Krinitchkine v Minister for Immigration

[2007] FMCA 758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KRINITCHKINE v MINISTER FOR IMMIGRATION [2007] FMCA 758

MIGRATION – Student visa – Subclass 573 (Higher Education) visa – Condition 8202 – certified academic result – no discretion of Migration Review Tribunal – application dismissed.

Migration Act 1958, ss.137J, 116(1)(b), 116(3), 359A, 359(2), 359C, 359C(2), 360(2)(c), 360(3), 379A(4), 379C(4), 359B(2), 368A, 368
Migration Regulations 1994, Regs.2.43(2)(b),  2.43(2)(b)(ii)(B) , 2.43(2)(b)(ii)(A)
Education Services for Overseas Students Act, s.20
Migration Legislation Amendment (Overseas Students) Act 2000, Item 4
Migration Amendment Regulations (2005) (No. 8), Schedule 5

Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460
Gerhard v Minister for Immigration and Multicultural Affairs [2003] FCA 495 Tian v Minister for Immigration and Multicultural Affairs [2004] FCAFC 238
Minister for Immigration and Multicultural Affairs v Ahmed [2005] FCAFC 58

Applicant: NIKOLAI KRINITCHKINE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2953 of 2005

Judgment of: Nicholls FM

Hearing date: 8 May 2007

Date of Last Submission: 1 May 2007

Delivered at: Sydney

Delivered on: 8 May 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. S.A. Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2953 of 2005

NIKOLAI KRINITCHKINE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 14 October 2005 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 16 September 2005 to affirm the decision of a delegate of the respondent Minister made on 26 April 2005, to cancel the applicant’s Subclass 573 (Higher Education) visa.

Background

1. With reference to the material in the Court Book (“CB”), the applicant (Mr. Nikolai Krinitchkine) is a national of the Russian Federation who arrived in Australia with a student visa. Attached to this visa was a condition that the visa holder meet course requirements. Relevantly, this required the applicant to be enrolled in a registered (education related) course (Condition 8202(2)(a)), to attend for at least 80% of the contact hours scheduled for each term or semester of the course (Condition 8202(3)(a)(ii)), and to achieve an academic result that was certified by the education provider to be “at least satisfactory” for each term or semester of the course (Condition 8202(3)(b)(ii)).

2. The applicant was subsequently granted a number of (student) visas. But ultimately, the visa which was cancelled (the subject now of review) had Condition 8202(3)(b)(ii) attached to it. This visa was granted in relation to the applicant's enrolment at Central Queensland University (“the University”). On 8 April 2005, the applicant was sent a notice from the University pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) informing him that he had not complied with a condition attached to his visa, relating to a failure to achieve satisfactory academic results, and that if he failed to attend an office of the first respondent’s Department within 28 days then his visa would cease, being “automatically cancelled” pursuant to s.137J of the Migration Act 1958 (“the Act”) (reproduced at Court Book “CB” 1 to CB 2).

3. On 8 April 2005, the University wrote to the applicant informing him that his enrolment had been “cancelled” due to “Unsat Academic Performance” and that his “Confirmation of Enrolment” had also been “cancelled”. Further, it informed the applicant the Minister’s Department had been advised that he was no longer a student of the University (CB 3). I note also that a copy of the applicant’s academic transcript reveals he failed “GDC Programming B” in both the 2004 Autumn Term and the 2004 Winter Term (CB 5).

4. On 26 April 2005, the applicant attended at the first respondent's Department and was issued with a Notice of Intention to Consider Cancellation (NOITC) of his visa (CB 6 to CB 7). The relevant possible grounds for cancellation were notified as:

   “Central Queensland University have advised that you have failed to meet course requirements as you have failed your final course twice whilst under enrolled. Your enrolment has also been cancelled. You may therefore be in breach of Condition 8202.”

5. The notice advised the applicant that his visa may be cancelled pursuant to s.116(1)(b) and s.116(3) of the Act, and Regulation 2.43(2)(b) of the Migration Regulations 1994 (“the Regulations”) with reference, relevantly, to Condition 8202 attaching to his visa. In Part B of the Department’s NOITC, the relevant evidence of and reasons why grounds for cancellation do or do not exist were stated as:

   “- Visa holder has failed course twice whilst under enrolled.

