Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755

FEDERAL COURT OF AUSTRALIA

Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755

MIGRATION – application for review of decision of Migration Review Tribunal refusing grant of student visa for breach of work limitation condition prescribed by regulation attaching to visa held – finding that applicant had not complied substantially with visa condition – construction of regulations where there exist criteria to be satisfied at time of application and at time of decision – proper construction of cl 560.227 of Migration Regulations – no error in Tribunal on its findings concerning one basis for decision – application dismissed.

Migration Act 1958 (Cth) s 475(1), s 476 Migration Regulations 1984 cl 560.2 Kim v Witton (1995) 59 FCR 258 referred to Chu Hong Rao v Minister for Immigration and Multicultural Affairs N 1250 of 2001 Allsop J Sydney 11 December 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1250 of 2001

BETWEEN: CHU HONG RAO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 11 DECEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed; and 2. the applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1250 of 2001

BETWEEN: CHU HONG RAO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 11 DECEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Before the Court is an application for review under the Migration Act 1958 (the Act) of a decision of the Migration Review Tribunal (the Tribunal) of 25 July 2001 which affirmed a decision of a delegate of the respondent Minister of 21 November 2000 to refuse to grant the applicant a Student (Temporary) (Class TU Subclass 560) visa. 2 The applicant is a national of the Peoples Republic of China. She entered Australia on a student visa on 14 July 1998. This visa was valid until 20 August 1999 and expired on that date. She completed a one year graduate diploma at Macquarie University. Proposing to undertake further study, on 19 August 1999 she applied for another student visa. On either 19 or 20 August 1999 the applicant was granted a bridging visa (type A) pending the outcome of the second student visa application. It is not clear from the findings of the Tribunal or the material before the Court on what day (19 or 20 August 1999) the bridging visa was granted. In October 1999 the applicant commenced a two year diploma course. 3 The student visa which expired on 20 August 1999 was subject to three conditions: 8105 concerning limitation of working hours during term time, 8202 concerning meeting course attendance requirements and 8501 concerning health cover. Of these, only condition 8105 is relevant for these proceedings, though, as will be seen, condition 8105 is only relevant as a condition attached to the bridging visa. 4 The bridging visa was issued subject to condition 8105 which prescribed that the holder must not engage in work in Australia (other than in relation to her course of study or training) for more than 20 hours per week during any week when the institution at which the holder was studying was in session, that is during what might be called term time. 5 The decision of the delegate to refuse to grant the student visa was made on 21 November 2000. 6 On 15 December 2000 the applicant lodged an application for review with the Tribunal. On 4 July 2001 a hearing took place at which the applicant gave oral evidence. On 25 July 2001 the Tribunal affirmed the decision that the applicant was not entitled to the grant of the visa. 7 An application for review of the Tribunal's decision was filed in this Court on 27 August 2001. 8 The decision of the Tribunal is a decision reviewable in this Court: subs 475(1) of the Act. The grounds of such review are those described in s 476 of the Act (as it stood at the time of the Tribunal's decision). 9 Before considering the grounds advanced in the (now amended) application it is necessary to briefly describe the relevant statutory and regulatory provisions and the Tribunal's reasons for refusing to grant the visa. 10 At the time of the Tribunal's decision the Act and the Migration Regulations (made under the Act) provided for different classes of visas (s 31). The Act provided for the Regulations to prescribe criteria to be satisfied for the grant of a visa of a specified class (subs 31(3)), that a non-citizen must apply for a visa of a particular class (s 45), and that the Minister must consider a valid visa application (s 47). It further provided that after considering a valid application for a visa, and if satisfied that relevant health and other criteria (if any) had been satisfied, as prescribed by the Act or the Regulations, and that other conditions had been met, the Minister (or his or her delegate) was to grant the visa (para 65(1)(a)). If not so satisfied, the Minister (or his or her delegate) was to refuse to grant the visa (para 65(1)(b)). At the relevant time, subs 63(1) provided also that the Minister may grant or refuse to grant a visa at any time after the application for it has been made. 11 At the time of the application, visa class TU contained a number of subclasses of available visas. The subclass in issue (in relation to both the first student visa which expired on 20 August 1999 and the second student visa the subject of the application which was refused) was subclass 560. The criteria to be met for the grant of a subclass 560 visa were set out in Schedule 2 of the Regulations. 