WANG v Minister for Immigration
[2007] FMCA 1443
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1443 |
| MIGRATION – Review of decision of Migration Review Tribunal – Student (Temporary) (Class TU) visa – whether substantial compliance with conditions attached to previously held visa as required by clause 573.212 – no substantial compliance with condition 8202 – no jurisdictional error – application dismissed. |
| Migration Act 1958 Migration Regulations 1994, clause 573.212, condition 8202 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2009 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 21 August 2007 |
| Date of Last Submission: | 21 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr M P Cleary |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application made to this Court on 20 July 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2009 of 2006
| WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me today an application filed in this Court on 20 July 2006, seeking review of a decision of the Migration Review Tribunal (“the Tribunal”), signed on 16 June 2006 and notified to the applicant through her adviser on 26 June 2006. This decision affirmed the decision of the delegate of the respondent Minister to refuse a Student (Temporary) (Class TU) visa to the applicant.
The applicant is a national of the People’s Republic of China who applied for a Student visa on 3 May 2005. I note that the Minister has put before the Court a bundle of relevant documents entitled “Court Book” (“CB”) and the application for the visa is reproduced at CB 1 to CB 18. I note that, for relevant purposes, the applicant held a Subclass TU572 Visa which appears to have been previously granted on 9 March 2004 and which, amongst other matters, was subject to Condition 8202 of Schedule 8 of the Migration Regulations 1994 (“the Regulations”). Condition 8202 of Schedule 8 to the Regulations relevantly provided:
“(3) A holder meets the requirements of this clause if:
(a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i) for a course that runs for less than a semester – for the course; or
(ii) for a course that runs for at least a semester – for each term and semester of the course …”
The applicant’s visa application was refused in August 2005 and the delegate’s decision record is reproduced at CB 56 to CB 72. Essentially, the delegate found that the applicant did not satisfy, relevantly, clause 573.235 of Schedule 2 to the Regulations. In effect, the Minister’s delegate was not satisfied that the applicant had complied substantially with condition 8202, which attached to the last visa held by the applicant.
On 26 August 2005, the applicant applied for review of that decision and the application for review is reproduced at CB 61 to CB 67. I note that the applicant was represented before the Tribunal by Mr David Yiu of the Australia WAH Education Centre (CB 64), who was also nominated as the person authorised to receive from the Tribunal correspondence on the applicant’s behalf (CB 65).
With reference to the Tribunal’s decision record (reproduced at CB 191 to CB 197), the Tribunal identified the relevant and central issue as whether the applicant had complied substantially with condition 8202 of the visa that the applicant last held, that is, at the time that the current visa application was made. The Tribunal set out condition 8202 in its decision record and it also noted clause 573.235 of the Regulations. I also note those relevant provisions.
Critically, in this regard, the applicant’s visa was granted on 9 March 2004 and related to a course of study at the University of Wollongong for the period February to September 2004. The applicant, from the material before the Court, studied at the University of Wollongong until 4 June 2004, when she transferred to Martin College in Sydney for the stated reason that travel between Sydney and Wollongong had become a problem in terms of time and in terms of the applicant’s claim to have been harassed on public transport. The applicant then transferred to Insearch UTS. The applicant’s attendance at the University of Wollongong, Martin College and Insearch UTS was 54% (with medical certificates), 53% and 70%, respectively, and therefore below the threshold of 80% required for the applicant to satisfy that part of the relevant condition.
It appears form the material before me that the applicant appeared before the Tribunal on 17 February 2006 (see the Tribunal’s decision record reproduced at CB 191 to CB 197 at CB 194.9) and at the hearing before the Tribunal the applicant produced medical certificates to explain her absence from study. She further explained that she had given other medical certificates to the relevant education providers, some of which had been accepted and some of which had not (CB195.1).
At the hearing the Tribunal also had before it the applicant’s passport which indicated that the applicant had departed and returned to Australia on a number of occasions between June 2004 and November 2004, and the Tribunal noted, and put to the applicant, that there were at least three medical certificates which could not be taken to be genuine as she was not in Australia at the time that they stated that the applicant was medically unfit to attend classes (CB 195.4).
I note that the Tribunal reported the applicant’s response relating to her friend and her friend’s use of her Medicare card. The Tribunal records in its decision record that following what was said at the hearing that it found the applicant to be a “less than credible witness” and that she was prepared, in the Tribunal’s view, to knowingly submit false medical certificates to it (CB 196.6).
