WANG v Minister for Immigration
[2009] FMCA 865
•16 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 865 |
| MIGRATION – Failure to attend 80% of the contract hours scheduled – whether “compelling or compassionate” circumstances that affect the interests of Australia – “compelling or compassionate” circumstances-defined. |
| Migration Act 1958 (Cth), ss.116, 474 |
| Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 Monakova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 849 Re Drake (No.2) (1978-1980) 2 ALD 634 Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1429 Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 S157/2002 v Commonwealth (2003) 211 CLR 476 Attorney-General (NSW) v Quin (1990) 170 CLR 1 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | QING WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 708 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 5 August 2009 |
| Date of Last Submission: | 5 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2009 |
REPRESENTATION
| The Applicant appeared In Person with the assistance of a Mandarin Interpreter |
| Counsel for the First Respondent: | Ms Hamnett |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 12 June 2008 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 708 of 2008
| QING WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (the “MRT”) signed on 1 May 2008 affirming a decision of a Delegate of the Minister (“the Delegate”) not to grant the applicant a TU (Student Temporary) visa.
The applicant appeared before the MRT on 12 March 2008 (CB 121.3). He told the MRT that “his previously held subclass 572 student visa was cancelled on 6 September 2009” for a breach of condition 8202 in Schedule 8 of the Migration Regulations 1994 (the “Regulations”). That visa was cancelled by the Minister on 6 September 2009 pursuant to s.129.9, 116(1)(b) and 116(3) of the Migration Act 1958 (the “Act”) and Regulation 2.43 (CB 38). The reason for the cancellation was that from 10 October 2005 to 30 June 2006 the applicant’s attendance at his course at Meridian International was 66% (and not 80% as required by Regulation 8202(3)(a) (CB 38 and 44).
The applicant applied for another student visa on 23 August 2006
(CB 55 and 117.2)
Regulation 572.224 at the time of application, in part required that:
The applicant:
(a)satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013 and 4014 (CB 118)
Public Interest Criteria (“PIC”) 4013 appears in Schedule 4 to the Migration Regulations as follows:
(1)If the applicant is affected by a risk factor mentions in subclause (1A), (2), (2A), (3), (4), or (5):
(a)the application is made more than 3 years after the cancellation of the visa or temporary entry permit, or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant: or
(b)the Minister is satisfied that, in the particular case:
(i)compelling circumstances that affect the interests of Australia; or
(ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the cancellation or determination.
(1A) A person is affected by a risk factor if a visa previously held by the person was cancelled:
(c)under section 109 or paragraph 116(1)(d) of the Act; or
(d)under section 128 of the Act because the Minister was satisfied that the ground mentioned in paragraph 116 (1)(d) of the Act applied to the person.
(2)A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Act:
(a)because the person was found by Immigration to have worked without authority; or
(b)if the visa was of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that Part in relation to that subclass; or
(c)if the visa was a Subclass 773 (Border) visa and, at the time of grant the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or
(ca)because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or
(d)because the Minister was satisfied that a ground prescribed by paragraph 2.43(l), (i), (j), (k), (ka), (m) or (o) applied to the person.
(2A) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 137J of the Act.
(3)A person is affected by a risk factor if a temporary entry permit previously held by the person was cancelled under section 35 of the Act as in force before 1 September 1994 because the person was found by Immigration to have worked without authority.
(4)A person is affected by a risk factor if a temporary entry permit previously held by the person ceased to be in force as a result of a determination made by the Minister before 1 September 1994 that the person had failed to comply with a terminating condition to which the entry permit was subject.
(5)A person is affected by a risk factor if, before 1 September 1994, the person left Australia because the Minister made a determination under regulation 2.38 of the Migration (1993) Regulations that the person contravened a condition of an entry permit held by the person, whether or not the period of effect of that entry permit had expired at the time of the determination.
The Delegate was “not satisfied that the applicant met regulation 572.224 as required for the grant of a subclass 572 Vocational Educational and Training Sector visa” and refused to grant a visa
(CB 93).
The visa was not refused because of a “risk factor” specified in PIC 4013.
The applicant made an Application for Review to the MRT (CB 94).
The applicant sent written submissions to the MRT dated 8 March 2008 (CB 109).
The Table in Part 2 of Schedule 4 to the Act specifies that for a visa subclass 560 (student), conditions 8202 is “applicable for the purposes of Clauses 4013(2).”
Condition 8202 as it appeared at the time of application appears at
(CB 17). 8202(3)(a) provides that a holder meets the requirements if the Minister “is satisfied that the holder attends for at least 80% of the contact hours scheduled.” The evidence in the matter is that the applicant attended 66% of the contact hours scheduled (CB 6). The MRT was entitled to accept or reject that evidence. It accepted it.
Having failed to comply with Clause 8202(3)(a) the applicant was “affected by a risk factor” mentioned in subclause (2) of PIC 4013, as the earlier visa had been cancelled under s.116 of the Act.
The application for the new visa was made on 23 August 2006, and therefore within three years of the cancellation of the earlier visa on
6 September 2006. The relevant provisions of Public Interest Criteria 4013 are therefore:
(1)If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A), (3), (4), or (5):
(a)the application is made more than 3 years after the cancellation of the visa or temporary entry permit, or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant: or
(b)the Minister is satisfied that, in the particular case:
(i)compelling circumstances that affect the interests of Australia; or
(ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the cancellation or determination.
1(a) above does not cover the applicant. Under 1(b) the visa cannot be granted unless there are “compelling or compassionate circumstances”, as specified.
The MRT gave full consideration to whether such circumstances exist (commencing at CB 119.1). The MRT noted that there is no specific definition of “compelling” or “compassionate” in the Act or the Regulations.
The MRT decided that:
“Whether a circumstance or reason is ‘compelling’ is a question of fact and degree for the Tribunal and the scope and meaning of the relevant phrase must be referenced by the context in which it appears.” (CB 119.2)
The MRT continued:
The word ‘compelling’ is often, but not always, used together with the word ‘compassionate’ in the Regulations. Generally, having regard to the ordinary meaning of those words, “compassionate” (defined in the Macquarie online dictionary as having “a feeling of sorrow or pity for the sufferings or misfortunes of another, sympathy”) is a broader term that “compelling” (the dictionary definition of which is “demanding attention or interest”).
The following general principles can be extracted from case law that has considered the meaning and scope of various forms of the phrase “compelling and/or compassionate” in various provisions:
· “Compelling” may include reasons which raise moral necessity or which are convincing. The word does not, by itself, necessarily require and involuntary element, involving circumstances beyond a person’s control: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211, and although some regulations are worded so as to specifically require and involuntary element, that is not the case here;
· It is not legally erroneous to construe ‘compelling circumstances’ (in the context of Schedule 3) to mean circumstances which force or drive the decision-maker to decide whether or not the jurisdictional fact arises for the exercise of the discretion. On any view of ‘compelling’, the circumstance must be so powerful that they lead the decision-maker to make a finding that the provision should be waived: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24];
· In determining what are relevant considerations to take into account, “compelling reasons for not applying those criteria” [in the context of waiver of Schedule 3 criteria for onshore partner visas] must be reasons which are relevant to the purpose of the criteria. In this context, they must be relevant to the purpose of permitting the person to make and application for a spouse visa in Australia. To take into account a consideration which is not relevant to the purpose is to take into account an irrelevant consideration. (Monakova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 849 at [28]);
Relevant policy considerations set out in Migration Series Instruction 410: Exclusion Periods include the following:
29 COMPASSIONATE CIRCUMSTANCES
29.1 Affecting the interests of Australia
There may be compelling circumstances affecting the interest of Australia if:
· Australia’s trade or business opportunities would be adversely affected were the person not granted the visa
· if the person was not granted the visa, family members in Australia would be unable to properly arrange a relative’s funeral in Australia or
· if the person was not granted the visa, a parent in Australia would be separated from their child (for example, where the child was removed with their non-resident parent and is therefore subject to an exclusion period).
