Cui v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1014

FEDERAL COURT OF AUSTRALIA

Cui v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1014

COSTS – ordered against unsuccessful applicant’s solicitor.

MU CUI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N596 of 2002

MADGWICK J
31 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N596 of 2002

BETWEEN:	MU CUI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	31 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant’s solicitor pay the 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
NEW SOUTH WALES DISTRICT REGISTRY	N596 of 2002

BETWEEN:	MU CUI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	31 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised for transcript)

HIS HONOUR:

1. This is an application for review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Migration Review Tribunal (“the Tribunal”) dated 6 June 2002. The Tribunal affirmed a decision of a delegate of the respondent Minister to refuse to revoke the cancellation of the applicant's student visa. The applicant's student visa was cancelled by operation of s 137J of the Migration Act 1958 (Cth) (“the Act”). Section 137J provides that if a notice of a certain kind is sent to a non-citizen in relation to his or her visa then, even if the non-citizen never receives the notice, the visa is cancelled by force of that section 28 days after the date of the notice, unless in that time the non-citizen complies with the notice in person at an Australian departmental office or an approved overseas office and presents to an officer for the stated purpose of explaining the breach alleged in the notice.

2. In this case it appears that the applicant was not in Australia when the notice was sent to him and, according to him, he never received the notice.  Upon the applicant’s arrival back in Australia on 12 May 2002, he was interviewed by departmental officers at the airport and taken into immigration detention.  He then and there requested revocation of the cancellation of his visa, after it was made clear to him that what had caused the issue of the notice was his failure to attend his educational course to the requisite level.

3. Under subdivision GB of Division 3 of Part 2 of the Act, s 137J-137P, a student whose visa has been cancelled by operation of s 137 may apply for revocation of that cancellation: see s 137K(1). Further, pursuant to s 137L, the Minister may revoke the cancellation if and only if the applicant satisfies the Minister that he or she did not in fact breach the relevant visa condition or that the breach was due to exceptional circumstances beyond his or her control. The fact that the applicant was unaware of the notice or of the effects of s 137J is specifically excluded as a ground upon which the Minister might revoke the cancellation.

4. The burden of the Tribunal's concern was that the applicant's attendance rate at the institution, said to be an educational one, where he was studying, was said to be 73 per cent rather than the requisite 80 per cent under the visa conditions, and further that the applicant had failed, in the estimation of that institution, to achieve satisfactory academic progress.  Various submissions were made to the Tribunal by his solicitor.  Some were founded on a lack of appreciation of a change in the wording of the relevant visa conditions, but even somebody used to dealing with the intricacies of the legislation and delegated legislation might overlook such a change.

5. The essence, however, of the applicant's case was that the institution had miscalculated his attendance rate, supposedly basing it on monthly attendance rather than attendance during periods for which he was actually enrolled at the said institution, and that factors of his illness, his reluctance to resort to doctors practising medicine of a kind culturally acceptable to him in Australia and other personal matters, amounted to exceptional circumstances.

6. The Tribunal member found that the applicant had breached the relevant visa condition on the basis that his attendance rate was indeed 73 per cent and that he had not made satisfactory academic progress.  It further found that there were no exceptional circumstances to explain the breaches. 

7. Mr Murphy of counsel recently came into the matter for the applicant some time after the preparation of the initiating process in this Court and of the written submissions.  He has properly informed the Court that there are no matters beyond those in the written submissions which he can raise with the Court and rightly concedes that nothing in the written submissions raises any question of law.  It is sufficient to say that the application and the accompanying affidavit do not appear to raise any relevant arguable question of law either.  The application must be dismissed. 

8. It is impossible to feel that the applicant personally was at any fault in this matter.  It appears that the applicant's solicitor was somewhat inexperienced in these matters and did not resort to counsel or any other source of expert advice as soon as would be desirable.  The solicitor concerned honourably accepts that, in the circumstances, he ought not charge his client any fees in relation to the matter.  He has not offered any reason, apart from inexperience, as to why he should not pay the Minister's costs.  Therefore, I order that the applicant's solicitor is to pay the Minister's costs.  In light of his undertaking to the Court in relation to not charging his client, it is unnecessary for me to say more about the circumstances and I refrain from saying more. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             6 August 2002

Counsel for the Applicant:	Mr B Murphy
Solicitor for the Applicant:	Ren Zhou Lawyers
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	31 July 2002
Date of Judgment:	31 July 2002