WANG v Minister for Immigration
[2009] FMCA 1323
•11 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1323 |
| MIGRATION – Review of decision of Migration Review Tribunal – applicant seeking impermissible merits review – Tribunal’s findings open to it on what was before it – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), reg.2.43 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 |
| Applicant: | XI WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2033 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 December 2009 |
| Date of Last Submission: | 11 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | - |
| Counsel for the Respondents: | Ms Mitchelmore |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 24 August 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2033 of 2009
| XI WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from transcript)
This is an application made on 24 August 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 24 July 2009, which affirmed the decision of a delegate of the respondent Minister to cancel the applicant’s student visa, a subclass 573 Higher Education Sector visa.
Background
The Minster has put before the Court a bundle of relevant documents (Court Book – “CB”) from which the following background may be derived.
The applicant, who is a national of the People’s Republic of China, entered Australia on 26 April 2007. At that time, he was the holder of a particular type of student visa, which was said to be in force until 15 September 2010. Relevantly, from June 2007 to October 2008 the applicant was enrolled in a Diploma of Computing at the Sydney Institute of Business and Technology (“SIBT”).
On 27 November 2008, SIBT certified that the applicant had not achieved satisfactory course progress, and that he had therefore breached a condition attaching to his visa. This was condition 8202(3), set out in Schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”). I note, relevantly, cl.573.611 of Schedule 2 to the Regulations. Also relevant are sub-cls.1 to 3 of condition 8202 in the form that applies to breaches since 1 July 2007.
On 18 December 2008, an officer of the respondent’s Department issued a Notice of Intention to Consider Cancellation of the visa that had been granted to the applicant. The notice was said to have been given pursuant to s.116 of the Act. This was the first notice given to the applicant. It relevantly referred to s.116 and the power to cancel a visa in circumstances where the holder had not complied with a condition of the visa.
It specifically referred the applicant to reg.2.43 of the Regulations and, in particular, sub-cl.2, and, as relevantly set out in the Minister’s written submissions at [3]:
“3. On 18 December 2008, the Department of Immigration and Citizenship (the Department) issued a Notice of Intention to Consider Cancellation of the applicant’s visa (CB 9), pursuant to s 116 of the Migration Act 1958 (Cth) (the Act). In the Notice, the Department:
…
(ii) set out reg 2.43 of the Regulations, subclause (2) of which provides that for the purposes of s 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) …
(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.
(iii) set out condition 8202; and
(iv) invited a written response from the applicant as to why his visa should not be cancelled.”
I note this because that would have been the opportunity for the applicant to have seen, in full, the part of the Regulations that was relevant to his matter.
What is said at that part of the Regulations is that reg.2.43, sub-cl.2 provides, for the purposes of s.116 of the Act, the circumstances in which the Minister must cancel a visa.
What can be relevantly drawn from that part of the Regulations is as set out as follows.
“For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) in the case of a visa other than a relevant visa -- each of the circumstances comprising the grounds set out in:
(i) sub-subparagraphs (1) (a) (i) (A) and (B); and
(ii) paragraph (1) (b) ; and
(aa) in the case of a relevant visa -- the circumstance comprising the grounds set out in subparagraph (1) (a) (ii); and
(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 condition 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 notification from the Minister’s Department set out condition 8202 and invited a response from the applicant as to why the visa should not be cancelled.
On 18 December 2008 the applicant appointed a migration agent to assist him (CB 17 to CB 20). The agent provided a written response to the notice on 7 January 2009 (CB 22). Relevantly, the agent claimed as follows (CB 22):
1)The applicant had sustained an injury to his arm when he was hit by a car in the Sydney suburb of Eastwood.
2)The applicant had been sick during examination periods, and medical certificates were provided.
3)The applicant had been preoccupied in the preceding 6 months because of his mother’s health condition.
A second notice was issued from the Minister’s Department on 9 April 2009 (CB 51 to CB 55). It was also issued pursuant to s.116, as the first was found to have contained what was described as “an administrative error”. In all other material respects the second notice advised the applicant to the same effect as the first. The applicant was again invited to comment on the relevant matters.
Ultimately, on 21 April 2009, a delegate of the Minister cancelled the applicant’s student visa under s.116(1)(b) of the Act, finding a breach of condition 8202(3)(a). The delegate was satisfied that the applicant’s failure to comply was not due to exceptional circumstances beyond his control.
The Tribunal
On 27 April 2009, the applicant applied to the Tribunal for review of that decision. (The application is reproduced at CB 75 to CB 82.) He was again represented by the same migration agent.
By letter dated 14 May 2009 the Tribunal requested certain information from SIBT (CB 86). Also on 14 May 2009 the Tribunal sent, by facsimile communication, a letter to the applicant’s authorised recipient for the purposes of receiving correspondence, inviting comment on information that it said would be the reason, or a part of the reason, for affirming the decision to cancel the visa (CB 87 to CB 89).
