Ying Liu v Minister for Immigration
[2007] FMCA 1087
•17 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YING LIU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1087 |
| MIGRATION – Review of decision of the Migration Review Tribunal – subclass 573 (Student) visa – condition 8202 – failure to achieve a satisfactory academic result not due to “circumstances beyond the applicant’s control” – no denial of natural justice – no actual bias – no apprehended bias – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.116, 359A Migration Regulations 1994, r.2.43 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 212 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | YING LIU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1750 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 May 2007 |
| Date of Last Submission: | 17 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms S Kaur-Bains |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The reference to the Migration Review Tribunal in the application to this Court be struck out.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1750 of 2006
| YING LIU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me today an application filed in this Court on 21 June 2006 seeking review of the decision of the Migration Review Tribunal, signed on 16 May 2006 and sent to the applicant by way of letter on the same date, which affirmed the decision of a delegate of the respondent Minister to cancel the Subclass 573 (Student) visa of the applicant.
Background
The general background to this matter is set out in the respondent’s written submissions, and I thank Ms Kaur-Bains for those written submissions which she drafted for the Minister, and in particular I note paragraphs two to nine of those submissions and adopt those submissions by way of background for the purposes of this judgment. The respondent’s submissions state:
“2. The applicant is (sic) citizen of China. On 15 April 2005 the applicant was granted a Subclass 573 (student) visa, which was valid until 31 August 2006. The visa was subject to several conditions including condition 8202. The applicant undertook a Masters degree in information technology at Central Queensland University (‘the University’)
…
9. The applicant attended a hearing before the Tribunal and gave evidence (CB:81, paragraph 4).”
In particular, the sequence of events that can be drawn on is that the applicant was the holder of a student visa to which was attached a condition contained in the Schedules to the Migration Regulations1994 (“the Regulations”) and, in particular, condition 8202. This condition relevantly requires the holder of a visa to which the condition attaches to meet a number of requirements and, in particular, to attend, to the satisfaction of the Minister, at least 80 per cent of the hours of study that have been scheduled, and with particular relevance to the matter before me today, to achieve an academic result that is certified by the relevant education provider to be at least satisfactory for each term or semester of the course in relation to which the visa has permitted the applicant to enter Australia and to attend to study.
Drawing on the background that is set out, variously, in the Court Book (“CB”) and, as I said, with reference to the first respondent’s written submissions, the relevant education provider, Central Queensland University (“the University”), notified the applicant on 23 January 2005 of a breach of condition 8202(3)(b) of the Regulations, that is, a “failure to achieve satisfactory academic results” (CB 1.4). The University stated:
“Central Queensland University (CQU) (trading as CQU Sydney Campus) has determined that in the term running from 11/11/2004 to 11/11/2005, your academic results were not satisfactory. This is because you failed 10 subjects out of the 10 subjects you were enrolled in. As a result, you have failed to comply with condition 8202(3)(b) of your student visa.”
I note that on 19 January 2006 the Minister’s Department notified the applicant that there may be grounds for cancellation of her visa as she had failed to comply with condition 8202 of her Student Visa (reproduced at CB 10 to CB 12). I further note the applicant’s letter of response dated 20 January 2006 (reproduced at CB 13 to CB 14), which contains an explanation of her circumstances where the applicant raised the issue, amongst other things, of her medical condition and her personal circumstances of having no family or friends in Australia and the failure of the University to offer assistance. In particular, the applicant stated that:
i)“The courses of the Master (sic) degree were not as challenging” as she expected (CB 13.4 to CB 13.5);
ii)Her “frustration of the studying was increased also as a result of classmates, which majority of them are male and came from India, by communicating Indian languages during the break time (sic)” (CB 13.5 to CB 13.6);
iii)Her “serious chronic enteritis” which did not only “affect her daily attendance, it also made (her) felt (sic) very depressed to continue to study the course” (CB 13.6 to CB 13.7);
iv)Her friends and family were not in Australia, so she could “hardly find anyone to help with (her) problem” (CB 13.8);
v)“The university did not offer my any help except ask me to come to see them to report my performance during the middle of the semester (sic)” (CB 13.10).
