He v Minister for Immigration
[2005] FMCA 1276
•16 September 2005
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
The Migration Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
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
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
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
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 be cancelled under the mandatory cancellation provisions found in s.116(3) of the Migration Act and Reg 2.43(2) of the Migration Regulations 1994.
2. As at 13 May 2003, when the purported visa cancellation occurred, Reg 2.43(2)(b) referred only to students visa in the Class TU category.
3. The class TU category was defined in Item 1222 of Schedule 1 to the Migration Regulations 1994 and did not include any reference to a subclass 560 student visa.
4. As a consequence, there was no mandatory requirement that the visa be cancelled.
5. Therefore both the respondent and MRT acted under a misapprehension of the law and therefore the decision to cancel the visa and then affirm the cancellation were in excess of jurisdiction.
Further and/or in the alternative
6. Even if condition 8202 applies (which is denied), there was no breach of condition 8202.
7. Condition 8202(3)(b) states, inter alia:
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.
8. The purported particulars of breach set out by the education provider are not a certification that the applicant’s academic result was not “satisfactory”.
9. The education provider certified that whilst the applicant was excluded from the Faculty of Engineering, the applicant would be accepted to enrol in the Faculty of Science.
10. Further the education provider, in a written communication to the Student Compliance Section, DIMIA (dated 28 March 2003), certified that he was a bona fide student and was not excluded from the university.
11. As set out in the Federal Court decision of Weerasinghe v MIMIA [2004] FCA 261 (19.3.04), the certification by an education provider is not an arithmetical exercise and can take discretionary matters into account.
12. It follows therefore that the education provider in this instance has not certified that the applicant’s academic result was not satisfactory.
13. Indeed by certifying that the applicant was a bona fide student, that the applicant was accepted by the Faculty of Science and that the applicant [was] not excluded from the University is a certification that the applicant’s academic results are “at least satisfactory”.
14. On the material before the MRT and the respondent therefore, the decisions to cancel and affirm the cancellation of the visa were in excess of jurisdiction.
The amended application is supported by Mr He’s affidavit filed on 20 October 2003. I received the affidavit subject to satisfying myself as to its relevance. Mr He was not required for cross-examination. I also received as evidence the court book filed on 17 March 2004.
Submissions
Both parties prepared written submissions and also made oral submissions through their counsel. Relevantly, the applicant submits as follows:
·the mandatory student visa cancellation regime is draconian and the application of it should be interpreted strictly and narrowly;
·at the time Mr He’s visa was cancelled, condition 8202 did not apply to the class of visa he held;
·even if the condition did apply at that time there was no breach of the condition because Mr Paul O’Donohue of Sydney University had written to the Minister’s Department on 28 March 2003 in terms which should have satisfied the decision maker that Mr He’s academic performance was satisfactory[4];
·the purported notice issued to Mr He pursuant to s.20 of the Migration Act is not effective;
·“certification” is not a defined term for the purposes of the Migration Regulations and Mr O’Donohue’s letter should have been accepted in preference to anything else from the university.
[4] court book, pages 9 and 10
The Minister relevantly submits as follows:
·condition 8202 did apply to the class of visa held by Mr He because the visa was granted before 1 July 2001;
·the criticisms of the s.20 notice are irrelevant because the threat of automatic cancellation which flowed from that notice was averted by Mr He attending the Minister’s Department on 24 April 2003. On that visit he was given a Notice of Intention to Cancel his visa[5] which commenced the process leading to cancellation under s.116;
·condition 8202 as it applied at the relevant time envisaged positive certification of satisfactory academic performance, but, for practical purposes, certification of unsatisfactory performance was determinative[6];
·the information provided by the University of Sydney to the Minister’s Department was unequivocal;
·it was therefore at least open to the MRT to reach the conclusion that Mr He had not obtained the certification required by condition 8202.
[5] court book, pages 2-3
[6] court book, page 119
Reasoning
There is no dispute that, at the relevant time, condition 8202 was in the form contained in item 4 of schedule 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) as reproduced at paragraph 9 of the MRT decision[7]. The first question is whether that condition applied to the class of visa held by Mr He at the relevant time. I find that it did. A sub class 560 (student) visa was a class of visa included in item 1222 of the Migration Regulations as at 30 June 2001. That time, condition 8202 attached to a sub class 560 (student) visa. The condition ceased to apply to that class of visa as a result of the Migration (Amendment) Regulations 2001 (No 5) but regulation 4 of those regulations contained transitional provisions which limited the operation of those amendments to visas in respect of which application was made on or after 1 July 2001 or in respect of which application was made but not finally determined before 1 July 2001. Mr He’s visa was granted on 18 April 2001 so the effect of the transitional provisions was to continue the application of condition 8202 to his visa. I agree with paragraphs 4-8 of the Minister’s written submissions on this point.