The advisor responded, and in context it appears on the applicant’s behalf, on 21 May 2009 (CB 90), and referred the Tribunal to the applicant’s response to what was described as “the DIAC’s S116 letter”. In addition, the agent noted that the applicant was now studying for a Diploma of Business at the “Top Education Institute”, and requested more time to provide further information, as the applicant expected to be notified of his examination results in two weeks.
In the meantime, SIBT responded to the Tribunal’s letter on 9 June 2009 (CB 95 to CB 101).
The applicant was invited to, and attended, a hearing before the Tribunal on 7 July 2009 (CB 92 to CB 93 and CB 102). The Tribunal’s account of what occurred is set out in its decision record at [35] to [50] (CB 119 to CB 123). Relevantly, that account shows that at the end of the hearing the applicant requested further time to respond to information that was put to him at the hearing. The applicant was given two weeks to do so, that is, until 21 July 2009 ([50]).
On that date the applicant’s agent requested a further period to enable the applicant to obtain his examination results (CB 105). The Tribunal responded that it did not agree with this request. But in any event, said that it accepted that the applicant was “doing better academically” (CB 106 to CB 108).
The Tribunal then proceeded to formulate its decision and found that the applicant had not complied with condition 8202(3)(a) attaching to his visa ([54] at CB 123).
In relation to whether the non compliance was due to exceptional circumstances beyond the applicant’s control, the Tribunal said that it had had regard to Ministerial Direction No. 38, as it was required to do. It found that SIBT had complied with the relevant National Code that applied to matters of this type ([56] at CB 124), and that there was no relevant information available in regard to political upheaval or natural disaster in the applicant’s home country, China, such as to cause the Tribunal to take those matters into account ([57] at CB 124).
The Tribunal also had regard to the circumstances that had been submitted by the applicant as to why his non-compliance was due to exceptional circumstances beyond his control. In this regard the Tribunal:
1.Did not accept that the claim to have been hit by a car constituted exceptional circumstances beyond the applicant’s control. The Tribunal noted the inconsistent evidence that had been provided, and that the applicant had not required medical attention. It considered that the absence of any need for medical treatment suggested that the incident would not have affected his academic progress ([59] at CB 124).
2.Considered the medical certificate provided in support of the claim that he was concerned about, and therefore could be said to be distracted by, his mother’s poor health. It found this to be problematic, given the lack of detail, and that it was issued four months after the claimed accident, which gave rise to the mother’s condition, had occurred ([60] at CB 124).
3.In relation to the applicant’s health, noted that the medical evidence submitted by him was limited in that it referred only to short term illnesses, and that the medical report stated that the applicant was otherwise fit and healthy. The Tribunal was not satisfied that ill health was an exceptional circumstance beyond his control ([62] at CB 125).
In all, therefore, the Tribunal affirmed the decision to cancel the applicant’s visa, as it was satisfied that the applicant had not complied with condition 8202, and that, therefore, there existed a ground for cancellation of the visa pursuant to s.116(1)(b) of the Act.
Application to the Court
The grounds of the application before the Court are in the following terms:
“1. The MRT’s decision was affected by jurisdictional error.
2. The MRT failed to give sufficient consideration to my claims.
3. The MRT did not give me benefit of doubts when I failed to provide documentary evidence of the car accident.”
I note also generally the matters asserted in the applicant’s affidavit filed at the same time as his application to the Court, but this really does not add anything of substance to what has already been asserted. Nonetheless, I will deal with those matters in due course.
Before the Court
The applicant first appeared before the Court at the first court date on 16 September 2009. He was assisted by an interpreter in the Mandarin language at that time and, amongst other orders made, this matter was set down for final hearing on 26 October 2009.
On that date there was no appearance by the applicant. It appeared that a medical certificate had been sent to the Court asserting that the applicant was suffering from gastritis, and was unfit for work. The matter was adjourned until 28 October 2009.
The applicant did appear on that occasion and stated he was unwell. He said also that he was facing examinations and was unable to cope with both.
Ms Mitchelmore of counsel appeared for the respondent, and on that occasion willingly conceded that the applicant appeared unwell. The matter was therefore adjourned until 11 December 2009, the date taking into account Ms Mitchelmore’s availability, and generally complying with the applicant’s concerns about his upcoming examinations.
Before the Court the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms Mitchelmore again appeared for the first respondent. In addition to the application, the applicant’s affidavit, and the Court Book, I also have written submissions from the Minister.
