Ning v Minister for Immigration and Citizenship [2007] FCA 313

FEDERAL COURT OF AUSTRALIA

Ning v Minister for Immigration and Citizenship [2007] FCA 313 ZI NING v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD 2014 OF 2006

LANDER J

9 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2014 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: ZI NING

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: LANDER J DATE OF ORDER: 9 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The respondent's title be changed to the Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The appellant 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 NSD 2014 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: ZI NING

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: LANDER J

DATE: 9 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against an order of a Federal Magistrate made on 5 October 2006 dismissing the appellant's application for judicial review of a decision of the Migration Review Tribunal ('the Tribunal') given on 7 April 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the delegate') to cancel the appellant's Student (Temporary) (Class TU) visa (a Vocational Education and Training sector (Subclass 572) visa) under s 116(1)(b) of the Migration Act 1958 (Cth) ('the Act') because of a breach by the appellant of Condition 8202 which attached to that visa. 2 The appellant was born on 6 October 1984 and is a citizen of the People's Republic of China. On 9 March 2005 the appellant was granted a Student (Temporary) (Class TU) visa. 3 In a letter dated 6 September 2005 the appellant's education provider, International College of Management, Sydney Pty Limited (trading as International College of Management, Sydney), advised the appellant that she was placed on Academic Dismissal status and should the appellant not appeal her academic status, her enrolment would be automatically cancelled. The educational provider received a letter dated 7 September 2005, purportedly written by the appellant, which outlined personal reasons for the appellant's academic performance. The letter stated that the appellant was sad and that as her parents did not provide her with financial support she worked part-time and did not have time to study. 4 The contents of that letter were: ' I'm the student which just finished term 2. My name is Zi (Iris) Ning, my student number is 8495. My term Grade Point Average (GPA) for the previous term is low and I have failed several subjects of this term. I knew there is no excuse, but I cordial crave you to give a chance. At the beginning of this term, because of some personal reason, my parents and I have some misapprehensions. It made me feel so sad and perturbed through this whole term. This frame of mind made me difficult to study hard. Also, my parent didn't give me any money at all during this term. Then I have to find part time job to earn some money for myself. The part time job took me a lot of time, sometimes when I go back to my room I just sleep and have no vim to study. Now, I found it so stupid to think the job more important than my study. I'm really compunctious and self-condemned for that. I really should treat my study as the main thing and work very hard on it. When I told my parents about all those things, The (sic) feel very sorry for me and forgave our misapprehensions. They decided to give money to me again. Please give a chance, I will be owe you a lot. Next term, I promise I will study very hard and also the terms after. A fault confessed is half redressed, please forgive me and give me another chance. Thank you very much.' 5 On 6 October 2005 the appellant was served with a notice pursuant to s 20 of the Education Services for Overseas Students Act 2000 (the ESOS Act) by her education provider, advising her that it had determined she had breached Condition 8202(3)(b) of her visa. The notice provided the appellant with particulars of the breach which indicated that the appellant had failed to achieve satisfactory academic results because she had failed four subjects out of six subjects she had enrolled in. 6 On 1 November 2005 the delegate of the Minister issued the appellant with a notice of intention to consider cancellation pursuant to s 116 of the Act. The possible grounds for cancellation identified in the notice were: 'International College of Management, Sydney Pty Ltd (trading as International College of Management Sydney) has determined that in the term running from 23/5/2005 to 26/08/2005 your academic results were not satisfactory. This is because you failed 4 subjects out of the 6 subjects you were enrolled in. As a result, you have failed to comply with condition 8202(3)(b) of your student visa.' 7 The appellant's visa was cancelled on 6 December 2005 due to a breach of visa Condition 8202 for failing to have satisfactory academic results. 8 On 6 December 2005 the appellant applied to the Tribunal for a review of that decision. 9 On 6 February 2006 the Tribunal wrote to the appellant pursuant to s 359A inviting the appellant to comment on the following information: '● Your education provider notified that you had breached condition 8202 on your visa because you failed 4 subjects out of 6 attempted in the term that ran from 23 May 2005 to 26 August 2005; and ● Your education provider has certified that you did not achieve an academic result that is considered to be at least satisfactory.' 10 The Tribunal advised the applicant: 'This information is relevant to the review because condition 8202 of your student visa requires that you achieve an academic result that is certified by your education provider to be at least satisfactory for each term or semester of your course. If the Tribunal finds that you breached condition 8202, your visa must remain cancelled.' 11 The Tribunal also sought any further information that the appellant might consider relevant to the review of the migration decision and, in particular: '● Any evidence which you believe would indicate that any non-compliance with condition 8202 was due to exceptional circumstances beyond your control; and ● Evidence of the employment you undertook. Please advise your employer's name, location, the hours you worked and amount you were paid.' 12 In a letter dated 16 January 2005 (sic), but apparently received by the Tribunal on 16 February 2006, the appellant's migration agent wrote: 'She's got the poor mark in the school examinations because she was ill during that time, and she had the medical certificates to prove. She intention was not to go for the exams, however, she wanted to try, and therefore, she still set for the exams and didn't hand the medical certificates to school.' 13 In a letter dated 17 January 2005 (sic), but apparently received by the Tribunal on 18 February 2006, the appellant's migration agent wrote: 'The immigration department made an unfavourable decision on her student (Temporary) (Class TU) visa in spite of the fact that she produced the medical certificates for those days when examinations took place. This is because the applicant's roommate wrote an e-mail for her and sent to the education provider on her behalf to the effect that the applicant at that time was experiencing family problems, her parents were trying to divorce each other and the applicant was under great stress and also she was working too hard and got too tired. The applicant was not aware of the content of the e-mail so she was not able to take any action to correct the misinformation to the school authority, nor did she present the medical certificates to the school. The school in due course sent the information they had from this e-mail to DIMIA when the applicant went to explain her situation to the departmental officer who was presented two stories from the applicant and the school respectively. That was the reason for DIMIA to cancel her visa.' 14 The letter referred to in that paragraph of that letter was apparently written by the appellant on 7 September 2005, which I have already reproduced at [4] of these reasons. 15 The appellant attended a hearing on 7 March 2006. The appellant agreed that she had failed four of six subjects which she had undertaken in term 2 of 2005. She said she understood that this could constitute a breach of Condition 8202. She said that her failure to achieve satisfactory academic results was as a result of her being sick at the time of the examinations. She agreed she had not submitted medical certificates to her education provider. She said her illnesses consisted of flu on one occasion and gastroenteritis on another occasion. The Tribunal noted that her account broadly accorded with information contained in two medical certificates which were on file. The appellant stated that she had signed the letter of 7 September 2005 sent to the education provider but that its contents were not true. She did not, she said, have a job as stated in that letter. 16 After the hearing on 8 March 2006, the appellant submitted a further sworn statement to the Tribunal in which she said that at the hearing she was nervous and that some of her replies were not accurate. She said she was sick and got poor results in her exams. She said one of her school mates said she could fix the problem and typed the letter of 7 September 2005. The appellant said that she did not check the contents of the email and did not sign it as she had admitted in the Tribunal hearing. She said she only became aware of it when she was told of the existence of the document by the delegate. She said she had never worked and her parents did support her. 17 The Tribunal considered the evidence provided by the appellant and was satisfied the appellant had not complied with visa Condition 8202(3)(b). The Tribunal found the appellant had failed four out of six subjects in term two of 2005 and her education provider had not provided any certification that the appellant achieved an academic result that is satisfactory. The Tribunal referred to Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 that the assessment of satisfactory academic results is for the education provider to determine and not for the Tribunal. 18 The Tribunal then turned to the personal reasons forwarded by the appellant explaining her academic results. It considered the appellant's oral evidence, the information provided by the appellant's representative, the letter of 7 September 2005 to the education provider, the appellant's medical certificates and her statement after the hearing. It concluded: '35. 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. 36. 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. 37. 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 own words, she "did not take it very seriously" and did not think the education provider would dismiss her. 38. The Tribunal finds that some of the claims made by the visa applicant and her representative in regard to the existence of any exceptional circumstances that were beyond the visa applicant's control are false or contradictory. There has been no valid reason advanced about why the visa applicant could not provide medical certification to her education provider in regard to her illness during the Term examinations. Therefore, the visa applicant does not satisfy the requirements of r.2.43(2)(b)(ii).' 