Zhang v MIAC

[2007] FMCA 1855

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1855

MIGRATION – Review of Migration Review Tribunal decision – visa – student visa – condition 8202 – failure to achieve academic performance certified as satisfactory – Tribunal not limited to considering the issues which the Minister’s delegate considered – Tribunal breached s.360 by deciding the review on issues which had not been considered by the delegate and on which the applicant was not given an opportunity to give evidence and present arguments – discretion to refuse relief not exercised – matter remitted.

Migration Act 1958, ss.119, 123, 349, 359, 359A, 360
Migration Regulations 1994, reg.2.43, sch.8, para.8202

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
MZXHY v Minister for Immigration & Citizenship [2007] FCA 622
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant: CHEN RAN ZHANG

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 1677 of 2007

Judgment of: Cameron FM

Hearing date: 25 September 2007

Date of last submission: 25 September 2007

Delivered at: Sydney

Delivered on: 9 November 2007

REPRESENTATION

Counsel for the Applicant: Mr. L. Byrne

Counsel for the Respondent: Mr. G. Johnson

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent signed on 23 May 2007.

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

   
   

   11 December 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1677 of 2007

CHEN RAN ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who was enrolled to study English with Insearch UTS (“Insearch”). Following correspondence between the applicant and the first respondent’s department her visa was cancelled on the basis that she had failed to maintain satisfactory attendance in the term running from 4 September 2006 to 6 October 2006. Her visa was cancelled on 11 December 2006. The applicant then applied to the Migration Review Tribunal ("Tribunal") for review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.

2. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

Visa condition and Regulations

1. The visa condition relevant to this applicant was 8202 which, relevantly, provided:

   (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 …  

   (b)in any case — the holder achieves an academic result that is certified by the education provider to be at least satisfactory …

2. Regulation 2.43(2) of the Migration Regulations 1994 (“Regulations”) provides:

   For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:

   (a) …

   (b) in the case of a Student (Temporary) (Class TU) visa:

   (i)      …

   (ii)     that the Minister is satisfied that:

   (A) the visa holder has not complied with condition 8202; and

   (B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.

Background facts

1. On 9 October 2006 the education provider, Insearch, wrote to the applicant advising that it had determined that the applicant had breached condition 8202 of her student visa because she had failed to meet the 80 per cent attendance requirement.

2. On 3 November 2006 the department served on the applicant a “notice of intention to consider cancellation” (Court Book (“CB”) pages 5 – 7) in which she was advised that it had come to the department's attention that there might be grounds for the cancellation of her visa because she had failed to comply with condition 8202 and, in particular, had failed to meet the 80 per cent course attendance requirement.

3. Section 119 of the Migration Act 1958 (“Act”) required that the notice of proposed cancellation be provided to the applicant giving particulars of the grounds upon which the visa might be cancelled as well as the information on which such a decision might be based. It also required that the applicant be invited to respond. The applicant was invited to attend an interview at the department on 11 December 2006 but she failed to do so.

4. As permitted by s.123 of the Act, the delegate proceeded to cancel the applicant's visa because she had failed to put anything before him which outweighed the information he had already notified to her as potentially grounding such a cancellation.

5. On 18 December 2006 the applicant sought a review by the Tribunal. On 11 January 2007 the Tribunal wrote to her pursuant to ss.359 and 359A of the Act inviting her to comment on her apparent failure to meet the 80 per cent attendance requirement stipulated in condition 8202. The Tribunal also invited her to provide any evidence which would indicate that her non-compliance was due to exceptional circumstances beyond her control. The applicant responded to that notice by supplying the Tribunal with three medical certificates provided by a dentist.

6. The Tribunal held a hearing on 5 April 2007 which the applicant attended and where she gave evidence and produced documents, including two medical certificates (CB 47 and 48).

7. On 11 April 2007 the Tribunal wrote to Insearch asking it to provide information concerning the applicant's compliance with condition 8202. Insearch responded by letter dated 20 April 2007 (CB 53 – 54) advising that in term 7 (31 July 2006 to 1 September 2006) the applicant's academic performance had been unsatisfactory and her attendance had been less than 80 per cent, even taking into account absences explained by medical certificates. The same letter advised that for term 8 (4 September 2006 to 6 October 2006) the applicant's academic performance had been satisfactory but, again, she had failed to meet the 80 per cent attendance requirement. Enclosed with the letter from Insearch were the medical certificates which the applicant had provided to it (CB 55 – 57).

