PENG v Minister for Immigration - [2005] FMCA 1709

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PENG v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1709

MIGRATION – Review of decision of Migration Review Tribunal – breach of condition 8202 – applicant claims discretion in Minister to consider applicant’s subjective circumstances before cancellation of student visa.

Migration Act 1958 (Cth), ss.116; 116(1)(b); 116(3); 119; 121; 359A; 474
Education Services for Overseas Students Act 2000 (Cth), s.20

Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 238
Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333

Applicant:

JING PENG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG878 of 2005

Judgment of:

EMMETT FM

Hearing date:

10 November 2005

Date of Last Submission:

10 November 2005

Delivered at:

Sydney

Delivered on:

23 November 2005

REPRESENTATION

Solicitors for the Applicant:

Mr W. Chan, William Chan & Co

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Mr A. Carter, Sparke Helmore

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Migration Review Tribunal.
That the Migration Review Tribunal be joined as Second Respondent.
That the Applicant’s applications before this Court are dismissed.
That the Applicant pay the Respondent’s costs in amount of $4500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG878 of 2005

JING PENG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) by a holder of a Subclass 573 (Higher Education Sector) visa. The Tribunal found that the Applicant had breached Condition 8202 of her student visa because of unsatisfactory academic performance. The unsatisfactory academic performance resulted in the cancellation of her student visa pursuant to s.116(1)(b) and s.116(3) of the Migration Act 1958 (Cth) (“the Act”).
The Applicant, in her amended application filed 1 June 2005, seeks review of the decision of the Tribunal on the following 5 particularised grounds:
“1. That the Tribunal erred in finding that the Applicant had breached condition 8202.
2. That the Tribunal erred in failing to exercise its discretion under s.116(3) of the Migration Act 1958.
3. That the Tribunal erred in its application or failure thereof to apply ss.15AA and 15AB of the Acts Interpretation Act 1901.
4. That the Tribunal erred in allowing into evidence the facsimile from the DIMIA to Macquarie University dated 6 October 2004.
5. That the Tribunal erred in allowing evidence the facsimile from Macquarie University dated 7 January 2005.”

Background

The Applicant is a citizen of the Peoples Republic of China (“the PRC”) who first entered Australia on 18 September 1999.
The Applicant entered Australia as a student on a Subclass 560 Student (Temporary) (Class TU) visa. This visa was granted on 9 September 1999 and expired on 29 June 2000. On 29 June 2000 the Applicant was granted a further subclass 560 visa which expired on 15 March 2002.
On 4 March 2002, the Applicant was granted a Bridging A visa which expired on 8 July 2002 when the applicant was granted a Student (Temporary) subclass 573 visa, the visa subject of these proceedings, and cancelled on 13 October 2004.
The Applicant commenced studying a Bachelor of Commerce at Macquarie University at the start of 2002 (semester 1, 2002).
On 31 August 2004, Macquarie University sent a notices to the applicant in accordance with s.20 of the Education Services for Overseas Students Act 2000 (Cth) notifying her that she had failed more than 50% in the last 3 consecutive semesters, passing only 3 of 13 subjects attempted. The notice informed the Applicant that, pursuant to s.137J of the Act, her student visa would be automatically cancelled if she did not attend an office of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) by the end of the 28^th day after the date of the notice. It also stated the particulars of her breach of her visa were as follows:
“Student failed more than 50% in the last 3 semesters. Student only passed 3 out of 13 subjects attempted”. [see if 7 and 8 need to come out]
On 13 September 2004, the Applicant met with an officer from the Department and was presented with a Notice of Intention to Consider Cancellation pursuant to s.20 of the Education Services for Overseas Students Act (“the Notice”), as a result of a breach of condition 8202 of her visa. The Notice complied with the requirements of s.119 of the Act which require, relevantly, that, if the Minister of Immigration and Multicultural and Indigenous Affairs (“the Minister”) is considering cancelling a visa pursuant to s.116 of the Act, the Minister must notify the holder that there appear to be grounds for cancelling it, provide particulars of those grounds and invite the holder to show within a specified time that those grounds do not exist or that there is reason why the visa should not be cancelled.
In the event of a breach of condition 8202, cancellation of the visa is mandatory pursuant to the following statutory regime.
a)Under s.116 of the Act, the Minister may cancel a visa where its holder has not complied with a condition of a visa and must do so if there exist prescribed circumstances in which a visa must be cancelled (s.116(3)).
b)A prescribed circumstance is one prescribed by the Regulations made under the Act.
c)Regulation 2.43(2)(b)(ii) provides that the circumstances in which the Minister must cancel a visa include non-compliance with condition 8202.
d)Condition 8202 is found in Schedule 8 to the Migration Regulations and provides that a person in the position of the Applicant (namely a person holding a class 573 visa) must attend at least 80% of specified contact hours with an education provider and must achieve an academic result for the relevant period that is certified by the education provider to be at least satisfactory.
e)There is no obligation upon the Tribunal to enquire of the education provider about the satisfactoriness or not of the Applicant’s academic result because condition 8202(3) is met only if the education provider has certified that the holder has achieved an academic result that is at least satisfactory.
f)Pursuant to s.121 of the Act, the Notice must, relevantly, be in writing and specify within a reasonable period a time and place for an interview. In accordance with s.121 of the Act, the Minister nominated 6 October 2004, at a nominated address for interview, which was attended by the Applicant.
Following the interview on 13 October 2004, a delegate of the Minister (“the Delegate”) cancelled the Applicant’s visa and notified her accordingly.

