Bassava v Minister for Immigration
[2006] FMCA 1060
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BASSAVA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1060 |
| MIGRATION –Migration Review Tribunal – refusal of a student visa (subclass 573). |
| Education Services for Overseas StudentsAct 2000, s.20 Migration Act 1958, ss.116, 137J Migration Regulations 1994, r. 2.43(2)(b)(ii), condition 8202 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96 Morsed v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193 Sayem v Minister for Immigration & Anor [2006] FMCA 979 |
| Applicant: | LAVANYA BASSAVA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 803 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 July 2006 |
| Date of last submission: | 24 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Da Gama |
| Solicitors for the Applicant: | Vernon Da Gama & Associates |
| Counsel for the Respondent: | Ms Yong |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 5 July 2005 and amended 25 October 2005 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,955.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 803 of 2005
| LAVANYA BASSAVA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for judicial review of a decision of the Migration Review Tribunal made on 7 June 2005. The circumstances of this case raise almost identical legal issues to those in the matter of Sayem v Minister for Immigration & Anor [2006] FMCA 979 which I decided earlier this month. Mr Da Gama, on behalf of the applicant, seeks to make no further submissions and formally repeats and relies upon the submissions made in Sayem as they apply in this case.
In a general sense, for the reasons set out in Sayem, I also propose refusing this application however, it is appropriate I recount the details of this case.
Background
The applicant is a 25 year old female national of India. She came to Australia on 26 July 2003 on a student temporary class TU visa subclass 574 which expired on 31 August 2003. She was granted a further subclass 574 visa on 1 August 2003 that was due to expire on 31 August 2005 however, this visa was cancelled on 20 September 2004 by a delegate of the Minister.
Prior to the cancellation, the applicant had enrolled in July 2003 for a graduate diploma in management at Central Queensland University (CQU). This diploma was said to lead to a master of business administration which she potentially could complete by 31 July 2005.
She had at least one extension for an assignment on the basis of compassionate grounds however, on 3 January 2004 CQU wrote to the applicant advising that her academic performance was less than satisfactory and requiring her to make an appointment with the manager of student and client services. In June of 2004 CQU again wrote to the applicant to advise that an application for a deferred exam had been denied because of defects apparent on the face of a medical certificate she had provided.
On 19 August 2004 CQU sent to the applicant a notice pursuant to section 20 of the Education Services for Overseas StudentsAct 2000 advising her that she had breached a condition of her student visa, condition 8202, which required her to maintain satisfactory academic performance.
The section 20 letter advised that from winter 2003 to autumn 2004 she had passed no courses and had failed six. The letter also required her to attend upon the departmental officer within 28 days. She did attend on 2 September 2004. As a result any automatic cancellation of her visa pursuant to s.137J of the Migration Act 1958 did not proceed. Indeed, had there been purported cancellation pursuant to that provision, it appears that defects in the s.20 notice would have meant that such a cancellation would not have been lawful as set out in the decision of the Full Court in Morsed v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193. However, what occurred at her attendance at the minister's office was delivery to her of a notice under section 116 of the Migration Act with the following possible ground for cancellation:
CQU reported you to DIMIA on 19 August 2004 for unsatisfactory academic progress in winter term 2003 and autumn term 2004 possible breach of 8202(3)(b) condition, refer attached.
Attached to that document appears to have been a copy of the relevant provisions of 8202. It appears clear that she received it as the copy on the file. It contains a signature with the date and time. The department had before it at this time details of her performance.
Later a formal letter arrived from the university on 17 September 2004 confirming the failure in all six courses that she had attempted at CQU. With respect to this the tribunal made the following findings:-
40. Section 116(1)(b) of the Act provides for cancellation where ‘its holder has not complied with a condition of the visa.’ The review applicant’s visa was cancelled for breach of condition 8202 (found in Schedule 8 of the Regulations). The delegate found that the applicant had breached condition 8202 by failing to meet course requirements whilst enrolled at CQU in 2003-2004.
41. In this case, the review applicant’s visa was cancelled under the mandatory. provisions prescribed in regulation 2.43(2) of the Regulations. Regulation 2.43(2) sets out the prescribed circumstances contemplated 1 section 116(3) in which a cancellation must be made. Paragraph 2.43(2Xb) of the Regulations includes non-compliance with condition 8202 as a prescribed circumstance in which the Minister must cancel a student visa,
42. Following the decisions of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration-and Multicultural Affairs v Nguyen [2002] FCA 460 the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. In other words, the Tribunal does not have discretion to excuse a breach of condition 8202 on the basis that the breach was the result of circumstances beyond the visa holder’s control. If the Tribunal is satisfied that the review applicant has breached condition 8202, it must affirm the visa cancellation. Accordingly, the central question for the Tribunal is
The tribunal went on to conclude that it was required to confirm the decision of the delegate to cancel the visa.
