Tsang v Minister for Immigration
[2015] FCCA 31
•30 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TSANG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 31 |
| Catchwords: WORDS AND PHRASES – “finally determined”. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), s.20 |
| KC v Minister for Immigration & Anor [2014] FCCA 2591 |
| Applicant: | KAI CHUN TSANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 770 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 November 2014 |
| Date of Last Submission: | 18 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application filed on 24 March 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
SYG 770 of 2014
| KAI CHUN TSANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 25 February 2014. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant, Mr Tsang’s, higher education sector visa.
The following statement of background facts is derived from the submissions of the Minister filed on 6 November 2014.
Mr Tsang is a national of the People’s Republic of China who first arrived in Australia on 18 March 2009. His last substantive visa, the student visa, was granted on 30 May 2012 and was to expire on 21 June 2013.[1] The student visa was subject to a number of conditions including that the applicant not be certified by his education provider as not achieving satisfactory course attendance in his registered course: condition 8202(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations).
[1] Relevant Documents (RD) 67; 93
On 8 April 2013, Mr Tsang was certified by his education provider, the Sydney Institute of Business and Technology (SIBT), as not achieving satisfactory course attendance in his Certificate IV in Tertiary Preparation Program course (the TPP course), and he was issued with a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act).[2]
[2] RD 1-7. The TPP course commenced on 25 June 2012 and ended on 6 February 2013: see RD 12.
Pursuant to s.119 of the Migration Act 1958 (Cth) (Migration Act), on 7 May 2013, a departmental officer issued a notice of intention to consider cancellation of the applicant’s visa under to s.116 of the Migration Act.[3] The officer also wrote to SIBT and requested information regarding the applicant’s study of the TPP course.[4] In response SIBT provided information indicating warning messages regarding Mr Tsang’s course attendance had been sent to him on 9, 14 and 16 November 2012, with an intention to report letter (stating that his attendance was less than 70%) forwarded to him on 3 December 2012.[5]
[3] RD 22-26
[4] RD 40
[5] RD 41-49
On 17 May 2013, Mr Tsang responded to the delegate, indicating that he achieved unsatisfactory attendance because he was depressed about his uncle’s death and was worried about financial problems in continuing studying in Australia.[6]
[6] RD 51-53
On 21 June 2013, Mr Tsang’s student visa was cancelled. The delegate was not satisfied that Mr Tsang’s unsatisfactory course attendance was caused by exceptional circumstances beyond his control.[7]
[7] RD 61-71
Tribunal application and process
On 2 July 2013, Mr Tsang applied for review to the Tribunal, with the assistance of a migration agent.[8]
[8] RD 81-92
On 21 January 2014, Mr Tsang’s agent provided material to the Tribunal including:
a)a statement by Mr Tsang stating that he suffered from depression as a result of his uncle’s death in November 2011 (although he discovered his death in April 2012)
b)a letter dated 21 January 2014 from a lecturer at SIBT, Vani Bardetta, stating that Mr Tsang had completed all assignments and exams in his Communication III subject and that he is positioned to pass the course
c)a letter from a consultant psychiatrist dated 2 September 2013 stating that Mr Tsang’s “mental state [was] consistent with psychological wellness”.[9]
[9] RD 112-118
On 28 January 2014, Mr Tsang attended a hearing before the Tribunal accompanied by a witness and his migration agent.[10]
[10] RD 125-126
On 4 February 2014 the Tribunal made a decision affirming the cancellation decision and purported to notify Mr Tsang of its decision in a letter to his agent dated 5 February 2014. However, that letter was sent to an incorrect address.[11]
[11] RD 124-135
On 17 February 2014, Mr Tsang’s migration agent provided the Tribunal with Mr Tsang’s unofficial transcript.[12] By email dated 20 February 2014, a Tribunal officer forwarded the agent “a courtesy copy” of the Tribunal decision dated 4 February 2014.[13] The agent subsequently telephoned the Tribunal alerting it to the fact that the decision had been incorrectly notified.[14]
[12] RD 138 -141
[13] RD 142
[14] RD 143
The case was reopened by the Tribunal with a new decision dated 25 February 2014 sent to Mr Tsang’s agent by letter dated 26 February 2014[15]. This decision, the subject of these proceedings, took account of the evidence received on 20 February 2014 but again affirmed the delegate’s decision.
