Cao v Minister for Immigration
[2007] FMCA 14
•2 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 14 |
| MIGRATION – Unsatisfactory academic progress – cancellation of student visa – exceptional circumstances exist – cancellation pursuant to s.116 (1)(b) and (3) of Migration Act 1958 – provision for cancellation mandatory at the time – application for review dismissed. |
| Migration Regulations 1954 Migration Act1958 Education Services for Overseas Students Act 2000 Migration Legislation Amendment (Overseas Student) Act 2000 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 William Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552 Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 514 Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 Tian v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 238 Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1826 Morsed v Minister for Immigration for Multicultural & Indigenous Affairs [2005] FCAFC 193 |
| Applicant: | XINYE CAO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 943 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 16 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Scriva |
| Solicitors for the Applicant: | Isaac Brott & Co |
| Counsel for the Respondents: | Ms S. Moore |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Migration Review Tribunal is joined as Second Respondent.
The First Respondent’s name is amended to read “Minister for Immigration and Citizenship”.
The application for review filed on 3 August 2005 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 943 of 2005
| XINYE CAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 3 August 2005, the applicant seeks a review of a decision of the Migration Review Tribunal (the Tribunal) made on 6 July 2005, which affirmed an earlier determination of the delegate of the first respondent to cancel the applicant’s student temporary (Class TU) visa.
The application was filed by the applicant without assistance from a legally trained person and was deficient in setting out the applicant’s grounds for review and orders sought. Despite procedural orders requiring an amended application setting out those grounds, particulars and remedies sought, the applicant failed to do so, notwithstanding the fact that she later employed lawyers on her behalf.
Nonetheless, it is fair to say that the applicant’s position was fully set out in amended contentions of fact and law filed by her lawyers on
16 May 2006.
At the time this matter came before the Court, an appeal was pending before the Full Court of the Federal Court of Australia on the issues raised in this application. The applicant’s contentions mirrored the same contentions of law and, in pertinent regards, the same facts as were the subject of the Full Court appeal. That Full Court appeal decision was handed down after the hearing before me concluded (see Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96).
BACKGROUND
The applicant is a Chinese citizen who arrived in Australia on or about 12 April 2002 on a student temporary visa (Class TU).
In 2002 and 2003, the applicant undertook secondary school studies at a college in Belgrave. In 2003 she obtained a tertiary entry score of 90 which allowed her to enrol in a Bachelor of Commerce at Monash University in 2004.
In March 2004 the applicant’s grandfather became ill. The family initially did not tell the applicant of her grandfather’s illness until he became too ill for them to shield it from her. The applicant claimed that in Chinese culture the grandfather is one of the most important members of a family and this, understandably, had a significant adverse affect upon the applicant. In May 2004, her grandfather was placed in intensive care after having suffered a stroke and he spent several months in hospital. She went back to China in June 2004 and saw her grandfather in hospital. The applicant claimed that this had a terrible affect upon her and her ability to study and concentrate on her course.
The applicant further claimed it was impossible to fully concentrate on her studies due to the cultural difficulties in adjusting to Australia and university life, which were compounded by her anxiety and stress in respect of her grandfather’s illness. She did not achieve the academic results that could have been expected of her based on her results from secondary school.
In February 2005 she was required to attend before the Academic Progress Committee of Monash University. The hearing was conducted by telephone despite the applicant’s request that it be adjourned to enable her to return to Australia and properly argue her case. The outcome of the Committee hearing was a decision to exclude her from her course. The basis for that exclusion was the fact that in the first year of her course she had failed all four subjects in the first semester and in the second semester passed only two out of four subjects. Her academic progress was assessed as being less than satisfactory.
Monash University served a s.20 notice on the applicant under the Education Services for Overseas Students Act 2000 (Overseas Students Act) and provided a copy, as required, to the first respondent.
In summary, that notice informed her that she should, within 28 days, meet with a compliance officer of the first respondent at 2 Lonsdale Street, Melbourne to show good reason for her apparent non-compliance with her visa conditions and that if she did not so report, her visa would be cancelled. In compliance with that direction, the applicant met with a compliance officer on 22 April 2005, on which date the first respondent’s delegate cancelled the visa pursuant to
s116 (1)(b) and (3) of the Migration Act 1958 (the Act) and regulation 2.43(2) of the Migration Regulations 1954 (the Regulations).
THE TRIBUNAL’S DECISION
The Tribunal found that the Act had been complied with in respect of the cancellation of the visa, noting that a notice had been given of the grounds on which cancellation was considered; that the visa holder was invited as required to show either the grounds do not exist or that there were reasons why the visa should not be cancelled; that the applicant was given an opportunity to respond and further that the visa was not cancelled before the applicant had been given a notice of cancellation that included information relevant to the cancellations. The proper procedure required by the Act had been followed.
The Tribunal then noted William Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552 wherein the Federal Court found that the procedure for cancelling visas under Subdivision E of the Act was mandatory and that the fact of the nexus between the grounds of cancellation and the information giving rise to the grounds for cancellation must be communicated to the visa holder.
However, the Tribunal found that the delegate had followed the procedure set out in Subdivision E of the Act and was not therefore able to conduct a review. The Tribunal had no alternative than to affirm the decision under review (See Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 514; Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 and Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238).
