Shun Ning Mok v Minister for Immigration
[2008] FMCA 162
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHUN NING MOK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 162 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether jurisdictional error – cancellation of subclass 573 higher education sector visa – failure to comply with condition 8202 of the visa – whether exceptional circumstances beyond the visa holder’s control under Regulation 2.43(2) – procedural fairness – bias. |
| Migration Act 1958 (Cth), ss.116, s.137L, 357A, 359, 359A, 360, 474 |
| Hatcher v Cohn (2004) 139 FCR 425 An v Minister for Immigration & Citizenship [2007] FCAFC 97 SZBYR v Immigration & Citizenship [2007] HCA 26 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 |
| Applicant: | SHUN NING MOK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1588 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 11 December 2007 |
| Date of last submission: | 11 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application filed on 21 May 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1588 of 2007
| SHUN NING MOK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 23 April 2007 and notified to the applicant by letter dated 4 May 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Background
The applicant was born on 25 August 1974 and was aged 32 years at the time of the Tribunal hearing.
The applicant is a citizen of China who claims to have been born and raised in Hong Kong.
The applicant arrived in Australia in November 2004 with the intention of being with her new partner who had come to Australia and to obtain further qualifications. She obtained a Student (Temporary)(Class TU) visa, for this purpose.
In the 2006 autumn semester, the applicant studied courses at the Sydney International College of Business (SIC) pursuant to a Subclass 573 Higher Education Sector visa (“the visa”). On 21 November 2006, SIC sent a written Notice to the applicant (Court Book (“CB”) 1) informing her that she had breached condition 8202(3)(a) of her student visa by her failure to meet the 80% attendance requirement; that she had attended 59% of the contact hours scheduled (“the SIC determination”); and that she must report to the Department of Immigration and Multicultural Affairs (“the Department”) within 28 days to explain the alleged breach.
The applicant was provided with a Notice of Intention to Consider Cancellation from the Department on 15 December 2006 (Notice of Intention) giving her the opportunity to comment at interview on the grounds of cancellation based on the SIC determination, and to give reasons why her visa should not be cancelled (CB 4-6).
On 6 February 2007, the applicant’s visa was cancelled by the delegate (CB 21-26) under s.116(1)(b) of the Migration Act 1958 (“the Act”) on the basis of the applicant’s failure to comply with condition 8202 of the visa. Condition 8202 required the applicant’s attendance ‘for at least 80% of the contact hours scheduled’. The delegate found in this regard that the applicant had failed to maintain satisfactory attendance in the term running from 11 September 2006 to 3 November 2006.
The relevant law
So far as is relevant, s.116 of the Act provides that:
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;
(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.
The prescribed circumstances referred to in s.116(3) are set out under Regulation 2.43(2) of the Migration Regulations 1994 (Cth) (the Regulations). Regulation 2.43(2) provides that:
2.43 Grounds for cancellation of visa (Act, s116)
(2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(b) in the case of a Student (Temporary) (Class TU) visa:
(i ) that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or
(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 effect of s.116 and r.2.43(2)(b) is that, if the Tribunal is satisfied that the 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, it must cancel the visa.
The term ‘exceptional’ is not defined in the legislation. However the term has been the subject of judicial interpretation when considering the expression ‘exceptional circumstances beyond the non-citizen’s control’ in s.137L(1)(b) of the Act which deals with applications to revoke automatic cancellations of student visas for breach of condition 8202, and is expressed in very similar terms to r.2.43(2)(b)(ii)(B).
In Chen v MIMIA (2005) 142 FCR 257 Lander J at [11], in considering the operation of s.137L stated that:
any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking the cancellation.
In Hatcher v Cohn (2004) 139 FCR 425, Kiefel J stated at [49] that:
[e]xceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless their application appears from the relevant statutory provision.
The word ‘exceptional’ has also been the subject of recent judicial interpretation in an v Minister for Immigration and Citizenship [2007] FCAFC 97 (29 June 2007) in the context of Sch 2, cl.856.213(c) of the Regulations. Lindgren J, in considering whether an Employer Nomination (Residence) (Class BW) visa (856 Visa) should be granted, stated that:
The word “exceptional” is a simple non-technical word. It means “unusual” or “out of the ordinary” … It is necessary to carry out the legal task of exploring the meaning of the word in the particular regulatory context in which it occurs with a view to identifying, if it can be done, what is the “usual” or “ordinary” case that was in the contemplation against which exceptionality is measured.
