Liu v MIMIA

[2006] HCATrans 180

[2006] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B69 of 2005

B e t w e e n -

YU‑TING LIU

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 APRIL 2006, AT 9.23 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant held a student (class TU) visa which was cancelled on 28 August 2002 by operation of s 137J of the Migration Act 1958 (Cth) upon his failure to respond within a prescribed period to a notice issued to him, as an accepted student, pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”). The notice had been issued by the Queensland University of Technology, acting as a registered education provider under the ESOS Act, following the applicant’s failure to make satisfactory progress in his course of studies, as required by condition 8202 of his visa, and his subsequent exclusion from that course.

The Migration Review Tribunal affirmed a decision of a delegate of the Minister not to exercise the power conferred by s 137K of the Migration Act to revoke the automatic cancellation. In the Federal Court, Cooper J rejected the applicant’s application for judicial review as demonstrating no jurisdictional error. In particular, his Honour held that the validity of a notice issued under s 20 of the ESOS Act did not require that the “accepted student” receiving the notice be a student enrolled with the registered education provider at the time at which the provider issues the notice. His Honour further held that it was not an essential condition of the validity of a notice issued under s 20 that it be issued “as soon as practicable after the breach” of condition 8202 of the visa, because the issuing of a notice is for the purpose of the operation of the machinery provided for by s 116, or alternatively Subdiv GB of Div 3 of Pt 2 (including ss 137J-137L), of the Migration Act. Failure to issue the notice as soon as practicable had no impact upon the attainment of the statutory objectives of either Subdiv GB or of the ESOS Act, nor did it deprive the recipient of an opportunity to be heard.

An appeal to the Full Court of the Federal Court (Spender, Dowsett and Hely JJ) was dismissed. Their Honours observed that while it may have been open to the applicant to contend that the notice had not been “sent” to him in the manner required by s 20 of the ESOS Act because it was not sent to his current residential address, no such argument was put to the Court at first instance nor in the notice of appeal to the Full Court.

There would be insufficient prospects of success on any appeal to this Court from the Federal Court to warrant a grant of special leave.  Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.26 AM THE MATTER WAS CONCLUDED