Liu v MIMIA

Case [2003] FCA 1170

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1170

IMMIGRATION - student visa - visa cancellation - condition 8202 - whether error of law - privative clause decision

Migration Act 1958 (Cth) s 116
Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)
Education Services for Overseas Students Act 2000 (Cth)

Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 cited
Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 cited
Shrestha v Minister for Immigration and Multicultural Affairs (No 1) [2001] FCA 359 cited
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 applied

GUANGYAO LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q52 OF 2003

COOPER J
BRISBANE
24 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q52 OF 2003

BETWEEN:

GUANGYAO LIU
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

COOPER

DATE OF ORDER:

24 OCTOBER 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.The applicant to pay the respondent’s costs to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q52 OF 2003

BETWEEN:

GUANGYAO LIU
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

COOPER

DATE:

24 OCTOBER 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

  1. The applicant is a national of The Peoples Republic of China.  On 6 March 2001, the applicant received a Student (Temporary) Class TU visa.  The visa was granted to the applicant on the basis that he was to study for a Bachelor of International Business degree at Bond University in Queensland.  Attached to the visa was a condition 8202.  The visa was due to expire on 15 May 2003.

  2. On 27 June 2002, a delegate of the Minister cancelled the applicant’s visa for non-compliance with condition 8202. The Migration Review Tribunal (‘the MRT’) affirmed the decision of the delegate to cancel the visa. The applicant applies to this Court under s 39B of the Judiciary Act 1903 (Cth) for the issue of prerogative writs to quash the decision of the MRT and requiring it to re-hear the application according to law.

    LEGISLATION

  3. The power to cancel a visa is contained in s 116 of the Migration Act 1958 (Cth) (‘the Act’). The section as it stood at the relevant time, provided:

    ‘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;  or

    ...

    (2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

    (3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a…

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Liu v MIMIA [2003] FCA 1170
Case
[2003] FCA 1170
Decision Date

CaseChat Overview and Summary

In the case of Liu v MIMIA, the applicant sought judicial review of a decision by the Migration Review Tribunal (MRT) to affirm the cancellation of his student visa. The MRT had found that the applicant had breached condition 8202 of his visa, which required him to maintain an enrolment in a registered course. The Tribunal concluded that by not enrolling in the May 2002 semester at Bond University, and not being enrolled in any registered course at the time of the visa cancellation, the applicant had failed to comply with this condition. Consequently, the MRT affirmed the decision to cancel the visa.

The primary legal issues in this case centred on the interpretation of condition 8202(b) and the consequences of its breach. The applicant argued that the condition should not be construed to require continuous enrolment without any gaps, and that a temporary gap in enrolment should not automatically result in a breach of the visa condition. The applicant further contended that a short and temporary gap in enrolment did not necessarily lead to the cancellation of the visa, and that the purpose of student visas should inform a purposive construction of the condition rather than a literal one.

The court examined the arguments presented and the relevant statutory provisions. It considered the principle that a breach of condition 8202 mandates the cancellation of a visa as established in previous cases. The court noted that the applicant had indeed failed to maintain an enrolment as required by the condition. It held that the MRT's interpretation of the condition, and its decision to affirm the cancellation of the visa, was correct. The court dismissed the applicant's grounds for review and upheld the MRT's decision.

The final orders of the court were that the application for judicial review was dismissed, and the applicant was ordered to pay the respondent's costs, to be taxed if not agreed.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant to pay the respondent’s costs to be taxed if not agreed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COOPER J
A breach of condition 8202 requires a mandatory cancellation of the visa: Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 at [11]; Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 at [17].THE DECISION OF THE MRT The MRT found that the applicant did not enrol in the May 2002 semester at Bond University, and was not at the time of cancellation of his visa enrolled in a registered course. The MRT determined that such conduct constituted a breach of condition 8202, it being a failure to maintain an enrolment in a registered course as required by par (b) of the condition. Breach of the condition constituting a prescribed circumstance for the purpose of s 116(3) of the Act, required that the visa be cancelled and the MRT accordingly affirmed the decision of the delegate to cancel the visa. The MRT in its reasons stated that it: ‘... accepts that the review applicant was intending to change course and so did not pursue the show cause notice he received from Bond and that he was not studying at the time of cancellation and was not enrolled in a registered course as he was waiting to change to his new provider.’ The evidence of the applicant to the MRT was that he received a notice from Bond University dated 6 June 2002, issued under s 20 of the Education Services for Overseas Students Act 2000 (Cth), which stated that he had breached a condition relating to the attendance of the course he was enrolled in at the University. The particulars of breach were that:‘You are not enrolled for May 2002 Semester as you have not shown cause why your GPA for January 2002 Semester was below satisfactory.’The applicant did not reply to the notice from Bond University. The applicant stated that he had applied to enrol in courses at Griffith University and Central Queensland University and that on 10 July 2002 he had accepted an offer of Central Queensland University dated 2 July 2002 of a place in the Bachelor of Business (Management) course.THE GROUNDS FOR REVIEW The applicant relied upon the following grounds to obtain the relief sought:(a)the MRT erred in interpreting paragraph (3)(b) of condition 8202 of the applicant’s visa as requiring that the applicant must maintain enrolment in a registered course at all times during the currency of the visa;(b)the MRT erred in failing to interpret paragraph (3)(b) of condition 8202 of the applicant’s visa as not prohibiting short gaps in enrolment in a registered course in certain circumstances; and(c)the MRT erred in failing to interpret s 116(1) of the Act and reg 2.43(2)(b) of the Migration Regulations 1994 (‘the Regulations’) in such a way that those provisions will not necessarily be breached where there is a short and temporary gap in a student’s enrolment in a registered course. Counsel for the applicant submitted that condition 8202(b) which required that ‘the holder is enrolled in a registered course’ should not be construed in such a way that a temporary gap in enrolment meant that the condition was breached. To do otherwise, it was submitted, would lead to harsh results where students wished to change courses or institutions in circumstances where they were allowed to do so. Further, it was submitted, that, in the absence of the words ‘at any time’ in s 116(1) or reg 2.43 a short, temporary or minor failure to comply with a condition did not mean that the visa was liable to be cancelled for breach of a condition. Finally, it was submitted that a literal construction could not be given to the condition because such a construction would be inconsistent with the purpose of student visas. Unless the regulation was given a purposive construction rather than a literary construction, it was submitted, it would be invalid as being beyond power. These final submissions were based on the observations of Madgwick J in Shrestha v Minister for Immigration and Multicultural Affairs (No 1) [2001] FCA 359 at [18] - [22], [27].

Ratio Decidendi

Legal Principle Established

Established by: COOPER J

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