Chan v Minister for Immigration - [2007] FMCA 363

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 363

MIGRATION – Review of decision of Migration Review Tribunal – whether the applicant complied with condition 8202 of her student visa – whether the decision of the Migration Review Tribunal is affected by jurisdictional error.

Education Services for Overseas Students Act 2000 (Cth), s.20
Federal Magistrates Court Rules 2001 sch.1 pt.1
Judicial Act1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116; 116(3); 359A; 474; pt.8 div.2
Migration Regulations 1994, reg.2.43

Applicant:

HOI YING CHAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG3058 of 2005

Judgment of:

Emmett FM

Hearing date:

8 March 2007

Date of last submission:

8 March 2007

Delivered at:

Sydney

Delivered on:

8 March 2007

REPRESENTATION

Applicant appearing on her own behalf

Counsel for the Respondent:

Ms K. C. Morgan

Solicitors for the Respondent:

Ms B. Griffin, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3058 of 2005

HOI YING CHAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 16 September 2005.
The applicant arrived in Australia on 7 October 2001 as the holder of a Subclass 572 (Vocation, Education and Training Sector) Visa, that visa being valid until 9 November 2003.
On 19 March 2003, the applicant was granted a Subclass 573 (Higher Education Sector) Visa valid until 21 March 2005. This visa was granted to the applicant on the basis of her enrolment in a bachelor of commerce course at Macquarie University.
The applicant's Subclass 573 Visa was subject to condition 8202. Relevantly, condition 8202(3)(b) required the applicant to achieve an academic result that is certified by the education provider to be at least satisfactory. There is no issue that Macquarie University is other than an education provider for the purposes of that condition.
Section 116 of the Act provides that the Minister must cancel a visa if there exists prescribed circumstances in which a visa must be cancelled. Regulation 2.43 of the Migration Regulations 1994 identifies a prescribed circumstance, for the purposes of s.116(3) of the Act, as compliance with condition 8202.
On 9 February 2005, Macquarie University, being the applicant's education provider, gave her a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) informing her that she had breached a condition of her student visa relating to satisfactory academic performance in her course. The letter provided particulars of that breach and directed the applicant to attend the offices of then Department of Immigration Multicultural & Indigenous Affairs (“the Department”) for an interview.
On 7 March 2005, the applicant attended an office of the Department and was given a notice of intention to consider cancellation of her visa for breach of condition 8202.
On 8 March 2005, the Department wrote by facsimile to Macquarie University requesting that the university specify whether or not the applicant had achieved an academic result considered to be at least satisfactory for each term of her course.
On 9 March 2005, Macquarie University by facsimile responded to the Department's request, indicating that for the year 2003 the applicant was on probation and that for the year 2004, whilst on probation, she failed. The facsimile also attached a copy of the applicant's academic transcript and letters from Macquarie University to the applicant informing her of her failure to achieve satisfactory academic progress.
On 21 March 2005, the Department cancelled the applicant's student visa by reason of the non-compliance by the applicant with condition 8202 of her visa.
On 30 March 2005, the applicant lodged an application for review of the Department's decision by the Tribunal.
On 22 April 2005, the Tribunal wrote to the applicant, purportedly pursuant to s.359A of the Act, inviting the applicant to comment in writing on the following information:
“Departmental information indicates that on 9 February 2005, you were reported by Macquarie University to the Department for failing to maintain academic results that are deemed to be at least satisfactory. A copy of your academic transcript provided by the University to the Department indicates that you failed 3 out of 4 subjects in semester 2, 2003; failed 3 out of 4 subjects in semester 1, 2004 and failed 4 out of 4 subjects in semester 2, 2004.”
The letter went on to inform the applicant that the information was relevant to its review because of the requirement in the applicant's visa for compliance by the applicant with condition 8202 of her visa. The letter informed the applicant that condition 8202 required the applicant to achieve academic results that are deemed to be at least satisfactory by the applicant's education provider in each term or semester of her course and that failure to comply with condition 8202 could lead to mandatory cancellation of her visa.
The applicant responded to that letter in a letter dated 5 May 2005, in which she explained personal difficulties she had during relevant periods.
On 2 June 2005, the Tribunal invited the applicant to come to a hearing at a specified time, date and place and requested the applicant to complete a response to hearing form. That form was duly completed by the applicant and returned to the Tribunal indicating that the applicant did indeed wish to attend the hearing. The applicant attended a hearing on 15 August 2005 and was provided at that time by the Tribunal with a letter, addressed to Macquarie University, asking the University to reconsider the certification of the applicant's academic progress based on any medical or other supplementary evidence that the applicant wished the University to consider.
