Yuan v Minister for Immigration
[2015] FCCA 240
•6 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YUAN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 240 |
| Catchwords: MIGRATION – Cancellation of Student (Temporary) (subclass TU) visa – non-compliance of condition 8202 – whether tribunal’s discretion to cancel visa pursuant to s.116(1)(b) miscarried – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 116(1)(b), 353, 353(2), 357A(3) Migration Regulations 1994, schedule 8, cl.8202(2) |
| Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 Minister for Immigration v Li (2013) 249 CLR 332 |
| Applicant: | YUE YUAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1201 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 December 2014 |
| Date of Last Submission: | 10 December 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 6 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Markwell |
| Solicitors for the Applicant: | Directly instructed |
| Counsel for the First Respondent: | Mr Richardson |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 24 December, 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1201 of 2013
| YUE YUAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By her amended application filed on 26 March, 2014 the applicant seeks an order that a decision of a migration review tribunal made on 20 November, 2013 be quashed and that her application for a Student (Temporary) (subclass TU) visa be remitted to a migration review tribunal to be determined according to law.
The first respondent opposes the application. The second respondent entered a submitting appearance.
Background
In October, 2009 the applicant commenced study in Australia on a Student (Temporary) (subclass 573) visa. She undertook a university certificate in tertiary preparation at Queensland University of Technology and upon completion of that certificate she commenced a Bachelor of Business at QUT in February, 2010.
On 11 May, 2012 QUT notified the first respondent’s department that the applicant had ceased studying. Her enrolment had been cancelled for the non-payment of fees.
On 19 October, 2012 the department wrote to the applicant and notified her of its intention to cancel her visa for failure to comply with one of its conditions. She was given the opportunity to make submissions as to why her visa should not be cancelled.
On 24 October, 2012 the applicant lodged a submission with the department as to why her visa should not be cancelled. She supplied a printout from her health fund showing that she had made many visits to doctors between 23 January, 2010 and 23 October, 2012. She submitted to the department that:
a)she started to have serious problems with her eyes in 2010 which made it difficult for her to study;
b)in semester 1 of 2011 she applied to defer her final exams because of her illness. That was granted, but she only sat one of three exams and she failed the two subjects for which she did not sit exams;
c)she felt depressed and disgraced as a consequence of failing those two subjects;
d)QUT’s counselling service suggested she take a leave of absence and one semester of leave was ultimately approved by QUT for the second semester of 2011;
e)in 2012 she travelled to several cities in Australia and met many new people who helped to build her confidence;
f)she had five subjects to complete to obtain her Bachelor’s degree in Business, and with her improving eye condition and the support of her family and friends she is eager to finish her studies;
g)she needed time for her medical condition to improve but now her eyes only require management and treatment;
h)she was able to supply insurance claim records and letters from her doctor to verify her eye condition at the time she applied for the leave of absence from QUT; and
i)her visa should not be cancelled because her eye condition was a circumstance outside of her control.
The first respondent’s delegate obtained a copy of the medical certificate the applicant lodged with QUT when she applied for her leave of absence from that institution. It is a report from Dr Kerry Ip dated 12 August, 2011. It is in the following terms:
This is to certify that I have seen this patient since April 2011 with her current eye infections.
She has repeatedly come back to see me with recurrent conjunctivitis and sty formation. This has led her to be unsightly, and the eye problems also interfere with her vision. Antibiotics treat the problem but there is always residual inflammation in the eyelids, and then the sty inflammation enlarges again causing further problems.
This has severely interfered with her studies and concentration in classes. I recommend that she take the next 4 months off. In this time, she will see an ophthalmologist in Brisbane, and rest her eyes and give the eyes a rest from the strain of study.
She will therefore be rested from her studies from 1st August 2011 til 1st December 2011.
After considering the applicant’s submissions and the documents submitted by her, on 29 October, 2012 a delegate of the first respondent cancelled the applicant’s visa.
On 7 November, 2012 she applied for review of that decision by a migration review tribunal. In the time between that application and the determination of it, the applicant remained in Australia on a bridging visa.
In December, 2012 the applicant changed universities and commenced studying at James Cook University, Townsville. She commenced a Bachelor’s degree in March, 2013 with a course end date of March, 2014. She ceased studying in 2013. At that point she had 5 subjects left to complete her degree.
The tribunal invited the applicant to appear before the tribunal to give evidence and to present her arguments. On 12 November, 2013 the applicant, her migration agent, a classmate of the applicant and an observer appeared before the tribunal.
On 20 November, 2013 the tribunal affirmed the decision of the delegate to cancel the applicant’s visa.