   -  Visa holder’s enrolment has also been cancelled.

   -  Visa holder is no longer registered/enrolled in a full time course.

   -  Visa holder has also failed to meet course requirements

   -  Visa holder is in breach of Condition 8202.”

Legislation

1. Section 116(1)(b) of the Act states:

   “116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (b)its holder has not complied with a condition of the visa; or.

   …

   (3)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”

2. These circumstances were prescribed by Regulation 2.43(2)(b) which relevantly read (at that time, that is, when the matter was before the first respondent’s Department):

   “(2)  For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

   …

   (b)    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.”

3. Condition 8202 of Schedule 8 to the Regulations states:

   8202

   “8202

   (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) 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) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student – the holder is enrolled in a full time course of study or training.

   (3) A holder meets the requirements of this subclause if:

   (a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

   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 and semester of the course; 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

   (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.

   (4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full time course of study or training.”

Delegate’s decision

1. The Minister’s delegate’s decision record is set out at CB 8 to CB 12. It reveals that the delegate’s decision made on 26 April 2005 to cancel the applicant’s visa turned on what the delegate noted, and considered to be, the applicant’s unsatisfactory academic performance. The delegate’s reasons are reproduced at CB 9:

   “As per page 3, No. 5. Mandatory Cancellation”

2. Notification of the decision to cancel the applicant’s visa under s.116(1)(b) of the Act and Regulation 2.43(2)(b) (in this case the applicant’s breach of Condition 8202) was given in writing and acknowledged by the applicant (see signature at CB 7) on 26 April 2005.

Tribunal’s review

1. The applicant lodged an application for review to the Tribunal on
   5 May 2005 (reproduced at CB 13 to CB 18), enclosing a statement at CB 19 to CB 20. The Tribunal acknowledged receipt of the application in writing on 26 July 2005.

2. By letter dated 26 July 2005 and sent to the applicant’s address for service (CB 13), the Tribunal wrote to the applicant pursuant to s.359A of the Act and sought comments on information relevant to its decision (CB 21 to CB 23). Essentially, the applicant was invited to comment on the issue of whether he had complied with Condition 8202 attaching to the visa which had been cancelled. That is, whether he had achieved a level of academic progress that was certified by his academic provider to be at least satisfactory.

3. This was relevant to the Tribunal’s consideration of whether the applicant had breached Condition 8202 of his student visa. The Tribunal informed the applicant that a breach of Condition 8202 would result in a mandatory cancellation of the applicant’s visa (CB 22.7). Pursuant to s.359(2) of the Act, the Tribunal invited the Applicant to provide:

   “…written comments… within 12 working days from the date of this letter…”

4. The applicant was given 12 working days from the date of the letter to respond.  The applicant did not respond.

5. The letter sent pursuant to s.359A of the Act complied with s.359C of the Act. With reference to s.359C(2) and s.360(2)(c) and (3) of the Act, the applicant was not entitled to an interview in the circumstances. With reference to s.379A(4) and s.379C(4) of the Act, the applicant was taken to have received the letter within 7 working days. By virtue of s.359B(2) of the Act and Reg. 4.17(3) of the Regulations, the applicant had to have been given a further 5 working days to respond. The letter complied with these requirements (12 working days).

Tribunal’s decision

1. On 1 September 2005, the Tribunal informed the applicant in writing that a decision had been made and invited the applicant handing down of its decision pursuant to s.368A of the Act on 16 September 2005 (CB 24 to CB 25). The applicant did not attend. On 16 September 2005 the Tribunal wrote to the applicant, providing him with a statement of its decision pursuant to s.368 of the Act.