[15] RD 147-157; 160
Tribunal decision
The Tribunal found that Mr Tsang had not complied with condition 8202(3) as SIBT had certified him as not achieving satisfactory course attendance.[16] The Tribunal then considered whether or not to exercise the discretion to cancel the visa, noting that there were no matters specified in the Migration Act or Regulations that were required to be considered in relation to the exercise of the discretion as to whether the visa should be cancelled, but having regard to the relevant Departmental policy.[17]
[16] RD 153 [12]
[17] As explained later in these reasons, regulation 2.43(b) which had been relied upon by the delegate was repealed on 13 April 2013, and the transitional provisions which required it to be considered by the delegate did not apply when the matter was considered by the Tribunal. Therefore, there were no “prescribed circumstances” in which the visa must be cancelled for the purposes of s.116(3) of the Migration Act at the time of the Tribunal decision.
The Tribunal did not accept that Mr Tsang’s young age and the divorce of his parents were circumstances that outweighed the cancellation of his visa as those issues are common among overseas students and Mr Tsang had successfully completed years 10, 11 and 12 in Australia since his parents’ divorce.[18] Nor did the Tribunal accept that Mr Tsang was severely depressed because of his uncle’s death or that his mother also suffered from depression. The Tribunal noted that Mr Tsang had not sought professional help during the time he claimed to be severely depressed (in 2012) and further, that the letter from the consultant psychiatrist noted the difficulty in proving that Mr Tsang suffered from a psychological disorder during 2012 as he had not consulted a counsellor or psychiatrist at that time. The Tribunal also considered the letter from Vani Bardetta that Mr Tsang’s attendance had improved and that his results would be available in a couple of weeks, however the Tribunal was not satisfied that this outweighed the grounds for cancelling Mr Tsang’s visa in light of all the relevant circumstances and decided that the visa should be cancelled.[19]
[18] RD 155 [29]
[19] RD 155-156 [29]–[30]
The judicial review application
These proceedings began with a show cause application filed on 24 March 2014. Mr Tsang continues to rely upon that application. There are five grounds in the application:
1.That there was a lack of procedural fairness on the determination of my case with the Migration Review Tribunal at both the hearing dated the 28th of January 2014 and in the final decision that I was notified of on the 25th of February 2014.
2.That the Tribunal Member, a person called Ismail Hasan at the hearing dated 28th of January 2014 and in their final decision dated 25th of February 2014, displayed a lack of procedural fairness. In particular, the Tribunal Member was presented at hearing with a signed statement from my teacher, a person called Vani Bardetta to state that I was of good attendance and had completed all my assignments and examinations, and I was in the position to pass my foundation course in line with what is expected of my student conditions.
3.That the Tribunal Member, a person called Ismail Hasan at the hearing dated 28th of January 2014 and in their final decision dated 25th of February 2014, failed to take relevant consideration into account in the exercise of power. That the Tribunal Member failed to take into account my evidence to them that the results of my foundation year studies was going to be available for submission to the Tribunal within a very short time frame. That the Tribunal member had evidence that I had suffered some serious issues with my mental health in the recent past, but as my teacher and psychiatrist stated, these issues were behind me now and I was on track and ahead of my studies. The Tribunal Member lacked procedural fairness and biased against me by not offering me a short extension of time to produce these results when they heard and seen evidence that it was of a positive nature and would be available in the near term.
4.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
5.That the Tribunal Member namely Ismail Hasan, came to their conclusion by inference, but a reasonable person would not of course come to that conclusion.
In addition to the book of relevant documents filed on 1 May 2014 I have before me as evidence the affidavit of Mr Tsang made on 17 September 2014, to which is annexed a transcript of the hearing conducted by the Tribunal. I received as a submission an earlier affidavit by Mr Tsang filed with his show cause application.
