Tang v Minister for Immigration
[2013] FMCA 76
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TANG v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 76 |
| MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision. PRACTICE AND PROCEDURE – Application for extension of time to bring proceedings – relevant considerations. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to take a relevant consideration into account, failed to make enquiries and denied the applicant procedural fairness. |
| Migration Act 1958, ss.137J, 137K, 137L, 359, 359A, 359C, 360, 477, 499 Migration Regulations 2004, condition 8202 of sch.8 Education Services for Overseas Students Act 2000, ss.19, 20 |
| Leung v Minister for Immigration & Citizenship (2010) 114 ALD 255 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| Applicant: | RENJIE TANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1036 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 February 2013 |
| Date of Last Submission: | 5 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Nair |
| Solicitors for the Applicant: | Auyeng Hencent & Day |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time to bring these proceedings be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1036 of 2012
| RENJIE TANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China and was granted a Student (Class TU) Subclass 573 Higher Education Sector visa on 30 June 2008. On 12 April 2011 that visa was cancelled automatically pursuant to s.137J of the Migration Act 1958 (“Act”). On 18 May 2011 the applicant applied to the first respondent (“Minister”) for the revocation of the cancellation of his visa and on 27 May 2011 a delegate of the Minister decided not to revoke the cancellation. The applicant then applied to the second respondent (“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.
These proceedings were commenced out of time and the applicant has sought an extension of time within which to bring them. For the reasons which follow, the application for an extension of time will be dismissed.
Relevant legislation
Subclass 573 visas are subject to condition 8202 which is found in sch.8 to the Migration Regulations 2004 (“Regulations”). At the time the applicant was granted his visa condition 8202 relevantly provided:
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;…
The provisions relating to the automatic cancellation of student visas are found in subdiv.GB of div.3 of pt.2 of the Act. The relevant sections of the Act provide:
137J Non‑complying students may have their visas automatically cancelled
(1)This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).
(2)The non‑citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non‑citizen complies with the notice; or
(b)the non‑citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.
137K Applying for revocation of cancellation
(1)A non‑citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.…
137L Dealing with the application
(1)On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a)that the non‑citizen did not in fact breach the relevant visa condition or conditions; or
(b)that the breach was due to exceptional circumstances beyond the non‑citizen’s control; or
(c) of any other matter prescribed in the regulations.
(2)However, the Minister must not revoke the cancellation on the ground that the non‑citizen was unaware of the notice or of the effect of section 137J. …
At the relevant time s.19 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) provided:
19 Giving information about accepted students
(1)A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
(a)the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;
(e) any change in the identity or duration of an accepted student’s course;
(f) any other prescribed matter relating to accepted students.
(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
…
Section 20 of the ESOS Act requires an education provider to send an accepted student a written notice if the student has breached a prescribed condition of a student visa. At the relevant time it provided:
20 Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
…
Background facts
On 30 June 2008 the applicant was granted a subclass 573 student visa and in March 2009 he commenced a four year Bachelor of Engineering–Mining Engineering course at the University of New South Wales (“UNSW”). On 7 December 2010 UNSW sent the applicant a letter informing him that his academic progress was considered to be unsatisfactory and that his academic standing level was “Suspension”. The letter advised the applicant that he had until 18 January 2011 to appeal that decision. On 9 February 2011 UNSW sent the applicant a further letter informing him that his enrolment had been cancelled and giving him notice of its intention to report him to the Minister’s department as not achieving satisfactory course progress.
On 14 March 2011 UNSW issued the applicant with a written notice under s.20 of the ESOS Act certifying that he had not achieved satisfactory course progress for the purposes of s.19 of the ESOS Act and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“National Code”). On 12 April 2011 the applicant’s visa was automatically cancelled under s.137J of the Act.
On 23 May 2011 the applicant submitted a request for the revocation of the automatic cancellation of his student visa. In his email the applicant claimed:
a)he had been diagnosed with colour blindness which caused him to lose confidence and also adversely affected his course progress. Following his diagnosis he became addicted to video games and novels;
b)he did not attend university for over a year and failed all his courses;
c)he did not appeal UNSW’s decision to report him because of his mental anguish; and
d)his mental health had improved and he was again able to study. He had a new confirmation of enrolment from Strathfield College and an offer of admission to a Bachelor of Engineering course from the University of Western Sydney. He had also applied for admission to the University of Technology, Sydney and Wollongong University.
