Shi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 45
•24 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 45
File number(s): SYG 1350 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 24 January 2024 Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – cancellation of Student (Temporary) (class TU) (Subclass 573) visa (student visa) – whether Tribunal failed to afford procedural fairness – whether Tribunal made a finding without supporting evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss.48, 116, 140, 357A, 359A, 359AA, 360, 476, 477.
Migration Regulations 1994, Sch. 8.
Cases cited: Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZMTA(2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 25 September 2023 Place: Sydney Applicants: Self-represented Counsel for the Respondents: Ms G. Gutmann Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 1350 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIANXIA SHI
First Applicant
RUICHEN REASON FANG
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATRIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
24 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The originating application filed on 4 June 2019 be dismissed.
2.The applicant to pay the costs of the first respondent in the fixed amount of $5,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD:
INTRODUCTION
Before the Court is an application filed on 4 June 2019 for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), by the applicants Dianxia Shi and Ruichen Reason Fang of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 May 2019.
The Tribunal affirmed the decision of the delegate of the first respondent, then Minister for Home Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs, affirming the Delegate’s decision to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 573) visa (“student visa”).
The other applicant in the Judicial Review Application is the applicant’s four-year-old son.
For the reasons outlined below, I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application is dismissed.
BACKGROUND
The first applicant is a citizen of China. She first came to Australia in July 2011 to study management holding a Subclass 573 Student Visa.
The records from the Applicant’s Provider Registration and International Student Management System (“PRISMS”) shows the following:
· Diploma of Accounting 04/04/2016 02/04/2017 Inactive · Bachelor of Business (Accounting) 23/11/2015 20/07/2018 Cancelled · Bachelor of Business (Accounting) 27/07/2015 20/07/2018 Cancelled · Bachelor of Business 13/07/2015 31/07/2017 Cancelled · Advanced Diploma of Project Management 14/04/2014 12/04/2015 Finished · Diploma of Business 05/08/2013 01/08/2014 Cancelled · Diploma of Business 13/05/2013 08/12/2013 Finished · Bachelor of Business 25/02/2013 23/02/2015 Cancelled · Certificate IV in Business Administration 04/02/2013 20/08/2013 Cancelled · Diploma of Business Administration 15/11/2011 09/11/2012 Finished · English Language Programs 25/11/2011 14/10/2011 Cancelled · English Language Programs 11/07/2011 30/09/2011 Finished
On 19 January 2017, a delegate of the Minister sent the applicant a notice of intention to consider cancellation (“NOICC”). The notice was sent to an email address the delegate had on record for the applicant. By that notice the applicant was informed that there appeared to be a ground for cancellation of the visa on the grounds that there had been non-compliance with s.116(1)(b) breach of condition – 8202 of the Act. The applicant was invited to respond to the notice.
On 31 January 2017 the delegate sent the applicant a notice of cancellation decision, advising the applicant that her student visa was cancelled on 31 January 2017.
The identified ground for cancelling the visa was due to non-compliance with a condition of the visa. The decision record indicated that the applicant had not complied with s.116(1)(b) as she had not complied with Condition 8202(2)(a). Condition 8202(2)(a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course. The decision record noted that the applicant had not been enrolled in a registered course of study since 29 April 2016.
TRIBUNAL DECISION
On 7 February 2017, the applicants sought review of the delegates decision before the Tribunal, assisted by a migration agent.
On 9 March 2017, the applicant appeared before the Tribunal to give evidence and to present arguments.
The issue before the Tribunal were whether the applicant, as the holder of a student visa, has breached a condition 8202 of Schedule 8 to the Migration Regulations 1994 (“the regulations”). If the applicant had breached that condition, under s.116(1) of the Act, the visa may be cancelled.
The Tribunal found that the applicant had been enrolled in Business and Accounting courses in 2015 and 2016 but those enrolments were cancelled. The applicant was not enrolled in a registered course of study from 29 April 2016 to 19 January 2017 when the Department issued a NOICC.
Having found that the applicant had not complied with a condition of the visa, the Tribunal holds a discretion to cancel the visa. The Tribunal correctly noted that there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion, the Tribunal took into consideration the matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Departments Procedures Advice Manual (PAM3).