The Minister also prepared written submissions, including submissions after the show cause hearing. Mr Tsang made oral submissions at the show cause hearing.
Consideration
This matter came before me for a show cause hearing on 12 November 2014. Mr Tsang, in his oral submissions at that time, claimed to have been depressed and advanced that by way of explanation for getting into difficulties in his studies. He also asserted procedural fairness before the Tribunal, which he sought to support by reference to the transcript at pages 21 and 26. He anticipated an opportunity to submit further material to the Tribunal after the Tribunal hearing. Further material was submitted but was not taken into account in the initial Tribunal decision. Fortuitously, because the Tribunal decision was not properly notified (and was hence not beyond recall) the Tribunal was able to make a second decision which took into account the additional material.
I agree with the Minister that Grounds 1, 2 and 3 in the application do not raise an arguable case for the relief sought.
As noted by the Tribunal, the relevant issues before it were whether Mr Tsang had breached condition 8202, and if so whether it should exercise the discretion available to the Tribunal to cancel his visa. The Tribunal found that:
a)Mr Tsang had been certified by SIBT as not achieving satisfactory course attendance within the terms of condition 8202(3)(b);[20]
b)having assessed all of Mr Tsang’s circumstances, that his student visa should be cancelled.[21]
[20] RD 153 [12]
[21] RD 155 [29]
Contrary to Mr Tsang’s assertions, the Tribunal considered and appears to have accepted the evidence of Mr Tsang’s lecturer that Mr Tsang was then making positive progress in his studies. However, the Tribunal was not satisfied, in light of all the evidence, that Mr Tsang’s latter progress in the course outweighed the grounds for cancelling his visa.
The Tribunal invited Mr Tsang to a hearing and the transcript of the hearing discloses that the dispositive issues were extensively discussed. The Tribunal properly considered all of Mr Tsang’s evidence, including the unofficial results submitted by Mr Tsang’s agent, in determining whether it should exercise the discretion available to cancel Mr Tsang’s visa. The allegation of denial of procedural fairness does not raise a case that is arguable, nor is there anything in the transcript of the Tribunal hearing to support the contention of bias.
Further, I agree with the Minister that no arguable case arises from Grounds 4 and 5. There can be no doubt that the Tribunal gave extensive consideration to Mr Tsang’s circumstances.
Nevertheless, at the show cause hearing I ordered the Minister to show cause, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) why relief should not be granted in relation to the issue raised in the ground of an amended application in SYG576/2014 filed on 27 October 2014. That issue was whether the Tribunal in that case applied the correct version of the Regulations conferring a discretion on the Tribunal not to cancel the visa. I determined that this case was relevantly indistinguishable from that case.
It was agreed between the parties that the matter could be concluded on the basis of written submissions in response to the show cause order. The Minister filed further submissions on 28 November 2014. Mr Tsang filed further submissions on 18 December 2014.
The applicant in proceedings SYG 576/2014 pleaded the following ground:
The Second Respondent erred in the identification and/or application of the operative law and regulations applicable to the review of the applicant’s application and thereby proceeded having asked itself the wrong question, failed to take into account relevant considerations, took into account irrelevant considerations, and constructively failed to exercise its jurisdiction.
This ground is supported by a number of particulars. It is clear from those particulars that the applicant’s allegation relevant to these proceedings is that the Tribunal erred in applying the law as amended by the Amending Regulations.
I accept the Minister’s submission that the Tribunal applied the correct version of the Regulations when it made its decision on 25 February 2014.
Applicable law
Section 116 of the Migration Act and regulation 2.43 of the Regulations
Section 116(1)(b) of the Migration Act gives the Minister the power to cancel a visa where the visa holder has not complied with a condition of the visa. Relevantly, s.116 provides:
(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; or
…
(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(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.
Regulation 2.43(2)(b) of the Regulations had previously prescribed circumstances for the purposes of s.116(3). Those circumstances were:
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) …
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
In this case, the delegate applied the above version of regulation 2.43. The delegate was not satisfied that Mr Tsang’s breach of condition 8202 was due to exceptional circumstances beyond his control.
