Zi v Minister for Immigration
[2006] FMCA 1480
•5 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1480 |
| MIGRATION – Review of Migration Review Tribunal decision – visa cancellation – prior inconsistent statement apparently made by applicant – MRT’s obligations of disclosure under s.359A of the Migration Act 1958 (Cth) considered – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.116, 359A Migration Regulations |
| M55 v Minister for Immigration [2005] FCA 131 SZBNKv Minister for Immigration [2005] FCA 998 SZCJY v Minister for Immigration [2006] FCA 556 SZDMJv Minister for Immigration [2005] FCA 1034 VUAVv Minister for Immigration [2005] FCA 1271 |
| Applicant: | NING ZI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | 1156 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 5 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2006 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondents: | Mr P Braham |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, in the amount of $5,000 pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
1156 of 2006
| NING ZI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”). The MRT decision is dated 7 April 2006.
The MRT affirmed a decision of a delegate to cancel the applicant’s subclass 572 Vocational Education and Training Sector visa.
The applicant, Ms Zi, sought review of that decision by an application for an order to show cause filed on 20 April 2006. Clearly that application was filed within time.
The matter first came before me on 23 May 2006. At that time it was not apparent to me whether the application disclosed an arguable case. I made orders for filing material and directed that there be a preliminary hearing pursuant to rule 44.1(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
That hearing took place on 17 July 2006. At that time I relevantly ordered, first, that the Court notes that the show cause application filed on 20 April 2006 failed on its face to disclose an arguable case. Secondly, and notwithstanding that notation, I gave the applicant leave to amend her application in order to assert a breach of s.359A of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a letter appearing on page 2 of the court book filed on 6 June 2006. Both that court book and a supplementary court book filed on 27 June 2006 are before me as evidence. On 11 August 2006 the applicant filed a document headed “Applicant’s Outline of Submissions”. Notwithstanding that title, both the Minister and I have treated it as an amended application filed pursuant to the leave granted by me. It is tolerably clear from that document that the applicant is seeking to raise before the Court the arguable ground of jurisdictional error I had identified.
The background to this matter is otherwise set out in written submissions filed on behalf of the Minister on 28 September 2006.
I adopt as background for the purposes of this judgment paragraphs 1 through to 16 of those written submissions:
The applicant, a citizen of the People’s Republic of China, was granted a subclass 572 Vocational Education and Training Visa on 9 March 2005. On 6 October 2005, the applicant’s educational provider sent her a notice pursuant to s. 20 of the Education Services for Overseas Students Act 2000 (ESOS Act) stating that the applicant had breached condition 8202 for failing to achieve an academic result that was certified by her education provider to be satisfactory (court book, page 3).
On 1 November 2005, the applicant was provided with a Notice of Intention to consider cancellation (court book, pages 7-8). On 6 December 2005 the delegate of the Minister cancelled the applicant’s subclass 572 visa (court book, pages 14-20). On 6 December 2005 the applicant applied for review of that decision (court book, pages 21-28).
Pursuant to s.116(3) of the Migration Act and Regulation 2.43(2)(b)(ii) the Minister must cancel a Student (Temporary) (Class TU) Visa where the Minister is satisfied that the visa holder has not complied with condition 8202 and that the non compliance was not due to exceptional circumstances beyond the visa holder’s control.
Background
On 6 September 2005 the education provider (International College of Management Sydney, hereafter ICMS) wrote to the applicant advising that she was on academic dismissal status: court book, page 1.
On 7 September 2005 (court book, page 2) the applicant responded (although the applicant denies authorship of this letter, or email, and denied the contents to the MRT). The effect of the response was to provide an explanation for her poor academic performance. This letter is considered in more detail below.
By notice dated 6 October 2005 (court book, page 3) ICMS gave the applicant notice under s.20 of the ESOS Act.
On 1 November 2005 (court book, page 7) the Department provided the applicant a “Notice of Intention to Consider Cancellation” of her visa. The applicant acknowledged receipt of the notice by signing it.
On 24 November 2005 ICMS informed the Department that the applicant’s academic achievement was not certified as satisfactory (court book, page 10).
On 6 December 2005 the applicant’s visa was cancelled (court book, page 14). On the same day the applicant applied to the MRT for review of the delegate’s decision (court book, page 27).
On 6 February 2006 the MRT wrote to inform the applicant pursuant to s.359A of the Act of matters which might form part of the reason for affirming the decision under review. It also invited the applicant to provide further information pursuant to s.359 of the Act. (court book, page 48).
On 16 February 2006 the MRT received a response on behalf of the applicant, enclosing two medical certificates claiming that she was sick during her exams (court book, page 52).
