Lu v Minister for Immigration
[2007] FMCA 100
•9 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 100 |
| MIGRATION – Review of MRT decision − where applicant held a temporary (student) visa − where applicant in breach of condition 8202 − where applicant attended an interview with a delegate of the respondent following receipt of a s.20 notice − where visa cancelled pursuant to s.116 − whether s.20 notice was invalid − whether an invalid s.20 notice leads to the commission of a jurisdictional error when relied upon by a Tribunal. |
| Migration Act 1958, ss.116, 137J, 359 Education Services for Overseas Students Act 2000, s.20 |
| Uddin v Minister for Immigration [2005] FMCA 841 Chen v Minister for Immigration [2005] FCA 229 Morsed v Minister for Immigration [2005] FCAFC 193 Shao v Minister for Immigration [2007] FCA 18 Shen v Minister for Immigration [2006] FCA 408 Minister for Immigration v Zhou [2006] FCAFC 96 Minister for Immigration v Yu (2004) 141 FCR 448 Gerhad v Minister for Immigration [2003] FCA 495 Humayun v Minister for Immigration [2006] FCAFC 35 Cheng v Minister for Immigration [2006] FCA 1028 Liyanage v Minister for Immigration [2006] FCA 1489 Wen Bi Dai v Minister for Immigration [2006] FCA 1819 |
| Applicant: | LEI LU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2476 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 February 2007 |
| Date of Last Submission: | 5 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2007 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2476 of 2006
| LEI LU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Lu is a national of the People’s Republic of China who first entered Australia as a student on 12 May 2002 holding a student (temporary) (Class TU) visa sub class 573 granted on 6 May 2002. When this visa expired on 1 April 2003 he was granted a sub class 575 visa which expired on 8 March 2004. On 8 March 2004 he was granted a sub class 573 visa which was subject to condition 8202 (“enrolment and meet course requirements”). This visa was cancelled on 4 April 2005 for breach of condition 8202 following a letter from the applicant’s education provider, the University of New South Wales (UNSW), sent to the applicant on 7 March 2005 in the form of a notice under s.20 of the Education Services for Overseas Students Act 2000. This letter makes reference to s.137J of the Migration Act 1958 (the “Act”) and requires the applicant to report personally to a compliance officer at a named Department of Immigration and Multicultural and Indigenous Affairs office. If the applicant does attend a DIMIA office a delegate of the Minister will make a decision as to the cancellation of the visa.
Mr Lu did attend at the specified DIMIA office but after an interview with someone known as “Rezina” was given a notice of intention to consider cancellation under s.116 of the Act [CB 3-4].
On 4 April 2005 the Minister, through her delegate, made a decision to cancel the visa under s.116 for breach of condition 8202 “failing to maintain the minimum satisfactory academic result”, the applicant having failed all three subjects which he took in semester 2 of 2004.
The applicant applied to the Migration Review Tribunal for a review of the Department’s decision. He provided the Tribunal with a number of documents including an explanation [CB 27] of the reasons for his unsatisfactory academic progress. One of the documents which he sent to the Tribunal was entitled “A Guide to UNSW Grades” [CB 29]. This seems to indicate that in certain circumstances even though an applicant fails by receiving a mark less than 50% he might get a special grade known as a “conceded pass” for obtaining a mark between 46 and 49. Whilst the applicant provided an explanation of why he might be entitled to a conceded pass to the DIMIA officer [CB 28] he does not appear to have sought such a conceded pass from the University. In the absence of such an application the decision to fail him and the decision to send a letter under s.20 cannot be impugned although the applicant sought to do so at the hearing before me.
The Tribunal considered the applicant’s papers and on 15 June 2005 wrote him a letter under s.359A of the Act asking him to comment on information that would be the reason or part of the reason for affirming the decision under review. The information provided to the applicant was:
“You are invited to comment in writing on the following:
The University of New South Wales has advised the Department that you have not achieved an academic result considered to be at least satisfactory during session 2 2004 as you failed three out of three subjects attempted.”
The applicant did not respond to that letter so the Tribunal proceeded in accordance with the provisions of s.359C of the Act to make a decision on his application without providing him with an opportunity to attend a hearing. The decision was made on 10 August 2005. The applicant had been advised of the handing down of the decision by letter dated 22 July 2005. If he had anything to say to the Tribunal as to why he should be given an opportunity to attend a hearing with it he could have done so between the date of receipt of that letter and 10 August 2005. He did not do so.