Ultimately, on 1 March 2006, the Minister’s Department provided the applicant with a “Notice of a Decision Not to Pursue Cancellation Under s.116 of the Migration Act 1958 (“the Act”)” and informed her that despite there being:
“[A] ground for cancellation of (her) visa under section 116(1)(b) [of the Act] …because your education provider reported (sic: in relation to) the course running from 11/11/2004 to 16/11/2005, your academic results were not satisfactory”(CB 20.4), “a decision has been made not to cancel your visa because your last student visa was granted on 15/04/2005 which was midway through the reported period of possible breach of 8202 condition. Your visa therefore continues to provide you with permission to remain in Australia until 31/08/2005.” (CB 20.4 to CB 20.5)
On the same day, 1 March 2006, the applicant was notified that her Visa may be cancelled under s.116 of the Act (CB 26 to CB 27) and, ultimately, the applicant’s Visa was cancelled for reasons in relation to which she received notification (CB 33 to CB 35). The applicant subsequently, on 10 March 2006, sought review of this decision by the Tribunal. (The application for review is reproduced at CB 36 to CB 43.)
The Tribunal wrote to the applicant by letter dated 13 April 2006 (reproduced at CB 49 to CB 50) inviting the applicant to a hearing before the Tribunal. By a separate letter dated 13 April 2006 (reproduced at CB 55 to CB 56), the Tribunal wrote to the applicant, made specific reference to s.359A of the Act and drew the applicant’s attention to certain information which the Tribunal said was relevant to its consideration and, ultimately, to its decision, and invited the applicant’s comments in writing.
I note specifically that the letter draws the applicant’s attention to the fact that the Tribunal had information that the applicant had not achieved an academic result considered by the education provider to be at least satisfactory for semester one of 2005 or for semester two of 2005. Further, the letter drew the applicant’s attention to medical certificates which the applicant had previously provided, and specifically sought from the applicant the opportunity to provide certification from the education provider that the academic results were at least satisfactory in semester two of 2005. The applicant responded to this letter by letter dated 24 April 2006 (reproduced at CB 61 to CB 69).
The applicant appeared before the Tribunal on 16 May 2006 and participated, with the assistance of an interpreter in the appropriate language, and, from the Tribunal’s hearing record (reproduced at CB 73 to CB 74), the applicant’s representative was also present at the hearing.
Ultimately, the Tribunal affirmed the decision to cancel the visa and its “Findings and Reasons,” and the evidence on which those findings were based, are reproduced at CB 81 to CB 84. The Tribunal considered the following:
1)Whether the review applicant satisfied condition 8202 in semester two of 2005 in relation to the course of study in which she had been enrolled at that time. The Tribunal noted that the applicant had been enrolled in a Masters Degree at the Central Queensland University. It noted the advice from the University to the Minister’s Department in relation to academic results for semester two of 2005, and found that after considering the evidence and the relevant legislation to which it must have regard, that the applicant had not achieved an academic result that was certified by the education provider to be at least satisfactory for semester two of 2005. On that basis, therefore, the Tribunal found that there had been a breach of condition 8202 (CB 82.8 to CB 82.9).
2)However, the Tribunal also considered the application of Regulation 2.43 and relevantly, for the purposes of cancellation of a visa pursuant to s.116 of the Act, that cancellation of a student visa such as that held by the applicant required consideration of whether the failure to comply with the relevant condition in 8202 was not due to exceptional circumstances beyond the applicant’s control (CB 83.3).
The Tribunal then considered the documentary evidence provided by the applicant. I should note that the Tribunal stated that it did not list all of the documentary evidence and that the Tribunal is only required to list evidence which is relevant to its decision. On what is before the Court now, there is nothing to show that the Tribunal failed to consider any relevant evidence. The Tribunal also considered submissions made by the applicant at the hearing, specifically, the emotional problems that the applicant claimed for the period covering semester two of 2005, and the applicant’s complaints about the lack of assistance from the education provider (CB 83.6).
