Lam v Minister for Immigration

[2006] FMCA 1505

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1505

MIGRATION – Visa – Student visa cancellation under Migration Act 1958 (Cth) s.116 – Subclass 573 – condition 8202 – failure to meet course requirements – the validity of a cancellation under s.116 is not affected by the invalidity of a notice under Education Services for Overseas Students Act 2000 (Cth) s 20 – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss 116, 119, 137J

Education Services for Overseas Students Act2000, s.20

Uddin v Minister for Immigration & Multicultural Affairs [2005] FMCA 841 referred to
Minister for Immigration & Multicultural Affairs v Zhou [2006] FCAFC 96 followed

Applicant: YIK WAI LAM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 3284 of 2005

Judgment of: Scarlett FM

Hearing date: 29 September 2006

Date of last submission: 29 September 2006

Delivered at: Sydney

Delivered on: 29 September 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Lloyd

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

2. The Application is dismissed.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3284 of 2005

YIK WAI LAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Migration Review Tribunal made on 30^th September 2005 affirming the decision of a Delegate of the Minister to cancel the Applicant's Student (Temporary) (Class TU) visa. By his application filed on 10^th November 2005 the Applicant seeks an order that:

   The decision to cancel my student visa should be revoked.

Background

1. The Applicant arrived in Australia from Hong Kong on 6^th October 2000 as the holder of a Student (Temporary) (Class TU) visa. When that visa expired on 5^th July 2001 he applied for another visa of that same type. On 4^th August 2003 he was issued with a Student (Temporary) (Class TU), sub-class 573 visa which was due to expire on 12^th August 2005. The visa was subject to Condition 8202 (enrolment and course requirements).

2. The Applicant's visa was cancelled on 12^th April 2005 for failure to meet the course requirements. The Applicant had been attending the University of Western Sydney but on 15^th March 2005 the University sent him a notice under s.20 of the Education Services for Overseas Students Act 2000 advising him that he had breached a condition of his student visa relating to satisfactory academic performance in the course in which he was enrolled.  The particulars of the breach were given as:

   Enrolment terminated, academic requirements not met.

3. On 1^st April 2005 the Delegate issued to the Applicant a Notice of Intention to cancel the visa. The Applicant responded to that notice advising that he was aware of the termination of his enrolment but that there were reasons why his performance had been affected.
   The Applicant enrolled in a bachelor's degree in Central Queensland University commencing on 18^th March 2005.  The course is scheduled to end on 4^th March 2007.

4. By a facsimile dated 11^th April 2005 the university provided evidence to the Department that the Applicant had not achieved an academic result considered to be at least satisfactory during 2003 and 2004. 
   This led to the termination of his enrolment. A copy of that facsimile appears at pages 13 to 14 in the Court Book.

5. The Applicant attended an interview with an officer of the Department and following that interview his visa was cancelled. On 20^th April 2005 the Applicant sought a review of the decision of the Migration Review Tribunal. A copy of his application for review can be found at pages 25 to 29 of the Court Book. The Applicant nominated an authorised recipient, a Mr David Yiu.

6. The Tribunal wrote to the Applicant care of his authorised recipient on 20^th May 2005. That letter, under the provisions of s.359A of the Migration Act invited the Applicant to comment on certain adverse information being the information from the University of Western Sydney about his academic results and about being excluded from the course due to those results.

7. The letter set out that the information was relevant to the review because Condition 8202 of his student visa required that he attended an academic result certified by the provider to be at least satisfactory for each term or semester of his course.  If the Tribunal were to find that he had breached Condition 8202 his visa would remain cancelled.

8. The letter advised the Applicant that his comments should be provided within five working days of the date of notification of that invitation.  The letter explained that he had a total of 12 working days from the date of the letter to respond. The Applicant was advised in that letter that he could apply for an extension of time as follows:

   If you are unable to provide comments within this period you may request in writing that you be allowed additional time in which to respond.  Such a request would need to include reasons for the extension and to be received before the end of the above period.  The Tribunal will consider any request for an extension carefully and advise you in writing whether an extension of time has been granted.

9. The letter went on to advise the Applicant that if the Tribunal did not receive any comments within the period allowed or if an extension was not granted, the Tribunal may make a decision on the review without taking any further action to obtain his comments or to invite him to appear before the Tribunal. A copy of that letter appears on pages 32 and 33 of the Court Book.  The Applicant did not reply.

