Tian v MIMIA

Case [2004] FCA 216

FEDERAL COURT OF AUSTRALIA

Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 216

MIGRATION – cancellation of student visa under s 116 Migration Act 1958 (Cth) – meaning of ‘to be at least satisfactory’ in Condition 8202 in Sch 8 to the Migration Regulations 1994 (Cth) considered – whether s 116(1)(b) and (3) of the Migration Act 1958 (Cth), together with reg 2.43(2)(b) of the Migration Regulations 1994 (Cth), require strict or substantial compliance with Condition 8202 in Sch 8 to the Regulations

Migration Act 1958 (Cth) ss 116, 137J, 137K, 137L
Migration Regulations 1994 (Cth) reg 2.43, Sch 2 cl 560.611, Sch 8 Condition 8202
Education Services for Overseas Students Act 2000 (Cth) ss 19, 20
Migration Legislation Amendment (Overseas Students) Act 2000 s 3, Sch 4, Sch 1

Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 referred to
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 approved
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 referred to
Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1285 referred to
Patsanza v Minister for Immigration & Multicultural Affairs [2001] FCA 734 referred to
Ariyagama v Minister for Immigration & Multicultural Affairs [2001] FCA 1407 referred to

ZENG XIA TIAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 466 OF 2003

MANSFIELD J
12 MARCH 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 466 OF 2003

BETWEEN:

ZENG XIA TIAN
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

12 MARCH 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 466 OF 2003

BETWEEN:

ZENG XIA TIAN
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

12 MARCH 2004

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

  1. This application was instituted on 28 April 2003.  The applicant seeks prerogative orders in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 2 April 2003, in essence to quash a decision of the Tribunal affirming the cancellation of her visa.  The applicant accepts that she is entitled to the orders sought only if she establishes jurisdictional error of the part of the Tribunal in the making of its decision:  Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.

  2. The applicant is a citizen of China.  She entered Australia on 17 May 2001 pursuant to a Student (Temporary) (Class TU) Visa Subclass 560 issued on 11 April 2001.  That visa was valid to 15 March 2002.  The visa was extended to 15 March 2004.  However,…

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AGLC
Tian v MIMIA [2004] FCA 216
Case
[2004] FCA 216
Decision Date

CaseChat Overview and Summary

In the matter of Tian v MIMIA, the central issue before the court was the validity of the cancellation of a student visa under the Migration Act 1958. The respondent, MIMIA, had determined to cancel the visa held by the applicant, Tian, pursuant to section 116(1)(b) of the Act, on the basis that Tian had not satisfied the academic conditions specified in Condition 8202(3)(b) of the visa. This was further underpinned by Regulation 2.43(2)(b) of the Migration Regulations, which mandates visa cancellation in cases where the prescribed academic conditions are not met. The crux of the dispute was whether the Tribunal correctly upheld the delegate's decision to cancel the visa, particularly focusing on whether Tian had indeed failed to meet the academic requirements stipulated in her visa conditions.

The legal issues that the court needed to address were primarily centered on the interpretation and application of sections 116(1)(b) and 116(3) of the Act, as well as Regulation 2.43(2)(b) of the Migration Regulations. It was essential to determine if the Tribunal was correct in affirming the delegate's decision to cancel the visa based on the evidence provided. Specifically, the court had to examine whether the Tribunal correctly assessed whether Tian had achieved an academic result certified by the education provider as at least satisfactory for each term or semester of her course. The court also needed to consider whether the Tribunal correctly interpreted the academic performance requirements and whether the prescribed circumstances for visa cancellation under Regulation 2.43(2)(b) were correctly applied.

The court found that the Tribunal had properly reviewed the evidence and correctly concluded that Tian had not satisfied the academic conditions for her student visa. The Tribunal had rightly focused on terms one, two, and three of the school year as the relevant period for assessing the academic performance required by Condition 8202(3)(b). The court upheld the Tribunal's finding that Tian had not achieved a satisfactory academic result certified by the school for each of these terms. This finding aligned with the prescribed circumstances for visa cancellation under the relevant regulation. Given that the Tribunal was bound by the statutory requirements and did not have discretion to make a different decision, the court affirmed the Tribunal's conclusion that the visa cancellation was justified under the Act and the Regulations.

ORDERS:
1. The application is dismissed.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MANSFIELD J
Section 116(1)(b) of the Migration Act 1958 (Cth) (the Act) empowers the respondent, subject to subss (2) and (3), to cancel a visa if satisfied that its holder has not complied with a condition of the visa. Section 116(3) obliges the respondent to cancel a visa under subs (1) if there exists prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2)(b) of the Migration Regulations prescribes, in the case of the visa, the circumstances in which the Minister must cancel the visa as being if the respondent is satisfied that the visa holder has not complied with Condition 8202.THE DECISION OF THE TRIBUNAL The delegate of the respondent determined to cancel the visa, and was obliged to cancel the visa, because the delegate was not satisfied that the applicant satisfied Condition 8202(3)(a), namely the attendance requirement. Upon review, the Tribunal did not agree with that conclusion. However, the Tribunal was of the view that the applicant did not meet the requirements of Condition 8202(3)(b) because she had not achieved an academic result that was certified by the education provider to be at least satisfactory for each term or semester (whichever is the shorter) of the course being undertaken by the applicant. It therefore affirmed the decision of the delegate. It is common ground that the relevant course is a year 11 secondary school course undertaken by the applicant during 2002 at Danebank Anglican School for Girls (‘the school’). It is further common ground that the course is divided into semesters, and that each semester is divided into two terms. The course therefore comprised two semesters and four terms. To satisfy Condition 8202(3)(b), it was necessary that the applicant achieve an academic result that is certified by the education provider, the school, to be at least satisfactory for each term of the course. The cancellation of the visa took place during term four of the school year. The focus was therefore on terms one, two and three of the school year, that is of the course. The Tribunal concluded:‘Considering all of the available evidence, it is the Tribunal’s view that the review applicant has not achieved an academic result that is certified as satisfactory by Danebank Anglican School for Girls. While the school has indicated that they would consider readmitting the review applicant if her visa were not cancelled, this does not indicate that her performance to the point of the issue of the section 20 Notice was satisfactory for each term of her course of study. The advice from the provider indicates that her performance to that point was not satisfactory.’ Hence it reached the view that the applicant’s student visa must be cancelled under s 116(1)(3) having regard to the terms of reg 2.43(2)(b) of the Migration Regulations. It did not have a discretion by reason of the operation of s 116(3) of the Act. It was not satisfied that the applicant had attained an academic result that was certified by the school to be at least satisfactory for each term of the course during 2002.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

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