I should add that the Tribunal noted in relation to the medical evidence that although there was a claim of having consulted a medical practitioner throughout 2005, that there was no medical certificate for the period of semester two. The Tribunal also noted in its record the applicant’s statement that there had been a medical certificate but she was not able to state what period it covered.
The Tribunal was not satisfied that the applicant’s medical and mental condition constituted an exceptional circumstance beyond her control. This was obviously with reference to what it was required to consider pursuant to Regulation 2.43 of the Regulations (see paragraph 19 of the Tribunal’s decision record at CB 84.2). The Tribunal further considered whether the other circumstances presented by the applicant, that is the dissatisfaction with the course and with the lack of assistance, constituted an exceptional circumstance beyond her control, and found that it could not be so satisfied in relation to either.
I accept the submission made by Ms Kaur-Bains that the Tribunal’s findings at paragraph 19 of its decision, when read in context, are plainly directed to the question that the Tribunal had itself stated it was required to address and were linked to whether there had been at least a satisfactory academic result for semester two of 2005.
In all, therefore, having found that there had been a breach of condition 8202, and having found that it could not be satisfied that such a breach was not due to exceptional circumstances beyond the applicant’s control, the Tribunal affirmed the decision under review to cancel the applicant’s student visa.
Before the Court today is an application filed on 12 June 2006 which asserts three grounds before me. I also have the applicant’s affidavit of 20 June 2006 which asserts a number of factual matters by way of background, to many of which I have already referred, and which attaches the Tribunal’s decision record.
From the Minister I have written submissions to which I have already referred, prepared for the Minister by Ms Kaur-Bains of Counsel.
I also have the affidavit of Ms Surya Palaniappan, solicitor, employed by the Minister’s solicitors, affirmed on 7 May 2007, which makes reference to the dates of semester two of 2005.
The applicant appeared in person with the assistance of an interpreter in the Mandarin language and, as I have said, Ms Kaur-Bains appeared for the Minister. The applicant submitted to the Court that she is currently studying at a particular educational institution and has achieved satisfactory results. She asserted that the environment in 2005 at her then education provider was not good and that no help, no “special help,” had been provided to her at a time when she claimed she needed some assistance.
The applicant’s claims, as contained in the application filed on 21 June 2006, state:
“1.The respondents denied the applicant natural justice by not considering the context in which the applicant had exceptional circumstance which resulted in cancellation of a student visa.
2.The respondents have not considered the evidence which is in favour of the applicant. They have only considered the evidence which is not in favour of the applicant.
3.MRT did not fully and reasonably consider my special circumstances, which was beyond my control.”
Ground one
The applicant asked the Court to take into account the psychological pressure to which she had been subjected at that time. I explained to the applicant the difference in the role and power of the Tribunal and the role and the power of the Court, and that the role of the Court today was to consider whether the Tribunal decision contained “jurisdictional error.” I attempted to explain this term to the applicant, and that the Court had no power to review the merits of her claims or her arguments before the Tribunal in relation to the cancellation of her visa. I also explained that matters that relate to what has occurred subsequent to the Tribunal hearing, therefore, are not relevant to the Court’s consideration. Further, even if the Court were to form a different view to the Tribunal in relation to the applicant’s medical evidence and psychological pressure, this would not assist the applicant because the issue was whether the Tribunal had conducted and made its decision free of jurisdictional error, and the Court had no power to separately consider the question that was for the Tribunal alone.
With that in mind, and looking specifically at the grounds as stated in the application to the Court, on any plain reading of the Tribunal’s decision record, the Tribunal did consider the issue of the applicant’s exceptional circumstances. The decision record reveals that such consideration, as set out in paragraphs 16 and 19 of its decision, drew on documentary evidence presented by the applicant and her oral evidence presented at a hearing before the Tribunal (CB 83.6 and CB 84.2).
