RUAN v Minister for Immigration
[2005] FMCA 1628
•1 November 2005
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 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.
The issues which have been raised by the present application concern the procedures followed by the Tribunal itself, which lead to it making a decision without inviting the applicant to attend a hearing.
The applicant has been studying in Australia since October 2000. His most recent student visa was granted on 14 September 2004 and was due to expire on 26 August 2006. It was granted on the basis of the applicant’s continued enrolment in an Advanced Diploma of Business Administration at the Sydney Institute of Business and Technology (“the Institute”), which appears to be a body associated with Macquarie University. According to the evidence that was before the Tribunal, the applicant encountered difficulties in that course, in particular in the first and second terms of 2004, culminating in his failure in three exams which he sat at the end of the second term. Although the dates of that term are not clearly shown in the evidence, it would appear that the exams for the second term occurred after the commencement of the visa which was the subject of the cancellation.
On 28 October 2004, the applicant was given a notice under s.20 of the ESOS Act which caused him to report to an officer of the Department of Immigration on 16 November 2004, whereupon he was given a s.119 notice alleging that there may be grounds for cancelling his visa under s.116. It is unnecessary for me to address the validity of either of these notices in view of the authorities which are discussed in my decisions cited above. However, I note that both notices appear to have been defective.
The applicant attended an interview with a delegate on 29 November 2004, in which the delegate canvassed with the applicant information obtained from the Institute. This indicated that in the opinion of the Institute he had not “achieved an academic result considered to be at least satisfactory” in term 2 of 2004, and stated: “This student has been excluded from SIBT”.
The delegate also noted information from the Institute that the applicant had been provisionally accepted for a further course, being a Diploma of Hospitality (Management) course which would commence on 8 November 2004, provided that fees were paid. The applicant told the delegate that he had been accepted, but that he had last attended the Institute on 4 October 2004.
The delegate cancelled the visa on the basis of being satisfied of a breach of condition 8202 in relation to failure to maintain a satisfactory academic record.
The applicant appealed to the Migration Review Tribunal on 8 December 2004. By letter dated 11 February 2005 which, according to a note on it, was posted on 16 February 2005, the Tribunal invited the applicant to comment on certain information. The letter was posted to the applicant at his last residential address given to the Tribunal. It was subsequently also sent to a migration agent which the applicant engaged, but it is unnecessary for me to address the effect of the notification to the agent. I am satisfied that the letter was posted to the applicant within the period provided in s.379A(4) and that the applicant was, therefore, deemed to have received it seven working days after the date of the letter pursuant to the provisions of s.379C(4). The content of the letter, in my opinion, also complied with s.359B and the relevant regulations.
It invited the applicant to comment in writing on “the following information”:
·During a Departmental interview, you are recorded to have stated that you ceased attending Sydney Institute of Business and Technology on 4 October 2004.
·The Tribunal notes that you have provided a ‘provisional letter of acceptance’ for studies at Sydney International College of Business. However, there is no evidence to indicate that you commenced this course as scheduled on 8 November 2004.
This information is relevant to the review because it is a requirement of your visa that you comply with condition 8202. This condition requires you to maintain enrolment with a registered education provider. Failure to comply with condition 8202 shall lead to mandatory cancellation of your visa.
The applicant was warned:
If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your comments or to invite you to appear before the Tribunal.
The applicant did not provide any comments within the prescribed period, nor subsequently before the Tribunal handed down its decision on 15 June 2005. He has in his submissions to me today accepted that he did not provide comments, but has explained that he was unsure what he could do or say following the cancellation decision. He also conceded in his submissions to me that he had not enrolled in the course for which he had been provisionally accepted, nor had he been able to find any other course for which he could enrol within time.
The Tribunal received further information from the Institute, including information that “the student was enrolled and sat the final exams in Semester 2, 2004 and was excluded due to his results”. It was also given a print‑out of his results in his Diploma of Commerce course which confirmed this.
In its statement of reasons, the Tribunal, in my opinion, reached a conclusion that the applicant was in breach of two conditions arising under condition 8202, being the enrolment condition in item (2)(a) and the certification of satisfactory results condition in item (3)(b)(ii). This appears from [33]‑[37] from its reasons:
33. The Tribunal must, therefore, consider whether, at the time of the cancellation, it was possible to make a decision concerning non‑compliance with condition 8202. This requires that the applicant be enrolled in a registered course; that the applicant attain an attendance record of at least 80% for the course or the term or semester of the course if the course is structured in such a way; that the applicant achieve an academic result that is certified by the education provider as being at least satisfactory.
34. There is no evidence that the review applicant has been enrolled in a registered course since 9 October 2004, despite requests made by the Tribunal for such information. The review applicant’s education provider certified that his academic results were less than satisfactory in Term 2, 2004. This information suggests on the face of it that the review applicant has not complied with condition 8202 of their visa and is, therefore, liable for cancellation pursuant to section 116(1)(b) and section 116(3) of the Act.
35. 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 section 116(3), to affirm the visa cancellation.
36. The issue for review is therefore whether there is a breach of condition 8202?
37. The review applicant’s education provider advised the Department that the review applicant’s academic results for Semester 2, 2004 were not at least satisfactory. This was confirmed to the Tribunal by facsimile on 17 February 2005. Further, there is no evidence that the review applicant has been enrolled in a registered course since 9 October 2004. The Tribunal notes that the review applicant only held a Subclass 573 visa from 27 July 2004, however, from that date the review applicant held a visa subject to condition 8202. Therefore, on the evidence the review applicant has not complied with condition 8202 of his visa and the Tribunal finds that the grounds for mandatory cancellation pursuant to section 116(1)(b) and regulation 2.43(2)(b) have been made out.
The applicant’s application for review in this Court raised only one ground of review which said:
The Migration Review Tribunal was in breach of section 425(1) of the Migration Act, which says that the Tribunal must invite the applicant to appear before the Tribunal to give evidence to present his case.
Counsel for the Minister properly conceded that the reference to s.425(1) should be understood to be a reference to s.360(1), which is in the same terms and is the applicable provision relating to this Tribunal. It provides:
SECT 360
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In circumstances where s.360(2) renders inapplicable the duty of the Tribunal to invite an applicant to a hearing, not only is the applicant not entitled to appear by reason of s.360(3), but also s.363A precludes the Tribunal itself from permitting the applicant to appear at a hearing (see Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 at [50]).
In the present case, I am satisfied that s.360(2)(c) did apply by reason of s.359C(2) and the failure of the applicant to respond to the s.359A invitation to provide comments which I have referred to above. The ground raised by the applicant therefore must be rejected.
Counsel for the Minister raised an additional aspect of the case for the Court’s consideration. This was whether the Tribunal was in breach of s.359A by reason of its failure to invite the applicant also to comment upon the information from the Institute concerning the applicant’s unsatisfactory academic results. That information formed part of the reasons for the Tribunal for considering that there was a breach of condition 8202(3)(b)(ii). It formed no part of the Tribunal’s reasons for concluding that there was a breach of condition 8202(2).
Counsel for the Minister presented two arguments as to why there was no breach of s.359A(1). The first was that the duty did not arise in relation to that information by reason of the exclusion in s.359A(4)(b), on the basis that the applicant himself had given information concerning his poor results in the body of his review application where he said:
The only visa condition I did fail is that I did not meet the course requirement. I really did try before. The Diploma of Commerce Course is so hard and not suitable for me.
I am not persuaded by this argument, because the information which the Tribunal relied upon was not what was written on the application form, but was the information supplied by the Institute.
The second argument, in my opinion, has more substance and I accept it. It was that the duty under s.359A(1)(a) can be regarded as not having arisen, because information concerning a breach of the satisfactory results condition was not “integral” to the Tribunal’s reasons for affirming the decision that was under review. This was because the Tribunal’s decision should be analysed as being based on its independent and separate conclusion that there was also a breach of the enrolment condition. An analysis of a similar situation in this manner was accepted by Kenny J in Minister for Immigration & Multicultural & Indigenous Affairs v Hettiarchchige [2005] FCA 37 at [67]. I would respectfully follow that reasoning and apply it to the present case.
An alternative reason for concluding that the Tribunal’s failure to invite written comments should not result in the setting aside of the Tribunal decision is provided by an analysis of North J in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33]. His Honour considered that SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 could be distinguished where a breach of s.424A(1) (i.e. in the same terms as s.359A(1)) did not affect an independent and separate basis for the decision of the Tribunal. Although his Honour does not explain the principle underlying his reasoning, I think it could be understood as proceeding on the basis that the failure of procedure by the Tribunal was not, in a legal sense, material to its decision, so that the decision could not be regarded as vitiated by jurisdictional error.
A third analysis might also be open on the circumstances of the present case to provide a reason for declining to set aside the Tribunal decision. This would be that it would be futile to set aside the decision and remit the matter, in circumstances where breaches of both conditions under condition 8202 were not contested by the applicant, neither on the information which was before the Tribunal nor before the Court (see Samad v District Court of NSW (2002) 209 CLR 140 at [46], X v Commonwealth (1999) 200 CLR 177 at [112], Jankovic v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 474 at 477, Nguyen v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 206 at 213, and Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381 at 397). However, I do not need to rest my judgment upon this analysis.
For the above reasons, I have not been satisfied that the applicant has made out an entitlement to relief, and I therefore dismiss the application.
I certify that the preceding twenty‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 November 2005
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