Sun v Minister for Immigration - [2003] FMCA 351

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUN v MINISTER FOR IMMIGRATION

[2003] FMCA 351

MIGRATION – Review of decision of MRT – student visa – failure to attend requisite numbers of contact hours – whether Tribunal is required to call for additional evidence – whether Tribunal had sufficient evidence to make its decision.

Migration Act 1958 (Cth), s.116(3)

Judiciary Act 1903 (Cth), s.39B

Applicant:

SUN, JING CHENG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1102 of 2003

Delivered on:

6 August 2003

Delivered at:

Sydney

Hearing date:

6 August 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr M Wigney

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1102 of 2003

SUN, JING CHENG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of China who entered Australia for the purposes of study and received a subclass 574 (student visa) on 26 November 2001. This visa remained valid until 20 March 2003 subject to the usual conditions which included condition 8202. The visa was cancelled on 20 March 2003 for breach of condition 8202.
The applicant studied successfully in this country from mid 2001 but the organisation with which he was studying in 2002, known as the Australian College of Technology, lost its licence in about July 2002 and ceased business. Another organisation took over that company's operations and the applicant was enrolled with them. It seems that he made a large payment to ACT which he effectively lost.
According to his statement to the Migration Review Tribunal, when the applicant commenced studies with the new organisation he was initially placed in the wrong course. But he says he attended until he was placed in the right course.
On 12 November 2002 the applicant received a letter from the administrator of the organisation with which he was enrolled advising him of unsatisfactory attendance. The document, which is found at [CB 11] states:
“According to our records your attendance for the first full weeks of term four was less than 80%. As you are aware it is a condition of your student visa that you attend a minimum of 80% of the full time study requirement of 20 contact hours per week. We have not been advised of any cogent reason for your absences.”
On 11 November 2002 the applicant claims that he suffered back injury and obtained a medical certificate from Dr Leung indicating that he was unfit for work or school between 11 November 2002 and

11 December 2002. The applicant stated to the Tribunal that he took this certificate to the college but they did not accept it. He stated that as they did not accept it he thought he had better attend and he did. At the end of the year 2002 he was told that his mother was ill and was asked to return to China to help look after her. He has produced, and there is found at [CB 51] and [52] and [53], certain documents relating to his mother's illness.
In March 2003 the applicant was told by his education provider that he had not attended a minimum of 80% of full time study for term four 2002 and that he had been reported to the Department.
The delegate of the Minister considered the matter and revoked the applicant's visa which he believed he was obliged to do pursuant to s.116(3) of the Migration Act.
When the matter came before the Tribunal the applicant attempted to explain to the member his reasons for disputing the delegate's finding that he only had a 48% attendance for term four 2002. He referred there to the medical certificate which he had obtained and the requirement to visit his mother and look after her. It is perhaps unfortunate that the actual records of attendance were not produced. The Tribunal relied solely on the documentation to which I have referred and other advice provided to it by the school. It also took into the account the evidence given by the applicant.
The Tribunal's conclusions are found at paragraphs 42 and 43 of its decision at [CB 70]. Paragraph 43 reads:
“The Tribunal does not accept that the review applicant has provided a truthful recollection of his attendance during Term 4, 2002. It was clear in his evidence to the Tribunal that he would change his evidence when it became logically inconsistent. He claimed for example to have received a doctor's certificate certifying he was too unwell to attend education for one month from 11 November 2002. He claims that this was because it was uncomfortable for him even to walk down stairs from his home unit. His explanation for then attending classes the very day after this appointment is unclear. He initially claimed to have attended classes and presented his certificate to the receptionist during a break. He then claimed that it was after having completed classes for the day and finally indicated that it was before classes had commenced that he sought to present his certificate. Likewise, when asked about why he had not advised the college of his condition by telephone he offered a variety of explanations over time, including, for example, that he did not have a telephone at home when he in fact possessed a mobile telephone at that time. In the Tribunal's view the review applicant has not been truthful in regard to his evidence of his attendance or circumstances affecting his attendance and his evidence on this point cannot be relied upon. As a result, the Tribunal prefers the evidence available from the education provider which indicates that the review applicant's attendance during Term 4 2002 was 48% of the scheduled contact hours.”
A Tribunal of perfection might have made further inquiries about the discrepancy relating to the medical certificate. It might have made some findings about the genuineness or otherwise of the medical certificate. It might have explained, at least for the benefit of the applicant, that term 4 would appear to have ended before he was required to visit his mother in China and that therefore the certificates in relation to that were really irrelevant. But the Tribunal is not required to be a counsel of perfection. It is required to consider the evidence that is put before it, and if it believes that that justifies the decision which has been taken by the delegate then it will affirm the original decision as was done in this case.
There can be no doubt that there was evidence before the Tribunal which would enable it to come to a decision that the applicant did not attend for the requisite 80% of the course during semester 4 2002. The Tribunal itself in a considered exposition of the law found between [CB 65] and [67] explains why once such a finding is made there is no residual discretion not to cancel a visa. This statement of law by the Tribunal seems to me to be correct, at least as at today's date.
In all the circumstances I am unable to find that the Tribunal has fallen into any error, let alone a jurisdictional error which would found review under s 39B of the Judiciary Act. I must therefore dismiss this application which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: