Kumar v Minister for Immigration - [2008] FMCA 1458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION

[2008] FMCA 1458

MIGRATION – Whether the Court has jurisdiction to review the cancellation pursuant to s.137J of the Migration Act 1958 (Cth) of a student visa – whether cancellation pursuant to s.137J of the Migration Act 1958 (Cth) is a decision of an administrative character made under the Migration Act 1958 (Cth).

Migration Act 1958 (Cth), ss.137J; 137J(2); 137K; 474; 474(2); 474(3); 474(3)(b); 474(3)(g); 474(3)(h)
Education Services for Overseas Students Act 2000 (Cth), ss.19; 19(2); 20
Migration Regulations 1994, reg.8202(3)(a)
Federal Magistrates Court Rules 2001, r.44.06(2)(a)

Griffith University v Tang (2005) 221 CLR 99

Applicant:

TARUN KUMAR

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Judgment of:

Emmett FM

File Number

SYG 2280 of 2008

Hearing date:

14 October 2008

Date of Last Submission:

14 October 2008

Delivered at:

Sydney

Delivered on:

24 October 2008

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones, Solicitor

Solicitors for the Respondent:

Mr A. Markus, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2280 of 2008

TARUN KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

This is an application by the Respondent that this Court lacks jurisdiction to hear the application for judicial review of the cancellation of the Applicant’s student visa on 21 June 2008 pursuant to s.137J of the Migration Act 1958 (Cth) (“the Act”). The application to this Court is brought pursuant to r.44.06(2)(a) of the Federal Magistrates Court Rules 2001.
The Respondent’s Response filed 3 October 2008 is as follows:
“1.1The jurisdiction of the Court under s 476(1) of the Migration Act 1958 (“the Act) is in respect of ‘migration decisions’ as defined by s 5 of the Act.
1.2The application purports to seek judicial review of the cancellation of the applicant’s student visa pursuant to s 137J of the Act.
1.3The Court does not have jurisdiction to review the cancellation of the applicant’s visa under s 137 J of the Act, because the cancellation pursuant to that section occurs by operation of law, and does not involve a ‘migration decision’ for the purposes of the Act; i.e. no administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the Education Services for Overseas Students Act 2000 to a non-citizen.”
The application filed by the Applicant on 2 September 2008 seeks review of the cancellation of the Applicant’s student visa pursuant to s.137J of the Act.
At the heart of the Respondent’s submissions is that the act of cancellation of the Applicant’s student visa pursuant to s.137J of the Act, is not a reviewable decision by this Court because, it is not, inter alia, a decision of administrative character made under the Act or a regulation or another instrument under the Act as is required by s.474(2) of the Act.
It is common ground that this Court can review a privative clause…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1458
Decision Date: 24 October 2008

CaseChat Overview and Summary

Kumar v Minister for Immigration involved a challenge to the cancellation of the Applicant's visa under section 137J of the Migration Act 1958 (Cth). The Applicant argued that the Federal Court had jurisdiction to review the decision under section 474 of the Act, which provides for judicial review of decisions made under the Act. The Minister for Immigration argued that the visa cancellation was not a decision of an administrative character made under the Act and therefore not subject to judicial review.

The legal issue before the Court was whether the automatic cancellation of the Applicant's visa under section 137J of the Act was a "decision of an administrative character" made under the Act, as required for the Court to have jurisdiction to review the decision. The Court considered whether the mandatory time limits in section 137J(2) of the Act triggered the operation of the privative clause in section 137J(1) of the Act.

The Court held that the automatic cancellation of the Applicant's visa under section 137J(2) of the Act was a decision of an administrative character made under the Act. The Court found that the mandatory time limits in section 137J(2) of the Act did not trigger the operation of the privative clause in section 137J(1) of the Act. The Court therefore had jurisdiction to review the decision under section 474 of the Act.

The Court ordered that the cancellation of the Applicant's visa be quashed and that a new visa be issued to the Applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is common ground that this Court can review a privative clause decision pursuant to s.474 of the Act. Section 474(2) of the Act is as follows:“(2) In this section:privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).” [Emphasis added] It is the construction of the meaning of “a decision” as referred to in that section that is relevant to the application before the Court. It is common ground that in order to be a privative clause decision it is necessary that “a decision of an administrative character” must have been made under the Act. Mr Markus, on behalf of the Respondent submitted that the cancellation of the Applicant’s visa pursuant to s.137J of the Act is not a decision of an administrative character made, relevantly, under the Act or Migration Regulations 1994 (“the Regulations”). Section 137J is as follows:“(1)This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).Note:Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.(2)The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:(a) the non-citizen complies with the notice; or(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:(i) in Australia; or(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.” It is common ground, for the purposes of the Court’s determination of its jurisdiction, that a notice was sent to the Applicant, being a non-citizen, pursuant to s.20 of the Education and Services for Overseas Students Act 2000 (Cth) in relation to a visa held him. Having received such a notice, s.137J(2) of the Act provides mandatory time limits for the Applicant to take certain steps. It is common ground that the Applicant failed to take steps in accordance with the time limits and did not apply for revocation of the cancellation in accordance with s.137K of the Act. In the circumstances, the Applicant’s visa was cancelled automatically pursuant to s.137J(2) of the Act.

Ratio Decidendi

Legal Principle Established

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