10. The Tribunal wrote to the Applicant again on 11^th July 2005 referring to the provisions of s.359C of the Migration Act which states that:

    If the Tribunal does not receive any written comments within the period allowed it may proceed to make a decision without taking any further action to obtain his comments.

11. Section 360 of the Act provides that:

    Where an applicant is affected by s.359C the Applicant is not entitled to appear before the Tribunal.

12. The Tribunal told the Applicant that it would then proceed to review his application on the basis of the material before it, however, the Tribunal went on to say:

    If you wish to submit any further written arguments that you would like the Tribunal to consider, please do so by Monday 25 July 2005.

13. A copy of the Tribunal’s letter appears on pages 35 and 36 of the Court Book. 

14. No information was forwarded to the Tribunal in reply to that letter.  The Tribunal then handed down its decision on 30^th September 2005 affirming the Delegate's decision. The Tribunal noted that the Applicant did not provide any evidence that his academic results were certified as at least satisfactory by the educational institution and thus a breach of Condition 8202 was made out.

The Application for Judicial Review

1. The Applicant then sought a review of that decision by means of an application filed in this Court on 10^th November 2005.  The Applicant sets out two grounds:

   a) I have provided a confidential report from a psychologist to DIMIA to explain my situation. However, DIMIA did not consider the documents.

   b)  From previous Federal Court decisions the policy or decision of DIMIA to report and cancel student visas is invalid. Therefore the decision to cancel my student visa should be revoked.

2. The Applicant has not filed any further documentation at the Court, either by way of amended application or written submissions.
   The Applicant has attended Court today bringing with him a psychologist’s report that he obtained on 30^th August 2005. 
   He confirmed that a copy of that report had not been given either to the Department of Immigration or the Migration Review Tribunal. In the light of that confirmation the Applicant's first ground does not stand.

3. The Applicant told the Court that he did not have sufficient time to provide the evidence required and when he did the decision was already made. He said that he had to wait for the diagnosis of the psychologist. The Applicant agreed that he did not reply to the Tribunal's letter of 20^th May or seek an extension of time.  He did not provide any information in answer to the Tribunal's letter of 11^th July 2005.

4. As I have dealt with the first ground of the application I will turn now to the second ground.  This is described by counsel for the Respondent, Mr Lloyd as:

   Making a vague allusion to previous court decisions indicating the DIMA’s policy on student visa cancellation was invalid.

5. The First Respondent submits that the Applicant may have in mind the fact that after the decision of this Court in Uddin v Minister for Immigration & Multicultural Affairs [2005] FMCA 841 many purported cancellations following the failure of students to respond to purported notices under s.20 of the Education Services for Overseas Students Act 2000 were accepted by the Minister not to have been legally effective.

6. The Respondent submits, correctly, that this is of no assistance to the Applicant. The fact is that his visa was not cancelled under s.137J of the Migration Act but under s.116 of the Act. This followed an opportunity to deal with the notice under s.119 of the Act. The validity of a cancellation under s.116 of the Migration Act is not affected by an invalid notice under s.20 of the Education Services for Overseas Students Act.

7. This has been made quite clear by the decision of the Full Court of the Federal  Court in Minister for Immigration & Multicultural Affairs v Zhou [2006] FCAFC 96. The fact is that the Applicant's visa was cancelled under s.116 of the Act and the validity or otherwise of the notice that he received under s.20 of the Education Services for Overseas Students Act is irrelevant. The Applicant did not provide any evidence to refute the fact that he had breached Condition 8202 of his visa by not making satisfactory academic progress.

8. No jurisdictional error has been demonstrated. The decision of the Migration Review Tribunal is a privative clause decision under the provisions of s.474 of the Migration Act. The application will be dismissed.

9. There is an application for costs. The amount sought is $6,000.00. I note that the matter had two directions hearings before Registrars of this Court, and a directions hearing before me. It was previously listed for final hearing on 18^th August 2006, when it was adjourned due to the illness of the Applicant. In my view there is no reason why the successful first respondent should not be entitled to a costs order and the amount sought, $6,000.00, which is inclusive of counsel's fees, appears to be not unreasonable in the circumstances.  I propose to make that order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  11 October 2006