According to the Decision Record, when asked by the Tribunal about the circumstances in April 2016 when she was no longer enrolled to study, the applicant could not clearly remember what she had been studying at the relevant time. She said that in April 2016 she had paid fees to study but was told her course was cancelled. The applicant conceded that she was not studying from April 2016 to January 2017. The Decision Record records that the applicant declared she has a compelling reason to stay in Australia because her child who is aged four is here and she wants him to have a better life. She is recorded to have claimed that if her visa is cancelled she would not be able to study and she still wanted to study management, to obtain a Certificate or Diploma and go back to her home country. The applicant is reported to have indicated she is supported in Australia by her boyfriend and by family. She was asked if she wanted to make submissions regarding the consequential cancellation of the child’s visa and she said she did not.
The Tribunal considered the following issues in the exercise of its discretion to cancel the applicant’s student visa:
(a)purpose of the visa holders travel to and stay in Australia – the Tribunal was satisfied on the evidence before it that the applicant’s original intention to travel to stay in Australia was to study. The Tribunal noted that during the hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The Tribunal noted that the applicant declared she wished to stay in Australia because her four-year-old child was born here and she wants him to have a better life. Having regard to this evidence the Tribunal noted the purpose of the Student Visa programme is to enable people to undertake study in Australia, not for the purpose of permanent migration. On this basis the Tribunal was not satisfied the applicant had a compelling need to remain in Australia.
(b)the extent of compliance with these conditions – the Tribunal found there was no evidence to indicate that the applicant had not complied with conditions other than condition 8202(2), which the Tribunal characterised as a fundamental breach weighing against the applicant in this case.
(c)degree of hardship that may be caused (financial, psychological, emotional or other hardship) – the Tribunal records discussing with the applicant, any hardship that may arise as a result of her visa being cancelled. The Tribunal recorded that the applicant claimed she would suffer hardship because she would no longer be able to study and she still wanted to pursue a management course. The Tribunal was not satisfied that the applicant was a genuine student. Acknowledging, that there may be some degree of financial and emotional hardship caused, the Tribunal found that there was not sufficient reason for not cancelling the visa. The Tribunal recognised that the cancellation of the visa meant that the applicant could become an unlawful noncitizen liable for detention and removal from Australia. The Tribunal further recognised that the applicant would be subject to s.48 of the Act, and consequently would have limited options to apply for further visas in Australia. The Tribunal found however that in the applicant’s case these are not reasons why the visa should be cancelled.
(d)circumstances in which the ground for cancellation arose – the Tribunal recorded that the applicant’s visa was cancelled because she remained in Australia as the holder of the student visa but did not continue her studies for a period of more than eight months. The Tribunal recorded that the applicant claimed that at the relevant time she had paid fees to study but was told her course was cancelled. The Tribunal recorded that the applicant could not recall the name of the institution. The Tribunal found the applicant to be vague and less than forthcoming about her failure to maintain enrolment as well as her activities during the relevant period. The Tribunal was not satisfied there were valid reasons for the breach of the visa conditions. In circumstances where the applicant’s failure to study or seek assistance during the period when she was not enrolled would not have been beyond her control, the Tribunal placed no weight on the circumstances in which the ground for cancellation occurred.
(e)past and present behaviour of the visa holder towards the Department – as there was no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal, the Tribunal has given some weight in this regard.
(f)whether there would be consequential cancellations under s.140 – noting that the visa of the applicant’s child, Ruichen Reason Fang, would be cancelled under s.140 of the Act, if the primary applicant’s visa is cancelled, the Tribunal placed some weight in the applicant’s favour on this issue.
(g)whether there are mandatory legal consequences of cancellation – the Tribunal noted the intended consequences of the legislation upon cancellation of the applicant’s visa. The Tribunal gave this matter no weight towards the visa not being cancelled.
