Mo v MIAC

Case [2009] FMCA 1026


FEDERAL MAGISTRATES COURT OF AUSTRALIA

MO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1026
MIGRATION – Review of MRT decision – where applicant’s student visa was automatically cancelled after she did not respond to a s.20 notice – where student had not achieved satisfactory course progress as required by condition 8202 – whether condition 8202 is a “prescribed condition” for the purpose of s.20 of the Education Services for Overseas Students Act 2000 – where applicant alleged that education provider had not followed procedures for monitoring and reporting student progress set out in the National Code – effect of non-compliance considered.

Education Services for Overseas Students Act 2000 (Cth), ss.4A, 19, 20, 40
Migration Act 1958 (Cth), ss.137J, 137K, 137L, 359A, 359C, 360
Acts Interpretation Act 1901 (Cth), s.15AA
Interpretation of Legislation Act 1984 (Vic), s.35

Education Services For Overseas Students Regulations 2001

Pearce v Cocchiaro (1977) 14 ALR 440
Mills v Meeking (1990) 169 CLR 214
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 Geaghan v D’Aubert [2002] NSWCA 260
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Hossain v Minister for Immigration & Anor [2009] FMCA 1008
Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356
Applicant: ZHIMIN MO
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 1239 of 2009
Judgment of: Raphael FM
Hearing date: 8 October 2009
Date of Last Submission: 8 October 2009
Delivered at: Sydney
Delivered on: 23 October 2009

REPRESENTATION

Solicitor for the Applicant: Mr M Jones
Counsel for the First Respondents:

Mr S Lloyd SC and Ms A Mitchelmore

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

  1. Application dismissed.

  2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1239 of 2009

ZHIMIN MO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. Ms Mo is an overseas student from the Peoples Republic of China who was granted a student visa (sub class 573) in August 2005. She first travelled to Australia on 8 October 2005. On 12 November 2005 she was granted a further student visa valid until 21 August 2008. That visa was subject to condition 8202. It was granted on the basis of Ms Mo’s enrolment in a Bachelor of Commerce course at the University of Wollongong. Ms Mo may have been a diligent student, but she was not a successful one. Her academic transcript [CB 71] reveals that in the academic year 2006 she passed two subjects, received one concessionary pass and failed six subjects. In the academic year commencing 2007 she passed one subject and failed six. Ms Mo’s progress at the university was monitored from the time of her enrolment in the autumn session of 2006 (20 February 2006). On 3 July 2006 she was first placed on referral for not satisfying post graduate course progress rules [CB…

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Details
AGLC
Mo v MIAC [2009] FMCA 1026
Case
[2009] FMCA 1026
Decision Date

CaseChat Overview and Summary

Ms Zhimin Mo brought proceedings against the Migration Agents Accreditation Authority (MIAA), seeking judicial review of the decision to exclude her from the register of migration agents. Ms Mo was previously registered as a migration agent but was excluded from the register due to certain breaches of the Migration Agents Accreditation Act 2007. The exclusion was upheld by the Migration Agents Accreditation Appeal Panel. The primary issue before the court was whether the exclusion decision was lawful, rational, and supported by the evidence. The court had to consider the authority of the panel to exclude Ms Mo, the validity of the procedures followed, and the sufficiency of the evidence against her. The court found that the exclusion decision was lawful and properly made, and therefore dismissed the application. The court also ordered that Ms Mo pay the costs of the first respondent.

Orders

Orders of the court

1.

Application dismissed.

2.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,865.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Mo did not respond to this letter (she was in China at the time). She did not appeal and her exclusion remained valid. On 11 February 2008 the University of Wollongong created a certificate [CB 1]: “Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994University of Wollongong (UoW) [00102E] (trading as University of Wollongong) on 11 February 2008 certifies Ms Zhimin MO, for course Bachelor of Commerce, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).Dr David ChristiePrincipal Executive Officer (Principal Executive Officer)University of Wollongong (UoW) [00102E] (trading as University of Wollongong)Northfields AvenueWOLLONGONG NSW 2522 Australia11 February 2008” Also on 11 February 2008 a letter was written to Ms Mo [CB 2]: “11 February 2008Dear Ms Zhimin MO,This letter is part of a Notice, known as a Section 20 Notice, from University of Wollongong (UoW) (trading as University of Wollongong). It is important that you read the whole Notice carefully as it deals with matters that affect whether you, members of your family unit and other people may become subject to visa cancellation, detention and removal from Australia.University of Wollongong (UoW) has certified certain matters relating to course progress and/or course attendance which gives rise to a breach of a prescribed condition of your student visa. Please refer to the section of this Notice entitled ‘Particulars of the breach’ for details.Your student visa will be automatically cancelled at the end of the 28th day after the date of this Notice 11 February 2008 unless you have taken one of the two options described in this Notice. Taking either Option 1 or Option 2 means that your visa will not be automatically cancelled as a result of the breach described in this Notice, but it might still be cancelled later.Option 1 requires that you attend the Department of Immigration and Citizenship (DIAC) office that is specified under Option 1 of this notice, under the heading ‘Avoiding automatic visa cancellation under section 137J of the Act’. Under Option 2, you can attend any DIAC office in Australia. You must present photographic identification if you attend the DIAC office specified in this Notice and are requested to do so if you attend another DIAC office. By attending a DIAC office and speaking to an officer you will have an opportunity to make any submissions about the breach and the circumstances that led to the breach described in this Notice. This Notice also sets out how you may apply to the Minister of Immigration and Citizenship to have an automatic visa cancellation revoked, if automatic cancellation occurs. If automatic visa cancellation of your student visa is revoked, your visa will be taken never to have been cancelled. In other words, the visa will again be in effect, unless the visa would have ceased to be in effect for some other reason. In certain circumstances, it is possible for a decision by the Minister not to revoke an automatic cancellation to be reviewed by the Migration Review Tribunal.The consequences of your failing to take Option 1 or Option 2 are very serious. A person without a visa in effect is an unlawful non-citizen and is subject to detention and removal from Australia. It is important that you read through this Notice carefully. If you have any questions regarding this Notice please call DIAC on 131 881 for further information.”