As I have already said, the Tribunal had previously found that the applicant had breached condition 8202 that attached to her visa as it related to semester two of 2005, and then in the context of the matters relevant pursuant to Regulation 2.43, set out its consideration of the issue of exceptional circumstances. Simply, the Tribunal could not be satisfied, due to the absence of relevant medical certificates and the applicant’s evidence at the hearing, that exceptional circumstances existed for semester two of 2005, and even further, that it was not satisfied that the applicant’s medical and mental condition, and indeed other circumstances raised by the applicant, constituted exceptional circumstances beyond her control. On what is before the Court, these findings were open to the Tribunal and, as I have already said, this Court has no power to conduct a merits review of the applicant’s claims. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.)
I should just note in that regard, the applicant’s third stated ground, in particular, in my view, seeks such review and as I have emphasised to the applicant, even if another decision maker could have come to a different conclusion, the issue for this Court is whether it was open to the Tribunal to make the findings that it did on what had been put before it.
To the extent that the applicant complains of a denial of natural justice, I note that s.357A of the Act applies to this case, and with reference to the Full Federal Court authorities, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 212 at 225 [66]; and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] to [8], it applies such as to make the provisions of Division 5 of Part 5 of the Act the exhaustive statement of the natural justice hearing rule.
However, whether on the basis of the Tribunal’s statutory obligations as set out in Division 5 of Part 5, or even against the principles of procedural fairness (natural justice at general law), I cannot discern any such failure on the part of the Tribunal. Plainly, the applicant was invited to specifically comment in writing on relevant issues which were plainly set out and their relevance explained, and this included the medical issues relevant to her claim of exceptional circumstances and other circumstances.
In all then, the complaint of denial of natural justice is not made out. To the extent that there is a complaint that the Tribunal failed to consider relevant material by way of the context in which the applicant had put and had referred to the exceptional circumstances, I cannot see that that can be made out on what is before me.
Ground two
I have also considered whether what the applicant asserts in ground two in her application may be an assertion that the Tribunal was biased in that it only considered evidence unfavourable to her and did not consider evidence that was favourable to her. I have considered whether the complaint is such that it could be said that there was the apprehension of bias on the part of the Tribunal. With the relevant High Court authorities in mind, in particular Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 and the Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, and the tests that have been established by those decsisions and followed, relevantly, by lower courts, I have concluded that there is no evidence before this Court that such complaints can be made out. The Tribunal, having considered all the evidence, and having reached a conclusion unfavourable to the applicant, does not go anywhere near to establishing bias on the part of the Tribunal or even to establishing that a well-informed lay observer would apprehend bias on its part. Ground two therefore is not made out.
Ground three
I have already made reference to ground three but again, given that the applicant is unrepresented before the Court, I have attempted to give the applicant’s stated grounds as wide a reach as possible and did consider whether this was a complaint of failure to reasonably consider the exceptional cirucmstances. However, such a complaint would not be made out. As I have already said, the relevant period as it related to the breach of condition 8202 was semester two of 2005 and the Tribunal found, as a finding of fact which was open to it, that the applicant had not achieved an academic result that was certified by the education provider to be at least satisfactory for that semester (CB 82.9). Specifically, the Tribunal found, as set out in CB 83.9, that in the context of one aspect of the exceptional circumstances, namely the medical evidence, that it did not concern (that is, it did not relate to) semester two of 2005, and then subsequently found that it could not be satisfied either that the medical issues or other circumstances were such as to be considered exceptional in any way that would assist the applicant in the context of Regulation 2.43.
I have emphasised and repeated on a number of occasions, because it is important that an unrepresented applicant understand, that there is a difference between a Tribunal giving consideration which may lead to an unfavourable decision and an unfavourable decision that is not itself evidence that the Tribunal did not take into account, or failed to consider, what an applicant has put to it. What the decision record reveals is that the Tribunal considered and gave reasons for its findings relating to the relevant exceptional circumstances and that there was no lack of reasoning, logicality or unreasonable approach simply because the Tribunal found it could not be satisfied that what the applicant had put forward amounted to exceptional circumstances.
In all, therefore, in considering both the ground as stated by the applicant and other complaints that could arise from those grounds and, indeed, in considering separately all of the material put before the Court today, I cannot discern jurisdictional error in what the Tribunal has done. The application to the Court is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Amy Douglas-Baker
Date: 10 July 2007
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