Cai v Minister for Immigration & Anor - [2011] FMCA 922

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAI v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 922

MIGRATION – Application to review decision of Migration Review Tribunal – application for extension of time to lodge application to review – whether there was substantive compliance with condition 8202 of student visa – application dismissed with costs.

Education Services for Overseas Student Act 2000 (Cth), s.20
Migration Act 1958 (Cth), ss.351, 476, 477
Migration Regulations 1994 (Cth), sch. 8 condition 8202

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Jayasekara v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199

Applicant:

YAN CAI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 871 of 2011

Judgment of:

Hartnett FM

Hearing date:

18 November 2011

Delivered at:

Melbourne

Delivered on:

25 November 2011

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Latif

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for judicial review filed 24 June 2011 is dismissed.
The applicant pay the costs of the first respondent, fixed in the sum of $6,240.
All exhibits tendered in the proceedings be returned after the expiration of 60 days hereof.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 871 of 2011

YAN CAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant made an application for judicial review by application filed 24 June 2011. That application was an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”). Accordingly, pursuant to s.477(1) of the Act, it was required to be made within 35 days of the date of the migration decision which is appealed against. S.477(2) allows the Court in its discretion to extend the 35-day period if:
“(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
The applicant made such application (in his application filed) on the grounds set out as follows:
(1) Applicant waiting for ministerial intervention decision.
(2) Applicant was not made aware of his right to appeal for judicial review.
Otherwise, the applicant seeks by way of final order that the decision of the Migration Review Tribunal (“the Tribunal”) be quashed on the basis that the Tribunal did not take into account relevant circumstances leading to the applicant’s breach of condition 8202 found in sch.8 of the Migration Regulations 1994 (Cth) (“the Regulations”), being a condition which relates to satisfactory academic performance.
Thus, before the Court is an application for extension of time, and if granted, judicial review of a decision of the Tribunal dated 22 February 2011 which affirmed a decision of the first respondent by his delegate not to grant the visa applicant a student (temporary) class (TU) visa (“the visa”).
Such application for judicial review was required to be filed by

29 March 2011. In fact, the applicant filed same on 24 June 2011.

On that date, he also affirmed an affidavit setting out those matters which he required the Court to take into account by way of evidence on the hearing of his application. The applicant did not file contentions of fact and law but during the hearing tendered an exhibit, being his academic transcript from the Melbourne Institute of Technology, dated 20 June 2011.
The first respondent relies in the proceedings on his response to the application dated 20 July 2011 and contentions of fact and law filed

10 November 2011. The respondent also filed a court book in the proceedings.
The applicant was born on 9 November 1986 and is aged 25 years.

He is a citizen of China. He resides currently in the suburb of Clayton in Victoria. On 28 January 2009, the applicant was granted a subclass 573 student visa. That visa expired on 30 September 2010 and was subject to condition 8202. Condition 8202 is as follows:
“(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) 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; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full-time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code for Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 ;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 .
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full-time course of study or training.”
The applicant was granted his further study visa subclass 573 to enable him to complete his studies in Bachelor of Business and Commerce at Monash University. The applicant had commenced such a course in mid-2007, having arrived in Australia at the end of 2005. The course was scheduled to commence on 31 July 2009 and conclude on 31 July 2010. However, on 26 May 2010 the applicant was reported by Monash University for not achieving satisfactory academic progress. At the time, he was still holding the student visa and was subject to comply with condition 8202.
As the applicant did not achieve a satisfactory course progress, he did not comply with condition 8202 and was issued a s.20 notice. The s.20 notice is the notice provided by an educational institution pursuant to s.20 of the Education Services for Overseas Student Act 2000 (Cth) (“the ESOS Act”). As Monash University had certified that they were not satisfied with the applicant’s academic progress, the applicant was held to have not substantially complied with condition 8202 and therefore did not meet the requirements in cl.573.235. As he did not meet the criteria for a student (class TU, subclass 573, higher education sector visa, his application lodged in Melbourne was refused. Such refusal by the delegate of the first respondent, was made on