The tribunal’s decision
There is no dispute that the applicant’s visa was subject to a series of conditions, one of which was condition 8202 set out in schedule 8 to the Migration Regulations1994. That condition was in the following terms:
(2) A holder meets the requirements of this subclause if:
a) the holder is enrolled in a registered course.
The tribunal considered that:
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s. 116(1) of the Act, the visa may be cancelled.
The tribunal found that the applicant had breached condition 8202(2) because:
a)the evidence showed that QUT had notified the Department that the applicant had stopped studying by 11 May, 2012;
b)the evidence showed that the applicant was not enrolled in a registered course as at the date of the delegate’s decision on 29 October, 2012.
The tribunal recorded that there were no matters specified in the Migration Act or the Regulations that were required to be considered by the tribunal when it considered cancelling the applicant’s visa. The tribunal was clearly correct to so observe. The first respondent directed my attention to Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 where Mansfield J suggested that neither s.116 nor the Regulations set out any mandatory relevant considerations for a tribunal when exercising the discretion conferred by s.116(1)(b) of the Act. His Honour noted that a Procedures Advice Manual existed to guide the first respondent’s delegates but his Honour recorded that a tribunal is not obliged to recite verbatim the matters in the manual.
Mansfield J further observed, however, that a tribunal was required to understand or engage with all the matters which an applicant put forward as to why the discretion should be exercised in the applicant’s favour.
Here, the tribunal recorded that the applicant considered that the leave of absence granted to her by QUT for the second semester of 2011 was ongoing. The tribunal noted her evidence that she had a discussion with an adviser in QUT International Student Services which led her to believe her leave of absence would continue without a further application being required, or written confirmation given.
The tribunal noted the applicant’s submission that QUT International Student Services had re-enrolled her for semester 1 of 2012, after her leave of absence, without her knowledge, and that her enrolment was cancelled for non-payment of fees because she did not realise she had been re-enrolled.
The tribunal recorded the evidence of the applicant’s student colleague, Mr Xu, to the effect that the applicant had told him she had eye problems over the exam period in semester 1 of 2011, but that he did not know she had a leave of absence for her eye problems.
The tribunal recorded the medical information before it. In particular it had regard to:
a)the Medibank record of doctors attendances, which showed that the applicant did not see a doctor after 20 August, 2011 or an ophthalmologist in Australia;
b)the medical certificate provided (in translated form) from an unnamed Chinese doctor in the “ophthalmology department” on 25 November, 2012 which noted that the applicant had “iridocyclitis in both eyes” and advised that the applicant “Have enough rest; Avoid overworking of eyes; and Have regular eye check at outpatient clinic.” It did not recommend sick leave.
c)the medical certificate provided (in translated form) from a Chinese doctor, Zhang Wei, on 12 November, 2013 which said that the applicant had “recurrent symptoms of iridocyclitis in both eyes” and that “in the year 2012 made from overseas a number of telephone consultations with me, and received medical treatment under my instructions on medication.” The certificate did not indicate whether or not the applicant was unfit for study.
The tribunal accepted that the applicant suffered from an eye condition during 2011.
The tribunal rejected the applicant’s claim that she thought her leave of absence for semester 2 of 2011 was extended to 2012. The tribunal was impressed by the evidence that she had not provided QUT with any further medical certificates justifying her absence from study. The tribunal considered that the applicant knew the process for making an application for a leave of absence, as she had used that procedure before, but seemingly did not follow that procedure when she sought an extension of her leave of absence into 2012. She received no confirmation from QUT that her leave of absence continued.
The tribunal placed weight on the fact that the applicant did not consult any Australian doctors during her absence from study.
The tribunal rejected the applicant’s claim that her failure to continue her enrolment in 2012 was due to her eye condition continuing to be problematic. The tribunal thought it significant that the applicant provided no evidence that she took any steps to re-enrol once QUT cancelled her enrolment in May, 2012.
The tribunal did not accept that the applicant’s circumstances in 2012 were beyond her control. It thought that a student in the circumstances described by the applicant would be expected to take the necessary steps to either formalise their leave approval on medical grounds or ensure their continued enrolment and payment of fees.
The tribunal was not satisfied that the applicant was fulfilling the purpose of her travel to and stay in Australia as she was not actively engaged in study from the start of 2012 until her re-enrolment to study in semester 1 of 2013. The tribunal concluded that the applicant’s visa should be cancelled and affirmed the decision of the delegate.
The grounds of review
In her amended application filed on 26 March, 2014, the applicant sets out her grounds of review as follows:
1. The decision of the Migration Review tribunal (MRT) Member, dated 20 November 2013 is so unreasonable that no reasonable decision-maker would have made such a decision.