Before the Court the applicant confirmed that he was able to proceed with the hearing. He explained that his purpose in coming to Australia was to further his studies, that he was now engaged in study with another institution, that he was trying his utmost to recover his lost opportunity to study, and that he was working “really hard’.
I explained to the applicant that, while I understand the difficulties faced by persons who come from overseas to study in Australia, this Court was unable to assist him in providing him with the opportunity to proceed with his studies, other than being consequent as result of the Court finding, what I described to the applicant as, a “legal mistake” in the Tribunal’s decision. I explained that the issue before the Court was not whether he should be able to continue his studies, but whether the Tribunal’s decision was infected by such a legal error so that the Court should return the matter for reconsideration by the Tribunal.
The applicant subsequently explained that he had been busy in preparing for examinations and was not able to look into those type of “legal details”.
First, I should note that I was satisfied that the applicant has had a proper and reasonable opportunity to put his case before the Court. The application was made on 24 August 2009 and, notwithstanding that the applicant was, at least on the evidence before the Court, unwell for some days in October from a medical condition described in the certificate that was provided to the Court as “gastritis”, I can take judicial note that in the absence of any other evidence, and in light of my confirming with the applicant that he was able to proceed, such an illness would not have had a long term effect on his capacity to prepare for the final hearing of his matter today.
Ultimately, in my view, the applicant has had a reasonable opportunity, even from that time in late October until now, to have made arrangements to have prepared himself for this final hearing. There is nothing before the Court by way of evidence, or indeed even assertion, that the applicant was prevented in seeking assistance from others, including legal assistance, during the time that was available to him. I was satisfied, therefore, that the hearing should proceed.
Consideration
Grounds One and Two
Ground one in the application asserts jurisdictional error in the Tribunal’s decision. No particulars whatsoever are provided in the application. However, it appears that some particularity is provided in the applicant’s affidavit which accompanied his application to the Court. In his affidavit the applicant states that he believes the decision involves jurisdictional error because the Tribunal failed to give sufficient consideration to the exceptional circumstances that he claimed before it. This is also the claim as stated to be ground two in the application.
I can only say that on any plain reading of the material before the Court, this ground must be rejected. Even a plain reading of the Tribunal’s decision record reveals that the Tribunal did consider the matters that the applicant advanced. It is, as Ms Mitchelmore submitted, that the Tribunal’s conclusion, that his breach of condition 8202 was not due to exceptional circumstances, was a finding open to the Tribunal to make on what was put before it.
I also note Ms Mitchelmore’s submission, and agree that the applicant’s complaint appears to be that it is not that the Tribunal did not give consideration, but that it failed to give sufficient consideration. In light of what is before the Court, and in the absence of anything else, I can only see that this is really a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Nor can I otherwise see any error such as to constitute jurisdictional error. The Tribunal complied with the mandatory provisions in Division 5 of Part 5 of the Act which contains the Tribunal’s obligations, and opportunities, in relation to the relevant natural justice code. I note that the applicant was invited to a hearing pursuant to its obligations set out in that Division of the Act.
Having regard to all of the matters set out in that Division, I cannot see that any error arises in relation to the Tribunal decision, nor that any other error arises from the decision itself. Grounds one and two, therefore, are not made out.
Ground Three
In ground three, the applicant complains that the Tribunal did not give him the benefit of the doubt when he failed to provide documentary evidence of the car accident which his agent had advanced initially, and that he had advanced at the hearing as one aspect of the difficulties that had been occasioned in relation to his situation.
First, I cannot see that the lack of evidence about the claimed car accident was the basis for the Tribunal’s conclusion that his claimed injury, as a result of this alleged incident, was not an exceptional circumstance beyond his control. The applicant’s complaint, it must be said, appears to labour under the misapprehension that the Tribunal is compelled to uncritically accept everything he said at the hearing before it. I should just note that, to the extent that the applicant’s complaint asserts that the Tribunal did not give him the benefit of the doubt, in relation to the failure to provide documentary evidence of the car accident, the Tribunal, on any plain reading of its decision record, did not rely on any such failure to provide documentary evidence.
In this regard, I note Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041, particularly, [16] of Hill J’s judgment:
“16 There is also the suggestion on the part of the Tribunal that there is some necessity for an applicant to the Tribunal to "substantiate" claims. If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous. The word "substantiate" is defined in the Macquarie Dictionary 3rd Edition as follows "1. to establish by proof or competent evidence:... 2. to give substantial existence to. 3. To present as having substance". The ordinary English use might suggest that the Tribunal member did not regard the applicant's statement as being evidence at all but rather required some other evidence to be provided. The sense in which it is used may perhaps also suggest that the Tribunal thought that there was a need for corroboration. If corroboration were necessary there was the country information. But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the Tribunal corroborate, if that is what the Tribunal meant, a statement made.”
