LIN v Minister for Immigration
[2014] FCCA 2544
•7 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2544 |
| Catchwords: MIGRATION – Review by Migration Review Tribunal (Tribunal) of decision refusing applicant a Student (Temporary) (Class TU) visa – whether in assessing whether the applicant substantially complied with the conditions attached to his last substantive visa and subsequent bridging visas the Tribunal was required to assess whether the applicant had complied substantially with all the conditions that applied to such visas considered together rather than only considering whether the applicant had substantially complied with any one condition. |
| Legislation: Migrations Regulations 1994 (Cth), Schedule 2, cl.572.235 |
| Montero v Minister for Immigration and Border Protection [2014] FCA 1096 Montero v Minister for Immigration & Anor [2014] FCCA 946 |
| Applicant: | TAOQUAN LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2581 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 April 2014 |
| Date of Last Submission: | 8 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2014 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Ms S. Burnett Clayton Utz Lawyers |
ORDERS
The matter stand over until such time as it is relisted pursuant to the liberty to apply referred to in order 2.
The parties have liberty to apply on seven days’ notice to relist the matter before Judge Manousaridis after the Full Federal Court delivers its reasons on, or otherwise disposes of, the appeal against the orders made by this Court in Montero v Minister for Immigration & Anor [2014] FCCA 946.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2581 of 2013
| TAOQUAN LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks to set aside a decision of the second respondent (Tribunal) that affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).
The Tribunal affirmed the delegate’s decision because it was not satisfied the applicant had substantially complied with conditions that applied to the last substantive visa and the bridging visas the applicant held.
Background
On 17 August 2011 the applicant applied for a Student visa. At the time he applied for this visa, the applicant held no other visa, but he had held a Student visa that expired on 20 July 2011 (last substantive visa). On 7 October 2011 the applicant was granted a bridging visa that entitled the applicant to remain in Australia until his application for a Student visa was determined.
To have been entitled to a Student visa, the applicant had to satisfy the Minister the applicant “complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa”.[1] Two conditions that applied to the last substantive visa were those specified in conditions 8202 and 8516 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). As at 25 September 2013 (being the date on which the Tribunal made its decision) condition 8202 relevantly required that the visa holder be “enrolled in a registered course”. And condition 8516 required that the visa holder “continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”. Also relevant is condition 8101 that applied to the bridging visa, namely, that the “holder must not engage in work in Australia”.
[1] Cl.572.235 of Schedule 2, Migrations Regulations 1994 (Cth)
The applicant entered Australia in 2007. In 2008 he completed a secondary education course at Gosford Christian School. During the currency of his last substantive visa, the applicant enrolled in an Advanced Diploma of Hospitality Management, but he did not commence that course. The applicant then enrolled in a Certificate III in Printing and Graphic Arts course, but his certificate of enrolment for that course was cancelled due to unsatisfactory course progress. He then enrolled in a Diploma of Printing and Graphic Arts (Printing), but did not commence his studies.
On 6 January 2012, the delegate refused to grant the applicant a Student visa. The applicant undertook no further study until January 2013 when the applicant enrolled in a Diploma of Management at Magill College. He expected to complete that course at the end of 2013.
Applicant’s evidence before the Tribunal
In its reasons, the Tribunal sets out the evidence the applicant gave at a hearing before the Tribunal about studies the applicant undertook after his arrival in Australia in 2007, and the reasons he did not complete his courses of study. The applicant said that in 2009 he enrolled in an intensive English language course at Billy Blue College, but he did not complete that course. Also in 2009, the applicant enrolled in a two-year design course, but he stopped studying that course in 2001 because the college that was conducting the course informed the Department for Immigration and Citizenship (as the Department for Immigration and Border Control was then known) the applicant was not attending the course. In June 2011, the applicant enrolled in a one-year design course, but he only completed one term.
The applicant said he did not complete the two-year design course because he had a skin condition that prevented him from attending; the applicant did not study after 6 January 2012 because the delegate had refused to grant the applicant a Student visa, although he acknowledged that, because he did enrol in January 2013 in the Magill College, that he was entitled to study; the applicant said he did not study between 6 January 2012 and January 2013 because he was afraid of repercussions from his parents, and he was running out of money to pay his tuition fees.
The Tribunal also asked the applicant how he supported himself. The applicant said he was working ten hours a week.
Tribunal’s reasons
The Tribunal considered the issue it was required to determine was whether the applicant had substantially complied with conditions that were attached to the Student visa and bridging visa the applicant held. The two conditions it considered were whether the applicant has substantially complied with condition 8202, and in particular, whether the applicant had substantially complied with the condition that he was “enrolled in a registered course” while the holder of the last substantive visa, and whether the applicant substantially complied with the condition that he “must not engage in work in Australia” while he held his bridging visa.
