KONG v Minister for Immigration
[2006] FMCA 851
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KONG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 851 |
| MIGRATION – Student visa – mandatory cancellation for non-compliance – no jurisdictional error detected – Application dismissed. |
| Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 35 MIMIA v Hou (2002) FCA 574 MIMA v Nguyen (2002) FCA 460 Zhou v Minister of Immigration and Multicultural and Indigenous Affairs (Number 1) 2005 FMCA 1826 |
| Applicant: | TIANLE KONG |
| Respondents: | MINISTER FOR IMMIGRATION & MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 794 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 23 May 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nugent |
| Solicitors for the Applicant: | Direct Brief |
| Counsel for the Respondent: | Mr Duncan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant pay a contribution to the costs of the First Respondent fixed in the sum of $5000 within 30 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 794 of 2005
| TIANLE KONG |
Applicant
And
| MINISTER FOR IMMIGRATION & MIGRATION REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
(settled from the ex tempore reasons)
The applicant is a citizen of the Peoples Republic of China, born 6 October 1968. He first entered Australia on 4 March 2001 as the holder of a student (temporary) (class 2U) visa, sub-class 560. Since that time, the applicant has held several student visas, the most recent visa being granted on 25 August 2003. This visa was cancelled by the member for breach of condition 8202 on 6 May 2004.
It is not contested by the applicant that he had failed to satisfy the conditions of his student visa relating to satisfactory academic performance in the course in which he had been enrolled. The applicant essentially submits that the delegates decision "was unfair and unreasonable" in that it did not take into account what he contends was a relevant consideration, namely:
“The applicant's poor academic results were affected by several unfortunate personal and family difficulties, which were beyond the applicant's control”.
At the commencement of today's hearing, pro bono counsel for the applicant, Mr Nguyen, sought an adjournment on two bases. First, he indicated that he was unwell. To his great credit, he has remained here today to assist the applicant. I indicated to him, however, that as Mr Nguyen had provided further written submissions today (which were not the subject of objection by the respondent), dealing with an additional ground relating to the section 20 notice, and, further, as he has demonstrated a further capacity to review the matter and make a further submission, which I allowed him to make about apparent inconsistencies, it did not seems appropriate to allow an adjournment on that basis.
Furthermore, Mr Nguyen sought that the application today be adjourned pending the hearing of an appeal apparently still pending against a decision in Zhou v Minister of Immigration and Multicultural and Indigenous Affairs (Number 1) 2005 FMCA 1826. That decision has been the subject of further consideration both by this court, by Federal Magistrate Smith in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs, and an appeal from that decision has been heard and determined by the Full Court, reported as Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 35, by a bench comprising Wilcox, Conti and Stone JJ.
In respect of the background to this case, I adopt and incorporate in these reasons the summary in the respondent's submissions at paragraph 6(a) to 6(l), which is, as I say, not seriously contested, namely:
The relevant facts can be summarised as follows:
a. The Applicant first entered Australia on 4 March 2001 as the holder of a Student (Temporary)(Class TU) subclass 560 visa;
b. The Applicant has held several student visas since then. The Applicant was most recently granted a Subclass 574 Visa, on 25 August 2003 on the basis of his enrolment in a postgraduate course (Master of Information Systems) at Central Queensland University (CQU). Attached to that visa was Condition 8202 (Enrolment and Course Requirements). That visa was cancelled on 6 May 2004, for breach of condition 8202, failure to meet course requirements;
c. On 28 April 2004, CQU sent the Applicant a Notice pursuant to s.20 of the Education Services for Overseas Student Act 2000 (“the ESOS Act”) In that Notice, amongst other things, the Applicant was advised that he had breached a condition of his visa, the particulars of which were stated as follows:
“Student failed to meet course requirements. 1 course from 12 has been completed successfully (not including current semester)”
d. The notice also stated that the Applicant’s student visa would be cancelled on the 28th day after the date of the notice unless he attended DIMIA’s office by that time.
