Le v Minister for Immigration

[2007] FMCA 401

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 401

MIGRATION – Review of MRT decision − where the applicant was sent a notice under s.20 Education Service for Overseas Student Act on the basis of unsatisfactory academic results − where the applicant attended the interview with a delegate of the Minister − where the applicant applied for merits review − where the Tribunal did not take into account the applicant’s reasons for non-compliance with condition 8202 − whether the Tribunal was required to take into account any exceptional circumstances put forward by the applicant − whether mandatory cancellation of the student visa precludes the Tribunal from exercising its statutory jurisdiction including a consideration of exceptional circumstances under s.338 Migration Act − whether a substantive visa which has been cancelled remains effective pending the completion of a merits review.

Migration Act 1958, ss5, 14, 116(1)(b), 137, 166(3), 338, 349(3)
Education Service for Overseas Students Act 2000, s.20
Migration Amendment Regulations 2005 (No.8)

Uddin v Minister for Immigration [2005] FMCA 841
Minister for Immigration v Zhou [2006] FCAFC 96
Shrestha v Minister for Immigration (2001) 64 ALD 669

Applicant: MINH QUAN LE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG1766 of 2006

Judgment of: Raphael FM

Hearing date: 8 March 2007

Date of Last Submission: 8 March 2007

Delivered at: Sydney

Delivered on: 27 March 2007

REPRESENTATION

Counsel for the Applicant: Mr I Asuzu

Solicitors for the Applicant: Australasia Migration & Legal Services

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1766 of 2006

MINH QUAN LE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application raises the interesting question of the status of a decision of the Minister’s delegate where that decision is able to be reviewed by an independent Tribunal and the applicant has availed himself of the right to review.

2. Mr Ming Quan Le is a national of Vietnam who arrived in Australia on 23 May 2001 to study.  He has held the following visas:

   ·Student Temporary (Class TU) 560 visa granted 15/5/01 until 30/7/02.

   ·Bridging A visa granted 25/7/02 until 14/8/02.

   ·Student Temporary (Class TU) 573 visa granted 15/8/02 until 31/10/02.

   ·Student Temporary (Class TU) 573 visa granted 31/10/02 until 23/9/05. [CB 119]

3. The last visa he held enabled him to enrol in a Bachelor of Science (Information Technology) Degree course at Curtin University of Technology Perth Western Australia.  He proceeded in the course with the moderate success described by the Tribunal in [10] of the Tribunal’s decision at [CB 120].  In semester 1 of 2005 he failed two out of the three subjects which he had taken.  On 19 August 2005 the education provider sent Mr Le a notice under s.20 of the Education Service for Overseas Students Act 2000 (“ESOS Act”) particularising the breach as follows:

   “Failure to achieve satisfactory academic results Curtin University of Technology (Curtin) has determined that in the semester running from 28/2/05 to 24/6/05 your academic results were not satisfactory.  This is because you failed 2 subjects out of 3 subjects you were enrolled in.  As a result you have failed to comply with condition 8202(3)(b).”

4. Condition 8202(3)(b) which applied at the time was in the following form:

   “A holder meets the requirements of this subclause if:

   …..

   (b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:”

5. The applicant complied with the notice under s.20 and attended for an interview with the department.  Although it is not relevant to this decision the Tribunal found that the notice under s.20 was fully compliant and did not contain the defects identified in Uddin v Minister for Immigration [2005] FMCA 841. On 23 September 2005 the delegate cancelled Mr Le’s visa pursuant to s.116(1)(b) and s.166(3) and Regulation 2.43(2)(b) of the Migration Act 1958 (the “Act”).  Mr Le was then granted a Bridging E visa sub-class 050.

6. On 30 September 2005 Mr Le applied for review of the decision of the delegate by the Migration Review Tribunal and was granted a further bridging E visa. 

7. The Tribunal made its decision upon the review on 9 May 2006 stating at [38] [CB 125]:

   “If the Minister has power to cancel a visa under section 116 of the Act, the Minister must cancel if there exists circumstances as prescribed in paragraph 2.43(2)(b) of the Regulations. Non-compliance with condition 8202 is a prescribed circumstance in paragraph 2.43(2)(b). On a literal view, s116(3), Regulation 2.43(2) and condition 8202 appear designed to deny a discretion whether or not to cancel a visa if the condition was not complied with. That is, the Tribunal must affirm a decision to cancel if the condition was breached. The amendments to mandatory cancellation provisions under r.2.43 of the Migration Regulations apply to all Student (Temporary) (Class TU) visas in force on or after 8 October 2005. In the present case, the review applicant’s visa was cancelled in September 2005, and accordingly, the new regulations, making cancellation discretionary, do not apply.”

