Huang v Minister for Immigration

[2006] FMCA 1754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1754

MIGRATION – Review of Migration Review Tribunal decision – cancellation of a Student (Subclass 573) (Higher Education Sector) visa – no jurisdictional error – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), s.20
Judiciary Act 1903 (Cth), s.39B
Federal Court Rules (Cth) Order 11 r.16
Federal Magistrates Act 1999 (Cth), s.43(2)(b)
Federal Magistrates Court Rules 2001 (Cth), r.1.05(2)
Migration Act 1958 (Cth), ss.116, 359A, 476
Migration Amendment Regulations 2005 (No.8) (Cth), Sch.5
Migration Regulations 1994 (Cth), reg.2.43, Item 8202 of Sch. 8

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 1669 CLR 279
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Gerhard v Minister for Immigration [2003] FCA 495
Minister for Immigration v Yu (2004) 141 FCR 448
Minister for Immigration v Zhou [2006] FCAFC 96
S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Tian v Minister for Immigration [2004] FCAFC 238

Applicant: CEN YING HUANG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG362 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 30 October 2006

Delivered at: Sydney

Delivered on: 12 December 2006

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 6 February 2006 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG362 of 2006

CEN YING HUANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 February 2006 for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 11 January 2006. The Tribunal decision affirmed a decision of a delegate of the first respondent (“the delegate”) made on

   
   

   12 September 2005, cancelling the applicant’s Student (Subclass 573) (Higher Education Sector) visa.  The applicant seeks unstated relief against the decision of the Tribunal.

2. The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act. The applicant sets out the following ground of review:

   1.The same grounds given in the case Zhou v Minister for Immigration & Anor (No.1) [2005] FMCA 1826 (9 December 2005). I was not able to argue that my breach of condition 8202 was due to exceptional circumstances beyond my control. The sending of the s.20 notice and my attendance at the DIMIA office deprived me of an alternative remedy and arguments to be advanced in support of my exceptional circumstances.

3. The respondent made the following response to the application:

   1.The application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)].

Background

1. The Tribunal decision of Suseela Durvasula, reference N05/05082, made on 11 January 2006, and provides the following background information.  I adopt paragraphs 13 to 18 of the decision for the purpose of this judgment:

   13.The review applicant first entered Australia as a student on 22 March 2004. Her last substantive visa was a Subclass 573 visa which was granted on 1 March 2005. Attached to this visa was condition 8202 (‘meet course requirements’). The visa was cancelled on 12 September 2005 for breach of condition 8202. It would have otherwise ceased on 19 August 2006.

   14.In 2005, the review applicant was studying a Master of Professional Accounting at University of Wollongong (the University).

   15.On 4 August 2005, the review applicant was issued with a notice from the University of Wollongong, pursuant to section 20 of the Education Services for Overseas Students Act 2000, informing her that she was in breach of a condition of her visa relating to academic results and that if she failed to attend an office of the Department within 28 days then her visa would be automatically cancelled. The notice stated:

   University of Wollongong (UoW) has determined that in the semester running from 21 February 2005 to 17 June 2005 your academic results were not satisfactory. This is because you failed 2 subjects out of the 4 subjects you were enrolled in. As a result you have failed to comply with condition 8202(3)(b) of your student visa.

   16.On 24 August 2005 the review applicant attended a Departmental interview as required and was issued with a Notice of Intention to Consider Cancellation. This notice stated that a breach of condition 8202 may have occurred in relation to the review applicant’s academic results. An interview was then scheduled for 12 September 2005.

   17.The delegate interviewed the review applicant on 12 September 2005. At interview, ‘The review applicant stated that she wanted to stay in Australia and study. Her boyfriend is studying here. Her English is not good enough and there are different study ways. She wants to study an accounting course. Her grandmother died sudden1y. It affected her and made her sad.

