LIYANAGE v Minister for Immigration
[2006] FMCA 725
•25 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIYANAGE v MINISTER FOR IMMIGRATION | [2006] FMCA 725 |
| MIGRATION – Student visa – Migration Review Tribunal – no jurisdictional error shown. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Migration Act 1958 (Cth), s.116(3) Migration Regulations 1994 (Cth) Migration Amendment Regulations 2005(No.8) |
| Humayun v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2005] FCEA 1826 Minister for Immigration & Multicultural Affairs v Yussuf [2001] HCA 30 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 |
| Applicant: | RASIKA S.S. LIYANAGE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | MLG 1504 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 19 April 2006 |
| Date of last submission: | 19 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 25 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamilton |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1504 of 2005
| RASIKA S.S. LIYANAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant arrived in Australia on the 31 January 2000 as the holder of a student visa. He was then granted a succession of student visas, the last from 19 June 2003 until 15 March 2005. It was cancelled on 25 August 2004 for breach of condition 8202, for failing to attend for at least 80% of the contact hours scheduled. The cancellation was affirmed by the Migration Review Tribunal. The decision of the Tribunal was set aside by consent and the matter was reconsidered by the Tribunal differently constituted. On 2 November 2005, the Tribunal again affirmed the cancellation decision. The applicant subsequently applied to have this decision set aside and remitted.
History
The applicant enrolled in an automotive course at Kangan Batman Institute of TAFE, commencing semester 1 of 2004. On 4 July 2004 the Institute sent the applicant a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth). The notice said that the applicant was in breach of condition 8202. It said that the student had received two written warnings about his attendance and had not improved in semester 1. It said that his attendance in term 1 was 45%, term 2, 37% and overall in semester 1 2004, 40 %.
The notice invited the applicant to attend the office of the Department of Immigration and Multicultural and Indigenous Affairs which he did on 11 August 2004. He was given a notice of intention to consider cancellation of his visa under s.116 of the Migration Act 1958 (Cth). The notice invited the applicant to attend an interview on 25 August 2004.
The applicant attended the interview. The delegate of the Minister cancelled the visa. The delegate considered the applicant had attended only 45% of classes in term 1 and 37% in term 2 in semester 1 of 2004.
After the applicant applied to the Tribunal, the Tribunal wrote to the Institute asking for clarification of the applicant's attendance in terms of contact hours. The Institute responded that the applicant had attended 63 of 102 contact hours in term 1 of 2004 a total of (61%) and 46.5 of 213 contact hours in term 2 totalling (21.8%).
The Tribunal's decision
The Tribunal considered that the applicant had not breached condition 8202 in term 1 2004 because he had medical certificates for some of his absences which bought his attendance to 91%.
For term 2, the Tribunal concluded that, after allowing for medical certificates, the applicant's attendance was 30%. The applicant's migration agent submitted to the Tribunal that the correct number of hours for term 2 was 182 hours not 213, the figure used by the Tribunal for its calculation. The Tribunal said that on this basis the applicant's attendance would be 35%, still far below the required 80%.
The Tribunal said that it was claimed that the applicant was marked as absent when only late for class. The Tribunal said no evidence that this happened had been submitted and the Institute advised the Tribunal that the applicant was not marked absent despite being late for class in June 2004.
Section 116(3) of the Migration Act and paragraphs 2.43(2)(b) of the Migration Regulations 1994 (Cth) makes it mandatory to cancel a visa if there has been a breach of a condition of the visa. Condition 8202 had been breached and so the visa must be cancelled.
The applicant's arguments and consideration
The applicant's original application and contentions relied on the invalidity of the s.20 notice. Recently, the Full Court of the Federal Court in Humayun v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2005] FCEA 1826 held that a cancellation under s.116 of the Migration Act is not dependent on the validity or otherwise of the s.20 notice.
Paragraph 2.43(2)(b) of the Migration Regulations has been amended so that a student visa will not be cancelled for non-compliance with condition 8202, if there are exceptional circumstances beyond the visa holders control. The amendment was made by the Migration Amendment Regulations 2005 (No.8). Paragraph 7 provides that the amendment to paragraph 2.43 applies in relation to all visas in force on or after the day on which the amendment commences. The amendment commenced on 8 October 2005, which is after the date the delegate cancelled the applicant's visa. Consequently, the amendment about exceptional circumstances does not apply.
The applicant argues that nevertheless, the requirement for the Tribunal to provide natural justice still applies. The applicant referred to cases where statements have been made about applicants being misled and about substantial compliance.
They do not assist the applicant here. The applicant's submission referred to letters or warnings from the Institute, and that they may have misled the applicant. The applicant submits that there were two warnings given by the Institute, but they relate only to term 1. They did not relate to term 2. Even if that is so, it does not affect the validity of the Tribunal's decision affirming the cancellation of the visa. Neither the conduct of the Tribunal nor of the Minister, the delegate or the Department is criticised. Once the Tribunal came to the conclusion that the applicant had failed to attend 80% of contact hours in term 2 of semester 1 of 2004, the Tribunal was obliged to affirm the cancellation. Any conduct of the Institute cannot affect this decision.
The applicant’s argument refers to his evidence that the education provider's policy was to mark students absent if 15 minutes late. The argument then refers to the Tribunal noting that the Institute confirmed the policy and advised that the applicant was late in June but not marked as absent. The applicant argues that the statement does not exclude the possibility that the applicant was late on occasions during April and May 2004 and marked absent. The second term covers half of April and all of May.
The applicant argues two things arising from these matters. First that the Tribunal has misled itself. The applicant referred to Minister for Immigration & Multicultural Affairs v Yussuf [2001] HCA 30. This is not a case where the Tribunal has failed to take into account relevant information or has taken into account irrelevant information. It has interpreted the Institute letter (a letter dated 5 November 2004) as meaning that the policy was not applied to the applicant. That is that when the applicant was late, in June 2004, he was not marked absent. The Tribunal was entitled to conclude that the letter meant that the question of lateness was only an issue for June and not the other months. That is, that the applicant was not late in April and May.
Second, the applicant argues that the Tribunal should have waited for further comments from the Institute or sought further information about attendance. In WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 the Full Court of the Federal Court said that there is no legal obligation on a tribunal to make inquiries. Procedural fairness arguments can arise in circumstances where the conduct of a tribunal misleads an applicant into thinking that the Tribunal will make inquiries or further evidence is necessary, but that is not this case.
The submissions by the applicant’s agent to the Tribunal contested the accuracy of the Institute’s records. The Tribunal wrote to the Institute and received precise information about the applicant's attendance. The applicant had the opportunity to put his own evidence to the Tribunal about his attendance. There is nothing to suggest that any further enquiries to the Institute would have produced any different result. The Tribunal has not breached any requirements for procedural fairness.
There has been no jurisdictional error by the Tribunal. The application must be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 25 May 2006
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