Du v Minister for Immigration
[2007] FMCA 152
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 152 |
| MIGRATION – Review of Migration Review Tribunal decision. Visa – student visa. |
| Migration Act 1958, ss.116, 359A Migration Legislation Amendment (Overseas Students) Act 2000, sch.4 Migration Regulations 1994, reg.2.43 Education Services for Overseas Students Act 2000, s.20 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 VWFP & VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 SZGMF v Minister for Immigration & Multicultural Affairs [2006] FMCA 283 Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 |
| Applicant: | MING DU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1876 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 February 2007 |
| Date of Last Submission: | 6 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Ms. S. A. Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1876 of 2005
| DU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 17 October 2005, the applicant seeks review of the decision of the Migration Review Tribunal (“Tribunal”) dated 20 June 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 12 October 2004 cancelling the applicant’s subclass 560 (Student) visa.
Background facts
The Tribunal described the applicant as follows:
The review applicant first entered Australia as a student on 8 June 2000 on a Student (Temporary) (Class TU) visa, Subclass 560 which was granted on 24 May 2000 and which expired on 16 August 2000. The review applicant next applied for a Subclass 560 visa which was issued on 16 August 2000 and was due to expire on 15 March 2005. Attached to this visa was condition 8202 (“Enrolment and course requirements”). The visa was cancelled on 12 October 2004 for failure to meet course requirements.
The review applicant was enrolled at the University of Newcastle studying a Bachelor of Information Science. He commenced the course on 20 August 2004 and was due to complete it on 2 July 2006. (Court Book (“CB”) pages 69 – 70)
The version of condition 8202 applicable to the applicant’s visa is contained in Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000, which relevantly states:
(1) …
(2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.
(3) The condition is that:
(a)in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student–the holder is enrolled in a full-time course of study; and
(b) in any other case–the holder is enrolled in a registered course; and
(c)…
(d) 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.
The consequence of breaching condition 8202 is set out in s.116 of the Migration Act 1958. Relevantly, it provides:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)…
(b) its holder has not complied with a condition of the visa; or
…
(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.
Regulation 2.43 of the Migration Regulations 1994 (“Regulations”) provided at the time of the Tribunal hearing:
…
(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:
(i) condition 8104 or 8105 (if the condition applies to the visa); or
(ii) condition 8202.
The facts and evidence are set out in the Tribunal’s decision at
CB 69 - 74. Relevantly, they are in summary:
a)on 26 August 2004 the University of Newcastle (“University”) sent to the applicant a notice under s.20 of the Education Services for Overseas Students Act 2000. It stated:
You have failed to make satisfactory academic progress as required under condition 8202 of your student visa. In particular, in Semester 2, 2003 you failed 40 of 50 units attempted and in Semester 1, 2004, you failed all 50 units attempted. In total, you have passed only 60 of 210 units attempted over the past 2½ years (CB 70);
b)the applicant was instructed to report to the Department within 28 days of the notice. A copy of the notice was forwarded to the Department of Immigration and Multicultural and Indigenous Affairs (“Department”);
c)on 21 September 2004, the applicant reported to the Department and the delegate issued to him a written notice of intention to cancel the visa, on the basis that:
Your education provider has advised that you have failed to make satisfactory academic progress for each term of your course;
d)on 21 September 2004 the Department wrote to the University requesting written confirmation of the applicant’s academic results, any warnings issued to the applicant and a copy of his academic transcript;
e)
on 11 October 2004 the University certified the applicant’s unsatisfactory academic progress for Term 2 of 2002, Terms 1
and 2 of 2003 and Term 1 of 2004 (CB 7 – 10);
f)the University further advised:
The student was sent an “At Risk” letter on 6 January 2004, following their poor progress in Semester2, 2003. They were sent a “Show Cause” letter on 28 July 2004, following a further semester in which they failed all courses attempted. In 2½ years the student has passed only 60 units or less than the equivalent of a year’s study.
g)on 12 October 2004 the delegate cancelled the applicant’s student visa on the ground that the applicant had breached condition 8202;
h)on 20 October 2004, application was made to the Tribunal for a review of the delegate’s decision;
i)on 17 November 2004 the Tribunal sent a letter to the applicant inviting him to comment on information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, namely the information from the University stating that the applicant had failed to obtain satisfactory results in Semester 2, 2002, Semesters 1 and 2, 2003 and Semester 1, 2004;
j)the applicant responded with a statutory declaration made on 3 December 2004;
k)the Tribunal hearing was held on 19 April 2005; and
l)on 4 May 2005, a further letter was sent from the University to the Tribunal which confirmed its previous advice that his academic results for Semester 2, 2002, Semester 2, 2003 and Semester 1, 2004 were not satisfactory but also advised that, contrary to the University’s advice of 11 October 2004 (CB 7 – 10), the applicant’s academic result for Semester 1, 2003 was now certified to be satisfactory.
The Tribunal’s decision and reasons
The Tribunal affirmed the decision of the delegate to cancel the applicant’s visa.
The Tribunal’s conclusion is set out in paragraphs 40 and 41 of the decision:
The University of Newcastle has provided the Tribunal with written advice that the review applicant did not achieve an academic result that is certified to be at least satisfactory in the course Bachelor of Information Science for Semester 2, 2002, Semester 2, 2003 and Semester 1, 2004. The University of Newcastle has provided the Tribunal with certification that the review applicant achieved an academic result that is certified to be at least satisfactory for Semester 1, 2003. The academic record provided by the University of Newcastle in relation to the review applicant’s academic results in the course Bachelor of Information Science records that for Semester 2, 2002 the review applicant failed 3 out of 4 subjects attempted; in Semester 2, 2003 the review applicant failed 4 out of 5 subjects attempted and in Semester 1, 2004 the review applicant failed 5 out of 5 subjects attempted. The Tribunal therefore finds that the review applicant did not achieve an academic result that is certified by the education provider to be at least satisfactory in Semester 2, 2002, Semester 2, 2003 and Semester 1 2004 and as such has breached condition 8202 of Schedule 8 to the Migration Regulations.
The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202 (Hou and Nguyen). Once non-compliance with the condition is established the Tribunal is bound to affirm the visa cancellation. (CB 75 – 76).
Proceedings in this Court
The ground of the amended application is that the Tribunal failed to comply with s.359A of the Migration Act 1958 (“Act”), in that the Tribunal failed to issue a notice under s.359A of the Act in relation to the post-hearing letter from the University to the Tribunal dated 4 May 2005. The applicant contends that the information contained in this letter was the reason or part of the reason for the Tribunal affirming the delegate’s decision.
Section 359A(1) provides:
Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
The applicant submits that notwithstanding the letter sent to him by the Tribunal referred to in paragraph 6(i) above, the Tribunal had a separate obligation under s.359A(1) in respect of the information contained in the University’s letter of 4 May 2005 referred to in paragraph 6(l) above. The applicant submits this is so because the information contained in the second letter was different from the information contained in the s.359A(1) letter of 17 November 2004, which in turn was based on the University’s earlier correspondence referred to in paragraph 6(e) above. That is to say, the relevant difference between the first and the second letters from the University was that the earlier one said that the applicant’s results in Semester 1, 2003 were not satisfactory whereas the second one said that they were. The information in the earlier letter was given to the applicant in the Tribunal’s s.359A(1) letter dated 17 November 2004 whereas the information in the second letter, which painted a better picture, was not. The applicant says that the failure to give him a s.359A(1) letter in respect of the information in the University’s second letter amounts to a jurisdictional error.
Relying principally on what was said by the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, the applicant stressed the mandatory quality of the s.359A obligation as identified in the reasons for judgment of McHugh, Kirby and Hayne JJ in that case. As Allsop J explained in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 261 [214] in relation to the relevantly identical provision dealing with reviews by the Refugee Review Tribunal:
In SAAP, the majority (McHugh, Kirby and Hayne JJ) made clear that although s 424A had a statutory function of a like kind to the rules of procedural fairness, its content and operation were not controlled by those principles or their operation. Thus, the Full Courts in SAAP of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411 and NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 were found to be in error to conclude that the lack of any unfairness in failing to comply with s 424A was of relevance in any conclusion as to the effect, in terms of jurisdictional error, of the failure to follow the terms of
s.424A. Whilst Paul and VAF were not the subject of consideration in SAAP, it is clear that the majority of the High Court in SAAP was of the view that the words of s 424A should be applied without being controlled by any consideration of the operation of the principles of procedural fairness. Thus, it seems to me that to the extent that Paul and VAF include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority in SAAP.
In response, the Minister submitted that there had been no breach of s.359A(1) saying in his written submissions:
When the provider responded to the Tribunal that one semester in which academic performance had previously been unsatisfactory was now satisfactory, there remained three unsatisfactory semesters extant. There was no further information which, if the applicant had had the opportunity to comment upon, could have affected the outcome of the proceedings in the slightest. The education provider was unable to provide certification which would have equated to compliance with Condition 8202.
The Minister submits that no obligation under s.359A(1) arose in relation to the second communication from the University because the only difference between it and the first communication was that it contained information advantageous to the applicant and the section is addressed to the disclosure of information of an adverse nature. The Minister pointed to what McHugh J said in SAAP at 175 [50]:
[The subsection] does not apply to all information that the Tribunal receives. It only applies to information that the Tribunal considers “would form part of its reason for refusing the application for review”. Nevertheless, the object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment upon it.
His Honour also referred to the information as “adverse information” at 183 [77].
In WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106, French J at [57] described s.424A, the Refugee Review Tribunal analogue of s.359A as a provision which:
… relates to the opportunity to comment on adverse information …
In VWFP & VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231, after noting the binding effect on him of SZEEU, Young J went on to say at [52]:
I do, however, wish to make one observation. In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s.424A is irrelevant to its proper construction and application. In SAAP, McHugh J at 181 [73] said that s.424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s.424A in its construction and application: see SAAP at 211 [208]. In Paul, Allsop J construed and applied s.424A in the light of its purpose of “ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it”: Paul at 429 – 430 [104]. In Al Shamry at 40 [39], Merkel J said that s.424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s.424A in determining whether there is any information within the meaning of s.424A, or whether particular information is the reason, or a part of the reason, for the Tribunal’s decision. I do not consider that there is anything to the contrary in SZEEU.
In M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86, Ryan J referred with apparent approval to earlier decisions dealing with the same or similar provisions which described the applicant’s right to comment on adverse material known to the Tribunal. Further, his Honour said that, in the context of
a Refugee Review Tribunal hearing:
… s.422B, when read in conjunction with s.424A, displaces the requirements of procedural fairness at common law to the extent that information which was not part of the Tribunal’s reason for refusing the visa application is not required to be disclosed to an applicant for comment [83].
As Driver FM said in SZGMF v Minister for Immigration & Multicultural Affairs [2006] FMCA 283 at 21:
Section 424A of the Migration Act did not require the disclosure of information useful to the applicant because it was not information tending to lead to the confirmation of the delegate’s decision. It was information that might, hypothetically, have led to a different decision. In other words, it was information not adverse to the applicant’s claims but potentially supporting them.
Based on these authorities, I conclude that the Tribunal had no obligation under s.359A to give the applicant the information received after the hearing from the University also noting that the adverse information which it contained had already been given to the applicant in the Tribunal’s letter of 17 November 2004.
Although the conclusion I have expressed in the previous paragraph disposes of the application, there appears to me to be another basis to support the conclusion that the application should be dismissed. This turns on the narrow ambit of the information upon which the Tribunal should rely when arriving at its conclusion.
The Act, the Regulations and visa condition 8202 item 4(3)(d)(ii) require the Tribunal to consider whether the applicant has achieved an academic result certified by an education provider to be at least satisfactory for each term or semester of the course.
In this case, the information relied upon by the Tribunal as a reason or part of the reason for affirming a delegate’s decision was that the applicant did not achieve “an academic result that is certified to be at least satisfactory in the course Bachelor of Information Science for Semester 2, 2002, Semester 2, 2003, and Semester 1, 2004”.
The way that the Tribunal discussed the information received from the University, and which is seen in the first of the two paragraphs quoted in paragraph 8 above, gives undue emphasis to the detail of the applicant’s academic history and formal academic record. This discussion gives the impression that those details were of relevance to the Tribunal’s decision when, in reality they could not be. So much is implicitly acknowledged by the first sentence of the first and the whole of the second of the paragraphs quoted in paragraph 8 above.
The information which the Tribunal relied on in affirming the delegate’s decision was the absence of certification of a satisfactory academic result in three semesters. As the Full Court of the Federal Court said in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55] and [56]:
A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.
The fact that, after the hearing, the Tribunal became aware that the applicant’s progress in Semester 1, 2003 had been certified satisfactory was information which would not be a reason, or part of a reason for affirming the delegate’s decision because such an affirmation depended on a lack of such certification. In circumstances where there was no certificate of compliance with condition 8202 in respect of Semester 2, 2002, Semester 2, 2003 and Semester 1, 2004, the information regarding Semester 1, 2003 was information which was irrelevant to the Tribunal’s decision. As the Court said in Tian’s case at [66]:
Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.
In other words, information that the applicant’s academic result was certified as satisfactory in any particular semester could never be a reason or part of a reason for the Tribunal affirming the delegate’s decision.
Conclusion
For the above reasons, I am of the view that there has been no breach of s.359A of the Act and, as a consequence, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 22 February 2007
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