Wang v Minister for Immigration
[2007] FMCA 303
•28 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 303 |
| MIGRATION – Visa – subclass 573 (student) visa – Migration Review Tribunal – application for review of decision of MRT decision affirming decision of a delegate of the Minister to cancel the applicant’s visa – applicant is a citizen of the People’s Republic of China – no exceptional circumstances – no reviewable error. PRACTICE & PROCEDURE – Misspelling of the name of the Court on documents filed by a party. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116, 359A, 424A, 472(2) Education Services for Overseas Students Act 2000 (Cth), s.20 |
| Applicant: | FAN WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 3304 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 February 2007 |
| Date of last submission: | 28 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $2,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3304 of 2006
| FAN WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Migration Review Tribunal. The decision was signed on 20th October 2006. The decision record was forwarded to the applicant's agent on 1st November 2006. The Tribunal affirmed the decision of a delegate of the Minister to cancel the applicant's subclass 573 (student) visa.
By means of an application and affidavit in support filed at this Court on 13th November 2006, the applicant seeks a review of that decision. He seeks a writ of certiorari quashing the Tribunal's decision, a writ of mandamus directing the Migration Review Tribunal to reconsider and redetermine the applicant's student visa according to law and he seeks a writ of prohibition against the respondent Minister from acting upon the Tribunal decision in giving effect to it.
The background to this matter is that the applicant is a national of the People's Republic of China. He was granted a subclass 573 visa on
9th March 2005. He had first arrived in Australia on 18th July 2002 as the holder of a subclass 571 visa. Both the earlier visa and the
subclass 573 visa were subject to a number of conditions.
The relevant condition is condition 8202, which meet the course requirements. The visa would have expired on 15th March 2005.
The applicant had been studying engineering at the Australian National University.
On 18th January 2006 the university issued the applicant with a notice under the provisions of s.20 of the Education Services for Overseas Students Act 2000. That notice specified that in the period from
17th July to 31st December 2005 the applicant's course results were not satisfactory. This was because he had failed two subjects out of three. The applicant was given a copy of notice of intention to consider cancellation. The applicant attended an interview with a delegate on 3rd March 2006. The applicant provided certain information to the delegate, including a copy of the death certificate of his grandmother who had died on 28th May 2004. He also provided a copy of a declaration from his parents in which they claimed they did not advise him that his grandmother had died on 28th May 2004 until September 2004.
On 3rd March 2006 a delegate of the Minister cancelled the applicant's student visa for breach of condition 8202. Four days later, on
7th March, the applicant applied to the Migration Review Tribunal for a review of that decision. The Tribunal wrote to the applicant on
16th May 2006 inviting him to comment on certain information. That letter was written under the provisions of s.359A of the Migration Act. The letter invited the applicant to comment on the information as follows:
ANU has advised the Department of Immigration that for the semester running between 17th July 2005 and 31st December 2005 your academic results were unsatisfactory. ANU advised the results were not satisfactory because you failed two subjects out of the three subjects you were enrolled in.
The letter pointed out to the applicant the information that was relevant to the review which might lead the Tribunal to find that he did not comply with condition 8202. It pointed out to the applicant that if the Tribunal did make that finding that unless he could establish that the non-compliance with the course requirements was due to extraordinary circumstances beyond his control it must cancel his visa. The letter went on to say this:
If the Tribunal finds that there were extraordinary circumstances beyond your control, it will then consider whether or not it should cancel the visa.
The letter asked the applicant to comment in writing by 1st June 2006 but suggested that if he was unable to meet that requirement he could request in writing for an extension. As it turned out, due to requests made by the applicant's then adviser, the period was extended until
21st June. The applicant changed migration advisers and his new advisers asked for a further extension. That extension was granted and the Tribunal advised the applicant on 10th July 2006 that the information should be received by 7th August.
On 7th August the applicant's advisers provided a two-page letter to the Tribunal making comments on the information in the Tribunal's letter. The letter from the applicant's advisers told the Tribunal that the applicant's unsatisfactory academic performance was due to his psychological illness. The reasons for this were given as his anxiety at the unusual symptoms and health problems of his mother and of his serious depression as a result of his becoming aware that his grandmother had died. A copy of that letter can be found in the Court Book at pages 71 and 72. Copies of the certificates from the People's Hospital, Sichuan Province, were provided in support of the applicant's explanation.
