Wang v Minister for Immigration
[2018] FCCA 2033
•17 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2033 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether grounds existed for cancellation of a student visa under s.116 of the Migration Act 1958 (Cth) – whether applicant was a genuine student – whether the Administrative Appeals Tribunal should exercise its discretion to cancel the visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), reg.2.01, sch.1. |
| Cases cited: Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 |
| First Applicant: | ZHEN WANG |
| Second Applicant: | JINGXIANG JIA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3517 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 17 July 2018 |
| Date of Last Submission: | 17 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2018 |
REPRESENTATION
The Applicant appeared in person, with the assistance of an interpreter in the Mandarin language.
| Solicitor for the Respondents: | Ms Bernadette Rayment (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3517 of 2016
| ZHEN WANG |
First Applicant
| JINGXIANG JIA |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 23 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 4 April 2016 refusing the first applicant a Student (Class TU) (Subclass 573) visa (“Student Visa”). The first applicant is the primary applicant (“the Applicant”) and the second applicant is her husband.
Legislative framework
Pursuant to s.116(1)(fa) of the Act, the first respondent may cancel a visa if it is satisfied that:
(i)the visa holder is not, or is likely not to be, a genuine student;
(ii)or is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Student Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Under s.338 of the Act, a decision to refuse to grant a Student Visa is a decision which may be reviewed by the second respondent.
Background
The first respondent’s written submissions accurately summarise the background of this matter, as follows:
“3 On 7 March 2016, the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant by email (CB 54). The NOICC was issued on the basis that there appeared to be grounds for cancellation under s.116(1)(fa)(i) of the Act, being that the applicant was not a genuine student (CB 54-55). The NOICC set out the following information based on the applicant’s PRISMS records (CB 55):
(a) The applicant studied the English program between 28 July 2014 and 19 December 2014.
(b) On 16 June 2014, the applicant’s enrolment for the Masters was cancelled for non-commencement of studies.
(c) The applicant remained un-enrolled until 26 November 2015, when she enrolled in a Diploma of Business. However, enrolment for this course was cancelled on 2 March 2016 for non-commencement of studies.
4 The applicant responded to the NOICC via two emails dated 11 March 2016 (CB 59, 63), and a letter dated 14 March 2016 (CB 72). The applicant stated that she had not commenced her Masters study because her English was not good enough.The applicant further stated that her migration agent had enrolled her in the Diploma of Business and told her that “everything would be OK”, but she now realised that “the agency did not do a good work for me and I was a victim of them” (CB 72).
5 On 4 April 2016, a delegate of the Minister cancelled the Visa on the basis that grounds for cancellation existed under s.116(1)(fa)(i) of the Act (CB 86). The second applicant’s visa was automatically cancelled as a result (CB 82). The delegate referred to the PRISMS records, and was satisfied that the applicant:
(a) had not completed studies in a registered course since 20 December 2014;
(b) had not maintained enrolment in a registered course at the High Education Sector level since 16 June 2014;
(c) did not commence the Masters, for which the visa was granted; and
(d) since arriving in Australia, had not completed any course other than the English language course (CB 87-90).
6 On 8 April 2016, the applicant applied to the Tribunal for review of the delegate’s decision, attaching a copy of that decision to her application (CB 92-94). On 21 November 2016, the applicant appeared before the Tribunal with the assistance of a Mandarin interpreter (CB 102-104). On 23 November 2016, the Tribunal affirmed the delegate’s decision (CB 134).”
The proceeding before this Court
The applicants seek judicial review of a decision of the second respondent dated 23 November 2016, which affirmed a decision of a delegate of the first respondent to cancel the Applicant’s Student Visa under s.116 of the Act. The Applicant is a citizen of China. The Applicant was granted the Student Visa on 19 May 2014 in order to undertake an English language program course, followed by a Masters of Professional Accounting at the University of Canberra. The second applicant is the Applicant’s husband.
As a result of the Tribunal affirming the decision under review to cancel the Applicant’s licence, the second applicant was no longer entitled to continue to reside in Australia. Judicial review is sought by both applicants. However, no complaint is made by the second applicant either in the grounds of the application or by anything said by either of the applicants this morning.
