Fang v MIMIA

Case [2004] FCA 1387

FEDERAL COURT OF AUSTRALIA

Fang v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1387

MIGRATION – appeal - student visa – cancellation – whether condition 8202 can apply if holder not currently enrolled in a registered course – whether error of law in failing to consider whether appellant had withdrawn from enrolment in one registered course and transferred to another – whether error of law arising from failure to particularise notice of cancellation – whether error of law arising from failure to give appellant certain information required by statute

Migration Act 1958 (Cth) ss 116, 119, 121, 349, 359A
Migration Regulations reg 2.43, sch 8 cl 8202

Abebe v Commonwealth (1999) 197 CLR 510 applied
Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 280 affirmed
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited
Teoh v Minister of State for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 applied
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 applied
Twist v Randwick Municipal Council (1976) 136 CLR 106 referred to
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 applied

BIN FANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W112 of 2004

RD NICHOLSON J
29 OCTOBER 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W112 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BIN FANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

29 OCTOBER 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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

W112 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BIN FANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

29 OCTOBER 2004

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. This is an appeal from a decision of a Federal Magistrate (McInnis FM) given on 6 May 2004 (Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 280). That decision dismissed an application seeking judicial review of a decision of the Migration Review Tribunal (‘the MRT’) given on 11 October 2002. The MRT had affirmed a decision that a Student (Temporary) (Class TU) visa held by the appellant be cancelled.

  2. On the hearing of the appeal the appellant sought leave to file a minute of amended notice of appeal.  It was agreed that the issue of the grant of leave be held over pending argument.  That having occurred, I am satisfied that the issues raised by the new grounds are within the scope of the issues raised by…

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Details
AGLC
Fang v MIMIA [2004] FCA 1387
Case
[2004] FCA 1387
Decision Date

CaseChat Overview and Summary

The appellant, a student on a temporary visa, appealed against the decision of the Migration Review Tribunal (MRT) to affirm the decision of the Migration and Immigration Minister to cancel his Student (Temporary) visa. The Federal Court was asked to review the decision of the MRT. The central issue in this appeal was whether the MRT erred in its interpretation of the visa conditions and the procedural fairness of its decision-making process. The court also had to consider whether the MRT's reliance on the appellant's academic performance and attendance records was justified.

The court found that the MRT did not misinterpret the number of subjects the appellant failed but correctly assessed his academic results. It was noted that the appellant had provided this information to the MRT, and therefore, there was no breach of procedural fairness. The court further determined that the MRT's reliance on the academic performance and attendance records was appropriate, given that these were part of the evidence provided by the appellant. The court concluded that the MRT's decision did not contain any errors of law and that the procedural fairness was adequately maintained.

In summary, the Federal Court dismissed the appeal and affirmed the decision of the MRT. The appellant was ordered to pay the respondent's costs of the appeal. The court emphasised that its decision was based on the legal interpretation of the visa conditions and the procedural fairness of the decision-making process, rather than an assessment of the appellant's academic abilities.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

The reasons of the Federal Magistrate were extensive and it is not intended in these reasons to canvass all the issues here in the same detail. Although there are ten grounds of appeal, two of them are conceded by the appellant and others are wholly or partly dependent on the argument raised in ground 2. FACTUAL BACKGROUND The background circumstances as they appeared before the MRT were as follows. The appellant applied for a Student (Temporary) visa on 11 June 2001. He was granted a Subclass 560 (Student) visa on 10 August 2001. Condition 8202 was among the conditions of the grant of visa. The appellant attended at Notre Dame University undertaking a tertiary preparation course from September 2000 to February 2001. On 12 February 2001 he commenced a university foundation course. This was a course leading to business studies. However, it was the appellant’s wish to study computer science, a course which was not offered by Notre Dame University. The appellant, therefore, approached Curtin International College. On 28 November 2001 he received from Curtin University an offer of enrolment with respect to a Diploma of Information Technology leading to a Bachelor of Computer Science. On the offer it was stated that the course would commence in February 2002. There is no evidence of the appellant having provided a written acceptance of the offer or made payment of the fees. However, in an affidavit filed before the Federal Magistrate an officer of the Curtin International College stated that the making of the offer had the effect that the appellant was accepted into the course at Curtin. The appellant claimed that having received the letter from Curtin he thought that his transfer to that College had been completed and he ‘just stayed at home and studied from home and the library to prepare for [his] course with Curtin International College since 29 November 2002’. There was evidence before the MRT that in so acting the appellant had relied upon conversations with the respondent’s Department. As will appear, it is not necessary to state the particularities of that evidence save to say that there is evidence that such conversations have occurred. At the end of week 10 in September 2001 the appellant was doing well in his course and had been only absent for 16 classes out of 250. However, as a result of his perceptions of the effect of the ‘transfer’, he did not attend the last two weeks of the course at Notre Dame University nor did he sit the final examinations there. On 12 December 2001 the appellant received a letter from Notre Dame International advising as follows:‘At a recent Board of Examiners meeting your results were reviewed. The end of the semester results are comprised of your in class work, assignments and exams. Your enrolment has been placed on a conditional basis for poor attendance and academic performance.It was decided by the Board that based on the reasons outlined above, that your enrolment in the Notre Dame International Foundation Program be terminated. Please be advised that we are required to inform the Department of Immigration that you are no longer studying with Notre Dame International.’

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case, the MRT did not act on the incorrect statement of how many subjects the appellant failed, but correctly stated his academic results. Further, the statement of academic results was part of the information provided by the appellant to the MRT. In acting on that material, there could have been no failure to comply with the section and no breach of procedural fairness. CONCLUSION For the above reasons I do not consider that any of the grounds of appeal are made out and I hold that his Honour was correct to conclude that the MRT was not in error of law in its decision affirming the decision under review to cancel the appellant’s Student (Temporary) (Class TU) visa. Although that decision is reached as a matter of law it should not be thought by the appellant that it in any way reflects on his talents as a student. As the reasons of the MRT and his Honour record, there is evidence that the appellant is a competent and promising student. Unfortunately, non-compliance with the conditions of his visa has resulted in the loss of that visa.

Ratio Decidendi

Legal Principle Established

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