Grounds of Appeal
The applicant relies upon the following grounds for the review:-
THE GROUNDS OF THE APPLICATION ARE that the decision of the Second Respondent was affected by jurisdictional error in that:
1. The Second Respondent erred in concluding that the finding of a breach of condition 8202 required that the applicant’s visa he cancelled by the reason that:
(a) section 20 of the Education Services for Overseas Students Ace 2000 (“ESOS Act”) and Subdivision GB of Division 3 of Part 2 of the Migration Act (“Act”) limits 116 of the Act by excluding a breach of a student visa condition relating to attendance or satisfactory academic performance (“relevant student visa condition”) from the possible range of prescribed circumstances under s 116(3); and
(b) Accordingly r 2.43 of the Migration Regulations is invalid or should be read down to exclude from its scope breach of a relevant student visa condition.
2. The First Respondent and the Second Respondent had no power under s 116 of the Act to cancel the Applicant’s visa on the ground of a breach of a relevant student visa condition by reason that:-
(a) the notice purported to be sent to the Applicant under s.20 ESOS Act was invalid on the grounds identified in Uddin v MIMIA [2005] FMCA 841; and
(b) s 20 of the ESOS Act and Subdivision GB limit s 116 of the Act by requiring as a condition of the power under s 116 to cancel for such a breach the sending of a notice under s 20.
3. It was not open to the First Respondent or the Second Respondent to be satisfied that the applicant had not complied with condition 8202 by reason that:-
(a) the notice purported to he sent to the applicant under s 20 ESOS Act was invalid on the grounds identified in Uddin v MIMIA [2005] FMCA 841; and
(b) the terms of condition 8202, the ESOS Act and Subdivision GB make the sending of such a notice a condition of non-compliance with a relevant student visa condition.
4. The Second Respondent considered whether it was satisfied the Applicant had breached condition 8202 of his student visa rather than whether the Applicant had not complied with condition 8202, as it was required to do under section 116 of the Migration Act 1958 and Regulation 2.43(2)(b)(ii) of the Migration Regulations 1994.
The first ground relates to the question of whether or not the operation of s.20 of the Education Services for Overseas Students Act 2000 in some way limits the operation of s.116 of the Migration Act 1959.
This question is dealt with in my decision in Sayem at some length at paragraphs [9] to [22]. For the same reasons I find that this argument fails in this case and a jurisdictional error is not established.
Similarly with respect to the second ground, my reasons set out at paragraphs [23] to [25] of Sayem apply in this case. The s.20 notice was not relied upon as creating the basis for a cancellation, rather the notice pursuant to s.116 which was ultimately supported by evidence that had come in after the date of the s.20 notice.
For this reason and having regard to the reasons of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96, I find that this ground does not establish jurisdictional error.
The third ground is in substance the same as the second ground in this case and fails for the same reasons.
The fourth ground relates to the use of the word "breached" by the tribunal member when referring to this particular condition rather than the phrase "failed to comply with". This is the same as ground 3 in Sayem. My reasons at paragraphs [26] to [28] of Siam apply equally in this case and for those reasons I find that this is not a ground that establishes jurisdictional error.
In the circumstances I therefore formally dismiss the application in the present matter.
Costs
In this matter the applicant has been unsuccessful. There is no reason that costs ought not follow the event. I have regard to the schedule prepared by the respondents but note that the preparation for final hearing is the scale figure from the Federal Magistrates Court general Federal Law scale.
This is a lump sum scale intended to cover the majority of day-to-day matters that come before the court. However, most matters that are covered by that scale and its corresponding Family Law amount are cases that involve significant amounts of evidence and affidavit of parties and discovery.
Migration matters of course only involve the court book which is a collection of documents taken from the minister's file and rarely involve affidavit evidence, in this case involving none.
In these circumstances I am not satisfied that the stage 5 and stage 1 fees reasonably represent the amount of work that is necessarily involved in a migration case particularly if one compares it to an average style of matter in the Copyright, Trade Practices or Family Law jurisdictions.
For these reasons I have come to the conclusion that a better guide to an appropriate fee is set out in the migration proceedings costs that have been promulgated since this matter began. I am satisfied that a reasonable fee in these proceedings is represented by a $5000 lump sum together with a further $955 as a result of the extra half‑day hearing and mention that has occurred in this matter over and above the usual course of migration cases.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 8 August 2006
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