e. On 29 April 2004, the Applicant approached DIMIA and was given a Notice of Intention to Consider Cancellation (“NOICC”). That Notice stated that there may be grounds for the cancellation of the visa under section 116 of the Act as breach of condition 8202 may have occurred. The notice further stated:
“CQU have reported you failing to meet course requirements. 1 course from 12 has been completed successfully. You may therefore be in breach of condition 8202 on your visa “must meet course requirements”
f. On 6 May 2004 the Applicant attended an interview with a representative of DIMIA. The Interview Note reveals that the Applicant admitted that he did not meet the course requirement, although he stated that the circumstances were beyond his control. The Interview Note records the Applicant’s explanation of those circumstances including his and his wife’s health problems, the subsequent need to look after his child and wife during and after pregnancy and that his studies suffered because he had to travel to the Gold Coast from Sydney to attend classes.
g. On 6 May 2004, the delegate proceeded to cancel the Applicant’s student visa pursuant to section 116(1)(b) and s 116(3) of the Act and regulation 2.43 of the Migration Regulations 1994 (“the Regulations”), on the basis that he breached Condition 8202, to which the visa is subject. The delegate noted that grounds for cancellation existed as CQU had reported the Applicant for not meeting course requirements, and the visa holder did not dispute this. Given that the delegate was satisfied that the Applicant had breached Condition 8202, the delegate was required to cancel the Applicant’s visa in accordance with subs.116(3) of the Act, because prescribed circumstances existed, see reg 2.43(2)(b);
h. An Application for Review was lodged with the MRT on 13 May 2004, and a submission in support of the Application was lodged on 23 August 2004. That submission claimed that the review applicant had difficulties sitting for his examinations because of a number of matters that were beyond is control, including the review applicant being ill, his wife’s pregnancy and that he was the victim of an assault;
i. The Applicant attended a hearing before the Tribunal in Brisbane on 13 October 2004, and provided sworn evidence to the Tribunal. He reiterated much of the information on the files. He confirmed that he has not completed course requirements. Amongst other things he told the MRT that as previously he had not done well in his studies he became more stressed. He indicated that pressures of his family life prevented him at times from handing in assignments on time, attending examinations and on several occasions seeking deferment of sitting for examinations. The review applicant claimed that complications associated with his wife’s pregnancy caused distress and required much of his attention. He informed the Tribunal that since June 2004 he has been seeking advice of a psychologist Josephine Combe. He provided a written report of this advice dated 9 September 2004.
j. The Tribunal Decision and Reasons was handed down on 30 March 2005.
k. The Applicant applied for ministerial intervention on 18 April 2005. The Minister decided not to exercise her public interest powers to substitute a more favourable decision, and informed the Applicant in a letter dated 17 November 2005.
l. The Application for Review was filed in the Federal Magistrates Court of Australia on 13 December 2005.
In respect of the applicable law and provisions, I adopt for these reasons those provisions conveniently set out at paragraph 21 to 28 of the applicant's submissions relied upon today:
21.The visa was subject to conditions including condition 8202 (located in Schedule 8 to the Regulations). This condition was imposed by clause 573.611 of Schedule 2 of the Regulations, which under the heading “573.6 Conditions” provided relevantly as follows:
“573.611(1) If the applicant satisfies the primary criteria:
in all cases;
conditions 8202, 8501, 8532 and 8533;….”
22. Condition 8202 provided relevantly:
“8202 (1) The holder …..must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) …….
(3) A holder meets requirements of this subclause if:
(a) ……..; and
(b) 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
(i) for a course that runs for at least a semester – for each term or semester (which is shorter) of the course.
(4) ……
23. “Registered course” is defined in regulation 1.03, and there is no dispute that the course in which the Applicant was enrolled at MIBT was a registered course.
24. Section 116 of the Act provides for cancellation of visas relevantly as follows:
“116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) any circumstances which permitted the grant of a visa no longer exist; or
(b) its holder has not complied with a condition of the visa; or
…….
(2) ……
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed the circumstances in which a visa must be cancelled.”
25. Sub-regulation 2.43(2) relevantly prescribed the circumstances referred to in subsection 116(3):
“2.43 Grounds for cancellation of visa (Act, s116)
……
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
……
(a) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
……
(ii) condition 8202.”
26. Section 119 of the Act which contains requirements for notice to be given of intention to consider cancellation of a visa, is of indirect relevance. Relevantly, under section 119(1), the delegate was required to notify the Applicant “that there appear to be grounds for cancelling” the visa and to:
(a) five particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.”