2. The Tribunal had before it a range of evidence which it set out in its decision record at CB 31 to CB 34. The Tribunal, in its “Findings” at CB 34 to CB 35, found that:

   a)The Minister's delegate made a decision to cancel the applicant's visa pursuant to s.116(1)(b) and s.116(3) of the Act and Regulation 2.43(2)(b) because of the finding that the applicant had not complied with Condition 8202 of his visa (CB 34.4).

   b)The issue it needed to consider was whether, at the time of cancellation of the visa, it was possible to make a decision concerning non-compliance with Condition 8202 as it appears on Item 4 of Migration Legislation Amendment (Overseas Students) Act 2000 from 21 December 2000 onwards. This required that the applicant be enrolled in a registered course, that the applicant attain an attendance record of at least 80% for the course or term or semester of the course if the course was structured in such a way, and that the applicant achieve an academic result that is certified by the education provider as being at least satisfactory (CB 34.5 to CB 34.7).

   c)The review applicant was enrolled in a registered course. The course provider in the “Section 20 Notice” provided to the applicant on 8 April 2005, stated that the review applicant had failed to meet course requirements. A separate letter from the course provider to the applicant, dated 8 April 2005, stated the applicant’s enrolment was cancelled due to: “Unsat (sic) Academic Performance” (CB 84.5 to CB 84.7).

   d)This information on the face of it suggested that the applicant had not complied with Condition 8202 and therefore was liable to visa cancellation pursuant to s.116(1)(b) and s.116(3) of the Act (CB 34.8).

   e)Following the decisions of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 (“Hou”) and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 (“Nguyen”), the Tribunal did not have any discretion to set aside a visa cancellation where there had been a substantiated breach of Condition 8202. Once non compliance with the Condition is established, the Tribunal was bound, by the operation of s.116(3) of the Act, to affirm the visa cancellation (CB 34.9 to CB 34.10).

   f)Section 116 of the Act relevantly provides that if the Minister may cancel a visa under subsection (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled. Sub regulation 2.43(2) of the Regulations set out the prescribed circumstances contemplated by sub-s.116(3) of the Act (CB 35.1).

   g)The question therefore was whether there was a breach of Condition 8202 (CB 35.2).

   h)The Tribunal had information before it from the education provider and the Department that the applicant failed a course on two occasions whilst enrolled and the University had cancelled his enrolment, citing his unsatisfactory performance (CB 35.3 to CB 35.4). The Tribunal then outlined the relevant section of Condition 8202.

   i)Found the applicant had not achieved a satisfactory academic result and was in breach of the condition of the visa. Further, this non compliance must lead to the cancellation of the visa (CB 35.5).

   The Tribunal therefore affirmed the decision to cancel the applicant’s Student (Temporary) (Class TU) visa.

Application to the Court

1. The application to this Court, filed on 14 October 2005 states one sole ground:

   “The Migration Review Tribunal failed to recognise that I have made all possible to complain with Student Visa condition.”

2. The applicant’s visa was cancelled pursuant to s.116(3) of the Act on 26 April 2005 (“the cancellation date”) on the grounds that the Minister’s delegate was not satisfied the applicant had complied with a condition attaching to his visa.

3. The Tribunal noted that at the cancellation date, the version of Regulation 2.43(2) that was in force provided the prescribed circumstances where the Minister must cancel the visa in the case of a Student (Temporary) (Class TU) visa pursuant to s.116(3) of the Act. Under Regulation 2.43(2), the Minister must cancel the visa where the visa holder has not complied with Condition 8202 (CB 35.1 to CB 35.5).

4. Even at the time of the Tribunal’s consideration and decision, Regulation 2.43(2) had not been amended to include (as it presently does) a requirement that the relevant decision maker be satisfied that in addition to the failure to comply with Condition 8202 (Regulation 2.43(2)(b)(ii)(A)), the non-compliance was not due to exceptional circumstances beyond the visa holder’s control (the current Regulation 2.43(2)(b)(ii)(B)).

