Wu v Minister for Immigration
[2019] FCCA 738
•1 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WU v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 738 |
| Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister to cancel a Student visa under s.116 of the Migration Act 1958 (Cth) for non-compliance with Condition 8202 – applicant did not respond to Notice of Intention to Consider Cancellation of Student visa – applicant claims compelling reason of homosexuality in judicial review application – applicant did not raise claim of homosexuality at the Administrative Appeals Tribunal hearing – no jurisdictional error identified – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth) |
| Cases cited: Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 |
| Applicant: | HANG WU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3384 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 15 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms S. Given |
| Solicitors for the First Respondent: | HWL Ebsworth |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 3 November 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3384 of 2017
| HANG WU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a female citizen of China aged 26 years, having been born on 19 January 1993.
By Application filed in this Court on 3 November 2017 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 4 October 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 23 August 2016, cancelling her Student (Temporary) Higher Education Sector (Class TU) (Subclass 573) visa (Student visa).
Background
The Applicant was granted the Student visa on 13 November 2013 which expired on 29 December 2016 and was subject to Condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations), which by force of Condition 8202(2)(a) required her to be enrolled in a full-time registered course of study.
By Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 5 August 2016 the Department of the Minister advised the Applicant that she appeared to be in breach of Condition 8202(2)(a) in that she had not been enrolled in a full-time registered course of study since 10 February 2016 and because of this the Minister was empowered under s.116(1)(b) of the Migration Act 1958 (Cth) (the Act) to cancel the Student visa.
The NOICC invited the Applicant to comment on the ground identified in the NOICC and to give reasons why her Student visa should not be cancelled.
The Applicant did not respond to the NOICC.
Section 116 of the Act relevantly provided as follows:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
(emphasis added)
Decision of Delegate
In her Decision Record, the Delegate noted that the Applicant had arrived in Australia on 6 December 2013 and that according to the Provider Registration and International Student Management System (PRISMS) the Applicant had not complied with para.(2)(a) of Condition 8202 of the Regulations because she had not been enrolled in a registered full-time course of study since 10 February 2016. The Delegate further noted that the Applicant had not given any response to the NOICC.
The Delegate was of the view that it appeared that the Applicant was no longer in Australia in accordance with the original purpose of the Student visa and because she had not responded to the NOICC the Delegate was not aware of the current purpose of her stay in Australia. The Delegate expressed the view that as the Applicant had not been enrolled in a full-time registered course of study for some six months, her non-compliance with Condition 8202 was significant.
Accordingly, the Delegate decided to cancel the Student visa under s.116(1)(b) of the Act.
Tribunal Decision
The Applicant lodged an application for merits review with the Tribunal on 29 August 2016 and provided a copy of the Decision Record of the Delegate to the Tribunal at the same time.
The Applicant appeared before the Tribunal on 4 October 2017 to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages.
At the hearing the Applicant confirmed that she had not been enrolled in a registered course since 10 January 2016 and that her PRISMS records correctly gave her study history, as follows:
a)General English course 1 - CoE cancelled on 24 December 2013.
b)Academic English 1 - variation on 9 May 2014.
c)Academic English 2 - CoE cancelled on 18 July 2014 for non-commencement of studies.
d)General English course 2 - cancelled due to change to student enrolment.
e)Academic English 3 - cancelled on 18 July 2014 due to change to a course in the same sector.
f)Academic English 2 - cancelled on 16 June 2014 due to change to CoE.
g)Bachelor of Commerce - cancelled on 18 November 2014 due to non-commencement of studies.
h)Bachelor of Commerce - cancelled on 13 January 2015 due to change to CoE.
i)Diploma of commerce - CoE cancelled on 10 February 2016 for non-attendance.
j)Bachelor of Commerce (x2) - CoEs cancelled on 22 December 2015 and 10 February 2016 due to non-commencement of studies.
Accordingly, at [11] of its Decision Record the Tribunal found that the Applicant had not complied with Condition 8202 and that the ground for cancellation of the Student visa under s.116(1)(b) of the Act had arisen.
The Tribunal then turned to consider the exercise of the discretion to cancel the Student visa and noted at [13] of its Decision Record as follows:
[13] There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual (PAM3).
At [15] of its Decision Record the Tribunal recorded that at the hearing the Applicant had given evidence “that she had applied for a “spouse visa” in February 2016 which was later clarified as being an application for a subclass 573 as a dependent on her partner’s subclass 573 visa. The applicant advised the Tribunal that the application was refused and she decided not to seek review of that decision because the relationship was “not good” and they were separating. The applicant confirmed that she is no longer in that relationship. She stated that she applied for the visa not to stay in Australia permanently but to take a break from studies.”
At [18] of its Decision Record the Tribunal noted that during the course of the hearing the Applicant “advised the Tribunal that she would like to continue her studies in Australia and achieve qualifications in business because the family runs an export business in China. She stated that she has had difficulties studying because she found the course of Academic English 3 to be very difficult and she has been unable to achieve the threshold score of 65.”
At [22] of its Decision Record the Tribunal recorded that in the course of the hearing the Applicant “gave evidence that when she was studying the course of Academic English 3, the teacher recommended a diploma course and she was planning to undertake studies in February 2016 but her visa was cancelled.”
