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Wang v Minister for Immigration & Anor [2009] FMCA 60 (16 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Migration Review Tribunal decision – student visa – breach of condition 8202 – non-compliance not due to exceptional circumstances beyond the applicant’s control – application of Ministerial Direction No.38.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:
ZHAO YANG WANG

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 2232 of 2008

Judgment of:
Cameron FM

Hearing date:
2 February 2009

Date of Last Submission:
2 February 2009

Delivered at:
Sydney

Delivered on:
16 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:
Mr H.P.T Bevan

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2232 of 2008

ZHAO YANG WANG

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant was granted a Subclass 573 Student (Temporary) (Class TU) visa on 22 September 2006. On 28 April 2008 a delegate of the Minister cancelled the applicant’s visa pursuant to s.116 of the Migration Act 1958 (“Act”) on the basis that the applicant had breached condition 8202 of his visa by failing to enrol in a registered course. The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a 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. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error. That is the only basis upon which that decision can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
  3. For the reasons which follow, the application will be dismissed.

Relevant law

  1. Condition 8202 is found in sch.8 to the Migration Regulations 1994 (“Regulations”) and relevantly provides:
  2. The consequences of breaching condition 8202 are set out in s.116 of the Act:

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

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
  1. Regulation 2.43 sets out the prescribed circumstances referred to in s.116(3) as follows:
  2. The combined effect of s.116 and reg.2.43(2)(b)(ii) is that if the first respondent (“Minister”) is satisfied that a 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, he must cancel the visa in question.

Background facts

  1. The applicant first entered Australia on 13 August 2003 as the holder of a subclass 571 Student (Temporary) (Class TU) visa. After this visa expired, he was granted another subclass 571 visa.
  2. On 4 April 2006 he was granted a subclass 572 Student (Temporary) (Class TU) visa. This visa was subject to two cancellation proceedings in 2006 but on both occasions the delegate decided not to proceed to cancellation.
  3. On 22 September 2006 the applicant was granted a subclass 573 Student (Temporary) (Class TU) visa. From July to December 2007 he was enrolled in a “degree transfer program” at Bradford College which, if completed, would have allowed him to transfer his enrolment to a bachelor’s course at the University of Adelaide from the beginning of the 2008 academic year. The applicant failed to enrol at the university which then cancelled his Confirmation of Enrolment on 14 February 2008 on the basis of non-commencement.
  4. On 18 April 2008 the applicant attended the Minister’s department where he was served with a Notice of Intention to Consider Cancellation of his visa (“NOICC”). His visa was subsequently cancelled by a delegate of the Minister on 28 April 2008 pursuant to s.116(b) and reg.2.43(b).
  5. An application for review was then lodged with the Tribunal. By letter dated 8 July 2008 the applicant submitted that:
    1. the delegate erred by fettering the exercise of her discretion by failing to take into account the claims he put forward as they were not within departmental policy;
    2. depression, fatigue and an injury from a pedestrian accident caused him to miss some examinations;
    1. the University of Adelaide failed to provide him with counselling and it did not act in accordance with Standard 6 of the National Code 2007;
    1. at the time of his enrolment he was working hard for his employer; and
    2. an adverse decision would also have a negative impact on his partner.
  6. Attached to the submission were the following documents, amongst others:
    1. medical certificates for various periods in February, March and April 2008 with references to stomach problems and, in most cases, a note that the applicant was “unfit for School”;
    2. three reference letters from the applicant’s employer and managers stating that he was employed from 4 May 2006 to
      19 May 2008. The employer also stated that he was aware of the applicant’s pedestrian accident;
    1. a statutory declaration dated 18 June 2006 regarding the applicant’s relationship with his girlfriend; and
    1. a psychologist’s report dated 1 July 2008.
  7. At a hearing before the Tribunal the applicant claimed that:
    1. he worked from 2007 up until the time his visa was cancelled in April 2008;
    2. he took three subjects at Bradford College in semester 2 of 2007 and passed none. The college invited him to repeat the semester but he did not want to re-enrol because he was sick, depressed, could not afford it and Bradford College did not want him;
    1. he was unable to enrol in the University of Adelaide because he did not meet entry requirements; and
    1. he was hit by a car in November or December 2007 while crossing a road. He had medical treatment and missed some shifts at work but was not hospitalised. He sat one exam prior to the accident but two of his other exams were scheduled after the accident and these he did not sit.

