LEE v Minister for Immigration - [2005] FMCA 524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION

[2005] FMCA 524

MIGRATION – Cancellation of student visa – whether education provider certified academic result to be at least satisfactory – whether required procedure for cancellation of visa followed.

Migration Act 1958, ss.119,120
Migration Regulations 1994
Education Services for Overseas Student Act 2000 (Cth)

Tian v Minister for Immigration and Multicultural Affairs [2004] FCAFC 238

Applicant:

WEI-LIN LEE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1302 of 2004

Judgment of:

Phipps FM

Hearing date:

4 April 2005

Last Submission:

4 April 2005

Delivered at:

Melbourne

Delivered on:

29 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr Levin

Solicitors for the Applicant:

Michael Kane Barristers & Solicitors

Counsel for the Respondent:

Mr Hay

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1302 of 2004

WEI-LIN LEE

Applicant

And

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks review, by way of prerogative writ, of a decision of a delegate of the respondent cancelling the applicant's student visa.
The applicant is a citizen of Taiwan. He first arrived in Australia in 1999 as the holder of a student visa. On 16 May 2003, he was granted a further student (Temporary) (class TU) subclass 573 Visa. The Visa was due to expire on 15 March 2007. On 25 March 2004, by a decision of the delegate of the respondent, the visa was cancelled due to a breach of condition 8202, namely unsatisfactory academic results.
The applicant filed an application to review the delegate's decision with the Migration Review Tribunal on 30 March 2004. The application was withdrawn on 20 September 2004. The applicant then filed an application in the Federal Magistrates Court on 11 October 2004.
On 6 February 2004, Central Queensland University, the university the applicant was attending, sent the applicant a non-compliance notice pursuant to s.20 of the Education Services for Overseas Student Act 2000 (Cth). The adequacy of the contents of the notice, and the consequences of any inadequacy, are the essential matters relied upon in this application.
Section 116 of the Migration Act 1958 provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) . . .
(b) its holder has not complied with a condition of the visa; or
(c) . . .
(2) . . .
(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.
Regulation 2.43(2) of the Migration Regulations 1994 specifies the prescribed circumstances. It provides:
(2) For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) . . .
(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
(i) . . .
(ii) condition 8202.
Condition 8202 (contained in schedule 8) of the Migration Regulations provides:
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) . . .
(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
The reason the delegate gave for cancelling the visa was that the applicant’s academic results for semesters 1 and 2 of 2003 were not deemed to be satisfactory by Central Queensland University. The delegate's decision sets out that the university confirmed on 4 March 2004 that the applicant's results for semesters 1 and 2 of 2003 were not deemed to be satisfactory by the university. A breach of condition 8202 was established on the grounds of unsatisfactory academic results.
Once prescribed circumstance under s.116(3) are established cancellation is mandatory. The Minister has no discretion (Tian v Minister for Immigration and Multicultural Affairs [2004] FCAFC 238 at [65, 66]).
The applicant alleges that a notice sent by the university to the applicant, purporting to be sent pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) did not certify that the applicant's academic results were not satisfactory. The applicant then argues that the visa could not have been cancelled because there was not the necessary certification from the university. Section 20 provides:
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) . . .
The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
The notice sent by the university to the applicant dated 6 February 2004 said:
This notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 as you have breached a condition of your student visa relating to satisfactory academic performance in the course in which you have been enrolled at this institution
Particulars of breach:
Student was placed on Student Monitoring Program in 11/4/03 due to poor academic results. Over the 2003 academic year the student failed 7 and passed 1 course. Over the duration of his program he passed 4 courses and failed 12. He did not seek assistance from Faculty, Student and Client Services or the Learning Skills Unit. Did not meet the conditions of the Student Monitoring Program, therefore program has been cancelled
The notice then warned that pursuant to s.137J of the Migration Act 1958 (Cth), the student visa would cease on the 28th day after the date of the notice unless the applicant reported to the Department of Immigration and Multicultural and Indigenous Affairs.
The sending of a notice under s.20 of the Education for Overseas Students Act is not necessarily a part of the procedure required by the Migration Act for the cancellation of a student visa. That is set out in ss.119 and 120 of the Migration Act. Nevertheless, the notice sent by the university plainly states that the notice is sent because the applicant has breached a condition of his visa relating to satisfactory academic performance and sets out the relevant particulars of the academic performance.
The argument for the applicant is that the notice under s.20 of the Education Services for Overseas Students Act did not say that the applicant’s academic performance was unsatisfactory. All it said, it was submitted, was that the applicant had not met the conditions of the Student Monitoring Program and so that program had been cancelled.
The notice says explicitly "you have breached a condition of your student visa relating to satisfactory academic performance". The reference to the Student Monitoring Program is contained in the “Particulars of breach” which follows the statement. The particulars say that the student was placed on the program due to poor academic results. Particulars then set out the poor academic results in the 2003 academic year. The applicant failed seven and passed one course. Over the duration of the program, he had passed four courses and failed twelve. The particulars also referred to the applicant being placed on the Student Monitoring Program and states that this was due to poor academic results.
The notice states quite clearly that the breach of visa relates to a condition requiring satisfactory academic performance. It sets out the poor academic performance. The applicant could not have been misled by the contents of the notice. It notifies him that his academic results have been poor and that as a consequence, he has breached a condition of his visa. If it is relevant, the notice satisfies the requirements of s.20 of the Education Services for Overseas Students Act.
Section 119 of the Migration Act provides that the Minister must notify the visa holder of the particular grounds on which cancellation is being considered and the visa holder is invited to show either that the grounds do not exist or there are reasons that the visa should not be cancelled. The section allows for notice to be given orally. Section 120 provides that the Minister must give particulars of relevant information to a visa holder, and ensure, as far as reasonably practicable, that the visa holder understands why it is relevant to the cancellation and invite the visa holder to comment on the information before a visa is cancelled.
A Notice of Intention to Consider Cancellation under s.116 of the Migration Act 1958 was given to the applicant. It was signed as having been received by him on 8 March 2004 at 1:21pm. Under the heading "Possible grounds for cancellation" the grounds given were:
CQU confirmed on 4/3/04 that your academic results for semesters 1 and 2, 2003 were not deemed to be satisfactory by CQU.
Possible breach of condition 8202.
The record of the delegate's decision shows that the applicant attended for interview immediately after on 18 March 2004. The applicant agreed that his results were unsatisfactory in semester 1 and 2 of 2003. He said that he wanted another chance. He said that in semester 2, 2003 he was cheated by a friend in three assignments and this led to three failures in his units. A statutory declaration which he provided said that he had given the assignments to a friend so that the friend could read them. Instead of handing the assignments into the applicant's lecturer as the friend had promised, the friend, so the applicant claimed, handed the assignments in as his own.
The delegate had a document headed "Information Request" dated