The Tribunal wrote to the applicant on 16th August 2006 inviting him to attend a hearing in Canberra on 21st September. As it turned out, the hearing was in fact held in Sydney on 20th October that year and the applicant attended and gave evidence. He told the Tribunal that he was aware of condition 8202, that he had failed two out of his three subjects in second semester 2005. He said that he had failed because he was upset about his mother being unwell and he was very upset about the death of his grandmother. He went on to say that his parents did not tell him that his grandmother had died in May 2004 and did not find out until some time later that she had died.
Whilst he said that he had always visited his grandmother when he returned to China, he did not do so between 18th November 2004 and 4th February 2005 and between 19th June and 21st July 2005. Importantly, the applicant told the Tribunal that he meant to re-enrol at the Australian National University and that his results were good.
The Tribunal's findings and reasons are set out in the Court Book at pages 127 through to 131. The Tribunal approached its task by determining whether a ground for cancellation under s.116 of the Migration Act had been made out. The Tribunal noted that the applicant's visa was cancelled on the basis of a failure to comply with a condition of the visa. The Tribunal then went on to find that the evidence showed that the applicant had not achieved an academic result certified by his education provider to be at least satisfactory. Accordingly, the Tribunal found that the applicant had not complied with condition 8202 in the second semester 2005.
The Tribunal then went on to consider whether the applicant's non-compliance with the condition was due to exceptional circumstances beyond the applicant's control. The Tribunal then considered the applicant's evidence which related to the illness of the applicant's mother and the applicant's consequent worry about his mother's health and the death of his grandmother with whom the applicant was very close. Whilst the Tribunal accepted that the applicant may have a continuing concern for his mother's health, the Tribunal found that that concern did not constitute an exceptional circumstance beyond the applicant's control which led to a breach of condition 8202.
As to the applicant's claim that he was upset by the death of his grandmother with whom he had a close relationship, the Tribunal accepted the applicant's close relationship and that he was upset over her death. The Tribunal did not consider one factual matter, however; namely, the applicant's claim that he did not learn of the grandmother's death until September 2005. The Tribunal examined the evidence and noted the applicant's claims that in certain periods of time when he returned to China he did not visit his grandmother and the applicant had given certain reasons for that. The Tribunal considered those reasons but did not accept the explanation as credible. The Tribunal went on to say at pages 128 and 129 of the Court Book:
It is not credible because the review applicant did not a spend a period totalling four months in China without visiting his grandmother, a person to whom he was very close and a person he had visited every other time he had returned to China were such paltry reasons.
The Tribunal went on to find that as it did not accept the applicant's explanation it reached the conclusion that the applicant did not visit his grandmother at those times because he was already aware that she had died. The Tribunal therefore did not accept the applicant's explanation that he did not achieve satisfactory academic results in semester 2 of 2005 because of his grief of learning of his grandmother's death.
The Tribunal went on to find that the applicant's claim that he had breached condition 8202 because of his grief over his grandmother's death was not an exceptional circumstance beyond the applicant's control.
The Tribunal also considered the medical certificates produced by the applicant which suggested that he was suffering some form of depression. The Tribunal went on to make this finding:
The Tribunal is not satisfied in those circumstances that the form of depression suffered by the review applicant constituted an exceptional circumstance beyond the review applicant's control that led the review applicant to breach condition 8202.
The illness was of a minor nature cured by rest and a small amount of psychological treatment.
The Tribunal then, in the final paragraph on page 129 of the Court Book, considered whether the totality of the applicant's circumstances consisted of exceptional circumstance beyond the applicant's control which led to a breach of condition 8202.
However, the Tribunal was not satisfied that the totality of those circumstances comprised an exceptional circumstance beyond the applicant's control that led him to breach that condition. In summary, the Tribunal found that the breach of condition 8202 was not due to exceptional circumstances beyond the applicant's control and having made that finding, it found that the subclass 573 must be cancelled pursuant to s.116(2.432)(b)(ii). The Tribunal affirmed the decision to cancel the applicant's visa.
