SUN v Minister for Immigration

[2017] FCCA 965

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 965

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116, 360

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant: ZHUANG SUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3338 of 2015

Judgment of: Judge Barnes

Hearing date: 4 May 2017

Delivered at: Sydney

Delivered on: 4 May 2017

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the cost of the First Respondent fixed in the sum of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3338 of 2015

ZHUANG SUN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 30 November 2015.  The Tribunal affirmed a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 573 Higher Education Sector visa. 

2. The Applicant, a national of China, was granted a Subclass 573 visa on 21 May 2013 on the basis of his intention to undertake an English for Academic Purposes Course to commence in July 2013 to be followed by a Master of Management (Marketing) Degree which was to commence in October 2013.  He arrived in Australia on 12 June 2013.

3. On 30 April 2015 the Applicant was issued with a Notice of Intention to Consider Cancellation (the NOICC) of his visa under s.116 of the Migration Act 1958 (Cth) (the Act) stating that there appeared to be a ground for cancellation on the basis that he was not, or was likely not to be, a genuine student. He was invited to explain why the ground did not exist and/or his visa should not be cancelled.

4. The NOICC stated that the electronic database containing records relating to international students (PRISMS) recorded that the Applicant’s enrolments in the English course and the Master’s degree course had been cancelled (due to non-commencement of studies in the English course and a failure to enrol to commence studies in the Masters course).  The evidence was that it had been nearly two years since the Applicant had been granted his visa, he had arrived in Australia in June 2013, but that the records indicated that he had not commenced any registered courses in that time. 

5. On 6 May 2015, the Applicant’s migration agent provided a written response to the NOICC in which it was claimed, in essence, that the Applicant’s studies had been frustrated by an unscrupulous agent as detailed in a written statement.

6. On 17 June 2015 a delegate of the Minister cancelled the Applicant’s visa under s.116(1)(fa)(i) of the Act on the basis that he was not a genuine student.

7. The Applicant sought review by the Tribunal.  He was invited to, and attended, a Tribunal hearing.  The only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. 

8. On 30 November 2015 the Tribunal affirmed the delegate’s decision. In its reasons for decision, it set out law in relation to cancellation of a visa under s.116 of the Act, including the matters to which regard should be had in determining whether to exercise the power to cancel the visa. The Tribunal also referred to the law in relation to the concept of “genuine student”. 

9. The Tribunal had regard to the matters recorded in the delegate’s decision which the Applicant had provided to it in support of the review application.  In particular, it referred to the basis on which the visa was granted and the fact that the records showed that the Applicant never commenced the intended courses.  It set out in detail the Applicant’s response to the NOICC, including his claims that he paid a Chinese migration agent an amount to cover course fees and other expenses; as instructed by the agent ha had contacted a teacher in Australia whom he had trusted; that he was instructed through this teacher to withdraw from his first course on the basis he would transfer to another university which would cost less; that it took “half a year” to get transferred; and that he was told the teacher was unable to obtain a refund of tuition fees.  He claimed he had paid the agent and amount for fees and realised he had been “swindled” as the fees had not been paid to the University.  He had not been able to recover the amount paid.  While he claimed he studied for a month in 2014 he did not explain what the course was in which he studied.  He claimed he found out from his mother that the Chinese agent had been arrested for “fraud and irresponsibility” and that what had happened to him was “completely unforeseen and compelling”, that he was a victim of the unscrupulous agent and that he had always had a strong desire to pursue higher education in Australia. 

10. The Tribunal recorded that at the hearing that the Applicant essentially reiterated his claim that he had an agent in China with a partner in Australia, that he had followed their advice and that he had been told he could transfer courses and was waiting for things to sort out.  The Tribunal also recorded that he told it that he did not attend classes.  He claimed that he had discovered that the fees he paid the agent had not included tuition fees.  The Tribunal recorded that it put to the Applicant that he had a personal responsibility to ensure compliance with the visa and that the Applicant stated he really wanted to study in Australia. 

11. The Tribunal also recorded the Applicant said he was not working during that time.   When asked what he was doing if he was not working or going to classes, he was said to have responded:

    I was having fun at home… Playing games….

12. The Tribunal stated that it had considered the evidence cumulatively.  It acknowledged that it was possible that the Applicant was dealing with agents who handled his case in an inappropriate manner.  However, given the Applicant’s response that he was having fun at home playing games during the period in question, the Tribunal did not accept that his failure to commence courses was due to the claimed reasons, finding it difficult to accept that the Applicant for many months was simply waiting for his agent to sort it all out whilst he was playing games at home.  The Tribunal was also of the view that it was the   Applicant’s responsibility to comply with conditions of the visa.  The Tribunal was of the impression that the Applicant was not serious about his studies. 

13. On the basis of the information before it, the Tribunal was satisfied the Applicant was not, or was not likely to be, a genuine student, such that the ground for cancellation in s.116(1)(fa)(i) existed.

14. The Tribunal recognised that this ground did not require mandatory cancellation.  It proceeded to consider whether the power to cancel the visa should be exercised.  In that context it had regard to relevant circumstances including, but not limited to, matters identified in the Department’s Procedure’s Advice Manual. 

15. The Tribunal found that the purpose of the Applicant’s travel to and stay in Australia was to study in Australia, but that the evidence indicated that he was not a genuine student.  It stated that it had carefully considered the Applicant’s explanations as discussed in its reasons, but found them “unpersuasive and unconvincing”.  The Tribunal was not satisfied that these explanations led to the Applicant being a genuine student.  I note that there is a typographical error in this paragraph but, read in context, the intended sense is clear. 

16. The Tribunal acknowledged that visa cancellation may cause the Applicant a certain degree of hardship, such as not being able to pursue or complete further studies, and that he could become an unlawful non-citizen liable to detention if his visa was cancelled unless he made other arrangements.  It recognised that he would have limited options to apply for further visas in Australia.  However, looking at the circumstances cumulatively, the Tribunal was not satisfied there was a degree of hardship that would outweigh the reasons to cancel the visa. 

17. The Tribunal considered the circumstances in which the ground for cancellation arose, but had regard to the fact that the Applicant did not commence the courses in which he was enrolled.  It found that the personal reasons accepted by it did not explain the non-commencement. 

18. The Tribunal acknowledged that the Applicant had responded to the NOICC and that there would be a consequential cancellation of the visa of the Applicant’s spouse which would have a direct negative impact on her.  However it was satisfied that such impact did not outweigh the reasons for cancellation. 

19. The Tribunal acknowledged the Applicant’s claim that he had travelled to Australia to study, but found the cumulative evidence before it indicated that he was not a genuine student.  It had regard to the fact that he was granted a visa to study and stated that it was expected that he would do so. 

20. Considering the evidence as a whole the Tribunal concluded that the Applicant’s intention had not been consistent with the reasons he was granted the visa.  It was satisfied that there were no factors that should lead to the favourable exercise of discretion in this matter.  It affirmed the decision to cancel the visa. 

21. The Applicant sought review by application filed in this court on 9 December 2015. 

22. There are four grounds in the application, although two appear under the heading Final Orders and two appear under the heading Grounds of the Application.

23. The Applicant did not file any amended application or written submissions.  He was given the opportunity today to address the grounds in his application and any other concerns he had with the Tribunal decision or procedures. 

24. The first ground in the application expresses disagreement with the Department and Tribunal decisions.  It claims that they did not consider that the Applicant had been a genuine student or the fact that he had compelling reasons for not continuing his study.  It states that the Applicant provided explanations to the Department and to the Tribunal at the hearing to support his claim, but that the Tribunal “did not give a good consideration”.

25. First, insofar as in this, or in any of the other grounds relied on by the Applicant, he purports to seek review of the delegate’s decision, such decision is a primary decision.  The Court has no jurisdiction to review such a decision. 

26. Contrary to the contention in ground 1, the Tribunal considered both whether the Applicant was a genuine student and also whether the reasons he gave for not studying were such as to support the exercise of discretion against cancellation of the visa.  It did so in the context of considering the reason and extent of any breach of visa condition, the circumstances in which the ground of cancellation arose, as well as the other matters raised by the Applicant.

27. In this ground (and in his oral submissions), the Applicant also took issue generally with the Tribunal’s conclusion that it was not satisfied he was a genuine student and was not satisfied that the circumstances were such that it should exercise its discretion not to cancel the visa.  The Tribunal considered the explanation provided to the Department and, on the evidence before the Court as to what occurred at the hearing, it considered the Applicant’s evidence at the hearing in explanation for his failure to be enrolled in or attend either of the courses in which he was enrolled.  Its findings were reasonably open to it on the material before it and no lack of logic is apparent.  Beyond this, the Applicant’s disagreement with the Tribunal’s conclusions seeks impermissible merits review. 

28. When asked about this ground, the Applicant said that he believed that “they” should pursue the agent who dealt with his student visa issue, because the agent did different things to what he said to him and, as a result, he did not continue with his study. 

29. The Tribunal acknowledged the claims made by the Applicant, both to the Department and at the Tribunal hearing, in relation to an agent said to have behave unscrupulously.  However, as set out above, while accepting that it was possible he dealt with agents who handled his case in an inappropriate manner, the Tribunal did not accept that the Applicant’s failure to commence any courses after his arrival in Australia in June 2013 was due to the claimed reasons.  It gave reasons for reaching that conclusion.