Where a breach of condition 8202 has occurred, but is due to exceptional circumstances beyond the visa holder’s control, the prescribed circumstances under which the visa must be cancelled under s.116(3) do not exist. If so, the Minister then has a discretion whether to cancel a visa.
The Tribunal proceedings
On 8 February 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 28-34).
On 6 March 2007 the applicant was sent a letter (the Tribunal letter) pursuant to s.359A of the Act explaining why the SIC letter of 20 December 2006 to the Department was relevant to the review and inviting the applicant to comment on “particulars of any information that the Tribunal considers would be the reason, or a part of the reason”, for affirming the decision of the delegate under review. The Tribunal letter also requested the applicant to provide certain information to the Tribunal pursuant to s.359(2), including whether any non compliance in terms of her SIC attendance was due to “exceptional circumstances beyond the visa applicant’s control” (CB 36-38).
The applicant made comments in response by letter dated 21 March 2007 and also enclosed records of her attendance and achievements (CB 43-51).
On 22 March 2007 the applicant appeared before the Tribunal to give evidence and present arguments together with her migration agent.
The applicant’s claims and evidence
The applicant stated at the hearing that the main reason she failed to attend class was because of her emotional state in the Spring semester of 2006. She had come to Australia to be in a relationship with her lesbian partner who she commenced to reside with. She completed a Diploma of Business TAFE course, and then studied at UTS before attending the SIC in the autumn of 2007. The relationship deteriorated from early 2006 until her partner left her in October 2006. The applicant claimed that part of the reason she suffered after the break-up was that she had no family and friends in Australia to assist her.
The applicant stated that she attended a psychiatrist on two occasions, 16 and 30 January 2007, after which time she took care of herself. The letter from Dr Eddie So, Consultant Psychiatrist of 31 January 2007 (the psychiatrist’s letter) (CB 19-20) indicated that the applicant had “issue gender dysphoria, with preference for the same sex since adolescence”; that she had suffered from “4 months of insomnia and anxiety” following the break-up; and that she suffered from “an adjustment disorder with anxious mood.”
The Tribunal’s findings and reasons (CB 63- 67)
The Tribunal found that:
·the applicant had failed to comply with condition 8202 (due to her 63% attendance in Module 2, Introduction to Hospitality Operations (11/9/06 – 6/10/06) and her 55% attendance in Module 3, Catering Operations – Food Handling/Plan Food Needs (9/10/06 – 3/11/06))
·the circumstances in the present case (including a relationship breakdown), could not be considered exceptional, ‘in the sense that they are unusual’.
·the applicant only sought the assistance from the psychiatrist in January 2007, and only then saw the psychiatrist on two occasions, though she claimed at the hearing that she may revisit the psychiatrist.
·in these circumstances, the applicant’s failure to attend the requisite hours at her course was not ‘beyond her control’ for the purposes of the Migration Regulations.
·the applicant had therefore not complied with condition 8202 and the ground for cancellation in s116(1)(b) therefore exists.
·the applicant’s non-compliance was not due to exceptional circumstances beyond her control and hence in accordance with s.116(3) of the Act such circumstances are prescribed circumstances in which the visa must be cancelled.
For these reasons, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa.
The proceedings before this Court
The applicant filed the application in this Court on 21 May 2001 setting out 3 grounds for review of the Tribunal’s decision.
The applicant appeared in person before this Court on 11 December 2007 with the assistance of an interpreter. Mr Smith of counsel appeared for the first respondent.
The grounds of the application
The grounds of the application are:
(1)The decision maker ignored relevant material.
(2)The decision maker acted in breach of the rules of natural justice.
(3)The decision maker showed apprehended or astensible [sic] bias.
Ground 1 of the application.
Ground 1 fails to provide particulars of the ‘relevant material’ the Tribunal is said to have ignored. Certainly, it cannot be said that the applicant is referring to any material relevant to her course attendance since she conceded before this Court (in her written submissions) that she did not meet the minimum required attendance for the course and ‘apologises deeply’ for her actions in this regard. Further, the applicant has not provided the Court with a transcript of the Tribunal hearing.
In any event, from the face of the Tribunal decision record, I am satisfied that it clearly took into account in reaching its conclusions all relevant material concerning the applicant’s course attendance and her explanation for her poor attendance rate, including material in the Department’s file relating to the applicant, in particular the report from the applicant’s psychiatrist; the applicant’s written response to the Tribunal letter (CB 43-51); course attendance material submitted by SIC in response to the Tribunal’s s.359(1) letter to it (CB 56); and the applicant’s oral evidence at the Tribunal hearing, in particular, her explanation for her failure to attend classes.
