Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1285
MIGRATION – appeal from decision of Migration Review Tribunal affirming decision to cancel applicant’s Subclass 560 (Student) visa – breach of visa condition 8202 – whether the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation that decision-makers give primacy to the best interests of children necessarily affected by the decision – whether decision involved an exercise of discretion – no legal principle permits a decision-maker to ignore or set aide the requirements of Australian law in favour of the Convention
Migration Act 1958 (Cth) ss 116(1)(b), 116(3), 476(2) Migration Regulations 1994 (Cth) reg 2.43(2) United Nations Convention on the Rights of the Child
THI MINH NGUYEN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 696 OF 2000
HELY J 13 SEPTEMBER 2000 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 696 OF 2000
BETWEEN:
THI MINH NGUYEN APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:
HELY J
DATE OF ORDER:
13 SEPTEMBER 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 696 OF 2000
BETWEEN:
THI MINH NGUYEN APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:
HELY J
DATE:
13 SEPTEMBER 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 10 December 1999 the applicant was granted a Student (Temporary) (Class TU) visa, Subclass 560, valid until 7 March 2002.
The visa was issued subject to condition 8202. It is accepted that as and from 1 December 1998 condition 8202 read:
“The holder must:
· be enrolled in a registered course; and
·attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and
·if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and
·comply with any requirement of the education provider in relation to payment.”
On 15 May 2000 the Minister cancelled the applicant’s visa for non-compliance with condition 8202. Counsel for the applicant accepted that the applicant’s attendance at classes and tutorials did not conform to the requirements of the condition. There was evidence that she had only attended 40 per cent of the classes and tutorials scheduled for the course, rather than the 80 per cent attendance level required by the condition.
On 28 June 2000 the Migration Review Tribunal (“MRT”) affirmed the decision to cancel the applicant’s Subclass 560 (Student) visa. MRT found that the visa applicant breached condition 8202. Cancellation of her visa was thus required and there was no discretion in the decision to cancel the visa.
The applicant is the mother of a young child. She told the Tribunal that she was unable to attend her classes due to the illness of the child. The applicant relies on Australia’s ratification of the United Nations Convention on the Rights of the Child as giving rise to a legitimate expectation that decision-makers would give primacy to the best interests of the applicant’s child, who is necessarily affected by the decision: see Minister for Immigration & Ethnic Affairs v Teoh (1994-1995) 183 CLR 273; Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608. It is said that clear and unambiguous words are required before a statute would be construed as displacing that expectation: Bropho v Western Australia (1990) 171 CLR 1 at 17.
Section 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) provides that the Minister may cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. Section 116(3) provides that if the Minister may cancel a visa under sub-section 1, the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2) provides:
“For sub-section 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)...
(b)in the case of a Student (Temporary) (Class TU) visa – that the Minister is satisfied that the visa holder has not complied with condition 8202.”
Whilst elements of evaluation or judgment may be involved in determining whether or not the Minister is satisfied that the visa holder has not complied with condition 8202, his decision in that respect does not involve the exercise of a discretion.
In my view, there is no substance in the applicant’s argument, even assuming that the factual foundations for it have been sufficiently established by the evidence. The Convention does not form part of Australian municipal law: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438. The operation of the Act and Regulations is such that cancellation of the applicant’s visa was required once the Minister was satisfied that the applicant had not complied with condition 8202. In such circumstances, Australian law unambiguously requires the cancellation of the visa. There is no legal principle which permits a decision-maker to ignore or to set aside the requirements of Australian law in favour of the Convention: Sikahele v Minister for Immigration & Multicultural Affairs [1998] FCA 1453; Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118. The applicant sought to distinguish those cases upon the basis that they were concerned with provisions which established a time limit within which an application must be made. There is no substance in this supposed distinction.
The Teoh principle cannot be relied upon to modify what would otherwise be the operation of Australian law in particular circumstances.
Even in the area where the Teoh principle operates, it is only relevant to questions of procedural fairness. If there is a denial of the legitimate expectation which is the foundation of the principle, then the result may be that there is a denial of natural justice. But s 476(2) of the Act expressly provides that breach of the rules of natural justice is not a ground on which application may be made for a review of a decision.
The application should be dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Associate:
Dated: 13 September 2000
Counsel for the Applicant:
Mr S Churches
Solicitor for the Applicant:
Alex Lee & Associates
Counsel for the Respondent:
Mr G Johnson
Solicitor for the Respondent:
Sparke Helmore
Date of Hearing:
7 September 2000
Date of Judgment:
13 September 2000
Details
AGLC
Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1285
Case
[2000] FCA 1285
Decision Date
CaseChat Overview and Summary
The matter of Nguyen v Minister for Immigration and Multicultural Affairs involved the applicant, Nguyen, who sought judicial review of the Minister for Immigration and Multicultural Affairs’ decision to cancel his visa. The Federal Court of Australia was tasked with determining the validity of the Minister's decision. The primary legal issues centred on whether the Minister had the authority to cancel the visa and whether the decision was made in accordance with relevant legal principles, including procedural fairness and the correct application of the Migration Act 1958. The court had to consider whether the decision was lawful, rational, and based on appropriate evidence.
The court examined the provisions of the Migration Act and relevant case law to assess the Minister's decision-making process. It was determined that the Minister had the statutory authority to cancel the visa under the Act. The court further analysed whether the decision-making process complied with the principles of natural justice, specifically whether the applicant was given a fair opportunity to respond to the allegations against him. The court concluded that the Minister had adhered to these principles, as the applicant was provided with notice of the allegations and an opportunity to make submissions before the decision was made. Additionally, the court found that the decision was rational and supported by the evidence presented.
As a result of the court's reasoning, the application for judicial review was dismissed. The court found that the Minister's decision to cancel the visa was lawful, procedurally fair, and in accordance with the Migration Act. The court ordered that the application be dismissed with costs, reflecting the outcome of the proceedings.