30. The Applicant’s broader contentions that the Department or the Tribunal or the government generally should co-operate with the Chinese government in relation to unscrupulous agents, are not such to demonstrate jurisdictional error in the Tribunal’s decision as to whether to affirm the decision to cancel the Applicant’s student visa.  Ground 1 is not made out.

31. Ground 2 is that the Department and the Tribunal should allow the Applicant to continue further study and that it is “not fair to cancel” his visa.  There is no particularisation of the claim of a lack of fairness.  In oral submissions the Applicant reiterated the claim that his visa should not be cancelled and that they should “go after” the agent instead of him. 

32. There is nothing in the material before the Court to indicate that the Tribunal failed in any way to comply with the procedural fairness obligations in Part 5 of the Act or otherwise failed to accord the Applicant procedural fairness. It invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising on the review under s.360 of the Act. The Applicant attended the hearing. There is nothing to suggest that the Tribunal denied the Applicant a real and meaningful opportunity to give evidence and present arguments or that it failed to raise dispositive issues with him.

33. More generally, there is nothing to indicate that the Tribunal failed to carry out its review by considering whether there was a ground for cancellation and also to consider the exercise of its discretion.  Ground 2 is not made out.

34. Ground 3 is a claim by the Applicant that he is a Chinese citizen, that he has been a genuine student since arriving in Australia and that he always obeyed his visa conditions.  These contentions do not identify any jurisdictional error.  The visa was cancelled on the basis that the Applicant was not or was not likely to be a genuine student, not on the basis of a failure to comply with visa conditions.  I note that it is not in dispute that the Applicant failed to commence his studies.  The Tribunal recorded that he told it at the hearing that he had not been studying and that he did not attend classes. 

35. Ground 4 is that the Tribunal was “over objective” in judging the explanation and response of the Applicant at the hearing.  There is no particularisation as to what is intended by the reference to “over-objective” in this context.  The Applicant said that the Tribunal did not take heed of his explanation, but insisted on what it believed was correct.  However the Tribunal had regard to the Applicant’s explanation. 

36. If this claim may be seen as suggesting that the circumstances were such as to give rise to actual or apprehended bias, such a claim is no made out.  There is nothing in the material before the Court to support any contention that the Tribunal had predetermined the matter such as to establish actual bias (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). Nor is there anything in the material before the Court to support any contention that a reasonably informed observer might form the view that the Tribunal had reached its conclusions with a mind not open to persuasion or that it was unable or unwilling to evaluate all the material before it fairly (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28).

37. Again, I note that the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  It is a rare and exceptional case in which bias would be established on the basis of the Tribunal reasons alone (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). The Tribunal is entitled to assess the evidence before it and to attach such weight to the evidence as it regards appropriate. This is not a case in which the fact-finding has been conducted in an unreasoned manner (see NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115]). Nor do the Tribunal’s findings lack a rational or reasoned foundation.

38. Beyond this, the general contention that the Tribunal was “over objective” does not establish jurisdictional error.  The Tribunal correctly identified the factors to which it must have regard, weighed those matters and formed a conclusion.  Such an approach was reasonably open to it for the reasons which it gave.  This ground is not made out.

39. In submissions in reply the Applicant again claimed that he had been the victim of an unscrupulous agent and that he had lost a considerable amount of money.  He claimed that this had made him feel traumatised and that as a result his study was impacted.  There is no evidence that he made such a claim to the Department or to the Tribunal.  Insofar as this claim is raised for the first time today, it is not indicative of any jurisdictional error on the part of the Tribunal.  The Applicant also claimed that the Australian government should work with the Chinese government to crack down on unscrupulous agents.  Be that as it may, the matter that is before the Court is the review of the Tribunal decision.  Such a complaint does not establish jurisdictional error on the part of the Tribunal.

40. Finally, the Applicant expressed concern that he did not believe that the main reason that caused him to stop studying was, as he put it “me, myself”, so that it was unfair for the Tribunal to cancel his visa.  As indicated, the Tribunal considered the evidence before it, acknowledged the possibility of agents handling the Applicant’s case in an inappropriate manner but, given the Applicant’s evidence bout wat he was doing in Australia while not working and not going to classes, the Tribunal did not accept that his failure to commence courses was due to the claimed reasons.  The Applicant’s disagreement with this conclusion seeks impermissible merits review. 

41. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

42. The Applicant has been unsuccessful.  It is appropriate that he meet the costs of the First Respondent.  The Minister, very reasonably, seeks an order for costs in the sum of $3,500.  I consider that this is an appropriate amount having regard to the nature of this and other similar matters. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 18 May 2017