12 Clause 560.2 of subclass 560 set out the primary criteria to be satisfied. Clause 560.21 set out the criteria to be satisfied at the time of application. Clause 560.22 set out the criteria to be satisfied at the time of decision. The time of application for the second student visa was 19 August 1999. The time of decision of the Tribunal was 25 July 2001. 13 Turning to clause 560.21 (which was required to be satisfied at the time of application): (a) subclause 560.211 was on its face irrelevant; (b) subclause 560.212 was satisfied because the applicant was the holder of a Student (Temporary) (Class TU) visa; and (c) the question arose as to whether subclause 560.213 was satisfied. 14 Subclause 560.213 was in the following terms: If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. 15 I mentioned earlier that it was not clear from the materials whether the bridging visa was issued on the day of the application for the second student visa (19 August) or the following day. If it had been issued on 19 August 1999 subclause 560.213 would apply to both the first student visa (to expire on 20 August) and to the bridging visa. If it was issued on 20 August subclause 560.213 would apply only to the first student visa. In either case, there was no suggestion by the respondent that as at 19 August 1999 (the time of application) there was any basis to conclude or form an opinion that substantial compliance with the conditions of those visas or that visa had not taken place. 16 Therefore it was necessary to turn to clause 560.22 – the criteria to be satisfied at the date of the decision. 17 By subclause 560.220(1) it was necessary to satisfy clauses 560.221 to 560.231. The only clause said to be relevant by the respondent before me was clause 560.227. The Tribunal appeared to deal with clause 560.224 as relevant; but reliance on clause 560.224 was eschewed by the respondent before me. The respondent's position before me was that for the Tribunal's reasons to be supported they must legitimately be seen to rely on clause 560.227. I will return to clause 560.224 a little later. 18 Clause 560.227 was in the following terms: If the application is made in Australia, the applicant continues to satisfy the criterion in clause 560.213. 19 The proper construction of clause 560.227 in its adoption of clause 560.213 is not without difficulty. Three points can be made at once. First, the "criterion in clause 560.213" must be that "the applicant has complied with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject". Secondly, the time of satisfaction now is the time of decision, not the time of application. Thirdly, the word "continues" may cause difficulty. 20 If the word "continues", being in the present tense, limits the examination of the satisfaction of the criterion to the time of the decision then the only relevant enquiry is whether at that time the applicant "is continuing" or "continues" to comply with the conditions of the visa held or last held as at the time of the application. On this construction, if the bridging visa was not granted until 20 August 1999 the only visa held at 19 August 1999 (the time of the application) which could be the subject of consideration as to whether conditions attached thereto "continued" to be complied with would be the first student visa, which had expired. If the bridging visa was granted on 19 August that visa also could be the subject of consideration as to whether conditions attached thereto "continued" to be complied with. However, on this construction, the enquiry would be limited to compliance with the conditions attaching to the bridging visa as at 25 July 2001. 21 If the above is the proper construction of clause 560.227, the application must be allowed and the Tribunal's decision set aside. This is so despite the finding in para [31] of the Tribunal's reasons that on-going non-compliance with condition 8105 was comprehensive (which I take to be a finding that there was substantial non-compliance at least as at 25 July 2001), because the respondent eschews reliance on that finding. It is plainly wrong; and the respondent in effect conceded (without argument) that it could not be maintained. I take this to be a concession that para 476(1)(g) of the Act applied to that finding. Thus, there was no material before the Tribunal upon which it could form the opinion that substantial compliance with condition 8105 had not occurred as at the date of the decision. 22 This leads me to return to the proper construction of clause 560.227. The respondent submits that to give sensible meaning to clause 560.227 one must view it as adopting or incorporating clause 560.213 into the temporal framework of clause 560.227 by reading it to mean that at the time of the decision, if the application has been made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject (the italicised words denoting the importation of the words from clause 560.213). 23 It was said that this construction gives effect to the evident purpose of the need to assess compliance at and between the times of application and of decision by the use of the mutatis mutandis importation of the perfect tense ("has complied") from clause 560.213 into clause 560.227 and its operation as at the time of decision. Otherwise, it is said, a result is given which has no rational purpose by overly weighting the effect of the tense in the word "continues". This construction, it was said, does not ignore or write out the word "continues". It just gives effect to the perfect tense in the adopted clause 560.213. 