Yan v Minister for Immigration
[2007] FMCA 89
•7 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 89 |
| MIGRATION – Migration Review Tribunal – Temporary Business Entry visa – no jurisdictional error – application dismissed. |
| Migration Act 1958 Migration Regulations 1994 |
| Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 Jayasekara v Minister for Immigration and Multicultural Affairs [2006] FCAFC 167 Chowdhury v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1243 |
| Applicant: | ZHENG YAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 856 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 January 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr J. Italiano |
| Solicitors for the Applicant: | Joseph Italiano & Associatess |
| Counsel for the First Respondent: | Mr R.C. Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 856 of 2006
| ZHENG YAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 1 June 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent finding that the Applicant was not entitled to the grant of a temporary business entry (class UC) visa.
The application for review before the Tribunal sought review by the Applicant, who is properly regarded as a secondary visa applicant and a national of the People's Republic of China, who applied for a temporary business entry (class UC) visa on 1 July 2004 as a dependant of his father, Mr Xu Yan. The Applicant in these proceedings who, as I have indicated, was the secondary visa Applicant for the business visa, had arrived in Australia on 19 January 2000 on a student visa.
It is noted that the Applicant was born on 25 August 1983. He was granted a further student visa on 28 February 2002. That visa, significantly, was cancelled on 30 July 2004 on the basis that the Applicant had failed to comply with a condition of the visa, namely condition 8202 of Schedule 8 of the Migration Regulations 1994 ("the Regulations").
Specifically, the subregulation relied upon appears to be that part of condition 8202 which requires the holder of the visa to achieve an academic result "that is certified by the education provider to be at least satisfactory for a course that runs less than a semester - for the course or for a course that runs for at least a semester - for each term of semester (whichever is shorter) of the course". So much is evident from condition 8202 in Schedule 8 of the Regulations, which relevantly states as follows:
“8202(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full‑time course of study or training.
(3) A holder meets the requirements of this subclause 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; and
(b) in any case -- the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(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 or semester (whichever is shorter) of the course.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full‑time course of study or training.”
It is further of relevance to note that the criteria for the grant of a business visa are set out in part 457 of Schedule 2 of the Regulations. Specifically, the criteria or the grant of the visa which is the subject of this application to the Applicant who, as I have indicated, is a secondary visa Applicant, are set out in Division 457.3. In particular, it is not in dispute that clause 457.323 requires that at the time of the decision:
“... the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
It is relevant to note in the context of the Regulations referred to above that the Applicant in this instance was merely included in an application by his father for the business visa.
Also included in that application was the Applicant's mother. It is understood that that visa was granted to the Applicant's father and mother on 6 October 2004. The Applicant's mother and father have remained in China and have yet to take advantage of the grant of the business visa, and, it is understood, have done so on the basis of waiting upon the outcome of this current application by their son.
In support of the application to the Tribunal for review of the delegate's decision, the Applicant's representative lodged a number of documents, including, significantly, a report from a social worker, Ms Marie Spinosa, dated 31 May 2005 ("the social worker's report") and submissions prepared by the Applicant's solicitors dated 15 December 2004 ("the representative's submissions").
A hearing was conducted by the Tribunal at which the Applicant gave evidence and was represented on 28 April 2006. It is clear that the social worker's report and the representative's submissions were directed to what is claimed to be substantial compliance with the conditions that applied to the student visa, it being the last substantive visa held by the Applicant prior to the application for a business visa.
The social worker's report (Court Book p.118) refers to difficulties the Applicant had with his parents, his command of English, lack of counselling, and other difficulties, though, significantly, also provided what would appear to be a purported expert opinion referring to the Applicant suffering from "significant anxiety and depression".
The representative's submissions then focused attention on the phrase described as, "complied substantially with conditions". It was submitted that that description attributed to the submissions by the Tribunal was not an accurate characterisation of those submissions. Rather, it was submitted, the focus of the submissions sought to draw attention to the question of substantial compliance with a visa.
The Tribunal's decision
The Tribunal in its decision referred to the evidence and the submissions made for and on behalf of the Applicant. Reference was made to the social worker's report and the representative's submissions. Specifically it is noted that in its decision, under the heading “Evidence”, the following appears:
“12.The psychosocial assessment was made by a person who is a qualified social worker who is not, and does not claim to be, a qualified psychologist. The assessment commences with a case history, during which the secondary visa applicant is noted as saying that his “mind went blank during the exams” and that he felt “that his level of English was not adequate and hindered his learning”. The writer in the opinion section of the report concludes that the secondary visa applicant “suffers from significant anxiety and depression related to his academic failures and the pressure he feels from his parents to succeed and his perception of himself as a failure:. The tribunal notes that the writer of the report is not a medical practitioner or a psychologist and consequently is not qualified to give the expert opinion which she claims to give.