   18.The delegate cancelled the review applicant’s visa on 12 September 2005 under paragraph 116(1)(b) and subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations. This was on the basis that the review applicant had not achieved at least satisfactory academic results in autumn semester 2005 (21 Feb 2005 to 17 June 2005) and had breached condition 8202. The review applicant was granted a Bridging E visa on the basis that he lodge an application for review with this Tribunal.(Court Book (“CB”) 255-256)

Tribunal’s Findings and Reasons

1. In its decision under the heading ‘Findings and Reasons’, the Tribunal made the following statements:

   27.The Tribunal has had regard to the applicant’s claim that the University did not follow the correct procedures and did not give her an opportunity to discuss her performance with academic staff. This is not a matter for the Tribunal. Condition 8202 requires the review applicant to achieve ‘an academic result that is certified by the education provider to be at least satisfactory’. The wording of the condition clearly leaves the assessment of a student’s academic results to the individual education provider, not to the Tribunal. If the review applicant disputes the way in which the University assessed her academic results or the procedures followed, this is a matter between the review applicant and the University.

   28. In any case, the Tribunal notes that the University issued the review applicant a warning letter in March 2005 inviting her to access the University’s counselling services and discuss her academic performance with academic staff. The review applicant did not receive this letter because she did not inform the University about her change of address.

   29.The Tribunal accepts that the review applicant had some health and family problems in 2005 and that she found parts of her course difficult. However, the legislation does not give the Tribunal a discretion to take these factors into account in deciding whether or not the review applicant breached condition 8202. As stated by the Full Federal Court in Tian, the Tribunal is not entitled to go behind the education provider’s certification.

   30. In this case, the education provider has stated that the review applicant was excluded from the University as she did not achieve satisfactory academic results in the autumn semester of 2005. The review applicant’s shows that the she failed 2 out 4 subjects attempted in 2005. Based on this evidence, the Tribunal is unable to find that the education provider has certified the review applicant’s academic result to be at least satisfactory for the autumn semester of 2005. The only certificate or written record of the education provider is to the contrary. It states that the review applicant’s academic results in autumn semester 2005 were unsatisfactory and she 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). (CB 257-258)

Submissions

1. The applicant appeared before me at first court directions on 7 March 2006 and for further directions on 30 May 2006.  On the latter occasion, I granted her leave to file and serve an amended application to include any additional grounds of review with complete particulars by 18 July 2006.  The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days prior to the hearing.  Neither of these orders have been complied with.  At final hearing, the applicant was invited to make oral submissions in support of her application, but indicated to the Court that she had nothing further to add and would rely upon her original application.

2. Mr Mitchell, counsel for the respondents, filed written submissions prior to the hearing. Mr Mitchell submits that the combined effect of s.116(3) of the Act, reg.2.43 and condition 8202 of the Migration Regulations 1994 (Cth) (“the Regulations”) is the cancellation of that visa if the Minister is satisfied that condition 8202 had been breached: Gerhard v Minister for Immigration [2003] FCA 495 at [17]; Minister for Immigration v Zhou [2006] FCAFC 96 (“Zhou”) at [43].

   
   

   The statutory scheme was amended by Schedule 5 of the Migration Amendment Regulations 2005 (No.8) (Cth).  However, those amendments which commenced on 8 October 2005, do not apply to this application as the cancellation of the applicant’s visa occurred on 12 September 2005.  The Minister has no discretion in the statutory scheme upon being satisfied of the applicant’s breach of condition 8202.  Gerhard v Minister for Immigration at [17] stated:

   17. Section 20 of the Overseas Students Act is not determinative of the attainment of satisfaction postulated by s 116 of the Act. The latter makes no reference to the Overseas Students Act which is not surprising since the relevant provisions of s 116 have remained in their present form since before the Overseas Students Act or the Migration Legislation Amendment (Overseas Students) Act 2000 (Act No 168 of 2000) were passed. Likewise condition 8202 was not amended in the light of the Overseas Students Act and related legislation. Accordingly, the validity of a notice under s 20 of the Overseas Students Act is not a prerequisite for cancellation of a student visa under s 116 although it may, as Counsel for the Minister accepted, be essential for cancellation pursuant to s 137J which was inserted into the Act by the Migration Legislation Amendment (Overseas Students) Act 2000. A cancellation under s 116 must occur upon the Minister's attainment of the requisite satisfaction even if the process has been initiated on the Minister's own motion or otherwise without the issue of a notice under s 20 of the Overseas Students Act. Once that is understood, s 116(3) leaves no discretion to the Minister or the MRT once he or it is satisfied that the holder has not achieved an academic result that is certified by the education provider as at least satisfactory. For a similar view of the effect of s 116(3) in excluding any discretion see Ariyagama v Minister for Immigration and Multicultural Affairs [2001] FCA 1407 [20], Nguyen v Minister for Immigration and Multicultural Affairs [2002] FCA 460 [11] and Akter v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1504 [20].

