Chen v Minister for Immigration

Case •

[2007] FMCA 191

•

14 February 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 191
MIGRATION – Student visa – temporary TU class – condition 8202 – certified academic result – no discretion.
Migration Act 1958, ss.137J, 116(1), 116(3), 359A, 368A
Migration Regulations 2.43(2)(b), Schedule 8 – Condition 8202
Education Services for Overseas Students Act 2000, s.20
Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495
Applicant: ZI CHEN
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 659 of 2006
Judgment of: Nicholls FM
Hearing date: 14 February 2007
Date of Last Submission: 12 February 2007
Delivered at: Sydney
Delivered on: 14 February 2007

REPRESENTATION

Counsel for the Applicant: N/A
Solicitors for the Applicant: N/A
Solicitor for the Respondents: Ms.J.Pownall
Solicitors for the Respondents: Australian Government Solicitors

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

  2. The application to the Court is dismissed.

  3. The applicant to pay the first respondent’s costs set in the amount of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG659 of 2006

ZI CHEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed in this Court on 2 March 2006 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 6 February 2006 to affirm the decision of a delegate of the respondent Minister made on 27 September 2005 to cancel the applicant’s Subclass 573 visa ((Temporary)(Class TU) Student Visa). The Tribunal is joined as the second respondent in these proceedings.

Background

  1. The background to this case is that the applicant (Mr. Zi Chen) is a national of the People's Republic of China who arrived in Australia on 14 January 2005 with a student visa (See Court Book (“CB”) at 3). Attached to this visa was a condition that the visa holder meet course requirements. Relevantly, this required the applicant to be enrolled in a registered (education related) course (Condition 8202(2)(a)), and to attend for at least 80% of the contact hours scheduled for each term or semester of the course (Condition 8202(3)(a)(ii)), and achieve an academic result that was certified by the education provider to be “at least satisfactory” for each term or semester of the course (Condition 8202(3)(b)(ii)).

  2. It appears, and it is not a matter in dispute between the parties, that this visa was granted in relation to the applicant's enrolment at Wollongong University. On 4 August 2005 the applicant was sent a notice from the Wollongong University pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) informing him that he had not complied with a condition attached to his visa, relating to a failure to achieve satisfactory academic results, and that if he failed to attend an office of the first respondent’s Department within 28 days then his visa would cease, (being “automatically cancelled”) pursuant to s.137J of the Migration Act 1958 (“the Act”) (CB 1 to CB 2).

  3. On 30 August 2005 the applicant attended at the first respondent's Department and was issued with a Notice of Intention to Consider Cancellation (NOITC) of his visa (CB 3 to CB 4). The relevant possible grounds for cancellation were notified as:

    “Breach 8202 – Code 10

    Uni of Wollongong (UoW) has determined that in the semester running from 21/02/2005 to 17/06/2005, your academic results were not satisfactory. This is because you failed 3 subjects out of 3 subjects you were enrolled in.”

    The notice advised the applicant that his visa may be cancelled pursuant to ss.116(1)(b) and 116(3) of the Act, and Regulation 2.43(2)(b) of the Regulations with reference, relevantly, to Condition 8202 attaching to his visa.

  4. Section 116(1)(b) states:

    “116 (1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    …

    (b)     its holder has not complied with a condition of the visa.

    …

    (3)     If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”

    These circumstances were prescribed by Regulation 2.43(2)(b) which relevantly read (at that time, that is, when the matter was before the first respondent’s Department):

    “(2)   For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

    …

    (b)     in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:

    …

    (ii)     condition 8202.”

  5. Condition 8202 of Schedule 8 to the Migration Regulations 1994 (“the Regulations”) states:

    8202

    “8202

    (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 an 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:

    (a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

    (i) for a course that runs for less than a semester – for the course; or

    (ii) for a course that runs for at least a semester – for each term and semester of the course; and

    (b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

    (i) for a course that runs for less than a semester – for the course; or

    (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.

    (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.”

  6. Advice provided to the first respondent’s Department originating initially from the education provider, dated 4 August 2005 (CB 8) showed that in relation to the semester dated from 21 February 2005 to 17 June 2005, the applicant ceased studies in a Bachelor of Arts (Faculty of Health Sciences) for the reason that he ‘Failed to Meet Course Requirements’, having failed 3 subjects out of the 3 subjects he was enrolled in. Further:

    “The student has been excluded from the University of Wollongong for 1 year as they failed to meet the requirements of the University’s Minimum Rate of Progress Policy. After the student was given a warning in regards to their academic progress, they were required to pass 50% of their subjects for Autumn Session 2005. As they did not do this, they have been excluded from the University for 1 year and will need to formally reapply for admission to the Universitty no earlier than for Spring Session 2005 if they wish to return to studies. The appeal period for this exclusion has now expired and this student’s exclusion has been finalised.” (CB 7 to CB 8)

  7. The Minister’s delegate’s decision record is set out at CB 9 to 11. It reveals that the delegate’s decision made on 27 September 2005 to cancel the applicant’s visa turned on what the delegate noted, and considered to be the applicant’s unsatisfactory academic performance. The delegate’s reasons are reproduced at CB 11:

    “As your education provider the University of Wollongong has determined that in the semester running from 21/2/05 – 17/6/05 your academic results were not satisfactory. This is a breach of condition 8202 and therefore your visa must be cancelled.”

  8. Notification of the decision to cancel the applicant’s visa under s.116(1)(b) and Regulation 2.43(2)(b) (in this case the applicant’s breach of condition 8202) was given in writing and acknowledged by the applicant (see signature at CB 15) on 27 September 2005.

  9. The applicant, assisted by a migration agent, lodged an application for review to the Tribunal on 5 October 2005 enclosing a number of documents in support of the application. These are reproduced at CB 17 to CB 26. The Tribunal acknowledged receipt of the application in writing on 6 October 2005, and informed the applicant:

    “…You should provide any documents or written arguments you wish the Tribunal to consider.”

    In response to this, the applicant lodged a number of additional documents which are reproduced at CB 33 to CB 37.

  10. On 2 November 2005 the Tribunal, pursuant to s.359A of the Act, provided the applicant with information relevant to the review (CB 68 to 69) and invited the applicant to comment in writing on:

    “A copy of correspondence from the University of Wollongong that states that you were required to pass, but did not pass 50% of your subjects for Autumn Session 2005.” (CB 69)

    This was relevant to the Tribunal’s consideration of whether the applicant had breached Condition 8202 of his student visa. The Tribunal informed the applicant that a breach of Condition 8202 would result in a mandatory cancellation of the applicant’s visa (CB 69). Pursuant to s359(2) , the Tribunal invited the Applicant to provide:

    “Evidence that the University of Wollongong has found your academic result to be at least satisfactory for Autumn Session 2005” (CB 69).

  11. The applicant’s migration agent responded on 16 November 2005, in writing, and submitted a number of documents, including a statutory declaration made by the applicant, a “true” copy of the applicant’s current “Certificate of Attendance”, and results at Sydney International College of Business, and a statutory declaration of the applicant’s uncle (reproduced at CB 73 to 82).

  12. On 23 November 2005 the Tribunal invited the applicant in writing to appear before it on 13 January 2005 (CB 83 to CB 84). The applicant returned the “Request for Hearing” form to the Tribunal on
    29 November 2005. The Tribunal’s account of what occurred at the hearing is reproduced at CB 103. On 18 January 2006, the Tribunal invited the applicant to the handing down of its decision pursuant to s.368A (CB 87 to CB 88). In response the applicant’s migration agent submitted further documents on 27 January 2006 (CB 89 to CB 95). The Tribunal noted submission of the documents, and confirmed the handing down of the decision on 6 February 2006 (CB 96).

  13. The Tribunal had before it a range of evidence which it set out in its decision record at CB 102 to CB 104. The Tribunal found that:

    1)The Minister's delegate made a decision to cancel the applicant's visa pursuant to ss.116(1)(b) and 116(3) of the Act and Regulation 2.43(2)(b) because of the finding that the applicant had not complied with Condition 8202 of his visa in relation to academic progress (CB 103.8).

    2)The issue it needed to consider was whether, at the time of cancellation of the visa, it was possible to make a decision concerning non-compliance with Condition 8202 (CB 104.1).

    3)The University of Wollongong advised that the applicant’s academic result had been unsatisfactory in the period of: “Autumn Session, 2005”. The applicant had not submitted any evidence that would suggest that the University of Wollongong had certified the applicant’s results to be “at least satisfactory” (CB 104.2).

    4)The Minister’s delegate relied on this information to find that the applicant lacked satisfactory academic results as required by Condition 8202.  Accordingly, there was no evidence before the Tribunal that the University of Wollongong certified the applicant’s results to be at least satisfactory, and the Tribunal was satisfied the applicant had not complied with Condition 8202 of his student visa.

    5)It considered the explanations put forward by the applicant. In particular it had some sympathies with the review applicant’s argument that the circumstances were beyond his control due to the illness of his mother (CB 104.4).

    In spite of the above, the Tribunal found it had no discretion, since it was satisfied the applicant had breached a condition of the visa, and cancellation was mandatory in accordance with s.116(3). The Tribunal therefore affirmed the decision to cancel the applicant’s Student (Temporary) (Class TU) visa.

  14. The application to this Court, filed on 2 March 2006 relies on two grounds:

    (1) “The Second Respondent erroneously applied the repealed paragraph 2.43(2)(b) Migration Regulations 1994 at the time of its hearing and decision

    (2) The Second Respondent ought to have, but failed to apply paragraph 2.43(2)(b) Migration Regulations 1994 as in force at the time of its hearing and decision.”