Far from ignoring relevant material, the Tribunal’s summary (at CB 66) demonstrates a clear understanding of the applicant’s claims:
The Tribunal understands the applicant is claiming her ongoing issues with her sexuality were exacerbated by her relationship breakdown, which was exacerbated by her lack of friends and family in Australia from whom she could derive support. The Tribunal understands the applicant to be claiming these are exceptional circumstances beyond her control which caused her not to comply with condition 8202.
I am further satisfied that the Tribunal carefully considered all the relevant material in the light of the relevant legislative provisions and the analogous case law relating to the term ‘exceptional circumstances beyond the visa applicant’s control’ (and see further under ground 2 below). I consider that its findings (as set out at CB 63-67) were open to it on all the evidence and material before it and that it performed the task required of it in accordance with law.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application.
Again the applicant has failed to particularise this ground and has provided no transcript of the Tribunal proceedings upon which the Court could have been in a better position to consider this allegation.
The applicant in this case was not entitled to common law natural justice: s.357A of the Act. From the face of the Tribunal decision record, I accept that the applicant was given every opportunity to present her case, both in response to the Tribunal letter and at the hearing. She was clearly on notice of the determinative issue concerning her attendance record from the Notice of Intention; from the Tribunal’s letter inviting her to respond to this information and indicating its relevance to the review pursuant to s.359A(1)(a),(b), and (c) (CB 36); and from her response to the Tribunal letter which included the SIC Certificate of Attendance statement (CB 47). Indeed, the applicant does not seek to cavil with the Tribunal’s finding on this issue.
I consider that the applicant was also squarely on notice that her explanation for her poor attendance rate was crucial to the Tribunal’s assessment of whether her case demonstrated exceptional circumstances beyond her control.
The Tribunal letter in this regard invited the applicant to provide “any evidence and submissions you wish to provide in support of a claim that any possible non-compliance was not due to exceptional circumstances beyond the visa applicant’s control” (CB 37).
In the applicant’s letter in response to the Tribunal, in particular at paragraphs 3–6, and 17–28 (CB 43-46), she provides submissions relevant to exceptional circumstances beyond her control which I am satisfied the Tribunal carefully took into consideration (CB 65-66). The Tribunal also had regard to the psychiatrist’s letter (CB 65) which the applicant submitted in response to the Notice of Intention (CB 4-6).
I accept that it was open to the Tribunal to reach the conclusion on the evidence and material before it that the applicant’s personal circumstances of the breakdown of her lesbian relationship were not exceptional in the sense that they were not ‘unusual’ and to further conclude that they were not beyond her control. The subjective appraisals or thought processes of the Tribunal in reaching this conclusion do not constitute “information” and hence the Tribunal was not required to put these matters to the applicant for her comment or response pursuant to s.359A(1) of the Act: SZBYR v Immigration & Citizenship [2007] HCA 26 at [18], citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123.
I thus detect no breach of s.360(1) and s.359A of the Act in this case. I am therefore satisfied that the Tribunal accorded the applicant procedural fairness within the legislative framework of the natural justice hearing rule.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.
Ground 3 of the application.
The applicant has not provided particulars to identify the precise nature of the allegation of apprehended or ostensible bias in this case. Further, as has already been noted above, the applicant has not provided the transcript of the Tribunal hearings before the Court.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has not been done in the present case.
Whilst the applicant does not assert actual bias, nonetheless I note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any claim of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or ostensible/apprehended, can be demonstrated on the face of the Tribunal decision record in this case. Indeed, far from demonstrating bias on the part of the Tribunal, the process adopted by the Tribunal in this case, of inviting the applicant to respond to the Tribunal letter; of considering the material provided in response; of assessing the oral evidence of the applicant and the psychiatrist’s report; mitigate against any claim of pre-judgment on the part of the Tribunal.
Accordingly, for the reasons stated above, Ground 3 of the application is rejected.
Applicant’s written submission
The applicant concedes that she did not meet the minimum required attendance for the course and ‘apologises deeply’ for her actions. She says however that she has since been attending all her classes and getting high marks.
The applicant’s submission in this regard is not relevant to the task of this Court which is to review the decision of the Tribunal on the material before it in order to determine whether it fell into jurisdiction error.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 15 February 2008
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