The Applicant confirmed at the outset of the hearing that she attended a directions hearing before a registrar of this court on 6 April 2017. On that occasion, the applicants were given leave to file and serve an amended application, any further evidence and submissions in support of their application. The applicants were also provided with contact details of legal services providers and translating and interpreting services in documents headed in their own language at that directions hearing. No document has been filed by or on behalf of either of the applicants, either in accordance with those directions or otherwise. The Applicant confirmed that they had no further documents to provide to the Court this morning in support of their application for judicial review.
The Applicant confirmed that the applicants continued to rely on the grounds of the initiating application filed on 12 December 2016. Those grounds are as follows:
“1. The Decision said "after considering the circumstance as a whole, the Tribunal is not satisfied the applicant is presently a genuine student.". I do not agree with this as I have been trying my best to enrol in other course, I had provided CoEs and by all means I have been a genuine student.
2. The tribunal did not accept if my visa was concerned I would be subject to financial hardship but said we may be substantial better off if return to China, I do not agree with this.
3. The tribunal ignored the fact that I have been trying my best to study in Australia. I had enrolled for a number of Diploma courses in Australia. I provided CoEs but the Tribunal did not give some weight on that.”
Before inviting the applicants to say anything in support of any of the grounds, or in support of their application generally, I explained that the role of this Court is very different to that of the Tribunal; and that it is not for this Court to reconsider the claims and reach different findings or conclusions. I explained that the only issue before this Court is whether or not a decision of the Tribunal was made according to law.
I explained that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the decision is affected by a mistake going to its jurisdiction. I further explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake. I also explained to the applicants that if the findings of the Tribunal were open to it on the evidence and material before it and for the reasons it gave then the fact that they may disagree with those findings will not, in this instance, establish jurisdictional error on the part of the Tribunal.
Each of the grounds was interpreted for the applicants, and each was invited to say whatever they wished in support. In relation to Ground 1, the Applicant said that she wished to keep on studying. In relation to Ground 2, the Applicant said that she did not agree with the Tribunal’s conclusion that she is not a genuine student. Further, in relation to Ground 2, the Applicant said that she disagreed with the Tribunal’s finding that she would not be subject to financial hardship in China. In relation to Ground 3, the Applicant said that the Tribunal had not given weight to the fact that she had been trying her best to study in Australia. None of the grounds were otherwise supported by further particulars, evidence, oral or written submissions. None of the grounds, on their face, identify any error capable of review by this court.
The Tribunal identified the relevant criteria that the Applicant was required to meet in stating that Applicant’s visa may be cancelled under s.116(1)(fa)(i) of the Act if the Tribunal was satisfied that the applicant is not, or is likely not to be, a genuine student.
The Tribunal referred to the Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574, where the Federal Court held that, the genuine student concept in s.116(1)(fa)(i) is:
“Directed to circumstances where a student visa holder has been a little compliant with the visa conditions, yet has not conducted him or herself as a genuine student. For instance, in relation to behaviour at lectures, and is genuinely occupying a place in a tertiary institution which could well, or potentially be taken up by a genuine student.”
The Tribunal noted prescribed matters to which it must have regard in determining whether the ground for cancellation under s.116(1)(fa) of the Act exists. The Tribunal noted that the Applicant had been granted the Student Visa on 19 May 2014, on the basis that she proposed to undertake an English language program course and then a Master of Professional Accounting degree at the University of Canberra.
The Notice of Intention to Consider Cancellation of the visa, dated 7 March 2016, referred to the evidence in the PRISMS records as follows:
“Notice of intention to consider cancellation of Student ('Temporary) (class TU) Higher Education Sector (subclass 573) visa under section s116 (General Power) of the Migration Act 1958.
This letter refers to your Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa which was granted on 19 May 2014.
It has come to my attention, as a delegate of the Minister for Immigration and Border Protection, that there appears to be a ground for cancellation of your visa under s116(1 )(fa)(i) not a genuine student of the Migration Act 1958 (the Act) which states:
116 (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student;
(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2) The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) 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) (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Particulars of grounds for cancellation
It appears that there is a ground for cancellation of your visa as it appears that you are not, or are likely not to be a genuine student.
A student visa holder may be considered a 'non-genuine student' if it appears that their primary intention is not, or is not likely to be, to undertake study.
The information because of which this ground appears to exist is as follows:
- On 19 May 2014, you were granted a TU573 Higher Education Sector Student visa on the basis of undertaking a UC English Language Programs course and a Master of Professional Accounting at University of Canberra. Records indicate you arrived onshore on 27 May 2014 and have not departed Australia since.
- Based on evidence available in the Provider Registration and International Student Management System (PRISMS), you studied the UC English Language Programs course from 28 July 2014 until 19 December 2014.
- On 16 June 2014, your enrolment for the Master of Professional Accounting was cancelled for non-commencement of studies.
- PRISMS indicates you continued to remain non-enrolled until 26 November 2015. On 27 November 2015, you enrolled in a Diploma of Business at Australian Colleges of Further Education. The enrolment for this course was cancelled on 2 March 2016 for non-commencement of studies and you have not maintained enrolment in a registered course since.
Therefore, Departmental records suggest:
- You have not undertaken studies in a registered course from 20 December 2014 until now and not maintained enrolment in a registered course at the Higher Education Sector level since 16 June 2014.
- You were granted the TU573 Higher Education Sector Student visa on the basis of undertaking a Master of Professional Accounting course, which you never commenced and instead enrolled in a Diploma of Business. This demonstrates you do not have a genuine intent to study at the Higher Education Sector level and complete the Master of Professional Accounting course.
- Since your arrival in Australia on 27 May 2014, you have not completed any courses of study other than the UC English Language Programs course, demonstrating a lack of academic progression and career planning on your part.
- PRISMS indicates in 650 days onshore, you have studied for a total of 144 days. You have spent a significant period of time onshore not studying, which indicates your primary intention is not likely to undertake study.
PRISMS indicates you have not maintained the study plan you outlined during the application for your TU573 Higher Education Sector Student visa and that you do not hold enrolment at the Higher Education Sector level as required by your visa.
Student visas are granted for the purposes of studying towards and achieving an educational qualification in Australia. Your lack of academic progress over a substantial period of time and significant period of time not studying while continuing to remain onshore indicates you do not appear to be a genuine student as it appears your primary intention is not, or is not likely to be, to undertake study.
If this is the case, your visa may be cancelled under s116(1 }(fa)(i) of the Migration Act 1958 (the Act) which states:
116. (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(fa) in the case of a student visa:
i(tis) holder is not, or is likely not to be, a genuine student
…”
(Emphasis added)
A copy of the Delegate’s decision was provided to the Tribunal by the Applicant in support of her application for review.
The Applicant attended a hearing before the Tribunal.
The Tribunal noted the Applicant’s email dated 11 March 2016, that she had been studying in Sydney, was not good at English, that she didn’t read, and that she was now in college.
By letter dated 14 March 2016, the Applicant also explained that she had been advised that her English was not good enough for her to study her Master’s Degree at university. The Applicant then recounted advice she had received from an agent, who she now believes did not give her advice that was correct. The Tribunal asked the applicant why she had not made any formal complaint about her agent, whom she claimed had misled her, and she responded that she was uncertain whether any complaint had been made by her new agent.
The Applicant conceded that she had not undertaken any English language course in Australia since completing the UC English language program course on 19 December 2014, and that she had been attempting to teach herself English at home, on her computer.
The Tribunal explored with the Applicant her explanations as to why she had not maintained enrolment in a registered course at the higher education sector level since 16 June 2014, and was not satisfied that the Applicant’s claims that she was self-teaching the English language, constituted an appropriate way to learn. The Tribunal was satisfied that, once the Applicant understood her English competence was insufficient to pursue appropriate studies, she did not take adequate steps to overcome the problem.
The Tribunal found that from that time, the Applicant was no longer a genuine student. Accordingly, the Tribunal was satisfied that the ground for cancellation under s.116(1)(fa)(i) of the Act existed, and proceeded to consider whether that power to cancel the Applicant’s Student Visa should be exercised.
In considering its discretion, the Tribunal had regard to the Department’s Procedures Advice Manual, PAM3, on general visa cancellation powers.
The Tribunal accepted that the Applicant’s initial intention in travelling to, and residing in Australia, was for the purpose of study. However, since arriving in Australia on 27 May 2014, until the date of the Tribunal’s decision record on 23 November 2016, the Applicant substantially failed to maintain enrolment in a prescribed course of study.
The Tribunal accepted that the Applicant had lodged, in support of her application for review by the Tribunal, a letter of offer dated 18 November 2016, in respect of a Certificate 4 in spoken and written English. Enrolment in such a course does not satisfy the Applicant’s requirement that she be engaged in a course of higher education in the higher education sector.
The Tribunal considered the Applicant’s letter, dated 14 March 2016, in which the Applicant claimed that cancellation of her visa would bring significant hardship to herself and her husband. However, the Tribunal had regard to evidence given by the Applicant that she had obtained a degree in computer science in China and had worked in her father’s electronics shop for two years, and would return there if she returned to China.
The Tribunal also referred to the Applicant’s evidence that in Australia she works 14 hours a week, but is still able to pay rent, food and other expenses, and does not receive money from other sources. The Tribunal did not accept that the Applicant and her husband would be subject to significant financial hardship if her visa was cancelled, and found that if the Applicant did reside in impoverished circumstances in Australia, they may both be substantially better off if returned to China.
The Tribunal also noted that the Applicant said that if her visa was cancelled, the Australian school would not continue to receive her tuition fees, and that this was not good for Australian education. However, the Tribunal found that, given the Applicant’s lack of engagement in an appropriate course for many months, and given her failure to engage in competent English language studies, the Tribunal was not satisfied that the Applicant had a present intention to remain in Australia for the purposes of studying.
The Tribunal referred to the Applicant’s assertion that she was unaware that her enrolment in her Diploma course and Master’s degree had been cancelled, and that she was the victim of poor advice from her agent. However, the Tribunal found that it is the Applicant’s responsibility to ensure that she continues to meet the criteria for the grant of her Student Visa. The Tribunal noted that the Applicant said she did not know that the confirmation of enrolment had been cancelled until three months after the event. The Tribunal noted that the confirmation of enrolments was cancelled for non-commencement of the courses.
The Tribunal noted the Applicant’s explanation that she had been provided with advice that her school had been closed and/or was being transferred. However, the Tribunal did not find this explanation sufficient to explain the substantial periods of time when the Applicant was not studying in Australia.
The Tribunal also noted the Applicant’s assertion that if her visa was cancelled she would become an unlawful non-citizen and liable to detention under s.89 of the Act and removal under s.198 of the Act. However, the Tribunal found that she would be entitled to apply for a bridging visa which would allow her to remain in Australia to finalise her affairs, and was not satisfied that the Applicant would be subject to indefinite detention, particularly in light of the Applicant’s evidence that she could return to her home country.
The Tribunal noted that the second applicant, the Applicant’s husband, was presently working part-time in Australia, and that his visa would be automatically cancelled if the Applicant’s visa was cancelled. However, the Tribunal was not satisfied that Australia’s international protection or other obligations would be breached if the Applicant’s visa was cancelled. Accordingly, the Tribunal was not satisfied that the Applicant is presently a genuine student, and concluded that the visa should be cancelled and the Delegate’s decision affirmed.
The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered carefully whether there were grounds for the cancellation of the Applicant’s visa. In concluding that such grounds existed, the Tribunal proceeded to explore with the Applicant those matters relevant to the consideration by the Tribunal of the exercise of its discretion to proceed to cancel the Applicant’s visa.
The Tribunal’s decision record makes clear that it explored the Applicant’s claims as to why it would bring significant hardship to her and her husband to have her visa cancelled, but was ultimately not satisfied by those explanations. As stated above, the Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The weight that the Tribunal gives to the evidence before it is a matter for the Tribunal.
There is nothing to suggest that the Tribunal misapprehended or gave disproportionate weight to aspects of the Applicant’s evidence such that the Tribunal’s findings were unreasonable in any legal sense. The Applicant’s complaints do not identify any jurisdictional error on the part of the Tribunal, and appear more to be a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review, which this court cannot undertake. (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, none of the Applicant’s grounds demonstrate any jurisdictional error on the part of the Tribunal and none is apparent on the face of the Tribunal’s decision record.
Conclusion
The Tribunal made findings based on the material and evidence before it, and reached conclusions based on those findings, and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error, and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this court has no power to interfere.
The proceeding before this court should be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 26 July 2018
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