Lee v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 177

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 177

PING HANG HERMAN LEE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 257 OF 2001

DOWSETT J
25 FEBRUARY 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 257 OF 2001

BETWEEN:	PING HANG HERMAN LEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT
DATE OF ORDER:	25 FEBRUARY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 257 OF 2001

BETWEEN:	PING HANG HERMAN LEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT
DATE:	25 FEBRUARY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The present applicant was granted a sub-class 560 visa on 21 September 1999.  It was a condition of this visa that he undertake a particular course of education and that he attend for at least 80 per cent of the contact hours scheduled in each semester of that course.  On 6 March 2001, the relevant college reported that the applicant had attended only 53 per cent of the relevant contact hours in respect of the course which he was undertaking, which was a Diploma of Information Technology (Software Development).  As much appears from p 10 of the Appeal Book.

2. No challenge was made to the meaning of the figures which appear there, although there is a challenge to their accuracy.  The Minister gave notice to the applicant of the possibility that his visa would be cancelled and gave him an opportunity to make representations as to why that should not occur.  Notwithstanding those representations, the visa was cancelled.  The applicant then applied to the Migration Review Tribunal (the “Tribunal”), which application was unsuccessful.

3. On 4 December 2001 the applicant filed a document which is described as an Application for an Order of Review. By that time, the new provisions relating to judicial review were in force. Broadly speaking, the only basis for review in this Court is pursuant to s 39B of the Judiciary Act 1903 (Cth). The respondent has, in my view properly, indicated that, in the event that some ground is demonstrated, it would be appropriate to treat the application for review as an application for one of the constitutional writs referred to in s 39B, subject to appropriate amendments being made to the application. However, as I consider that no appropriate ground is made out, it would be pointless to put the applicant to the trouble and expense of doing so.

4. The ground upon which the applicant seeks to challenge the decision is that it was made in bad faith.  That assertion hangs entirely upon the fact that the Tribunal proceeded upon the basis that the applicant's attendance at the relevant course had fallen below the 80 per cent level, as disclosed in attendance rolls.  These demonstrated that his attendance during the relevant semester had been 53 per cent.  It is said that the applicant asserted, in the course of the hearing, and before the Minister’s delegate, that the rolls might be inaccurate and that he felt he had attended for more than 53 per cent of the time.  It is obvious that the rolls were not kept entirely in accordance with the apparent intention underlying their design in that the relevant instructor has not initialled them.  It is also suggested that there was no head count and that there may have been other formal irregularities.  It seems from par 12 of the Tribunal's reasons that similar submissions were made there. 

5. The applicant has, at no time, asserted that his attendance was 80 per cent or more, and in those circumstances the general allegation that the roll may have been inaccurate has little or no significance.  Further, it is clear from the application made to the Tribunal that the thrust of the applicant's case, at that time, was not so much that he had attended as required, but rather that he had an explanation for his failure to attend.  This explanation appears to have been based primarily upon assertion that his workload had induced illness.  The Tribunal treated this as the primary basis of the applicant's complaint and dismissed it.  That aspect of the decision is not challenged for present purposes. 

6. It is clear from the material that the applicant was informed of his entitlement to call evidence before the Tribunal should he so wish.  He was assisted at the hearing before the Tribunal by a migration agent.  These arrangements may not have been ideal, and one might wish that he had received the benefit of legal advice.  Nonetheless, there is no reason to believe that he was other than aware of his entitlement to call evidence.  In fact, the migration agent sought the Tribunal's assistance in securing relevant records from the college.

7. It is necessary to keep in mind, in considering these facts, the purpose for which we are addressing them.  It is to see whether or not there is any basis for the assertion of an absence of good faith in the decision reached by the Tribunal.  It seems to me that the outcome of that inquiry must inevitably be that there is no basis for the assertion.  In the absence of a claim that he had, in fact, attended 80 per cent or more of the relevant contact hours, it is difficult to see why the Tribunal should have treated him as raising any relevant issue.  It is possible, I suppose, that if his attendance level had been closer to 80 per cent, the reasons advanced in justification of his absence may have been more persuasive, but the Tribunal's reasons demonstrate little cause for attaching substantial weight to those reasons.  There appears to have been no suggestion that the illness which he claimed compelled his absence from classes.  In any event, I can see no basis for the assertion of bad faith.  In those circumstances the application must be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             13 March 2002

Solicitor for the Applicant:	Stephen J Hockey
Counsel for the Respondent:	Ms E Ford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 February 2002
Date of Judgment:	25 February 2002