13.The letter from Joseph Italiano dated 15 December 2004 to the delegate is a legal submission directed at the interpretation of the phrase “complied substantially with the conditions”. The letter refers to a number of decided cases and claimed that the secondary visa applicant met the course requirements for the major part of his studies in Australia. It was also claimed that the secondary visa applicant was a genuine student at all relevant times and further stated:
It would be incompatible with Australia’s reputation as a liberal democratic state, which upholds the rule of law to punish an individual, where the circumstances are beyond his control: ….. The refusal of subclass 457 would be grossly disproportionate to the breach having regard to all the surrounding circumstances resulting in the student cancellation and subsequent grant of the BE. … Hence it is submitted that there are compassionate and compelling circumstances that affect the interest of Australia as a signatory to the International Covenant on Civil and Political Rights not to refuse the visa subclass sought in these circumstances. To do so would be harsh, draconian, disproportionate in law and unconscionable; contrary to the spirit of the Covenant and at affect our status in the international community as a society, which subscribes to liberal democratic and human values and the rule of law.”
(Court Book p.147)
In its findings the Tribunal considered the material, and the following paragraphs are particularly relevant to this application:
“19.There is clear evidence that the secondary visa applicant did not comply with condition 8202 which was attached to his last substantive visa. For that reason his visa was cancelled and that decision was affirmed by this the tribunal differently constituted. There is evidence from the secondary visa applicant that he had attended the majority of his contact hours however there is no evidence by way of certification from the education provide that his academic results were satisfactory, in fact the evidence given by the secondary visa applicant himself was that he failed to the vast majority of the subjects he attempted. The secondary visa applicant was evasive when giving his evidence.
20.The Tribunal does not accept the evidence from the social worker that the secondary visa applicant was suffering from anxiety and depression which had affected his ability to study.
…
25.Taking into account all the relevant circumstances, on the evidence before it and on definition of “substantial” espoused by Court in Baidakova, on balance, the tribunal is not satisfied that the secondary visa applicant complied substantially with condition 8202 of his previous visa during the relevant visa period.
26.The Tribunal finds that the secondary visa applicant has not complied substantially with the conditions to which the substantive visa last held by him was subject. As a result he does not meet the requirement of clause 457.323.”
The grounds of the application
In the application filed 10 July 2006 the Applicant relies upon the following ground:
“1.In holding that the applicant did not satisfy clause 457.323 for the reason that he had not complied substantially with conditions that apply or applied to the last of any substantive visas held by the applicant the Tribunal exceed it jurisdiction, committed jurisdictional error or constructively filed to exercise jurisdiction.
PARTICULARS
(a)the fact that the Tribunal filed to make findings of fact on the claims advanced by the applicant including those advanced in the psycho social report tendered the Tribunal indicates that the Tribunal failed to conduct a review as required by the Act.
(b)The findings of fact that the Tribunal did not accept he evidence of the social worker that the applicant was suffering form anxiety and depression did not alleviate the responsibility of the Tribunal to address each of the matters advanced in the report;
(c)the Tribunal failed to consider the submission of the applicant that there were compelling reason why the applicant had not complied with condition 8202 on the previous substantive visas held by the applicant;
(d)in saying that “on balance” the Tribunal was not satisfied that the applicant had complied substantially with condition 8202, the Tribunal failed to make findings of fact on the applicant’s claims that would have permitted it to have undertaken the balances exercise spoken of.
(e)having found that it would not accept the evidence of the social worker that the applicant was suffering from anxiety and depression the Tribunal failed to consider and make findings on the applicant’s claims that he suffered from anxiety and depression of symptoms thereof and that as a result he was unable to comply with the 8202 condition.” (sic)
Applicant’s Submissions
The Applicant relied upon a statement of facts and contentions dated 17 October 2006 purportedly drawn by counsel. It should be noted, in considering the submissions, counsel who purportedly drew the submissions did not attend court and represent the Applicant. Instead, the Applicant's solicitor appeared on behalf of the Applicant. Although some reference was made to the absence of counsel for the Applicant, the court was not satisfied that counsel had been appropriately retained, as the solicitor was unable to produce a backsheet verifying if counsel had been briefed.
Although it was noted that apparently an email was forwarded to counsel and that a draft of the contentions was forwarded to the solicitor for the Applicant, which appears identical to the contentions now relied upon, the court was not satisfied that counsel in the circumstances, despite the email and facts material, had been properly retained. In any event, when the opportunity was given for the Applicant to seek an adjournment, an adjournment was not formally requested although, in fairness, it was indicated that as the matter had been listed by a Registrar by orders made on 28 July 2006 for hearing this day, that is 19 January 2007, the court would be reluctant to permit an adjournment.
