YIN v Minister for Immigration

[2016] FCCA 752

FEDERAL CIRCUIT COURT OF AUSTRALIA

YIN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 752

Catchwords:
MIGRATION – Judicial review of cancellation of visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth), Condition 8202(2) of sch.8, reg.2.43

Applicant: JUN YIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2391 of 2014

Judgment of: Judge Jones

Hearing date: 8 March 2016

Date of Last Submission: 8 March 2016

Delivered at: Melbourne

Delivered on: 6 April 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The Application for judicial review filed on 26 November 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2391 of 2014

JUN YIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review filed on 26 November 2014, in relation to a decision of the then Migration Review Tribunal (“the Tribunal”) dated 29 October 2014 affirming the decision by the delegate of the Minister for Immigration and Border Protection, made on 8 April 2014, to cancel the Applicant’s student visa.

The background

1. The Applicant is a female citizen of China, and was the holder of a Subclass 573 student visa (“the visa”). The visa was subject to Condition 8202(2) of Sch.8 to the Migration Regulations 1994 (“the Regulations”) which, amongst other things, required that the visa holder be enrolled in a registered course.  The delegate cancelled the Applicant’s visa on the basis that the Applicant ceased to be enrolled in a registered course from 8 April 2014, in breach of Condition 8202 of Sch.8 to the Regulations.  At the Tribunal hearing, which was conducted on 27 October 2014, the Applicant confirmed that she had ceased to be enrolled in a registered course from 8 April 2014.  At paragraph 8 of the decision record (CB110), the Tribunal stated:

   At the hearing, I asked the applicant if she agreed that she ceased to be enrolled from 8 April 2014. She did. Accordingly I find that the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202(2). 

2. Section 116(1)(b) of the Migration Act 1958 (“the Act”), gives the Minister the power to cancel a visa where the visa holder has not complied with a condition of the visa. Pursuant to s.116(2) of the Act, the visa is not to be cancelled where prescribed circumstances exist, and pursuant to s.116(3) of the Act, the visa must be cancelled where prescribed circumstances exist. Section 116 of the Act states:

   (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

   …

   (2)     The Minister is not to cancel a visa 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), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   I note that none of the prescribed circumstances set out in reg.2.43 of the Migration Regulations 1994 (“the Regulations”) apply in this case.

The decision of the Tribunal 

1. The Tribunal held that there were no matters specified in the Act or in the Regulations in relation to the exercise of its discretion. It is apparent that the Tribunal’s discretion arose because the Applicant had failed to comply with a condition of the visa, and consequently, its power was enlivened to determine whether in fact the visa should be cancelled. The Tribunal had regard to the matters raised by the Applicant, as well as guidelines contained in PAM3. The Tribunal accepted that the Applicant’s purpose in coming to Australia was to study.

2. The Tribunal noted at paragraph [11] of the decision record (CB111) that the Applicant had an enrolment from Monash University for a Masters in International Business, but that she was unable to commence this course because she did not obtain the requisite IELTS test score required by the university for her to commence the course.  The Tribunal then went on to say in relation to this (CB111):

   12.    The breach was a occasioned by the applicant not obtaining the IETLS test score required by the education provider. When she did not obtain the score, she took no further action and did not commence the Masters in International Business. She did not speak to the education provider or the department. When I asked her why she did not speak to the university she replied “no reason”.

   13.    The applicant did attend some units of an English for Academic Preparation course and she provided evidence of attendance and progress reports. However, she did not finish this course because she returned to China.

   14.    I asked the applicant if it was accurate then that she had not successfully completed any study in Australia.  She agreed that was correct.

   15.    The applicant said she wants to change her course to Professional Accounting and Business Law.  She showed me an email on her phone of an acknowledgment of her application for this course. However, it is nothing more than an acknowledgment of her application from the education provider.

3. The Tribunal then turned to consider whether there were extenuating or compassionate circumstances in relation to the Applicant, and whether any hardship would be caused to the visa holder and their family.  At paragraph [16] of the decision record (CB111), the Tribunal observed that the Applicant would experience the usual hardship as a result of a visa cancellation, including being required to return to her home country, and would be subject to the bar on applying for a further visa for three years. However, the Tribunal stated at paragraph [16] (CB111):

   The applicant did not raise any extraordinary hardship factors that would outweigh the grounds for cancelling the visa.

4. As to extenuating or compassionate circumstances, the Tribunal said at paragraph [17] (CB111):

   … The applicant simply failed to obtain the required IELTS score, she did not attend her course as a result.  She did not take any steps to speak to her education provider or regularise her status with the department.