24 I agree. I do not think that the use of the word "continues" was intended to limit the enquiry only to the precise date of decision (which might be a date beyond the reach of any material before the delegate or the Tribunal); nor do I think that the use of the word "continues" was intended to restrict the enquiry to a visa held or which had been held at or before the time of application. No rational purpose consistent with the Act or regulations would be so advanced. Rather, the evident purpose of requiring substantial compliance with conditions attached to visas would be frustrated. 25 The importance of the construction is evident when one recognises that the Tribunal found that between April 2000 to October 2000 the applicant worked in excess of 20 hours per week. That finding is in para [29]: The Tribunal finds that the visa applicant has not substantially complied with the conditions to which the visa last held was subject. The evidence is clear that the visa applicant worked in excess of 20 hours per week from April 2000 to October 2000. Further to this the Tribunal finds that it was a deliberate breach of the visa condition due to the fact that the visa applicant's mother had decided that she would no longer provide her daughter with financial support and that she wished her daughter to find work and support herself. 26 The phrase "last held" on the second line was clearly an error of expression. The factual findings in para [29] of the Tribunal's reasons were founded on what appears in para [16] of the Tribunal's reasons: Based on the information provided by the visa applicant and bank statements for the period 19 February 2000 until 8 November 2000, the visa applicant had worked the following hours: · Fortnight ending 18 April 2000 @ $11 p/h = 27 hours (13.5 hours per week) and @ $13 p/h = 23 hours (11.5 hours per week); · Fortnight ending 16 May 2000 @ $11 p/h = 114 hours (57 hours per week) and @ $13 p/h = 96.6 hours (48 hours per week); · Fortnight ending 30 May 2000 @ $11 p/h = 68.9 hours (34 hours per week) and @ $13 p/h = 58 hours (29 hours per week); · Fortnight ending 13 June 2000 @ $11 p/h = 61.24 hours (30 hours per week) and @ $13 p/h = 51.8 hours (26 hours per week); · Fortnight ending 27 June 2000 @ $11 p/h = 52 hours (26 hours per week) and @ $13 p/h = 44 hours (22 hours per week); · Fortnight ending 11 July 2000 @ $11 p/h = 61.9 hours (31 hours per week) and @ $13 p/h = 52 hours (26 hours per week); · Fortnight ending 25 July 2000 @ $11 p/h = 72 hours (36 hours per week) and @ $13 p/h = 61 hours (30 hours per week); · Fortnight ending 8 August 2000 @ $11 p/h = 55 hours (28 hours per week) and @ $13 p/h = 47 hours (23.5 hours per week); · Fortnight ending 22 August 2000 @ $11 p/h = 52 hours (26 hours per week) and @ $13 p/h = 44 hours (22 hours per week); · Fortnight ending 5 September 2000 @ $11 p/h =70 hours (35 hours per week) and @ $13 p/h = 59 hours (29 hours per week); · Fortnight ending 19 September 2000 @ $11 p/h = 70 hours (35 hours per week) and @ $13 p/h = 59 hours (29 hours per week); · Fortnight ending 3 October 2000 @ $11 p/h = 75 hours (37 hours per week) and @ $13 p/h = 64 hours (32 hours per week); · Fortnight ending 17 October 2000 @ $11 p/h = 70 hours ( 35 hours per week) and @ $13 p/h = 59 hours (29 hours per week); · Fortnight ending 31 October 2000 @ $11 p/h = 94 hours (47 hours per week) and @ $13 p/h = 80 hours (40 hours per week); 27 The visa last held was, in fact, the first student visa which had, by the year 2000, expired and in respect of which there was no material to support a finding of breach of condition. Clearly the Tribunal was directing its attention to and referring to the bridging visa, being the only visa held in 2000. 28 If the findings in para [29] are not vulnerable under s 476 then there was ample basis for the Tribunal to conclude that there was a failure to satisfy the criterion in clause 560.227. In those circumstances para 65(1)(b) of the Act required the rejection of the application. 29 No basis for doubting the facts found in para [29] (understood in the light of para [16]) exists. At the hearing before me no basis under s 476 was identified so to do. Some paragraphs were challenged by Ms Rao as inaccurate: in particular the fortnights ending 3 October and 17 October. However, at the hearing before me the applicant tendered a document in her own hand which included the hours worked in the period May 2000 to October 2000 (not identifying term times) as follows: Statement of working hours for the period May 2000 to August 2001 [sic] Chu Hong Rao has worked the following hours for the above period: 1 May 2000 14 May 2000 64 hours 15 May 2000 28 May 2000 84 hours 29 May 2000 11 June 2000 73.5 hours 12 June 2000 25 June 2000 60 hours 26 June 2000 2 July 2000 28 hours (weekly) 10 July 2000 23 July 2000 67 hours 24 July 2000 6 August 2000 48 hours 7 August 2000 20 August 2000 44 hours 21 August 2001 [sic] 3 September 2001 [sic] 67 hours 4 September 2001 [sic] 10 September 2001 [sic] 20 hours (weekly) 2 October 2001 [sic] 15 October 2001 [sic] 53.5 hours (weekly) 30 These hours were different from those found by the Tribunal in para [16] of its reasons, though not markedly so. In any event, para [29] when read with para [16] involves fact finding by the Tribunal untainted, it seems to me, by any error reflected in s 476. 