The Tribunal identified the relevant legal principles it should apply when determining whether the applicant had substantially complied with his visa conditions. The Tribunal said that was a question of fact, to be determined having regard to the circumstances of the case, and in particular to such matters as the nature of the breach of the condition, the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted, whether the applicant deliberately breached the condition, and, where the applicant failed to appreciate he or she was in breach, what, if anything, contributed to the breach.
The Tribunal set out in its reasons the evidence the applicant gave, and evidence available to it about the course of study in which the applicant had enrolled. The Tribunal then concluded:[2]
The evidence before the Tribunal indicates that whilst the applicant held his last held Substantive Visa, a Subclass 572 Visa that the applicant failed to maintain enrolment in registered courses of study for extended periods. The evidence indicates that whilst the applicant was holding a Bridging C Visa after the refusal of his Subclass 572 Visa application that the applicant has been working in breach of the no work condition that is attached to that visa.
The Tribunal cannot be satisfied based on the evidence before it that the applicant has not deliberately flouted visa conditions. The Tribunal finds that the evidence before it at review when cumulatively considered leads it to find that the applicant has not complied substantially with the conditions of his last substantive visa, a Subclass 572 Student visa nor has the applicant complied with the conditions of subsequently issued Bridging visas.
[2] CB97, [39]-[40]
Grounds of application
The application for review contains five grounds of review. However, as submitted by the Minister, grounds 1, 2 and 4 appear to raise substantially the same ground.
Grounds 1, 2, and 4
These grounds of review are as follows:
1.The MRT considered my application for review without asking and answering the question whether I had complied with my past visa conditions substantially.
2.I have had more than one condition in both my past student visa and my bridging visa C. Since the law requires that I had complied with them substantially, and the law says that certain conditions could not have been complied with substantially by itself, I say that I have complied with those conditions as a whole substantially.
4.Also, when considering my bridging visa conditions, the MRT did not ask what they all were and only asked about one condition regarding work rights, and only asked about my compliance with this condition alone. It did not ask whether I had complied with the conditions substantially.
The claims are that the Tribunal ought to have considered all conditions that applied to the visas the applicant held, and assess whether the applicant had substantially complied with all of those conditions. That is, the applicant appears to claim that the Tribunal incorrectly construed the expression “the conditions” contained in the longer expression “complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa” in cl. 572.235 of Schedule 2 to the Regulations to mean “each condition”.
The Minister has referred me to a number of cases that have construed “the conditions” as meaning “each condition”. Further, in Montero v Minister for Immigration & Anor,[3] I considered the meaning of “the conditions” as that expression appeared in cl.3004(e)(ii) of Schedule 3 to the Regulations. In Montero the applicant submitted the expression “the conditions” as it appeared in cl.3004(e)(ii) of Schedule 3 required the Tribunal to assess the visa-holder’s overall compliance with all of the conditions that applied to the visa. Based on my construction of the language of cl.3004(e) of Schedule 3 to the Regulations (which is in substance the same as the language in cl.572.235 of Schedule 2 to the Regulations), and on a number of authorities,[4] I concluded that cl.3004(e)(ii) required that an applicant substantially comply with each condition so that, if the applicant did not substantially comply with any one of the conditions, cl.3004(e)(ii) would not be satisfied.
[3] Montero v Minister for Immigration & Anor [2014] FCCA 946
[4] Montero v Minister for Immigration & Anor [2014] FCCA 946 at [31]-[39].
If I were to apply to the application before me the same reasoning and authorities on which I relied in Montero, I would conclude that grounds 1, 2, and 4 of the grounds of review cannot succeed. However, on 22 August 2014, in the course of hearing an appeal from the orders I made in Montero, Logan J referred to the Full Federal Court the question whether the expression “the conditions” as it appeared in cl.3004(e)(ii) of Schedule 3 to the Regulations required the applicant to substantially comply with each condition or whether it required the Tribunal to assess the visa applicant’s overall compliance with all of the conditions attached to the visa.[5]
[5] Montero v Minister for Immigration and Border Protection [2014] FCA 1096
The outcome of the appeal from the orders I made in Montero has an obvious bearing on the application before me now. If the Full Federal Court decides that cl.3004(e)(ii) of Schedule 3 to the Regulations required the Tribunal in that case only to assess whether the visa applicant substantially complied with each of the conditions attached to the visa, grounds 1, 2, and 4 on which the applicant relies in the application before me are bound to fail. If, on the other hand, the Full Federal Court decides that the expression “the conditions” as it appeared in cl.3004(e)(ii) of Schedule 3 to the Regulation required the Tribunal to assess whether the visa applicant substantially complied with all of the visa conditions as a whole, it may well be that grounds 1, 2, and 4 disclose a jurisdictional error by the Tribunal.