8. It is this statement of the law expressed by the Tribunal that the applicant seeks to challenge.

Discussion

1. It is now not open to debate in this court that the concerns originally expressed by the applicant about the relationship between a s.20 notice and cancellation under s.116 are no longer relevant; Minister for Immigration v Zhou [2006] FCAFC 96. In Zhou the Full Bench examined the recent and relevant authority relating to these matters and determined that the Minister’s mandatory obligation to cancel a visa under s.116 where a breach of s.8202 had occurred is not affected by the availability of a discretionary right to revoke cancellation under s.137K where cancellation resulted automatically from an applicant’s non attendance before a delegate following receipt of a s.20 notice.

   
   

   At [44] the Full Bench made reference to the amendment to the Regulations which came into effect on 7 October 2005.  The transitional provisions in respect of those amendments are found in Regulation 8.7 of the Migration Amendment Regulations 2005 (No 8) which is in the following form:

   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.”

2. In Zhou their Honours said:

   “It may be further observed that the Migration Amendment Regulations 2005 (No 8 ) have amended the provisions in schedule 5 relating to student (Temporary) (Class TU) visas in reg 2.43(2)(b). The effect of the amendment is to import an additional element into the matters which the Minister must consider before cancelling a visa for breach of condition 8202. That element is that the “non compliance was not due to exceptional circumstances beyond the visa holder’s control”. The effect is therefore to place the procedures under s.20 of the Overseas Student Act and s.116 of the Migration Act on a similar footing which respect to consideration of exceptional circumstances. The amendment came into effect on 7 October 2005 and so cannot assist M/s Zhou…”

3. The decision of the MRT in Ms Zhou’s case was made prior to 7 October 2005.

4. At the hearing of the instant case the applicant argued that the Tribunal decision represented a complete merits review and reconsideration of the applicant’s circumstances in order to decide whether or not his visa should be cancelled.  The nature of the review required the importation of the transitionary provisions so that the Tribunal was entitled and indeed required to take into account any exceptional circumstances put forward by the applicant.  As the applicant had put forward certain circumstances and these were not considered by the Tribunal it had fallen into jurisdictional error and the matter should be remitted.  This submission was not supported by authority and as it had only been made clearly in an amended application which I allowed to be filed in court, and as it involved an assessment of the real nature of a Tribunal hearing and the effect of the existence of a hearing upon a decision already made by the delegate, I ordered that the parties file written submissions in order to provide support to their respective positions.

5. The applicant commences his submissions by making reference to a number of Tribunal cases in which circumstances beyond the control of an applicant were considered in relation to condition 8202. I have not taken these cases into account because the actions of the Tribunal in other cases that may possibly be in breach of s.116 and Regulation 2.43 cannot influence me in deciding a case where the requirements of that section and that regulation are in issue. The applicant then argues that mandatory cancellation does not preclude the Tribunal from exercising its statutory jurisdiction under s.338 of the Act which includes the consideration of circumstances beyond a student’s control provided such evidence is squarely before it. This interpretation of the provisions of the Act was supported by Madgwick J in Shrestha v Minister for Immigration (2001) 64 ALD 669 but that finding was set aside by consent on appeal to the Full Bench and I do not believe it represents the current law.

6. The applicant did not address the issue as to whether the availability of full merits review meant that the original visa continued in some form that allowed the Tribunal to give review on the basis of the law as at the date of the review rather than, as in this case, the law at the date of the delegate’s decision.  Instead he says this:

   “Finally, it is my submission that the delegate had regard to the wrong condition, which the Tribunal failed to correct at the merit review by falling into the same error through its decision to affirm, on the footing that the amended re 2.43 applied. Heerey J had examined the relevant principles and authorities concerning the application of s 50 of the Acts Interpretation Act 1901 (Cth) in Keeley v Repatriation Commission (1999) 30 AAR 48. However, Pradhan v Minister for Immigration and Multicultural Affairs [1999] 94 FCR 91, is authority per Gyles J at 95, that

   “when a visa was granted on 15 April 1997, the applicant was permitted to remain in Australia until 30 July 2000 on the conditions then specified, including condition 8202 as it then stood (and as summarized on the passport). The scheme of the Act and Regulations could, but does not, provide for variation of the conditions during the terms of a visa. In my opinion, s 50 of the Acts Interpretation Act 1901 (Cth) applies and the repeal and re-enactment of condition 8202 does not affect the rights acquired by the applicant upon the grant of the 1997 visa.””

   The decision in Pradhan prevented the respondent from relying on a less favourable condition than one upon which the original visa had been granted.  But in Mr Le’s case what is being sought is to jettison the condition that existed as at the date of his grant of visa and replace it with a more favourable condition relevant only to visas that were in existence at a later date.  I do not believe that the decision in Pradhan is of any assistance to Mr Le.

