Cheng v Minister for Immigration - [2006] FCA 1028

FEDERAL COURT OF AUSTRALIA
Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028
MIGRATION – student visa – unsatisfactory academic performance – breach of Condition 8202 – cancellation of visa under s 116 of Migration Act 1958 (Cth) – whether representations made in notice issued under s 20 of the Education Services for Overseas Students Act 2000 (Cth) gave rise to procedural unfairness
Migration Act 1958 (Cth) ss 116, 116(3), 119, 137J, 137J(2)
Education Services for Overseas Students Act 2000 (Cth) s 20
Migration Regulations 1994 (Cth) reg 2.43(2)
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60
Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96
Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558
Formosa v Secretary, Department of Social Security (1993) 46 FCR 117
Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193
MAN YEE CHENG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL
WAD 70 OF 2005
SIOPIS J
9 AUGUST 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 70 OF 2005

BETWEEN:

MAN YEE CHENG
Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

9 AUGUST 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1The Migration Review Tribunal be joined as a second respondent.
2The applicant’s application dated 31 March 2005 is dismissed.
3The applicant is to pay the first respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 70 OF 2005

BETWEEN:

MAN YEE CHENG
Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

SIOPIS J

DATE:

9 AUGUST 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicant is a British National (Overseas) who was born in Hong Kong on 11 August 1981. In 2003 the applicant enrolled in a Bachelor of Business degree at Edith Cowen University (‘ECU’). On 19 March 2003 the applicant was granted a student visa (‘visa’) which was due to expire on 15 March 2006.
The applicant’s visa was subject to Condition 8202 which in substance required the applicant to achieve an ‘academic result that is certified by the education provider to be at least satisfactory’ in respect of each semester. In the first semester, the applicant passed one subject, failed one subject and withdrew from another. Late in the first semester, the applicant discovered that she was pregnant, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 1028
Decision Date: 9 AUGUST 2006

CaseChat Overview and Summary

The case of Cheng v Minister for Immigration involved the applicant, Cheng, contesting the decision to cancel her student visa by the Minister for Immigration. The matter was heard in the Federal Court of Australia. Cheng contended that the Tribunal had failed to consider her personal circumstances and the potential breach of the university’s internal policies in making its decision. She further argued that the Tribunal should have exercised its discretion to review the university’s determination regarding her unsatisfactory academic performance.

The central legal issue before the Court was whether the Tribunal had the discretion to review the university's decision regarding the applicant's academic performance, as outlined in condition 8202(3)(b) of the Migration Regulations. The Court considered whether the Tribunal could substitute its own assessment of the applicant's academic performance for that of the education provider. The Court examined the statutory provisions, particularly section 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations, which prescribe the circumstances under which a visa must be cancelled.

The Court concluded that the statutory provisions did not confer any discretion upon the Tribunal to go behind the education provider’s certification or to substitute their own assessment of the applicant’s academic performance. The Court relied on established judicial authority, which held that the provider’s certification was exclusive and that the Tribunal's role was limited to determining whether the statutory grounds for cancellation existed. In this case, the Tribunal correctly found that the grounds for visa cancellation were met, and thus, the Tribunal did not have any discretion to review the university’s decision.

The Court dismissed the applicant’s application, affirming the Tribunal's decision. The Court also ordered that the applicant pay the first respondent's costs. The Migration Review Tribunal was joined as a second respondent, and the application was dismissed in its entirety.

Orders

Orders of the court

1 The Migration Review Tribunal be joined as a second respondent.

2 The applicant’s application dated 31 March 2005 is dismissed.

3 The applicant is to pay the first respondent’s costs.

Background

Background to the litigation

For the reasons which follow, the application is dismissed.Statutory background Section 20 of the Education Services forOverseas Students Act 2000 (Cth) (‘the ESOS Act’) provides:‘Sending students notice of visa breaches(1)A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.(2)The registered provider must send the notice as soon as practicable after the breach.(3)The notice must be in a form approved by the Secretary of the Immigration Minister's Department.(4)The notice must:a.contain particulars of the breach; andb.state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; andc.state that the student must present photographic identification when so attending; andd.set out the effect of sections 137J and 137K of that Act.Unincorporated registered providers(5)If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.’ Section 137J of the Act provides:‘Non‑complying students may have their visas automatically cancelled(1)This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).(2)The non‑citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:(a)the non‑citizen complies with the notice; or(b)the non‑citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:(i) in Australia; or(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.’ The general power to cancel visas is provided for in s 116 of the Act. Of particular relevance is s 116(3) which states:‘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.’ Regulation 2.43(2) of the Migration Regulations 1994 (Cth) (‘the Regulatons’) prescribes the following circumstances in which the Minister must cancel a visa:‘For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:(a)each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:(i)condition 8104 or 8105 (if the condition applies to the visa); or(ii) condition 8202’.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SIOPIS J

On 1 March 2005 the applicant attended a hearing of the Tribunal and gave evidence by video link. At the hearing the applicant explained that her studies had suffered as a result of her personal crisis. The applicant was represented at this hearing by an agent, who made submissions to the Tribunal to the effect that the decision‑makers at ECU had not taken the applicant’s personal circumstances into account in rejecting her appeals and may have breached ECU’s internal equity and disability policies. In its decision dated 9 March 2005 the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.The Tribunal’s Decision In its reasons for decision the Tribunal stated:‘With leave, the review applicant’s agent said that the appeal did not conform with the rules and policy of ECU, and that the official hearing the appeal was dismissive of the psychologist’s evidence and the comments of Faculty staff in relation to the gravity of the crisis faced by the review applicant in 2003, and may have breached the University’s equity and disability policy.’ The Tribunal said that ECU has certified in the s 20 Notice that the applicant has been excluded for a period of six months due to her unsatisfactory academic results in semesters 1 and 2 of 2003. The Tribunal went on to say that:‘The Tribunal notes the express wording of Condition 8202(3)(b) vests discretion to determine the satisfactoriness or otherwise of the review applicant’s academic results exclusively in the provider, and the Tribunal acknowledges strong judicial authority for the proposition that it confers no discretion upon immigration decision makers to go behind the education provider’s certification, or substitute their own assessment of the applicant’s academic performance for that of the provider.’ The Tribunal stated further:‘...the Tribunal finds that the review applicant breached condition 8202(3)(b), a condition attached to her subclass 573 visa, in semesters 1 and 2 of 2003.The Tribunal is therefore satisfied that grounds for cancellation of the review applicant’s visa exist. In light of this finding, subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations require that the review applicant’s visa must be cancelled. On the basis of the reasoning in Nguyen and Hou, the Tribunal does not have any discretion in this matter.’The application before the Court At the commencement of the hearing the applicant moved to amend the grounds of review in the application. Subject to the question of any costs thrown away, the first respondent did not oppose the amendment application. Accordingly, subject to the applicant paying any of the first respondent’s costs thrown away by the amendment, I allowed the amendment. The applicant also sought to tender evidence contained in three affidavits. These affidavits were an affidavit of Mr Christopher Gerald Narayanan dated 27 July 2005 and two affidavits of the applicant dated 27 July 2005 and 11 November 2005 respectively.

Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 70 OF 2005

BETWEEN:	MAN YEE CHENG Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:	SIOPIS J
DATE OF ORDER:	9 AUGUST 2006
WHERE MADE:	PERTH

JUDGE:	SIOPIS J
DATE:	9 AUGUST 2006
PLACE:	PERTH