Departmental policy is not binding on the Tribunal. In another matter the Tribunal noted the comments: “of Brennan, J. in Re Drake (No.2) (1978-1980) 2 ALD 634 with respect to the precise part which government policy should ordinarily play in the determinations of the Tribunal.
His Honour’s view was to the effect that it is a matter for the Tribunal itself to determine the part which policy plays in context of the particular case. The Tribunal needed to balance the need for compromise between, on the one hand, the interests of good government and the desirability of consistency in the treatment of citizens under the law, and on the other hand, the ideal of justice in the individual case. Further, His Honour was of the view that there are powerful considerations in favour of a Minister adopting a guiding policy, among other considerations, because adoption of a policy diminishes inconsistencies in decision-making that might otherwise appear. In Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1429 the Court reiterated that if policy requires more than the legislation states, then that policy will be unlawful and it would be an error on the part of the Tribunal to apply it. This view was endorsed by the Full Federal Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168.”
The MRT considered the claimed “compelling or compassionate circumstances” (from CB 122.9) and was not satisfied that such circumstances existed (CB 125.8). That finding has not been shown to be in error.
There is no substance in the applicant’s argument that the risk factors in PIC 4013(2) did not apply because his previous visa was cancelled after he made application for a new visa. The question under PIC 4013(1) is “whether the Minister is satisfied, in the particular case, there are circumstances that justify the granting of the visa within three years after the cancellation or determination?” Therefore, “was the Minister satisfied that a new visa should be granted within three years of the cancellation on 6 September 2006?” The Court refers to the Tribunals’ finding (at CB 125.5), that the “overlap of visa application and visa cancellation does not amount to compelling or compassionate circumstances that would impact…beyond the applicant himself.”
The MRT commenced its findings on the alleged “compelling circumstances that affect the interests of Australia” at CB 124.6.
The applicant’s application set out the following grounds and particulars:
The grounds of the Application are:
1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error
2. The Tribunal ignored relevant material
PARTICULARS
a.The Tribunal ignored the evidence that I contribute economic benefit to Australia by paying school fee. I could contribute more economic benefit after I graduate from school by paying tax.
b.The Tribunal ignored evidence I provide I suffered mental illness.
The MRT was not satisfied that the circumstances are compelling or that they affect the interest of Australia (CB 125.8). That finding of fact was open to the MRT on the material before it and is not open to review. If considered as a mixed finding of fact and law it has not been shown to be in error.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
And at [29]:
the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The MRT considered also whether the matters raised by the applicant amount to “compelling and compassionate circumstances that effect the interests of an Australian Citizen, Australian Resident or eligible New Zealand Resident” (CB 124.10) and found that there are no matters that would have that effect (CB 125.3). That finding has not been shown to be in error.
That MRT found that the overlap of visa application and visa cancellation does not amount to compelling or compassionate circumstances that would impact on any other institution or person beyond the applicant himself (CB 125.5). That finding of fact is not open to review.
The MRT concluded that none of the circumstances cited by the applicant amount to compelling circumstances that affect the interests of Australia, or compelling or compassionate circumstances that affect the interests of an Australian Citizen, Australia Permanent Resident or an eligible New Zealand Citizen, justifying the grant of a visa within three years (CB 125.6). Those findings of fact were properly open to the MRT on the material before it and are not subject to review.
The MRT was not satisfied that the applicant satisfies Public Interest Criteria 4013 (CB 125.9).
The MRT found as a result that the applicant cannot meet the requirements of Clause 572.224, and he therefore fails to meet one of the mandatory requirements of the subclass 572 visa and all other
sub-classes in the TU (Student) (Temporary) visa class (CB 125.9).The MRT found that as the applicant does not meet clause 572.224, it must affirm the decision under review (CB 125.10).
An error of law by the MRT has not been shown.
If the findings of fact above are considered also as findings of fact and law, no error has been shown.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Erin Firns
Date: 15 September 2009
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