RELEVANT LEGISLATIVE AND REGULATORY PROVISIONS
A helpful and more detailed setting out of the legislative provisions that are relevant in this review can be found in Zhou at [2-12]. In summary, however, the following provisions are relevant:
i)The applicant’s visa was subject to condition 8202;
ii)Condition 8202 requires the applicant to maintain an academic standard that “is at least satisfactory”.
iii)Section 116 (3) of the Act provides that it is mandatory for the Minister to cancel a visa if prescribed circumstances require it.
iv)Section 118 of the Act provides that the power to cancel a visa under s116 is not limited or otherwise affected by other sections which provide for the cancellation of visas.
v)Section 116 and 118 appear in Subdivision D of Div 3 f Pt 2 of the Act. Subdivision E sets out the procedure for cancelling visas under Subdivision D.
vi)Section 119 provides for a notice of the proposed cancellation to be given to the visa holder and s.120 of the Act provides for certain information to be given to the visa holder.
vii)Regulation 2.43(2) of the Regulations provides that a circumstance in which the Minister must cancel, relevantly, in the case of a student (temporary) (ClassU) Visa, is where the Minister is satisfied that the visa holder has not complied with condition 8202.
viii)Also relevant in respect of this matter is the Overseas Student Act. In Pt 3 of that Act there are obligations imposed upon an education provider to serve a notice on a student visa holder, with a copy to be served on the first respondent, should the student visa holder not have attained a satisfactory academic performance, advising that student visa holder that, among other things, the visa will be cancelled within 28 days unless certain action is taken. A notice pursuant to s.20 of the Overseas Student Act is to be served;
ix)At the time of the enactment of the Overseas Student Act, complementary provisions were introduced into the Act by the Migration Legislation Amendment (Overseas Student) Act 2000. These appear in Subdivision GB of Div 3 of Pt 2 of the Act under the heading: “Automatic Cancellation of Student Visas”. Section 137J in that subdivision provides for the automatic cancellation of the visa at the end of the 28 day period.
x)Section 137K of the Act provides for an application to be made to the first respondent for revocation of a visa cancelled pursuant to s.137J. (It is to be noted that the applicant’s visa was cancelled under s.116(3) of the Act and not s. 137J).
xi)Section 137L of the Act provides that on application the first respondent may revoke the cancellation if, and only if, the applicant’s notified the Minister that the breach was due to exceptional circumstances beyond the visa holder’s control;
xii)Section 137B provides that should there be a revocation under s137L then the visa is taken never to have been cancelled under s137J.
THE APPLICANT’S CONTENTIONS
The applicant has modelled this review application upon the grounds that were found acceptable in almost identical circumstances by a Federal Magistrate in the first instance in the matter of Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1826. That Federal Magistrate extended the logic expressed as obiter in the Federal Court by the Full Court in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193. In summary, the applicant’s contention is that the Tribunal fell into jurisdictional error by denying her procedural fairness.
The applicant particularised her contentions as follows:
(a)that she acknowledged that a breach of the visa condition arose by way of a failure to make satisfactory academic progress;
(b)that the s. 20 notice issued to the applicant was defective as it did not comply with statutory requirements;
(c)that the s. 20 notice was misleading and prejudicial to the applicant's right to explain the breach of the visa condition with reference to exceptional circumstances;
(d)that the applicant had an explanation for the breach by reference to exceptional circumstances beyond her control, circumstances that raised compassionate grounds;
(e)that there was an inter-relationship between cancellation under s. 116 and the provisions under Subdivision GB of Div 3 of Pt 2, which afforded the applicant, as a matter of procedural fairness, the opportunity to have the cancellation revoked because of her exceptional circumstances; and
(f)that the explanation of the breach was accepted by the educational institution insofar as it had indicated that they would allow the applicant to re-enrol in a course.
In Zhou, the Full Court, comprising of Ryan, Nicholson and Lander JJ, found the reasoning of the Federal Magistrate to be in error. The Full Court considered in some detail the legislative framework applying, including any apparent inter-relationship between the Act and the Overseas Students Act. It noted that the Overseas Student Act came into effect after s.116 of the Act and it noted that should it have been a legislative intention to somehow limit or restrict the operation of s.116(3) for a process that allowed the revocation of a cancellation of visa under Subdivision D of Pt 3, then the legislature could have easily made that provision. The Full Court noted that the legislature has now made an amendment which became effective on 7 October 2005 that provides now in respect of s.116, a proviso that “non-compliance was not due to exceptional circumstances beyond the visa holder’s control”. Unfortunately, this amendment post-dates the applicant’s circumstances and she is not assisted by it. However, it goes to confirm the rationale of the Full Court in its finding that the Tribunal’s decision to affirm the cancellation under s.116 of the Act was correct, notwithstanding any alleged invalidity of the s.20 notice.
The Full Court found that there was no inter-relationship between the provisions of Subdivision GB and other powers of cancellation in the Act.
CONCLUSION
The Tribunal rightly found that the requisite procedure was followed in respect of the cancellation and that it was precluded from conducting its own review on the merits of the applicant’s exceptional circumstances. It further correctly found that the cancellation under s.116 of the Act was mandatory in the circumstances applying. The decision of the Tribunal sits squarely with the decision in Zhou.
It is evident that the decision in Zhou is a full answer to all the contentions put by the applicant in this case with the end result being that the application should be dismissed.
.I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Marlene Dixon
Date: 1 February 2007
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