MA v Minister for Immigration

Case •

[2006] FMCA 1654

•

3 November 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1654
MIGRATION – Visa – Migration Review Tribunal – application for review – visa cancellation under s.116 – grounds for cancellation – mandatory cancellation – Condition 8202 – breach of conditions of visa – where visa must be cancelled if ‘prescribed circumstances’ exist – notice issued under Education Services for Overseas Students Act 2000 (Cth) – whether Tribunal failed to provide particulars of the breach to the applicant – whether Tribunal misapplied Condition 8202 – no jurisdictional error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.116, 359A
Education Services for Overseas Students Act 2000 (Cth) s.20
Migration Regulations 1994 (Cth) Reg 2.43

Wu, Mr Ying Ching [2003] MRTA 8095 (28 November 2003) not followed.
Chen v Minister for Immigration [2005] FMCA 576 referred to.
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 followed.
Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 referred to.
Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 referred to.
Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 referred to.
Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313 distinguished.

Applicant: HUI YONG MA
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: MIGRATION REVIEW TRIBUNAL
File No: SYG 3275 of 2005
Delivered on: 3 November 2006
Delivered at: Sydney
Hearing date: 1 November 2006
Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Ms Welshman
Counsel for the Respondent: Mr Kennett
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3275 of 2005

HUI YONG MA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Migration Review Tribunal made on 17th October 2005. The Tribunal affirmed the decision of a delegate of the Minister to cancel the Applicant’s Student (Temporary) (Class TU) visa.

  2. By his amended application filed on 21st February 2006, the Applicant seeks writs of certiorari, mandamus and prohibition.

Background

  1. The Applicant is a citizen of the People’s Republic of China who first obtained a Student (Temporary) (Class TU) (Subclass 560) visa on


    7th November 2000. He arrived in Australia on 25th November.

  2. The Applicant held several student visas, including the Subclass 573 visa the subject of this application, until 18th May 2005, when the Minister’s delegate cancelled the visa. He currently holds a Bridging visa.

  3. The Applicant was studying for the degree of Bachelor of Commerce at the University of New South Wales when, on 22nd February 2005, he received from the University a Notice under s.20 of the Education Services for Overseas Students Act 2000. The notice said that he had breached a condition of his visa:

    Student has failed to maintain a satisfactory academic performance and is no longer permitted to continue in the Bachelor of Commerce. The student has not received an academic result that is at least satisfactory for Session 2, 2004 of his program. Student has therefore been suspended for a period of one year beginning Session 1 2005. PLEASE NOTE the student will have automatic right of readmission in Session 1, 2006.

  4. The Applicant attended at the office of the Department of Immigration and Multicultural Affairs on 21st March 2005. He received a Notice of Intention to Consider Cancellation. The Applicant produced some medical documents showing that he had obtained medical treatment in 2001, 2003 and 2004. He attended an interview with the Department on 18th May 2005.

  5. The Minister’s delegate cancelled the Applicant’s student visa that same day. The delegate was satisfied that there had been a breach of Condition 8202.

  6. The Applicant applied to the Migration Review Tribunal for a review of the delegate’s decision. An application was lodged at the Sydney Registry of the Tribunal on 23rd May 2005.

Review by the Migration Review Tribunal

  1. The Tribunal wrote to the Applicant at the address of his authorised recipient on 4th July 2005, inviting his comment about certain matters under the provisions of s.359A of the Migration Act. The letter drew the Applicant’s attention to the Notice under s.20 of the Education Services for Overseas Students Act 2000 and quoted the wording from the Notice that appears at [5] above.

  2. The Tribunal’s letter drew the Applicant’s attention to the provisions of s.116(1)(b) and s.116(3), and also Regulation 2.43(2)(b). The letter went on to say:

    This information is relevant to the review because condition 8202 was a condition of your Subclass 573 visa. Condition 8202 provides that you must be enrolled in a registered course; that you attend for at least 80% of contact hours scheduled; and that you achieve an academic result that is certified by your education provider as being at least satisfactory. Your education provider has certified that you did not achieve academic results that were at least satisfactory for Session 2, 2004.