(h)whether any international obligations would be breached as a result of the cancellation – the Tribunal recorded that there was no evidence before it that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. The Tribunal recorded that on the evidence submitted the applicant has a child who was born in Australia but the applicant declined to make any submission regarding the best interests of the child, other than her statement that she would like to stay in Australia to give him a better life. There was no evidence before the Tribunal to indicate that the applicant’s son would not be able to accompany her if she is required to leave Australia and return to China.
(i)any other relevant matters – the Tribunal noted there were no other relevant matters to be considered in the applicant’s case.
The Tribunal considered the applicant’s circumstances both individually and cumulatively, and found that it was satisfied that a majority of the considerations weigh heavily against the applicant.
The Tribunal concluded that the visa should be cancelled.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s.477(1) of the Act.
The applicant advances three grounds of review in her written application, reproduced below without alteration:
1.the Tribunal failed to afford procedural fairness.
2.The Tribunal made a finding without supporting evidence.
3.The Tribunal failed to exercise its power.
The application was accompanied by an affidavit which annexed the Tribunal decision.
On 24 June 2019 a Registrar of this Court made orders to progress the matter to hearing. Those orders require the applicant to file and serve 28 days before the hearing any amended application, supplementary court book and written submissions. The applicant did not file any further material.
The matter came before me for hearing on Monday, 25 September 2023 at 10:15am. The applicant was self-represented. Ms Gutmann appeared for the Minister.
Applicant’s submissions
As indicated above, the applicant did not file any written submissions.
I explained to the applicant the possible categories of jurisdictional error for migration decisions of this sort, most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question;[1]
(b)where the decision-maker ignores relevant material;[2]
(c)where the decision-maker relies on irrelevant material;[3]
(d)where the decision-maker fails to follow mandatory procedures;[4]
(e)where the decision-maker shows actual or apprehended bias;[5] and
(f)where the decision is illogical, irrational or unreasonable.[6]
[1] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[2] Ibid.
[3] Ibid.
[4] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[5] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
[6] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at.[7]
[7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Noting the applicant was without legal assistance at the hearing before me, the Court went through with her the material before the Court.
The Court confirmed with the applicant that she had the Court Book and the written Outline of Submissions of the first respondent. The matter was stood down for a period to allow the interpreter to translate for the applicant the written submissions of the first respondent.
When the matter resumed, the applicant was asked if there was anything she wished to say in respect of her application. The applicant submitted that when her visa was cancelled she did not get notification because her lawyer resigned.
The applicant recalled attending the Tribunal hearing on 6 March 2019. She did not recall that she was represented by a migration agent at that hearing. I sought from the applicant what she would like to tell me about the Tribunal failing to provide her with procedural fairness. She stated that she had nothing further to add.
Minister’s submissions
The Minister filed written submissions on 18 September 2023.
With respect to Ground 1 the Minister submitted that this ground is an un-particularised assertion that the applicant was denied procedural fairness. The Minister submitted that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act, which is an exhaustive statement of the natural justice hearing rule, s.357A of the Act.
The Minister submitted that pursuant to s.360 of the Act, the applicant was invited to attend the hearing before the Tribunal to discuss the dispositive issues, which were the same as before the delegate. The applicant attended the hearing and was afforded a sufficient opportunity to give evidence and present arguments about the determinative issues on review, being whether the applicant had breached a condition of her student visa, and if so, whether her student visa should be cancelled.
The Minister pointed to the Tribunal recording its consideration of the applicant’s oral and written evidence and arguments in making findings that were open and the evidence. The Minister submits there was otherwise no information before the Tribunal that engaged s.359A or s.359AA of the Act. The Minister submitted that there was no evidence suggesting that the applicant was denied procedural fairness and sought that this ground be dismissed.
With respect to Ground 2 and 3, the Minister submits that Ground 2 is an unparticularised assertion that the Tribunal made a finding without supporting evidence and Ground 3 is an unparticularised assertion that the Tribunal failed to exercise its power. The Minister submitted that at their highest, these grounds express the applicant’s disagreement with the Tribunal’s exercise of discretion and the conclusion it has drawn, which does not establish jurisdictional error in the decision.