The Tribunal’s decision and reasons

  1. The Tribunal found that the applicant had, at the time of his visa cancellation on 28 April 2008, breached condition 8202(2)(a) of his visa, the University of Adelaide having cancelled his enrolment on 14 February 2008.
  2. After considering authorities on what amounts to exceptional circumstances beyond a visa holder’s control and taking into account the Ministerial Direction on the issue, the Tribunal concluded that it was not satisfied that the applicant’s breach of the condition of his visa was due to exceptional circumstances beyond his control and concluded that his intensive working history contributed to his academic failure at the end of 2007 which in turn was why he could not enrol at the University of Adelaide. In reaching this conclusion, the Tribunal noted that:
    1. the applicant had a record of being evasive about why he failed to enrol in the relevant course at the University of Adelaide and the reasons he gave to the psychologist and to the Tribunal were irrelevant and misleading;
    2. as the applicant was never a student at the University of Adelaide, his claim that the university failed to act in accordance with Standard 6 of the National Code 2007 and that counselling was never provided to him by that university was misconceived;
    1. he was invited to repeat his year at Bradford College but refused the offer and he did not seek to enrol in an alternative course or at an alternative educational institution;
    1. with respect to the applicant’s pedestrian accident with a motor vehicle, the Tribunal was satisfied that:
      1. it was a low level event which did not require hospitalisation;
      2. it had no bearing on the medical certificates issued to the applicant in early 2008 as the medical certificates, when they referred to a medical cause for time off, explicitly referred to stomach problems; and
      3. the psychologist was incorrect when he/she noted that the accident had resulted “in medically approved time off from work and studies for approximately two months”;
    2. the medical certificates, where they are explicit about the applicant’s absences, refer to him being “unfit for School”, never “unfit for work”, which was the other option on the form. The Tribunal found it noteworthy that the applicant continued to work right through the second semester of 2007 and, with a few shifts missed because of “resting” after his accident, up until the time his visa was cancelled. Further, his visits to the medical practice ceased immediately after the cancellation of his visa; and
    3. the Tribunal was satisfied that the applicant continued to work throughout the period when he claimed to have been ill and depressed, noting that the three reference letters made no mention of the applicant being ill throughout February to April 2008. Similarly, in his submission of 8 July 2008 the applicant stated that he had worked hard for his employer at the time.
  3. On balance, the Tribunal was satisfied that the applicant’s breach of condition 8202(2) was not attributable to his alleged depression and otherwise poor health. Rather, his failure to enrol in a registered course arose out of his inability to cope with the demands of work and study and his decision to favour work, a matter not beyond his control.
  4. With respect to the applicant’s submission that an adverse decision would have a negative impact on his partner, the Tribunal found that his relationship was neither exceptional among students nor beyond his control and any impact on the relationship arising from the cancellation of the applicant’s visa was not a reason not to cancel his visa.

Proceedings in this Court

  1. The grounds of the application commencing these proceedings were pleaded as follows:

Irrelevant consideration

  1. The allegation made in the first ground pleaded in the application can be dealt with by observing simply that it is factually incorrect. As the summary of the Tribunal’s decision record set out earlier in these reasons demonstrates, what the Tribunal did, when considering whether the relevant exceptional circumstances existed, was to consider those circumstances which were relevant to the breach of the visa condition which led to the applicant’s visa being cancelled. Those circumstances turned on the applicant’s failure to be enrolled in a course in the first semester of 2008 and the possible reasons for that state of affairs.
  2. None of the matters considered by the Tribunal in this connection included the fact that twice in 2006 the applicant had been given a NOICC. Those notices, and the subsequent delegated decisions that the applicant’s visa would not be cancelled, were referred to in the recitation of background facts which appears towards the beginning of the Tribunal’s decision record. However, the fact that the Tribunal referred to this historical background does not mean that that background formed part of the basis for the decision.
  3. The evidence which was relied upon by the Tribunal when reaching its findings on material questions of fact is set out in that part of its decision under the heading “Findings and Reasons”. The events of 2006 are not referred to there and it therefore must be inferred that they formed no part of the factual underpinning of the Tribunal’s reasoning. That conclusion is also borne out by their clear irrelevance to the conclusions which the Tribunal reached.
  4. For these reasons, the first ground pleaded in the application is not made out.

Applied wrong test

  1. The content of Ministerial Direction No.38 is set out in para.57 of the Tribunal’s decision which states:

The applicant has not suggested that that summary is incorrect or incomplete.

  1. The Tribunal concluded that the only matter arising in connection with the ministerial direction which required consideration by the Tribunal was the applicant’s allegation that the University of Adelaide had demonstrated a lack of care towards the applicant, in particular, that it failed to act in accordance with Standard 6 of the National Code 2007 implemented by the Department of Education, Science and Training and did not provide him with counselling.
  2. As already noted, the Tribunal addressed the issue of the University of Adelaide’s compliance with Standard 6 of the National Code 2007. It found that the university had no obligations in this connection because the applicant had never been one of its students.
  3. The other elements of the ministerial direction are not relevant except the last, the requirement that the Tribunal consider all of the facts of the case before reaching its decision. The applicant has not pointed to any fact or facts which the Tribunal may not have considered. In the absence of evidence or submissions addressed to this question, and after reviewing the Tribunal’s decision record, I see no basis for concluding that the Tribunal failed to consider all of the facts in total when reaching its decision as to whether the applicant’s non-compliance with condition 8202 was or was not due to exceptional circumstances beyond his control.
  4. For these reasons, I find that the second ground pleaded in the application is not made out.

Conclusion

  1. Jurisdictional error on the part of the Tribunal has not been made out.
  2. Consequently, the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 16 February 2009

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