RUAN v Minister for Immigration - [2005] FMCA 1628

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUAN v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1628

MIGRATION – MRT decision – student visa cancelled for two breaches of condition 8202 – no hearing held after failure to respond to s.359A invitation to comment concerning one breach – effect of Tribunal failure to invite comment in relation to second breach – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Act 1958 (Cth), ss.116(1), 116(1)(b), 116(3), 119, 359A, 359A(1), 359A(1)(a), 359A(4)(b), 359B, 359C(2), 360(1), 360(2), 360(2)(c), 360(3), 363A, 379A(4), 379C(4), 424A(1), 425(1), 483A
Migration Regulations 1994 (Cth), reg.2.43(2)(b), Sch.8 items 8202, 8202(2)(a), 8202(3)(b)(ii)

Jankovic v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 474
Ju v Minister for Immigration & Anor [2005] FMCA 1265

Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381

Maharjan v Minister for Immigration & Anor [2005] FMCA 1442
Minister for Immigration & Multicultural & Indigenous Affairs v Hettiarchchige [2005] FCA 37
Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201

Nguyen v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 206

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Samad v District Court of NSW (2002) 209 CLR 140
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965

X v Commonwealth (1999) 200 CLR 177

Applicant:

JING RUAN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1912 of 2005

Judgment of:

Smith FM

Hearing date:

1 November 2005

Delivered at:

Sydney

Delivered on:

1 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms M Allars

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1912 of 2005

JING RUAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review to set aside a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 15 June 2005.
The Tribunal affirmed a decision of a delegate taken on 29 November 2004 to cancel a Subclass 573 (Higher Education Sector) (Student) Visa. The visa is also referred to as a “Student (Temporary) (Class TU) Visa”. Although there is no direct evidence of the visa in the papers before me, I accept the Tribunal’s description of it, and in particular that a condition of the visa was compliance with condition 8202 in Sch.8 of the Migration Regulations 1994 (Cth) (“the Regulations”). The relevant parts of condition 8202 were:
8202
(1)…
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1628
Decision Date: 1 November 2005

CaseChat Overview and Summary

The case of Ruan v Minister for Immigration involves an application for judicial review of a decision made by the Migration Review Tribunal (the Tribunal) to affirm the cancellation of a student visa held by the applicant. The Tribunal's decision followed a delegate's decision dated 29 November 2004, under the Migration Act 1958, to cancel the visa due to non-compliance with certain conditions, specifically condition 8202 in Schedule 8 of the Migration Regulations 1994. The visa in question was a Subclass 573 (Higher Education Sector) (Student) Visa, which required the holder to either be enrolled in a registered course or to meet attendance and academic performance standards. The Tribunal's decision to uphold the visa cancellation was made on 15 June 2005, and the applicant sought to challenge this decision through judicial review under section 483A of the Migration Act.

The primary legal issue before the court was whether the Tribunal's decision to affirm the cancellation of the visa was legally sound. This involved an examination of whether the Tribunal correctly applied the law in determining that non-compliance with the specified conditions of the visa justified the mandatory cancellation under section 116 of the Migration Act. The court had to assess whether the Tribunal appropriately interpreted and applied the statutory provisions that led to the cancellation, and whether there were any procedural errors or jurisdictional mistakes that could have influenced the outcome. The court also needed to consider the extent to which the Tribunal had discretion in such matters, given the specific statutory language that appeared to limit its ability to consider extenuating circumstances.

The court examined the statutory framework and found that the Tribunal's decision aligned with the requirements set out in the Migration Act and the Regulations. It determined that the Tribunal correctly interpreted the mandatory nature of the cancellation provision, which left no room for the consideration of mitigating factors. The court further noted that the Tribunal had no discretion to deviate from the statutory requirements in cases of non-compliance with the visa conditions. It also considered previous Full Court cases that had addressed similar issues and concluded that the law in this area was settled. The court rejected the applicant's arguments, finding that the Tribunal's decision was not flawed and did not involve any jurisdictional error or procedural irregularity.

The court dismissed the application for judicial review and ordered that the applicant pay the respondent's costs in the sum of $4,000. This outcome reflects the court's determination that the Tribunal's decision to affirm the visa cancellation was legally correct and that the applicant's application for review did not succeed on any grounds.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $4,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review to set aside a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 15 June 2005. The Tribunal affirmed a decision of a delegate taken on 29 November 2004 to cancel a Subclass 573 (Higher Education Sector) (Student) Visa. The visa is also referred to as a “Student (Temporary) (Class TU) Visa”. Although there is no direct evidence of the visa in the papers before me, I accept the Tribunal’s description of it, and in particular that a condition of the visa was compliance with condition 8202 in Sch.8 of the Migration Regulations 1994 (Cth) (“the Regulations”). The relevant parts of condition 8202 were: 8202 (1)… (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 a secondary 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 or semester (whichever is shorter) of the course. (4)… The delegate, and on review the Tribunal, applied the power of cancellation pursuant to s.116(1)(b) of the Migration Act. The effect of s.116(3) of the Migration Act and reg.2.43(2)(b) of the Regulations is that cancellation was mandatory if the Tribunal was satisfied that there was non‑compliance with any one of the conditions arising under condition 8202. It had no discretion to consider extenuating circumstances. The operation of these provisions and the nature of the decision to be arrived at by the Tribunal has been canvassed in a number of Full Court cases. I recently considered them and the draconic effects of the relevant legislation in Ju v Minister for Immigration & Anor [2005] FMCA 1265 and Maharjan v Minister for Immigration & Anor [2005] FMCA 1442. In the latter case, I rejected a contention made by an applicant that a cancellation under s.116(1) for breach of his condition 8202 could be set aside due to the service of an invalid notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) in the procedure leading to the cancellation decision. No attempt has been made by the present applicant to canvass this area of the law, nor any of the other points which, in my opinion, have been settled by the cases to which I refer in my above two judgments.