On 18 February 2006 the applicant provided the MRT with further written submissions (wrongly dated 17 January 2005) (court book, page 56). That submission described the content of the letter at court book, page 2, noted the inconsistency between that letter and the applicant’s version of events presented to the Department, and claimed that the letter at court book, page 2 had been prepared by a friend of the applicant, without the applicant’s knowledge.
On 7 March 2006 the applicant attended the MRT hearing, and gave oral evidence. She claimed that she was sick at the time of the examinations, and, as a result, failed four subjects. She also claimed, consistently with the letter of 18 February 2006, that her friend had prepared the letter at court book, page 2 without her knowledge, and that the content of that letter was false.
On 8 March 2006, after the MRT hearing, the MRT received a statutory declaration from the applicant addressing the circumstances of the letter at court book, page 2. That statutory declaration repeated that the letter at court book, page 2 had been prepared by a friend without the applicant’s knowledge, that it was false, and that the correct position was that the applicant has never worked, is supported by her parents, and was sick at the time of the exams.
MRT decision
The MRT found that the applicant had failed to comply with condition 8202(3)(b) because ICMS had not certified that she had achieved a satisfactory academic result in Term 2 of 2005.
In considering whether the applicant had established exceptional circumstances, the MRT noted the contents of the original letter at court book, page 2, and the contrary claims advanced at the MRT hearing and subsequently. The MRT rejected the applicant’s claim to have been sick during the exams (supplementary court book, page 35). In part, the MRT relied upon the inconsistent claims advanced in the latter at court book, page 2.
I confirm the conclusion I reached at the show cause hearing on 17 July 2006 that there is no arguable claim of jurisdictional error in this case apart from the asserted breach of s.359A. The applicant was not in a position to make oral submissions on that issue, not having any legal training. The Minister’s submissions on the issue are set out in paragraphs 20 to 26 of the written submissions. I incorporate those paragraphs in my judgment:
The first respondent concedes that the inconsistency between the letter at court book page 2, and the explanation advanced by the applicant at the hearing, formed part of the reason for the affirmation of the decision under review. It follows from the decision in the Full Court in SZEEU[1], that the letter at court book page 2 is information within the meaning of s.359A of the Act. The letter at court book page 2 was not itself supplied to the MRT, nor did the MRT comply with s.359A(1)(a) of the Act in respect of the letter.
However, the relevant information, namely the inconsistency between the letter at court book page 2 and the subsequent explanation, is information provided by the applicant to the MRT, and so falls within s.359A(4)(b) of the Act.
SZEEU did not disturb the principle, established by the Federal Court in M55[2], that where an applicant’s submission to the MRT assumes knowledge of information provided to the Department, it is taken to have been given to the MRT within s.424A(3)(b) of the Act and its equivalents.
[1]SZEEU v Minister for Immigration [2006] FCAFC 2.
[2]M55 v Minister for Immigration [2005] FCA 131.
In M55, Justice Gray expressed the principle at [25]:
By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s.424A(3)(b) of the Migration Act.
To the same effect are other decisions prior to SZEEU: see per Gyles J in SZDMJ[3] at [6], Lindgren J in SZBNK[4] at [23]-[27], and per Merkel J in VUAV[5] at [10]-[13].
It is clear that nothing in SZEEU has changed that position in relation to republication. Indeed since SZEEU the decisions of Tamberlin J in SZCJY[6] and Young J in SZHIB[7] both assume that the position in relation to republication of the PVA is as stated by Gray J in M55.
In the present matter, the applicant did more in her submissions to the MRT than merely assume knowledge of the letter at court book page 2. At CB56, prior to the hearing, the Applicant made a written submission to the Tribunal in which she repeated the substance of the letter at CB2. Further, the fact of the letter's inconsistency with the explanation provided to the Tribunal was expressly acknowledged in the Applicant's statutory declaration at CB66.
[3]SZDMJv Minister for Immigration [2005] FCA 1034.
[4]SZBNKv Minister for Immigration [2005] FCA 998.
[5]VUAVv Minister for Immigration [2005] FCA 1271.
[6]SZCJY v Minister for Immigration [2006] FCA 556.
[7]SZHIB v Minister for Immigration [2006] FCA 611.
The questions are, what information was determinative of the outcome of the review application and was that information provided to the MRT for the purposes of the review application?
In her reasons for decision, at pages 5 and 6 of the supplementary court book, the presiding member refers to a discussion that occurred at the hearing about the letter reproduced on page 2 of the first court book. Although there is an unhelpful discussion in paragraph 23 of the MRT’s reasons about the letter being signed, there appears no real doubt that it is the unsigned letter at page 2 of the first court book which is being referred to. I note that at paragraph 27 of her reasons the presiding member records the applicant saying what was probably the fact, that the letter was sent by email and one cannot sign an email.
