse to grant the further subclass 572 student visa sought by the Applicant in the application made on 28 July 2004. The decision was made by the delegate on the grounds that the Applicant did not fulfil regulation 572.212 which required that “the Applicant has complied substantially with the conditions to which the visa held, or last held, by the Applicant is, or was, subject.”
The criteria was assessed by the delegate against the Applicant's most recent visa, being the subclass 560 student visa subject to condition 8202, though it considered the Applicant's academic results for 2003-2004 and decided that the Applicant did not meet regulation 572.212. The Applicant sought review of the delegate's decision in an application made on 6 September 2004 to the Tribunal.
It is further noted from the First Respondent's chronology that on 19 January 2005, the Tribunal forwarded a letter to the Applicant pursuant to s.359A of the Migration Act 1958 (the Migration Act) which enclosed a statement of results from Holmesglen explaining the relevance of the information to the Tribunal's review on the basis that it may lead the Tribunal to find that the Applicant did not substantially comply with condition 8202. The letter invited the Applicant to provide certificates from Holmesglen showing the percentage of classes he attended and academic results from each term or semester of the course and reasons why he failed some of the subjects (Court Book pages 64-65).
The Applicant responded to the letter from the Tribunal by a letter from his then migration agents dated 28 February 2005 (Court Book pages 69-72). The letter enclosed a document from Holmesglen entitled "Student Enrolment Details" (Court Book pages 73-74), Statement of results from an institution named ACTH (Court Book page 75), medical records (Court Book pages 76-78) and letters from the Applicant's father (Court Book pages 79) and the Applicant (Court Book page 80). No further documentation was provided as to the academic results at Holmesglen during the period of the relevant visa.
A hearing was conducted on 22 March 2005 which the Applicant attended and he gave evidence with the assistance of an interpreter. As indicated, the Tribunal affirmed the delegate's decision that the Applicant was not entitled to the grant of the subclass 572 student visa.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
The Tribunal Decision
The Tribunal concluded that the Applicant did not meet the requirements for the grant of the visa for which he had applied. It made a significant finding as follows:
“19. Taking into account all of the evidence, including the review applicant’s illness, the Tribunal finds that his results of 8 passes out of 32 subjects is not sufficient to constitute substantial compliance with his visa requirements as required by condition 8202. In this context the Tribunal is mindful of the excellent results he achieved with ACTH, however this was not a course in which he had notified the Department for the purpose of changing his course. And consequently he does not meet the requirements of regulations 572.212 and 572.226. It follows that he is not entitled to the grant of a Student (Temporary) (Class TU) visa. It is unfortunate that the review applicant’s skills may be wasted, but these are matters that the review applicant and/or his Migration Agent can take up with the Department at some other time. They are not matters that have any direct bearing on the matter now before the Tribunal.”
Submissions and Reasoning
The Applicant submitted that the Tribunal had made a jurisdictional error in its decision by:
(a)misinterpreting Regulations 572.212 and 572.226 of schedule 2 of the Migration Regulations 1994;
(b)making an error in the finding of fact that the Applicant passed eight out of 32 subjects;
(c)failing to take into account relevant considerations.
Ground (a): Misinterpreting Regulations 572.212 and 572.226 of schedule 2 of the Migration Regulations 1994
The Applicant submitted that the Tribunal misinterpreted the relevant Regulations and specifically misinterpreted the word "substantially". Reference was made to the Regulations which relevantly provide as follows:
“572.212 The Applicant has complied substantially with the conditions to which the visa held, or last held, by the applicant is, and was, subject.”
“572.226 If the application was made in Australia, the applicant continues to satisfy the criterion in clause 572.212.”
It was submitted that "substantially" as defined in the Oxford Dictionary means to a great or significant extent or for the most part. It was submitted the Tribunal refused the Applicant's visa on the basis that he had not substantially complied with the visa requirement pursuant to regulation 572.212. It was submitted the Tribunal interpreted "substantially" as having to satisfy every part of condition 8202. It was argued this is inconsistent with the meaning offered by the Oxford Dictionary referred to earlier, requiring only a significant extent or for the most part of not wholly or for every part.
The Applicant submitted that he did satisfy all the parts of condition 8202 as required by regulation 572.212, or even if he did not, he complied with, for the most part, condition 8202 and therefore has complied "substantially" with the visa condition for the purpose of regulation 572.212. Reference was made to the Applicant being enrolled full-time in a registered course and maintaining satisfactory attendance at Holmesglen, suggesting the Applicant had complied with conditions (a), (b) and (c) of condition 8202. If the Tribunal had misinterpreted the word "substantial", then it was submitted the decision of the Tribunal was invalid and of no effect.