6 December 2010.
On 9 December 2010, the applicant appointed a migration agent being Mr Guangyun Ma of New Point Migration and Business Consulting in Collins Street Melbourne. The migration agent wrote to the decision maker, Ms Bhatia in the Department of Immigration and Citizenship (“the Department”), requesting a reconsideration of the applicant’s student visa application. Mr Ma was informed that the decision would not be revisited by the delegate of the first respondent and that the applicant had the option to lodge a review application with the Migration Review Tribunal.
Mr Ma accordingly lodged such application on behalf of the applicant and on 22 December 2010 the applicant applied to the Tribunal for a review of the delegate’s decision. On 17 January 2011, the Tribunal granted the applicant’s request to postpone the hearing before it and, further, contacted the Department requesting a copy of the s.20 notice be provided to the applicant. Such notice had already been forwarded by the relevant registered provider of education services to the applicant at his residential address.
On 18 January 2011, an officer of the Department provided the Tribunal with the s.20 notice and a certificate for the purpose of cl.8202(3) of sch.8 of the Regulations and information from the Provider Registration and International Students Management System (“Prisms”) kept by the Department of Education, Employment and Workplace Relations.
All the referred to documents were before the Tribunal at the hearing and made available to the applicant. The hearing before the Tribunal was rescheduled for 22 February 2011 and on that date the applicant attended the hearing providing evidence, argument and further documentary information. Also in attendance was Ms Shi, being Mr Ma’s assistant, as Mr Ma was unwell on that day. The applicant was assisted at the hearing by an interpreter in the Mandarin language. By a decision dated 22 February 2011, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa. The Tribunal on the same date forwarded a letter to Mr Ma, as the authorised recipient of the applicant, and enclosed various accompanying documents.