The case before the Court now can be clearly distinguished from the circumstances which his Honour was addressing in his judgment. In the current case the Tribunal’s relevant conclusion turned on the evidence provided by the applicant himself. Specifically, and relevantly, the applicant, through his adviser, told the Minister’s delegate that the claimed accident occurred in Eastwood. This was recorded in the delegate’s decision. At the hearing before the Tribunal the applicant claimed that the accident occurred next to the QVB in the city. The Tribunal noted this obvious discrepancy. It further noted that no attempt was made to correct the claimed location of the incident after the delegate recorded the location as initially advised.
But even further, in reasoning which, at least implicitly, reveals that the Tribunal accepted that the accident had occurred (and, I note, thereby giving the applicant the benefit of the doubt that he now claims that the Tribunal denied him), the Tribunal considered that the applicant’s own evidence, which was that he did not require any medical attention, was such that it was not an exceptional circumstance beyond his control in affecting his opportunity to comply with the relevant visa condition, that is, in affecting his academic progress.
It must be said that, again, on any plain reading of the Tribunal’s unchallenged account of what occurred at the hearing, and I say unchallenged in the sense that the applicant has not brought any evidence to the contrary to the Court, it was, in my view, generous of the Tribunal to have given the applicant this benefit of the doubt.
Even putting to one side the inconsistency in location, which was never explained to the Tribunal’s satisfaction, it was the applicant’s own evidence that the driver of the car, who was said to be involved in the accident, just happened to have $700 in cash, and paid this to the applicant at the scene of the accident. No report was made to police or, relevantly, to SIBT. The applicant’s evidence was that he was not seriously hurt. As to why he had not sought medical attention, or indeed, why he did not make a report to the police, the applicant’s evidence in response was that he was alone in Sydney, and did not know what to do.
It must be said that the applicant apparently had forgotten that he had previously given evidence that he lived with his sister in Sydney. A sister whom (according, again, to his own evidence given in relation to issues of his health and other claimed ailments in February/ March 2008) the applicant had said “took care of him in the Chinese way with Chinese medicines” ([45] at CB 121).
This was presumably, therefore, the same sister whose existence the applicant then subsequently denied, or ignored, in responding to the Tribunal’s question as to why he had said that he was alone in Australia, when he had also previously said that he lived with his sister in Australia. The applicant’s explanation was that they were “not close”.
In my view, there was certainly sufficient material for the Tribunal to have found that the applicant’s entire account of the claimed accident was implausible.
Despite the applicant’s complaint now that the Tribunal did not give him the benefit of the doubt, the Tribunal proceeded in its consideration on the basis that the incident had occurred, thereby, in my view, giving the applicant that benefit of the doubt which he says he was denied. The specific finding in relation to the injuries that were said to arise from this incident was that the applicant did not suffer injuries sufficient to have affected his capacity to attend to his studies.
I can see no error in what the Tribunal has done in this regard. Such a finding was open to the Tribunal on the material that was put before it. The Tribunal gave cogent reasons for its findings.
Conclusion
As I have already said to the applicant, for him to succeed in his application to the Court, the Court would need to discern, at the very least, as I described it to him, a ‘legal mistake”. That is, a jurisdictional error on the part of the Tribunal. I cannot find any such error, neither as it is said to arise from what the applicant put before the Court, nor otherwise. I will therefore make an order dismissing the application to the Court.
Costs
On the issue of costs, in my view, it is appropriate that an order for costs should be made in this matter. I note, first, that the applicant has clearly, and properly, exercised his right to come to this Court. It is his right to do so. But in the circumstances, it is also the case that the Minister, as the successful party, should have the opportunity to seek some recompense for legal costs that have been incurred in responding to the application made. The applicant’s claim that he cannot afford to pay this amount is not, in my view, a sufficient reason such that the order should not be made. Nor can I see that there is any other relevant factor such as to override or outweigh the making of a costs order.
As to the specific amount, I note the work that has been done by the Minister’s legal representatives, including the preparation, the filing and serving of multiple copies of the Court book, the filing of a Response, various attendances by a solicitor on behalf of the Minister before the Court, the preparation, filing, and serving of written submissions, and the Minister’s engagement of counsel to assist and to present his case. This work comes properly within the right, and the scope, of the Minister to effect such an engagement. Noting also that in the circumstances of this case, as I have already referred, necessitated an adjournment. While, clearly, there was no argument that the applicant was unwell at that earlier occasion, nonetheless, the Minister was put to some expense in arranging for counsel, who had arrived ready to conduct the case on behalf of the Minister, to attend on an additional date.
But, in my view, even if that was taken out of the equation, what remains is still within the bounds of what can be said to be a reasonable amount. I will therefore make the order in the amount sought by the Minister.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 4 February 2010
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