Perera v Minister for Immigration
[2005] FMCA 1080
•5 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERERA v MINISTER FOR IMMIGRATION | [2005] FMCA 1080 |
| MIGRATION – Review of decision of Migration Review Tribunal – cancellation of student visa – breach of condition 8202 – Minister must cancel visa if no certification of at least satisfactory academic progress under s.116(3). |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Federal Magistrates Court Rules 2001, Rule 13.03A Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116; 119; 121; 137; 359A |
| Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 |
| Applicant: | SHARZAN RAMESH PERERA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2735 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 July2005 |
| Date of Last Submission: | 22 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2005 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitors for the Respondent: | Mr Leerdam, Phillips Fox |
ORDERS
The Application filed 3 September 2004 is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2735 of 2004
| SHARZAN RAMESH PERERA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) by a holder of a student visa (“the Applicant”). The Tribunal found that the Applicant had breached Condition 8202 of his student visa by failing to provide certification by his education provider of academic results that were at least satisfactory. This lack of certification resulted in the cancellation of his student visa pursuant to s.116(3) of the Migration Act 1958 (Cth) (“the Act”).
Respondent’s application to proceed in absence of Applicant
Each of the Court and the Respondent on 19 October 2004 and
26 October 2004 respectively, notified the Applicant at his nominated address for service of the hearing before the Court on 22 July 2005 at 10.15am. Despite having been notified, the Applicant failed to appear.
On 23 September 2005 directions were made by consent, and in the presence of the Applicant, providing for the filing of an amended application with particulars of each ground of review and written submissions no later than 14 days prior to the hearing. No further material has been filed by the Applicant in this matter.
The Applicant was called outside the courtroom on four occasions between 10:15am and 10:40am on 22 July 2005.
At 10:40am I requested my Deputy Associate to telephone the Applicant on the mobile telephone number identified by him on his Application. The telephone number had been disconnected.
The Respondent sought to proceed with the hearing today in the absence of the Applicant pursuant to Rule13.03A(d) of the Federal Magistrates Court Rules 2001.
I am satisfied there had been sufficient notification to the Applicant of the opportunity to participate in the proceeding. I note that there has been no notification by the Applicant of any change of his contact details.
Accordingly, I was satisfied it was appropriate to proceed with the hearing of this matter in the absence of the Applicant.
The Respondent forwarded a copy of her written submissions to the Applicant at his nominated address for service notwithstanding that the Applicant had not filed written submissions or any other material.
The Application
The Application before the Court seeks judicial review pursuant to s.39B of the Judiciary Act 1903 (Cth) of a decision of the Tribunal of
6 August 2004, which affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) made on 2 February 2004 to cancel the Subclass 572 (Vocational and Education Training Sector (Student)) visa held by the Applicant.
The Applicant in his Application filed 3 September 2004 makes the following claims:
“1. I want to finish my degree so I go back to my country and get a good job.
2. I spent lot of money on to do the degree.
3. I want to get a good university degree”.
The applicant relied on the following grounds:
“I have failed one subject in the last semester due to my father’s illness (heart attack). I studied at Supreme Business College.
I still have one subject to finish my diploma. I am going to finish my diploma and get the diploma. So I want to do my further studies without stress.”
Background
The Applicant is a Sri Lankan national born on 26 October 1981. The Applicant first entered Australia on 30 June 2001 as the holder of a Subclass 560 (Student) visa. On 23 July 2001 a Subclass 573 (Higher Education Sector (Student)) visa was granted to the Applicant.
On 15 November 2002 a Subclass 572-TU visa was granted conditional upon the Applicant’s continued enrolment in the Advanced Diploma in Business at Sydney Institute of Business Technology (“SIBT”). The visa was to expire on 28 July 2004 and had condition 8202 (‘Enrolment and course requirements’) attached.
On 4 November 2003 SIBT, being a registered educational provider, sent a notice to the Applicant in accordance with s.20 of the Education Services for Overseas Students Act 2000 (Cth) notifying him that his academic progress for Semester 2 in 2003 was not satisfactory and informing him that, pursuant to s.137J of the Act, his student visa would be automatically cancelled if he did not attend an office of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) by the end of the 28th day after the date of the notice.
On 25 November 2003 the Applicant met with an officer from the Department and was presented with a Notice of Intention to Consider Cancellation (“the Notice”) as a result of a breach of condition 8202 of his visa. The Notice complied with the requirements of s.119 of the Act which require, relevantly, that, if 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 a reason why the visa should not be cancelled.
Pursuant to s.121 of the Act, an invitation under s.119 of the Act to show cause 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 16 December 2003 at 2pm at a nominated address for the interview, which was attended by the Applicant.
Following the interview on 16 December 2003, the Minister’s delegate cancelled the Applicant’s visa and notified him accordingly.
The Tribunal proceeding
On 10 February 2004 the Applicant filed an application to the Tribunal for review of the delegate’s decision to cancel his visa on the basis that the breach of condition 8202 was beyond his control.
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 22 March 2004 the Tribunal notified the Applicant, pursuant to s.359A of the Act, inviting him to comment on his “exclusion by SIBT for academic progress in semester 2 of 2003 that was less than satisfactory” and inviting comment on the Applicant’s own admission to the delegate that he had failed the subject in which he was enrolled in semester 2 of 2003.
On 5 April 2004 the Applicant responded to the s.359A invitation to comment.
On 6 May 2004 the Tribunal wrote again to the Applicant in terms of s.359A inviting comment on information relating to the failure of subjects undertaken by him. Again the Applicant responded.
On 10 June 2004 the Applicant attended a hearing before the Tribunal. On that day the Applicant was provided with a further invitation to comment in relation to the Applicant’s academic performance in semester 2 of 2003 being less than satisfactory. Attached was a form that the Applicant could send to the SIBT for completion. The form simply requested SIBT to identify whether the Applicant had achieved an academic result that was at least satisfactory in semester 2 of 2003.
On 1 July 2004 the Tribunal received a response from SIBT confirming that the Applicant’s academic result was not at least satisfactory.
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)).
A prescribed circumstance is one prescribed by the Regulations made under the Act.
Regulation 2.43(2)(b)(ii) provides that the circumstances in which the Minister must cancel a visa include non-compliance with condition 8202.
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 572 – TU 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.
The Respondent submitted that there was 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.
In support of this submission, the Respondent relied on the decision of the Full Court of the Federal Court of Australia in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 in which the Court said the following at paragraph [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 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 Tribunal correctly held that, 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.
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.
There is nothing otherwise on the face of the Tribunal’s decision that discloses any error. Indeed, the Respondent submitted that the Tribunal provided the Applicant with more opportunities than was required by law to comment on information that may be the reason or part of the reason for the Tribunal affirming the delegate’s decision. I accept this submission.
I am satisfied that there is not any other claim plainly arising from the material before this Court that is capable of satisfying the Court that there was any error on the part of the Tribunal.
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 Application is dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 3 August 2005
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