Ding v Minister for Immigration - [2012] FMCA 844

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DING v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 844

MIGRATION – Migration Review Tribunal – cancellation of Higher Education Visa – certification of unsatisfactory course progress – decision to cancel visa based upon certificate by education provider – status of certificate – whether visa holder accepted student for the purposes of the Education Services for Overseas Students Act2000 – whether visa holder had to be an accepted student for the purposes of the Education Services for Overseas Students Act2000 at the time of certification of unsatisfactory course progress.

Education Services for Overseas Students Act 2000, ss.5, 19, 19(1), 19(2), 20,
Migration Act 1958, ss.116(3), 474
Migration Regulations 1994, cl.8202, 8202(3), 8202(3)(a)

Applicant:

SHIJUN DING

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 1021 of 2011

Judgment of:

Jarrett FM

Hearing date:

20 March 2012

Date of Last Submission:

20 March 2012

Delivered at:

Brisbane

Delivered on:

14 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Steele

Solicitors for the Applicant:

Sciacca’s Lawyers

Counsel for the Respondents:

Ms Wheatley

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Amended Application filed on 2 March, 2012 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1021 of 2011

SHIJUN DING

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Mr Ding seeks that I quash a decision of a migration review tribunal that affirmed a decision of the first respondent’s delegate to cancel his student visa. He asks me to remit his application for review of the first respondents’ decision to a migration review tribunal to be dealt with according to law.
In this proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error. That is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The issue identified in this application by grounds of the application and the parties’ submissions is whether an education provider can certify a student visa holder as not making…

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: [2012] FMCA 844
Decision Date: 14 September 2012

CaseChat Overview and Summary

In Ding v Minister for Immigration, the applicant, a Chinese citizen, sought judicial review of a decision made by a delegate of the first respondent, the Minister for Immigration, to cancel his student visa. The applicant had been excluded from his studies at the Queensland Institute of Business and Technology Pty Ltd (QIBT) due to poor academic performance, leading to a certification by QIBT that he had not achieved satisfactory course progress. This certification was sent to the Minister, who subsequently cancelled the applicant’s visa under the Migration Act 1954. The applicant appealed the decision to the Migration Review Tribunal, which affirmed the delegate's decision, finding that the applicant had not met the conditions of his visa and that his non-compliance was not due to exceptional circumstances.

The central legal issue before the court was whether the Tribunal had erred in affirming the delegate’s decision to cancel the applicant’s visa. The applicant argued that the Tribunal had not properly considered the evidence and the circumstances surrounding his exclusion from QIBT. The court had to determine whether the Tribunal’s decision was lawful, reasonable, and based on the correct application of the law. The applicant contended that the Tribunal had failed to adequately consider the evidence of exceptional circumstances and had erred in its interpretation of the Migration Regulations and the Education Services for Overseas Students Act 2000.

In dismissing the application, the court found that the Tribunal had properly considered the evidence and had not erred in law. The court held that the Tribunal had correctly found that the applicant had not met the conditions of his visa and that there were no exceptional circumstances that warranted a different outcome. The court noted that the Tribunal had given appropriate weight to the evidence and had made findings that were open on the material before it. The applicant’s arguments regarding the Tribunal’s approach to the evidence and the law were rejected, and the court found no basis to interfere with the Tribunal’s decision.

Accordingly, the application for judicial review was dismissed. The court ordered that the applicant pay the first respondent’s costs of and incidental to the application, fixed in the sum of $6,240.00. This decision reinforces the principle that judicial review is limited to cases where there has been a failure to exercise a statutory power or discretion, or where there has been a jurisdictional error of law. In this case, the court found that the Tribunal had exercised its power correctly and that there was no basis for the court to interfere with its decision.

Orders

Orders of the court

The Amended Application filed on 2 March, 2012 be dismissed.

The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,240.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This application arises against the following facts, none of which are controversial:a)The applicant is a citizen of China.b)On 6 November, 2008 he was granted a subclass 573 student visa. The visa was subject to criterion 8208 found in item 8202 to Schedule 8 to the Migration Regulations 1994.c)The applicant was enrolled in a Diploma of Hotel Management at the Queensland Institute of Business and Technology Pty Ltd (QIBT).d)Semester 2 of the applicant’s course for 2010 ended on 12 June, 2010. e)On 1 July, 2010 the applicant was excluded by QIBT from further studies from Semester 2, 2010.f)The applicant had been the subject of a number of approaches from QIBT to him about his academic performance and his attendance record. His exclusion from Semester 2 2010 was a culmination of those approaches.g)On 13 July, 2010 the applicant submitted an appeal against the decision to exclude him. h)His appeal was unsuccessful and on 29 July, 2010 the Appeals and Grievances Committee at QIBT agreed to uphold the decision to report and exclude Mr Ding on the basis of his poor academic performance. i)On 10 August, 2010 a number of things occurred, namely:i)QIBT issued a certification in the following terms;“Certification for the purposes of sub clause 8202(3) of Schedule 8 of the Migration Regulations 1994Queensland Institute of Business and Technology Pty Ltd [01737F] (trading as QIBT) on 10 August 2010 certifies Mr Shijun Ding, for course Diploma of Hotel Management, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students (National Code 2007).”ii)QIBT wrote to Mr Ding enclosing a notice given to him purportedly pursuant to s.20 of the ESOS Act and enclosing a copy of the certification made by QIBT.iii)QIBT sent a copy of the certification, purportedly pursuant to s.19 of the ESOS Act to the first respondent.j)On 4 February, 2011 the first respondent’s delegate cancelled Mr Ding’s visa pursuant to s.116 of the Migration Act 1954 and he was given notification of that decision. k)On 24 February, 2011 Mr Ding applied to a Migration Review Tribunal for review of the first respondent’s delegate’s decision. l)On 2 August, 2011 information was sought from QIBT by the Tribunal about certain matters.m)On 3 August, 2011 the applicant was invited to appear before the Tribunal on 21 September, 2011 which was subsequently postponed.n)On 17 September, 2011 the Tribunal received written submissions from the applicant’s representatives in support of his case. o)On 3 October, 2011 the Tribunal conducted a hearing.p)On 24 October, 2011 the Tribunal made the decision under review in this matter, affirming the delegate’s decision of 4 February, 2011. The Tribunal considered that there were two questions for consideration, namely whether Mr Ding failed to comply with condition 8202 and if so whether he had demonstrated that the non-compliance was due to exceptional circumstances beyond his control such that his visa ought not to have been cancelled.