The applicant submitted the following documents with his email:
a)a medical certificate from China dated 15 January 2010 diagnosing him with colour blindness in both eyes;
b)a medical certificate from China dated 25 January 2010 stating that he was suffering from anxiety and depression and recommending that he attend regular consultations and take regular breaks when studying to reduce his psychological pressure; and
c)a medical certificate from China dated 14 May 2011 stating that through regular consultations his emotional state had stabilised and was improving. The certificate stated that he had an abundance of energy but still needed to pay more attention to his concentration. The certificate further stated that he could engage in normal work and study.
The Tribunal’s decision and reasons
On 29 February 2012 the Tribunal wrote to the applicant pursuant to ss.359(2) and 359A of the Act inviting him to provide information which might support a revocation of the visa cancellation and also to comment on or respond to information that it considered would be the reason or part of the reason for affirming the delegate’s decision. The applicant was advised that if he did not respond in writing by 16 March 2012, the Tribunal might make a decision on his application without taking any further steps to obtain his comments or response and that he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The applicant did not respond within the prescribed period and no extension was granted to him. In those circumstances, the Tribunal found that s.359C of the Act applied and that, pursuant to s.360(3), the applicant was not entitled to appear before it. The Tribunal therefore proceeded to make a decision on the review without taking further steps to obtain comments or information from him.
The Tribunal found that the applicant had breached condition 8202. In this regard, the Tribunal found that it was unable to look beyond UNSW’s certification that the applicant had not achieved satisfactory course progress for the purposes of s.19 of the ESOS Act and standard 10 of the National Code. The Tribunal also noted that the applicant had conceded that he had breached condition 8202.
The Tribunal was also not satisfied that the applicant’s breach of condition 8202(3) was due to exceptional circumstances beyond his control. In this regard:
a)the Tribunal found that there was no policy advice from the Director of Compliance Operational Support section indicating any political upheaval or natural disaster in the applicant’s home country. The Tribunal also found that there was no evidence of written advice from the Department of Education Science and Training (“DEST”) or an education provider that they had concerns about errors or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting;
b)there was no other information available to the Tribunal about the applicant’s exceptional circumstances except for his argument, supported by medical and psychological evidence, that he had been diagnosed with colour blindness and had become addicted to video games and novels which had caused him to lose confidence and concentration, and have anxiety, depression and mental anguish. The Tribunal noted that the applicant had been given an opportunity to provide further written information about his exceptional circumstances but had failed to take advantage of that opportunity. The Tribunal therefore found that the information before it was insufficient to conclude that the applicant’s colour blindness or addiction to video games and novels were exceptional circumstances or, if they were, that they affected him in a way which prevented him from taking action to prevent his unsatisfactory course attendance or the certification; and
c)the Tribunal did not consider the applicant’s claim that his mental health had improved and he was again able to study, his new confirmation of enrolment and his applications for admission to other universities, to be exceptional circumstances beyond his control in relation to his breach of condition 8202. The Tribunal found that these matters were unrelated to his unsatisfactory course progress at UNSW.
Having considered the applicant’s claims individually and in combination, the Tribunal was not satisfied that the applicant’s breach of condition 8202 was due to exceptional circumstances beyond his control. It thus affirmed the decision to not revoke the automatic cancellation of his student visa.
Application for extension of time
Section 477 of the Act provides the time limits which apply to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. It relevantly provides:
477Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a)…
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …
The Tribunal’s decision was dated 20 March 2012 which means that the applicant had until 24 April 2012 to commence these proceedings. However, as the application was not filed until 11 May 2012, it was brought out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies why the applicant considers it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application specified why he said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. The considerations relevant to this question in the circumstances of this case are whether the applicant has a reasonable explanation for the delay in commencing these proceedings and whether the allegations made in the substantive application (for judicial review) have reasonable prospects of success.
Does the applicant have a reasonable explanation for the delay?
In his affidavit affirmed on 26 September 2012 the applicant deposed that he did not receive a copy of the Tribunal’s decision until 1 May 2012, when he received it from his migration agent, following which he sought legal advice and then filed the initiating application himself on 11 May 2012.
I accept that the applicant did not receive a copy of the Tribunal decision until 1 May 2012. In the circumstances, I am satisfied that the applicant has satisfactorily explained the delay in commencing these proceedings.
Reasonable prospects of success
Next it is necessary to consider the substantive part of the application which the applicant has brought to the Court and whether it has reasonable prospects of success.