31 The fact that the applicant may have worked less than 20 hours per week after October 2000, as the material she provided at the hearing before me may tend to show, is not to the point. Fact finding is for the Tribunal. The Tribunal dealt with the period April 2000 to October 2000 and found non-compliance in that period. 32 Equally the applicant sought to persuade me that she had been telling the truth when she told the Tribunal that any breach was not deliberate. Fact finding of this nature is a matter for the Tribunal. No error in this finding is shown, let alone one within the scope of s 476. Ms Rao may disagree with the factual findings, but the Court does not sit as an appellate tribunal hearing disputed factual matters. That said, however, having listened to the tape of the hearing for the purpose discussed in [47] below and having read the transcript, there may have been room for confusion as to whether Ms Rao was saying, when first asked, that she had been aware of the visa conditions or that she was now aware of them. The Tribunal's discussion of the evidence is at para [20] of its reasons. There is the basis for a suspicion that Ms Rao may have been answering as to her present state of knowledge rather than her recollection of her contemporaneous state of knowledge. This can be a factual distinction of great importance, but one sometimes easily given insufficient attention by way of distinction. This may also explain, what I perceive to be, Ms Rao's deep sense of grievance over, in effect, being disbelieved. The following exchange took place which seems to form the foundation for the Tribunal finding that Ms Rao advised the Tribunal that she was "cognisant of her visa conditions relating to work": [Tribunal]: Did you understand for that year [referring to Ms Rao's first year in Australia] that there was [sic] any restrictions on your visa because basically a lot of visas that are issued to students have particular conditions attached. [emphasis added.] [Ms Rao]: Oh, yeah. [Tribunal]: Were any conditions attached to your visa from July 1998 to July 1999? [Ms Rao]: Yes [Tribunal]: What conditions were attached? [Ms Rao]: The condition says that I cannot work that I can work no more than 20 hours a week but I didn't work at all. 33 While I have some doubt about the reliability of the finding of deliberateness I am not persuaded that the necessary advantage of the Tribunal in making its findings after having seen Ms Rao does not outweigh any doubt arising from the transcript. Also, no ground under s 476 has been made out for any attack on such finding. 34 Also, although deliberateness of breach is relevant to the question of the substantiality of non-compliance: Kim v Witton (1995) 59 FCR 258, 271, it is not a necessary precondition. The finding of the substantiality of the non-compliance could have been founded on the extent of breach found in para [29] in the light of para [16] absent a finding of deliberate and knowing breach. 35 I allowed the applicant to tender evidence before me which was directed to showing, amongst other things, that any breach was not substantial when viewed in the wider context of her time in Australia. The characterisation of the non-compliance as substantial was a factual matter for the Tribunal. It was a conclusion plainly open. No error is shown. 36 I turn now to deal with the balance of the reasons of the Tribunal and the attack made on them by the applicant. 37 The matters raised in the application for review, amended application for review, affidavit and written submissions raise the following. First, it was said that the applicant's tuition fees cost $6,000 not $9,000 as found by the Tribunal. If an error, this was one of fact. It was a conclusion open to be made on the material before the Tribunal and it is in no way central to the reasoning of the Tribunal. No basis to apply para 476(1)(g) of the Act was shown. 38 Secondly, spelling or grammatical mistakes were identified. They are irrelevant. 39 Thirdly, it was said that there were discrepancies between what was said at the hearing and what was recorded as having been said. The tape of the hearing was tendered before me. None of the so called errors appears to me to be in any way central to the decision making process. I see no ground under s 476 for any review. In any event they relate in substance to complaints about paras [30] and [31] of the Tribunal's reasons, as to which see [17] above and [42] to [46] below. 40 Fourthly, there was a complaint that the Tribunal asked for bank statements for a period different to that period covered by bank statements relied on. No error is shown. 41 Fifthly, para [31] of the Tribunal's reasons was said to be wrong. That was conceded, see [21] above. 