2. The Applicant has not been provided procedural fairness in the decision of the MRT Member.
3. The Applicant refers to the Decision of the Decision Maker marked with the initials “YY-1” and annexed to the Applicant’s Affidavit, affirmed 24 December 2013.
Particulars
A. In relation to Ground 1, the tribunal Member has made a decision that is manifestly unreasonable in all the circumstances. The Applicant only had 5 subjects to complete her degree and now that the decision has been affirmed, the Applicant will be caused significant hardship and unless this decision is quashed, she may not be able to complete her degree in Australia. Further, unless the decision is quashed, the Applicant may be subject to a 3 year exclusion period (see Schd. 4, Migration Regulations 1994, Public Interest Criteria (PIC) 4013 ). The tribunal Member had a discretion not to cancel the visa and cancellation was not a mandatory requirement under s116(1) of the Migration Act 1958 (“The Act”), but the tribunal Member elected not to exercise her discretion, and cancelled the visa, despite being aware of all of the above information.
The tribunal Member’s decision lacks a sense of proportionality and exceeds the purpose that is required and the decision may be compared to a ‘sledgehammer cracking a nut’ 1
B. In relation to Ground 2, the Applicant has not been provided with procedural fairness, and therefore is in breach of ss353 and 357A(3) of the Act. The Applicant has had her rights and interests directly affected, in that unless the decision is quashed, the Applicant may not ever be able to complete her degree in Australia and may face a 3 year exclusion period, as set out in A above.
Ground 1
The first respondent’s power to cancel the applicant’s visa derived from s.116(1)(b) of the Migration Act1958. The power to cancel the visa was discretionary.
“[A] discretion allowed by Statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to, not according to private opinion; according to law and not humour and within those limits within which an honest man couldn’t discharge the duties of his offer or to confine himself”: per French CJ in Minister for Immigration v Li (2013) 249 CLR 332 at 349.
The applicant accepts that the second respondent considered the relevant factors as set out in the Procedures Advice Manual. However, the applicant submits that “the Second Respondent has brushed over these factors and not undertaken any depth of analysis and consideration”. The applicant does not suggest that the tribunal has not considered any particular factor relevant to the exercise of the discretion conferred by s.116(1) of the Act. Rather, the applicant contends that the tribunal has not used certain of those factors so as to lead to a result favourable to the applicant.
In particular, the applicant suggests that the tribunal did not pay sufficient regard to the fact that the applicant ceased to study and obtained a leave of absence by reason of her eye condition. She argues that her eye condition was something beyond her control. By reason of paragraph 32.2 of the Procedures Advice Manual the tribunal was obliged to take that circumstance into account. The applicant suggests that as a general rule, a visa should not be cancelled where the breach of condition occurred in circumstances beyond the visa holder’s control.
For the purposes of these reasons, I am prepared to accept that the applicant’s eye condition was a circumstance beyond her control.
The applicant’s submissions accept that the presentation of her case to the tribunal was less than adequate. She submits that “a detailed Ophthalmologist’s Report should have been obtained and detailed submissions addressing the content of the Ophthalmologist’s Report provided to the Second Respondent”.
Nonetheless, she submits that “the Second Respondent’s decision is totally unreasonable and is ‘ ... a decision that is so unreasonable that no reasonable decision maker would have made [it]’”. The applicant argues that this is especially so given that the consequences of the cancellation of her visa are dire, in that she will not be able to complete her studies, even though she only has five subjects remaining, and she will be subject to a three year exclusion period under Public Interest Criteria 4013.
The applicant draws an analogy between the facts of her case and those in Li (above). She directs my attention to French CJ’s remarks that the second respondent’s decision in Li’s case was a:
... disproportionate exercise of an administrative discretion and was taking a sledge hammer to crack a nut and maybe characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves…
She argues that those remarks are apt to the case at hand. She submits that in the circumstances, the tribunal’s unreasonableness is of such magnitude as to amount to jurisdictional error.
In my view, however, the applicant’s argument misunderstands the tribunal’s decision. The tribunal did not determine that the applicant’s eye condition was a matter that was not beyond her control. Rather, the tribunal accepted that the applicant suffered from an eye condition during 2011. However, the tribunal rejected the applicant’s claim that she thought her leave of absence for semester 2 of 2011 was extended to 2012. That was the crucial finding by the tribunal. The tribunal gave reasons for rejecting her claim about that:
29. … The Tribunal does not accept that that applicant thought her leave of absence for Semester 2 of 2011 was extended to 2012. The applicant provided no evidence of correspondence from her education provider confirming the extension of leave approved and said that she did not provide any further medical certificates to the education provider after the initial approval of leave of absence at the end of Semester 1 in 2011. The applicant provided no evidence of any steps taken to re-enrol after the education provider cancelled her enrolment in May 2012 and said that she did not consult her Australian doctors about her condition at this time.