In his further amended application the applicant alleged:
1.The Tribunal failed to exercise its jurisdiction in that the Tribunal failed to be satisfied or not satisfied that the applicant’s failure to comply with condition 8202 of the applicant’s visa was not due to exceptional circumstances beyond the visa holder’s control.
Particulars
i)Section 137L of the Migration Act 1958 relevantly provides that the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister that the breach was due to exceptional circumstances beyond the non-citizen’s control.
ii)Ministerial Direction No. 38 (made under s.499 of the Migration Act 1958) provides (see Part B, paragraph 8) that “decision makers must have due regard to but are not limited to the following matters”, inter-alia, as follows:
· where DEST or an education provider states in writing that they have concerns about errors and/or inappropriate action or omissions in the process leading to the breach and the reporting thereof. This may include concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, decision makers should give due regard to the following matters and make further inquiries as appropriate:
·if the education provider has failed to accurately monitor the student’s progress or attendance.
iii)It should have been clear (and it was clear) that the relevant education provider had failed to monitor the applicant’s attendance and progress and to implement intervention strategies.
iv) The Tribunal failed to take this into consideration.
v)The material before the Tribunal showed that the Department of Immigration and Citizenship had written to the Education Provider requesting further relevant information including copies of any warning letters to the applicant. The Court can infer and should infer from the lack of any such further material that the inquiry commenced by the letter from the Department was not completed. This failure to complete a relevant inquiry is also a denial of procedural fairness.
Applicant’s submissions
The applicant’s case rested on two foundations. The first was UNSW’s obligation pursuant to standard 10 of the National Code to implement procedures for intervening in the cases of students who are at risk of failing to achieve satisfactory course progress. The National Code relevantly provides:
10.4The registered provider must have a documented intervention strategy, which must be made available to staff and students, that specifies the procedures for identifying and assisting students at risk of not meeting the course progress requirements. The strategy must specify:
a. procedures for contacting and counselling identified students
b. strategies to assist identified students to achieve satisfactory course progress; and
c. the process by which the intervention strategy is activated.
10.5The registered provider must implement the intervention strategy for any student who is at risk of not meeting satisfactory course progress requirements. …
The other foundation of the applicant’s substantive case was an assertion that his non-compliance with condition 8202 had arisen out of UNSW’s failure to implement the procedures mandated by standard 10 of the National Code.
The significance of these matters was said to be reflected in Ministerial Direction No.38 (made under s.499 of the Act) and, in particular, in the following passage from that direction:
… decision makers should give due regard to the following matters and make further enquiries as appropriate:
· if the education provider has failed to accurately monitor the student’s course progress or attendance.
The applicant submitted that the phrase “accurately monitor” in Direction No.38 was to be construed by reference to the purpose of such monitoring which he submitted “clearly includes the purpose of timely intervention to assist overseas students make satisfactory progress and course attendance”.
The applicant submitted that two matters arose out of Direction No.38 and what he said was its correct interpretation. The first of these was said to be that the Tribunal was required to turn its mind to whether UNSW had satisfied its obligation under the National Code to implement adequate intervention strategies for overseas students such as him. The second was said to be a duty on the part of the Tribunal to make enquiries into whether UNSW had satisfied that obligation. He submitted that it had not done either and had erred as a consequence.
The applicant submitted that the Tribunal’s duty to consider whether UNSW had such procedures, and also to make enquiries into whether such procedures had been implemented in fact, arose because, before it could affirm the delegate’s decision, it had to be satisfied that his breach of condition 8202 was not caused by exceptional circumstances beyond his control. He submitted that the Tribunal had to be satisfied of this regardless of whether he had presented any evidence or presented any arguments to it.
He also submitted that the Tribunal was required to consider all the evidence before it.
Consideration
It can be accepted that UNSW was obliged to observe standard 10 of the National Code and to implement the sort of procedures which the applicant identified. However, when he sought departmental revocation of the cancellation the applicant did not suggest that his lack of academic progress was even partly a product of those failures and the Tribunal was never invited to consider whether UNSW’s alleged failure had any significance for the applicant’s academic progress. Nevertheless, the possibility cannot be excluded, were the matter to be remitted, that the Tribunal would find that the applicant’s lack of academic progress was influenced by a failure by UNSW to observe the National Code.