There was no real doubt that the applicant had not complied with condition 8202 attaching to her visa. The real issue for the MRT to resolve was whether there were exceptional circumstances that were beyond Ms Zi’s control. Her problem was that she appeared to have made inconsistent statements. She claimed before the MRT that she had been unable to perform satisfactorily in her studies because of illness. However, the letter referred to by the MRT indicated that in fact she had been working. Ms Zi had sought to extricate herself from that difficulty by seeking to explain to the MRT that the contents of the letter were untrue and had been written without her knowledge.
She was not believed. Relevantly, the presiding member said at paragraphs 34 to 37 of the MRT decision that she did not accept the applicant’s explanation:
The visa applicant claimed that exceptional circumstances existed that were beyond her control and that the breach was due to these circumstances. She firstly claimed in a written statement that she had difficulties with her family at the time of her poor academic performance, that they refused to support her and as a result she had to get a part time job. She stated this made her very tired and she had trouble studying. However, at the Tribunal hearing the visa applicant stated she did not write that letter – which she sighted at the hearing - although she said she signed it, that the contents were not true and she had never had a job. However, following the hearing the visa applicant submitted a statement in writing claiming she had been inaccurate in some of her replies to questions at the hearing. She claimed that she did not know the content of an email allegedly sent by a classmate as explanation for her poor performance in her exams and that when she became aware of it she was surprised because it was untrue. The email referred to claimed that the visa applicant failed several exams because she had to get a job and was too tired to focus on her studies.
The Tribunal does not accept this more recent statement from the visa applicant. The visa applicant sighted a letter on file at the hearing in which the claims were made that she had to work because her parents withdrew their support of her. The visa applicant was also asked by the Tribunal prior to the hearing to provide information on the work she was involved in. The visa applicant has continued to provide inconsistent information in regard to the circumstances surrounding her failure to achieve an academic result certified by her education provider as at least satisfactory.
The visa applicant relied at the hearing on her claims to have been ill when she sat for her exams and as a result of her illness, failed several subjects. She has submitted 2 medical certificates covering 4 days in August 2005 and claiming that she suffered flu and gastroenteritis on these occasions. At hearing the visa applicant stated she did not submit these certificates to her education provider.
The Tribunal is not satisfied that exceptional circumstances existed that were beyond the control of the visa applicant. Her first, written reasons given for her unsatisfactory academic results were stated at hearing to be false. The visa applicant then claimed that she was ill during several exams, but sat them nevertheless and failed because of her illness. She has submitted 2 medical certificates claiming she had flu for 2 days and gastroenteritis for 2 days, all in August 2005. The visa applicant did not submit the medical certificates to her education provider because in her owns words, she ‘did not take it very seriously’ and did not think the education provider would dismiss her.
I accept the Minister’s submission that a fair reading of the MRT’s reasons discloses that the information that was determinative was not the information that the applicant had been working, which was disputed, but rather that the applicant had made inconsistent statements. It was the apparent inability of Ms Zi to get her story straight which caused the MRT to disbelieve her. The letter on page 2 of the first court book was a prior statement inconsistent with Ms Zi’s later statements to the MRT. If that letter was the only source of the information of there being a prior inconsistent statement then a breach of s.359A would have been established. However, as was pointed out by Mr Braham in his oral submissions, information concerning the existence of that prior inconsistent statement was conveyed by or on behalf of the applicant to the MRT twice. The information was conveyed by the applicant’s migration agent in writing to the MRT in a submission dated 17 January 2005 (see court book, page 56).
The information was conveyed a second time in writing by the applicant herself in a statutory declaration appearing on page 66 of the court book. The re-publication to the MRT by and on behalf of the applicant of the information which ultimately proved to be determinative, namely that there existed a prior inconsistent statement as to why she had not performed satisfactorily in her studies, was information provided to the MRT by the applicant for the purposes of her review application. Because of that presentation of the information by and on behalf of the applicant to the MRT there was no obligation on the part of the MRT to invite comment on it pursuant to s.359A(1). The information falls within the exception in s.359A(4)(b).
It follows that I find that the applicant has failed to establish jurisdictional error in the decision of the MRT. I will therefore order that the application be dismissed.
The applicant having been dismissed, costs should follow the event. The Minister seeks a costs order fixed in the sum of $6,000.
The applicant was concerned to clarify her rights of appeal but did not otherwise wish to be heard on costs. I do not see a reason in this case to depart from the established court scale of costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application including, any reserved costs, in accordance with that scale in the amount of $5,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 October 2006
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