Liu v Minister for Immigration

Case •

[2007] FMCA 715

•

26 April 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 715
MIGRATION – Review of Migration Review Tribunal decision – refusal of a Student (Temporary) (Class TU) visa – application dismissed.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.476, 483A
Migration Regulations 1994 (Cth), reg.572.212
Baidakova v Minister for Immigration  [1998] FCA 1436
Jayasekara v Minister for Immigration
Kim v Witton (1995) 59 FCR 258
Weerasinghe v Minister for Immigration [2004] FCA 261
Applicant: YI SHEN LIU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File number: SYG 2965 of 2005
Judgment of: Lloyd-Jones FM
Hearing date: 26 April 2007
Delivered at: Sydney
Delivered on: 26 April 2007

REPRESENTATION

Counsel for the Applicant: Mr R Killalea
Counsel for the Respondents: Mr P Braham
Solicitors for the Respondents: Mr G Johnson of DLA Phillips Fox

ORDERS

  1. The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

  2. The application filed on 14 October 2005 is dismissed.

  3. The applicant is to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2056 of 2005

YI SHEN LIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This matter was brought before the Court by the applicant seeking an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. Both parties appeared. I believe it is in the parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and said that I would publish my written reasons later.

The Proceedings

  1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 14 October 2005, for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 19 August 2005, affirming a decision of a delegate of the first respondent refusing the applicant a Student (Temporary) (Class TU) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

  2. A Court Book ("CB") prepared by the first respondent's solicitors was filed on 28 November 2005.  I have marked this as Exhibit “A" and the contents were read into evidence.

  3. This matter was set down for final hearing on 10 July 2006.  However, on that date, the parties sought orders that the hearing be vacated and that the matter be re-listed for hearing at a time and date to be appointed by the Court.  Federal Magistrate Reithmuller heard the application on that date and made the orders.  His Honour further noted that the outcome of Jayasekara v Minister for Immigration (MLG521/2006) was expected to be determinative in this matter.

Chronology

  1. The submissions filed by Mr Killalea on behalf of the applicant contains the following chronology with the essential background information:

    a)On 11 March 2000, the applicant travelled to Australia holding a Subclass TU 560 (Student) visa.(CB 89, [10])

    b)On 25 October 2001 to 15 February 2002, the applicant enrolled in Foundation Studies (third semester) at Sydney Institute of Business and Technology (SIBT).(CB 50, Table 2001/03)

    c)In November 2001, the applicant commenced a Diploma of Commerce course with SIBT.(CB 52.3)

    d)From 4 March 2002 to 15 June 2002, the applicant enrolled in SIBT Foundation Studies (first semester).(CB 50, Table 2002/1)

    e)From 1 July 2002 to 12 October 2002, the applicant enrolled in SIBT Foundation Studies (second semester).(CB 50, Table 2002/2)

    f)From 28 October 2002 to 15 February 2003, the applicant enrolled in SIBT Foundation Studies (third semester).(CB 50, Table 2002/3)

    g)On 9 December 2002, the applicant was granted a TU 572 visa which was valid until 10 November 2003.(CB 89, [11])

    h)From 3 March 2003 to 14 June 2003, the applicant enrolled in SIBT Foundation Studies (first semester).(CB 47.3 and CB 50, Table 2003/1)

    i)On 14 June 2003, the applicant completed the SIBT Foundation Studies course.(CB 44, 45, 47, 48)

    j)From 30 June 2003 to 11 October 2003, the applicant enrolled in SIBT Foundation Studies (second semester).(CB 48.3 and 50, Table 2003/2)

    k)On 4 August 2003, the applicant was awarded Certificate in Foundation Studies by SIBT.(CB 44)

    l)On 30 October 2003, SIBT excluded the applicant from studies at SIBT.(CB 50.4)

    m)On 4 November 2003, SIBT issued a s.20 notice which recorded a “breach…relating to satisfactory academic performance”.(CB 10)

    n)On 10 November 2003, the applicant’s TU 572 visa lapsed.(CB 89.6)

    o)On 28 November 2003, the applicant applied for a Student (Temporary) (Class TU) visa.(CB 89.6)

    p)On 3 September 2004, the applicant’s application for a visa was refused by the delegate.(CB 62)

    q)On 5 October 2004, the application for review by the Tribunal was lodged.(CB 73)

    r)On 12 May 2005, the Tribunal held its hearing.(CB 74 and 80.7)

    s)On 31 May 2005, a s.359A letter was sent to applicant by Tribunal.(CB 80)

    t)On 1 July 2005, a response was sent to the Tribunal by the applicant’s migration agent.(CB 82)

    u)On 12 September 2005, the Tribunal affirmed the delegate’s refusal of grant of visa to applicant.

    v)On 14 October 2005, the applicant filed an application for review in the Federal Magistrates Court.

