Kwan v Minister for Immigration
[2008] FMCA 1210
•19 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KWAN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1210 |
| MIGRATION – Student (Temporary (Class TU) visa cancelled – test whether Tribunal satisfied that non–compliance was not due to exceptional circumstances beyond the applicant’s control. |
| Migration Act 1958 (Cth), ss.116, 474 Migration Regulations 1994, reg.2.43 Federal Magistrates Court Rules 2001, rr.44.11, 44.12 |
| Ashraf v Minister for Immigration & Anor [2007] FMCA 448 |
| Applicant: | HO KWAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1670 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 23 June 2008 |
| Date of Last Submission: | 23 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Jonathon Wong |
| Counsel for the Respondents: | Ms Burchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 6 December 2007 is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,000.00 within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1670 of 2007
| HO KWAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the decision by the Migration Review Tribunal (the “MRT”) (CB 92) which affirmed the decision of the delegate of the Minister to cancel the applicant’s Student (Temporary) (Class TU) Visa. (CB 23).
Background
The applicant filed an application for review on 6 December 2007 that set out the following grounds and particulars:
“The decision of the Second Respondent was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s116 to cancel the visa and its powers to conduct a review under s348 of the Act The Second Respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
i)It wrongly construed Regulation 2.43(2)(b)(ii)(B) or alternatively misapplied the Regulation and/or asked itself the wrong question by not asking itself whether it was satisfied that the Applicant’s non-compliance was not due to exceptional circumstances beyond his control.
ii)It wrongly construed the definition of “exceptional circumstances” under regulation 2.43 of the Migration Regulations 1994 or alternatively misapplied that regulation to the facts of this case in determining whether the Applicant’s non compliance was not due to exceptional circumstances beyond his control.
iii)It wrongly imposed an onus upon the Applicant by requiring him to satisfy it that the Applicant’s non-compliance was due to exceptional circumstances beyond his control.
iv)It wrongly construed the terms “contact hours” and “contact hours scheduled” in condition 8202 and insofar as defined in Regulation 1.03 of the Migration Regulations 1994.”
Mr Gibson appeared for the applicant and Ms Burchell for the first respondent.
Pursuant to r.44.11(c) of Federal Magistrates Court Rules 2001, the Court dispensed with a hearing under r.44.12 and proceeded to a final hearing of the matter.
The gravamen of the case is that the Tribunal misconstrued the provisions of s.116(1)(b) of the Migration Act 1958 (Cth) (the “Act”) and reg.2.43 of the Migration Regulations 1994 (the “Regulations”).
Section 116(1)(b) provides:
“Section 116. Power to cancel
(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.”
The relevant provisions of reg.2.43 are:
“Regulation 2.43. Grounds for cancellation of visa (Act, s.116)
…
(2) …and
(b) in the case of a Student (Temporary)(Class TU) visa:
(i)that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A)the visa holder has not complied with condition 8202; and
(B)the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.”
The applicant claims that there was an “inversion of proof or standard”. The applicant complains about the statement of the Tribunal that:
“The substantive issues to the decided by the Tribunal are (a) whether the alleged non-compliance occurred, and (b) if so, whether it was due to exceptional circumstances beyond the visa holder’s control” (CB 97.2).
The applicant complains that the Tribunal stated that the test is whether the non–compliance “was due” instead of “was not due” to exceptional circumstances beyond the visa holder’s control (Court emphasis added).
The applicant referred to (CB 100) para 41 which states:
“41. Having made that finding, the Tribunal must consider whether the non-compliance was due to exceptional circumstances beyond the review applicant’s control.”
At (CB 44.6) the Tribunal stated that it must affirm the cancellation of the visa if it is satisfied that the non–compliance was not due to exceptional circumstances beyond his or her control (Court emphasis added).
At (CB 101.3) the Tribunal stated that it “is not satisfied that the review applicant’s non–compliance in semester 1 of 2007 was due to exceptional circumstances beyond his control.”
At (CB 101) para 48 the Tribunal stated that it “is satisfied to the required degree that his non–compliance was not due to exceptional circumstances beyond the review applicant’s control” (Court emphasis added).
The Tribunal therefore considered “whether the non–compliance was due to exceptional circumstances beyond the applicant’s control, or was not due to circumstances beyond the review applicant’s control.”
The conclusion of the Tribunal was based on the correct test in finding that it is “satisfied to the required degree that his non–compliance was not due to exceptional circumstances beyond the review applicant’s control.” The Tribunal therefore applied the correct test (CB 101 para 48).
The applicant relies on the decision of Federal Magistrate Riethmuller in Ashraf v Minister for Immigration & Anor [2007] FMCA 448 at [8] et seq where his Honour considered a decision of the Tribunal which applied the test of whether a breach of condition 8202 “was due to exceptional circumstances beyond his control” and not whether or not the Minister “could be satisfied that the non–compliance was not due to exceptional circumstances beyond the visa holder’s control” (Court emphasis added). His Honour held that the correct test had not been applied and remitted the matter to be determined according to law.
The applicant argued that the case is indistinguishable from the present: the Court disagrees. In Ashraf the Tribunal considered whether the breach was due to exceptional circumstances beyond the applicant’s control.
The decision in Ashraf does not establish an error of law in the present case.
In the present case the conclusion of the Tribunal of non–compliance was based firmly on the correct test of whether “his non–compliance was not due to exceptional circumstances beyond the review applicant’s control” (CB 101.5) (Court emphasis added). The Tribunal in Ashraf did not consider that test Ashraf at [20].
The Court does not need to consider the discretion to refuse relief, as an error of law has not been established.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 19 September 2008
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