Importantly, the Tribunal wrote to the applicant as it had indicated at the hearing that it would, and put to her that it had made enquiries with the three relevant educational institutions which had advised the Tribunal that she had not received an attendance rate at the relevant times for which she was enrolled to study with them of at least 80%. The Tribunal provided copies of this relevant correspondence.
The Tribunal’s letter was dated 21 April 2006 and was sent in compliance with the Tribunal’s obligations to Mr David Yiu, who had been nominated as the applicant’s authorised recipient for correspondence. The applicant’s reply dated 22 May 2006 is reproduced in the Court Book (at CB 182 to CB 185).
The Tribunal made a number of findings. First, it found that at the time the applicant lodged her visa application, the relevant visa class, that is, Class TU, contained a number of subclasses and that Subclass 573 was relevant to the applicant’s claims. Subclass 573 required that the applicant substantially comply with the conditions attached to the visa held, or last held, at the time of the application. I note in particular clause 573.212 which is in the following terms:
“If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.”
The Tribunal had earlier set out the relevant condition for the purposes of its consideration (condition 8202). It further found that the three relevant education providers (that is, relevant to the period of study relating to the applicant’s visa), had certified that the applicant failed to meet condition 8202 in relation to the applicant’s attendance.
The Tribunal found that the applicant had sought to mislead the Tribunal but that, in any event, on what was before it, the applicant had not substantially complied with condition 8202. That is, that the applicant had not substantially complied with the condition attached to the visa that she held at the time of the application for the visa which she now sought. It therefore affirmed the decision that was the subject of the review.
In the application to the Court the applicant states the following grounds:
“1. DIMIA cancelled my student visa without my exclusive explanation.
2. I could provide the medical certificate which could indicate I was sick.
3. I have difficulty of travel when I was studying at Wollongong University.” (Errors in original)
Further, under the heading of “Orders sought by Applicant” the applicant asserts the following:
“1. My father had a car accident, so I went back to China for one week without noticing to Martin College.
2. I was sick when I was studying in Insearch, but the college didn’t accept it.
3. I have serious problem if travel when I was in Wollongong University. It is why I often missed the lectures.” (Errors in original)
I also note relevantly in an affidavit made on 16 July 2006 and accompanying the application to the Court, that applicant asserts as follows:
“1. DIMIA cancelled my student visa without considering my exceptional circumstances which are beyond my control.
2. I would like to provide my evidence including medical certificate to certify my special situation.”
The applicant appeared before the Court today and while her English appeared to be of a good standard the applicant indicated that she wished to use the services of an interpreter in the Mandarin language who had been provided to assist the applicant in the Court. Mr Cleary of Counsel appeared for the first respondent.
The applicant before the Court submitted that her student visa was cancelled but on seeking clarification from the applicant, she confirmed that the visa had been refused (that is, the reason for which she had applied had been refused), and that it was this decision, the refusal decision, by the Tribunal that she was seeking to put before the Court.
The applicant variously explained to the Court the background to her claims and concerns before the Tribunal by way of explaining the difficulties with travel to Wollongong, that it was unsafe, that she fell ill and raised concerns with the calculations used by at least one of the education providers, that is, Martin College, as to how it calculated her attendance rate and confirmed that she had not been able to produce all of the medical certificates to the Tribunal that she would have wished to have produced to explain her lack of attendance, but also stated that she had departed Australia on a number of occasions for China because of her father’s illness.
I did not see, however, that the applicant raised anything before the Court that essentially was not raised in her statement to the Tribunal and I particularly note the references in that statement to Martin College at CB 182. I should also note that in response to the Court directing the applicant’s attention to the Tribunal’s letter of 21 April 2006, the applicant stated that she had not received this letter. However, I accept the submissions made by Mr Cleary that the letter was properly sent to Mr David Yiu in compliance with the Tribunal’s obligation to send correspondence to him as the authorised recipient.
I note that the applicant’s statement to the Tribunal, reproduced in the Court Book, was sent to the Tribunal by facsimile transmission with the heading to that facsimile reading “From :AWEC,” which appears to correspond with Mr Yiu’s organisation, Australia WAH Education Centre. But in any event, there is a coincidence, a high coincidence, of the matters asserted by the applicant in that statement with the issues raised for comment by the Tribunal in its letter.
I am satisfied, in all the circumstances, that the applicant was given the opportunity by the Tribunal to comment on matters relevant to its consideration and decision, and that she exercised that opportunity and in fact provided a response and comments to the Tribunal. I note in particular that at CB 185 the applicant put to the Tribunal:
“I do believe that there is a miscounting of my attendance in both of Martin College and Insearch college of UTS.”