5. The relevant statutory scheme was amended by Schedule 5 of the Migration Amendment Regulations (2005) (No.8). These amendments commenced on 8 October 2005. This applied to “all Student (Temporary)(Class TU) visas in force on or after the day on which Schedule 5 commences” (see Clause 7 of Select Legislative Instrument (“SLI”) 2005 No. 221):

6. Clause 7 of SLI 2005 No. 221 provides:

   “7 .    Transitional – Schedule 5

   The amendment made by Schedule 5 applies in relation to all Student (Temporary)(Class TU) visas in force on or after the day on which Schedule 5 commences, whether or not a breach of Condition 8202 occurred before the day on which Schedule 5 commences.”

7. The applicant’s visa had been cancelled on 26 April 2005. It was not in force at the time the amendment became operational, that is, 8 October 2005. The relevant amendment therefore (which would have required the decision maker, delegate or Tribunal, to have considered not only whether there was a certification of at least satisfactory academic progress, but also whether the failure to achieve such progress was due to exceptional circumstances beyond the applicant’s control) could only apply to the cancellation of student visas that were in force “on or after” the day on which the amendment became operational. There is no error in the Tribunal applying the version of Regulation 2.43 in force at the relevant time.

8. Pursuant to s.116(1) of the Act, a visa may be cancelled if the visa holder has not complied with a condition of the visa. Pursuant to s.116(3) of the Act, the visa must be cancelled if prescribed circumstances exist. Such circumstances were (and are) prescribed in Regulation 2.43.

9. At the hearing before the Court the applicant stated:

   (1)That he agreed that he had failed the course requirement.

   (2)That he understood his visa would be cancelled, unless he reported to the Department by the 28^th day after the Notice under Section 20 of the Education Services for Overseas Students Act 2000 (CB 1).

   (3)That he did attend the Department, but nevertheless his visa was cancelled.  Further, he stated that he was not given any time by the Department.

   (4)That the Tribunal did not take into account that the Department did not give him any time.

   (In response to the above issues, Ms. Sirtes submitted that the reference to s.137J of the Act was misconstrued by the applicant, and the reference to the section did not mean that his visa would not be cancelled.)

10. Regulation 2.43(2), as it was prior to 8 October 2005 (given that the applicant’s visa was not in force after 26 April 2005), provided that a student visa must be cancelled if the Minister is satisfied that the visa holder has not complied with Condition 8202. In this case, Condition 8202 required (relevantly) the Tribunal to be satisfied that the applicant achieved an academic result certified by the education provider to be at least satisfactory for each term or semester (whichever was shorter) of the course (Condition 8202 (3)(b)(ii) (CB 35.2 to CB 35.5)).

11. In these circumstances therefore, s.116(3) of the Act leaves no discretion to the Tribunal. Once the Tribunal was satisfied that the holder had not achieved an academic result that was certified by the education provider “as at least satisfactory” (Hou, Nguyen and Gerhard v Minister for Immigration and Multicultural Affairs [2003] FCA 495). There was either certification or there was not (Tian v Minister for Immigration and Multicultural Affairs [2004] FCAFC 238 at [55] to [56] (“Tian”)).

12. The Tribunal’s decision was open to it on what was before it. The evidence was that there was no relevant certification that the applicant had academic performance for the relevant period that was “at least satisfactory”.

13. The applicant’s stated complaint is that the Tribunal should have taken into account that:

    “The Migration Review Tribunal failed to recognise that I have made all possible to complain (sic: comply) with the student visa”

    I take this to mean that there was a failure on the part of the Tribunal to recognise that he had made all possible attempts to comply with the student visa. This does not assist the applicant. The amendment to the legislative scheme requiring such consideration by the Tribunal did not apply to the applicant’s circumstances. Regardless of the applicant’s circumstances or his attempts to “comply”, as the “law stood” it had no discretion to act otherwise once it was satisfied that there was no certification as to the applicant’s academic progress being “at least satisfactory”.

1. Simply, as the Minister submits, the Tribunal was not in error in finding that the applicant had breached Condition 8202.  There was no certification by the education provider as to satisfactory academic performance and the cancellation was therefore mandatory (Tian, Minister for Immigration and Multicultural Affairs v Ahmed [2005] FCAFC 58). Simply, there was no certification.

2. I cannot discern jurisdictional error in what the Tribunal has done.  The application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date:  24 May 2007