Li v Minister for Immigration
[2005] FMCA 1328
•4 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION | [2005] FMCA 1328 |
| MIGRATION – Review of decision of Migration Review Tribunal affirming a decision of a delegate of the Minister to cancel the applicant’s Student Visa – no reviewable error disclosed – application dismissed. |
| Education Services for Overseas Students Act 2000 Migration Act 1958 Migration Regulations 1994 Federal Magistrates Court Rules 2001 |
| Tian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC |
| Applicant: | JING LI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 119 of 2005 |
| Judgment of: | Hartnett FM |
| Hearing date: | 4 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F.L. Krohn |
| Counsel for the Respondent: | Ms H.M. Riley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant pay the costs of the respondent, fixed in the sum of $8280.
Certify for counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 119 of 2005
| JING LI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who was born on 10 November 1972. She was the holder of a student visa valid until 15 March 2006. The visa was subject to condition 8202, which required amongst other things, that the visa holder achieve an academic result that is certified by the relevant education provider to be at least satisfactory for each term and semester of the course undertaken.
By letter dated 6 February 2004, the applicant was given notice pursuant to section 20 of the Education Services for Overseas Students Act 2000 (The ESOSA notice) that she had failed eight and passed zero courses in 2003. The ESOSA notice said that the applicant was required to report personally with photographic identification to a departmental compliance officer within 28 days of the date of the notice or her visa would be automatically cancelled under section 137J of the Migration Act 1958 (the Act). The applicant was required by the ESOSA notice to attend at the Casselden Place office of the department.
On 25 February 2004 the applicant attended as required and was given a notice of intention to consider cancellation of her visa under section 116 of the Act. The applicant says she did not attend personally before a compliance officer whilst she was there. The respondent says she did. Either way, the applicant did receive on 25 February 2004 a notice of intention to consider cancelling her visa, which she signed on that day at approximately 11 am to verify that she had received it.
The compliance officer whose signature appears on the notice of intention to consider cancellation along with that of the applicant, with both signatures being signed on 25 February 2004 at 11 am as indicated on that notice, has sworn an affidavit in these proceedings being an affidavit sworn on 26 July 2005 and filed on 27 July 2005. That affidavit is in response to an affidavit filed by the applicant on 27 June 2005. I note the affidavit was sworn at a much earlier date being
2 March 2005 but nothing turns on that. Both the applicant and Ms Evelyn Leung, the compliance officer, were cross-examined by counsel for each of the parties.
The applicant gave evidence that she received the ESOSA notice on or about the 7th or 8th day of February 2004. She gave evidence that she understood there to be automatic cancellation of her visa unless she attended before a compliance officer and that she accordingly attended at the Casselden Place office of the respondent's department on
25 February 2004 for the purpose of reporting personally to a compliance officer taking with her her current passport – being photographic identification of herself - and a copy of the notice. The purpose of the attendance was to explain the breach of her student visa condition as specified in the section 20 notice.
The applicant’s evidence is that she signed the notice of intention to consider cancellation at 11 am on 25 February 2004, as did the compliance officer, and that she - the applicant - was in the presence of the compliance officer when she signed that document albeit not at the counter. The applicant's evidence was that she attended at the offices of the department accompanied by her migration agent. She said that the area to which she was required to proceed was a relatively small space with a few rows of seats with a clear line of sight to the person sitting behind the counter. She described the distance between herself when seated and the counter as very small.
In particular, her evidence was that the compliance officer asked her to go to the counter, and her response was that she did not have a pen. She then gave evidence that she signed the notice whilst standing and being a couple of feet away from the counter. Her evidence was further that the compliance officer thought she did not speak much English and spoke to her agent. She said she signed the document and herself did not ask very many questions, saying that she needed only to explain her breach of the student visa condition whilst she was being interviewed.
The applicant confirmed that the ESOSA letter and her passport were given to the compliance officer by her migration officer and her evidence was that she did not indicate to the delegate nor to the tribunal subsequently that she had formed the view that her visa had already been cancelled prior to the delegate’s decision.
Ms Leung was cross-examined and, where her evidence contradicted that of the applicant, I find the evidence of Ms Leung to be preferred. She impressed as a witness of truth who did comply with office procedures. She gave evidence that her primary role was to issue a notice of intention to cancel, but that thereafter the cancellation interview itself was conducted by a case officer. She did not recall deviating from set procedures in the time at which she was employed as a compliance officer.
Ms Leung’s standard procedure as described by her was that she would:-
a)obtain a copy of the identification of the applicant as she proceeded to do and as confirmed by the applicant in her evidence;
b)write out a notice if of intention to cancel as indeed she did;
c)proceed to call for the client (in this case the applicant) to attend at the counter whereupon she explained the contents of the notice: in essence, an explanation as to why it was the notice was being given to the applicant and purpose of the interview confirming the applicant was to attend on a set date and time at a set place for interview.