The Tribunal noted that Macquarie University faxed its response to the Tribunal on 25 August 2005. The Tribunal noted the response from Macquarie University that the applicant had not maintained satisfactory academic progress during semester 2 of 2003 and semester 1 of 2004 and semester 2 of 2004.
After noting the relevant legislative scheme and visa condition, the Tribunal, inter alia, noted that on 22 April 2005 it had written to the applicant in accordance with s.359A of the Act inviting her to comment in writing on the information received by the Tribunal from Macquarie University indicating that the applicant had not maintained satisfactory academic performance and that as such she had failed to meet condition 8202 of her visa. The Tribunal noted the applicant's response.
The Tribunal then went on to record the documentary evidence before it indicating that the applicant had failed three out of four subjects in semester 2 for 2003, three out of four subjects in semester 2004 and four out of four subjects in semester 2 for 2004.
The Tribunal also noted the letters from Macquarie University sent to the applicant informing and warning her about her poor academic performance.
The Tribunal stated that once non-compliance with condition 8202 is established the Tribunal is bound by the operation of s.116(3) of the Act to affirm the visa cancellation.
The Tribunal stated that the issue for review is therefore whether there is a breach of condition 8202.
The Tribunal referred to the hearing, held on 15 August 2005, at which time the Tribunal noted that it informed the applicant that, in circumstances where Macquarie University was unable to certify that her academic progress was satisfactory, non-compliance with condition 8202 would be established and cancellation mandatory. The Tribunal noted that it gave the applicant a letter addressed to Macquarie University asking them to reconsider certification of her academic progress, as referred to above in these reasons. The Tribunal then noted, as referred to above in these reasons, Macquarie University's response which did not result in certification that the applicant's academic performance was at least satisfactory.
The Tribunal concluded that, in the circumstances, the Tribunal had no other option other than to affirm the decision of the Department on the basis that the applicant had not been able to provide certification of satisfactory academic progress in accordance with condition 8202 of her visa.
In its role as a model litigant, the first respondent raised question of whether the Tribunal failed to comply with s.359A of the Act in failing to give to the applicant the Tribunal’s letter addressed to Macquarie University, where that may be information that may be part of the reason for affirming the decision under review requiring the Tribunal to invite the applicant to comment upon it. However, the first respondent submits that the reason, and the only reason, for the Tribunal affirming the decision under review is the non-compliance by the applicant with condition 8202 of the visa.
A fair reading of the Tribunal's decision makes it clear that the Tribunal understood that, as at 15 August 2005, the applicant did not have certification of satisfactory academic performance and therefore was in breach of condition 8202 of her visa. The Tribunal noted that, in those circumstances, it had no other option other than to affirm the decision of the Department to cancel the applicant's visa. There is no information arising from the conduct of the Tribunal in giving the applicant a letter on 15 August 2005 addressed to her education provider, Macquarie University, asking it to reconsider certification, nor was there any information arising out of the response by Macquarie University that formed any part of the Tribunal's reason for affirming the decision under review. It was for the applicant to provide that certification to the Tribunal. The applicant was unable to do so.
Section 116(3) of the Act mandates that, in those circumstances, cancellation of the applicant's visa must occur by reason of the applicant's failure to comply with condition 8202 of her visa, being a prescribed circumstance of her visa.
The applicant was unrepresented before the Court this afternoon, although had the assistance of an interpreter. The only application before the Court is the initiating application, filed by the applicant on 20 October 2005 which specified the following claim for relief:
“Before I have went to the Migration Review Tribunal To (sic) ask for a review of the visa being cancelled. However, the decision is they have to cancel my Student visa. I have reasons of not doing well with my studies. I have problem of my emotion and the pregnancy of determination make me depressed.”
Plainly, there is nothing in that claim that is capable of establishing jurisdictional error on the part of the Tribunal. The Tribunal otherwise has complied with the statutory regime required in the conduct of its review and the making of its decision. The finding by the Tribunal that the applicant had not maintained satisfactory academic progress was open to the Tribunal on the evidence and material before it and for which it gave reasons.
The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.
The first respondent seeks costs fixed in the amount of $5000. The application is made pursuant to sch.1 pt.1 of the Federal Magistrates Court Rules 2001. I note that such sum is less than the maximum provided under that part. I also note that Counsel was briefed in the matter and it was entirely reasonable that Counsel be briefed and reasonable costs of Counsel incurred. In the circumstances, I am satisfied that the costs sought are reasonable and I order the applicant to pay the costs of the first respondent fixed in an amount of $5000.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 30 March 2007