The Tribunal decision which is found between [CB 88] and [CB 95] notes that the Tribunal received the further evidence including documents relating to his medical condition [CB 93]. The Tribunal determined to affirm the decision of the delegate to cancel the visa saying at [CB 94]:
“[31] The case of Tian establishes clearly that a positive certification from the education provider is required for an applicant to comply with paragraph 8202(3)(b). The Tribunal finds that there is no positive certification from UNSW in respect of the review applicant’s academic results for session or semester 2, 2004. The review applicant indicated in the review application and additional documents that there were a number of reasons why his results at UNSW were poor in the relevant semester. However, Tian also establishes that the Tribunal’s role is not to make its own assessment of the review applicant’s academic results and that it should not go behind the evidence of the education provider. The Tribunal therefore rely on the certification of the education provider.
[32] Following the decisions of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non-compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation.
[33] Based on the evidence from UNSW, the Tribunal finds that the review applicant did not achieve academic results considered by the education provider to be at least satisfactory for each semester of his Bachelor of Science – Computer Science course, specifically in session or semester 2, 2004. The Tribunal finds that the review applicant has breached paragraph 8202(3)(b) and thus condition 8202 of his student visa issued on 8 March 2004.
[34] The Tribunal finds that grounds for cancellation of the visa under paragraph 116(1)(b) of the Act are made out, and that grounds for the mandatory cancellation of the visa in accordance with subsection 116(3) and paragraph 2.43(2)(b) have been established. The Tribunal therefore has no option but to affirm the decision under review.”
The applicant sought review of the Tribunal’s decision from this court. He filed an amended application on 9 November 2005 which contained three grounds for review. However, on 29 January 2007 he filed a further amended application which only provided one ground of review. In this amended application the applicant argued:
“The cancellation of his student visa did not occur because notice under s.20 of the Education Services for Overseas Student Act 2000 did not comply with the mandatory requirements of that section and as a result was not a notice under that section.
Particulars
1. The notice didn’t notify the applicant that he could report to an officer for the purpose of explaining the alleged breach, but instead it required the applicant to report to a compliance officer, which is a subgroup of officer and thus it was a more restrictive requirement that permitted by s.20 of the Act. This narrowing of the class of people to whom the applicant could report was misapplication of the Education Services for Overseas Student Act and the Migration Act.”
The applicant relied on Uddin v Minister for Immigration [2005] FMCA 841 and a case he described as “Chen’s case” which I take to be a decision of Justice Lander with the citation Chen v Minister for Immigration [2005] FCA 229.
The question whether the notices under s.20 in the form found at [CB 1] lead to the commission of a jurisdictional error when relied upon by a Tribunal have been discussed in several cases.
In Morsed v Minister for Immigration [2005] FCAFC 193 the applicant was sent a notice indistinguishable from the notice under present consideration, following which the visa was automatically cancelled after the applicant did not accept the invitation to attend to a DIMIA Office. Prior to the hearing the respondent indicated that she would consent to the appeal being allowed on the basis of an earlier decision in the Federal Magistrates Court, Uddin, where an indistinguishable s.20 notice was found inter alia to be invalid on the grounds that it required the applicant to report to a “compliance officer” and not an “officer”. The Full Court concurred that the notice was defective and this formed the basis to remit the matter and set aside the cancellation of the student visa. Their Honours Heerey, Marshall and Weinberg JJ expressed some concern that the s.20 notice was misleading considering its interaction with s.116:
“[22]…we consider that the statement in the s.20 notice, extracted above, is misleading. In the event that a person has breached condition 8202, and reports to DIMIA as requested, it is incorrect to state that “a decision will then be made whether or not to cancel your visa”. This may imply some sort of discretion on the part of the officer, particularly given that the notice asks the recipient to “explain” their breach. It implies that it is possible that the visa will not be cancelled if the breach is adequately explained. However, the true position is that the Minister is obliged under s 116 to cancel the visa if satisfied there has been a breach.
[23] Furthermore, the s 20 notice may be misleading by omission. The notice states that the visa will not be cancelled "if you can show that no breach occurred". It does not go on to say the corollary of that, which is that a visa will be cancelled if a breach did occur, (or, probably more accurately, if it cannot be shown that no breach occurred).
[24] For those visa-holders who have breached condition 8202, but may have exceptional circumstances beyond their control to explain that breach, the notice creates a trap. It encourages the visa-holder to explain their circumstances to avoid automatic cancellation. However, it does not tell them that in doing so, and in admitting a breach, they will then have their visa cancelled pursuant to s 116.
[25] In fact, if a person’s breach was due to exceptional circumstances beyond their control, they would be best served by not complying with the s 20 notice, having their visa automatically cancelled under s 137J, and then applying for revocation under s 137K. If revocation is granted, their breach is then "immunised" from being used as a basis for cancelling their visa under s 116.
[26] We would urge the department to give careful consideration to modifying the standard form of a s 20 notice in order to avoid the difficulties outlined above.”
The decisions of Morsed and Uddin have been restricted in application to the automatic cancellation of a visa under s.137J, and not a cancellation by the Minister under s.116. In Shao v Minister for Immigration [2007] FCA 18 Lander J considered the decision of Uddin and concluded that where a s.20 notice is invalid the visa subject to the notice cannot be cancelled under s.137J. Accordingly when, in that case, the Minister cancelled the applicant’s visa later under s.116 it validly did so as the visa was still in force. In Shen v Minister for Immigration [2006] FCA 408 Marshall J distinguished the decision in Morsed:
“[36] In Morsed, the appellant claimed that his breach of condition 8202 was due to exceptional circumstances beyond his control. No such issue of circumstances beyond the control of the appellant is relevant here. On that view alone, Morsed is distinguishable.
[37] In any event, the cancellation of the student visa in Morsed arose as a result of the automatic effect of s 137J of the Migration Act, consequent upon a s 20 notice. It did not arise, as here, by virtue of the independent operation of s 116 of the Migration Act.”
The interaction of s.20 with s.116 was further considered in Minister for Immigration v Zhou [2006] FCAFC 96. The Court again considered an indistinguishable notice from the one in the present case. In Zhou the applicant conceded that the validity of a s.20 notice is not a prerequisite for the mandatory cancellation of a visa under s.116 where the process is initiated by the Minister or otherwise without the issuance of a notice under s.20. Ryan, Nicholson and Lander JJ discussed the Morsed decision at length given the Federal Magistrate had considered at first instance that Morsed was authority for declaring a decision triggered by an invalid notice to be void ab initio [24]. The applicant also relied upon obiter dicta in Morsed to the effect that s.20 sets a ‘trap’ for applicant. Their Honours accepted the contention of counsel that even if the notice under s.20 was considered invalid it did not have the effect of invalidating a cancellation of a visa under s.116. Further their Honours could find no basis for distinguishing the case from the reasoning set out in Yu, Humayun and Gerhard (extracted below): at [43]. Importantly their Honours held there is no basis to read the Overseas Act as imposing an implied limitation upon the operation upon s.116:
“The wording of that section is against such an implication, as it contains a detailed catalogue of specific circumstances in which the power of cancellation may be exercised. We agree with Allsop J in Yu that, if Parliament had intended that a breach of condition 8202, or some part of it, was only to occur after the giving of notice under s.20 of the Overseas Students Act, that would have been simple enough for Parliament to say.” [42]
Their Honours accepted the statements of Allsop J (with whom Tamberlin J agreed) Minister for Immigration v Yu (2004) 141 FCR 448:
“[38]…I do not see any express or implied statutory limitation on the circumstances in which s.116 of the Migration Act can be invoked.
…
[40] In my view, the [Overseas Students] Act does not limit the circumstances under shich 2.116 might operate where there has been a failure to comply with condition 8202; nor does it confine the operation of condition 8202. If a breach of condition 8202, or some part of it, was only intended to arise upon giving of a notice under s.20 of the [Overseas Student] Act that would have been simple enough to say.”
Ryan J dealt with a s.20 notice in Gerhad v Minister for Immigration [2003] FCA 495:
“[17]…the validity of a notice under s.20 of the Overseas Students Act is not a prerequisite for cancellation of a student visa under s.116 although it may, as Counsel for the Minister accepted, be essential for cancellation pursuant to s.137J which was inserted into the Act by the Migration Legislation Amendment (Overseas Students) Act 2000. Accordingly, the validity of a notice under s 20 of the Overseas Students Act is not a prerequisite for cancellation of a student visa under s 116 although it may, as Counsel for the Minister accepted, be essential for cancellation pursuant to s 137J which was inserted into the Act by the Migration Legislation Amendment (Overseas Students) Act 2000. A cancellation under s 116 must occur upon the Minister’s attainment of the requisite satisfaction even if the process has been initiated on the Minister’s own motion or otherwise without the issue of a notice under s 20 of the Overseas Students Act. Once that is understood, s 116(3) leaves no discretion to the Minister or the MRT once he or it is satisfied that the holder has not achieved an academic result that is certified by the education provider as at least satisfactory. For a similar view of the effect of s 116(3) in excluding any discretion see Ariyagama v Minister for Immigration and Multicultural Affairs [2001] FCA 1407 [20], Nguyen v Minister for Immigration and Multicultural Affairs [2002] FCA 460 [11] and Akter v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1504 [20].”