The First Respondent submitted that the issue before the Tribunal was whether the Applicant had "complied substantially" with the prior visa pursuant to the Regulations. It was noted in the Applicant's submission that the Tribunal had erred by interpreting "substantially" too strictly, as requiring the Applicant "to satisfy every part of condition 8202". It was submitted that that raises directly the merits of the Tribunal's decision of fact.
It was argued that whether on the facts the Applicant's results meant he had "substantially complied" with the visa conditions was a matter to be weighed and determined by the Tribunal and that it is beyond the jurisdiction of this court to reopen the merits of that determination on judicial review. Reference was made to the Tribunal's finding that during the relevant period of compliance, namely, the 2003 academic year and first half of 2004 the Applicant failed 16 of 24 subjects in 2003 and failed eight out of eight subjects in the first half of 2005. Accordingly, it was open to the Tribunal to make the factual finding that the Applicant had not "substantially complied" with the visa condition.
Further, it was argued that having issued a s.20 notice, it was unlikely that Holmesglen would certify the results of the Applicant as being satisfactory. The Tribunal, it was submitted, correctly followed the language of condition 8202(3)(b) which is expressed in terms of whether the education provider has certified the academic result as satisfactory rather than whether the Tribunal considers such results satisfactory.
In circumstances where Holmesglen had not provided any such certification but instead issued a s.20 notice, it was submitted that it was then open for the Tribunal to find that the Applicant had not complied with condition 8202(3)(b) and that the non‑compliance was properly to be regarded as substantial non‑compliance with the conditions of the visa. Any submissions by the Applicant that the Tribunal erred in misinterpretation of the words "substantially complied" in regulation 572.212, it was submitted by the First Respondent, is without merit and should be rejected.
Reference was made to the Applicant's criticism of the Tribunal's interpretation of regulation 572.226 which provides the criteria to be satisfied at the time of decision; namely “if the application was made in Australia, the Applicant continues to satisfy the criterion in clause 572.212.”
It was noted the Tribunal found simultaneously that the Applicant had not met the requirements of regulation 572.212 and 572.226. It was submitted that logically, a person who failed to satisfy regulation 572.226 at the time of application would be incapable of "continuing" to satisfy that criteria at the later time of decision. It follows therefore that there is no error in the Tribunal's interpretation of regulation 572.226.
Reasoning
In my view, the submissions by the First Respondent in relation to the Tribunal's interpretation of the relevant Regulations is correct. I see no error in the manner in which the Tribunal approached its task. I accept that the question before the Tribunal to determine is whether the Applicant had "complied substantially" with the prior visa. I do not accept that it misinterpreted the requirements of the regulation or imposed a test which could be regarded as too strict or narrow.
In determining whether the Applicant had substantially complied with the visa conditions, the Tribunal simply embarks upon a fact-finding process and has done so free of any error, and accordingly free of any jurisdictional error. It examined the relevant academic performance of the Applicant and reached a conclusion of fact reasonably open to it: that the Applicant had not "substantially complied" with the visa condition.
I accept that there is no material before the Tribunal which could in any way be interpreted as a certification by the education provider that the Applicant had performed satisfactorily and was otherwise not in breach of the visa condition.
I further accept the First Respondent's submission that an Applicant who failed to satisfy regulation 572.226 at the time of application would clearly be incapable of "continuing" to satisfy the criterion at the later time of decision. Accordingly, I accept there is no error in the Tribunal's interpretation of regulation 572.226.
Ground (b): making an error in the finding of fact that the Applicant passed eight out of 32 subjects
The Applicant submitted that the Tribunal made several erroneous fact‑findings. It was submitted that the Applicant does not seek merit review, but it was asserted that jurisdictional error may have occurred of a kind identified in Craig v South Australia (1999) 184 CLR 163. Specifically, an attack was made upon findings by the Tribunal that from 2003 to 2004 the Applicant took 32 subjects and failed eight of them and in 2004 the Applicant did not pass any of the nine subjects undertaken and that he did not do "well in English in his course at Holmesglen College".
It was argued that contrary to those findings, the Applicant took 42 subjects and passed 14 of them from 2003 to 2004, as evidenced by a results history from Holmesglen, and took 18 subjects in 2004 and passed six in 2004, as evidenced by his results history. Further, it was argued that the Applicant successfully completed his English course and received commendation from a teacher at Holmesglen, again as evidenced by a document referred to as a record of achievement from Holmesglen. It was argued that the Tribunal in its decision, where it made reference to a finding that the results of "eight passes out of 32 subjects is not sufficient to constitute substantial compliance with his visa requirements as required by condition 8202", was therefore in error.