The applicant was correct to submit that the Tribunal was required to consider all the evidence before it, but what he pointed to was not evidence which had not been considered but an absence of evidence from which the Tribunal did not draw a particular conclusion. He submitted in this regard that, apart from the letter of 7 December 2010, nowhere amongst the material which UNSW produced to the department in response to its request for copies of relevant records were there documents recording warnings to him by UNSW concerning his unsatisfactory academic progress. He submitted that this had the effect of putting the Tribunal on notice that UNSW had not discharged its obligations under standard 10 of the National Code. However, the applicant had not alleged to the department or the Tribunal that UNSW had not met those obligations and, for reasons given below at [35]–[37], the Tribunal had no general duty to consider whether that was the case. In such circumstances, the fact that the Tribunal did not turn its mind to those questions does not disclose error on its part.
In any event, the applicant’s real complaint in that submission was that the Tribunal did not reach a particular conclusion based on the material or the absence of material before it. However, decisions of this sort are matters for the Tribunal and are not reviewable in judicial review proceedings such as these. For that reason, this aspect of the applicant’s case discloses no basis on which the Tribunal’s decision might be set aside.
The applicant also submitted that, nonetheless, Ministerial Direction No.38 had the effect of requiring the Tribunal to turn its mind to, and also to enquire into, whether UNSW had satisfied its obligation under the National Code to implement adequate intervention strategies for overseas students such as him. However, the relevant part of the direction commences with the words:
· where DEST or an education provider states in writing that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the breach and the reporting thereof. …
The evidence does not support a finding that either UNSW or the department which succeeded DEST had expressed in writing any concerns about the process by which UNSW concluded that the applicant had failed to make satisfactory academic progress. That being so, the Tribunal was not obliged by Ministerial Direction No.38 to consider or enquire into whether UNSW had failed to monitor the applicant’s course progress accurately. Therefore the fact that it did not do so did not amount to a failure to discharge a statutory duty.
The applicant’s further submission, that before it could affirm the delegate’s decision the Tribunal had to be satisfied that his breach of condition 8202 was not caused by exceptional circumstances beyond his control, must also be rejected. This argument, that Tribunal had a positive duty to satisfy itself of the absence of exceptional circumstances which would excuse the applicant’s breach of a visa condition, fails to take adequate account of the fact that s.137L provides that the cancellation may be revoked:
… if, and only if, the applicant satisfies (the Tribunal):
….
b) that the breach was due to exceptional circumstances beyond the non-citizen’s control; …
This argument presupposed that the Tribunal’s lack of satisfaction that a breach was due to exceptional circumstances beyond an applicant’s control implied as a corollary that the Tribunal was reasonably satisfied of the reverse proposition, that the breach was not due to such exceptional circumstances. The argument implied that the Tribunal had to be satisfied of the latter in order to find that it was not satisfied of the former. That is not correct. The two concepts are not corollaries. To be unconvinced of the existence of something does not require proof that it does not exist. The Tribunal had no obligation to satisfy itself that there were no exceptional circumstances before it could be in a position to conclude that it was not satisfied that the relevant exceptional circumstances existed.
Further, as the Tribunal had no obligation to positively satisfy itself in the manner submitted by the applicant, and also for the reasons given below at [36] and [37], it had no corresponding general duty to consider the issue of UNSW’s conduct or to make the enquiries which he identified.
Finally, the applicant alleged that the Tribunal denied him procedural fairness because it failed to complete the enquiry which had been commenced by the department. That is to say, the applicant submitted that the Tribunal should have enquired into whether UNSW’s response to the department’s request for documents was comprehensive and complete. The applicant referred in this connection to Leung v Minister for Immigration & Citizenship (2010) 114 ALD 255. However, that case is distinguishable from the present one and is not authority for the proposition advanced. More relevant is what the plurality of the High Court said in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1128-1129 [24]-[25]:
Mason CJ and Deane J in Teoh … rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness.
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to reference to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. (references omitted)
The applicant has not identified why, notwithstanding the High Court’s reservation, the common law rules of procedural fairness required the Tribunal to enquire into the conduct of UNSW. Nor did he submit that any of the provisions of the Act which relevantly codify such common law rules might have required the postulated enquiries to be made. I find that procedural fairness did not require the Tribunal to make those enquiries.
For these reasons I conclude that the applicant’s substantive application does not have reasonable prospects of success.
Conclusion
Although I have found that the applicant has provided a satisfactory explanation for the delay in commencing these proceedings, because I have also found that his substantive application does not have reasonable prospects of success, his application for an extension of the time within which to bring these proceedings will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 14 February 2013
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