Further it was indicated that if an adjournment was sought and granted a costs order may well be made not against the Applicant but rather the Applicant's solicitor and/or barrister. In any event, an application for an adjournment was not pursued. Apart from adopting the contentions, the Applicant's solicitor at the hearing made further brief oral submissions. In the written contentions the Applicant's representative refers to the Tribunal's decision and the manner in which it dealt with the social worker's report and the representative's submissions.
It was submitted that the finding in relation to the social worker's report set out earlier in this judgment could properly be regarded as a limited finding relating to the diagnosis that had been proffered and that the Tribunal had failed to have regard to the other matters raised in that report. In relation to the representative's submissions it was indicated that the Tribunal had not accurately characterised those submissions by suggesting they were directed to the interpretation of the phrase, "complied substantially with conditions".
Reference was made to paragraph 25 of the Tribunal's decision, set out above, and it was submitted that the reasoning in that paragraph should be regarded as "perfunctory" and that failure by the Tribunal to make findings of fact on the Applicant's claims evidence a failure to conduct the review as required by the Migration Act 1958 ("the Act").
It was submitted that the Tribunal in its decision had correctly referred to a decision of Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 (Baidakova) which referred to the matters to be taken into account in deciding whether an Applicant had complied substantially with the visa condition but the Tribunal did not then attempt to make the necessary findings of fact pursuant to that authority.
It was further submitted that the court should infer that the Tribunal failed in this case to address the claims and accordingly had not discharged its function. Reliance was placed upon the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]-[74].
First Respondent’s Submissions
The First Respondent submitted that the relevant legislative framework and relevant authorities demonstrate that the Tribunal had not failed to take into account a relevant consideration as that ground would only succeed if it could be claimed the Tribunal failed to take into account the consideration which it was bound to take into account in making its decision (see Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39).
It was submitted that even if the Tribunal had failed to expressly mention or deal with part of the evidence then that would not of itself give rise to any failure to take into relevant consideration unless it could be shown that in doing so it failed to take into account a matter it was bound to take into account.
In this application it was submitted the Tribunal correctly instructed itself about the appropriate legal principles in referring to Baidakova. It had considered whether or not the Applicant had "complied substantially" with condition 8202 as it applied to the Applicant's student visa. The Tribunal, it was submitted, correctly had regard to the evidence before it, including the social worker's report and the representative's submissions. Its findings in relation to that were reasonably open to it on the evidence before it.
In the course of oral submissions, counsel further submitted that in any event there is now accepted authority for the proposition that when considering the conditions set out in condition 8202, which applied to the Applicant's student visa at the relevant time, it is important to note condition 3(b), set out above.
That condition is identical to a similar condition considered by the Federal Court in Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 where Ryan J, relevantly in considering a Tribunal decision concerning matters of a kind analogous to the present application, after referring to the Tribunal's decision, stated:
“8In my view, the Tribunal accorded the applicant an excessively benevolent application of Condition 8202(3)(d) when it accepted the decision of the Swinburne Appeals Committee to allow him to continue his course in Semester 2 of 2000 as "evidence that the education provider has certified that the visa applicant has achieved an academic result that is satisfactory for the period up to Semester 1, 2000." The Appeals Committee’s action was at least as consistent with its having concluded that the applicant’s results for Semester 1 of 2000 had been less than satisfactory but that he should be given another chance.
9However, even if the Tribunal’s benevolent approach were correct, that could not avail the applicant because there is no suggestion that Swinburne had certified his results for Semester 2 of 2000 or either semester of 2001 to be at least satisfactory. As the Tribunal observed at [32] of its reasons quoted at [7] above, by changing, in 2002, from Swinburne to a course at Central Queensland University, the applicant impliedly acknowledged that his results at Swinburne, at least during 2001, had been less than satisfactory.”
