Chan v Minister for Immigration
[2005] FMCA 1393
•31 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAN v MINISTER FOR IMMIGRATION | [2005] FMCA 1393 |
| MIGRATION – Review of decision of MRT – where the applicant was the holder of a subclass 573 student visa – where the applicant was alleged to be in breach of a condition of the visa – where the Tribunal failed to provide the applicant with a letter inviting him to comment upon information that led to the cancellation of his visa pursuant to s.359A of the Migration Act – whether the information formed a part of the Tribunal’s reasons – whether the failure to comply with s.359A resulted in granting the applicant a loss of opportunity to draw the attention of the Tribunal to relevant information. |
| Migration Act 1958, s.359A Education Services for Overseas Students Act 2000, s.20 Federal Magistrates Court Rules 2001 |
| SAAP v Minister for Immigration (2005) 215 ALR 162 VAF v Minister for Immigration [2004] FCAFC 123 TIAN v Minister for Immigration [2004] FCAFC 238 |
| Applicant: | CHONG WAI CHAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2257 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 31 August 2005 |
| Date of Last Submission: | 31 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
THE COURT DECLARES
That the decision of the Migration Review Tribunal made on 29 September 2003 is invalid and of no effect.
THE COURT ORDERS
The application be referred back to the Tribunal differently constituted to be heard and determined in accordance with law.
Respondent to pay the applicant’s costs assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2257 of 2003
| CHONG WAI CHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This application raises a discrete point about the application of s.359A of the Migration Act 1958 (the “Act”).
Mr Chan was the holder of a student visa, subclass 573 subject to condition 8202. He attended a course run by Insearch, a branch of the University of Technology Sydney. On 13 November 2002 he was issued with a notice from Insearch pursuant to s.20 of the Education Services for Overseas Students Act 2000 informing him he was in breach of a condition of his visa and that if he failed to attend the office of the Department within 28 days his visa would automatically be cancelled. Although he did not attend within the 28 days his visa was not cancelled. He did attend on 1st February 2003. When the matter came before the delegate Insearch provided information indicating that his attendance for semesters one and two of 2002 was 18% and 15% respectively. Further, his academic progress for both semesters was unsatisfactory and he had not presented any medical certificates.
On 3 March 2003 a decision was made to cancel Mr Chan's subclass 573 visa for a breach of condition 8202.Mr Chan lodged an application for review of the decision of the delegate with the Migration Review Tribunal. On 11 April 2003 the Tribunal wrote to him pursuant to s.359A of the Act inviting him to comment on the following information:
“Advice received from Insearch that indicates that your attendance for semesters one and two of 2002 was 18 per cent and 15 per cent respectively. Further, Insearch considers that your academic progress for those semesters was unsatisfactory.”
The applicant provided a considerable amount of additional information to the Tribunal of a medical nature. In particular he provided the Tribunal with a certificate from Dr Lau indicating that the doctor had examined Mr Chan on 15 July 2002 and declared him unfit for college from July 2002 to September 2002 inclusive. A copy of that certificate is found at [CB 73].
After the hearing the Tribunal wrote a letter to Insearch. This letter is found at [CB 71]. It is a fax as follows:
“The above named student is currently seeking a review of the decision to cancel his student visa. On 6 February 2003 you wrote a letter (copy enclosed) describing the student’s academic counselling history at Insearch and mentioned documentary evidence received from various doctors he had consulted.
I have enclosed a further medical certificate submitted by the student which you may or may not have on his file. Taking all of the student’s medical history into account could you please certify whether or not the student made satisfactory academic progress for semesters 1 and 2, 2002.”
That letter was responded to by Insearch on 18 August 2003 in a facsimile found at [CB 75].
“[Mr Chan's] transcript currently shows a weighted average mark (WAM) of 2.0 across both semester 1 2002 and semester2 2002 and it shows all fails.
It was agreed, though, that he would not suffer academic penalty from his enrolment in semester 1 2002 (see attached letter from Registrar dated 3 July 2003). Insearch is currently investigating why his transcript shows fails in semester 1 2002.