8. Having received this information from Insearch the Tribunal sent a further s.359A letter to the applicant inviting her to comment on the following matters:

   a)her failure to achieve an academic result that was certified to be at least satisfactory for term 7; and

   b)her failure to attend at least 80 per cent of the contact hours for term 7.

The Tribunal's decision and reasons

1. The Tribunal found that the applicant had not achieved an academic result certified by her education provider to be at least satisfactory for term 7 of 2006 with the result that she had breached the academic results requirements of condition 8202 (para.8202(3)(b)). The Tribunal was also satisfied that the applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond her control.  In these circumstances, the Tribunal found that it had to affirm the delegate's decision to cancel the applicant’s student visa.

Proceedings in this Court

1. On 25 September 2007 the applicant filed an amended application, although it was described simply as an application. Its grounds were:

   1. The Tribunal affirmed the delegate’s decision to cancel the applicant’s visa on grounds which were neither the subject of the Department’s notice of intention to cancel the applicant’s visa nor the delegate’s decision. The Tribunal was not permitted to do this, and on this basis fell into jurisdictional error.

   2. The Tribunal “disregarded the medical certificates provided to the Tribunal on 22 May 2007”. The Tribunal fell into jurisdictional error in making this finding.

   3. The Tribunal erred by failing to comply with section 359A of the Migration Act 1958.

2. Dealing with each of these grounds in turn:

Tribunal affirmed delegate's decision on different grounds

1. The applicant submitted that the Tribunal could not consider or determine issues which did not form part of the delegate's decision. In particular, the applicant submitted that as the delegate's decision was limited to those issues which he had raised in the s.119 notice of proposed cancellation dated 3 November 2006 (CB 5 – 7), and which had been addressed to her failure to satisfy the course attendance requirements, then the Tribunal was also limited to the issues raised in that notice. The applicant submitted that as the delegate had determined only that the applicant had breached her visa condition because of her failure to satisfy the 80 per cent attendance requirement, the Tribunal was not empowered to consider whether she had also or alternatively failed to meet the academic result criterion of condition 8202(3).

2. Such a submission ignores the role performed by the Tribunal when reviewing a decision of the delegate. Specifically, s.349(1) of the Act provides:

   The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

3. The powers conferred on the Tribunal by that section do not limit the Tribunal to a review of the particular decision made by the delegate. The Tribunal is not confined to whatever may have been the issues that the delegate considered: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 at 521 [34] – [35]. The constraint which was relevantly upon the Tribunal was whether it had given the applicant a real and meaningful invitation to attend a hearing to give evidence and present arguments in relation to the issues which it found to be decisive in relation to the review of the decision in question: s.360; SZBEL’s case.

4. The issue which was decisive to this Tribunal review was the applicant's failure to achieve an academic result in term 7 of 2006 which was certified by the education provider to be at least satisfactory. This was not an issue on which the delegate's decision had turned. The delegate's decision, as has already been noted, turned on the applicant's attendance record and, although the Tribunal did refer to this aspect of the applicant's history at various stages of its decision record, this was not an issue on which the Tribunal’s review was based.

5. Because the determinative issue, the applicant's failure to have an academic result certified to be adequate, had not been one of the issues that the delegate had considered dispositive, the outcome of this asserted ground of review will depend on whether the Tribunal complied with its s.360 obligations in respect of it.

6. The Tribunal's letter of 30 April 2007, which invited the applicant to comment on the Insearch information that the applicant had not achieved an academic result certified to be at least satisfactory, does not satisfy the criteria of s.360. That letter was sent after the Tribunal hearing so the Tribunal could meet its requirements under s.359A. It did not invite the applicant to attend a further hearing to give evidence and present arguments.

7. Although the Tribunal's decision might be characterised as one which was based on the applicant's failure to comply with visa condition 8202 and thus the relevant issue for the purposes of s.360 was whether the visa condition was satisfied, to characterise the matter in that way would be to fail to identify sufficiently the issues which were before the Tribunal. The Tribunal asked itself three questions, which are found at CB 69, namely:

   Is there a good ground for cancelling the review applicant's visa?

   If the review applicant breached condition 8202, is the Tribunal satisfied that the non-compliance was not due to exceptional circumstances beyond the review applicant’s control?

   If the breach was due to exceptional circumstances beyond the review applicant’s control, should the visa be cancelled, having regard to all the circumstances of the case?