Given the Full Federal Court has not determined the appeal in Montero, I propose to stand the matter over generally, but reserve liberty to the parties to relist the matter after the Full Federal Court delivers its decision on the appeal in Montero. When the matter is relisted, I will invite the parties to make submissions on how I should dispose of the application in the light of the Full Federal Court’s decision and reasoning.
Ground 3
Ground 3 is as follows:
The MRT has also not considered sufficiently whether I had complied with each of my past student visa conditions substantially when considering my compliance before the visa refusal. It only focused on whether I had completed each course that I had enrolled in. There is no visa condition that requires me to complete the courses.
The claim is that the Tribunal only considered whether the applicant had completed the courses for which he was enrolled. That claim cannot be made out. The question the Tribunal considered was whether the applicant maintained his enrolment in the registered courses of study. It concluded that the applicant “failed to maintain enrolment in registered courses of study for extended periods”.[6]
[6] CB97, [39]
Ground 5
Ground 5 is:
It did not even ask whether I had complied with the no work condition itself substantially.
This appears to be a claim that the Tribunal did not give reasonable notice to the applicant that there was an issue about whether the applicant had substantially complied with condition 8101.
In my opinion, the applicant was given reasonable notice. That is apparent from the following passage from the Tribunal’s reasons for decision:[7]
The Tribunal asked the applicant how he had been supporting himself if he had no money. He advised that his parents were helping him out with living expenses and that he was paying for relevant tuition fees. The applicant stated that he worked to do this and that he was currently working. The Tribunal asked the applicant how many hours a week he was working and he advised 10 hours per week. The Tribunal noted that the applicant was currently on a Bridging C Visa and this contained condition 8101 which precluded him from working. The Tribunal asked the applicant whether he had permission to work and he advised “maybe not” but he needed to work to pay the fees for his studies.
[7] CB96, [31]
It is true this passage does not record the Tribunal asking the applicant whether he had substantially complied with condition 8101. However, the Tribunal’s reasons for decision also record that at the outset of the hearing the Tribunal explained to the applicant the “review process”, and mentioned that it had sent the applicant a letter dated 12 June 2013 inviting the applicant to provide information to the Tribunal “which clearly indicated that the Tribunal was also wanting information around [sic] the issue of whether the applicant had complied substantially with his last held substantive visa and indeed, subsequently issued bridging visas”.[8]
[8] CB94, [20]
Other matters
At the hearing, over objection, I permitted the applicant to give evidence about the reasons he was unable to undertake or complete his studies. He said he did not complete his courses because he ran out of money. The applicant’s grandfather died from cancer in October 2008. The applicant’s father contracted hepatitis, and his mother suffered a tendon injury. The applicant said he felt too embarrassed to ask for money. Also, the applicant said he worked twenty hours a week.
Ms Burnett, the lawyer for the Minister, cross-examined the applicant. The applicant was asked why he did not give this explanation to the Tribunal. The applicant said that if he were to tell the Tribunal, he would have been required to approach his parents to obtain evidence, but he did not want to tell his parents about his circumstances. However, he has now informed his parents of his circumstances, and his parents are willing to provide him with evidence. It was put to the applicant, but the applicant denied, that the evidence he gave before me was a fabrication.
After the hearing, on 8 May 2014 the applicant filed and served a written statement which repeated the substance of the evidence he gave before me. The applicant attached to the statement what purport to be a death certificate, blood tests, and a medical report. At the hearing, I did give the applicant leave to file a submission. I granted that leave, however, only to permit the applicant to respond to the Minister’s written submissions. Although I was informed by Ms Burnett that the Minister’s submissions were served on the applicant’s email address on 17 April 2014, the applicant said he had not accessed his email before he received in the post, on the evening before the hearing, a hard copy of the Minister’s submissions.
In any event, whether or not the evidence the applicant gave before me was truthful does not matter. The evidence the applicant gave was not evidence he provided to the Tribunal. For that reason alone, the applicant’s evidence is irrelevant, as is the written statement and attachments the applicant filed and served on 8 May 2014. Therefore, I do not make any finding in relation to the evidence the applicant gave at the hearing before me.
Conclusions and disposition
I have concluded that grounds 3 and 5 of the applicant’s grounds of review fail. I have also concluded that, on the current state of the authorities, grounds 1, 2, and 4 are bound to fail. However, given the appeal to the Full Federal Court against the orders I made in Montero v Minister for Immigration & Anor,[9] I propose to stand the matter over generally with liberty to apply after the Full Federal Court delivers its decision on that appeal, or otherwise disposes of that appeal.
[9] Montero v Minister for Immigration & Anor [2014] FCCA 946
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 7 November 2014
0
2
4