3. Zhou at [43] stated:

   43.43 In our view, the case for the Minister is correct when it submits that the Federal Magistrate had no proper basis for distinguishing in this case the reasoning of Full Courts in Yu and Humayun and of Ryan J in Gerhard. We accept and apply the reasoning there set out. We do so because the statutory provisions in issue do not admit of any different reading even in a case where the response to a s 20 notice under the Overseas Students Act gives rise to the occasion for delivery of a notice under s 119 of the Migration Act. There is nothing in the provisions to admit of a different application because of what the case for M/s Zhouhttp:// - disp39#disp39 describes at the "legal interaction" between these provisions. It is to the provisions themselves that attention must be directed. They are devoid of any support for a different approach in that circumstance.

4. Tian v Minister for Immigration [2004] FCAFC 238 (“Tian”) at [66] stated:

   66. Section 116 (3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116 (3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.

5. Mr Mitchell submits that any invalidity or defect in the s.20 notice is immaterial to the cancellation decision and such a notice was not a condition precedent to the operation of s.116: Minister for Immigration v Yu (2004) 141 FCR 448 at [37] – [40]; Zhou at [26] – [29], [43]. Further, the applicant did not particularise any defect in the s.20 notice.

6. It is submitted that the Tribunal’s finding that the applicant breached condition 8202 was open to it on the evidence before it. The Tribunal put the information that formed the basis of its decision to the applicant in writing in accordance with the requirements of s.359A(1) of the Act. (CB 244-246) Specifically, the letter from the Tribunal dated

   
   

   19 December 2005 was addressed to the applicant and her adviser.  It provided particulars of the relevant information, explained its relevance to the review and invited her comments on the information.  Having provided the applicant with that opportunity to comment, the Tribunal then proceeded to make its decision on the basis of that information.(CB 256)

7. Mr Mitchell submits that the applicant claims in respect of unfairness that:

   a)the applicant was not able to argue that the breach of condition 8202 was due to exceptional circumstances;

   b)she was deprived of an alternative remedy by the sending of the s.20 notice.

   It is not for the Court to assess the fairness of the s.20 notice or the conduct of the University regarding the applicant’s academic performance: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35] – [36]; Tian at [55] – [56]. Neither of these can lead to the conclusion that the Tribunal decision was vitiated by jurisdictional error by not being a decision “under the Act”; PlaintiffS157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

8. Mr Mitchell notes that the applicant has not pleaded any other grounds of review other than her reference to Zhou.  It is submitted that this pleading is unclear.  Zhou at [20] – [23] provides only limited guidance as to the terms of the applicant’s pleadings. It is submitted that as the pleadings stand, it is susceptible to differing meanings and the first respondent is prejudiced because the pleadings do not state with sufficient clarity the case that it must meet: Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 1669 CLR 279 at 286.

9. Mr Mitchell argues that the applicant’s pleadings should be struck out: Federal Court Rules (Cth), Order 11 r.16; Federal Magistrates Court Rules (Cth), r.1.05(2); Federal Magistrates Act 1999 (Cth), s.43(2)(b).

Conclusion

1. The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter.  At the first court date, the applicant relied upon Zhou and did not put forth a significant pleading.  On that date, it was brought to the Court’s attention that Zhou was on appeal in the Federal Court, the outcome of which could have significant effect on this case.  Consequently, the matter was adjourned to await the outcome of the appeal in Zhou. This has been addressed at [6] above.

2. Mr Mitchell, appearing for the respondents, assisted the Court with written submissions in respect of the application and recent developments which had a direct impact on these proceedings. 

3. I am satisfied that the pleadings do not suggest that the Tribunal made a jurisdictional error in its decision-making process.  Neither is it apparent that any other ground of review exists which suggests jurisdictional error.  The applicant’s claim should be dismissed.

4. I am satisfied that an order for costs should be made in this matter. 

   
   

   I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in the sum of $5,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  7 December 2006