Ren v Minister for Immigration
[2005] FMCA 370
•31 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REN v MINISTER FOR IMMIGRATION | [2005] FMCA 370 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa – breach of condition 8202 – did not achieve satisfactory academic result – application dismissed. |
Migration Act 1958 (Cth), ss.116, 116(3), 119, 119(1)(a), 119(1)(b), 474
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch.8, condition 8202, regs.2.43, 2.43(2)(b)
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 52
Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 280
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574
Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460
Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261
| Applicant: | HANG REN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2680 of 2004 |
| Delivered on: | 31 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2680 of 2004
| HANG REN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 21 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
11 October 2002 to cancel a Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa.
Background
The applicant, Hang Ren, who claims to be a national of the People’s Republic of China, born on 26 November 1981 held a Student (Class TU) Subclass 573 (Higher Education Sector) visa which was granted on 8 January 2002 and was valid until 31 August 2005. The delegate’s decision to cancel the visa was made on 11 October 2002 under the Migration Act 1958 (Cth) (“the Act”). On 21 October 2002 the applicant applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision to cancel the visa on 19 May 2003 (Decision N02/07380) (Court Book pp.72-80) (“CB”) and on 13 June 2003 the applicant applied for a review of the Tribunal’s decision to the Federal Court. On 4 December 2003 the Federal Court by consent remitted the matter to the Tribunal for reconsideration according to law (CB p.137). On 21 July 2004 the Tribunal again affirmed the delegate’s decision to cancel the visa (Decision N04/00147) (CB pp.136-149) and on 27 August 2004 the applicant applied for a review of the Tribunal’s decision to the Federal Magistrates Court.
The applicant’s visa was cancelled on the basis that the applicant had breached condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”). The decision was made under s.116 of the Act. The grounds for cancellation of a visa are set out in s.116 of the Act and reg.2.43 of the Regulations.
The Tribunal’s findings and reasons
The Tribunal found that the applicant’s education provider, the University of New South Wales, had not provided a certificate that the applicant’s academic results were satisfactory for Semester 1 of 2002 (CB p.148.2). The University, in a letter dated 8 April 2004 to the Tribunal (CB pp.125-127), affirmed that the applicant did not achieve a satisfactory academic result in Semester 1 of 2002 (CB p.148.3). The Tribunal found that the applicant had breached the academic results requirements of condition 8202 contained in subparagraph 8202(3)(b). Having found that the applicant breached condition 8202, the cancellation of the applicant’s student visa was mandatory under s.116(3) of the Act and reg.2.43(2)(b) of the Regulations. The Tribunal affirmed the decision of the delegate to cancel the applicant’s student visa.
The applications made to the Tribunal by the applicant turned on whether the Tribunal was satisfied that the applicant had achieved an academic result that was certified by the education provider, the University of New South Wales, to be satisfactory for Semester 1 of 2002. The Tribunal made an adverse finding of fact to the applicant’s claim in respect of that matter (CB p.149.3).
Application for review of the Tribunal’s decision
On 27 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“1.The Tribunal found (at [43]) that the notice given by the Department to the applicant was sufficient to meet the requirements of s.119 of the Migration Act. The Tribunal fell into jurisdictional error in making this finding.
2.The Tribunal found (at [50]) that paragraph (3)(b) of condition 8202 was not structured in such a way that it confined the decision marker only to the course the review applicant was enrolled in at the time of cancellation. The Tribunal fell into jurisdictional error in making this finding.
3.The Tribunal found (at [59]) that it had no discretion to take into account whether the breach by the applicant was due to exceptional circumstances beyond the review applicant’s control. The Tribunal fell into jurisdictional error in making this finding.”
This matter was brought before the Court on 17 September 2004 for directions. At that time the applicant consented to Short Minutes of Order that he would file and serve an amended application giving full particulars of each ground of review to be relied upon by 1 November 2004. Further, it was ordered that the applicant would file and serve any written submissions on or before fourteen days prior to the hearing date. These orders were not complied with. At the directions hearing the applicant was represented by Counsel, but those instructions to appear were subsequently withdrawn by the applicant.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
The Act and Regulations
The grounds for cancelling a visa are set out in s.116 of the Act and reg.2.43 of the Regulations. Section 116 of the Act states:
“(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa; or
…
(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 provides:
“…
(2)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:
(i)condition 8104 or 8105 (if the condition applies to the visa); or
(ii)condition 8202.”
Condition 8202 found at Item 8202 in Schedule 8 to the Regulations provided:
“8202
(1)The holder (other than the holder of a Subclass 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 subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)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.
(3)A holder meets the requirements of this subclause if:
(a)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 and semester (whichever is shorter) of the course.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.”