8. The first and second of those questions conceal the real nature of the questions which the Tribunal asked itself, which included an identification of the academic performance criterion as being decisive in the circumstances of this review. The Tribunal did not alert the applicant to the significance of this criterion to the determination of the review application. Indeed, it was not until the Tribunal sought information from Insearch after the Tribunal hearing had taken place that the academic performance criterion emerged as an issue. This is clear from the correspondence which appears in the Court Book and from the transcript annexed to the affidavit of Oliver David Young sworn 21 September 2007. As a result, the Tribunal breached its obligations under s.360 and its decision is affected by jurisdictional error.

9. An issue subsidiary to the question of whether the applicant had not complied with condition 8202 was whether that non-compliance was due to exceptional circumstances beyond her control. This issue was raised squarely in the Tribunal's letter to the applicant dated 11 January 2007 (CB 33 to 34) and, in response, the applicant provided medical certificates to the Tribunal and gave evidence at the Tribunal hearing concerning the ill-health she said she had suffered during her studies.  In relation to that evidence, the Tribunal did not accept that the applicant had breached condition 8202 as a consequence of a medical condition beyond her control. The Tribunal rejected the medical certificates she provided to it on 22 May 2007, shortly before its decision was handed down, concluding that if she had had a genuine illness that affected her ability to comply with condition 8202 she would have presented those certificates to her education provider at the time. It concluded that the applicant had not presented sufficient medical evidence to demonstrate that she had suffered a condition serious enough to affect her ability to achieve a satisfactory academic result for term 7.

10. But the Tribunal had not flagged to the applicant that her academic result was an issue in play. As a result, she could not have turned her mind to the presentation of evidence or arguments which would address the question of whether her failure to obtain certification of a satisfactory academic result was the result of exceptional circumstances beyond her control.

11. Consequently, the applicant was denied the opportunity guaranteed to her by s.360 to give evidence and present arguments on the issue of whether such exceptional circumstances existed. The Tribunal erred as a result.

Medical certificate issue

1. The applicant submitted that the Tribunal's rejection of the medical certificates received by the Tribunal on 22 May 2007, on the basis that the applicant had not presented those certificates to her education provider at the time she was actually ill, was both unreasonable and reached in the absence of any evidence.

2. As to the applicant's submission that there was no evidence to support the Tribunal's finding that the applicant had not presented those certificates to the education provider at the time she was actually ill, it should first be noted that in the Tribunal's letter of 11 April 2007 to Insearch it asked the education provider to:

   Please provide copies of any medical certificates that were taken into account in calculating the student's attendance in terms 7 and 8.

3. Insearch replied by letter dated 20 April referring to medical certificates “provided by the student” which were attached to that letter. Those medical certificates were three documents respectively dated

   
   

   18 August 2006, 7 August 2006 and 5 September 2006, all signed by a Dr Guo. Those certificates stated, respectively, that the applicant was unfit to attend school on 18 August 2006, from 7 to 10 August 2006 and from 5 to 8 September 2006. As term 7 of 2006 started on 31 July 2006 and concluded on 1 September 2006 according to the Insearch letter of 20 April 2007 (CB 53), the third of those medical certificates is not relevant to a consideration of whether the applicant satisfied condition 8202 in respect of term 7.

4. The certificates of 7 August 2006 and 18 August 2006 indicate that the applicant was unable to attend school for a total of five days. This would have been the basis of the education provider’s conclusion that the applicant had presented medical certificates totalling five days absence (i.e. 20 hours of face-to-face contact) which, when added to the 30 hours the applicant actually did attend, amounted to 50 hours or the 62.50 per cent attendance referred to in the Insearch letter of 20 April 2007.

5. The two subsequent certificates provided on 22 May 2007, one dated 14 August 2006, in relation to an inability to attend school on 14 to 17 August 2006 and another dated 21 August 2006 in relation to an inability to attend school on 21 August 2006 to 24 August 2006, were dismissed by the Tribunal in the following terms:

   The Tribunal does not accept the applicant's evidence that she was not aware of the need to present medical certificates to the education provider at the time of her illness, given the importance to students of complying with condition 8202. In term 7, she had already presented medical certificates to her education provider for 7 to 10 August and 18 August 2006, indicating that she was aware of the need to present such certificates. (CB 74)

6. The Tribunal's rejection of the medical certificates which it received on 22 May 2007 was open it for the reasons it gave. Moreover, the figures given by the education provider in its letter of 20 April 2007 are explicable on the basis of the calculations set out above. For that reason, I conclude that the only certificates which the education provider had received from the applicant were those which were attached to its letter of 20 April 2007.