The medical documentation in his Insearch file refers to dates in October, November and December 2001 (during the period of his pre-requisite ELICOS study; and March, April, May, June 2002 during the first semester of his academic program).
However, there was not adequate documentation submitted to Insearch for semester 2 2002 (June to October 2002) and there is no record in his Insearch file of the medical certificate attached to this request. We do have on record, though, a "fit to resume" studies certificate dated 1 July 2002 (see attached).
Therefore, as a result of [Mr Chan's] failing all subjects in semester 2 2002 while having submitted "a fit to resume studies" certificate; and counselling being unable to contact him to pursue the matter; Insearch would not consider his semester 2 2002 academic progress to be satisfactory.”
Upon the basis of this letter the Tribunal determined as follows at [CB 96]:
“The Tribunal forwarded the review applicants medical certificates and asked them to reconsider the review applicants academic progress in the light of the medical certificates. After consideration of the medical certificates, Insearch can certify that the review applicant’s academic progress for semester 2 of 2002 was not satisfactory. The Tribunal finds on the evidence before it that the review applicant’s education provider has certified that the review applicant’s academic progress for semester 2 for 2002 was not satisfactory. Without a certification from Insearch that the review applicant has made satisfactory progress for each term or semester of his course, during the period of the visa, the Tribunal has no choice but to find that the review applicant has not complied with condition 8202 of his visa.”
The applicant argues that the Tribunal failed to provide him with a s.359A letter in relation to the information provided by Insearch in its letter of 18 August 2003 and that this was a mandatory requirement, SAAP v Minister for Immigration (2005) 215 ALR 162. The applicant argues that this is the reason or part of the reason for the Tribunal coming to the conclusion that it did. I can say immediately that I consider that the information in the Insearch letter was a reason or part of the part of the reason for the Tribunal coming to its conclusion.
I fully accept that the conclusion that the Tribunal came to was that the applicant had breached condition 8202 and that was the reason why the Tribunal affirmed the decision under review. But as the Full Bench of the Federal Court made clear in VAF v Minister for Immigration [2004] FCAFC 123 at [31]:There needs to be "some unbundling" of that reason for s. 424A purposes….
Mr Reilly argues that the letter sent to the applicant on 11 April 2003 [CB 38] is sufficient a notice under s.359A and because the point is the same no further notice was required. I cannot accept this. The letter of 11 August seeks a new consideration by the education provider of the satisfactoriness or otherwise of the applicant’s progress on the basis of certain further information. The response received from the education provider is a different response to that received from the original 359A notice because it appears to be taking out of the equation the first semester. It then considers matters in relation to the second semester but there is no indication on the face of the document that it has considered the very important medical certificate provided by Dr Lau of 15 July 2002.
The education provider gives its opinion about the applicants academic progress on the basis of a document entitled "fit to resume studies certificate” when that certificate itself was post dated by Dr Lau's further report. It is not for me to make any comment whatsoever about this certification process. I have to look to see whether or not the information in the letter from Insearch and in the letter from the Tribunal was a reason for the Tribunal coming to the conclusion that it did and I have so found. It seems to me that if the applicant had had the advantage of seeing a copy of these letters then the applicant could have taken up with Insearch its failure to deal with Dr Lau's final certificate which might well place him in the same position for semester two of 2002 as he was placed in for semester one. Whether or not that would have occurred I do not know, but he would have had that opportunity. It is the failure to have that opportunity that to my mind takes this case out of the realms of TIAN v Minister for Immigration [2004] FCAFC 238 where Mr Reilly relies upon paragraphs 55, 66 and 73.
For these reasons I believe that the Tribunal did fall into jurisdictional error of the type adumbrated by the High Court in SAAP and I therefore find that the decision of the Migration Review Tribunal made on 29 September 2003 and handed down upon the same date is invalid and of no effect. I order that the matter be remitted to the Tribunal differently constituted to be heard and determined according to law. If necessary I shall provide the Constitutional writs. I order that the respondent pay the applicants costs which I assess in the sum of $4,000 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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