HUANG v Minister for Immigration
[2006] FMCA 1277
•22 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1277 |
| MIGRATION – Visa – student visa – Review of Migration Review Tribunal decision – Breach of condition 8202 – failure of Applicant to appear. |
| Migration Act 1958, ss.116, 474 |
| Gerhard v MIMA (2003) FCA 495 Liu v MIMA (2004) FCA 1058 MIMIA v Nguyen (2002) FCA 460 Patsanza v MIMIA (2001) FCA 734 SHIH v Minister for Immigration and Another (2005) FMCA 1021 Tian v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 238 Yu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 206 |
| Applicant: | GENGXU HUANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 98 of 2006 |
| Judgment of: | Baumann FM |
| Hearing date: | 22 August 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 22 August 2006 |
REPRESENTATION
| No Appearance by the Applicant |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application be dismissed.
That the Applicant pay the Respondent’s costs of the Application fixed in the sum of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 98 of 2006
| GENGXU HUANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(settled from the ex tempore reasons)
The applicant is a citizen of the People's Republic of China, now aged 25. Since June 1999 he has been granted a number of visas sufficient to enable him to enrol for tertiary studies in Queensland. The issue before me is whether a visa, which permitted him to continue to study at Griffith University, ought to be cancelled, it having, by reason of the background which I will soon detail, been cancelled by a delegate which cancellation was affirmed by the Migration Review Tribunal.
For the purpose of these reasons, I adopt as an accurate statement of the background, paragraphs 3 to 17 of the submissions of counsel for the respondent Minister, filed in this court on 14 August 2006, as follows:
“3.The Applicant is a citizen of the People’s Republic of China born on 2 May 1981, who first entered Australia on 24 June 1999 on a Subclass 560 visa issued on 27 May 1999. A further Subclass 560 visa was granted on 26 March 2001 which was valid until 15 March 2003 and was subject to a number of conditions including visa condition 8202.
4.On 13 March 2003, the Applicant lodged an Application for a Subclass 572 (Vocational Education and Training Sector) visa. The Applicant was granted a Subclass 572 visa on 26 March 2003 which was valid until 11 November 2003.
5.On 15 November 2003, the Applicant lodged an Application for a Subclass 573 (Higher Education Sector) visa which was granted on 26 March 2004. This Subclass 573 visa would have been valid until 15 March 2006, if it had not been cancelled. It is this visa which is the subject of review.
6.On 18 April 2005, the Applicant’s course provider, Griffith University (“GU”), issued a Notice pursuant to Section 20 of the Education Services for Overseas Students Act 2000 (Cth), informing the Applicant that he was in breach of a condition of his visa relating to satisfactory academic performance and that if he failed to attend an office of the Department within 28 days then his visa would be automatically cancelled. The Notice stated that the particulars of the breach were:
“The Academic Appeals Committee decided that the student’s cumulative GPA of 1.917 is considerably below the minimum 3.0 required by the University policy and excluded the student form the program.”
7.On 12 May 2005, the Applicant attended a Departmental office where the delegate issued to the Applicant a Notice of Intention to Consider Cancellation which stated that the possible grounds for cancellation were:
“Breach of visa condition 8202 – Meet Course Requirements. Student reported on Section 20 Notice for failing to achieve satisfactory academic achievement – subsequently excluded, therefore, failed to meet course requirements.”
8.Based on the information contained in the Section20 Notice, there appeared to be a breach of a visa condition 8202 requiring an academic result that is at least satisfactory. If the breach is established, this would be considered a prescribed circumstance and the visa must be cancelled.
9.On 12 May 2005, the delegate made the decision to cancel the Applicant’s Subclass 573 visa, noting that the legislation does not provide the delegate with a discretion to consider the reasonable circumstances of why there was a breach of a visa condition, as a breach of condition 8202 is a prescribed circumstance where the visa must be cancelled.
10.On 17 May 2005, the Applicant lodged an Application for Review with the MRT.
11.On 30 June 2005, the MRT, pursuant to Section 359A, invited comment from the Applicant in relation to the following information:
“You were enrolled in a course at Griffith University. It has been stated by Griffith University that your Grade Point Average for your course is 1.917, and that you have been excluded from the program. This indicates that your academic progress was not satisfactory.