In the result the Tribunal, having considered the Applicant’s circumstances as a whole, concluded that the Student visa should be cancelled. It noted in particular at [19] of its Decision Record that the Student visa was intended for students to undertake courses at a tertiary level, and on the Applicant’s own evidence she had not been able to pass the Academic English level, so that the Tribunal found it difficult to see how she would be able to progress and complete a tertiary course.
The Tribunal therefore affirmed the Delegate’s decision to cancel the Student visa.
Ground of Attack on Tribunal Decision in this Court
The Application filed in this Court asserted the following Ground:
1. The Tribunal failed to invite me to fully present compelling reasons to remain in Australia. During the hearing the Tribunal only invite me to comment on information relating to my study. I believe there are compelling reasons (other than study) for me to remain in Australia due to my homosexuality. Homosexual people are being strongly discriminated in China. During the Tribunal hearing I wasn’t given an opportunity to present the above arguments.
Consideration
I take this Ground as comprising two prongs, first to the effect that the Tribunal treated the Applicant unfairly in not inviting the Applicant to fully explain her case and second that she was not given an opportunity to give her homosexuality as a compelling reason for her to remain in Australia.
Further, at the hearing the Applicant read and relied upon her affidavit dated 3 November 2017 which deposed as follows:
1.I was granted a student visa on 13 November 2013 and I arrived in Australia on 6 December 2013. I kept studying English after arrival but I did not make much improvement on my English level. My subsequently vocational study wasn't successful due to my limited English level.
2. I was in a interdependency relationship with Ms Yingle LI and I applied for a student visa as a her dependant on 12 April 2016. I was given incorrect advise [sic] from my education agent that I did not have to continue with study after I lodged the new application.
3. My new student visa was refused on 8 July 2016. And my student visa was cancelled on 23 August 2016.
4. I applied for a review of the visa cancellation decision, and on 4 October 2017 the Tribunal affirmed the decision to cancel my student visa.
5. I believe there are compelling reasons for me to remain in Australia due to my homosexuality. Homosexual people are being strongly discriminated in China. During the Tribunal hearing I wasn't given an opportunity to present the above arguments.
6. I request that the Federal Circuit Court review my case so that I can regularize my immigration status.
The first problem faced by the Applicant in establishing jurisdictional error for the reasons asserted by her is that she has not tendered a transcript of the hearing before the Tribunal, which extended for a period of 45 minutes, notwithstanding that by consent order 3 of 9 February 2018 the onus was on her if she so wished, to tender a transcript verified by affidavit.
Absent such evidence, I am entitled to and should infer that the Decision Record of the Tribunal is an accurate account of the findings and evidence referred to and of the claims made by the Applicant at the hearing before the Tribunal: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 179 per French J (as he then was) and Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 at 434 [55] per Bromberg J.
The Decision Record of the Tribunal does not mention or refer to any claim made by the Applicant to the Tribunal of her homosexuality, or that this was a compelling reason for her to remain in Australia. The Decision Record does not contain any reference to the Applicant claiming that she was “given incorrect advise from her education agent that I did not have to continue with study after I lodged the new application”.
It is of course a well-established principle that an administrative decision-maker such as the Tribunal is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
However, this principle cannot apply to a claim not made.
In my view the Applicant has failed to establish that she made any claim to the Tribunal that she was either homosexual, or that her education agent had given her some form of incorrect advice.
Further, insofar as the Applicant seems to be suggesting that the Tribunal had failed in not, or not sufficiently, inviting and instigating her to make further, better or wider claims than she did, such contention fails for the following reasons.
First, there is no evidence at all that the Tribunal truncated or curtailed the hearing or limited or precluded the Applicant from making such claims as she wished to make.
Second, the fundamental roles of the Tribunal and the Applicant in the context of the Tribunal hearing were that it was for the Applicant to advance whatever evidence, claims or arguments she wished to advance, and it was for the Tribunal then to decide whether her claims had been made out: Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne J. The position was, as agreed by the parties with the evident approval of Banks-Smith J in CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627 at [50] as follows:
[50]Both parties acknowledged that:
(a)the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189at [11], [30]; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187];
(b)it was for the appellant to have advanced whatever evidence or argument he wished to advance in support of his claim that he was entitled to the visa. The Tribunal must then determine whether that claim is made out: Abebe v Commonwealth at [187];
(c)the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; and
(d)there was no duty on the Tribunal to make its own enquiries: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1].
To similar effect Graham J had said of proceedings before the Tribunal in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 506 [37]:
[37]The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [36].
Finally, the claim about incorrect advice from the Applicant’s education agent goes nowhere in establishing jurisdictional error because:
a)first, I have found that no such claim was made to the Tribunal;
b)second, other than the mere assertion by the Applicant in her affidavit there is no other probative evidence that any advice from her education agent was incorrect; and
c)third, it is not suggested, and there is no evidence to the effect, that the education agent’s incorrect advice was fraudulently given, let alone constituted a fraud on the Tribunal.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application to this Court is to be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 1 April 2019
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