Tribunal’s Findings and Reasons

  1. The essential findings of the Tribunal are set out in the following paragraphs of its decision:

    32. At a hearing of the Tribunal the visa applicant discussed with the Tribunal his lack of academic progress in his course of study for a Diploma of Commerce at the Sydney Institute of Business and Technology (SIBT). He told the Tribunal that he had failed subjects and as a consequence he was excluded from that course. I accept the visa applicant’s explanation that he only understood about 70% of the lectures and that he was unable to pass Principles of Accounting. His education provider confirmed in a written statement to the Department that the applicant had been permanently excluded because of his unsatisfactory academic performance. The visa applicant argues despite that not fully complying with condition 8202(3)(b) nothing in the legislation requires him to comply fully with the visa condition.

    33.I am satisfied that the visa applicant has provided no evidence to suggest that he achieved an academic result that was certified by the education provider to be at least satisfactory for his course that ran for at least a semester, for each term or semester of the course. The visa applicant was excluded from the course.

    34.The visa applicant did not hold a visa at the time of application. The visa applicant has not complied substantially with condition 8202(3)(d)(ii) of the visa he last held at time the visa application was made. Therefore the visa applicant has not met clause 572.2 12 at the time of application.(CB 91-92)

Application for Review of the Tribunal’s Decision

  1. On 14 October 2005, the applicant filed an application for review under s.39B of the Judiciary Act. On 3 July 2006, the applicant’s outline of submissions were filed attaching an amended application. This amended application was formally filed at today’s hearing and contains the following grounds:

    1. The MRT failed, or constructively failed, to exercise jurisdiction, by reason that the MRT denied the Applicant procedural fairness in failing to take into account the Applicant’s academic history for the period December 2003 to October 2003 (if not the Applicant’s full history beginning October 2001)

    Particulars

    Migration Reg 572.212

    The Applicant’s “last held” visa (TU 572) was granted in Dec 2002 and lapsed in October 2003

    The MRT confined its consideration of the Applicant’s academic history to June 2003 – October 2003 (2nd Semester 2003)

    2. The MRT failed, or constructively failed, to exercise jurisdiction, by reason that, if the MRT denied the Applicant procedural fairness in failing to consider whether the Applicant had complied with Conditions 8105, 8501 and 8533.

    Particulars

    Migration Reg 572.212

    The Applicant’s “last held” visa (TU 572) was granted in Dec 2002 subject to Conditions 8105, 8202, 8501 and 8533

    The MRT confined its consideration of whether the Applicant complied with Condition 8202

    3.The MRT failed, or constructively failed, to exercise jurisdiction, by reason that, if the MRT did lake into account the matters at Grounds I and/or, 2 it was not open to the MRT to find that the Applicant had not substantially complied with the Conditions to which his visa (TU 572) was subject

    Particulars

    Migration Reg 572.212

    The Applicant’s “last held” visa (TU 572) was granted in Dec 2002 and lapsed in October 2003

    Direct evidence re compliance Condition 8202 (CB 10, 44)

    No evidence re non-compliance with Conditions 8105, 8501 and 8533

Submissions and Reasons

  1. The essential issue in this matter is the proper construction of reg.572.212 and condition 8202 of the Migration Regulations 1994 (Cth), (“the Regulations”). The Tribunal set out the relevant part of the Regulations in its decision as follows:

    26.The Department refused the visa application because the visa applicant did not satisfy clause 572.212 and clause 572.226 of Schedule 2 to the Regulations as the delegate was not satisfied the visa applicant had complied substantially with the conditions of the visa last held.

    27. Clauses 572.2 12 and 572.226 state relevantly:

    572.21 Criteria to be satisfied at time of application

    572.212If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.

    572.22 Criteria to be satisfied at time of decision

    572.226If the application was made in Australia, the applicant continues to satisfy the criterion in clause 572.212

    28.The visa applicant did not hold a visa at the time of application.

    29.Accepting that the words ‘last held’ refers to the student visa that had ceased on 10 November 2003 that visa was subject to condition 8202.

