QIONG SHANG v Minister for Immigration
[2006] FMCA 1102
•31 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QIONG SHANG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1102 |
| MIGRATION – Visa – Migration Review Tribunal – application for review – student visa cancellation under section 116 – subclass 573 – condition 8202 – failure to maintain satisfactory academic results – cancellation – notification procedures – intention to cancel – the direction in Migration Act 1958 (Cth) s.116(3) is clearly mandatory in that it used the word "must" – no discretion for the decision maker as to cancellation of visa where s.116(3) applies – condition 8202 is met if the education provider has certified that the visa holder has achieved an academic result that is satisfactory or at least satisfactory – s.116 is not to be construed as being subject to any implied limitation arising out of Education Services For Overseas Students Act 2000 (Cth), s.20. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116, 359A, 360, 474 Migration Regulation Regulations 1994, r.2.43 Migration Amendment Regulations 2005 (No.8) sch.5 Education Services for Overseas Students Act 2000 (Cth), s.20 |
| Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 Minister for Immigration & Multicultural affairs v Hou [2002] FCA 574 Wong v Minister for Immigration [2002] FMCA 127 Shreshta v Minister for Immigration and Multicultural Affairs [2001] FCA 359 Shreshta v Minister for Immigration and Multicultural Affairs [2001] FCA 871 Akter v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1504 Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96 |
| Applicant: | QIONG SHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3299 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 July 2006 |
| Date of Last Submission: | 28 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00 and I allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3299 of 2005
| QIONG SHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal affirming the decision of a delegate of the Minister to cancel the applicant’s Student (Temporary) (Class TU) visa. The decision was made on 24th October 2005.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia as the holder of a Subclass 573 (Higher Education Sector) visa on 25th April 2002. The visa was valid until 22nd August 2006. He was granted another Subclass 573 visa on 13th March 2004 which contained Condition 8202, a condition that required the holder to meet the requirements of his course of study.
The applicant had been attending Macquarie University, where he was studying for the degree of bachelor of Accounting. On 23rd March 2005 he received a notice from the University under s. 20 of the Education Services for Overseas Students Act 2000 informing that he was in breach of a condition relating to academic performance. On 19th April 2005 the applicant was issued by the Minister’s Department with a Notice of Intention to Consider Cancellation under s.116 of the Migration Act. The reason given was an apparent breach of condition 8202 for failing to maintain a satisfactory academic result.
The applicant attended an interview with a delegate of the Minister on 31st May 2005. The delegate cancelled the applicant’s visa for a breach of Condition 8202 for failing to meet course requirements to maintain satisfactory academic progress in 2004.
Application for Review by the Migration Review Tribunal
The applicant applied to the Migration Review Tribunal for a review of that decision on 6th June 2005. Along with his application for review, the applicant submitted a two-page letter explaining why he had had difficulty completing his courses, which was partly due to medical problems. He also submitted a copy of the Department’s Record of Decision Whether to Cancel Visa.
On 16th August 2005 the Tribunal wrote to the applicant’s education provider, Sydney Institute of Business and Technology, asking whether it considered the applicant had obtained an academic result in semester 3 2004 that was at least satisfactory. A copy of that letter appears on page 41 of the Court Book. The Institute replied by fax the next day indicating that the applicant did not maintain at least satisfactory academic results for that semester. A copy of that faxed letter appears at pages 43 and 44 of the Court Book.
The Tribunal then wrote to the applicant, care of his migration adviser, seeking his comments in writing on the information provided by Sydney Institute of Business and Technology (SIBT). This letter was expressed to be under the provisions of s.359A of the Migration Act and pointed out that failure to comply with Condition 8202 would lead to mandatory cancellation of the applicant’s visa. The letter asked the applicant to comment within twelve working days and informed him that if he did not do so the Tribunal may make a decision on the review without taking any further action to obtain his comments, under
s.359C, and he would not be entitled to appear before the Tribunal.
The applicant did not reply. On 24th October 2005 the Tribunal made its decision affirming the delegate’s decision to cancel the applicant’s visa.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 55 and 56 of the Court Book. The Tribunal decided to make its decision on the review without inviting the applicant to appear before it under the provisions of s.360 of the Act.
The Tribunal considered the question to be decided was whether the applicant complied with condition 8202. The Tribunal found that the applicant had not, saying:
The review applicant’s education provider, SIBT, has advised that the review applicant did not achieve an academic result which it considered to be at least satisfactory for Semester 3 of 2004.
The review applicant has provided reasons as to why he achieved poor results whilst at SIBT. However, in relation to a cancellation pursuant to section 116 and regulation 2.43, the Tribunal’s role is limited to determining whether there has been a breach of the condition. The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non-compliance with the condition is established the Tribunal is bound, by the operation of s. 116(3), to affirm the visa cancellation (MIMA v Hou [2002] FCA 574; MIMA v Nguyen [2002] FCA 460).
The Tribunal found that the applicant had breached condition 8202 in relation his academic results in Semester 3 of 2004 and therefore affirmed the delegate’s decision.
Application for Judicial Review
The applicant filed an application under s.39B of the Judiciary Act on 11th November 2005. He seeks writs of certiorari and mandamus.