Applicant’s submissions
At the hearing the applicant appeared self represented with the aid of a Mandarin interpreter. When he was invited to make oral submissions in support of his application, the applicant indicated he did not wish to say anything. The applicant was asked whether he had filed any documents as a result of the directions hearing held on 17 September 2004 and he indicated he had not prepared, filed or served any documents. The applicant also indicated that he was relying on his original application and he made no further oral or written submissions.
Respondent’s submissions
Mr A McInerney of Counsel, appearing for the respondent, filed written submissions prior to the hearing. In those submissions the respondent indicated that the applicant made three complaints in respect of the Tribunal’s decision as follows:
a)The first complaint was that the Tribunal erred in finding that the notice given by the Department to the applicant satisfied the requirements of s.119 of the Act. The respondent contended that it was open to the Tribunal to find as fact that the notice was sufficient to meet the requirements of s.119 and the notice complied with that section. The Tribunal found that:
i)it was clear that the applicant’s academic performance at the University of New South Wales was at issue; and
ii)the applicant knew the issues in dispute prior to the interview with the delegate and had gathered evidence directed to that issue (CB p.146).
Even if the notice was defective, the Tribunal was able to cure any procedural defects in the delegate’s decision and did so: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (“Zubair”) at [28]-[32]. The Tribunal’s task was to undertake a review of the merits of the delegate’s decision: Zubair at [28]. The Tribunal understood its task and carried it out according to law. No error was disclosed in the Tribunal’s approach to that task.
b)The second ground relied upon by the applicant was that the Tribunal erred in its interpretation and application of paragraph (3)(b) of condition 8202 of Item 8202 of Schedule 8 to the Regulations. The respondent submitted that the Tribunal correctly interpreted and applied that paragraph. The Tribunal’s construction of that subsection was consistent with authority, the ordinary meaning of the language used in the section and a purposive approach to its construction: Singh v Minister for Immigration & Multicultural & Indigenous Affairs; Fang v Minister for Immigration & Multicultural & Indigenous Affairs (“Fang”) at [44]).
c)The third matter about which the applicant made a complaint was that the Tribunal erred in its finding that it had no discretion to take into account whether the breach by the applicant was due to exceptional circumstances beyond the applicant’s control. The Tribunal was correct to conclude that it did not have any discretion to set aside a visa cancellation where there had been a substantiated breach of condition 8202. The Tribunal was bound by the operation of s.116(3), as considered by authority, to affirm the visa cancellation: Minister for Immigration & Multicultural Affairs v Hou (“Hou”); Minister for Immigration & Multicultural Affairs v Nguyen (“Nguyen”) and Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs (“Weerasinghe”).
Reasons
This matter concerned a single issue which was effectively summarised in the Tribunal’s decision under the heading “Conclusion” (CB p.149) and in particular paragraph 61 which stated:
“The undisputed evidence from UNSW, the review applicant’s education provider, is that the review applicant did not achieve satisfactory academic results in Semester 1 of 2002. In that semester, he failed 3 subjects which he had already failed the previous semester and he was suspended from his course for one year. In his oral evidence to the Tribunal and in his representative’s comments to the Tribunal, dated 16 April 2004, the review applicant does not dispute UNSW’s certification that his academic results for Semester 1 of 2002 were unsatisfactory. Based on this evidence, the Tribunal is unable to find that the education provider has certified the review applicant’s results to be at least satisfactory for Semester 1 of 2002.”
Condition 8202 found in Item 8202 in Schedule 8 to the Regulations, reproduced in paragraph 12 above, sets out the criteria which are conditions attached to the relevant Higher Education Sector visa granted to the applicant on 8 January 2002. In the circumstances where condition 8202 has not been complied with, the appropriate Regulation was 2.43, (also reproduced in paragraph 12 above), which empowers the Minister to cancel a visa under s.116(3) of the Act.
These grounds were pleaded in the applicant’s application filed on
27 August 2004 and no further documents have been provided in support of those three pleaded grounds. The applicant has not filed an amended application nor has he made any oral submissions to enhance or supplement the grounds in the pleadings.
In respect of Ground 1, the Tribunal stated at [43]:
“In the Tribunal’s view, the notice given was sufficient to meet the requirements of section 119 of the Act. In particular, at the interview held on 11 October 2002, prior to the decision to cancel, the review applicant submitted a number of documents which indicates that he was fully aware of the information in question and the possible grounds for cancellation. The information he provided included letters sent to him by UNSW regarding his suspension due to unsatisfactory academic results in Semester 1 of 2002, his appeal to the Re-enrolment Appeal Committee of UNSW, UNSW’s advice that his appeal had been unsuccessful and UNSW’s advice that he was being reported to the Department for unsatisfactory academic results.” (CB p.145)
Section 119 of the Act (Notice of proposed cancellation) provides:
“(1)Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b)invite the holder to show within a specified time that:
(i)those grounds do not exist; or
(ii)there is a reason why it should not be cancelled.