Finally in Humayun v Minister for Immigration [2006] FCAFC 35 the Court held an invalid s.20 notice did not affect the power of the Minister to effect a visa cancellation under s.116.
Zhou has since been applied: as per Siopis J in Cheng v Minister for Immigration [2006] FCA 1028 [54] – [59]; Liyanage v Minister for Immigration [2006] FCA 1489 per Marshall J at [42].
The interplay of condition 8202 and the Education Services for Overseas Student Act 2000 and the Migration Act 1958 was also considered by Bennett J in Wen Bi Dai v Minister for Immigration [2006] FCA 1819. In particular her Honour considered the alleged misleading nature of the notice which was commented upon in Uddin. It has been suggested that an applicant is better off not responding to the notice so that he or she can then put up to the Minister an exceptional circumstances case which cannot be done before the delegate or the Tribunal. To that extent, it is argued, the notice is misleading. Her Honour dealt with this at [54] where she said:
“In Cheng, Siopis J addressed submissions that the Tribunal fell into jurisdictional error in failing to consider whether the Delegate had denied the applicant procedural fairness by reason of an allegedly misleading s 20 notice. As here, the alleged denial of procedural fairness was relevantly based on the failure of the applicant’s expectation of being able to raise matters relating to her medical and personal circumstances as a means of preventing the cancellation of her visa, when there was an alternative course available where those circumstances could be raised as grounds for reinstating her visa (at [69]). His Honour applied Zhou and observed at [65] that ‘[i]t does not avail the applicant to impugn the procedural fairness of a process which is legally unrelated to the process which led to the impugned decision, namely, the cancellation of the visa under s 116 of the Act’. The processes are, as pointed out by his Honour at [72], ‘legally separate’.
and then went on to say at [57]:
[57] The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review (Zubair; Ahmed; Uddin; Hamayun). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal’s review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision.
58 This submission cannot be correct and ignores the reasoning in Zhou and Cheng. The Full Court in Zhou stated comprehensively at [39] that alleged defects in a s 20 notice are not material to an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. Siopis J in Cheng specifically considered and rejected a submission that the Tribunal fell into jurisdictional error by failing to consider an alleged denial of procedural fairness on the part of the Delegate by reason of a s 20 notice being misleading. The s 20 notice has no role in the Tribunal decision. It is irrelevant to the Tribunal’s review of the Minister’s decision to cancel the visa under s 116, a decision with a different statutory basis. Once it is irrelevant and the question for this Court is jurisdictional error on the part of the Tribunal, the applicant cannot succeed on the basis of a denial of natural justice concerning the Notice.”
These views of her Honour are binding upon me.
To the extent that the applicant seeks to rely on the decision of Lander J in Chenv Minister for Immigration [2005] FCA 229, this case can be distinguished because it really related to the wording of the notification given to the applicant under s.20. When Mr Chen received his notice under s.20 the particulars of the breach of condition 8202 were expressed to be “poor progress and attendance”. His Honour considered that that did not constitute in itself a breach of 8202 but the condition had been breached by the failure to provide a positive certificate. That case also dealt with the procedures under ss.137J, K and L which are procedures that come into operation if an applicant does not attend at the DIMIA office. In the case before me Mr Lu did attend the DIMIA office and to that extent, again, Chen can be distinguished.
In oral submissions the applicant stated that when the Tribunal considered his application it should have taken all the elements into account and considered his case seriously. He said there were reasons beyond his control – his medical condition that the Tribunal failed to consider. This is not a correct statement of the law. Where there is a cancellation under s.116 the Tribunal does not have to consider exceptional circumstances. The cancellation is mandatory. Unless the applicant can show clearly that he had reached a satisfactory standard there is nothing the Tribunal can do for him. But in any event I am not satisfied that the Tribunal did not consider all the relevant matters put by the applicant including his medical certificates. They are specifically referred to in the Tribunal’s decision.
The applicant also argued that he must be given an opportunity to go to the Tribunal to present his arguments even if he did not respond to the s.359A letter. This submission is clearly inconsistent with the provisions of s.359C and I was provided with no authority by the applicant to suggest that s.359C was the subject of any limitations or any finding of its invalidity.
I am satisfied that the decision of the Migration Review Tribunal in this case did not contain any jurisdictional error and is therefore a privative clause decision which I am unable to review. The application is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
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