Ms Leung gave evidence that she was so entrenched in her work practice and her process so systematic that she would not have deviated from her usual procedure on the day in question. She was confident about her work ethic and the importance of the procedure, treating each applicant as an individual transaction to be dealt with in an isolated manner.
The notice of intention to consider cancelling a visa required the applicant to attend for interview on 9 March 2004. The evidence of the applicant was that she was unwell on that day, and accordingly the applicant was given another notice of intention to consider cancelling a visa on 15 March 2004, with the applicant attending later that day for interview.
During the interview, the applicant agreed that her results from 2003 were unsatisfactory. The visa was cancelled on 15 March 2004 on the basis that cancellation was mandatory under section 116(3) of the Act in the circumstances.
On 18 March 2004 the applicant applied to the Migration Review Tribunal (the tribunal) for a review of that decision. The tribunal affirmed the delegate's decision by its decision dated 28 June 2004. The applicant filed an application for review in this court on 2 August 2004 and filed an amended application and contentions dated 18 February 2005.
Legislation
Section 116 of the Act, so far as is relevant, provides as follows:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) any circumstances which permitted the grant of the visa no longer exist; or
(b) its holder has not complied with the condition of the visa; or …
(g) a prescribed ground for cancelling a visa applies to the holder …
(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 of the Migration Regulations 1994 provides, so far as is relevant, as follows:
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
……
(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
……
(ii) condition 8202.
The form of condition 8202 applicable to the applicant's visa was as follows:
(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) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full-time course of study or training.
(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 per cent 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.
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training.
Tribunal hearing
The tribunal held a hearing on 17 June 2004, at which the applicant gave evidence. She said that during 2003 she was greatly affected by a number of health problems experienced by members of her family. The applicant submitted a psychiatric report which referred to the health problems of the applicant's family members and to the applicant's own insomnia and low self-esteem.
The tribunal found that the procedures for cancellation of a visa under Subdivision E of the Act had been followed in this case. Applying section 116(1)(b) and (3) of the Act, and Regulation 2.43, the tribunal noted that cancellation was mandatory if the applicant had not complied with condition 8202. The tribunal found that the applicant had not complied with condition 8202 and so affirmed the decision under review.
Consideration
The applicant challenges the tribunal's finding that it had no discretion under section 116(3) of the Act. However, the applicant acknowledged that the Full Federal Court decision of Tian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 238 authoritatively established that there is no discretion under section 116(3) of the Act.
Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in Regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in section 116(3) and provided for in Regulation 2.43(2) exist. The Minister must cancel the visa. Where condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.
(That is per Ryan, Jacobson and Lander JJ at paragraph 66).
The tribunal found that the discretion to cancel under section 116(1) is fettered by section 116(3) which provides that the Minister must cancel a visa under certain prescribed circumstances (set out in Regulation 2.43(2)). The tribunal noted that that section removed the tribunal's discretion in relation to those prescribed circumstances. The tribunal said:
That is, where there are prescribed grounds, there is no discretion not to cancel.
Accordingly, the tribunal found the review applicant's visa was cancelled under the mandatory provisions, and that the main question for the tribunal was whether the review applicant achieved an academic result that was certified by CQU to be at least satisfactory for semester 2, 2003 of her course, as required by condition 8202 as it applied to her. If there was non-compliance with this provision, as the tribunal found, then cancellation was mandatory. CQU had confirmed on 4/3/04 that the client's academic results for semester 2, 2003 was not deemed to be satisfactory by CQU.
The applicant also argues that she did not comply with the ESOSA notice because she did not report personally to a compliance officer within the 28 days. Accordingly, the applicant claimed for the first time - it not having been an allegation raised before either the delegate or the tribunal - her visa was cancelled automatically under section 137J of the Act and that there was no visa for the compliance officer to cancel on 15 March 2004. The applicant says further that the automatic cancellation is now amenable to revocation under section 137K of the Act.
That argument is rejected. The court finds that the applicant did report personally to a compliance officer within the 28 days and that she was given and signed a notice of intention to consider cancelling a visa by the compliance officer. The notice was signed at the same time by the compliance officer suggesting they were in each other’s presence. Even were this not the fining of the Court, I accept counsel for the respondent's argument that there cannot be a jurisdictional error constituted by failure to take into account a relevant consideration if the allegedly relevant consideration was not brought to the tribunal's attention, in circumstances such as these.
There is no identifiable error of law or jurisdictional error committed by the tribunal in this matter. Accordingly, the application should be dismissed with costs.
I have had handed to me a claim for costs prepared in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001, and am satisfied that the sum of $8280 is an appropriate amount to be awarded against the applicant in these proceedings.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 13 September 2005
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