It is further significant to note that Ryan J then further considered the application of the principles set out in Baidakova and relevantly stated:
“10I do not consider that Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 to which the Tribunal referred, has any bearing on satisfaction of Condition 8202(3)(d) in the form in which it applied to the applicant. The criterion which Ms Baidakova had to satisfy was that imposed at that time by cl 560.213 of Sch 2 to the Regulations which was that an applicant who had applied for a visa of the relevant class, at the time of the application "has complied substantially with the conditions to which the visa ..... held by the applicant is ..... subject" (emphasis added). The relevant condition is Ms Baidakova’s case was that she satisfy the requirements of the course the undertaking of which had been the basis of the grant to her of a temporary entry permit. One such requirement was that she attend at least 90% of the classes for the course in which she had enrolled. By contrast, there is no scope for operation of the distinction between strict compliance and substantial compliance on Condition 8202(3)(d). Nor can the guidelines in the departmental Procedures Advice Manual ("PAM") to which the Tribunal and the written submissions referred, bear on the application of that condition. As the Tribunal pointed out at [31] of its reasons quoted above, the PAM guidelines require the Tribunal to have regard to circumstances beyond the control of the visa applicant such as absence or failure due to illness and evidence of those circumstances such as medical certificates. However, the presence or absence of a certificate from the education provider is not susceptible to being affected by circumstances beyond the applicant’s control in that sense. Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.”
Relevantly for present purposes, a reference by His Honour to condition 8202(3)(d) is a reference to a provision almost identical with condition 8202(3)(b) which applied in the present case. The decision of Ryan J in Weerasinghe was approved by a Full Court of the Federal Court in Jayasekara v Minister for Immigration and Multicultural Affairs [2006] FCAFC 167 (Jayasekara).
Although the Full Court in approving the Ryan J decision does not expressly indicate that it did approve the decision, it is acknowledged that the hearing in that case was a hearing which significantly occurred where both parties invited the Full Court to hold that Weerasinghe was wrongly decided. A majority of the court in Jayasekara did not hold that the decision of Ryan J in Weerasinghe was wrongly decided. Specifically, the joint decision in that case of Heerey and Sundberg JJ decided as follows:
“14Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs.
15The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case of par (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise.”
In the present case it was submitted that in applying the authorities of Weerasinghe and Jayasekara the Tribunal, as in those cases, perhaps acting benevolently and wanting to interpolate unnecessarily, considered the material in a manner which was not required, in the sense that in this instance, as in the other cases, there was simply no certification at all by the education provider that the Applicant had satisfactorily completed the course in the manner prescribed as a condition of his student visa. So much is evident from paragraph 12 of the Tribunal's decision, set out above.
Accordingly, it was submitted, the Tribunal was not bound to then take into account the evidence and submissions concerning what was claimed to be the substantial compliance with the condition alleged by the Applicant, as consideration of that concept was precluded by application of the cases to which I have referred, and in any event by consideration of condition 8202(3)(b) of the condition, which does not permit consideration of substantial compliance where there has been a complete absence of an appropriate certification by the education provider.
Reasoning
Applying the relevant law, including a proper reading of condition 8202, it is my concluded view that the submissions of the First Respondent are correct. Even if the Tribunal was obliged to consider the other material relied upon by the Applicant, including the social worker's report and the representative's submissions, notwithstanding the complete absence of certification by the education provider, then in my view the manner in which the Tribunal made its findings is in any event free of error.
First, the Tribunal was entitled to disregard a diagnosis made by a social worker who is clearly not qualified to offer an expert opinion in relation to a psychiatric condition of anxiety and depression. Further, the Tribunal was entitled to reject, as it did, the other material in relation to the attendance by the Applicant at lessons and/or other material in the social worker's report.
I can see no error in the manner in which the Tribunal approached its task in not accepting the evidence of the social worker that the Applicant was suffering from anxiety or depression nor any error in its alleged failure to consider the submissions made for and on behalf of the Applicant.
In any event, as indicated earlier in this judgment and having regard to the authorities relied upon by the First Respondent, it seems clear to me that the decision by Ryan J in Weerasinghe and approved by the Full Court in Jayasekara was correct and I accept that there does not appear to be scope for operation of a distinction between strict compliance and substantial compliance in relation to the relevant condition 8202.
I am further strengthened by that finding and accept the further authority referred to by the First Respondent during the course of submissions of the decision by Barnes FM in the matter of Chowdhury v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1243 where Her Honour relevant stated at [51] the following:
"51.As stated above, as Ryan J found in Weerasinghe at [10], there is no scope for the operation of the distinction between strict compliance and substantial compliance in relation to that part of condition 8202 which requires the holder to achieve an academic result that is certified by the education provider to be at least satisfactory. In considering whether there had been substantial compliance with condition 8202(3)(b) the Tribunal was in fact according the applicant ‘an excessively benevolent application’ of the relevant condition although, given the decision that was made, no jurisdictional error flows from that. This does not mean that the notion of substantial compliance cannot have an operation in relation to other requirements of condition 8202. (See for example condition 8202(3)(a).)”
In my view, the decision of Her Honour in that case, following, as it does, from the decision of Ryan J in Weerasinghe, is correct and applies with equal force to the present application. Accordingly, for the reasons given, it follows the application should be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 7 February 2007
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