This information is relevant to the review because it is a requirement of your visa that you comply with condition 8202. This condition requires you to achieve a level of academic progress that is certified by your education provider to be at least satisfactory in each term, session or semester of your course. Failure to comply with condition 8202 shall lead to mandatory cancellation of your visa.”
12.The MRT requested the Applicant’s comments within 5 working days of the date of notification of that invitation which, noting that the letter was assumed to be received 7 working days after the date of the letter. Therefore, the Applicant had 12 working days to respond (being Monday 18 July).
13.The Applicant’s agent provided further comments dated 20 July 2005 which were outside the prescribed time and therefore the findings of the MRT were pursuant to Section 359C.
14.There was no oral hearing, as the MRT as not obliged to invite the Applicant to a hearing, where the Applicant had failed to respond to the S359A invitation within the prescribed time.
15.The MRT found that the course provider had stated that the Applicant had been excluded from his course on academic grounds. The MRT also noted the Section 20 Notice which provided that the Applicant only had a GPA of 1.917. Further, the Applicant’s appeal against exclusion from GU was considered and dismissed on 24 February 2005. The letter dismissing the appeal also noted the Applicant’s cumulative GPA of 1.917 which was considerably below the minimum 3.0 required by the university to continue with enrolment. In fact, it appears the Applicant only had passed one course in two semesters at GU.
16.The Applicant did not dispute the above results provided by GU but stated that this was due to continual pressure from his parents to do his best, break up of a relationship with his girlfriend and his mother’s suspected illness.
17.The MRT notes that the Applicant has changed his studies and now appears to be performing well. However, the MRT notes that this is no substitute for the certification by GU that the Applicant failed to achieve satisfactory academic results.
Legislative framework
Section 116 of the Act deals with visa cancellations and as relevant it states:
“Section 116 Power to cancel
116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(g)A prescribed ground for cancelling a visa applies to the holder.
(3)If the Minister may cancel a visa under subsection (1), the Minister must to do if there exist prescribed circumstances in which a visa must be cancelled.”
The prescribed circumstances as set out in reg 2.43(2) which is relevant reads:
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)Each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and
(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)…
(ii)condition 8202
The First Respondent alleges that the Applicant breached condition 8202(3)(b) which as relevant reads:
(3) A holder meets the requirements of this subclass if:
(b)in any case – the holder achieves an academic result that is certified by the education provider 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 decision maker had no discretion in cancelling the Applicant’s visa if the Applicant had been found not to have complied with condition 8202(3)(b) (see Patsanza v MIMIA (2001) FCA 734 at paragraph 15 and MIMIA v Nguyen (2002) FCA 460 at paragraphs 7-9 and 11).
The MRT Decision
The decision of the learned Member of the Migration Review Tribunal is fully set out at pages 104 to 111 of the book of relevant documents. The Member notes that although invited to produce material by a certain date, the applicant had failed to do so, and as a result the applicant was not entitled to be heard orally on the hearing of the application.
Nonetheless, it does appear that the applicant's position was set out in the letter to the MRT dated 20 July 2005 from his registered migration agent. The tenor of that letter is not inconsistent with the evidence accepted by the MRT and detailed at paragraph 24 of the reasons, namely, that:
“The review applicant was invited to respond to the NOIC at an interview commencing at 3.53 pm on 12 May 2005. The review applicant is reported to have stated that he agreed that grounds for cancellation exist as that he did not meet course requirements by failing his course, and subsequently was excluded. He is recorded as having stated that ongoing issues with his mother's health and break-up with his girlfriend caused him to become depressed, which in turn impacted on his studies. The review applicant claimed that since studying at Central Queensland University (CQU) he is doing well.“
The Member of the MRT who dealt with the matter and affirmed the decision under review to cancel the review applicant's student (temporary) (class 2U) visa properly identified at paragraphs 29 to 40 of her reasons the relevant statutory applications and relevant authorities. It is against that decision which the applicant appealed to this court. In so doing he filed on 15 February 2006 an application for review asserting the following grounds:
a)“The Migration Review Tribunal erred in law by failing to take into consideration a relevant consideration in affirming the finding of the delegate of the Minister that the Applicant had breached condition 8202 of his visa because at the time of the cancellation the applicant was enrolled in a registered course and was performing satisfactorily.