One of those matters she repeated before the Court today. Now, with reference to the applicant’s complaints as set out in the application to the Court, it is clear that the applicant’s complaint that her visa was cancelled is misconceived and that the reference to such a visa being cancelled without her “exclusive explanation” appears to be some mistaken reference to the provisions of regulation 2.432(b)(ii), which plainly relates to the cancellation of student visas and not to the refusal of the grant of this student visa.
In any event, it is clear from the material before the Court that the Tribunal considered all of the matters put by the applicant to it, both at the hearing and by way of her subsequent written statement to the Tribunal, and ultimately, after considering these matters the Tribunal found that it had evidence from all three relevant education providers and certification that the applicant had failed to meet the relevant requirement in condition 8202 as to her attendance as it related to the visa that she had held, and it affirmed the decision under review on the basis that the applicant had not substantially complied with condition 8202.
The Tribunal’s findings, and its ultimate conclusion derived from those findings, were plainly open to it on the material that was before it and the material that is before the Court. In this regard I can see no error in the way the Tribunal approached consideration of the applicant’s application.
Unfortunately, the matters raised by way of what are said to be the grounds of the application, as Mr Cleary, in my view, correctly submits, really seek a merits review, which this Court is not permitted to entertain Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Nor for that matter, even after explanation by the Court of the Court’s role and powers did anything that the applicant put to the Court today rise above an attempt to re-agitate some of the matters that were before the Tribunal.
In all, therefore, none of the stated grounds of the application reveal jurisdictional error on the part of the Tribunal. Nor do any of the applicant’s complaints otherwise stated reveal jurisdictional error. Nor even beyond that, given that I have an unrepresented applicant before me, can I discern jurisdictional error in the Tribunal’s decision on all the material that is before me today.
As I previously stated, the Tribunal, in my view, understood the relevant and applicable law and regulations. I can see no error arising from the processes that the Tribunal was obliged to employ in the conduct of the review and nor can I discern error as it arises from the Tribunal’s consideration of the issues before it. Simply, the applicant was required to comply with condition 8202.
The Tribunal found, for the reasons that it gave, that she had not complied with this condition as it attached to the visa that she held and in view of that, the applicant could not satisfy the requirements for the visa that she had applied for, and in these circumstances it affirmed the decision under review. For the reasons that I have already stated I cannot discern jurisdictional error in the Tribunal’s decision and the application to the Court is therefore dismissed.
I should just note that the warning delivered to the applicant during the course of the hearing relating to statements that she made to the Tribunal and to the Court concerning the use of her Medicare card is not a matter that is relevant for this Court to take any further, although it may be an issue for others.
It is appropriate that a costs order be made and there is nothing before me to argue against the making of such an order, that is, there is nothing before me of such nature as to argue against the making of such an order. As to the amount, I hear what the applicant has said, that she is a student and that the amount is too high, but what I have to consider is what is a reasonable amount in terms of the work that the Minister’s legal representatives would have done in responding to the application that has been brought to this Court.
At the beginning of the hearing I asked the applicant if she had received any assistance in coming to this Court and one of the reasons why I asked that is that in the documentation that has been put before the Court, it appeared that if the applicant had sought some assistance then it was not as helpful as perhaps it could have been, or it should have been, because one of the applicant’s stated grounds was a misstatement arising from a very simple factual matter. There was no cancellation of a visa but a refusal of an application for a visa.
For the remainder, the application raised matters in such a way that obviously were of no assistance to the applicant before this Court, given the role of the Court and the issue with which this Court is concerned. Another issue, however, is that unrepresented applicants such as the applicant before me now, who come to this Court in matters of this type who, when they are unsuccessful, say, “well this money is too much and I cannot pay it.” I have no reason not to accept that in the applicant’s case this indeed may be the situation and I am not rejecting the applicant’s statement in this regard. However, coming before the Court carries with it, if you are unsuccessful, a number of consequences and one of them is that the successful party might indeed ask for some reimbursement for some of their legal costs, as has happened in this case. In those circumstances, it is not sufficient to say, “I do not have the money to pay.” Ultimately, I am satisfied that the amount sought by the Minister is a reasonable amount.
A number of Court attendances by the Minister’s solicitors, preparation of the Court Book and that the Minister, as he is entitled to do, sought the assistance of counsel to give both advice in terms of preparing submissions and also to represent the Minister’s case before the Court today, are costs in relation to which, in my view, the amount the Minister seeks is a reasonable amount for the totality of costs that he has incurred.
I therefore dismiss the application with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 11 September 2007
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