LIN v Minister for Immigration (No.2)

[2005] FMCA 1714

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 1714

MIGRATION – Review of decision by Migration Review Tribunal – cancellation of student visa. 

Migration Act 1958 (Cth), ss.116; 119; 121; 137J; 359A; 360; 360A
Education Services for Overseas Students Act 2000 (Cth), s.20

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574
Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1351
Stead v The State Government Insurance Office (1986) 161 CLR 141
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

Applicant: XUAN LIN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3137 of 2004

Judgment of: Emmett FM

Hearing date: 1 November 2005

Date of Last Submission: 1 November 2005

Delivered at: Sydney

Delivered on: 1 November 2005

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent: Mr L. Leerdam, Phillips Fox

ORDERS

1. That the applications before this Court are dismissed.

2. That the Applicant pay the costs of the Respondent in an amount of $200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3137 of 2004

XUAN LIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) by a holder of a Subclass 573 (Higher Education Sector) visa. The Tribunal found that the Applicant had breached Condition 8202 of his student visa by failing to provide certification by his education provider of academic results that were at least satisfactory. This lack of certification resulted in the cancellation of his student visa pursuant to s.116(3) of the Migration Act 1958 (Cth) (“the Act”).

2. The Applicant is a citizen of the Peoples Republic of China (“the PRC”) who first entered Australia on 9 April 2000.

3. On 14 February 2003, the Applicant applied for a Subclass 573 (Higher Education Sector) visa which was granted on 20 March 2003. The visa was to expire on 24 December 2005 and had condition 8202 (‘Enrolment and course requirements’) attached.

4. The Applicant commenced studying a Bachelor of Commerce at the University of New South Wales (“UNSW”) on 3 March 2003.

5. On 26 February 2004, UNSW, being a registered educational provider, sent a notice to the Applicant in accordance with s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the s.20 notice”) notifying her that her academic progress for Semester 2 in 2003 was not satisfactory and informing her that, pursuant to s.137J of the Act, her student visa would be automatically cancelled if she did not attend an office of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) by the end of the 28^th day after the date of the notice.

6. The s.20 notice issued to the Applicant stated the particulars of her breach of her visa as follows:

   “Student has failed to maintain satisfactory academic performance and is no longer permitted to continue in the Bachelor of Commerce. She has not achieved an academic result that is at least satisfactory for Session 2, 2003 of her program. Student has therefore been suspended for a period of one year beginning session 1, 2003. PLEASE NOTE: Student has automatic right of re-admission in Session 1, 2005. SID: 3054010.”

7. On 23 March 2004, the Applicant met with an officer from the Department and was presented with a Notice of Intention to Consider Cancellation (“the Notice”) as a result of a breach of condition 8202 of her visa. The Notice complied with the requirements of s.119 of the Act which require, relevantly, that, if the Minister is considering cancelling a visa pursuant to s.116 of the Act, the Minister must notify the holder that there appear to be grounds for cancelling it, provide particulars of those grounds and invite the holder to show within a specified time that those grounds do not exist, or that there is a reason why the visa should not be cancelled.

8. Pursuant to s.121 of the Act, an invitation under s.119 of the Act to show cause must, relevantly, be in writing and specify within a reasonable period a time and place for an interview.

9. In accordance with s.121 of the Act, the Minister nominated 6 April 2004, being sone 14 days after the provision of the Notice, at a nominated address for the interview, which was attended by the Applicant. Fourteen days is a reasonable time in the circumstances.

10. Following the interview on 6 April 2004, the Minister’s delegate (“the Delegate”) cancelled the Applicant’s visa and notified her accordingly.

The Tribunal proceeding

1. On 16 April 2004, the Applicant filed an application to the Tribunal for review of the Delegate’s decision to cancel her visa on the basis that the breach of condition 8202 occurred despite the fact that she felt she had studied diligently and her claims in respect of ill health and financial problems.

2. Section 359A of the Act compels the Tribunal to notify an applicant of particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review.

3. On 10 May 2004, the Tribunal notified the Applicant, pursuant to s.359A of the Act, inviting her to comment on the following information:

   “The University of NSW has advised that you have failed to maintain satisfactory academic performance and your academic result in session 2 of 2003 was unsatisfactory. Also, you were suspended from studies for a period of 1 year beginning session 1 of 2004.

4. On 1 June 2004, the Applicant responded to the s.359A invitation to comment, in writing, referring to her difficulties with the course and other personal problems.

5. On 3 June 2004, the Tribunal sent the Applicant an invitation to attend a hearing on 14 July 2004. Although the Applicant appeared on 14 July 2004, for reasons unknown, the hearing was rescheduled for the 16 July 2004 and the Applicant was provided with an invitation to attend that hearing dated 14 July 2004.

6. On 16 July 2004, the Applicant attended a hearing before the Tribunal. On that day the Applicant gave oral evidence about the difficulties she had experienced over the relevant period.

7. Under s.116 of the Act, the Minister may cancel a visa where its holder has not complied with a condition of a visa, and must do so if there exist prescribed circumstances in which a visa must be cancelled (s.116(3)).

8. A prescribed circumstance is one prescribed by the Regulations made under the Act.

9. Regulation 2.43(2)(b)(ii) provides that the circumstances in which the Minister must cancel a visa include non-compliance with condition 8202.

10. Condition 8202 is found in Schedule 8 to the Migration Regulations and provides that a person in the position of the Applicant, namely a person holding a class 573 visa, must attend at least 80% of specified contact hours with an education provider and must achieve an academic result for the relevant period that is certified by the education provider to be at least satisfactory.

11. There is no obligation upon the Tribunal to enquire of the education provider about the satisfactoriness or not of the Applicant’s academic result because condition 8202(3) is met only if the education provider has certified that the holder has achieved an academic result that is at least satisfactory.

12. The Full Court of the Federal Court of Australia in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 said the following at [55]:

    “A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in sub-clause (3)(a). The visa holder will meet the requirements of condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the enquiry under Condition 8202(3)(b).

    On the other hand, if there is no certificate, compliance with condition 8202 has not been achieved.”

13. The Tribunal cited the decisions of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 in support of its finding that the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202.

14. The Tribunal held that, once non-compliance with Condition 8202 is established, the Tribunal is bound by the operation of s.116(3) to affirm the decision of the Minister to cancel the Applicant’s visa.

15. On 21 October 2004, the Applicant filed an application in this Court that did not identify the relief sought nor any grounds. On 4 November 2004, the Applicant was directed to file and serve an amended application giving complete particulars of each ground of review. No such application was filed.

16. Further leave was given to the Applicant by this Court on 20 July 2005, to file an amended application particularising any grounds of review by 9 September 2005. On 15 September 2005, the Applicant filed an Amended Application that did not disclose any further grounds and was in the nature of particulars. On 21 October 2005, the Applicant filed written submissions in support of her application. Further, the Applicant was granted leave this morning to rely on a statutory declaration setting out further submissions. Unfortunately, none of the submissions by the Applicant identify grounds disclosing reviewable error.

17. However, Mr Leerdam, the solicitor for the Respondent, in the finest tradition of a legal practitioner as an officer of the Court drew to the Court’s attention the issue of whether or not the Tribunal’s invitation, dated 14 July 2004, to attend a hearing on 16 July 2004, was in accordance with the requirements of s.360A of the Act in circumstances where s.360A(4) of the Act requires that the period of notice from the issuing of the invitation to the hearing must be at least the prescribed period. The Respondent informed the Court that the prescribed period is 14 days. The Respondent referred the Court to SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1351 where Federal Magistrate Nicholls considered the distinction between a hearing adjourned after having commenced and therefore not requiring any further invitation in accordance with s.360 to invite an applicant to appear, and a rescheduled hearing that would require compliance with ss.360 and 360A of the Act. The Respondent had provided a copy of the transcript of the tapes of the hearing of the 16 July 2004 to the Applicant. The Respondent conceded that there was nothing in that transcript that would assist the Respondent’s contention that the matter was adjourned on the 14 July 2004. I have regard to the fact that the Tribunal, in it’s letter dated 14 July 2004, headed its letter as rescheduled hearing and otherwise was in the same form as a letter purporting to be an invitation to an applicant to appear in compliance with s.360 of the Act. I also note that the Respondent provides no evidence in the nature of the transcript of what occurred on the 14 July 2004, despite being aware of the point and having ample time to do so.

18. In support of the Respondent's submission that the matter was adjourned, the Respondent read the affidavit of Derrick Tien Seng Le, sworn 13 October 2005, which annexed a document entitled ‘Migration Review Tribunal Hearing Record Page 1’.  That document noted that the scheduled time for hearing of the Applicant’s matter was 10.30 am on 14 July 2004, and otherwise identifies the name of a hearing officer in the position which would seem to require a signature and dated 14 July 2004.  That document takes the matter no further and to my mind makes no helpful relation as to what occurred on that day. 

19. The fact that the document is entitled ‘Hearing Record’ does not persuade me that the hearing had commenced on that day at that time, particularly in circumstances where better evidence by way of transcript would have been available.  The Respondent does not suggest that such evidence would not have been available, simply that it has not been obtained.

20. Accordingly, the letter of 14 July 2004 inviting the Applicant to attend a rescheduled hearing on 16 July 2004 does not comply with s.360A(4) of the Act. In those circumstances, the Tribunal had no jurisdiction to proceed with its hearing on 16 July 2004.

21. The Respondent submitted to the Court that the only relief that the Court had jurisdiction to grant to the Applicant was in the nature of constitutional writ relief or a declaration. No relief has been identified by the Applicant on any document filed by her. The relief available to this Court is discretionary.

22. The Respondent referred the Court to Stead v The State Government Insurance Office (1986) 161 CLR 141, at 145, where a joint judgment of the High Court considered the relevance of the futility of an appellate court ordering a new trial where the result would inevitably be the making of the same order as that made by the primary judge at the first trial. The High Court said as follows:

    “[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.”

23. The Respondent also referred the Court to the judgment of McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, at [80], where his Honour stated that discretionary relief may be refused if an applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.

24. In this case, the Tribunal had no discretion to excuse the Applicant’s breach of Condition 8202, that being a prescribed circumstance. In those circumstances s.116(3) compels the Minister to cancel the Applicant’s visa.

25. In the circumstances the Tribunal would be bound to make the same decision. Accordingly, remittance of the matter would be so futile as to satisfy me that in the proper exercise of my discretion that the Applicant’s applications before this Court should be dismissed despite the error of the Tribunal in proceeding with its hearing on 16 July 2004 when it had no jurisdiction to do so.

26. The Applicant referred the Court, in her written submission, to a case of the Tribunal, identified as number 05/02105, in support of her application.  However, for similar reasons, the Tribunal in that case concluded that it affirmed the decision under review to cancel the student visa held by the review applicant.  The Applicant claimed that despite that decision some orders were made that granted that applicant some relief.  The Applicant did not inform the Court of the circumstances in which that relief was granted, nor the nature of it.  I informed the Applicant that any decision of the Tribunal was not binding on any decision of this Court, and that in any event, each decision turned on its own facts. 

27. In this case, I am satisfied that the Tribunal had no discretion to excuse the Applicant's breach of condition 8202, that being a prescribed circumstance. In those circumstances, s.116(3) of the Act compels the Minister to cancel the Applicant's visa. The Tribunal would be bound to make the same decision if it was to conduct a further review, because the statutory law compels a particular outcome.

28. Accordingly, remittance of the matter would be so futile as to satisfy me that the Applicant would suffer no injustice in circumstances where, in the proper exercise of my discretion, relief to the Applicant is refused and the Applicant's applications before this Court dismissed, despite the error of the Tribunal in proceeding with its hearing on 16 July 2004 when it had no jurisdiction to do so.

29. Accordingly the Applicant’s applications before this Court are dismissed.

Costs

1. The Respondent seeks costs in this matter in an amount of $3000, in circumstances where I am informed that the total solicitor-client costs are in the order of $6900. I note that Schedule 1 annexed to the Federal Magistrates Court Rules, provides for a sum well in excess of the amount claimed.

2. I have regard to the reasons for the dismissal of the Applicant's applications where the Court has found jurisdictional error, yet has exercised its discretion to refuse relief. 

3. The error arose because of the Tribunal's technical failure to comply with the requirements of s.360A of the Act in failing to provide sufficient notice to the Applicant of the rescheduled hearing. However, I note that the Applicant was present on 14 July 2004 and on 16 July 2004. In those circumstances, no injustice has been suffered by the Applicant because of the Tribunal's technical breach.

4. However, had the Tribunal approached its task with greater caution and more diligence, it would have been clear whether or not the hearing on 14 July 2004 had been adjourned with the consent of the Applicant, or whether indeed the hearing was required to be rescheduled and s.360A of the Act complied with. The fact that the Tribunal has sent a letter in the same terms as its standard invitation to appear on 14 July 2004 is only further confusing. However, I also have regard to the fact that had the Respondent agreed that the matter be remitted for this error, that further time and money would have been spent on a futile exercise. In the circumstances, the Respondent's course in opposing the application was proper.

5. In considering what costs are fair in all the circumstances, I cannot ignore the hopelessness of the Applicant's case and the proper conduct of the Respondent in opposing her application.  I note that there was an application for summary dismissal of the matter before me on 20 July 2005, only on the basis of the Applicant's failure to file an amended application in compliance with directions given on 4 November 2004.  That application was dismissed.  The costs sought by the Respondent today reflect no part of any costs incurred by the Respondent in respect of that application. 

6. I do have regard to the fact that the Applicant is a student and has consistently maintained before the Tribunal and this Court the subjective and personal difficulties that she faced whilst pursuing her studies.  Those difficulties have in no way been challenged either by the Tribunal or the Respondent.  In the circumstances, I accept their veracity. Whilst they were entirely irrelevant to the Applicant's application for judicial review and the orders that I have made this morning, I do regard them as relevant in the application of costs before me. 

7. In the circumstances, I order that the Applicant pay the Respondent's costs in an amount of $200. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  17 November 2005