The First Respondent submitted that the finding of fact was open to the Tribunal by reference to the two documents, each entitled "Holmesglen Statement of Results" (Court Book pages 66-67) which demonstrated in 2003 the Applicant enrolled in 24 subjects of which he failed 16 and in the first half of 2004 enrolled in eight subjects and failed all of them.
It was noted that the Applicant's contentions that those findings of fact are contradicted by the Applicant's "Results History from Holmesglen" was a reference to a document exhibited to an affidavit of the Applicant annexed to the contentions and sworn 12 May 2005. It was submitted that those documents were not included in the documents which the Applicant provided to the Tribunal and accordingly there was no basis for any argument that the Tribunal's decision on the facts could somehow now be found to be in error in construing those documents.
In any event, it was submitted that reference to the later documents would not have altered the outcome of the Applicant's case before the Tribunal. Counsel for the First Respondent then referred to the further documents sought to be relied upon by the Applicant and note that the documents themselves, consistent with the material before the Tribunal, demonstrated that the Applicant enrolled in 24 and failed 16 subjects in 2003. In the circumstances where condition 8202(3)(b)(ii) required certification by Holmesglen of satisfactory results for each term of semester (whichever is shorter), it was argued the 2003 results alone were sufficient to constitute non-compliance.
Reference was made to the question of the Applicant's progress in English and it was noted that the Tribunal actually found that "he (the Applicant) said that he had not done well in English and IT subjects in his course at Holmesglen College" rather than that the Tribunal found, as asserted by the Applicant's contentions, that "the Applicant did not do well in English in his course in Holmesglen". Hence there was no error in the finding of fact and that ground should fail according to the First Respondent's submissions.
Reasoning
The first and critical issue which the court needs to consider is whether it should have regard to the affidavit material sought to be relied upon by the Applicant which provides the material entitled "Results History from Holmesglen." That material, in my view, cannot be relied upon as it postdates the hearing of the Tribunal and cannot then be used as a means of correcting errors of fact, if any, by the Tribunal based upon the material then available to the Tribunal.
Accordingly, I refuse leave for the Applicant to rely upon the affidavit material, containing as it does material which postdates the Tribunal hearing and, further, material which in my view ought reasonably to have been available to the Applicant to present to the Tribunal if it would have assisted the Applicant's case. As it happens, I accept that the material would not have assisted the Applicant's case in any event as I am satisfied, as submitted by the First Respondent, that a result in 2003 of the kind described would be sufficient to constitute a breach of the relevant condition and therefore refusal to issue the student visa.
I am further satisfied, as submitted by the First Respondent, that there is no error demonstrated in the Tribunal's reasoning when it referred to the Applicant's performance in English.
Ground (c): Failing to take into account relevant considerations
The Applicant submitted that the Tribunal had failed to take into account the Applicant's subsequent excellent record at ACTH in deciding the Applicant's case. It was noted that the Tribunal in its decision stated that it was -
“ … mindful of the excellent results he achieved with ACTH, however this was not a course in which he had notified the Department for the purpose of changing his course. …”
It was submitted that that statement reveals the Tribunal did not take the matter into account. The subsequent academic record of the Applicant, it was argued, was an integer of the claim and should have been considered by the Tribunal.
The First Respondent submitted that the Tribunal did in fact take this into account and appropriately assessed that it was not relevant to the question before it. There was no evidence before the Tribunal that the Applicant had notified the Department of the First Respondent that the ACTH ought to be a relevant course for the purpose of his visa and nor was there any indication that the Applicant undertook any of the ACTH course during the period of the relevant visa which expired on 30 July 2004. Those issues were not addressed before the Tribunal and the First Respondent noted that in any event, the contentions of the Applicant refer to the results as occurring "subsequent" to the relevant period. It was submitted there was no error in the Tribunal's decision in relation to this ground.
Reasoning
In my view, there is clearly no error arising out of this ground. I am satisfied the Tribunal has properly considered the issue and dealt with it appropriately according to law. The material itself, in the absence of any notification that the ACTH ought to be the relevant course for the purpose of the visa or that it applied to the period of the relevant visa which expired on 30 July 2004, renders the information irrelevant, and hence this ground should fail.
Conclusion
It follows therefore, in the absence of jurisdictional error, that s.474 of the Migration Act applies and the application should be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 11 August 2006
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