(2The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3)The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4)The other provisions of this Subdivision do not apply to a cancellation:
(a)under a provision other than section 116; or
(b)to which Subdivision F applies.”
The notice issued under this provision is Form 1099 under the general heading “Cancellation of temporary visa under 116 of the Migration Act 1958”. Part A of the Form “Notice of intention to consider cancelling a visa” is a pre-printed form with blank spaces under the various sections to be completed by the Departmental officer. Under Item 10 of the form, “Possible grounds for cancellation”, the officer has completed this section with the following notation:
“UNSW have advised DIMIA that you have failed to maintain satisfactory academic progress. Breach of condition 8202.” (CB p.10)
Under Item 11 of the form, “Opportunity to comment” set out the details for the visa holder to attend with a Departmental officer and that information was completed. The form was then signed by the Departmental officer and counter-signed by the applicant. The reverse side of the form (CB p.11) was an explanation of the various provisions under which the visa could be cancelled and the factors considered in the assessment by the Department and the consequences of the visa cancellation.
The information contained on the Notice satisfies the requirements set out under s.119(1)(a) and (b) of the Act. It was clear from the face of the document that it was the applicant’s academic performance at the University of New South Wales in failing to make satisfactory progress that was in breach of condition 8202 of his Higher Education Sector visa. The Notice was issued on 17 September 2002 at 4.15 p.m. and the applicant was not required to attend the interview until 11 October 2002 at 9.30 a.m. This provided the applicant with adequate time to prepare and marshal any material prior to the interview date. The respondent provided authority for the principle that the Tribunal was able to cure any procedural defects in the delegate’s decision: Zubair at [28]-[32]. Ground 1 of the applicant’s application cannot be sustained.
The applicant’s second ground was based on the Tribunal’s finding at [50] stated:
“In the Tribunal’s view, paragraph (3)(b) of condition 8202 is not structured in such a way that it confines the decision maker only to the course the review applicant is enrolled in at the time of cancellation. In many instances where a visa is cancelled, an applicant may only be reported to the Department by their education provider after they are suspended or excluded from the course due to unsatisfactory academic results or attendance. By the time the visa is cancelled, they may well be enrolled in a new course.” (CB p.146).
The relevant provisions of condition 8202(3)(b) are reproduced above at paragraph 12. I accepted the respondent’s submissions that the Tribunal’s interpretation of this provision was consistent with authority: Fang per McInnis FM at [44]:
“I do not accept as submitted by the applicant that the operation of s.116 in Condition 8202 can be confined in the manner suggested. I do not accept that there is a requirement for a continuing breach in a course in which the student is currently enrolled at the time. To impose that condition would be clearly against the intended operation or indeed arguably any operation at all of paragraphs (a)(i) and (b)(i) of s.116.”
Ground 2 of the applicant’s application cannot be sustained.
Ground 3 of the applicant’s application was based on the Tribunal’s finding at [59] which stated:
“As the visa in this case was not automatically cancelled under the provisions of Subdivision GB of the Act, the Tribunal has no discretion to take into account whether the breach was due to exceptional circumstances beyond the review applicant’s control. The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202 (see Hou and Nguyen). Once non-compliance with the condition is established, the Tribunal is bound, by the operation of subsection 116(3), to affirm the visa cancellation.”
I accepted the respondent’s submissions that the Tribunal was bound by the operation of s.116(3) to affirm the visa cancellation. The supporting authority in Hou per Conti J at [33] states:
“I am of the opinion that there is no legitimate room for an implication of the principle of statutory interpretation as to substantial compliance in relation to the operation of paragraph (b) of subs 116(1) of the Act. Moreover the scheme of subs 116(3) does not envisage or allow room for the implication of a statutory alleviation or relaxation of the otherwise unqualified language of paragraph (b). Since the enactment of Subdivision GB of Division 3 of Part 2, the subject of automatic cancellation of student visas has now been more comprehensively addressed, …… For all of the above reasons, I am unable to distil any justifiable basis for the application of a purposive approach to the construction of paragraph (b) of subs 116(1), such as to assist Mr Hou's case.”
In Nguyen per Emmett J at [11] it is stated:
“S116(3) is clearly mandatory in using the word “must”. S116(1), on the other hand, uses the word “may”. There can be no discretion for the Minister, or the decision maker making a decision as the Minister’s delegate, as to the cancellation of a visa where s116(3) applies. The Tribunal found that the applicant had not satisfied condition 8202, as that condition was imposed by Item 4 of the schedule to the Overseas Student Act. Accordingly, the Tribunal was bound to cancel the visa.”
The Tribunal’s decision refers to the authority of Weerasinghe per Ryan J at [10] where it is stated:
“… the presence or absence of a certificate from the education provider is not susceptible to being affected by circumstances beyond the applicant’s control … Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.”
Ground 3 of the applicant’s submission was not sustained.
Conclusion
I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 March 2005
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