Particulars: The evidence before the Tribunal was that the Applicant had begun a course after having been excluded from Griffith University in which he was progressing satisfactorily. The question for the Tribunal was whether condition 8202 required that the enrolment and certification must come from a particular institution or whether, as in this circumstance, it could come from any registered institution. The Tribunal failed to consider the question or even identify it in spite of the fact that the argument was raised by the representative for the Applicant. This is a jurisdictional error.
b)The Migration Review Tribunal erred in failing to consider making any further enquiries of the review of the applicant’s education provider consistent with the principles in Yu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 206.
Particulars: The Migration Review Tribunal was not performing some routine administrative task that could be carried out more or less automatically. It had a statutory duty to conduct a fair, independent merit review of the primary decision. In this case the Tribunal did not even consider making further inquiries where there was clearly a question on the evidence of whether the Applicant had in fact breached condition 8202. This is a jurisdictional error.
c)The Migration Review Tribunal erred in failing to consider whether the applicant’s education provider had rightly excluded the Applicant from his academic program.
Particulars: The Tribunal had before it evidence that the applicant had suffered a period of great stress which had resulted in a drop in his previous good performance. The evidence was that when that stress was removed, the Applicant performed again at a satisfactory level. The Tribunal failed to consider whether the Delegate was correct to conclude that the Applicant had failed to comply with condition 8202. The Tribunal was aware of and had sympathy for the Applicant’s position, but failed to consider whether it was correct for Griffith University to issue a notice under section 20 given the circumstances of his case. This is a jurisdictional error.”
Hearing in this court
The matter came before me for directions on 12 April 2006. It appears from the court record that the applicant failed to appear before the court on that date. Nonetheless, directions were made for the matter to be listed before me today for final hearing. Directions were made in the usual form, to require the respondent to file and serve a bundle of relevant documents and for written submissions to be filed by both parties. The respondent Minister has filed written submissions on 14 August. There are no written submissions which appear to have been filed by the applicant in compliance with the direction.
When this matter was called on for hearing before me, the applicant’s name was called by the court officer and he did not come forward. I indicated to Ms Wheatley, counsel for the respondent, that whilst it might be permissible for the application to be merely dismissed for want of prosecution and failure by the applicant to appear, it seemed appropriate to me that an examination of the grounds agitated for review by the applicant was necessary. This case raises an issue which regrettably is not uncommon in applications relating to student visa matters. The legislation, in my view, is clear.
In a not dissimilar case before me reported as SHIH v Minister for Immigration and Another (2005) FMCA 1021 delivered 27 July 2005, when referring to the relevant issue of how a court should find the certification or otherwise by the appropriate institution, in this case Griffith University, as in that case, I said at paragraphs 18 and 19 that:
“18.In my view he was seeking the MRT, as a determinative fact, to go behind the lack of positive certification by Griffith University and for itself to "certify" the applicant's academic performance was at least satisfactory for the purposes of compliance with condition 8202.
19. This is simply impermissible. Whilst the applicant might say this is harsh, that is the way the legislation is expressed and has been consistently interpreted.”
I referred in that decision to the single judge decision of Ryan J in Gerhard v MIMA (2003) FCA 495 at 13 and to the decision of Cooper J in Liu v MIMA (2004) FCA 1058, where his Honour found that a section 20 notice served no function other than to initiate a process to bring the applicant to the Department to explain an alleged breach of condition or to bring an automatic cancellation of the visa.
Furthermore, Ms Wheatley has in her submissions, relevantly, and in my view correctly, referred me to the Full Court decision of Tian v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 238, where at paragraph 55 the Full Court says:
“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 is so satisfied, that is an end to the inquiry under condition 8202(3)(b).“
The issue which the applicant seeks to assert is that whilst he concedes the validity and foundation for the certificate provided by the relevant education provider at the time, Griffith University, he explains that because of his poor performance there (due to personal reasons which are probably quite correct), he ought be able to rely upon the subsequent satisfactory performance at the Central Queensland University. The difficulty for the applicant is that the Act does not permit such a manoeuvre to be adopted.
I am satisfied on the evidence that the delegate and the learned Member of the MRT have correctly applied the statutory obligations to the facts before them. In particular, I find that the relevant decision of the MRT is not affected by any jurisdictional error at all. In the circumstances, section 474 of the Migration Act 1958 operates to render the decision of the MRT a “privative clause” decision. It is final and conclusive and beyond challenge by this Court. I am, as a result, compelled to dismiss the application. Costs should follow the event. I propose to make an order for costs of $5000.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Baumann FM
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