Bao v Minister for Immigration - [2004] FMCA 1044

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAO v MINISTER FOR IMMIGRATION

[2004] FMCA 1044

MIGRATION – MRT decision – mandatory cancellation of Student Visa – breach of attendance and performance conditions – particulars not given before primary decision – effect of invalidity of delegate’s decision – Tribunal had power to affirm decision – allegation of reckless disregard of law and ostensible bias within Department not established – effect of Zubair’s Case.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act1958 (Cth), ss.116, 116(1), 116(3), 119, 119(2), 119(3), 124, 137J, 137P, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B
Education Services for Overseas Students Act 2000 (Cth), s 20

Applicant:

QI BAO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1440 of 2004

Delivered on:

14 December 2004

Delivered at:

Sydney

Hearing date:

14 December 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Mr N. Dobbie

Solicitors for the Applicant:

Parish Patience Immigration

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1440 of 2004

QI BAO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act1958 (Cth) challenging a decision of the Migration Review Tribunal handed down on 21 April 2004. The Tribunal affirmed a decision of a delegate taken on 13 October 2003 to cancel the applicant’s Student (Temporary) (Class TU) visa.
The jurisdiction of this Court under s.483A is the same jurisdiction as the Federal Court in relation to a matter arising under this Act, that jurisdiction being the Federal Court's judicial review jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. Counsel for both parties presented their submissions to me on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 1044
Decision Date: 14 December 2004

CaseChat Overview and Summary

The case of Bao v Minister for Immigration concerns the cancellation of a student visa held by the applicant, Mr Bao. The Tribunal had upheld the delegate's decision to cancel Mr Bao's Student (Temporary) (Class TU) visa due to breaches of the visa condition 8202, specifically the failure to achieve satisfactory academic results. The Tribunal found that Mr Bao did not meet the academic requirements for each term or semester of his course, leading to the conclusion that his visa should be cancelled. The Tribunal's decision was based on the mandatory nature of the cancellation power when prescribed circumstances are met, as outlined in the relevant sections of the Migration Act 1958 (Cth).

The primary legal issue before the court was whether the Tribunal correctly exercised its power to cancel Mr Bao's visa under section 116 of the Migration Act 1958 (Cth). The court examined the interplay between various sections of the Act, particularly those related to the conditions of student visas and the circumstances under which a visa may be cancelled. The court also considered the Tribunal's interpretation of the mandatory nature of the cancellation power when prescribed circumstances, as defined in the Migration Regulations 1994 (Cth), were present.

The court upheld the Tribunal's decision, affirming that the Tribunal correctly exercised its cancellation power under section 116 of the Act. The court found that the Tribunal's reasoning and conclusions were consistent with the relevant statutory provisions and authorities. The court noted that the Tribunal's opinion on the mandatory nature of the cancellation power was not open to question, given the established case law. The court also observed that Mr Bao's amended application did not challenge the Tribunal's findings or the legal framework governing the cancellation of student visas. As such, the court dismissed Mr Bao's application for review.

ORDERS:
1. Mr Bao's application for judicial review is dismissed.
2. Mr Bao is to pay the respondent's costs in the sum of $5000.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent's costs in the sum of $5000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the delegate's decision in the present case the delegate found breaches of condition 8202(3) in relation to both of its sub-clauses. On review, the Tribunal examined the applicant's explanations for some of his non-attendances at his study and was not satisfied that sub-clause (a) applied. It was, however, satisfied that sub-clause (b) applied. It is not necessary to set out its full reasoning in that respect since it is not challenged by the applicant. Its conclusion was as follows:48.After considering the legislation, policy considerations and available evidence, the Tribunal finds that the review applicant did not achieve an academic result that is certified by the education provider to be at least satisfactory, for each term or semester (whichever is shorter) of the course. The review applicant breached condition 8202. 49.In light of the findings above, the Tribunal has not gone on to assess whether the applicant complied with the remaining parts of condition 8202.50.The tribunal makes the following findings:·The review applicant has not complied with condition 8202 of the visa.·The review applicant’s visa may be cancelled pursuant to paragraph 116(1)(b) of the Act.·The review applicant’s failure to comply with condition 8202 is a prescribed circumstance in subparagraph 2.43(2)(b) of the Regulations.·As a prescribed circumstance exists, subsection 116(3) of the Act directs that the review applicant’s visa must be cancelled.DECISION51.The tribunal affirms the decision under review to cancel the review applicant’s Student (Temporary) (Class TU) visa. The applicant’s recently amended application raises no ground of review attacking how the Tribunal conducted its review nor its reasons in relation to the above conclusions. In the face of Tian’s Case (supra), the Tribunal's opinion as to the mandatory nature of the cancellation power in s.116(1) when read with subs (3) and the prescribed circumstances is not open to question, nor is its opinion that both sub-clauses must be complied with by the applicant. The amended application also does not raise any ground of review based on the relationship of Subdivisions D and GB of Part 2 Division 3 of the Act. As I have indicated above, Subdivision D contains the power of cancellation in s.116 which is applicable to a range of visa classes including student visas. Exercise of that power by a delegate is subject to procedural provisions set out in Subdivisions E and F. Subdivision GB contains ss.137J to 137P, which sets up a procedure for automatic cancellation of a student visa where the provider of the education serves a notice on the student under s.20 of the Education Services for Overseas Students Act 2000 (Cth), and where the student does not comply with that notice by reporting to the Immigration Department within 28 days. If that automatic cancellation takes effect, then a student who has not reported obtains an opportunity to apply for revocation of the cancellation. He can then put forward extenuating circumstances which must be taken into account by the Minister. However, curiously, if the student does comply with the education provider’s notice and does report to the Immigration Department before the expiry of the 28 days, then a delegate may exercise the mandatory power of cancellation under s.116 in which the extenuating circumstances are irrelevant.

Ratio Decidendi

Legal Principle Established

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