FELANI v Minister for Immigration - [2005] FMCA 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FELANI v MINISTER FOR IMMIGRATION

[2005] FMCA 296

MIGRATION – MRT decision – mandatory cancellation of student visa – breach of academic achievement condition – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 116(1), 116(3), 119, 483A, Pt.2 Div.3 Subdiv.GB, Pt.8
Migration Regulations 1994 (Cth), para.2.43(2)(b), Sch.8 item 8202(3)(b)(ii)

Al Mamun v Minister for Immigration [2005] FMCA 147
Bao v Minister for Immigration [2004] FMCA 1044
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Applicant:

HERRY FELANI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2141 of 2004

Judgment of:

Smith FM

Hearing date:

8 March 2005

Delivered at:

Sydney

Delivered on:

8 March 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S Burnett

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2141 of 2004

HERRY FELANI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Migration Review Tribunal handed down on 5 May 2004. The Tribunal affirmed a decision taken by a delegate on 26 February 2004 to cancel a Subclass 573 Higher Education (Class TU) Visa.
The visa had been granted on 8 August 2002 and, but for the cancellation, it would have ceased on 15 March 2004. Whether after that date the applicant would or would not have been entitled to further visas is a matter that I do not know. But it is possible that the cancellation has prevented him, and will in the future prevent him, from obtaining further visas. He has been continuing his studies in Australia under Bridging Visas relying upon his appeals.
Under s.483A the Court has “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction relevant to the present matter is a judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, I must be able to find jurisdictional error affecting the Tribunal decision before I have power to set aside that decision.
The statutory background to the present cancellation decision has been recently described by me in Bao v Minister for Immigration [2004] FMCA 1044 (“Bao”) and Al Mamun v Minister for Immigration [2005] FMCA 147 (“Al Mamun”). I adopt my analysis of the legislation and authorities provided in those judgments, and shall not repeat it here.
In my opinion, the legal situation is at present clear. A student who has not complied with condition 8202 is subject to mandatory cancellation under s.116(1) and (3), and there is no power in the delegate or the Tribunal to consider extenuating circumstances once they are satisfied that the condition has been broken. No points are available, so far as I can see, arising from the visa being cancelled under s.116 rather than under the automatic cancellation provisions of Part 2 Division 3 Subdivision GB of the Act, notwithstanding that they can operate more beneficially.
Moreover, on the current Full Court authority of Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 (“Zubair”), the failure of a delegate to serve a properly particularised show cause notice under s.119 is not a ground which deprives the Tribunal of jurisdiction to review the cancellation decision, and is irrelevant to the Tribunal’s review of that decision. On the view taken in Zubair, a failure of particularisation at the primary decision level is “cured” by natural justice being observed in the course of the Tribunal’s review.
In the present case, in my opinion, the show cause notice sent to the applicant suffers from the same lack of particularity which was found in Bao and Al Mamun, because it described the possible grounds for cancellation merely as:
Breach 8202 – Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.
However, for reasons given in my previous decisions, this defect does not assist the present applicant on the law as I understand it. I note that I have been informed that appeals have recently been listed in the Full Court cases which may have included invitations to the Full Court to reconsider aspects of Zubair. However, the details of any such submissions are not known to me, and I consider that I should continue to follow Zubair until the law is declared differently by the Full Court or the High Court of Australia.
In the present case, the Tribunal had evidence, which the applicant did not dispute, that he had enrolled in the University of New England to obtain a Bachelor of Arts following his achievement of a diploma course in music. The UNE course he enrolled in for 2003 was in popular music and performance, but unfortunately the applicant failed all four of his subjects in the first semester and two of his four subjects in the second semester. The University recorded, in a letter to the respondent’s Department, that his “academic progress was unsatisfactory”.
The applicant’s evidence to the Tribunal accepted that he could not show satisfaction of the requirements of condition 8202(3)(b)(ii):
(3) A holder meets the requirements of this subclause if:
…
(b)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
…
(ii)for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
The applicant explained to the Tribunal that he thought his poor results were because he had unwisely chosen this course, and because he experienced other difficulties while studying for it. He said that he thought he might be able to achieve his BA by enrolling in other courses.
However, in my view, the Tribunal has correctly understood that the legislation did not allow it to assess or give weight to his explanations. I can find no legal error in its reasoning:
29.In this case, the education provider has stated that the review applicant was excluded from the faculty as he did not achieve satisfactory academic results in Semesters 1 and 2 of 2003. The education provider has provided a statement of results showing that the review applicant failed all of the subjects he attempted in 2003. Based on this evidence, the Tribunal is unable to find that the education provider has certified the review applicant’s academic results to be at least satisfactory for Semesters 1 and 2 of 2003. The only certificate or written record of the education provider is to the contrary. It states that the review applicant’s academic results in Semesters 1 and 2 of 2003 were unsatisfactory and he was excluded. On the basis of the evidence from the education provider, the Tribunal finds that the review applicant has breached the academic results requirements of condition 8202, contained in paragraph 8202(3)(b).
30.As the Tribunal has found that the review applicant breached condition 8202, the cancellation of his student visa is mandatory under subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations. The Tribunal has no discretion to take into account the matters raised by the review applicant regarding his difficulties with the course, or to look behind the education provider’s certification. The Tribunal must affirm the decision to cancel the review applicant’s student visa.
31.The Tribunal affirms the decision under review to cancel the Student (Temporary) (Class TU) visa held by the review applicant.
In his present proceedings, the applicant has been appearing and preparing documents himself without assistance from a lawyer. His application did not identify a legal ground for judicial review, but repeated his explanation for his failure in the 2003 course, and asked the Court to allow him more time to complete his Arts degree. Statutory declarations that he has filed were to the same effect.
In oral submissions today, the applicant indicated that he is still keen to stay in Australia to finish his degree, but he was not able to identify for me any jurisdictional error affecting the Tribunal decision. For reasons given above, I was not able to identify any such error for myself.
As I have explained to him, in those circumstances I must dismiss his application.
RECORDED : NOT TRANSCRIBED
I shall order the applicant to pay the respondent’s costs in the sum of $3000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 17 March 2005