Ni v Minister for Immigration
[2009] FMCA 580
•9 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 580 |
| MIGRATION – Student visa – cancellation – review of Migration Review Tribunal decision – delegate’s decision was a “primary decision” which is not reviewable by the Court – in judicial review proceedings Court cannot review merits of application to Tribunal – no breach of s.359A or 360 proved. |
| Migration Act 1958, ss.116, 357A, 359A, 360, 474, 476 Migration Regulations 1994, r.2.43 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SHAN NI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 648 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 June 2009 |
| Date of Last Submission: | 9 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 648 of 2009
| SHAN NI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was granted a Subclass 571 (Schools Sector) visa on 21 September 2007. On 10 February 2009 a delegate of the Minister cancelled the applicant’s visa pursuant to s.116(1)(b) of the Migration Act 1958 (“Act”) on the basis that the applicant had breached condition 8202 of that visa. The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error. That is the only basis upon which that decision can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant law
Condition 8202 is found in sch.8 to the Migration Regulations 1994 (“Regulations”) and relevantly provides:
(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; …
The consequences of breaching condition 8202 are set out in s.116 of the Act and reg.2.43 which relevantly provide:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; …
(2) …
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
2.43 Grounds for cancellation of visa (Act, s.116)
(1)…
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) …
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) …
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
The combined effect of s.116 and reg.2.43(2)(b)(ii) is that if the Minister is satisfied that a visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control, he must cancel the visa in question.
Background facts
The applicant arrived in Australia on 12 August 2007 on a Subclass 571 (Schools Sector) visa which was granted to her on 19 July 2007. After the expiry of this visa on 21 September 2007, she was granted another Subclass 571 (Schools Sector) visa.
The applicant was enrolled in a Preparation for High School course at Global College between 13 August 2007 and 14 December 2007. On 23 June 2008, the Minister’s department was notified by Global College that the applicant had not commenced her Senior Secondary Studies which she had been due to commence on 29 January 2008.
On 10 February 2009 the applicant was issued with a Notice of Intention to Consider Cancellation of her visa (“NOICC”). She attended an interview with the Minister’s department on the same day and provided a letter outlining her response to the NOICC in which she stated that:
a)Global College had closed down and she could not study there;
b)she originally came to Australia to study but was unable to continue as her parents were in debt and borrowed money to fund her studies;
c)she decided to stop studying and to work instead so as not to burden her family; and
d)her father is not working and gambles, her mother is ill and she is afraid to return to China as her parents have a big debt and she wants to earn money.
Later that day a delegate of the Minister cancelled the applicant’s visa pursuant to ss.116(1)(b) and (3) and reg.2.43(2)(b) on the basis of her non-compliance with condition 8202.
An application for review was then lodged with the Tribunal and by letter dated 3 March 2009, the applicant was invited to comment on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The applicant was invited to comment on this information at an interview on 6 March 2009.
The applicant also appeared before the Tribunal on 6 March 2009 to give evidence and present arguments and she made the following additional claims:
a)she stopped studying in December 2007 and did not enrol in another course in 2008 or 2009 because her family took out a loan that would only cover one semester. After that semester her parents would have to pay the fees themselves and they could not afford to do this;
b)she worked on a farm for about 24 hours a week and she needed to work to make the money to pay for her school fees;
c)when she had earned enough money to pay her fees she returned to Global College only to find that it had closed down;
d)she did not approach any other schools or try to enrol in other courses as she did not know what to do and had lost the contact number for her guardian;
e)shortly after she arrived in Australia her parents divorced;
f)her mother is ill and the applicant has to work to support her 15-year old brother, pay for her mother’s medications and her brother’s tuition fees; and
g)she understood that the primary purpose of a student visa is to study full-time in Australia, not to work, and that the visa holder has to demonstrate they have sufficient funds from other sources to support themselves without breaching visa conditions related to work.
The Tribunal’s decision and reasons
The Tribunal found that at the date of the delegate’s decision to cancel her visa, the applicant had not complied with condition 8202(2)(a) of her visa, having not been enrolled in a registered course since 14 December 2007.
The Tribunal then considered whether the applicant’s non-compliance with condition 8202 was due to exceptional circumstances beyond her control. First, considering her evidence regarding the closure of Global College and the failure of the College to notify her of its closure, the Tribunal noted that, on her own evidence, the applicant stopped studying in December 2007, well before the deregistration of Global College in June 2008. The Tribunal did not accept that the closure of the College would have prevented her from enrolling in another registered course and on her own evidence she did not take steps to find a new course but continued to work. Therefore the Tribunal did not accept that the applicant’s failure to be enrolled in a registered course on 10 February 2009 was due to the circumstances related to Global College.