  15. This application was filed with the assistance of solicitors. On
    22 January 2007, a Notice of Acting in person was filed by the applicant advising it that the solicitors no longer acted for him in his matter. At the hearing before the Court the respondent was represented by Ms. J. Pownall. The applicant appeared on his behalf without the aid of an interpreter.

  16. The applicant’s visa was cancelled pursuant to s.116(3) of the Act on 27 September 2005 (“the cancellation date”) on the grounds that the Minister’s delegate was not satisfied the applicant had complied with a condition attaching to his visa.

  17. The Tribunal noted that at the cancellation date the version of Regulation 2.43(2) that was in force provided the prescribed circumstances where the Minister must cancel the visa in the case of a Student (Temporary) (Class TU) visa pursuant to s.116(3). Under Regulation 2.43(2), the Minister must cancel the visa where the visa holder has not complied with Condition 8202 (CB 100.10 to CB 101.6).

  18. The application to the Court contends that the Tribunal applied Regulation 2.43(2) as it was at the time of cancellation and failed to apply Regulation 2.43(2) of the Regulations as it was in force at the time of the Tribunal’s hearing and decision (6 February 2006). The contention is that this was an error on the Tribunal’s part which grounded the application for review by this Court.

  19. By the time of the Tribunal’s hearing and decision, Regulation 2.43(2) had been amended to include a requirement that the relevant decision maker be satisfied that in addition to the failure to comply with Condition 8202 (Regulation 2.43(2)(b)(ii)(A)), the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. (Regulation 2.43(2)(b)(ii)(B)). Relevantly, the Regulation as it was at the time of the Tribunal’s decision was:

    “Grounds for cancellation of visa (Act, s.116)

    (2) For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:

    …

    (ii) that the Minister is satisfied that:

    (A) the visa holder has not complied with condition 8202; and

    (B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

  20. The Minister submits that the relevant statutory scheme was amended by Schedule 5 of the Migration Amendment Regulations (2005) (No.8). Further, that these amendments commenced on 8 October 2005. This applied to “all Student (Temporary)(Class TU) visas in force on or after the day on which Schedule 5 commences” (See Clause 7 of Select Legislative Instrument (“SLI”) 2005 No. 221):

    Clause 7 of SLI 2005 No. 221 provides:

    “7         Transitional – Schedule 5

    The amendment made by Schedule 5 applies in relation to all Student (Temporary)(Class TU) visas in force on or after the day on which Schedule 5 commences, whether or not a breach of condition 8202 occurred before the day on which Schedule 5 commences.”

  21. I agree with the Minister’s submission that as the applicant’s visa had been cancelled on 27 September 2005, it was not in force at the time the amendment became operational, that is, 8 October 2005. The relevant amendment therefore (which would have required the decision maker, delegate or Tribunal, to have considered not only whether there was a certification of at least satisfactory academic progress, but also whether the failure to achieve such progress was due to exceptional circumstances beyond the applicant’s control) could only apply to the cancellation of student visas that were in force “on or after” the day on which the amendment became operational. The Tribunal was correct therefore in applying the “earlier” version of Regulation 2.43 in the applicant’s circumstances.

  22. Pursuant to s.116(1) a visa may be cancelled if the visa holder has not complied with a condition of the visa. Pursuant to s.116(3) the visa must be cancelled if prescribed circumstances exist. Such circumstances were (and are) prescribed in Regulation 2.43.

  23. At the hearing before the Court the applicant:

    (1)Stated he could not study due to his mother’s illness.

    (2)Acknowledged the Tribunal was “correct at law”.

    (3)But requested that he be given another chance. .

  24. Regulation 2.43(2), as it was prior to 8 October 2005 (given that the applicant’s visa was not in force after 27 September 2005), provided that a student visa must be cancelled if the Minister is satisfied that the visa holder has not complied with Condition 8202. In this case, Condition 8202 required the Minister to be satisfied that the applicant achieved an academic result certified by the education provider to be at least satisfactory for each term or semester (whichever was shorter) of the course (Condition 8202 (3)(b)(ii) (CB 102.1)).

  25. In these circumstances therefore, s.116(3) leaves no discretion to the Minister or to the Tribunal, once he, or subsequently the Tribunal was satisfied that the holder had not achieved an academic result that was certified by the education provider “as at least satisfactory” (Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495).

  26. The Tribunal’s decision was open to it on what was before it. The evidence was that there was no relevant certification that the applicant had the academic performance for the relevant period that was “at least satisfactory”. The applicant’s stated complaint that the Tribunal should have taken into account that the applicant’s unsatisfactory academic performance was due to circumstances beyond his control is not made out as the amendment to the legislative scheme requiring such consideration by the Tribunal did not apply to the applicant’s circumstances. The Tribunal plainly had some sympathy for the applicant’s circumstances. However, as the “law stood” it had no discretion to act otherwise once it was satisfied that there was no certification as to the applicant’s academic progress being “at least satisfactory”. Nor can I otherwise see jurisdictional error in the Tribunal’s decision. The application to the Court is therefore dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date:  8 March 2007

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Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495