The Tribunal proceeding

On 21 October 2004, the Applicant lodged an application to the Tribunal, for review of the Delegate’s decision to cancel her visa, on the basis that the breach of condition 8202 occurred due to mitigating circumstances, including the relationship breakdown of her parents and because of her language difficulties.
Section 359A of the Act compels the Tribunal to notify an applicant of particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review.
On 18 November 2004, the Tribunal notified the Applicant, pursuant to s.359A of the Act, inviting her to comment on the following information:
“●Macquarie University advised the department that you had unsatisfactory academic results for semester 1 & 2, 2002 & 2003; and semester 1, 2004.
On 10 December 2004, the Applicant responded to the s.359A invitation to comment, by way of written submissions to the Tribunal.
On 13 December 2004, the Applicant attended a hearing before the Tribunal and gave oral evidence.
The Tribunal cited the decisions of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 in support of its finding that the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202.
The Applicant provided written submissions to the Tribunal in support of his review application together with extensive references to case law, policy and Hansard. The Tribunal considered carefully all the material before it and noted that the submission by the Applicant’s legal advisor contested the case law in respect of the lack of any discretion by the Tribunal to look behind the certificate produced, particularly a certificate indicating that progress was unsatisfactory.
The Tribunal also noted submissions by the Applicant’s legal advisor that the s.20 notice was erroneous and therefore invalid. However, the Tribunal found that the s.20 notice was not the information relied upon in cancelling the visa. Rather, the visa was cancelled in accordance with the mandatory requirement under s.116(3) of the Act in circumstances where it found that the Applicant breached condition 8202 of the visa by failing to provide a certified satisfactory academic certificate from her education provider.
The Tribunal also noted that the Applicant’s legal advisor’s submission that the breaches of condition 8202 were due to circumstances beyond the control of the Applicant. The Tribunal, whilst it noted the submissions on the issue, concluded that s.116(1)(b) was satisfied, by reason of the breach of the condition of her visa in respect of condition 8202 that required certification from Macquarie University that her progress was at least satisfactory. In those circumstances, the Tribunal found that s.116(3) makes mandatory cancellation of her visa.
The Tribunal found, once non-compliance with Condition 8202 is established, the Tribunal is bound by the operation of s.116(3) to affirm the decision of the Minister to cancel the Applicant’s visa.

The proceeding before this Court

The Applicant was legally represented before this Court.
The Applicant sought to challenge the correctness of the authorities of the Full Court of the Federal Court of Australia in both Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 238 (“Tian”) and Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 (“Yu”).
The Full Court of the Federal Court of Australia in said the following at [55]:
“A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in sub-clause (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 enquiry under Condition 8202(3)(b).
On the other hand, if there is no certificate, compliance with condition 8202 has not been achieved.”
The Applicant contended that the operation of Subdivision GA of the Act, particularly s.137J(2)(l) of the Act, together with the language contained at Part A paragraph 10 of the Notice, pursuant to s.116 of the Act contemplate the exercise of a discretion by the Minister and an ability to look behind any notice issued pursuant to s.20 of the Education Services for Overseas Students Act of unsatisfactory performance to consider the context that gave rise to such performance.
The Respondent referred to the curiosity in the operation of those sections. Section 137J pf the Act provides that in the event, a student does not attend in accordance with a notice received pursuant to s.20 of the Education Services for Overseas Students Act, the visa will be cancelled at the end of the 28^th day after the date the notice specifies as the date of the notice.
Section 137K then provides for a student whose visa has been cancelled, pursuant to the operation of s.137J, to apply to the Minister for revocation of the cancellation.
Section 137L provides that in the event an application is made under s.137K for the Minister to revoke a cancellation, that the Minister may revoke a cancellation if the applicant satisfies the Minister that the breach was a result of exceptional circumstances beyond the student’s control.
It would appear that the legislation operates to provide to a student, who fails to respond to a s.20 notice and fails to attend at the office of the Department, opportunity to persuade the Minister that she should revoke the cancellation because the breach giving rise to the s.20 notice was due to exceptional circumstances beyond the student’s control.
The Applicant, submits that such an opportunity is denied to a student who complies with s.20 of the Education Services for Overseas Students Act.
Moreover, in the case before this Court, the Notice is for breach of condition 8202. Paragraph 10 in Part A of the Notice states that there is an opportunity to comment on the cancellation of the visa and give reasons why the visa should not be cancelled. It states as follows:
“Factors a delegate may take into consideration in making a decision whether to cancel your visa include (but are not limited to) the following:
·The purpose of your travel to and stay in Australia;
·Extent of non-compliance with the conditions of your visa;
·The degree of hardship that may be caused to you or your family…;
·The circumstances in which the ground for cancellation arose;
·Your behaviour in relation to the Department now and on previous occasions.”
The Applicant submits that the notice of cancellation invites an applicant to provide reasons why the visa should not be cancelled, whereas a breach of condition 8202 makes mandatory the cancellation of the visa irrespective of any reason for its breach.
However, I note that paragraph 9 of the Notice that identifies the breach as a breach of condition 8202. The Notice further notes that, in the event that ground is made out, the student’s visa must be cancelled because prescribed circumstances exist. (The prescribed circumstance, being the failure of the Applicant to provide certification of satisfactory academic progress, makes mandatory the cancellation of the Applicant’s visa where that prescribed circumstance exists (s.116(3) of the Act)). I also note that there are other boxes that the Department may tick for the reason for the issuing of a Notice of Intention to Consider Cancellation that may not result in mandatory cancellation. In those circumstances, paragraph 10 may assist a student in preparation for the interview with the Department.
In any event, it is not a matter that is relevant to the facts of this case where the Applicant did attend an interview in compliance with the s.20 notice.
Moreover, this Court is bound by the authorities of the Full Court of the Federal Court of Australia. In Yu the majority of the Full Court considered that there were no express or implied statutory limitations on the circumstances in which s.116 of the Act could be invoked (at [38]). The Court further found that condition 8202 is not limited by reference to certification expressly under s.20, in that condition 8202(3) requires the visa holder to achieve a result that is certified as satisfactory. The majority observed that s.20 of the Education Services for Overseas Students Act only contemplates notice of a breach where progress is not satisfactory. The Court held, in the circumstances, that:
“the ESOS Act does not limit the circumstances under which s.116 might operate where there has been a failure to comply with condition 8202; nor does it confine the operation of condition 8202. If a breach of condition 8202, or some part of it, was only intended to arise upon giving of a notice under s.20 of the ESOS Act that would have been simple enough to say.”
In accordance with the authorities of Tian and Yu, the Tribunal had no discretion to consider any particular circumstance of the Applicant where there had been a failure of the Applicant to comply with a prescribed circumstance, namely her obligation to provide certification from Macquarie University of at least satisfactory academic performance.
The Applicant further submitted that one could infer successful progress by the transcript of the Applicant’s results from the University.
I am not satisfied that there is any error on the part of the Tribunal in failing to accept the transcript, as certification of at least satisfactory academic progress, as compliance with condition 8202.
The requirement under condition 8202(b) is specific in its terms, that, namely, the holder “achieves an academic result that is certified by the education provider to be at least satisfactory”. A transcript is not by itself certification by the education provider that the academic result is at least satisfactory. In the event that the transcript did disclose results that one would, in the ordinary course, accept as successful, one would imagine it would not be difficult for a student to obtain certification from a university that the results are at least satisfactory. However, in the absence of that certification, s.116(3) makes mandatory cancellation of the visa.

Conclusion

Accordingly, the Tribunal had no discretion to excuse the Applicant’s breach of Condition 8202, that being a prescribed circumstance. In those circumstances s.116(3) compels the Minister to cancel the Applicant’s visa.
Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
Accordingly, the Applications before this Court are dismissed with costs.

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

Associate: S Riddle

Date: 23 November 2005