In his application, the applicant sets out six grounds. In the first ground, the applicant submits that the reasoning of Driver FM in Wong v Minister for Immigration [2002] FMCA 127 should be applied.
Second, the applicant submits that certain submissions were made to Emmett J in Minister for Immigration and Multicultural Affairs v Nguyen (no citation given) in relation to the impact of the provisions of section 137L and these submissions should be given judicial support.
Third, the applicant made submissions about the cancellation power under s.116 being read in conjunction with the provisions of s.137L.
Fourth the applicant submits that the court should apply the reasoning of Madgwick J in Shreshta’s case (no citation given).
Fifth, the applicant submits that, in paragraph 25 of the decision, the Tribunal member wrongly found that the applicant had a poor attendance record, which was a breach of condition 8202.
Sixth, the applicant submits that the Tribunal wrongly found that the applicant was studying for the degree of Bachelor of Information Technology when his visa was cancelled.
The applicant, who was not legally represented at the hearing, did not file any written outline of submissions. He confined his oral submissions to a reiteration of the factual errors that he claimed were made by the Tribunal, in grounds five and six of his application, and to a complaint about having been misled by a member of the staff of SIBT.
Conclusions
Under s.116(1)(b) of the Migration Act, the Minister may cancel a visa if the Minister is satisfied that the holder has not complied with a condition of the visa. If the Minister may cancel a visa under
sub-section (1), the Minister must (emphasis added) cancel that visa if prescribed circumstances exist. Those prescribed circumstances are set out in regulation 2.43.
Regulation 2.43, as it was in force at that time, provided that for the purposes of s.116(3), the circumstances in which the Minister must cancel a Student (Temporary) (Class TU) visa are that the Minister is satisfied that the visa holder has not complied with condition 8202
(r. 2.43(b)).
Whilst the regulation was amended by Schedule 5 of the Migration Amendment Regulations 2005 (No.8), the amended regulation does not apply in this case. The regulation commenced on 8th October 2005, but it applies to “all Student (Temporary) (Class TU) visas in force on or after the day on which Schedule 5 commences, whether or not a breach of condition 8202 occurred before the day on which Schedule 5 commences” (clause 7, SLI 2005 No. 221). In this case, the applicant’s visa was not in force on 8th October 2005, because it had already been cancelled on 31st May 2005.
Turning to the six grounds in the Application, the applicant submits first of all that Driver FM found in Wong v Minister for Immigration (supra) “that the Tribunal would be in error if it found that the principle in Shreshta could be applied so as to result in a residual discretion not to cancel a visa where the evidence was that condition 8202 had not been complied with.” This does not assist the applicant. What Driver FM found in Wong at [21] was that:
It is clear from the decisions of the Federal Court in Patsanza v MIMA [2001] FMCA 734 at paragraph 15 and MIMIA v Nguyen [2002] FCA 460 at paragraphs 7-9 and 11 that once a decision maker determines that condition 8202 is breached there is no residual discretion.
As to the second ground in the application, the Full Court made it clear in Minister for Immigration and Multicultural affairs v Nguyen [2002] FCA 460 that the direction in s.116(3) was clearly mandatory and there was no discretion for the decision maker (see also Minister for Immigration and Multicultural Affairs v Hou (supra); Akter v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1504). This ground, like ground one, must fail.
Ground three does not disclose any jurisdictional error. The Full Court has made it clear in Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC that s.116 is not to be construed as being subject to any limitation arising out of the Education Services for Overseas Students Act 2000.
Similarly, ground four does not disclose any jurisdictional error, nor does it allege any.
In grounds five and six the applicant complains that the Tribunal made two errors of fact in paragraph 25 of the Tribunal decision.
The applicant is correct. The errors appear in this sentence:
The delegate found that the review applicant had not complied with condition 8202 because that visa applicant had less than 80% attendance for his Bachelor Information Technology.
The delegate did not find that the applicant had attended less than the required amount of time, nor did the delegate believe that the applicant was studying for the degree of Bachelor of Information Technology. The delegate found that the applicant had failed to meet course requirements with unsatisfactory progress whilst enrolled with Sydney Institute of Business and Technology.
The Tribunal found that the breach of condition 8202 was that the applicant did not achieve an academic result that was at least satisfactory, as certified by the applicant’s education provider, SIBT. Whilst there are two factual errors in that one paragraph, it appears to have been a “rogue sentence” that has no bearing on the Tribunal’s actual decision.
The Minister, or the decision maker, does not have to be personally satisfied about the applicant’s academic progress in order to find that condition 8202 has been fulfilled or not:
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).
On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved (See Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [55] to [58]).
In this case, the education provider had not certified that the applicant had achieved at least a satisfactory academic result.
All of the grounds in the application fail to make out any jurisdictional error. The applicant, who is unrepresented, did not make out any jurisdictional error in his oral submissions. I am mindful that he is not legally represented in these proceedings, and I have made my own independent consideration as to whether a case could be made out based on the material before me (Yo Han Chung v University of Sydney [2002] FCA 186). I am unable to see that any arguable case could have been made out.
The decision is a privative clause decision as defined by s.474(2) of the Migration Act. It is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari (s.474(1).
The application will be dismissed and I will hear submissions on costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 4 August 2006
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