Li v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2003] FCA 1432

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1432

MIGRATION – 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 2.43

Dranichnikov 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
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

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
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BEAUMONT ACJ

DATE:

28 NOVEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BEAUMONT ACJ:

INTRODUCTION

  1. 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.

  2. 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.’

  3. 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.’

  4. 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

  5. In its reasons, the Tribunal referred (at [32]) to a statutory declaration made by the applicant on 30 May 2003.

  6. 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.’

  7. 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.’

  8. 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

  9. 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.

  10. The applicant further relied upon other grounds of challenge but it is not necessary to consider them.

    ORDERS

  11. 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
Details
AGLC
Li v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1432
Case
[2003] FCA 1432
Decision Date

CaseChat Overview and Summary

In Li v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant challenged the decision of the Migration Review Tribunal (MRT) which had dismissed his application for review of a decision to cancel his visa. The Federal Court was tasked with examining whether the Tribunal had erred in its consideration of the applicant's claims. The central issue before the court was whether the Tribunal had jurisdictionally erred by failing to consider and make a finding on a significant aspect of the applicant's claims, despite addressing other matters raised by him.

The legal issues revolved around the extent to which the Tribunal was required to consider all aspects of the applicant's claims and whether its failure to address a pivotal issue constituted a jurisdictional error. The court considered the effect of a privative clause in the relevant legislation, which purported to limit the scope of judicial review. The applicant argued that the privative clause should not preclude the court from intervening where the Tribunal had failed to consider a fundamental aspect of his claims.

The court determined that the Tribunal's failure to consider and make a finding on a crucial issue did indeed constitute a jurisdictional error. The court held that despite the presence of a privative clause, an appropriate constitutional writ, such as an order in the nature of mandamus, should issue to compel the Tribunal to reconsider the matter in accordance with law. The court did not find it necessary to address the other grounds of challenge presented by the applicant.

Consequently, the court made two orders: firstly, to set aside the decision of the Migration Review Tribunal dated 25 June 2003, with costs, and secondly, to remit the matter to the Tribunal for reconsideration in accordance with law. This decision underscores the importance of ensuring that administrative tribunals fully consider all relevant aspects of an applicant's claims to avoid jurisdictional errors.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BEAUMONT ACJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BEAUMONT ACJ

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.