Li v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1432
•28 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
Li v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1432MIGRATION – judicial review – student visa – visa cancelled due to failure to meet attendance requirements – where failure to address significant aspects of applicant’s claim amounts to jurisdictional error – where Tribunal raised but did not consider excuse for being marked absent.
Migration Act 1958 (Cth) s 116
Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)
Migration Regulations 2.43Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 followed
HONG JIA LI V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 871 OF 2003
BEAUMONT ACJ
28 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 871 OF 2003
BETWEEN:
HONG JIA LI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
BEAUMONT ACJ
DATE OF ORDER:
28 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Migration Review Tribunal dated 25 June 2003 be set aside, with costs.
2.The matter be remitted to the Migration Review Tribunal for reconsideration in accordance with law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 871 OF 2003
BETWEEN:
HONG JIA LI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
BEAUMONT ACJ
DATE:
28 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT ACJ:
INTRODUCTION
This is an application for constitutional writs made under s 39B of the Judiciary Act 1903 (Cth) seeking relief in respect of a decision of the Migration Review Tribunal (‘the Tribunal’) under the Migration Act 1958 (Cth) (‘the Act’). The Tribunal affirmed a decision of the Minister’s delegate to cancel the subclass 560 (student) visa held by the applicant, a national of the Peoples’ Republic of China.
Section 116 of the Act, relevantly, confers the following powers to cancel a visa:
‘Section 116. Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
...
(b)its holder has not complied with a condition of the visa
...
(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 provides:
‘Regulation 2.43 Grounds for cancellation of visa (Act, s 116)
...
(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:
(i)...
(ii)condition 8202.’
The applicant’s visa attached condition 8202, contained in Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). Item 4 relevantly states:
‘4. ...
(3) The condition is that:
...
(c)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
(d)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 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 TRIBUNAL’S REASONS
In its reasons, the Tribunal referred (at [32]) to a statutory declaration made by the applicant on 30 May 2003.
In that declaration, the applicant said (relevantly):
‘7.At times when I checked my attendance at the school – I was surprised my attendance was lower than I thought – and after checking several times I found it was because where I had been more than 10 minutes late to a class I had been marked as absent. I am aware this occurred several times in term 1 and 2 though I do not know of it happening on any other occasions.’
In its reasons, the Tribunal noted that the applicant’s evidence included the following:
‘32.In the statutory declaration the ... applicant stated that she was surprised to find that she had been marked absent on several occasions in terms 1 and 2 when she was late for class.’
However, whilst it dealt with a number of other matters raised by the applicant, the Tribunal did not consider and made no finding on the issue thus raised.
CONSIDERATION
In my opinion, by failing to address a central issue in the applicant’s claims, the Tribunal has erred jurisdictionally (see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at [24] – [27]). It must follow, in my view, that notwithstanding the presence of a privative clause, an appropriate constitutional writ, in this case an order in the nature of mandamus, should issue.
The applicant further relied upon other grounds of challenge but it is not necessary to consider them.
ORDERS
Accordingly, I make these orders:
1.Set aside the decision of the Migration Review Tribunal dated 25 June 2003, with costs.
2.Order that the matter be remitted to the Tribunal for reconsideration in accordance with law.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont.
Associate:
Dated: 5 December 2003
Counsel for the Applicant:
Ms L Tucker
Solicitor for the Applicant:
Jonathan Wong Solicitors
Counsel for the Respondent:
Ms T Jowett
Solicitor for the Respondent:
Blake Dawson Waldron
Date of Hearing:
28 November 2003
Date of Judgment:
28 November 2003
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