42 Sixthly, factual error was alleged about the findings in para [30] of the decision, which was in the following terms: The Tribunal also finds that the visa applicant has not provided evidence to indicate that she has the financial capacity to undertake the course without breaching the conditions relating to work attached to her visa. The visa applicant has provided a statement of financial circumstances, which indicates that she is living on $97.50 per week and that she is receiving approximately $245.00 to $290.00 per week in salary although a notation indicates that the maximum amount varies. The visa applicant indicated in her evidence to the Tribunal that she earned $11.00 per hour and if she was earning $240.00 per week this indicates that she is working 21 hours per week and at $290.00 per week 26 hours per week. The Tribunal finds that although the visa applicant has in the past been able to rely on overseas remittances her evidence to the Tribunal indicates that her mother has withdrawn the previous levels of financial support and is expecting her daughter to work and support herself. Furthermore the visa applicant has been doing this since April 2000 in contravention of condition 8105 attached to her bridging visa. 43 These findings relate to subclause 560.224(1)(a) which is in the following terms: 560.224 (1) Subject to subclauses (4) and (5), the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard: (a) to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; … 44 The respondent's attitude to para [30] of the Tribunal's reasons before me was that the facts in para [30] went only to one of the elements of subclause 560.224(1), that is paragraph (a) and that to make any of those findings relevant the Tribunal needed to deal with the other questions mandated by clause 560.224, not the least of which was the question of satisfaction as to whether the applicant was genuine in her application for entry and stay as a student. The Tribunal did not embark on this task and so could not have been basing its decision on clause 560.224. Thus the facts found in para [30] went nowhere and were irrelevant. The respondent eschewed reliance on clause 560.224 and accepted that none of the facts found in para [30] were relevant. The respondent based its case before me on non-compliance with clause 560.227 based on the findings in para [29] in the light of para [16] of the Tribunal's reasons. 45 The applicant made a number of complaints about the findings in para [30] which were: (a) that the Tribunal omitted her evidence of overseas financial support; (b) that the Tribunal wrongly said her mother withdrew the previous level of support – rather the applicant "spent the money" and the applicant said her mother would support her; and (c) with two months to go (in July 2001) she could afford the course. 46 Even accepting that para [30] may contain factual errors, they go nowhere as the respondent accepts that para [30] is irrelevant to the disposition of the matter before me. Anyway, nothing has been put to me that could ground a conclusion that in making the findings of fact affected by these complaints the Tribunal committed an error reviewable under s 476. 47 Finally, the applicant claimed that the Tribunal was biased. No particulars of any real kind were provided. Because of the seriousness of the allegation I allowed a tape of the hearing to be tendered. I have listened to it. It and the reasons disclose no basis whatsoever for the allegation. The hearing appears to have been conducted with scrupulous fairness. 48 Thus, notwithstanding conceded error in at least one respect (para [31]) and conceded irrelevance or error in another (para [30]) the Tribunal's findings and reasons otherwise support the conclusions reached by it. In those circumstances it is appropriate not to interfere with the decision under subs 481(1). 49 At the hearing I allowed the applicant to tender various material which was marked. All of it was in aid of showing the factual error of the Tribunal. All of the material (apart from the tape) was inadmissible. The respondent did not object to the tender. I do not criticise counsel for that. The applicant was unappreciative of the limited role of judicial review. It is not a factual review. 50 For the above reasons the application should be dismissed. 51 As to costs, both the applicant and counsel for the Minister have made submissions. I have given weight to the fact that Ms Rao had a legitimate complaint about some aspects of the Tribunal's decision, as reflected in the matters frankly and timeously disavowed by the respondent's counsel. However, ultimately, the Tribunal's decision can rest on an independent and available ground. Ms Rao evidently feels mistreated. She made a complaint to me about practitioners taking her money but not giving her proper advice. She said that she was wrongfully detained by the Department while she had a valid bridging visa and has been charged costs for such detention. These matters, if true, are disturbing, but they are not before me and cannot form part of my consideration of the exercise of my discretion as to costs under s 43 of the Federal Court Act 1976. On balance, I see no principled basis to avoid concluding that the usual rule as to costs should apply and that the applicant should pay the respondent's costs. 52 Finally, I wish to thank Mr Smith for his careful and frank submissions which have greatly assisted in the disposition of the matter. Also, I wish to thank Ms Rao for her careful attention to detail which, while in large part legally irrelevant to the issues before me, enabled me to appreciate the nature of her complaints. I certify that the preceding fifty two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.