4 March 2004 from the university. It said that the applicant's academic results were not satisfactory for both semester 1 and semester 2 of 2003. Under the heading "Further Comments" this appeared:
Due to poor academic progress, Michael was placed on the Student Monitoring Program where he was counselled regarding his progress and advised to attend the Learning Skills Unit (LSU) for extra assistance. Michael did not attend the LSU and failed to meet the requirements of his contract. Michael did not achieve satisfactory academic progress.
The delegate considered that prescribed circumstance did exist. The applicant had not achieved an academic result that was certified by the education provider to be at least satisfactory. The delegate had information from the university dated 4 March 2003 which said this was the case. In those circumstances, the delegate’s decision was correct.
The required procedure as required by ss.119 and 120 of the Migration Act was followed. The applicant was given notice of the possible grounds of cancellation, namely academic results for semester 1 and 2 of 2003 were not deemed to be satisfactory by the university. Little time followed between the notification and the interview, but the applicant was not disadvantaged. He conceded the correctness of the relevant information. He already knew from the section 20 notice that he must attend for interview and why he needed to attend.
Documents in the Court Book show that the applicant had appointed a migration agent to assist him. He submitted two documents, some through the migration agent, that he wanted to put before the tribunal. Some at least were submitted after the interview. These documents were a report from a psychologist, medical certificates and a statutory declaration. The statutory declaration describes what the applicant alleged happened to his three assignments.
The information contained in the documents the applicant submitted was not material. Once there was a lack of certification of satisfactory progress, cancellation was mandatory. Their relevance now is that they were submitted. The applicant accepted at the interview that his results were not deemed to be satisfactory by the university. He was given the opportunity to put matters before the delegate, and he did, including the submission of documents after the interview. The matters he put before the delegate were irrelevant. What is important is that the applicant was given, as he had to be, the opportunity to put matters to the delegate.
The applicant's case concentrated on the section 20 notice. The notice may have played a part in ensuring that the applicant had notice of the grounds upon which the visa might be cancelled. It was necessary for the purpose of the delegate's decision that condition 8202 was not satisfied. To satisfy the relevant part of the condition, the applicant had to achieve an academic result that was certified by the education provider to be at least satisfactory. The university's notification of 4 March 2003 showed that the condition was not satisfied. Once the necessary procedure had been followed, the delegate had no choice but to decide that the visa should be cancelled.
The respondent’s contentions submitted that the Court had no jurisdiction to review the decision and that the application to the Court was out of time. Those submissions are correct if the decision is a privative clause decision. Since there is no error of law in the decision it is a primitive clause decision. Since there is no error in the decision there is no need to deal in detail with the jurisdiction and time arguments.
The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: