FEDERAL COURT OF AUSTRALIA

Liew v Minister for Immigration and Border Protection [2016] FCA 172

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The appellants appeal from a judgment of the Federal Circuit Court of Australia delivered on 17 July 2015.

2    By that judgment, the Federal Circuit Court dismissed the appellants’ application for constitutional writs in respect of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) given on 20 March 2014. The Tribunal affirmed a decision of the first respondent’s delegate to refuse the appellants a Student (Temporary) (Class TU) visa.

3    For the reasons that follow, the appeal must be dismissed.

The visa application and the delegate’s decision

4    The second appellant is the infant daughter of the first appellant, Mei Ai Liew. Ms Liew applied for Student (Temporary) (Class TU) visa on 6 July 2011. Her daughter was included as a member of the first appellant’s family unit. On 28 September 2011, the Minister’s delegate refused to grant the visa.

5    The delegate’s refusal to grant the application was on the basis that Ms Liew had not met the requirement of cl 572.235 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) that she have “complied substantially” with her previous visa.

6    The delegate’s decision was made under s 65 of the Migration Act 1958 (Cth) (“the Act”). Section 65(1) provides, relevantly, that if the Minister is satisfied that the criteria for a visa prescribed by the Act or the Regulations have been satisfied, the Minister is to grant the visa, or, if not so satisfied, is to refuse to grant the visa.

7    Section 31(1) of the Act provides that there are to be prescribed classes of visas. Under reg 2.01 and Sch 1 of the Regulations, the prescribed classes include Student (Temporary) (Class TU) visas.

8    Section 31(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified class. Under reg 2.03(1), the prescribed criteria include the primary criteria and any secondary criteria set out in Sch 2. The criteria for the grant of a Student (Temporary) (Class TU) visa in Sch 2 included, at the relevant time, cl 572.235, which provided:

If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

9    Ms Liew has held a number of visas since 2005. The last substantive visa she held before her July 2011 application was another Student (Temporary) (Class TU) visa granted on 15 February 2010. I will refer to that visa as her “previous visa”.

10    Section 41(1) of the Act provides that the Regulations may provide that visas of a specified class are subject to specified conditions. Under reg 2.05(1), a visa is subject to any conditions specified for that subclass of visa in Sch 2. The appellants’ previous visa was subject to condition 8202, which provides, relevantly:

(1)    The holder…must meet the requirements of subclauses (2) and (3).

(2)    A holder meets the requirements of this subclause if:

(a)    the holder is enrolled in a registered course…

11    The delegate decided to refuse the grant of the visa on the basis she was not satisfied that Ms Liew had complied substantially with a condition of her previous visa, namely the condition that the visa holder be “enrolled” in a registered course.

The Tribunal

12    The issue for the Tribunal was whether Ms Liew had complied substantially with the requirement of condition 8202(2)(a) that she be enrolled in a registered course.

13    The Tribunal’s decision of 20 March 2014 was the second time that the Tribunal affirmed the delegate’s decision. The Tribunal’s previous decision made on 22 July 2013 had been quashed by the Federal Circuit Court.

14    The appellant’s previous visa was granted on 15 February 2010 and ceased on 17 July 2011. Ms Liew was enrolled in an Advanced Diploma of Tourism at the Australian College of Vocational Studies (“the College”) which commenced on 18 May 2009 and was due to finish on 17 May 2011. That course was a registered course.

15    The Tribunal had access to records from a database kept by the Department of Education, Employment and Workplace Relations, known as the Provider Registration and International Student Management System (“PRISMS”). The PRISMS records showed that Ms Liew’s enrolment had been cancelled by the College on 17 July 2010 for disciplinary reasons. She was not enrolled for the period from 17 July 2010 until she re-enrolled in the same course on 24 January 2011 (a period of almost six months). Ms Liew’s enrolment was then cancelled on 19 February 2011 for non-commencement of studies. She was not enrolled from that date until 25 July 2011, when she enrolled in a Certificate II of Information Technology (a period of more than four months).

16    The Tribunal was satisfied that Ms Liew was not enrolled in a registered course for more than 10 months out of the total visa period of about 17 months. This was a breach of condition 8202. The question arising under cl 572.235 was then whether she had “complied substantially” with the requirement that she be enrolled in a registered course.

17    Ms Liew told the Tribunal that she stopped attending classes in about May 2010 because she was pregnant and would become dizzy. The Tribunal noted that Ms Liew’s evidence as to the time when she stopped attending classes and the reasons for stopping was inconsistent with evidence she had given at the previous hearing. The Tribunal found that she had been untruthful in her evidence. Despite this finding, it is unclear whether or not the Tribunal accepted that she could not attend classes because of her pregnancy. The Tribunal did accept that the birth of Ms Liew’s child in February 2011 affected her ability to attend classes at that time.

18    The Tribunal distinguished between “enrolment” and “attendance”. It found that while Ms Liew was unable to attend classes, at least from February 2011, that did not prevent her from being enrolled.

19    The Tribunal noted that Ms Liew did not seek advice from the Department of Immigration and Border Protection, nor did she seek a deferment of her enrolment. It was also noted that she did not breach the conditions of her visa deliberately.

20    The Tribunal considered that the nature of Ms Liew’s breach of condition 8202 was significant, given its duration and the purpose for which the visa had been granted.

21    The Tribunal was not satisfied that Ms Liew had complied substantially with condition 8202 of her previous visa. It decided that she had not met the requirements of cl 572.235 of Sch 2 of the Regulations. The Tribunal therefore affirmed the delegate’s decision to refuse to grant the appellants a visa.

The Federal Circuit Court

22    The appellants applied to the Federal Circuit Court on 11 April 2014 for constitutional writs in respect of the decision of the Tribunal.

23    There was one ground of review, namely:

The Tribunal failed to lawfully exercise its jurisdiction by failing to consider documents corroborative of the applicant’s evidence at hearing that she stopped attending her classes in mid 2011 because of the effects of her pregnancy.

24    The documents that the Tribunal was said to have failed to consider were “Event Notes” dated 1 and 8 September 2011. The Event Notes consisted of emails that Ms Liew had sent to the Department of Immigration and Citizenship. In her email of 1 September 2011, Ms Liew stated that in the period from 17 July 2010 to 21 July 2011 she was heavily pregnant and then later busy looking after her newborn daughter. In her email of 8 September 2011, Ms Liew said that she could not study because she was pregnant and then, after her daughter was born, she could not study because she was not in good health and because she needed to look after her daughter.

25    Ms Liew’s counsel argued that the Tribunal had failed to have regard to the emails, and the failure to do so revealed jurisdictional error.

26    In his reasons, Judge Nicholls noted that the Tribunal may fall into jurisdictional error if it overlooks a cogent, corroborative document which is central to the case before it, referring to the Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16.

27    Judge Nicholls found that the Tribunal had distinguished between Ms Liew’s ability to be enrolled in a course and her ability to attend classes. His Honour considered that Ms Liew’s emails were explanations for her non-attendance at classes, rather than reasons why she was not enrolled in her course for significant periods. His Honour held that as the emails were not cogent or corroborative evidence of the central issue on which the Tribunal’s decision turned, namely, the question of enrolment, there was no jurisdictional error on the part of the Tribunal. Accordingly, his Honour dismissed the appeal.

The appeal

28    Ms Liew, although represented by lawyers before the Tribunal and the Federal Circuit Court, was not represented in the appeal to this Court.

29    On 6 August 2015 a Deputy District Registrar directed that the appellants file an outline of submissions before the hearing date, but no such submissions were filed. At the hearing, Ms Liew’s oral submissions were largely confined to reiterating that she was unable to attend classes because she was pregnant. At the conclusion of the hearing, I made directions, including that the appellants file an outline of submissions in response to the first respondent’s further outline of submissions by 6 January 2016. However, the appellants have not filed any written submissions.

30    The appellants’ notice of appeal appears to assert that the Federal Circuit Court erred by failing to uphold the ground of appeal upon which they had relied in that Court. It is therefore necessary to consider whether the Tribunal fell into jurisdictional error by failing to consider Ms Liew’s emails of 1 and 8 September 2011 in which she explained that she could not attend classes and could not study because of her pregnancy, childbirth and the need to look after her daughter.

31    It is true that the Tribunal did not refer to Ms Liew’s emails and it may be assumed that they were not taken into account. However, it remains to be seen whether that constitutes jurisdictional error.

32    In Minister for Immigration and Border Protection v SZSRS, the Full Court at [50] (Katzmann, Griffiths and Wigney JJ) cited the following passages from the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT with approval:

[111]     In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [[2005] FCAFC 11] at [24]…The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

[112]     As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [[2003] FCAFC 11] at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. (Emphasis added.)

(See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ)).

33    Whether the Tribunal’s failure to consider Ms Liew’s emails amounts to jurisdictional error turns upon the relevance, cogency and importance of the emails to the exercise of the Tribunal’s function.

34    The relevance of the Tribunal’s findings concerning Ms Liew’s credibility is somewhat unclear. While the Tribunal found that she was not a credible witness, the finding of credit does not seem to have ultimately had any impact upon its decision.

35    The Tribunal concluded that Ms Liew had not complied substantially with the conditions of her previous visa for two reasons. The first was that the breach was significant, as the purpose of the student visa was enrolment and study in a registered course, yet she had not been enrolled for more than 10 months out of the total period of the visa of about 17 months.

