XU REN v Minister for Immigration - [2003] FMCA 475

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XU REN v MINISTER FOR IMMIGRATION

[2003] FMCA 475

MIGRATION – Visa – Student Visa – breach of student visa by failure to regularly attend class – where applicant alleges the Tribunal failed to properly apply the definition of ‘exceptional circumstances’ – where there was a failure by the applicant to raise before the tribunal issues which she intended to rely on.

Migration Act 1958 (Cth), ss.137K, J, L

Nikac v Minister for Immigration (1998) 20 FCR 65
Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586
Re Minister for Immigration and Others: Ex parte Cohen (2001) 177 ALR 473
Minister for Immigration v Wu Shan Liang (1966) 185 CLR 259

Applicant:

XU REN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 660 of 2003

Delivered on:

21 October 2003

Delivered at:

Sydney

Hearing date:

21 October 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

John Overall

Counsel for the Respondent:

Michael Wigney

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 660 of 2003

XU REN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter was the holder of a sub-class 560 (student visa) under which she attended a number of courses of instruction within Australia. On 16 July 2002 she was sent a letter described as a “Notice under Section 20 of the Education Services for Overseas Students Act 2000” advising her that she had breached one of her visa conditions by failing to maintain an 80% attendance at class between the period of 4 March 2002 and 14 June 2002. The letter referred her to ss.137K and J of the Migration Act 1958 (Cth) and advised her that the visa would cease on the 28th day after the day of that notice unless she reported to DIMIA by that time. On the same day she received another notice under the same Act advising her that she had breached a condition of her visa relating to poor academic performance.
The applicant did not attend at the Department as required by the notices although it is true to say that she had previously attended the Department in response to an earlier notice. In those circumstances her visa was automatically terminated. On 23 August 2002 the applicant wrote to the Minister seeking revocation of the automatic cancellation under s.137J. Her application was considered by a delegate of the Minister who declined to revoke the decision. The applicant then sought review of that decision from the Migration Review Tribunal. In the meantime the applicant obtained a bridging visa and enrolled in another course which she is apparently conducting successfully. The applicant's application for review was made on 4 September 2002 and the decision was handed down on 10 February 2003. The decision of the Tribunal was to affirm the decision under review. The applicant then sought from this court judicial review of the decision of the Tribunal.
There are two grounds upon which the applicant challenges the decision of the Tribunal. The first ground is that the Tribunal wrongly applied or failed to properly apply the definition of exceptional circumstances which is a matter that it is required to consider under s .37L
137L(1):
“On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

(a) that the non-citizen did not in fact breach the relevant visa

condition or conditions; or
(b) that the breach was due to exceptional circumstances

