Li v Minister for Immigration
[2004] FMCA 39
•30 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION | [2004] FMCA 39 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – applicant failing to meet minimum attendance record – no exceptional circumstances demonstrated – no reviewable error found – application dismissed. |
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), ss.137J, 137K, 137L, 359
Migration Legislation Amendment (Overseas Students) Act 2000
Gurung v Minister for Immigration [2002] FCA 772
Kwan v Minister for Immigration [2002] FCA 498
Minister for Immigration v Kwan [2002] FCAFC 380
Siddique v Minister for Immigration [2003] FCAFC 16
Zou v Minister for Immigration [2002] FCA 1126
| Applicant: | YUAN LIN LI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ363 of 2003 |
| Delivered on: | 30 January 2004 |
| Delivered at: | Sydney |
| Hearing date: | 30 January 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Mr D Ong appeared for the Applicant, with leave. |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ363 of 2004
| YUAN LIN LI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 5 March 2003. The MRT affirmed a decision of a delegate of the Minister not to revoke the automatic cancellation of a sub-class 560 student visa formerly held by the applicant. The applicant came from China to study in Australia and got into difficulties in maintaining the required attendance record. In the light of a decision that the applicant's attendance had been below the minimum requirements, the applicant's student visa was cancelled and the applicant sought review of that decision.
The general background to this matter is set out in Mr Reilly's written submissions and I adopt paragraph 1 through to paragraph 4 of those written submissions for the purposes of this judgment:
On 5 March 2003 the MRT affirmed a decision of a delegate of the respondent to refuse to revoke the cancellation of the applicant’s Student (Temporary) (Class TU) visa.
The applicant’s visa was automatically cancelled under s.137J of the Migration Act 1958 (Cth) (“the Migration Act”) after the applicant failed to respond to a notice sent to him under s.20 of the Education Services for Overseas Students Act 2000: court book, pages 7-8, 87 [16]. The applicant applied on 1 October 2002 for the revocation of the cancellation pursuant to s.137K of the Act: court book, pages 15-21. The delegate refused to revoke the cancellation pursuant to s.137L of the Act on 4 October 2002: court book, pages 36-37. The applicant applied to the MRT for review of the delegate’s decision on 8 October 2002: court book, pages 38-41. On 29 November 2002 the MRT wrote to the applicant pursuant to s.359A of the Act inviting his comment on information from Wollongong University College (WUC) that the applicant was not making satisfactory academic progress and did not have an attendance rate of at least 80% in any semester: court book, pages 71-72. The applicant responded on 16 December 2002: court book, pages 73-74. The MRT held a hearing on 11 February 2003.
As the MRT notes at page 86 [10] of the court book the applicant’s student visa was subject to the amended condition 8202 inserted by the Migration Legislation Amendment (Overseas Students) Act 2000, quoted by the Tribunal at page 86-87 [11] of the court book. (The amendment of condition 8202 operates retrospectively: Gurung v Minister for Immigration [2002] FCA 772 (Tamberlin J); Zou v Minister for Immigration [2002] FCA 1126 (Hill J); Siddique v Minister for Immigration [2003] FCAFC 16 at [12]. The decision to the contrary in Kwan v Minister for Immigration [2002] FCA 498 (Finkelstein J) was set aside by consent in Minister for Immigration v Kwan [2002] FCAFC 380).
The MRT considered information received from WUC and concluded that the applicant had breached condition 8202 for the period 6 November 2000 to 22 June 2001: court book, page 91 [38-41]. The MRT considered pursuant to s.137L(1)(b) of the Act whether the breach was due to exceptional circumstances beyond the applicant’s control, and concluded that it was not: court book, page 91 [43].
The applicant did not appear in Court this afternoon for the trial of the matter. The applicant's migration agent, Mr Ong, wrote to the Court recently to advise that he understood that the applicant had left Australia and returned to China and that an adjournment was requested so that the applicant could consider his position.
My associate invited Mr Ong to attend Court this afternoon. I gave him leave to appear on behalf of the applicant to seek an adjournment and, if necessary, to represent the applicant on the hearing of the application. I declined an adjournment on the basis that it did not appear to me that an adjournment would assist the applicant. If the applicant elected to discontinue his application it was most unlikely that any costs would be saved. I also considered that Mr Ong would be able to represent the applicant as effectively as he could have himself.
The hearing then continued with Mr Ong representing the applicant on the substance of the application. Mr Ong presented written submissions which were filed in court this afternoon and spoke to those submissions. The submissions boil down to two propositions. The first is that the decision of the MRT is inconsistent with a decision of the MRT in another matter, case number N02/08865, which Mr Ong submits was a case involving very similar circumstances. Secondly, Mr Ong submits that the information from the educational institution, the University of Wollongong College, in this matter was unreliable and that the approach taken by the university was questionable.
It is apparent from the reasons for decision of the MRT that the attendance record and the explanations for non-attendance were given fairly close consideration by the presiding member. Nevertheless, the presiding member determined at paragraph 41 of her reasons for decision (court book, page 91) that the applicant's attendance was below 80 per cent for the period between 6 November 2000 until 22 June 2001 and that, accordingly, condition 8202 on the applicant's visa had been breached. In the circumstances, the question for the MRT was whether the applicant was able to demonstrate exceptional circumstances that might convince the MRT to revoke that cancellation which operated automatically. The presiding member found, at paragraph 43, that no exceptional circumstance had been demonstrated.
In my view, the conclusions reached by the MRT both in relation to the attendance record of the applicant and the absence of exceptional circumstances were reasonably open to the MRT on the material before it. I do not rule out the possibility that other material might be available, or might become available, which might cause a decision maker to reach a different decision. I invited Mr Ong, if he was so instructed, to take the matter up with the Minister and her Department if he wished to request further consideration of the circumstances of the applicant's attendance at the institution and the institution's assessment of that attendance. There is no legal significance in the fact that a different decision was reached in a different matter. Neither is there any legal significance in the attack on the reliability of the information the MRT received from Wollongong University College.
I accept Mr Reilly's submissions that there is no jurisdictional error in the decision of the MRT. In the circumstances, the decision is a privative cause decision. The application must be dismissed.
On the question of costs, the application having been dismissed, Mr Reilly seeks an order for costs fixed in the sum of $4,000 on a party/party basis. This matter was relatively straightforward and no more than what I would describe as an average amount of preparation was required on behalf of the Minister. The relative simplicity of the matter is reflected in Mr Reilly's written submissions. In my view, a costs order fixed in the sum of $3,000 would be adequate recompense for the Minister in the matter. Therefore, I will order that the application be dismissed and the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $,3000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 February 2004
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