[7] court book, pages 119-120
The Minister does not concede any error in the s.20 notice sent to Mr He. The form of notice sent to Mr He is different from the form of notice at issue in Uddin v Minister for Immigration [2005] FMCA 841. In this case, Mr He was not required to attend before a “compliance officer” but was merely required to report to DIMIA. Mr He was given only one option as to which office of DIMIA he was to report to, but there is no suggestion that that office was inconvenient to him. Further, the s.20 notice sent to Mr He made clear that he had the option of allowing his visa to be automatically cancelled and then applying for revocation of that cancellation pursuant to s.137K of the Migration Act. I am not attracted by the Minister’s submissions that any defect in the s.20 notice is irrelevant because the process commenced by that notice was aborted by Mr He’s attendance at the Minister’s Department. In Morsed v Minister for Immigration [2005] FCAFC 193 at [17]-[26] (delivered after the trial of this matter) the Full Federal Court criticised the form of the s.20 notice at issue in that case and expressed concern that such a notice may be misleading to a visa holder who complies with it (as Mr He did). The Full Court’s criticisms are relevant to the form of notice given to Mr He, although probably less pointedly so, given the different terms of the form of notice given to Mr He. On the facts of this matter, I am unable to conclude that any jurisdictional error results from the s.20 notice.
At the time Mr He attended the DIMIA office, he was issued the notice appearing on pages 2 and 3 of the court book. It is unfortunate that that notice asserted not only unsatisfactory academic progress but also asserted a failure to maintain at least 80 per cent attendance. There was nothing available to the Minister’s Department then (or now) to point to unsatisfactory attendance. Such notices should be based on information actually available to the Minister’s Department and not follow some pro forma template. That said, there was information available to the Minister’s Department supporting the assertion that the academic performance of Mr He had been unsatisfactory.
Mr He is right in viewing the mandatory cancellation regime as draconian. Its administration is also problematic. On its face, condition 8202 requires cancellation of a student’s visa whenever an education provider fails to certify that the academic result achieved by the visa holder is at least satisfactory for a course or for a term or semester of a course. The condition assumes the need for a positive certification: Minister for Immigration v Shi Bo Yu [2004] FCAFC 333 at [39]. Interpreted literally, it would be very difficult, if not impossible, to administer the condition in a fair and rational manner. A literal interpretation would, for example, require the Minister to cancel the visa of a student if an institution failed for any reason (say, because of an industrial dispute) to provide certification of satisfactory performance for a single term of a course. In practice, the condition is administered in a way that is the opposite of that intended on the face of the condition. Rather than requiring positive certification of academic performance, the Minister’s Department, on the basis of information received, solicits certifications of either satisfactory or unsatisfactory performance, but limited to circumstances where unsatisfactory performance is anticipated. For practical purposes, a certification from an institution that a visa holder’s academic performance was unsatisfactory is determinative for the purposes of condition 8202.
The term “certify” is not a defined term for the purposes of the Migration Regulations. The applicant, in his submissions, refers to various definitions of “certify” and “certificate” in dictionaries. Mr Kennett took me to the definition of “certify” in the Macquarie Dictionary. Relevantly, the word is defined to mean “give reliable information of” or “to testify to or vouch for in writing”. The word should be given its ordinary English meaning by reference to those dictionary definitions. No particular form of certification is required. What is required is a reliable expression in writing from the education institution as to whether the academic performance of the visa holder for the relevant course or relevant period of a course is satisfactory. The University of Sydney was invited to so certify in relation to Mr He in respect of “term 1 and term 2” of his course at the university in 2001 and 2002[8]. The university responded in unequivocal terms on 9 May 2003[9]. The university certified that the academic progress of Mr He in his course at the university in semesters 1 and 2 of both 2001 and 2002 was not satisfactory. In fact, Mr He had been excluded from his chosen course because of his unsatisfactory progress.
[8] it should more properly have been semester 1 and semester 2 in 2001 and 2002
[9] court book, pages 7 and 8
Confronted with that unequivocal certification of unsatisfactory progress, both the Minister’s delegate and the MRT had no option but to cancel Mr He’s visa.
Mr He seeks to rely on the letter from Mr Paul O’Donohue dated 28 March 2003. That letter does not assist him. First, the letter does not certify that Mr He’s performance in his course was satisfactory in either semester of 2001 or 2002. On the contrary, numbered paragraph 2 of the letter appears to confirm that his progress was not satisfactory. At best, the letter expresses the opinion that Mr He will make satisfactory progress in a different course in the future. Secondly, Mr O’Donohue is a student counsellor and his capacity to certify academic progress must be open to question. Thirdly, by the time it made its decision, the MRT had available to it the transcript of Mr He’s academic record for 2001 and 2002 which confirmed the factual basis for the negative certification provided by the university. It was plainly open to the MRT to make the decision it did on the material before it. Indeed, I see no basis upon which the MRT could have made any other decision.
I find that there is no jurisdictional error in the decision of the MRT. The decision is therefore a privative clause decision and the application for judicial review is dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,400. I accept that those costs have been properly and reasonably incurred on behalf of the Minister in these proceedings, when assessed on a party and party basis. I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, which I fix in the sum of $4,400.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 September 2005
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