The applicant in his application refers to two basic grounds. First, he claims that the MRT erred in that it failed properly to consider whether the applicant's achievements in the reference that "he has been permitted to re-enrol at ANU. His results are good" in paragraph 25(k) of the decision could affect the finding that the applicant failed to comply with condition 8202 of his visa. The second ground is that the Tribunal erred by a failure to accord procedural fairness to the applicant. What is alleged in this case is a breach of s.359A of the Migration Act. The claim is that the Tribunal was obliged to provide adverse information to the applicant for his comment and that the information constituted a main part of the reasons for dismissing the existence of exceptional circumstances and that the Tribunal failed to do so. The Tribunal, according to the applicant, had closed its mind to the possibility of there being exceptional circumstances.
The applicant has not filed any written submissions, preferring to rely upon the written material filed at the commencement of the proceedings. In oral submissions he reiterated to the Court that the Tribunal had not considered the subsequent notification from the Australian National University that he had been permitted to re-enrol and that his results were good. He also criticised the Tribunal for not finding that the circumstances that he had given to the Tribunal constituted external reasons beyond his control.
I have had the benefit of reading the outline of submissions prepared by Mr Cleary of Counsel for the first respondent Minister. It is a matter of some regret that in the heading in the outline of submissions the name of the Court is misspelt. One would have thought that after more than six and a half years the Court would be able to have its name correctly spelt by practitioners. Apart from that egregious error for which Counsel has apologised, the submission is a thorough and detailed submission which contains a detailed summary of the background and the reference to the applicant's response to the s.20 notice that had been issued and a summary of the reasons for delegate's decision.
The submission refers succinctly to the applicant's two claims about the reasons for his unsatisfactory academic performance in the second semester of 2005, those being the fact that the applicant's mother was unwell and because the applicant had learned of his grandmother's death in September 2005. Counsel for the respondent submitted that the Tribunal properly identified that the power to cancel the applicant's visa was found in s.116(1)(b) of the Migration Act read together with reg.2.432(ii) and condition 8202, which is found in sch.8 of the Regulations. In my view, that submission is correct.
Counsel submitted, again correctly, that the Tribunal had correctly stated that the onus of establishing the facts which may lead to a cancellation is on the Minister or on review the Tribunal.
The submission is that the Tribunal did set out the first relevant question when the ground for cancellation under s.116 had been made out. On arriving at the conclusion that had been done, the Tribunal then applied itself to the second question it had to ask, whether it was satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant's control.
The submission is that in each case the Tribunal considered the applicant's claims and it is submitted correctly found that those claims could not be characterised as exceptional circumstances beyond the applicant's control.
In considering the applicant's grounds I look, first of all, at the claim that the Tribunal failed to consider or failed properly to consider whether the evidence that the applicant had been granted permission to re-enrol at the Australian National University and in fact achieved some good results had affected the finding that he failed to comply with condition 8202. The applicant submits that the Tribunal did not give that consideration, although it appears to me that the Tribunal was mindful of that evidence, having specifically referred to it in paragraph 25(k) on p.127 of the Court Book.
The fact is that the finding that the applicant had failed to comply with the provisions of condition 8202 related to the s.20 certificate which showed that the applicant had failed two out of his three subjects in the second semester. The fact that the applicant had subsequently obtained a letter from the university saying that he had been permitted to
re-enrol and in fact achieved good results does not affect the finding that at the relevant time the applicant had failed to comply with
condition 8202. It is not possible to read back the letter from the ANU about re-enrolment so as to have an ex post facto effect upon the previous breach of condition 8202. The fact that the applicant had been permitted to re-enrol and in fact had achieved good results does not wipe out the previous failure to comply with the condition.
Once the applicant had failed to comply with the condition, he had failed to comply with the condition and it could not be undone.
Once the Tribunal had found the applicant had failed to comply with condition 8202 and that came from the s.20 certificate – it is in fact a factual finding made by the Tribunal – then the only step available to the Tribunal was to consider, as the Tribunal did consider, whether or not there had been established exceptional circumstances beyond the applicant's control. That consideration involved a consideration of the applicant's evidence. The Tribunal came to the conclusion that neither of the circumstances relating to the health of his mother or the sad death of his grandmother or his knowledge of that death could be characterised as exceptional circumstances beyond the applicant's control. That is a factual finding and the factual finding is the province of the administrative decision-maker. It is not open to the Court to second-guess the Tribunal on the factual material that was before the Tribunal. In my view, that ground fails and no jurisdictional error has been show.