The Tribunal then considered whether the other claims related to the applicant’s family’s financial and person situation were exceptional circumstances beyond her control. It did not accept that they were. The Tribunal found that:
a)the applicant had full knowledge of her financial situation before she came to Australia to study;
b)she knew her family could not afford to pay for her studies beyond the first semester;
c)as an overseas student she was required to demonstrate that she had sufficient funds to support herself financially without breaching visa conditions related to work and she would have been aware of this at the time she was granted the visa;
d)the applicant made a deliberate choice to stop her studies and to start working, the Tribunal noting that:
i)her evidence to it indicated that her priority was to work and pay off her family’s debts rather than to study; and
ii)she did not study for more than a year and the fact that she ceased to be enrolled in a registered course was due to her own actions and she made no efforts to find another course;
e)having regard to the applicant’s family situation, it noted that there was no medical evidence regarding her mother’s illness and the Tribunal was unable to find that this was a factor that affected her ability to maintain her enrolment in a registered course;
f)while it accepted that the applicant may have been worried about supporting her family, the Tribunal did not accept that her concerns were so exceptional that it was beyond her control to maintain her enrolment in a registered course, noting that the purpose of her student visa was to come to Australia to study full time and not to work;
g)as far as departmental policy concerning the existence of exceptional circumstances was concerned, there was no policy advice from the Director of Compliance Operational Support Section in relation to political upheaval or natural disaster in the applicant’s home country, nor had the Minister’s department or an education provider identified any concerns about the process leading to the applicant’s non-compliance; and
h)when the applicant’s claim was reviewed as a whole, the Tribunal was satisfied that her breach of condition 8202 was not due to exceptional circumstances beyond her control.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)It was not fair that Immigration cancelled [my] student visa when I needed to work to pay for the medical bills of my mother.
The allegation in the application is open to the interpretation that the Court should review the decision of the Minister’s delegate made on 10 February 2009. However, that decision is defined in s.476(4) of the Act as a “primary decision” because it was a decision reviewable by the Tribunal under pt.5 of the Act. Section 476(2)(a) provides that the Court does not have jurisdiction in relation to a primary decision. As a consequence, to the extent that the application seeks review by the Court of the delegate’s decision, by reason of want of jurisdiction it is unable to do so.
Attention must then turn to the Tribunal’s decision which affirmed the primary decision of the delegate. The application does not assert a recognisable basis upon which jurisdictional error on the part of the Tribunal might be found. The allegation is unparticularised and is made in such a way as to suggest that the applicant has applied to the Court for a review of the merits of her application to the Tribunal. Indeed, the applicant’s submissions today were really only addressed to the merits of her claim, in that she focused on matters which might be said to have amounted to exceptional circumstances beyond her control. However, as noted at the outset of these reasons, the Court is unable to undertake a review of the merits of the application, its powers being limited to an inquiry into whether the Tribunal’s decision is affected by jurisdictional error.
If the allegation is that the Tribunal failed to accord procedural fairness to the applicant, that claim also fails. The procedural requirements which the Tribunal must observe are found in div.5 of pt.5 of the Act. Of these, the most important are prescribed in ss.359A and 360. As to the former, which requires the Tribunal to put an applicant on notice of information which might be the reason or part of the reason for affirming the delegate’s decision, it is to be observed that the Tribunal did, in fact, send a s.359A notice to the applicant dated 2 March 2009. This was re-issued on 3 March 2009 after a Tribunal officer had discussed with the applicant the difficulty she was confronting, at the Villawood Immigration Detention Centre, in responding in English to an English language notice. The second version of the notice invited her to an interview on 6 March 2009 so that she might make a response orally with the assistance of an interpreter. Section 359A did not require the Tribunal to go to this extra length although, knowing the difficulties under which the applicant was labouring, s.357A(3) did. It is apparent that the applicant was not only put on notice of the information which s.359A required the Tribunal to put to her but she was also given a fair opportunity to respond to it.
Section 360 requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review if the Tribunal is unable, on the papers, to make a decision favourable to the applicant. The Tribunal invited the applicant to appear before it and she did so. No allegation of deficiencies in interpretation has been made, nor has it been suggested that the applicant was disabled or prevented from putting any evidence or arguments to the Tribunal. Further, nothing is apparent from the evidence which would suggest that the applicant was, in some way, prevented from putting before the Tribunal whatever material she wished it to have. In those circumstances, I do not find that the Tribunal breached its obligations under s.360 of the Act.
As to the remaining provisions of div.5 of pt.5, no breach of any of them has been demonstrated, nor has any other conduct on the part of the Tribunal been shown to have a quality which vitiates its decision.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated and the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 June 2009
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