    If you are unable to provide a letter from your education provider (University of New South Wales) certifying that your academic result for Session 2, 2004 is at least satisfactory, the Tribunal may find that you have breached condition 8202 and it will have no alternative than to affirm the cancellation.  

  3. The Applicant’s solicitor replied to that letter on 19th July 2005.


    They referred to the allegation that the Applicant had breached Condition 8202 by not achieving an academic result that was certified by his education provider to be at least satisfactory and stated:

    From the information available to us, there is no further relevant information could be found to support the above allegations in relation to the review applicant’s academic performance during the relevant period. There is no information relating to what is criterion relied by the UNSW to assess whether or not the student’s academic performance is satisfactory nor has the information relating to whether the UNSW has already specifically indicated to the review applicant that he should have achieved certain level of mark or percentage in the courses he has undertaken in that session otherwise his academic performance would not be certified by the UNSW to be at least satisfactory.

  4. The Applicant’s solicitors then cited the Migration Review Tribunal decision WU, Mr Ying Ching [2003] MRTA 8095 (28 November 2003) (“WU’s Case”) as a persuasive albeit not a binding authority.


    They quoted Wu at [28]-[29], [31]-[34], [57]-[64], and [67]-[79]. I do not intend to repeat those paragraphs here. The Applicant’s solicitors also referred to the Applicant’s academic performance having been affected by his medical condition and to the upset and disappointment that the Applicant’s family in China would suffer.

  5. They also pointed out that the Applicant has now enrolled in the full-time program for the degree of Bachelor of Business (Accounting) at Central Queensland University, a course he commenced in March 2005.

  6. The Tribunal wrote to the Applicant and invited him to attend a hearing on 13th September 2005. The Applicant attended the hearing and gave oral evidence. He was represented by a migration agent.

  7. The Tribunal decision shows that the Applicant told the Tribunal that during Session 2 in 2004 he suffered both emotionally and physically. His heart problem deteriorated and he withdrew from two sets of exams. He did not see an Australian doctor but did obtain medication from a traditional Chinese doctor. He did not provide medical certificates to the University about his condition.

Reasons and Findings

  1. The Tribunal decision is set out on pages 73 to 81 of the Court Book. The Reasons and Findings can be found on pages 79 to 81.

  2. The Tribunal noted that the delegate decided to cancel the Applicant’s visa under the provisions of s.116(1)(b) and s.116(3) of the Migration Act as well as Regulation 2.43(2)(b) of the Migration Regulations, on the ground that the Applicant had not complied with Condition 8202 of his visa. The delegate found that the Applicant’s education provider had advised that the Applicant had not achieved a result that was at least satisfactory in Session 2, 2004.

  3. The Tribunal considered whether, at the time of cancellation, it was possible to make a decision concerning non-compliance with Condition 8202. The Tribunal noted that the University of New South Wales had certified that the Applicant did not achieve an academic result for Session that was at least satisfactory.

  4. The Tribunal noted various decisions of the Federal Court, including the decision of the Full Court of the Federal Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238. The Tribunal considered the Applicant’s submissions concerning the decision in Wu (supra) but declined to follow that decision.

  5. The Tribunal found that the Applicant did not meet the requirements of Condition 8202 as he did not achieve an academic result for session 2, 2004, that was certified by his education provided to be at least satisfactory. The Tribunal found that, in following the decisions in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574, Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 and confirmed in Tian v Minister for Immigration and Multicultural and Indigenous Affairs (supra), it did not have any discretion to set aside the visa cancellation where there had been a substantiated breach of Condition 8202.

  6. The Tribunal affirmed the decision that the Student (Temporary) (Class TU) visa held by the Applicant be cancelled.

Application for judicial review

  1. The Applicant commenced proceedings in this Court by filing an application on 9th November 2005. The Applicant filed an amended application on 21st February 2006, seeking the issue of constitutional writs. The amended application contained 13 grounds, most of which were not relied upon at the hearing.

