Or v Minister for Immigration
[2005] FMCA 805
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OR v MINISTER FOR IMMIGRATION | [2005] FMCA 805 |
| MIGRATION – Review from Migration Review Tribunal decision – revocation of student visa due to breach of visa condition 8202 – academic progress and continued enrolment – certification by education provider – notice to applicant – no jurisdictional error – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Migration Act 1958 (Cth), ss.137J, 137K, 137L, 474 Migration Regulations 1994 (Cth), Schedule 8, condition 8202 |
| Craig v South Australia (1995) 184 CLR 163 Guo Dong Ni v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1143 Minister for Immigration & Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 195 ALR 502 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 216 |
| Applicant: | MAN YIN CALVIN OR |
| Respondent: | MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 275 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 6 June 2005 |
| Date of Last Submission: | 6 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | T. Hurley |
| Solicitors for the Applicant: | Chua Tan & Associates |
| Counsel for the Respondent: | E. Heerey |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 275 OF 2004
| MAN YIN CALVIN OR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
15 March 2004 seeking judicial review of the decision of the Migration Review Tribunal on 29 January 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to revoke the cancellation of the applicant’s Student visa.
The history
The applicant is a male national of Hong Kong. He came to Australia on 28 September 1998 on a Student (Temporary) (Class TU) visa (sub class 560). This visa expired on 15 March 2000. The applicant was granted a further temporary visa (subclass 560) on 29 June 2000. He was then granted a Student (Temporary) (Class TU) visa (sub class 573) on 29 May 2002. That visa, which is the subject of this decision, was cancelled on 24 April 2003 for breach of condition 8202 (‘Enrolment and course requirements’) under Schedule 8 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). Pursuant to a notice issued to the applicant under section 20 of the Education Services for Overseas Student Act 2000 (Cth) (“ESFOS Act”) on 26 March 2003, the breach was due to “unsatisfactory academic progress” in his combined degree, Bachelor of Computer Science and Bachelor of Engineering (Mechatronics), at the University of Melbourne in semester two in 2002. In this semester, the applicant failed all four subjects he was enrolled in. Whilst the applicant was suspended from the computer science component of his double degree, the notice stated that the applicant would be allowed to continue with his Bachelor of Engineering. The visa was automatically cancelled on 24 April 2003 under section 137J of the Migration Act 1958 (Cth) (“the Migration Act”) after he failed to attend an interview with the Department of Immigration and Multicultural and Indigenous Affairs.
In May 2003, the applicant applied to the Minister for Immigration and Multicultural and Indigenous Affairs for review of the decision to automatically cancel his visa pursuant to section 137J of the Migration Act. The delegate for the Minister refused to revoke the cancellation of the applicant’s visa. According to the delegate, the applicant had breached condition 8202 of his visa and there were no exceptional circumstances beyond the applicant’s control to justify a revocation of the visa cancellation. The applicant applied to the Migration Review Tribunal (“the Tribunal”) on 30 June 2003 for review of the delegate’s decision.
In the decision of the Tribunal on 29 January 2004, the Tribunal affirmed the decision under review. In short, the Tribunal held that the applicant had breached condition 8202 of his student visa (sub class 573) and, as there were no exceptional circumstances beyond the applicant’s control in relation to the breach, the Tribunal was bound to affirm the decision under review.
The Tribunal held that the review applicant had breached the visa condition notwithstanding that the University of Melbourne would permit him to continue with the Bachelor of Engineering. According to the Tribunal, the term “course” must relate to “the course for which the visa was granted, namely the combined degree” [Court book (“CB”) 60]. As the University had deemed his results for the combined degree in semester two 2002 to be unsatisfactory, the visa condition had been breached.
When determining whether there were exceptional circumstances as required under section 137L(b) of the Migration Act, the Tribunal took into account:
a)the applicant’s awareness of condition 8202;
b)the lack of medical evidence before the Tribunal relating to the applicant’s migraines – the applicant had applied for special consideration in semester two of 2002 due to claimed migraine headaches during the exam period; and
c)other factors, including a loss of interest in computer science subjects and a high number of working hours, which would have contributed to his poor academic performance.
On 15 March 2004, the applicant lodged an application for review of the Tribunal’s decision in this Court, being MLG 275 of 2004. This application did not state how the Tribunal had erred in its decision, but provided an explanation as to why the application had been filed out of time. The application was filed in conjunction with an affidavit by the applicant. The affidavit explained the circumstances in which the visa breach occurred and actions taken subsequent to that breach.
On 2 June 2005, the applicant lodged an amended application. This application sought a constitutional writ of certiorari and specified the grounds on which the Tribunal had erred in making its decision. The application asserts that the Tribunal made an error in paragraph 29 of its reasons by holding:
…that either the Applicant had not achieved an academic result that was at least satisfactory for the second semester in 2002 for the purposes of Cl 8202(3)(b)(ii) of the Migration (1994) Regulations Schedule 8 and, or, that the registered provider under the Education Services for Overseas Students Act 2000 (Cth) had erred in concluding the Applicant had “breached a student visa condition relating to attendance or satisfactory academic performance” within d20(1) of that Act.
The applicant also claimed that the Tribunal had erred in holding that the notice issued pursuant to section 20 of the ESFOS Act was “of lawful effect” when the registered provider had already re-enrolled the applicant in a Bachelor of Engineering for 2003.
The applicant filed contentions of fact and law on 20 October 2004 and filed further contentions of fact and law on 2 June 2005. The latter contentions, which accompanied the amended application and a further affidavit sworn by the applicant, outlined the grounds to be relied upon at the hearing. In essence, the applicant claims that because the University allowed him to continue with “half” of his combined degree, then the University must have accepted that his academic performance had been satisfactory, particularly as the section 20 notice was sent out after his enrolment for 2003 had taken place. Consequently, the Tribunal erred in finding that:
The fact that the review applicant has been permitted to continue with one component of the combined degree does not, in the Tribunal’s view, mean that the University considered that his result in semester 2, 2002 for the combined degree to be at least satisfactory.
The respondent filed contentions of fact and law on 19 November 2004. The respondent generally rebutted the applicant’s claims that the Tribunal erred in making its decision, arguing that the Tribunal’s decision was reasonable and made in accordance with the correct legislation and policy guidelines. The respondent filed further contentions of fact and law on 3 June 2005. The respondent argued that the Tribunal’s finding that the applicant had not complied with condition 8202(3)(b)(ii) was a finding of fact that was reasonably open to it. It was also argued by the respondent that it was irrelevant for the Tribunal to consider whether the University of Melbourne would allow the applicant to continue in a different course after semester two of 2002 and that “the words of condition 8202(3)(b) direct the inquiry to the limited consideration of the University’s attitude as to the Applicant’s academic performance in the specified semester and the specified course”. The respondent also asserted that the section 20 notice was not “insufficient in any material way” and did not give rise to a jurisdictional error.
The Law
Section 20 of the Education Services for Overseas Students Act 2000 (Cth) states:
20 Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
Unincorporated registered providers
(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.
(1) A registered provider must at all times:
(a) be a member of a tuition assurance scheme established in accordance with the regulations; and
(b) comply with the rules of the scheme.
Note: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.
Sections 137J, 137K and 137L state as follows:
137J Non-complying students may have their visas automatically cancelled
(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).
Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach.
(2) The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non-citizen complies with the notice; or
(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the
Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.
137K Applying for revocation of cancellation
(1) A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.
(2) A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.
(3) In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:
(a) 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(4) A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.
(5) In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.
137L Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non-citizen’s control; or
(c) of any other matter prescribed in the regulations.
(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.
(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
Condition 8202, under Schedule 8 of the Migration Regulations, states as follows:
(1) The holder (other than the holder of a sub-class 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 subclasses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
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.
A holder meets the requirements of this subclause if:
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 or semester (whichever is shorter) of the course.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, a Tribunal decision would be reviewable if it was established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 (“Yusef”) at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
Findings and conclusions
In essence, what was required to be determined by the Tribunal was whether the applicant had complied with condition 8202(3)(b)(ii), which required the application to “achieve an academic result that is certified by the education provider to be at least satisfactory for each term or semester (whichever is the shorter) of the course.”
Semester two of 2002 was the relevant period for compliance. During this time, the applicant was enrolled in a combined Bachelor of Computer Science and Bachelor of Engineering course at the University of Melbourne. His results, set out at CB 6, indicated that for this semester he was enrolled in four subjects and failed all four.
Following those results, the Academic Board of the University of Melbourne issued a report entitled “Unsatisfactory Progress in 2002 Semester 2 Studies, Faculty of Engineering Report”, a copy of which is reproduced at CB 4. The report concludes:
The Committee recommends suspension from the Bachelor of Computer Science component of the combined degree for academic non-performance. He may continue with his BE (Mechanical).
As a result, the applicant contends that because he was allowed to continue with a course, the registered provider must have accepted that the academic progress of the applicant was satisfactory for this purpose. However, what the Tribunal had to determine was whether the applicant had achieved an academic result for semester two of 2002 which the education provider certified to be at least satisfactory.
I accept the respondent’s contentions that the academic results, constituting four fails, and the “Unsatisfactory Progress” report provided a sufficient basis for the Tribunal to make a finding of fact that the University had not certified the applicant’s academic result for semester two of 2002 to be at least satisfactory. Indeed, the applicant’s performance was described as academic non-performance.
It was irrelevant for the Tribunal to consider whether the education provider would let him continue in a different course after semester two of 2002. Mansfield J in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 216 at 24 and Ryan J in Guo Dong Ni v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1143 held that the mere offer of enrolment in a following year did not amount to a certification of the kind required by condition 8202(3)(b). The applicant was clearly in breach of the condition and the Tribunal did not err in its finding at paragraph 29 (CB 60):
The fact that the review applicant has been permitted to continue with one component of the combined degree does not, in the Tribunal’s view, mean that the University considered his result for semester 2, 2002 for the combined degree to be at least satisfactory.
The second contention of the applicant is that the notice sent to the applicant, dated 26 March 2003 (CB 17), pursuant to section 20 of the ESFOS Act reveals an error of law. Section 20(4)(a) of the ESFOS Act required the section 20 notice to contain particulars of the breach. In my view, the notice clearly did contain such particulars in that it set out such particulars by stating That the applicant had been suspended due to unsatisfactory academic progress. I am satisfied that in the context of the education provider having already issued a statement of academic results showing four failed subjects and “the unsatisfactory progress” report for semester two of 2002, the section 20 notice has sufficient particulars of the applicant’s breach of condition 8202.
Further, I accept the submissions of the respondent that the concern of the law is with “practical injustice”, not mere technicalities (see Minister for Immigration & Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 195 ALR 502 at 37 and only a manifest or serious error would amount to a jurisdictional error. In this context, it is important to understand that under section 137J(1), section 137J would have applied to cancel the applicant’s visa even if he had never received the section 20 notice.
Accordingly I am satisfied that in all the circumstances the amended application should be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 16 June 2005
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