    30. The relevant condition 8202(3)13 states:

    (3)   A holder meets the requirements of this subclause if:

    (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 less than a semester—for the course; or

    (ii) for a course that runs for at least at semester—for each term or semester (whichever is shorter) of the course.(CB 91)

  2. The question for the decision-makers (either the delegate and the Tribunal) to decide is if there is a distinction between strict and substantial compliance with condition 8202(3)(b).  In Weerasinghe v Minister for Immigration [2004] FCA 261, Ryan J considered whether that distinction was required to be made and concluded:

    10. …there is no scope for operation of the distinction between strict compliance and substantial compliance on Condition 8202(3)(d)…Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not.

  3. Weerasinghe was affirmed by the Full Federal Court in Jayasekara v Minister for Immigration [2006] FCAFC 167. In Weerasinghe, Ryan J expressed the view there was no room for a decision-maker to consider the underlying reasons for a breach of condition 8202 of a student’s previous visa when considering whether the student satisfied the substantial compliance test for the grant of a further visa.  Justices Heerey and Sundberg (with Finklestein dissenting) concluded in Jayasekara at [16]:

    There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].

  4. The distinguishing feature in that case was that the educational body was not satisfied that the applicant’s academic results for the relevant periods were at least satisfactory – a separate and distinct finding.  The test does not require that there be an absence of any document, but rather, an absence of the certification.  The educational institution may issue a letter which states that either the applicant failed to comply or had been permanently excluded because of unsatisfactory academic performance.

  5. Justices Heerey and Sundberg further distinguished the finding in Jayasekara from circumstances where the substantial compliance criteria could be applied.  Their Honours also specifically distinguished that decision from Baidakova v Minister for Immigration [1998] FCA 1436 and Kim v Witton (1995) 59 FCR 258.

  6. Mr Killalea acknowledged that although Jayasekara was against his client, Finkelstein J (who was in dissent) did support the applicant’s position to the extent that His Honour found there need not be a certificate by the educational provider.  In this case, the applicant claims that there was no certificate provided by the educational provider, and that the Tribunal failed to take into account relevant matters.

  7. Mr Braham, for the first respondent, submits that Jayasekara correctly states the position in respect of this application.  It follows therefore that the Tribunal was only required to find, as it did, that the applicant did not have a certificate from his educational provider showing his academic results.  The Tribunal was not obliged nor even entitled to investigate whether or not the applicant had achieved satisfactory academic records.  It only had to observe that no certificate had been provided.

  8. Mr Killalea acknowledged Mr Braham’s analysis of Jayasekara.  I indicated to the parties that I was bound by Jayasekara and, consequently, I would dismiss the application.

  9. Mr Killalea submits that when this matter was previously before the Court, the first respondent’s position was that the applicant had a good and proper case.  Mr Killalea acknowledged that as a result of Jayasekara, the first respondent’s position had changed and costs should not be ordered against the applicant.

  10. Mr Braham submits that the Tribunal’s description of what occurred at its hearing does not form any part of its reasoning process.(CB 91.7)Paragraph 33 of that decision records the Tribunal’s finding that the visa applicant had not provided certification, which is also consistent with Jayasekara.  Paragraph 34 concludes that the visa applicant had not complied substantially with condition 8202.(CB 91)  The only reason advanced by the Tribunal for the finding that the applicant had not substantially complied with the condition was the absence of a certificate. Although the Tribunal decision complied substantially with the statutory language in reg.572.212 of the Regulations, that does not indicate that the Tribunal engaged in a substantive consideration of the adequacy of the applicant’s academic record. Mr Braham submits that the first principle is that costs follow the event. Mr Braham also submits that the applicant is asking the Court to overturn a Tribunal decision, which on the then available authorities was correct and should not be overturned. The application filed asserts that the Tribunal erred by not considering whether the applicant had substantially achieved adequate academic results. The applicant’s submissions do not refer to Weerasinghe, or to the fact that on the then current authority that was not a contention which could have succeeded.  In those circumstances, the Minister had to put on submissions and engage in these proceedings in order to ensure that the Court was properly informed of the authorities which applied and so the Minister adopted the position of neither consenting nor to opposing the application they were bringing to the Court’s attention the relevant authorities, something that had not occurred in the applicant’s application or submissions.  Mr Graham acknowledged that the applicant was entitled to take an adversarial approach to this case and has done so, but that it is a corollary of that approach that the applicant bears the cost of a contradictor which was required in this case, notwithstanding the Minister’s approach because of the manner in which the applicant chose to advance his case.

  11. I accept the submissions made by Mr Graham and agree that costs should be awarded to the Minister.

Conclusion

  1. Consequently, the application filed on 14 October 2005 must be dismissed for the reasons set out above.  I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application, fixed in the sum of $5,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  16 May 2007

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