The Applicant’s submissions

  1. Counsel for the Applicant, Ms Welshman, provided a written outline of submissions on the original hearing date, 28th July 2006. The outline of submissions contains three main points:

    a)Failure to provide particulars.

    b)Misapplication of Condition 8202.

    c)Misleading section 20 Notice.

a) Failure to Provide Particulars:

  1. The Applicant submitted that neither the education provider, nor the Minister, nor the Tribunal ever provided particulars or adequate particulars of the Applicant’s alleged breach of Condition 8202 as required by s.20 of the Education Services for Overseas Students Act or ss.119, 120 and 359A of the Migration Act. The Applicant submits that the particulars provided in the Tribunal’s s.359A letter go no further than to replicate the inadequately particularised “Particulars of Breach” in the section 20 Notice.

  2. Counsel for the Applicant submitted that the Applicant was never provided with particulars further to or better than those set out in the section 20 notice:

    Which said ‘student has failed to maintain satisfactory academic performance’ and ‘student has not achieved an academic result that is at least satisfactory for Session 2, 2004.’ No further particulars – for example, the marks achieved in each particular subject, the marks required in each subject for a certification of satisfactory – were provided to the Applicant at any stage of the Minister’s or the Tribunal’s decision making process.[1]

    [1] Applicant’s Outline of Submissions at [8]

  3. The Applicant relies on the decision in Wu (supra), which contains at [67] a suggested format for the information that adequate particulars would take, including

    Basic information about the student’s enrolment, term length, terms of the contract governing academic results, actual results in each unit a final statement indicating that the education provider is unable to certify that the student has achieved an academic result that is at least satisfactory.[2]

    [2] Ibid at [11]

  4. The Applicant submits that no particulars were provided to the applicant, in breach of s.359A. The failure to comply with s.359A is a jurisdictional error (Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 per Gray ACJ at [12]).

b) Misapplication of Condition 8202:

  1. The Applicant submitted that the delegate committed jurisdictional error by substituting his own interpretation of Condition 8202 and that the Tribunal repeated it. The Applicant refers to two statements by the Tribunal, at [15] and [18] of the decision:

    The review applicant’s education provider, the University of New South Wales, has advised that the review applicant has failed to make satisfactory academic progress.[3]

    The delegate stated that the grounds for cancellation do exist as he is satisfied that the review applicant breached condition ‘8202 by failing to maintain satisfactory academic progress of 50%’.[4]

    [3] Court Book 77 at [15]

    [4] Court Book 77 at [18]

  2. The Applicant submits that the delegate asked the wrong question in making the decision under s.116, by asking “Is the student making satisfactory academic progress?” instead of “Has the student achieved a satisfactory academic result?” The Applicant referred to the decision of Stone J in Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313, where Stone J upheld an appeal against a Federal Magistrate’s decision dismissing an application for review of a decision of the MRT. In that case, the delegate of the Minister inquired about the appellant’s “academic progress’ rather than his “academic result” and also indicated that the criterion of satisfactory academic progress was whether the appellant would complete the course within the normal timeframe (at [22]). This was held to be the wrong question and therefore a jurisdictional error, which was repeated by the Tribunal (at [23]).

c) Misleading Section 20 Notice:

  1. The Applicant submitted that the section 20 issued to him by his education provider in February 2005 was misleading. This submission was not pressed at the hearing.

Conclusions

  1. Counsel for the Applicant, in referring to the decision in Wu, commented that I had previously declined to follow it in Chen v Minister for Immigration [2005] FMCA 576, which was delivered on 20th April 2005. She submitted, however, that in Chen the decision in Wu had been cited in support of another issue which was not being argued in this case, namely whether there was a contract between the education provider and the student. I went further than that, however, in Chen. In that case I said at [49]:

    Insofar as one is considering a situation of a student at a university; to my mind Wu’s case does not apply. Even more, where the situation of academic progress of that student is considered under condition 8202, paragraph 3 (c), to my mind, with respect, the decision in Wu is wrongly decided. It does not set out the law. I do not intend to follow it because, in my respectful opinion, it has been wrongly decided. The law that is binding on this Court is the explanation set out by the Full Court of the Federal Court in Tian v Minister[5] and that of course is a decision that is binding on this Court.[6]

    [5] Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

    [6] [2005] FMCA 576 at [49]

  2. In that case, I was referring to Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238. This is a decision of the Full Court of the Federal Court which, in my view, sets out the current state of the law about condition 8202. Ryan, Jacobson and Lander JJ said at [54]-[56]:

    54. Condition 8202(3) requires the holder to meet the requirements of both subclauses (a) and (b). If the visa holder does not meet either of the requirements of that subclause then the holder will have breached Condition 8202. A breach of a condition may lead to cancellation of the visa: s.116(1) of the Act.

    55. A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (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 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 inquiry under Condition 8202(3)(b).

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

  3. In the application before me, the Applicant’s contention that the Tribunal fell into error by not providing particulars or adequate particulars of the applicant’s breach of Condition 8202 has not been made out. The Tribunal wrote to the Applicant on 4th July 2005, setting out the wording of the Section 20 Notice. The parts of the letter which I quoted at [10] above set out the very information that it required and explain why the information is relevant to the review. There is no need, let alone any obligation, to set out the detail as suggested in Wu at [67].

  4. The letter told the Applicant that his education provider had certified that he did not achieve academic results that were at least satisfactory for session 2, 2004. The letter told the Applicant that if he was unable to provide a letter from his education provider certifying that his academic result for Session 2, 2004 was at least satisfactory, the Tribunal might find that he had breached Condition 8202 and would have no alternative but to affirm the cancellation.

  5. The Tribunal in its letter set out the information correctly and followed the requirements of s.359A. There is no jurisdictional error.

  6. It needs to be made clear that the decision of the Migration Review Tribunal in Wu does not set out the law relating to Condition 8202.


    The law is set out in the Full Court of the Federal Court’s decision in Tian. As Wu differs fundamentally from Tian, it can only be regarded as wrongly decided and not to be followed.

  7. As to the claim that the Tribunal misapplied Condition 8202 by substituting its own interpretation of Condition 8202, that submission is misconceived. The decision in Bosi can be distinguished on the facts. Unlike Bosi, this not a case where the Tribunal repeated the delegate’s error. The references in [15] and [18] of the Tribunal’s decision to the delegate’s characterisation of the test in Condition 8202 are no more than a recital of the history of the application. Whilst the delegate referred to a breach of Condition 8202 “by failing to maintain satisfactory academic progress of 50%”[7] the Tribunal did not adopt this characterisation of Condition 8202.

    [7] Court Book 77 at [18]

  8. It is clear that the Tribunal applied the correct test in deciding whether or not there was a breach of Condition 8202:

    31. The Tribunal must therefore consider whether, at the time of the cancellation, it was possible to make a decision concerning non-compliance with condition 8202. This requires that the applicant be enrolled in a registered course; that the applicant attend for at least 80% of contact hours scheduled for the course, or the term or semester of the course if the course is structured in such a way; and that the applicant achieve an academic result that is certified by the education provider as being at least satisfactory. Consequently, the main question for the Tribunal is whether condition 8202 was breached. If there was non-compliance with this provision, cancellation is mandatory.[8]

    [8] Court Book 79 at [31]

  1. The Tribunal did not misapply Condition 8202. There is no jurisdictional error.

  2. As no jurisdictional error has been shown, the Tribunal decision is a privative clause decision as defined in s.474(2) of the Migration Act. Consequently, it is final and conclusive and not subject to the writs of certiorari, mandamus or prohibition which the Applicant seeks.

  3. The application will be dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  8 November 2005


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Cases Citing This Decision

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Cases Cited

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Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
MIMA v Hou [2002] FCA 574
Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460