Turning to the ground of review relating to s.359A of the Migration Act and the allegation of a failure to provide procedural fairness due to a failure to comply with s.359A, it is worthwhile to consider what it is that s.359A of the Act says. It is, as will be apparent upon reading the section, an equivalent to the perhaps better-known s.424A of the Migration Act. That latter section relates to proceedings before the Refugee Review Tribunal. The import of it, however, is the same. Under sub-s.1 the Tribunal is required to (a) give to the applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review, and (b) ensure, as far as is reasonable practicable, that the applicant understands why it is relevant to the review, and (c) invite the applicant to comment on it.
Of course in this case the Tribunal did write to the applicant under the provisions of s.359A of the Migration Act. That letter was sent on
16th May 2006. That letter invited the applicant to comment in writing on the information that the Australian National University has advised the Department of Immigration that for the relevant period the applicant's academic results were not satisfactory. The letter set out why the information was relevant to the review and asked the applicant to comment in writing upon it. The letter in fact went on to ask the applicant to provide evidence that would support any claims that extraordinary circumstances existed that were beyond his control.
But what the applicant submits is that the Tribunal should have provided particulars of the following: first, its finding that the applicant's claim about the time of the finding out of the death of his grandmother was not credible; second, the Tribunal's view that the medical certificates from China suggested that the applicant's psychological problems were of a minor nature; third, that the applicant took no steps in semester 2 2005 to overcome any problems that he was experiencing and, as a result, the Tribunal did not accept the applicant's claim as credible; and fourth, that the Tribunal had ignored cultural factors affecting the applicant to take any step in dealing with his depression and the Chinese way of treatment of the psychological problems and closed its mind to the possibility of there being exceptional circumstances in the applicant's case.
The first three of those points relate not to information at all.
They relate to conclusions reached by the Tribunal as a result of consideration of information and the information that the Tribunal considered in the case of the medical certificates came from the applicant himself. The applicant's claim about the circumstances of his knowledge of the death of his grandmother came from the applicant's evidence, but it was the Tribunal's conclusion that it did not accept that evidence that is relevant here. The Tribunal's finding that the applicant took no steps to overcome any problems that he was experiencing in the second semester is a finding made after a consideration of the evidence. It is not information in the ordinary English sense of the word "information" and it is certainly not information as referred to in sub-s.359A(1) of the Migration Act.
As to the fourth claim where the applicant submits that as a result of such findings, the MRT had ignored the cultural factors affecting the applicant to take any step in dealing with his depression and the Chinese way of treatment of his psychological problems and closed its mind to the possibility of there being exceptional circumstances in the applicant's claim, that does not refer to any breach of s.359A of the Migration Act at all. It is in fact a challenge to the Tribunal's factual finding and is an attempt at merits review. A Court conducting judicial review of the findings of an administrative decision-maker does not consider the factual merits of the applicant's claim. The Court is not in a position, as I said before, of second-guessing the Tribunal as to what findings should be made as a result of the evidence before it.
So long as there is evidence upon which factual findings can be made, then those findings cannot be disturbed on judicial review. It appears clear that the second ground in the applicant's application has not been made out and no jurisdictional error has been found.
I am mindful of the fact that the applicant is not legally represented.
I have considered the Tribunal's decision and supporting material myself in an effort to ascertain whether any arguable case of jurisdictional error can be made out. I note that the Tribunal considered not only the applicant's explanation of his academic failure in semester 2 as arising from his concerns about the health of his mother and his grief at learning of the death of his grandmother, the Tribunal also considered whether the totality of the circumstances affecting the applicant could be characterised as exceptional circumstances. The Tribunal considered that possibility and found that the totality of the circumstances could not be described in that way. That too is a matter open to the Tribunal.
I am unable to discern any jurisdictional error that has not been referred to and to my mind it does not appear that any other jurisdictional error appears in the Tribunal's decision. It follows that the Tribunal's decision is a privative clause decision as defined by
sub-s.472(2) of the Migration Act. As a privative clause decision it is not, therefore, subject to orders in the nature of certiorari, mandamus or prohibition, which are the orders that the applicant seeks.
Accordingly, the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. In my view, this is an appropriate matter for costs. There is nothing to take this case away from the usual case in which a successful party who is legally represented is entitled to a costs order. The sum of $2,900.00 is well within the scale provided by the Federal Magistrates Court Rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 7 March 2007
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