36    The appellants’ case that the Tribunal fell into jurisdictional error is directed to the Tribunal’s second reason. The Tribunal’s second reason was that Ms Liew had not provided any adequate explanation as to why she had not been enrolled. Here the Tribunal distinguished between enrolment in a course and attending classes. The Tribunal accepted that Ms Liew was unable to attend at least some classes due to the birth of her child, but decided that she had not provided any adequate explanation as to why she could not have maintained her enrolment.

37    The word “enrolled” appears in cl 2 of condition 8202. It is not defined in the Act or Regulations. The ordinary meaning of the word may be ascertained by reference to a dictionary. The most relevant definition of “enrolled” in the Macquarie Dictionary (Online Edition) is:

Education to place on the register of an educational institution, or of a course offered by an educational institution.

38    Clause 2 of condition 8202 requires that the holder of a relevant visa be enrolled, in the sense of being registered for a registered course. It does not require that the visa holder attend classes for the course.

39    Failure to attend classes is dealt with in cl 3 of condition 8202. If a student does not attend 80% of scheduled class contact hours, the education provider can provide a certificate of the kind specified in cl 3 of condition 8202, and the student will then be in breach of cl 3. In this respect, I respectfully agree with the analysis of Judge Barnes in Zhang v Minister for Immigration and Citizenship (2010) 243 FLR 472; [2010] FMCA 809:

69.    It is relevant to have regard to the distinction drawn in condition 8202 between enrolment and an absence of certification of unsatisfactory course attendance or certification of unsatisfactory course progress. Unlike condition 8202(3), condition 8202(2)(a) does not refer to certification (or an absence of certification) by an education provider. As counsel for the applicant submitted and as the Minister did not dispute, a failure to attend a course or to achieve satisfactory results is not of itself such as to establish that a person is not enrolled in a course within condition 8202(2)(a).

70.    While mere non-attendance does not equate to cessation or termination of enrolment, it is important not to conflate the meaning of “enrolled” and the evidence that may satisfy a decision-maker in respect of compliance (or substantial compliance) with condition 8202(2)(a).

71.    I accept that there must be an identifiable act by the student, such as notification to the education provider of withdrawal or discontinuance from a course. However, in the context of condition 8202(2)(a) it is consistent with the ordinary meaning of “enrolment” that a cessation of enrolment may be established not only by evidence of termination of enrolment by the education provider, but also by evidence of withdrawal from a course or discontinuance by a student communicated to the education provider. Consistent with this view, s 19(1)(d) of the [Education Services for Overseas Students Act 2000 (Cth)] imposes an obligation on an education provider to give to the Secretary of DEST information about “any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed” within 14 days of this occurring. (Emphasis added.)

40    The Tribunal was concerned with the question of whether Ms Liew had complied substantially with the requirement of cl 2 of condition 8202 that she be enrolled in a registered course. Ms Liew was not enrolled in a registered course for two periods: the first began when her enrolment was cancelled by the College on 17 July 2010 for disciplinary reasons; and the second began when her enrolment was cancelled on 19 February 2011 for non-commencement of studies. The Tribunal’s finding that she was not enrolled in these periods was plainly correct. Ms Liew’s failure to be enrolled in the course for any part of the period of the visa was a breach of cl 2 of condition 8202: see Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170 at [19]-[20] (Cooper J), Wang v Minister for Immigration and Citizenship [2007] FCA 1188 at [20] (Weinberg J).

41    Once the Tribunal decided that Ms Liew had not been enrolled in a registered course for part of the period for which her visa was in force, the question of why she was not enrolled was a relevant circumstance to consider in deciding whether there was substantial compliance with the condition: see Kim v Witton (1995) 59 FCR 258 at 271 (Sackville J), Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 (Katz J). The Tribunal distinguished between Ms Liew’s explanation for why she was unable to attend classes and why she was not enrolled. In my opinion, the Tribunal was correct to make that distinction.

42    Ms Liew’s emails of 1 and 8 September 2011 simply corroborated the explanations she gave to the Tribunal as to why she was unable to attend classes. The emails might have been relevant to the credibility of Ms Liew’s evidence as to why she was unable to attend, but the Tribunal’s adverse findings upon Ms Liew’s credit did not ultimately affect its decision.

43    Ms Liew’s emails did not deal with the question of why she was not enrolled. The emails could not have affected the Tribunal’s consideration of the issue on which its decision turned, namely whether Ms Liew had complied substantially with the condition that she be enrolled in a registered course. The emails were not cogent evidence in support of her case, nor were they centrally relevant to her case.

44    The primary judge was correct to find that the Tribunal had not committed jurisdictional error by failing to consider Ms Liew’s emails of 1 and 8 September 2011.

45    The appeal is dismissed with costs.

Associate:

Dated:    2 March 2016