beyond the non-citizen's control...”
The applicant argues that exceptional circumstances existed in her case because she was unable to attend classes due to the exacerbation of a pre-existing back injury caused to the applicant when she slipped at a swimming pool in her block of units. The second matter raised by the applicant was that the Tribunal had wrongly failed to take into account a failure by the Educational Institution to have regard to medical certificates when calculating her absences.
The Tribunal did consider at some length the applicant's claim that she had been suffering from problems resulting from the fall and in fact went so far as to have her medically examined. Because the medical examination took place some time after the dates upon she was alleged to have been absent and because of the nature of her medical complaints it was never likely that the examination would establish very much indeed. The response which came back from Health Services Australia was that her injury "does not prevent her from attending full-time study." The Tribunal also noted that contact had been made with the applicant's doctor who confirmed that he had seen her on a number of occasions. However, the only medical certificates which are found within the court book relate to a period prior to the dates within the section 20 notice found at [CB 27].
At [CB 111] the Tribunal discusses its task to consider exceptional circumstances and takes for its guidance in respect of that term the definition of the words in the Macquarie Dictionary. The term is not otherwise defined and this approach would not be unreasonable. The Tribunal then goes on to consider the evidence put to it by the applicant and other evidence collected by it before finding:
“On balance the Tribunal is not satisfied that the review applicant has provided a credible account of the injury that she suffered and the associated medical treatment she received nor how this in fact precluded her from attending the course at SIBT in compliance with condition 8202. The Tribunal has doubts about the veracity of the review applicant's claims on the basis of this evidence. The evidence does not satisfy the Tribunal of the existence of exceptional circumstances that led to the subsequent breach of the visa. Accordingly, the Tribunal confirms the non-revocation of the visa.”
In all probability the Tribunal meant “the revocation”.
The applicant seeks to take comfort from the decision of Wilcox J in Nikac v Minister for Immigration (1998) 20 FCR 65 where his Honour gave consideration to the effect of the use in a quasi legislative instrument of the term "exceptional circumstances." His Honour's views on the matter were discussed by a Full Bench of the Federal Court in Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586 at [19]. His Honour's views concerning the existence, or otherwise, of exceptional circumstances in the facts of the case before him did not prevent him from finding that it was necessary before disagreeing with the Minister to find that the Minister's view was devoid of plausible justification. When he came to the view that it was impossible to characterise a different view to that of the Minister as being devoid of plausible justification he was unable to impugn the decision. He said:
“ Like beauty, exceptional circumstances lies in the eye of the beholder.”
What I understand Nikac and Hicks to be saying is that a consideration of exceptional circumstances is one of fact and provided some facts that are not devoid of plausible justification exist such a finding can be made without risk of making any error, let alone a jurisdictional error.
Mr Wigney who appeared on behalf of the Minister has helpfully referred me to Re Minister for Immigration and Others: Ex parte Cohen (2001) 177 ALR 473 where McHugh J decided a case based upon a definition of "serious circumstances". The claims made by the applicant in that case seem to me to mirror those being made in this. At [34] his Honour says:
“The applicant submits that the Tribunal "misunderstood the nature of the opinion which [it] is to form”. He submits that the Tribunal did not understand the true meaning of "disability" and "other serious circumstance” in the definition of a "special need relative” and in reg 1.03.
But, assuming that the Tribunal erred in determining the meaning of these expressions because it applied an erroneous precedent in determining the meaning of "disability" and "other serious circumstances”, it does not follow that it committed a jurisdictional error. Adopting an incorrect interpretation is not always synonymous with jurisdictional error. Nor does it make a difference to the validity of that proposition that the relevant Tribunal has applied an erroneous precedent rather than adopting its own erroneous precedent.
[35] The Tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions "disability” and "other serious circumstances” were used in reg 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact.
Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question that it had to decide that its error constituted a jurisdictional error.”
In this case the question which the Tribunal had to decide was whether or not exceptional circumstances existed. It did consider that question. Whether or not it made a mistake in its answer is a question of fact and one which to my mind and on the authority of Cohen cannot constitute a jurisdictional error.
It seems to me that the decision of the Tribunal clearly indicates the existence of plausible justification for the decision to which it came.
The final matter raised by the applicant is the claim that the Tribunal did not properly consider a policy of the school in question of ignoring medical certificates. The applicant's evidence for this was found in a document sent by the school to the Department and contained at [CB 14]. However, this document only indicates a number of absences and says that absences with a [M] or [A] beside them have a medical certificate or an approved absence. None of the absences referred to do have a [M] or [A] beside them. This document is dated 7 June, 2002. It refers to semester 3, 2001 which commenced on 29 October, 2001 and concluded on 15 February 2002.
It therefore includes a period for which medical certificates found between [CB 21] and [22] refer. However, the Tribunal made its views on those certificates known in its decision. It had concerns about the applicant's credibility in relation to them. In addition, this alleged failure of the Tribunal was also a failure of the delegate. The Tribunal was not told by the applicant that the delegate had failed to take into account the fact that the certificate of attendance did not indicate the existence of medical certificates, upon which the applicant proposed to rely. To that extent, the matter was not one which was really raised before the Tribunal and the Tribunal was not obliged to make out the applicant's case for her.
It seems to me that in delving into this aspect of the matter a court would be in breach of the caution made by the High Court in the Minister for Immigration v Wu Shan Liang (1966) 185 CLR 259 at 272 referred to by the Full Bench at [43] in Hicks where Their Honours said:
“That the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
I am satisfied that the applicant has been unable to make out a case that the Tribunal in this instance fell into error such that should be reviewed by this court. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: