Shih v Minister for Immigration
[2005] FMCA 1021
•22 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHIH v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1021 |
| MIGRATION – Cancellation of student visa – whether applicant breached condition 8202(3) – review of academic results – review of Migration Review Tribunal decision – no jurisdictional error. |
| Education Service for Overseas Students Act 2000, s.20 Migration Act 1958, ss.116, 137J, 474 Migration Legislation Amendment (Overseas Students) Act 2000 |
| Patsanza v MIMIA (2001) FCA 734 MIMIA v Nguyen (2002) FCA 460 Liu v MIMIA [2004] FCA 1058 Zhoa v MIMIA [2004] FCA 1078 Gerhard v MIMIA (2003) FCA 495 |
| Applicant: | TAO JUNG SHIH |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 3 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 24 May 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 22 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Boccabella |
| Solicitors for the Respondent: | A J Torbey & Associates |
| Counsel for the Respondent: | Ms M Brennan |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
That the Application for Review be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 3 of 2003
| TAO JUNG SHIH |
Applicant
And
| MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
The Applicant is a citizen of Taiwan now aged 24. Since January 1995 he has been granted a number of visas, sufficient to enable him to complete secondary schooling at Nudgee College in Brisbane and then initially to enrol at Griffith University to study a Bachelor of Commerce.
Relevantly on 7 March 2003 the Applicant was granted a sub-class 573 student visa on the basis of his enrolment in a Bachelor of Information Technology at Griffith University. Below in these reasons I give further background to the Applicant’s studies from March 2003, however it is clear that on 2 September 2003, Griffith University issued a notice to the Applicant pursuant to section 20 of the Education Service for Overseas Students Act 2000 informing him that he had breached a condition of his student visa relating to satisfactory academic performance (see RD 18).
On 3 October 2003, the Department gave notice to the Applicant of an intention to consider cancellation of the Applicant’s student visa under section 116 of the Migration Act 1958 (“the Act”).
Although the Applicant was enrolled at Central Queensland University in a Bachelor of Information Technology from 10 November 2003, the First Respondent’s delegate, on 12 November 2003, cancelled the Applicant’s visa (see RD 37) pursuant to section 116(1)(b) of the Act, namely that he “has not complied with a condition of the visa”.
On 17 November 2003 the Applicant applied to the Migration Review Tribunal (“MRT”) for a review of the delegates’ decision, and after a hearing the learned member handed down a decision on 18 October 2004 (see RD 105-114) affirming the delegates’ decision under review.
An Application to this Court subsequently amended claims that the Tribunal acted “in excess of jurisdiction in affirming the cancellation of the visa” on various grounds. This is the issue I am asked to determine.
Grounds of the application
The Amended Application filed 29 April 2005 asserts the following grounds:-
“1.The Second Respondent’s function was to determine if the Applicant had breached condition 8202(3) by not having a satisfactory academic result for the relevant semester in the study undertaken with the education provider;
2.The Applicant was studying at Griffith University during the relevant semester;
3.Griffith University has within its structure a body called QIBT;
4.The Applicant studies 4 subjects during the relevant semester, one of which was under the auspices of QIBT;
5.The Applicant passed 2 of the 4 subjects;
6.The Second Respondent failed to take into account the pass in the subject studies under the auspices of QIBT;
7.The pass in that subject was a relevant consideration for the purpose of undertaking a merit review as to whether there was a breach of condition or not;
8.As a consequence the Second Respondent committed a jurisdictional error in refusing the Application before it from the Applicant.
9.Further and/or in the alternatie:-
Condition 8202(3)(b) states, inter alia:
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 a least a semester – for each term or semester (whichever is shorter) of the course.
10.The Applicant was granted the visa in question on 7 March 2003 and it was purportedly cancelled by the First Respondent on 12 November 2003;
11.In this instance the Second Respondent took into account academic results occurring prior to 7 March 2003 in determining if there was a breach of condition 8202;
12.Further the Second Respondent took into account academic results in courses the Applicant was enrolled in prior to 7 March 2003;
13.The Applicant’s purported exclusion was based on results in earlier courses the Applicant had been enrolled in;
14.In determining if there was a breach of condition 8202 in relation to the visa granted on 7 March 2003, the Second Respondent could not take into account academic results prior to the grant of the visa;
15.It follows that the Second Respondent acted in excess of jurisdiction in affirming the cancellation of the visa.”
Legislative framework
Section 116 of the Act deals with visa cancellations and as relevant it states:
Section 116 Power to cancel
116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(g)A prescribed ground for cancelling a visa applies to the holder.
(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
The prescribed circumstances are set out in reg 2.43(2) which is relevant reads:
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)Each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and
(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)…
(ii)condition 8202
The First Respondent alleges that the Applicant breached condition 8202(3)(b)² which as relevant reads:
(3) A holder meets the requirements of this subclass if:
(b)in any case – the holder achieves an academic result that is certified by the education provider 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.
It is common ground that the decision maker had no discretion in cancelling the Applicant’s visa if the Applicant had been found not to have complied with condition 8202(3)(b) (see Patsanza v MIMIA (2001) FCA 734 at paragraph 15 and MIMIA v Nguyen (2002) FCA 460 at paragraphs 7-9 and 11).
The MRT decision
At paragraphs 15-39 of the MRT reasons for decision, the MRT comprehensively and accurately sets out the chronology of events including the numerous submissions made by and on behalf of the Applicant during the process of review by the MRT.
It is consistent with submissions made to the Tribunal and also to this Court that the Applicant contents that he had been treated “unfairly by Griffith University”. When an issue arose as to difficulties the Applicant alleged he was experiencing in trying to get necessary information from Griffith University, the Tribunal actually undertook an investigative role.
On 23 July 2004, the Tribunal wrote to Griffith University asking them to certify that the Applicant’s results were “at least satisfactory for visa purposes” taking into account the Applicant’s results at QIBT as well as his previous academic results (see RD 89). A response dated 29 July 2004 (see RD 91) was received by the Tribunal which the MRT correctly, in my view, interpreted as a “failure to promote a positive certification in regards to the review Applicant’s academic results” (see paragraph 36 of the MRT decision).
At paragraph 47 of the decision, the MRT says:-
“The Tribunal is not satisfied that Griffith University have certified that the review applicant has achieved an academic result that is at least satisfactory. The evidence before the Tribunal is that the review applicant was excluded from further studies at GU because of his unsatisfactory academic results in August 2003. Mansfield J in Tian’s case has stated that the obligation under 8202(3)(b) is one requiring positive certification from the school. As there is no such certification in this case the Tribunal finds that the review applicant is not able to satisfy condition 8292.”
Furthermore the learned member dealt with submissions made by the Applicant regarding the validity of the section 20 Notice, at paragraph 52 of the reasons as follows:-
“The Tribunal has also considered the review applicant’s submission regarding the validity of the section 20 Notice. Two recent decisions by Cooper J, Liu v MIMIA [2004] FCA 1058 (17 August 2004) and Zhoa v MIMIA [2004] FCA 1078 (20 August 2004) considered the purpose and operations of the Education Services for Overseas Students Act 2000 (the “ESOS Act”) and the Migration Legislation Amendment (Overseas Students) Act 2000 (the “MLA Act”) which introduced the automatic student visa cancellations provisions. The Court found that the purpose of the notice is to simply to initiate a process to bring a student before a Department to explain an alleged breach of condition, or bring about an automatic cancellation: section 137J(2). The notice under section 20 creates not other purpose and creates no rights or obligations in the student. Further, that no rights of the student are prejudiced under ESOS Act, as the right to be heard is preserved by revocation of cancelling procedure. The Tribunal has not affirmed the decision of the Department because of the information contained in the section 20 Notice. The Tribunal is satisfied that the review applicant’s visa was cancelled because of the information provided by the education provider to the Department and to the Tribunal in relation to the review applicant’s academic results.”
Discussion
The Applicant, as he did to Griffith University and the MRT, asserts that as he had achieved a pass in 2 out of 4 subjects “under any analysis this is a certification by the education provider of an academic result that is ‘at least satisfactory’”. It was vigorously submitted by Mr Boccabella for the Applicant that the Applicant should not suffer the harsh consequences of some administrative failures or alleged inadequacies of the staff or administration at Griffith University.
In my view, he was seeking the MRT, as the determiner of fact, to go behind the lack of positive certification by Griffith University and for itself to “certify” the Applicant’s academic performance was at least satisfactory for the purpose of compliance with condition 8202.
This is simply impermissible. Whilst the Applicant might say this is harsh, that is the way the legislation is expressed and has been consistently interpreted.
The reference in condition 8202 is to certification by the educational provider of a satisfactory academic result. In Gerhard v MIMIA (2003) FCA 495 Ryan J said at paragraph 13:-
“accordingly, for the mandatory obligation, to cancel the Applicant’s visa to arise, the Minister, or his delegate (on the MRT standing in the shoes of the Minister had to be satisfied that the Applicant had not complied with condition 8202. The matters stipulated in Condition 8202(2) and (3) are cumulative as are the two fold requirements imposed by condition 8202(3). In other words, for an Applicant to comply with Condition 8202(3) the Minister must be satisfied that the 80% threshold for attendance has been satisfied AND the holder must have achieved an academic result that has been certified by the education provider to be at least satisfactory. The Minister can only be satisfied of non-compliance with the latter sub-condition if there is no acceptable evidence of certification by the education provider of at least satisfactory results. It is not open to the Minister to question, or go behind, such a certificate if one exists”.
It is clear from the reasons that although the MRT was aware of the Applicant’s exclusion from Griffith University and his unsuccessful appeal against that exclusion, the MRT asked itself the right questions namely, whether the educational provider had positively certified that the Applicant had achieved “at least satisfactory” academic results.
I agree with the submission of Ms Brennan, Counsel for the Respondent that:-
“The MRT did not take into account an irrelevant consideration in the form of the section 20 ESOS Act notice. The Tribunal’s reasons expressly state that it did not act on the basis of the section 20 ESOS Act notice. The Tribunal did not regard the notice as a “relevant certification” as submitted by the Applicant”.
The section 20 Notice served no function other than that identified by Cooper J in Liu v MIMIA (2004) FCA 1058 and Zhoa v MIMIA (2004) FCA 1078 namely, to initiate a process to bring the Applicant to the Department to explain an alleged breach of condition or to bring an automatic cancellation of the visa.
The Applicant has failed to make out jurisdictional error on any of the grounds set out in the Application or otherwise expanded by oral submissions. In those circumstances, section 474 of the Migration Act operates to render the decision of the MRT, as a “privative clause decision”, final and conclusive and beyond challenge by this Court.
I am compelled to dismiss the application with costs following the event in the usual way.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: L Parke
Date: 22 July 2005
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