7. However, even if the Tribunal was mistaken in its understanding of the information received from the education provider, a mistake of fact on the part of the Tribunal does not amount to jurisdictional error unless such a mistake is in relation to a jurisdictional fact: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53]. No jurisdictional fact is involved in this asserted ground of review.

8. The applicant also submitted that the Tribunal's conclusion was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. For the reasons already given, this submission is not made out.

9. As to the submission of “unreasonableness”, this submission suggests either that there was no reasonable basis for the Tribunal to arrive at the conclusion it reached or, alternatively, that it was a decision which no reasonable Tribunal would have reached. However, as Gleeson CJ and McHugh J said in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40]:

   We are not here concerned, for example, with the unreasonable exercise of the discretion, and it is difficult to characterise the Tribunal's decision … as an abuse of power.  Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it".  If these are merely emphatic ways of saying the reasoning is wrong, then they may have no particular legal consequence.

1. So it is here. Given that unreasonableness in the sense considered in Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is limited in its application to the exercise of a discretion (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59) an assertion of unreasonableness by the Tribunal in its fact-finding does not form the basis of a conclusion that the Tribunal's decision is affected by jurisdictional error.

Breach of s.359A

1. The applicant submitted that the Tribunal's conclusion that she had not presented the medical certificates dated 14 August 2006 and 21 August 2006 to her education provider at the time she was ill was “information” within the meaning of s.359A(1). That section provides:

   Subject to subsections (2) and (3), the Tribunal must:

   (a)   give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

2. The passage in the Tribunal's decision to which the applicant takes exception was a conclusion drawn by the Tribunal from the evidence before it. As such, it is not “information” falling within the scope of the section: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] and thus no s.359A(1) obligations arose in respect of it.

Further matter – mistake of fact

1. In the final paragraph of the applicant's written submissions an argument is advanced that the Tribunal erred by querying the qualifications of Dr. Guo because it described the medical certificates received on 22 May 2007 in the following terms:

   On 22 May 2007, after the Tribunal had sent an initiation to the applicant to attend a formal handing down of the decision, the applicant’s representative sent two medical certificates to the Tribunal from a Mr Guo stating that the applicant was unfit from 21 August to 24 August 2006 due to tonsillitis and dysmenotthoea [sic] and was unfit from 14 to 17 August 2006 due to gastritis. The medical certificates do not include a provider number or state the qualifications of the person making the diagnosis. (CB 73).

2. The applicant's written submissions say that those certificates indicate that the author is “Dr. Guo” and that his doctor provider number appears in other medical certificates appearing at CB 55 to 57. The applicant is factually correct in these submissions, but, for the reasons already given, a factual error of this nature does not amount to jurisdictional error by the Tribunal.

Discretion

1. If no useful result could ensue from the granting of the writs sought by the applicant they may not be granted: SZBYR's case at [28] and [29]. Even if, technically, there is an error, relief should still be withheld on discretionary grounds if it would be futile to remit the matter to the Tribunal: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 per Nicholson J at [21]. Or, as McHugh J said in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 635 [140]:

   Nevertheless, once a breach of natural justice is proved, a Court should refuse relief only when it is confident that the breach could not have affected the outcome of the case.

2. In this case, the Tribunal's decision turned on whether the applicant had achieved an academic result that was certified by her education provider to be at least satisfactory. The error in the Tribunal's review of the delegate's decision was that it did not identify to the applicant that the satisfaction of that visa criterion was one of the issues on which it would determine the review. Even so, the statement contained in the education provider's letter of 20 April 2007 is intractable. In relation to term 7, it stated that the student's academic performance was unsatisfactory. The applicant could have put no evidence or arguments before the Tribunal which could have altered the contents of that letter which was potentially fatal to the review application.

3. However, there remains the question of whether the applicant’s breach was caused by exceptional circumstances beyond her control. The Tribunal rejected two of the medical certificates supplied to it by the applicant and concluded that she had not presented sufficient medical evidence to demonstrate that she suffered a condition that was serious enough to affect her ability to achieve a satisfactory academic result for term 7. However, the Tribunal was not in a proper position to reach this conclusion as the issue in question had not been flagged to the applicant as s.360 required. The Court cannot say what additional evidence or arguments the applicant might have put before the Tribunal to address the question of her academic results had she had the opportunity to do so and I note the medical certificates she did present do not appear to address this issue. Therefore, I cannot conclude that a rehearing would be futile and I will not exercise my discretion to refuse relief.

Conclusion

1. Jurisdictional error on the part of the Tribunal has been demonstrated.

2. Consequently, the matter will be remitted to the Tribunal to be determined according to law.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  9 November 2007