7. The respondent’s written submissions carefully prepared by Ms Sirtes, commence with the statutory framework of the Migration Act and in particular ss.5,13 – 15 in order to define the status of visa holders. The effect of these sections is that upon cancellation of a visa a previous visa holder becomes an unlawful non citizen unless he or she holds another visa that is in effect. The Act then provides for bridging visas which are not substantive visas. The respondent shows that the applicant is a person who would be entitled to a bridging visa under sub-clause 050 whilst seeking review of the delegate’s decision to cancel (sub clause 050.212(4)(b)). The respondent submits that Mr Le’s application for review did nothing to affect the cancellation of his substantive visa nor did it temporarily reinstate the substantive visa. The substantive visa remained cancelled. Mr Le was only eligible for the bridging visa because he didn’t hold a substantive visa. Pursuant to s.5 the definition of a substantive visa is “A visa other than … a bridging visa.”

8. It seems to me that there is considerable force in this argument. If the Parliament had intended that a substantive visa that had been cancelled should remain effective pending a merits review then it could have so provided. The fact that instead the Act provides for a special class of temporary visa indicates that the original visa was intended to remain cancelled and of no effect until the Tribunal, acting under s.349(3), varied the original decision or set it aside and substituted a new one which is “taken to be a decision of the Minister”.  I would also accept Ms Sirtes’ submission that:

   “The Act makes patent the status of a substantive visa once it is cancelled. It is, in essence, extinguished. The visa which enables the unlawful non-citizen to remain in Australia from that point in order to prosecute their rights to merits and, ultimately, judicial review is not the re-instated substantive visa which is returned to some temporary status for the duration of the review. Rather, it is a specific Bridging visa, granted pursuant to the Act and the Regulations which (pursuant to section 73 of the Act and clause 050.513 of the Regulations) inextricably dependent on the happening of certain events.” [The prosecution of the application for merits or judicial review]

9. The respondent asserts that once the applicant’s visa was cancelled on 23 September 2005 he became an unlawful non citizen within the meaning of s.14 which status did not change by reason of his application for review on 30 September:

   “The only affect that had was to render him eligible for the relevant bridging visa.  In the absence of a substantive visa being in force as at 7 October 2005, the amendments in question did not apply.”

10. The applicant has also raised an alleged failure to comply with s.359A in his written submissions. This is a matter that was not raised at the hearing and I did not intend that additional claims should be raised in written submissions. The applicant’s submissions on this point are difficult to comprehend. Paragraph 8 of his written submissions is in the following form:

    “The applicant is entitled to have all the evidence and claim advanced before the Tribunal to be considered as required by s 359A of the Act. The failure to comply with s 359A is a denial of procedural fairness that amounted to a jurisdictional error: S157/2002 v Commonwealth (2003) 195 ALR 454; BC200300103; [2003] HCA 2. As a consequence, the MRT decision was not made “under the Act”. The current MRT decision in our case is invalid, in that condition 8202 required the MRT to balance other factors, including the student’s circumstances which related to lack of sufficient academic performance. Hence, the MRT did not make findings on these matters, it failed to address the question raised by the criterion.”

11. The respondent has agreed that if the Tribunal was required to take into account Mr Le’s reasons for not complying with condition 8202 this had not been done and a jurisdictional error occurred.  There is no dispute between the parties on that point.  What is in dispute is whether the Tribunal was entitled to take those matters into account and I have found that it was not.  A further submission is made at paragraph 11 and 12:

    “[11] I submit that it was the Parliamentary intention to give applicants the opportunity to be heard on a material issue at a merit review, rather than the Court. My submission is that the lack of observing and/or discharging its obligation in our case, had resulted in erroneous decision. It would be an error of law to allow s 359A to lose its utility, by maintaining the error. For these reasons the decision ought to be set aside or returned to be made according to law, as the MRT is the only merit review Tribunal acting inquisitorially.

    [12] Ultimately, the obvious purpose was denied, as the applicant in our case, was denied the opportunity to respond to adverse information used by MRT against him, which is central to the claim before it. Therefore, it is fair to submit that the applicant was unaware that part of his claim would be left out of the decisional process against his interests. The critical role of s 359A is to secure procedural fairness in the decision making process, where it is left out by the delegate, would have been corrected by the only merit review Tribunal.”

12. I do not think it is fair to say that the applicant was denied an opportunity to respond to adverse information used by the MRT against him.  The only information used by the MRT was the failure of Mr Le to comply with the condition.  But if there was some other adverse information then it has not been identified by Mr Le and I cannot opine upon it.

13. I am satisfied that the scheme of the Migration Act has effectively excluded any argument that the existence of a merits appeal as of right from a decision of a delegate maintains the status quo with regard to the visa that the delegate has purported to cancel. In those circumstances the argument put forward by Mr Le cannot be sustained. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,750.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: