OH v Minister for Immigration
[2006] FMCA 577
•21 April, 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OH v MINISTER FOR IMMIGRATION | [2006] FMCA 577 |
| MIGRATION – Student visa – failure to meet condition 8202. |
| Migration Act1958, s.116(1) |
| Tian v MIMIA [2004] FCAFC 238 |
| Applicant: | YOO BIN OH |
| Respondent: | MINISTER FOR IMMIGRATION |
| File Number: | BRG812 of 2005 |
| Judgment of: | Jarrett FM |
| Hearing date: | 10 April, 2006 |
| Date of Last Submission: | 10 April, 2006 |
| Delivered at: | Cairns |
| Delivered on: | 21 April, 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Bickford |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 19 December, 2005 be dismissed;
The applicant pay the respondent's costs of and incidental to the application fixed in the sum of five thousand dollars ($5,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG812 of 2005
| YOO BIN OH |
Applicant
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant to the Migration Act1958 (Cth) (“the Act”), filed on 19 December, 2005. The applicant seeks relief in respect of a decision of a migration review tribunal (“MRT”) made on 11 November 2005. That decision affirmed a decision of the Minister's delegate to cancel the Student (Temporary) (Class TU) visa held by the applicant.
Background
The applicant first entered Australia on 13 July, 1999 as the holder of a Subclass 976 (Electronic Travel Authority) (Tourist) visa, which was granted on 12 July, 1999. That visa expired on 7 October, 1999. Since then, it seems, she has been granted student visas.
The applicant was last granted a Subclass 573 visa on 11 October, 2004. Attached to that visa was condition 8202 (Enrolment and Course Requirements). That visa was cancelled on 17 February, 2005 because it was adjudged that she failed to meet the conditions of her visa, and in particular condition 8202.
On 24 January, 2005 the applicant’s education provider, Bond University, sent the applicant a notice purportedly pursuant to s.20 of the Education Services for Overseas Students Act2000 (“the ESOS Act”). By that notice the applicant was advised that she had breached a condition of her visa, and in particular:
“Your GPA was below satisfactory for the September 2004 semester therefore you have been excluded from Bond University.”
The applicant was also advised in the s.20 notice that she must report personally to the Department of Immigration and Multicultural and Indigenous Affairs within 28 days and that failure to do so would result in the automatic cancellation of her visa.
On 17 February, 2005 the applicant approached the Department and was given a Notice of Intention to Consider Cancellation (“NOIC”). In that notice it was stated that there were possible grounds for the cancellation of her visa as her education provider had advised the Department that the applicant’s grade point average (GPA) was below satisfactory for the September, 2004 semester and that she had been excluded from her course of study.
On 17 February, 2005 the applicant attended an interview with a representative of the Department. The applicant stated she believed there were no grounds for cancellation of her visa. She indicated that she had attended 100% of her classes but had found that her course hard, especially as English is not her first language. She also found it hard to adapt to study away from her country of origin.
Before presenting to the Department, the applicant secured admission to the Central Queensland University to study. She informed the Minister’s delegate that she wished to successfully complete her studies in Australia.
On 17 February, 2005 the delegate cancelled the applicant’s student visa on the basis that she had not complied with the requirements of condition 8202, to which the visa was subject. The ground for asserting a breach of the visa condition was that Bond University had certified that her GPA was not satisfactory.
At all times the Minister’s delegate purported to act pursuant to s.116 of the Act.
An application for review was lodged with the MRT on 23 February, 2005. The applicant made a submission in support of her application. She lodged a further submission on 1 July, 2005. In a letter dated
15 August, 2005 the applicant informed the MRT that she had applied for readmission to Bond University on the basis of her results from Central Queensland University.
There was a hearing by the MRT on 2 August, 2005. The applicant attended and provided sworn oral evidence to the Tribunal.
In September, 2005 the applicant was permitted to re-enrol at Bond University under certain conditions. She was permitted to re-enrol on a probationary basis only.
The MRT handed down its decision on 11 November, 2005. The MRT affirmed the Minister's delegate's decision to cancel the applicant's visa. The applicant received the decision and reasons on 17 November, 2005.
The applicant's case
The Minister's decision is a privative clause decision and therefore subject to s.474(1) of the Act[1]. To successfully challenge the decision, the applicant must show that the MRT's decision is infected by jurisdictional error or bad faith[2].
[1] see definition in s.474(2) of the Act
[2] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Although not entirely clear, it seems that the applicant argued before the MRT that because of certain exceptional circumstances, no breach of her visa conditions had occurred so as to justify the cancellation of her visa. In her outline of argument she referred to two decisions of migration review tribunals: Chen, Tuo Zhi [2003] MRTA 8126 and GU, Yi Ming [2003] MRTA 4934. She also refered to Chen v MIMIA [2005] FCA 229.
The first issue is whether condition 8202 attached to the applicant’s visa was breached. The Minister’s delegate and the MRT acted on the basis that it had been because the applicant had received a s.20 notice in which it was stated that her GPA was not satisfactory and she had been excluded from the University.
At the time of the grant of the applicant's last visa, condition 8202 was in the following terms:
8202
(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student – the holder is enrolled in a full-time course of study or training.
(3)A holder meets the requirements of this subclause if:
(a)in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester of the course; and
(b)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester (whichever is shorter) of the course.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.
The applicant accepts that she did not receive a certificate that her academic result was at least satisfactory to her education provider. She argues that although she did not receive such a certificate her visa should nonetheless not be cancelled because there were exceptional circumstances that lead to her poor academic performance and she has since secured re-enrolment at Bond University.
The exceptional circumstances identified by the applicant before me are:
a)that her chosen course of study was much more difficult than she anticipated, especially given that English is not her first language;
b)she had serious medical concerns that kept her from her study;
c)she had financial concerns that kept her from her study because she had to work. The need to work also kept her from properly attending to her medical concerns.
Discussion
Regrettably, even if the applicant's claims of special circumstances were made out, in my opinion they do not assist her in this application. The material makes it plain that the Minister's delegate proceeded to cancel the applicant's visa pursuant to s.116 of the Act because the applicant did not receive the requisite certificate of academic performance.
A finding that condition 8202 had been breached leads inevitably to the cancellation of the applicant's visa. The delegate had no choice but to cancel the visa and the MRT had no choice but to affirm that decision[3].
[3] see s.116(1), 116(3) of the Act and reg. 2.43(2)(b)(ii) of the Migration Regulations 1994 as they existed at the time of the applicant's visa cancellation; MIMIA v Hou [2002] FCA 574; MIMIA v Nguyen [2002] FCA 460
In Tian v MIMIA [2004] FCAFC 238 the Full Court of the Federal Court of Australia explained the operation of condition 8202 and s.116 of the Act as follows:
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 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.
57 The appellant argued before the primary judge and on this appeal that, on the true construction of Condition 8202, the appellant only needed to substantially comply with the condition rather than to strictly comply with it. She argued that a decision of a single judge of this Court in Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 should be followed.
58 In that case, Madgwick J gave a purposive construction to Condition 8202. He construed the condition as being satisfied if there had been substantial compliance with the condition or where the circumstances were reasonably beyond the student’s control.
59 That case was decided before the enactment of the ESOS Act and was based upon a different statutory regime which no longer applies: Minister for Immigration & Multicultural Affairs v Nguyen[2002] FCA 460.
60 Conti J in Minister for Immigration & Multicultural Affairs v Hou[2002] FCA 574 was not prepared as a matter of statutory interpretation to import a concept of substantial compliance into s 116(3) of the Act.
61 His Honour was of the opinion that the words were clear and the scheme of the subsection did not allow room for implication of a statutory alleviation or any other relaxation of the otherwise unqualified language of the subsection.
…
65 Section 116(1) permits the Minister to cancel a visa for any of the reasons in that subsection. In exercising that discretion, the Minister would have regard to all of the surrounding circumstances to determine whether it is appropriate to cancel a visa for any of the reasons in that subsection.
66 Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa
Given the absence of any discretion on the part of the Minister to refrain from cancelling a visa for a breach of condition 8202, it follows in my view, that the existence of "special circumstances" has no part to play in the Minister's decision making process[4].
[4] The inequity of such a situation appears now to have been addressed by amendments to the Act: see reg. 2.43(2)(b)(ii)B of the Migration Regulations 1994 which has effect from 1 March, 2006 (Migration Amendment Regulations 2005 (No.8) regs. 2, 7, schedule 5)
The application must be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 21 April 2006
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