5. The Tribunal then turned its mind to what it referred to as any other matters raised by the visa holder, as follows at paragraph [22] (CB112):

   The applicant said that she begs me to help her. She said she does not know it is a serious visa problem and she really regrets it but perhaps because of her lack of knowledge of Australian immigration law she made a serious mistake. She said everyone makes mistakes, the key is correcting it and that if I gave her the opportunity of studying in Australia she would like the chance.  I said to the applicant that it is a serious breach and it is a long period of non-enrolment. The applicant said because of her personality she does want them (her parents) to know what happened. She said in university in China she was an outstanding student and it is embarrassing for her to tell her situation. She said before she came here she thought that the study is very easy because in China she has been learning English since she was in primary school.  She said her mother is proud of her and she thinks her daughter speaks very good English however when she came here she found it very different.  She said in higher education she has to learn academic English and it is different to spoken English and especially the writing is very difficult.

6. The Tribunal concluded thus at paragraph [24] (CB112):

   In my assessment the breach occasioned by the lengthy period of nonenrolment is serious.  I also find that the applicant’s lackadaisical attitude towards her studies, as evidenced by not taking any action to speak to her education provider or the Department indicates to me that she is not a genuine student.  I give little weight to her claims that she found higher education English requirements difficult as she never commenced any study in the higher education sector. She was progressing in an English language preparation course but did not complete this as she chose to return to China. She gave no compelling reason why she did this.

7. The Tribunal concluded that there were no compelling hardship or other factors that would persuade it that the visa should not be cancelled.  Consequently, it proceeded to exercise its discretion to cancel the visa.

Judicial review 

1. As the Applicant was self-represented, I explained to her the nature of judicial review, and in particular, the Court’s function in conducting judicial review.  I explained to her that the Court’s function was not to examine the merits of the case for cancelling the visa. I explained that the function of the Court was to look at the Tribunal decision and decide whether there was jurisdictional error or, as I put it, a serious legal mistake.  I took the Applicant to her grounds of application for judicial review, which are as follows:

   The Migration Review Tribunal has acted beyond its powers, including but not limited to failing to take into account relevant considerations and by taking into account irrelevant considerations or both.

2. I asked the Applicant to explain to the Court what she believed were the considerations that the Tribunal ought to have taken into account, and the considerations or evidence that it did not take into account.  She said that the Tribunal failed to take into account that she suffered stress and loneliness. She said that the Tribunal asked her whether she had seen a mental doctor (psychiatrist or psychologist) but she responded that she had not.  She said that as she is Chinese, she is reluctant to talk to a mental doctor.

3. She also said that she objected to the Tribunal’s conclusion that she had a lack of enthusiasm for study, because she believed that the homework and academic documents she had provided to the Tribunal were good, and she did not agree with that finding. Turning to her grounds in which she claims the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations.  The first issue which arises, is the Applicant’s submission today that she informed the Tribunal that she suffered stress and loneliness.

4. There is nothing in the decision record that shows that the Applicant raised this, and this is notwithstanding the rather detailed outline of the Applicant’s evidence, which the Tribunal provided at paragraph [22] of its decision record (CB112). In the absence of the Applicant having provided a transcript for the Court to assess whether this was in fact a matter she placed before the Tribunal, which it failed to take into account as a reason for her failure to remain enrolled in a registered course of study from 8 April 2014, I am unable to make a finding that this was a consideration that was relevant, and that it was not taken into account by the Tribunal.

5. As for the Applicant’s grievance with the Tribunal’s description of her “lackadaisical attitude towards her studies”, or as she says “lack of enthusiasm for study”, this is a finding of the Tribunal based on the evidence before it. It was, in my view, a finding that perhaps the Applicant found offensive or embarrassing.  Nonetheless, the Tribunal, in my view, was entitled to reach this finding given the fact that the Applicant ceased to be enrolled in a registered course from 8 April 2014, and on the evidence had done nothing to rectify this and, in fact had, according to the Tribunal, returned to China.

6. The evidence is that the Applicant attempted some units of English but did not complete these. The Applicant said to the Court today that she attempted to improve her English by herself, however, this again is something that is not apparent from the decision record, and in the absence of a transcript I do not take that into account.  It seems that this particular grievance of the Applicant is in reality a grievance about the outcome of her case, and what the Applicant is asking the Court to do is to engage in impermissible merits review.

Conclusion

1. For the reasons set out above I am not satisfied that the Tribunal fell into jurisdictional error.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 6 April 2016