He v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1276

MIGRATION – Review of Migration Review Tribunal decision – cancellation of student visa – whether mandatory cancellation criterion relating to satisfactory academic performance applied to the applicant’s class of visa at the time of cancellation considered – whether the applicant’s institution had certified satisfactory or unsatisfactory performance considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.20, 116, 137K
Migration (Amendment) Regulations 2001 (No 5)
Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)
Migration Regulations 1994 (Cth)

Minister for Immigration v Shi Bo Yu [2004] FCAFC 333
Morsed v Minister for Immigration [2005] FCAFC 193
Uddin v Minister for Immigration [2005] FMCA 841
Weerasinghe v Minister for Immigration [2004] FCA 261

Applicant: YU HE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

MIGRATION REVIEW TRIBUNAL

File Number: SYG2203 of 2003

Judgment of: Driver FM

Hearing date: 2 September 2005

Delivered at: Sydney

Delivered on: 16 September 2005

REPRESENTATION

Solicitors for the Applicant: Ms A Lee
William Chan & Co

Counsel for the Respondent: Mr G Kennett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Migration Review Tribunal is joined as the second respondent to the proceedings.

2. The application is dismissed.

3. The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2203 of 2003

YU HE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 24 September 2003.  The MRT affirmed a decision to cancel Mr He’s student (temporary) class TU visa.  Mr He was the holder of a sub class 560 visa issued on 18 April 2001.  On 13 May 2003 a delegate of the Minister decided to cancel the visa on the basis that Mr He had not met course requirements.[1]  Mr He applied for review of that decision by the MRT.  The MRT affirmed the delegate’s decision.[2]

   [1] court book, pages 23-29

   [2] court book, page 117

2. The MRT decided that Mr He had not achieved an academic result, for two terms or semesters of his course, that was certified as satisfactory by his education provider. The MRT found that Mr He had breached condition 8202, which applied to his visa. The MRT found that, by virtue of s.116(3) of the Migration Act 1958 (Cth) (“the Migration Act”) and regulation 2.43(2)(b) of the Migration Regulations (“the Migration Regulations”), cancellation was mandatory[3]. 

   [3] court book, page 125 at paragraphs 40-42

The application and evidence

1. Mr He relies upon his amended application for judicial review filed on 19 May 2005.  That amended application asserts the following grounds of review:

   1. The respondent purported to cancel the applicant’s subclass 560 student visa because the visa had to…