19 The Tribunal had regard to reg 2.43(2)(b)(ii) because it was relevant in considering whether the breach of the condition led to the cancellation of the appellant's visa. 20 Section 116(1)(b) of the Act provides: '116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (b) its holder has not complied with a condition of the visa; …' 21 Section 116(3) of the Act provides: '116(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.' 22 Therefore, if a visa holder has not complied with a condition of the visa, the Minister must cancel the visa if there exist prescribed circumstances in which a visa must be cancelled. 23 Regulation 2.43(2)(b) provides: '(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: … (b) in the case of a Student (Temporary) (Class TU) visa: (i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or (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.' 24 The effect of that regulation is that unless there were exceptional circumstances beyond the visa holder's control the Minister was obliged to cancel the visa if the Minister was satisfied that the appellant had not complied with the condition of the visa. 25 The appellant applied to the Federal Magistrates Court for a review of the Tribunal's decision. On 17 July 2006, Driver FM granted leave for the appellant to amend her application to assert a breach of s 359A of the Act in relation to the letter dated 7 September 2005 sent to the education provider. His Honour found the only arguable ground was the breach of s 359A of the Act. In relation to that ground, the Federal Magistrate stated (at [8]): 'I accept the Minister's submissions that a fair reading of the MRT's reasons disclosed 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 … 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.' 26 The Federal Magistrate found that the information that went to the decision was provided by the appellant to the Tribunal and the Tribunal was not obliged to invite the appellant to comment on it pursuant to s 359A(1) of the Act as it fell within the exception under s 359A(4)(b) of the Act. As no jurisdictional error was established, the Federal Magistrate dismissed the application. 27 In her notice of appeal the appellant claims: '1. The relevant judgment contains errors of law. 2. The relevant judgment has failed to take exceptional circumstances in which the applicant was when making the decision. 3. Had the relevant judge taken the exceptional circumstances into account, the judgement would have been different and in the applicant's favour. 4. Relevant evidence in favour of the appellant has been overlooked and neglected.' 28 The appellant did not provide any particulars of the evidence which the Tribunal failed to have regard to in considering the question of exceptional circumstances. She appeared on the hearing of this appeal but did not put anything before the Court in support of her appeal. It is clear from the Tribunal's reasons, to which I have already referred, that the Tribunal did take into account the evidence given by the appellant at the hearing and the further written submissions received after that hearing. Based on that evidence, the Tribunal concluded that exceptional circumstances had not been made out. That finding was clearly open to the Tribunal. 29 I agree with the Federal Magistrate that the only possible ground upon which the appellant could rely to demonstrate jurisdictional error on the part of the Tribunal was her assertion that the Tribunal had failed to comply with its obligations under s 359A of the Act. If the Tribunal had failed to discharge imperative duties cast upon it, then that would give rise to a jurisdictional error: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [76]. 30 There was no breach of s 359A by the Tribunal in relation to the appellant's application for a review because the information which was relied on by the Tribunal was provided to the Tribunal by the appellant herself for the purpose of the application: s 359A(4)(b) of the Act. 31 In this case, there was no information relied upon by the Tribunal which was not provided by the applicant for the purpose of the application. In the letter of 17 January 2005, received by the Tribunal on 18 February 2006, the appellant's migration agent advised the Tribunal that the appellant's room mate wrote an email for her and sent that to the education provider in circumstances where the appellant was unaware of the contents of the email. 32 In her evidence before the Tribunal, the appellant said that a friend had responded in a letter of 7 September 2005. She admitted at that time that she had signed the letter but claimed that the contents of the letter were not true. In the further statement supplied after the hearing, she claimed that she did not sign the letter and only became aware of the contents when told about it at the interview. She said she had never worked. 33 It was the appellant who brought all of the information to the attention of the Tribunal through her migration agent's correspondence with the Tribunal, her evidence and her statement after the hearing. She expressly referred to the inconsistencies to which I have referred and, by doing so, thereby invited the Tribunal to consider whether it accepted the reasons given by her for the inconsistencies. 34 In my opinion, the information which was relied upon was information that came within s 359A(4)(b). Therefore, the appeal must be dismissed. 35 I make the following orders: 1. The respondent's title be changed to the Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The appellant's pay the respondent's costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.