Amendment to the Regulations
Regulation 2.43(2)(b) was repealed by the Amending Regulations with effect from 13 April 2013[22].
[22] See item 2 of Schedule 3 of the Migration Legislation Amendment Regulation 2013 (No 1)
Item 1303 of Schedule 6 to the Amending Regulations provides that:
1)The repeal of subparagraph 2.43(2)(b)(i) by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) does not apply in relation to a person who:
(a)holds a student visa; and
(b)was sent a notice of proposed cancellation of the visa under section 119 of the Act for non-compliance with visa condition 8104 or 8105 before 13 April 2013.
2)The repeal of subparagraph 2.43(2)(b)(ii) by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) does not apply in relation to a person who:
(a) holds a student visa; and
(b) was sent:
(i) a notice of proposed cancellation of the visa under section 119 of the Act for non-compliance with visa condition 8202 before 13 April 2013; or
(ii) a notice under section 20 of the Education Services for Overseas Students Act 2000 for non-compliance with visa condition 8202 in relation to the visa
As submitted in proceedings SYG 576/2014, the Minister submits as follows:
a)the use of the conjunction “and” after the semi-colon in items 1303(1)(a) and 1303(2)(a) is a clear indication that both subclauses (a) and (b) in each item must be satisfied in order for the transitional provision to apply;
b)both items 1303(1)(a) and 1303(2)(a) are cast in the present tense whereas items 1303(1)(b) and 1303(2)(b) are in the past tense. This indicates a legislative intention that the satisfaction of subclause (a) and subclause (b) in each item is to be considered at different points in time. In particular, subclause (a) requires the visa to be held at least immediately prior to the decision to cancel the visa while subclause (b) looks back in time to when the notice was sent;
c)there was no “retrospective” operation of the Amending Regulations. The Tribunal was undertaking a de novo review of the delegate’s decision[23]. The Tribunal was required to consider the facts and law as they stood at the time of its own decision.
[23] Section 415(1) of the Migration Act
The effect of the amendment for Mr Tsang was that, at the time of the Tribunal’s decision, there were no “prescribed circumstances” in which his visa had to be cancelled for the purposes of s.116(3) of the Migration Act. Rather, the Tribunal was entitled to look at a range of circumstances, not just those that were due to exceptional circumstances outside Mr Tsang’s control. Contrary to Mr Tsang’s supplementary submissions, the amendment enhanced, rather than reduced, the scope of the Tribunal’s procedural fairness obligations.
Effect of cancellation decision
I accept that Mr Tsang’s student visa remained cancelled and was no longer held even after he sought review of the cancellation decision with the Tribunal.
Section 82(1) of the Migration Act relevantly provides that “a visa that is cancelled ceases to be in effect on cancellation”. It follows as a general proposition that the term “finally determined” as it appears in the Migration Act, does not refer to visa cancellation decisions, and as such a cancellation decision takes effect on the day of cancellation, regardless of whether or not an applicant seeks review of that decision by the Tribunal.
In addition, there is no statutory stay provision with respect to visa cancellations under s.116 of the Migration Act. A contrasting provision is at s.134(8) of the Migration Act which provides for the delay of the effect of the cancellation of a business visa under s.134(1) where a person applies for review of the decision to the Administrative Appeals Tribunal (AAT), until 28 days after the AAT gives its decision on review. This is not relevant to the present application and there is no equivalent of s.134(8) in relation to s.116 cancellations.
In the absence of a revocation of the cancellation under s.138 of the Migration Act, Mr Tsang’s student visa remained cancelled notwithstanding that he sought review of the decision.
On 19 December 2014 I handed down judgment in SYG576 of 2014[24]. This matter is relevantly not distinguishable from KC and the same outcome should apply.
[24] KC v Minister for Immigration & Anor [2014] FCCA 2591
Conclusion
Mr Tsang has failed to establish that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application will be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 January 2015
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