Ding v Minister for Immigration

[2005] FMCA 437

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DING v MINISTER FOR IMMIGRATION [2005] FMCA 437

MIGRATION – Review of Migration Review Tribunal decision – cancellation of subclass 572 Vocational Education and Training Sector (Temporary) (Class TU) visa – no reasonably arguable ground of review – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Act 1958 (Cth), s.116(3)
Migration Regulations 1994 (Cth), reg.2.43(2)(b)

Applicant: TIAN TIAN DING

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1781 of 2004

Delivered at: Sydney

Hearing date: 1 March 2005

Orders made: 1 April 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Solicitors for the Respondent: John Kettle of Sparke Helmore

ORDERS

1. The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 1 March 2005.

2. The applicant is to pay the respondent’s costs of the proceedings fixed in the sum of $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1781 of 2004

TIAN TIAN DING

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. These proceedings were referred to the Court in a non compliance list on 1 March 2005. The solicitors for the respondent moved the Court for orders that these proceedings be dismissed pursuant to Part 13, Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 1 March 2005.

2. After a brief hearing of submissions from both parties, further interim orders were made setting out a revised timetable.  The applicant was informed that if the orders were not complied with then the substantive application would be dismissed by the force of the orders.  These orders and the reasons for judgment were subsequently made in Chambers.

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Magistrates Court of Australia on 10 June 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 4 June 2004 affirming the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made on 24 November 2003 to refuse to cancel the applicant’s subclass 572 Vocational Education and Training Sector (Temporary) (Class TU) visa.

Background

1. The applicant in these proceedings is Miss Tian Tian Ding, who claims to be a citizen of the People’s Republic of China, who was born on

   
   

   16 October 1983.  The applicant first entered Australia on 31 May 2000 as a holder of a subclass 560 (Student) visa which was valid until 15 March 2003.  The applicant was then granted a subclass 572 visa on 12 June 2003.  Attached to this visa was condition 8202.  The applicant’s subclass 572 visa was cancelled on 24 November 2003 for breach of condition 8202 and this cancellation was the subject of this application (Court Book p.69) (“CB”).

2. The applicant commenced studying an Advanced Diploma of Commerce at the Sydney Institute of Business & Technology (SIBT) in Semester 1 of 2002. The course duration was five semesters (three semesters in 2002 and two semesters in 2003). On 5 November 2003, SIBT issued a Notice, pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) informing the applicant that she was in breach of a condition of her visa relating to attendance and/or academic performance and that if she failed to attend an office of the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) within 28 days then her visa would be automatically cancelled. The Notice stated that for Semester 2 of 2003, the applicant’s academic performance was unsatisfactory – “student permanently excluded” (CB p.1).

3. On 11 November 2003 the applicant attended the Departmental office and was issued with a Notice of Intention to Consider Cancellation (NOITC) (CB pp.5-6).  This Notice stated that the education provider had advised that the applicant had failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of her course.  The education provider, SIBT, had advised that the applicant had not made satisfactory academic progress in Semester 2 of 2003.  The applicant was invited to provide comments at an interview to be held on 24 November 2003.

4. On 21 November 2003 the Department received a facsimile from SIBT.  An attendance certificate stated that the applicant had attempted three subjects in Semester 2 of 2003, which commenced on 30 June 2003 and concluded on 11 October 2003.  She failed two subjects and passed one subject in that Semester.  In a statement of results, SIBT advised, amongst other things, that the applicant had received the following grades over the whole course (CB p.70):

   Fail Absent2 subjects

   Fail (0% - 44%)  10 subjects

   Considerable Pass (45% - 49%)         1 subject

   Pass (50% - 64%)  3 subjects

   Credit (65% - 75%)  1 subject

   Satisfactory (over 50%)  2 subjects

5. At the Departmental interview on 24 November 2003 the applicant stated the course was too difficult for her and she would be able to cope better if she could change education provider. She said she would suffer hardship if her student visa was cancelled as she could not finish university and would not be able to explain the situation to her parents. The applicant stated she would not be able to get suitable employment. Following the interview on 24 November 2003 the delegate proceeded to cancel the applicant’s subclass 572 visa under ss.116(1)(b) and 116(3) of the Migration Act 1958 (Cth) (“the Act”) and reg.2.43(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB p.32-36).

Respondent’s application

1. Mr J Kettle, Solicitor, appearing for the respondent in the substantive matter, made oral submissions in support of his application and sought leave to file and read an affidavit sworn on 28 February 2005.