30. The applicant knew the correct procedure for making a leave application and she did not follow that procedure, preferring to rely upon what she described as verbal advice from a student services officer. Under these circumstances the Tribunal is not satisfied that the applicant is fulfilling the purpose of her travel to and stay in Australia as she was not actively engaged in studying from the commencement of 2012 until her re-enrolment to study commencing in Semester 1 of 2013.
31. The Tribunal considers this to be a significant gap in study and enrolment, given the significance of attending classes to the student visa and to fulfilling the purpose of studies in English and business. The Tribunal does not accept that the applicant’s circumstances in 2012 were beyond her control, a student in these circumstances would be expected to take the necessary steps to either formalise their leave approval on medical grounds or ensure their enrolment and fees are paid. The applicant clearly understood the process for leave approval as she had successfully obtained leave on medical grounds in 2011.
32. The Tribunal has considered whether the applicant has extenuating or compassionate circumstances and while the Tribunal accepts that the applicant has suffered from an eye condition during 2011, it does not accept that this was the reason for her failure to continue her enrolment in 2012. The applicant did not consult her treating doctors in Australia at this time and the report of the doctor in China who did not physically examine the applicant is inconclusive as to her fitness for study. In any event there was no medical certificate provided to the applicant’s education provider as discussed above.
In light of the findings by the tribunal set out above, in my view, the tribunal’s decision was within the bounds of reasonableness as identified by French CJ in Li. The tribunal’s conclusion was not so unreasonable that no reasonable tribunal could ever have come to it.
I accept the first respondent’s submission that the tribunal in this case observed all of the procedural rules for making the decision that are set out in the Act. The tribunal considered the applicant’s circumstances as a whole and concluded the visa should be cancelled:
35. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had breached condition 8202 of her visa by not being enrolled in a registered course. The Tribunal finds the breach to be significant because course enrolment and active engagement in studies is the basis of a student visa. The applicant has not established to the satisfaction of the Tribunal that is was her medical condition that caused her failure to enrol and attend her studies in 2012. The Tribunal acknowledges that hardship may be caused to the applicant if she is not allowed to pursue study in Australia. The Tribunal considers it significant however, that the applicant has not presented satisfactory evidence explaining her failure to engage in studies during the 2012 academic year. The Tribunal is not satisfied that the applicant is fulfilling the purpose of the visa.
As the French CJ said in Li (above) at 351:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.
To the extent that the applicant suggests that the tribunal should have procured an ophthalmologist’s report and sought submissions from the applicant on the content of any such report, I reject that suggestion. It was not the role of the tribunal to direct the applicant as to the evidence that she needed to give to the tribunal to secure a favourable outcome. It was for the applicant to satisfy the tribunal of the factual matters upon which she relied.
Moreover, even if that view is erroneous, the provision of the suggested medical opinion would not have assisted. That is so because the tribunal accepted that the applicant suffered from an eye condition. But the tribunal was not satisfied for the reasons that it gave that the applicant believed that she had a leave of absence from the University.
Ground 2
The applicant relied upon much of what was said in support of the first ground of review to promote her second ground of review. She argues that she has not been provided with procedural fairness, and that the tribunal did not comply with ss.353 and 357A(3) of the Act.
By her Counsel’s written submissions, she submitted that the tribunal did not act in accordance with substantial justice and the merits of the case, as required by s.353(2) of the Act and therefore procedural fairness was not given to the applicant “and jurisdictional error has occurred”.
Whilst the applicant identifies the seriousness of the consequences for her of cancellation of her visa, I accept the first respondent’s submissions that she does not particularise the way in which procedural fairness is said to have been denied to her.
I accept the first respondent’s submission that it is not sufficient to demonstrate a denial of procedural fairness to show that the consequences of an adverse decision are serious for an applicant.
The first respondent is correct to submit, in my view, that the tribunal followed the procedure for hearing that is required by Part 5 Division 5 of the Act. It provided the applicant with an opportunity to respond to potential adverse findings at hearing, and allowed the applicant an opportunity to submit further documents for consideration post-hearing.
In my view, there was no denial of procedural farness to the applicant.
Conclusion
No jurisdictional error is shown to attend the tribunal’s decision. The application for review must be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 February, 2015.
Associate:
Date: 6 February 2015
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