CONSIDERATION
Jurisdictional error
The applicant must establish that the Tribunal’s decision is affected by jurisdictional error to be entitled to relief in this Court.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA(2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
81.The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) [2001] HCA 30; 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Ground 1
Ground 1 alleges the Tribunal failed to afford the applicant procedural fairness. The applicant’s application contains no further particulars of this allegation. The applicant’s affidavit similarly provides no particulars or assistance in expanding on the applicant’s assertion. Before me the applicant complained that her visa was cancelled, and she did not get notification of that because her lawyer resigned. She did not cavil with the contention that she attended the Tribunal hearing on 6 March 2019.
Failure to particularise a ground of review may be a sufficient basis for that ground to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. However, in its duty to assist self-represented litigants, the Court will consider for itself whether the Tribunal failed to afford the applicant procedural fairness; MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [59]-[77].
The applicant was notified by correspondence dated 31 January 2017 that her visa was cancelled on that same day. The decision record of the Department of Immigration and Border Protection, as it was then known, shows that the applicant had not complied with condition 8202 requiring her to be enrolled in a registered course of study. The decision record, relying upon the PRISM record, showed that the applicant had not been enrolled in a registered course of study since 29 April 2016.
On 7 February 2017 the applicant lodged an application for review with the Tribunal. On 9 February 2017 the applicant’s application to the Tribunal was acknowledged by correspondence sent to the applicant’s nominated representative registered migration agent. On 31 January 2019, again by correspondence sent to the applicant’s nominated representative registered migration agent, pursuant to s.360 of the Act, the applicant was invited by the Tribunal to attend a hearing before it on 6 March 2019.
The applicant attended the hearing. She was represented by her nominated registered migration agent.
Having regard to the Decision Record of the Tribunal dated 22 May 2019, I agree with the written submissions of the first respondent that the Tribunal recorded its consideration of the applicant’s oral and written evidence and arguments ([18]-[19], [22], [24], [27] and [29]) and made findings that were open on the evidence.
The Minister submitted that there was no information before the Tribunal that engaged s.359A or s.359AA of the Act. I accept that submission.
No arguable case of error arises in respect of Ground 1.
Ground 2
Ground 2 alleges the Tribunal made a finding without supporting evidence. As with Ground 1, neither the applicant’s application nor the applicant’s affidavit contains any further particularisation of this allegation.
The Minister contends, and I agree, that the Tribunal correctly identified that the issue before it was whether the applicant had breached condition 8202 of Schedule 8 of the regulations. The Tribunal recorded that according to the evidence the applicant had been enrolled in a Business and Accounting course in 2015 and 2016 and those enrolments were cancelled. The Tribunal recorded again correctly that the applicant was not enrolled in a registered course of study from 29 April 2016 to 19 January 2017 when the Department issued a NOICC. Accordingly, the applicant had not complied with condition 8202(2).
Having found that the applicant had not complied with the condition of the visa, the Tribunal was then required to consider whether the visa should be cancelled. The Tribunal recorded that it considered the applicant’s circumstances individually and cumulatively and on balance was satisfied that the majority of the considerations weighed heavily against the applicant. The Tribunal noted its consideration that the length of time the applicant had spent in Australia having breached her visa conditions to be significant and was not satisfied the issues encountered by the applicant were a sufficient reason for the visa not to be cancelled.
On the material before it, the Tribunal’s conclusion, and the findings leading to that conclusion, that the visa should be cancelled was entirely open to it and as such no arguable case of error arises in this regard.
Ground 3
Ground 3 alleges the Tribunal failed to exercise its power. As with Grounds 1 and 2, the applicant’s assertion contains no further particularisation.
The Minister submits that the Tribunal exercised its discretion reasonably by weighing up the relevant factors ‘individually and cumulatively’. I agree with that submission. I also agree with the Minister’s submission that the Tribunal recorded its consideration of the applicant’s written and oral evidence ([7]-[11]) and then made findings that were open to it ([18]-[19], [22], [24], [27] and [29]).
There is nothing before the Court from which the Court can conclude that the Tribunal has failed to exercise its power. Accordingly Ground 3 is not established.
CONCLUSION
The applicant’s grounds do not establish jurisdictional error in the Tribunal decision. It follows that the application to the Court is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Dated: 24 January 2024
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