2. The applicant had filed an affidavit with the original application on 10 June 2004 which contained the following two statements:

   “1.It is unfair to me if DIMIA cancelled my visa according to student visa cancellation under section 116 – Subclass 572 – condition 8202 – academic result.  DIMIA did not consider my personal circumstances at the moment.

   2.It is not fair to exclude me from SIBT just because I failed some exams without considering my specific reasons.  Please give me an opportunity to argue so that I could continue my study.”

3. On 16 September 2004 the applicant appeared before Registrar McIllhatton and consented to Short Minutes of Order which required the applicant to file and serve an amended application giving complete particulars of each ground of review being relied upon in this application to the Court and any evidence upon which the applicant proposed to rely upon by 11 November 2004.  This order was not complied with.

4. The respondent moved the Court that the applicant failed to disclose the grounds of review and failed to comply with the Court orders to file an amended application.  The respondent sought orders that the matter be dismissed for those reasons.

Applicant’s submissions

1. When the applicant was invited to respond to the Motion before the Court she repeated material relating to her circumstances and her current situation and indicated she wanted an opportunity to state her case and the problems that led to her being in her current situation.

Further orders

1. In order to provide the applicant with a further opportunity to comply with the requirements of the Court, the following orders were made on 1 March 2005:

   “1.The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by 18 March 2005.

   2.The respondent has leave to file and serve written legal submissions in response to the amended application by Friday, 25 March 2005.

   3.If the applicant does not comply with Order 1, the matter will be dealt with in chambers by Federal Magistrate Lloyd-Jones for summary dismissal.

   4.Liberty to either party to apply to the Court for a listing for further directions.

   5.The applicant pay the respondent’s costs of today’s application fixed in the sum of $300.00.”

2. It was explained to the applicant the importance of complying with these orders and the necessity for the pleadings to identify the errors she believed the Tribunal made in their decision of 4 June 2004.  It was also indicated to the applicant that it was necessary for her to provide particulars or evidence of each of the identified errors.  The function and the scope of the Court were briefly explained to the applicant to assist her in the preparation of material to be lodged.

Reasons

1. On 18 March 2005 the applicant filed a letter with attachments which appeared to be her attempt to file an amended application.  The document was prepared on plain paper and addressed “Dear Sir/Madam” and set out in the form of a letter.  The letter stated that it intended to demonstrate the strict criteria and high standards required of overseas students by SBIT and Macquarie University.  The letter was presented in the form of an explanation as to the level of difficulty that the applicant experienced in endeavouring to participate and complete the course requirements.  The applicant also indicated she had achieved much better results since transferring to Holmes College and that she had been able to keep a high attendance rate at that College.  The documents attached were in support of the points raised in the body of the letter.

2. Regretfully, the document did not address the issues required for a review of the decision of the Tribunal.  The requirements of condition 8202 attached to any student visa are to be strictly interpreted and the failure to comply results in a mandatory action by the delegate.  In relation to this issue, the Tribunal noted:

   “This information suggests on the face of it that the review applicant has not complied with condition 8202 of their visa and is, therefore, liable for cancellation pursuant to s116(1)(b) and s.116(3) of the Act.

   Following the decision of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574; Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460, the Tribunal does not have any kind of ‘discretion’ with regard to excusing a breach or considering whether there has been ‘substantial compliance’ on the part of the review applicant.  However, the Tribunal is able to examine whether condition 8202 was ever breached by the applicant.  Essentially, this requires the Tribunal to do a ‘recalculation’ or reassessment of what the education provider or other evidence has shown and determine whether there ever was a breach in the first place and, whether there were grounds to cancel.  If the Tribunal finds there was a breach, then it is bound to affirm the cancellation.

   Section 116 of the Act relevantly provides that if the Minister may cancel a visa under subsection (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2) of the Regulations sets out the prescribed circumstances contemplated by section 116(3).”   (CB p.139).

3. To permit the applicant to proceed to final hearing on the material presented did not provide the applicant with any chance of success.  The final hearing of the substantive matter was set down for 11 April 2005 and on an assessment of the carriage of the matter to date it was unlikely that any new or legitimate material would be presented to the Court before that date.

Conclusion

1. Based on the material contained in the Court Book, the original application and the amended application there was nothing to indicate that the applicant would succeed at a final hearing if she were permitted to proceed further.  Consequently, as the applicant had not disclosed any arguable ground of review, I believe the substantive application should be dismissed.

1. I am satisfied that an order for costs should be made in this matter. 

   
   

   I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  15 April 2005