27. Section 20 of the Education Services for Overseas Students Act 2000 (Cth) relevantly provided:
“20 Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act”
28. Sections 137J and 137K of the Migration Act 1958 (the Act) provided for the consequences of a visa-holder’s failure to comply with a notice under s.20 of the Education Services for Overseas Student Act. They do not fall for consideration here, because the Applicant did comply with the notice served on him
The grounds of appeal are again set out in the Notice of Appeal filed in this court on 13 December 2005, conveniently re-stated by me as follows, namely that:
“1. The MRT made a jurisdictional error in denying the applicant natural justice.
2. The decision made by the delegate of the Department of Immigration and Multicultural Affairs (DIMA) and by the MRT was unfair and unreasonable.
3. They did not take into account a relevant consideration, that is, the applicant's poor academic results were affected by several unfortunate personal and family difficulties, which were beyond the applicant's control.
4. Due to the fact that the situation was beyond the applicant's control, the applicant has not breached his visa conditions.
5. The section 20 notice issued to the applicant was ineffective as per the reasons enunciated in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs Number 1 (2005) Federal Magistrates Court of Australia 1826. Any valid notice, which triggers a decision which in turn is considered by the Tribunal is a decision making process, which is void ab initio”.
Discussion
It is settled law, in my view, that the non-compliance of student visa conditions results in mandatory cancellation (and no discretion is available to a delegate not to cancel or for the MRT to set aside the cancellation). And I rely upon the authorities referred to in the respondent's submissions of MIMA v Nguyen (2002) FCA 460 and MIMIA v Hou (2002) FCA 574.
That such mandatory effect could, in exceptional cases, create a possible unjust result has been recognised by the legislature. With the amendments effected by the Migration Amendment Regulations 2005 (Number 8) (Schedule 5) coming into effect on 8 October 2005, paragraph 2.43(2)(b) was amended to substitute the former provision with the following:
“ (b) In the case of student (temporary) (class 2U) visa:
(i) The minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(ii) The minister is satisfied that;
(a) The visa holder has not complied with the condition 8202; and
(b) The non-compliance was not due to exceptional circumstances beyond the visa holder's control.”
Sadly, for this applicant, his student visa was cancelled on 6 May 2004, so even if there was non-compliance, which was:
“...due to exceptional circumstances beyond the visa holder's control.”
(as the applicant contends), it cannot apply to this case.
The other issue raised is the defect or validity of the section 20 notice. Although I would not lightly depart from a well considered decision of another member of this court, such as is the decision of Federal Magistrate McInness in Zhou v The Minister for Immigration and Multicultural Affairs (Number 1) supra, I am bound by the decision of the Full Court on the same point, enunciated in Humayun, in particular, where Wilcox J, with whom Conti and Stone JJ agreed, says at paragraph 30 that:
“30 Mr Catterns argued the s 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by McInnis FM in Zhou V Minister for Immigration and Multicultural and Indigenous Affairs (No 1)[2005] FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any view about its correctness. Counsel for the Minister contended that even if the s 20 notice was incapable of having the consequences set out in Subdivision GB of Division 3 of the Migration Act (ss 137J – 137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate’s decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248, 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58, 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218.”
As said by his Honour in that case:
“There is nothing in this point.”
The facts of that case are not dissimilar to the facts in this case. The other grounds relied upon by the applicant are not supported by any of the evidence before me. For example, there is not, in my view, any evidence to support a finding that the applicant was denied procedural fairness. The history of the matter, in fact, suggests otherwise, that is: that he had every opportunity to produce to the MRT, all documents and records he wished, including, it would seem, a report from a private psychologist. Regrettably for this applicant, those matters were simply not relevant to the law that applied at that stage.
In my view, no ground establishing jurisdictional error has been made out. The delegate and the MRT correctly decided the matter on the law binding them at that time. Therefore, the decision is, in my view, a privative of clause decision and I am bound to dismiss the application, which I now do.
I make an order for costs in the usual form, that the applicant pay the first respondent's costs, fixed at a sum of $5000, within 30 days.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: E Keen
Date: 14.06.2006
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