By providing the authorised recipient of the applicant with documents, the Tribunal noted that it was taken to have given the documents to the applicant. Enclosed documents were: a letter to the applicant informing him of the Tribunal’s decision to affirm the decision under review, a copy of the Tribunal’s statement of decision and reasons, and a fact sheet. The fact sheet provided information about Tribunal decisions and included the following under the heading Tribunal Decisions:
“If you think that the decision of the Tribunal is wrong in law, you may consider seeking judicial review in the Federal Magistrates Court of Australia.”
On 21 March 2011, the applicant lodged a request for ministerial intervention pursuant to s.351 of the Act. On 31 March 2011, the Department wrote to the applicant and acknowledged the application. The Department wrote:
“You should also be aware that the Minister is under no obligation to intervene in your case. This means that you should not discontinue any application for judicial review on the expectation that the Minister will intervene.”
By letter of 30 May 2011, the Department wrote to the applicant and informed him that the Minister had personally considered the applicant’s case and had decided that it would not be in the public interest to intervene. The Minister therefore declined to exercise his power under s.351 of the Act in the applicant’s favour.
On 14 June 2011, the applicant appointed a new migration agent, and on the 15 June 2011, that agent applied for an extension to the applicant’s bridging visa E. On 24 June 2011 the applicant lodged his application for judicial review with this Court being some 87 days out of time.
The first respondent objected to an extension of time being granted by the Court in the circumstances of this case. The first respondent submitted that an extension was not necessary in the interests of the administration of justice; that there was no acceptable explanation for the delay in lodging the application; and that the application itself lacked substantive merit.
The applicant was cross-examined in the proceedings as to his application for an extension of time. The applicant provided no acceptable explanation for the delay. He had, throughout, the assistance of a migration agent and was also aware that he had access to the Department to make any inquiries in respect of his various appeals. His evidence that Mr Ma, his migration agent, did not provide him with any of the documents forwarded by the Tribunal, who forwarded the same to Mr Ma as the authorised recipient of the applicant, was implausible, and I do not accept it. His evidence was that he had telephone discussions only with Mr Ma following the receipt of the Tribunal decision and that in those discussions, his migration agent advised him to write a letter to the Minister as the next step to be taken in the proceedings. The applicant claimed that his migration agent provided him with no documents and provided him with no proper advice. Mr Ma however was not called by the applicant to corroborate the evidence given by him. When asked why Mr Ma’s evidence was not before the Court, the applicant gave inadequate and evasive answers, ultimately saying that he did not think Mr Ma would admit to taking the actions claimed of him by the applicant, that is, he would not support his claims.
The evidence leads the Court to conclude that the applicant determined, in conjunction with his migration agent, to proceed to seek Ministerial intervention rather than an application for judicial review and that following the failure of his request for the Minister to intervene in his case, he determined that he would then proceed to make application for judicial review.
The Act sets out time limits which should not be ignored unless there is some acceptable explanation for the delay. The Court finds that, contrary to his evidence, the applicant was on notice of his review rights and was or ought to have been aware that an application for Ministerial intervention might not be considered and that any application for Ministerial intervention was not a sufficient basis for extending time.
The Court has also considered the substantive merit of the applicant’s application. In his application for judicial review, the applicant asserts that the Tribunal did not take into account circumstances leading to his breach of condition 8202. For this ground to be made out, the Court must be satisfied: (a) there exists a claim or an integer of the claim, (b) that was not considered, (c) that the decision-maker was bound to take into account in making the decision and (d) that the claim or integer of the claim, if addressed, may have been dispositive of the review (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 40 per Mason J).
The applicant concedes non-compliance with condition 8202 of his student visa in paragraph 3 of his affidavit, wherein he swore that he failed two out of four subjects in 2007, six out of ten in 2008 and three out of four in 2009. The applicant then went on to describe the reasons for his poor performance, saying that his parents divorced in November 2008; he was unwell in 2007 and 2008, but he provided no medical evidence to support that assertion; he was upset by the death of his grandmother in January 2010 and that his two year relationship with his girlfriend also ended in mid-2009. The applicant deposes to, in paragraph 17 of his affidavit filed 24 June 2011 the following:
“I understand I did not comply with condition 8202 of my visa. However, I have provided extenuating circumstances for non-compliance.”
Had this material been before the Tribunal, it would not have been dispositive (Jayasekara v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199). In a student visa context, the condition concerning academic performance can not be satisfied by means of “substantial compliance”. In the absence of the requisite certificate from the education provider, an applicant cannot be found to comply with the condition (paragraph 15 of Jayasekara v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 per Heerey and Sundberg JJ). In this case, the education provider certified the applicant as not achieving satisfactory course progress.
The criteria for the grant of a subclass 573 visa are set out in part 573 of sch.2 to the Regulations. The issue before the Tribunal was whether the applicant met the criterion in cl.573.235. That criterion requires that:
“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.”
Whether the applicant has complied substantially with the visa condition is a question of fact to be determined having regard to the particular circumstances of the case. However there are some conditions to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. The Full Court of the Federal Court of Australia in Jayasekara v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 held by majority that the requirement of a certificate in the academic result component of condition 8202(3) as it stood when considered in that case was one such condition.
In the applicant’s case, a delegate found that the applicant did not satisfy cl.573.235 because he had not complied substantially with condition 8202 of his subclass 573, Higher Education Sector visa. The version of condition 8202 which applied to the applicant’s last substantive visa was not in the same form as condition 8202(3) as considered in Jayasekara v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 but nevertheless, the Tribunal considered that the reasoning of the majority in that case applied equally to condition 8202(3) as amended, that is, that the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either it is satisfied or it is not. It was the certification by Monash University which created the breach of condition however.
The Tribunal asked the applicant on what basis he believed the refusal decision of the delegate should be reviewed. The applicant referred the Tribunal to the recent academic transcript he provided from Melbourne Institute of Technology which was dated 21 February 2011 which, he said, showed that subsequent to being reported by Monash University, he had academically performed well and complied with condition 8202 whilst at Melbourne Institute of Technology.
The Tribunal was not satisfied that the applicant had complied substantially with condition 8202 of his subclass 573, Higher Education Sector visa. The Tribunal said at 33 and 34 of its reasons,
“33. On 26 May 2010 the applicant’s education provider, Monash University, notified the department via PRISMS (Provider Registration and International Student Management System) and sent the applicant a notice pursuant to Section 20 of the Education Services for Overseas Students Act 2000 certifying the applicant is not achieving satisfactory course progress for Section 19 of the Education Services for Overseas Students Act 2000 and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National code 2007) in his Bachelors of Business and Commerce course.
34. The Tribunal therefore finds that the applicant’s education provider has certified the applicant as not achieving satisfactory course progress a (sic) for the purposes of Condition 8202(3)(a). As noted above, based on the reasoning of the majority in Jayasekara the Tribunal considers that this aspect of condition 8202 is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. As there is a relevant certificate before the Tribunal from the education provider for the purposes of Condition 8202(3) the Tribunal finds that there is no compliance with Condition 8202(3), let alone substantial compliance.”
I am satisfied there is no substantive merit to the applicant’s application and accordingly do not exercise my discretion to allow the filing of the application out of time.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 25 November 2011