Li v Minister for Immigration - [2005] FMCA 1383

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION

[2005] FMCA 1383

MIGRATION – Visa – Student (Temporary) (Class TU) Visa – Migration Review Tribunal – applicant a citizen of the People's Republic of China – condition 8202.

Migration Act 1958 (Cth)

Applicant:

YANG LI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1049 OF 2005

Judgment of:

Scarlett FM

Hearing date:

29 August 2005

Date of Last Submission:

29 August 2005

Delivered at:

Sydney

Delivered on:

29 August 2005

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Ms Quinn
Phillips Fox

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00 and I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1049 OF 2005

YANG LI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for a review of a decision of the Migration Review Tribunal. It was made on 18 March 2005. The Tribunal affirmed a decision of a delegate of the Minister which found that the applicant was not entitled to be granted a student (Temporary) (Class TU) visa.
The applicant arrived in Australia on 17 March 2001. He arrived on a passport issued by the People's Republic of China. He was granted a student (Temporary) (Class TU) sub class 572 visa on 31 May 2003.

That visa ceased on 9 March 2004. That visa was the subject of a number of conditions, the relevant one is condition 8202, which requires the applicant to meet the course requirements.
Meeting the course requirements involves attending at least 80 per cent of the teaching and making satisfactory academic progress.
On 27 May 2004 the applicant's education provider, the Academy of Information Technology, told the Department of Immigration and Multicultural and Indigenous Affairs that Mr Yang Li, the applicant, had not maintained a satisfactory attendance rate. They gave his attendance for each of the four terms as follows:
(i)Term 1 - 80 per cent.
(ii)Term 2 - 65 per cent.
(iii) Term 3 - 56 per cent.
(iv)Term 4 - 22 per cent to date.
The Academy of Information Technology advised the Tribunal that the applicant was enrolled in full time Certificate 3 Information Technology and a Diploma of Information Technology. The Academy said that he was reported for non attendance on 27 May 2004, he did not successfully complete the diploma and did not advise that he intended to change education provider.
The Academy told the Tribunal that the applicant did not pass any subjects after completing the first three terms and term 4 was incomplete.
The applicant complained about the core standard of tuition offered by the course saying that by the end of term 2 he was already looking for an alternative education provider. He did not complete term 4 because he enrolled in another course at another institution. He believed that his attendance in term 2 would have been more than 65 per cent as quoted by the college.
In evidence at the hearing of the Tribunal the applicant complained about the quality of the teaching saying that he would so bored that he would often leave when the roll was taken.
He was aware in term 2 that it was a condition of his visa that he attend for at least 80 per cent of the course. He told the Tribunal that he did not pass any subjects, and I refer to page 79 and page of the 80 of the Court book.
The applicant believed that he had attended more classes than the education provider said and could not understand why they said he had attended so few.
The Tribunal was satisfied that he had not complied with condition 8202 and that he had failed to comply with it substantially because his attendance was less than 80 per cent in terms 2, 3 and 4 and did not achieve a satisfactory academic result.
The applicant in his amended application provided a ground for the application saying that there was an error of law in the Tribunal's decision constituting jurisdictional error. The applicant provided four particulars of that claim. He said that MRT failed to act according to substantial justice in the merits of the case as required by s.353(2)(b) of the Migration Act.
The particulars were:
(a) The MRT failed to assess fairly and unbiasedly the evidence where there was an obvious conflict between the applicant's oral claims and the information provided by the education provider in regard to his attendance.
(b)The MRT failed to take into account that the fact that the education provider, the Academy of Information Technology, changed ownership structure during the said period and this might lead to the attendance information provided by the school being incorrect.
(c)The MRT failed to take into account the misconduct of the education provider. Such misconducts include the school threatening on the student not to change education provider when he expressed he was not satisfied with the quality of the schools education programme and the school's urging on the student to pay the tuition fee and the extension of his terms.
(d)The MRT failed to recognise the fact that an overseas student is in a weaker position to obtain strong evidence in support of himself or herself while the education provider abuses its right by providing false or misleading information in regard to the student's attendance or academic performance.
Those are the four grounds. As far as the first ground is concerned it is clear that the applicant is complaining that the Tribunal chose to accept the education provider's evidence rather than his claims. The education provider had forwarded a letter to the Tribunal indicating the percentage of times that the applicant had attended in each term in setting out his course results. The applicant said that he thought he had attended more classes than the education provider said but was not able to provide any details.
The applicant also told the Court that he thought he had passed four subjects but I note that the Tribunal was told he had not passed any.

He said that he thought he had passed those subjects.
Ground (b) contains the suggestion that because the education provider changed ownership during the relevant time that this might have led to inaccurate information being provided to the department or to the Tribunal. This is purely speculative and there is no evidence that this may have happened.
Ground (c) referred to the misconduct of the education provider in threatening the student not to change and urging him to pay his tuition fees and extend his term. It is difficult to see how this misconduct, if misconduct it is, has affected the decision of the Migration Review Tribunal unless the alleged misconduct led to incorrect information being provided either to the department or to the Tribunal. There is no evidence of that.
Ground (d) claimed that the Tribunal failed to recognise that an overseas student is in a weaker position to obtain evidence to support his claims of attendance or academic progress, as opposed to an education provider, particularly in the case where the provider gives false or misleading information about the student's attendance or academic performance. That situation may well be so but there is no evidence that the education provider did pass on false or misleading information about the applicant's attendance at the course or about his academic performance.
Ground (b) and (d) are purely speculative and I note that applicant has not provided any evidence at all other than to say he attended to study more often than his education provider believed.
In short the applicant that the Tribunal should have speculated that the education provider's evidence was inaccurate without showing any reasons as to why the Tribunal should have entered into that speculation.
As to the claim that the Tribunal acted unfairly or with bias I note that bias requires a finding of some personal fault on the part of the decision maker and I see no evidence of bias or unfairness in the way the Tribunal conducted the case. The applicant was given plenty of time to attend the hearing and, in fact, did attend and gave evidence.
The fact is the applicant has provided no evidence to show that there was any jurisdictional error. Quite clearly this is a privative clause decision unblemished by any jurisdictional error and is not the subject of review.
The application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 16 September 2005