Rao v Minister for Immigration
[2005] FMCA 975
•12 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAO v MINISTER FOR IMMIGRATION | [2005] FMCA 975 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – applicant failing to meet attendance and academic performance criteria – cancellation of visa mandatory – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.116, 119, 359A, 359C, 441C Migration Regulations |
| Applicant: | HAO XIN RAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG217 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 12 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms S Kaur-Bains |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG217 of 2005
| HAO XIN RAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 17 January 2005. The MRT affirmed a decision of a delegate of the Minister cancelling the applicant's student temporary class TU visa. The relevant background facts and circumstances are set out in written submissions prepared on behalf of the Minister by Ms Kaur-Bains. I adopt paragraphs 1-14 of those written submissions for the purposes of this judgment as background:
This is an application for review of a decision of the MRT made on 17 January 2005 to affirm a decision of the delegate to cancel a Subclass 572 visa held by the applicant. The visa was subject to condition 8202. The Tribunal found that the applicant had breached condition 8202 of the visa and therefore cancellation of the visa was mandatory pursuant to section 116(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
Grounds for review
The application for review sets out the following as grounds for review :
My student visa was cancelled because DIMA held that I did not satisfy the condition of my visa. However, this happened was because I was under very bad condition and circumstances which DIMA did not take into account.
The applicant was granted various visas as set out at court book, page: 37, paragraphs 12 to 14. On 5 June 2004 the applicant was granted a Subclass 572 visa, with amongst other visa conditions, visa condition 8202.[1] The relevant parts of condition 8202 are set out at court book, pages: 36 and 37.
[1] Regulation 572.611(1)(a)
Section 116 provides as follows:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…………
(b)a holder has not complied with a condition of the visa..
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Regulation 2.43(2)(b) provides:
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(b) in the case of a Student (Temporary )(Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
(ii)condition 8202.”
Subdivision E of the Migration Act[2] sets out the procedure to be followed by the respondent in cancelling a visa under section 116 of the Act.
[2] The provisions as appear in Reprint 9 apply to this case.
Section 119 in Subdivision E of the Act provides that the respondent must notify the applicant that there appears to be grounds for cancelling the visa and give particulars of those grounds and of the information because of which the grounds appear to exist and invite the applicant to show within a specified time that those grounds do not exist or there is a reason why the visa should not be cancelled. The applicant is to be notified in the prescribed way. Regulation 2.55(3)(a) of the Regulations provides that the notice of proposed cancellation may be handed personally to the applicant.
The Notice of intention to consider cancelling the visa appears at court book, page 4. The Notice was handed to the applicant. See the applicant’s signature on court book, page 5 to show that he has received the notice. The Notice clearly complies with the provisions of section 119 and sets out that the possible grounds for cancellation are that the applicant’s education provider has advised that the applicant has failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of the course. The applicant was invited to an interview to be held on 23 August 2004 to provide his comments.
The interview on 23 August 2004 was postponed on the applicant’s request (court book, page 38:18). The interview was held on 6 October 2004. At the interview the applicant claimed that he had been late to class twice in the first week of semester 1, 2004. He believed that the teacher had a bad impression of him from that time and he stated that he was too afraid to return to class (court book, page 38:19). The education provider had advised that the applicant had achieved a mark of zero and overall attendance of 7.63% in the first semester.
On 6 October 2004 the delegate of the respondent cancelled the applicant’s student visa stating that she was satisfied that the review applicant had breached condition 8202 and therefore there was a mandatory requirement to cancel the visa (court book, page 38: 21).
The applicant then applied to the MRT for review of the delegate’s decision. The MRT conducted the review in accordance with Division 5 of the Migration Act.
By letter dated 17 November 2004 (court book, page 28) the MRT sent the applicant a notice pursuant to section 359A to the notified address for service. The time period for the applicant to respond was in accordance with Regulation 4.17(3) and the provisions of section 441C(4)(a) of the Act as to deemed service. The applicant did not respond to that notice. Accordingly, under section 359C the MRT was entitled to proceed to make a decision without taking any further action to obtain the applicant's comments, which is the step it took.
The MRT made the following findings:
a)the applicant had not complied with condition 8202 of his visa because the applicant’s attendance in semester 1 in 2004 was substantially less than 80% of the scheduled hours;
b)section 116(1)(b) is satisfied in relation to the review applicant;
c)cancellation of the visa is mandatory in accordance with section 116(3).
The MRT affirmed the decision of the delegate to cancel the applicant’s visa…
As Ms Kaur-Bains notes in those written submissions, the application before the Court seeks to justify the applicant's non-attendance at his educational institution. The applicant, in his oral submissions to me today, sought further to agitated that issue. I permitted him to tender two bundles of documents as exhibits. Exhibit A1 is a bundle of documents in English and Chinese concerning the medical condition of his grandmother. Exhibit A2 is a bundle of documents concerning the applicant's own psychological condition.
I mention, in that regard, that I have taken into account the applicant's fitness to participate in these present proceedings. Exhibit A2 discloses that the applicant asserts that he has suffered from mental problems since the end of 2004. Included in that bundle is a letter from his general practitioner referring him to a specialist, Dr Lyn Glaser. The applicant has not yet seen Dr Glaser. According to the general practitioner, the applicant has been suffering from anxiety and distress including symptoms of insomnia. The applicant was not prevented by his condition from attending court and I satisfied myself in questioning the applicant that he was fit to participate in the proceedings before me.
The applicant put to me that he experienced difficulties in complying with his obligations in the course in which he was enrolled due to his grandmother's medical condition and his own. He also told me that he was discriminated against by the institution because his teacher excluded him from class after he was late and the institution failed to require the teacher to permit him to attend. I do not think that any of this assists the applicant.
Exhibits A1 and A2 relate substantially to a period after the cancellation of his student visa. Secondly, the documents were not before the Minister's delegate or the MRT. The issue of the applicant's alleged exclusion from class was raised before the Minister's delegate in some form. The delegate's decision records that the applicant complained that he had been late for class twice in the first week of semester one and that he was too afraid to return to class because his teacher had a bad impression of him.
That is not entirely consistent with what the applicant told me today from the bar table. In any event, as is pointed out by Ms Kaur-Bains in her written submissions, the cancellation of the applicant's visa was mandatory once his non-attendance and unsatisfactory academic performance had been established.
The applicant may have a dispute with his educational institution as a result, but if, as he says, he has been discriminated against, he has rights against the institution that he can pursue. That is a separate matter from the cancellation of his visa.
I further note that the applicant did not respond to an invitation to comment that was sent to him by the MRT. The letter was addressed to the applicant's authorised recipient and appears on page 28 of the court book. The applicant told me today that he did not receive the letter and apparently knows nothing of it. There may have been some breakdown in communication between him and his authorised recipient but that was not the fault of the MRT.
The Act and regulations were correctly applied by the Minister's delegate and the MRT. There was no procedural error either in the decision of the delegate or the decision of the MRT. The proceedings before the MRT were fair.
In the circumstances, I can identify no jurisdictional error. Therefore, the application must be dismissed.
On the question of costs, the application having been dismissed, Ms Kaur-Bains seeks an order for costs fixed in the sum of $4,500 on a party/party basis. The applicant expressed concern about the behaviour of his educational institution but that is beyond the scope of these proceedings. He did not wish to make any other submissions relating to costs. I am satisfied that costs of $4,500 have been reasonably and properly incurred on behalf of the Minister when assessed on a party/party basis.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the proceedings, which I fix in the sum of $4,500.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 July 2005
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