Wang v Minister for Immigration

[2007] FMCA 462

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 462

MIGRATION – Review of MRT decision − where the applicant held a student temporary (class TU) visa − where the applicant was terminated from the educational institution − where the applicant was informed by a s.20 notice that he was in breach of condition 8202 as he was not enrolled in a registered course − where the applicant was enrolled in a registered course at the time of the Tribunal hearing − whether the period of non-enrolment necessitated mandatory cancellation under the Act − whether the Tribunal could consider whether or not the condition had been substantially complied with − whether the Tribunal failed to notify the applicant of ‘information’ relevant to its decision under s.359A.

Migration Act 1958, ss.116, 359A
Education Services for Overseas Student Act 2000, s.20
Migration Regulations 1994, Reg.2.43, 571.212

Applicant: SHI NUO WANG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2971 of 2005

Judgment of: Raphael FM

Hearing date: 23 March 2007

Date of Last Submission: 23 March 2007

Delivered at: Sydney

Delivered on: 23 March 2007

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Applicant: Renzhou Lawyers

Counsel for the Respondents: Ms B. Nolan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4000.00.

3. The name of the First Respondent to be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2971 of 2005

SHI NUO WANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is one of those cases which illustrate the difficulties experienced by foreign students undertaking courses within Australia prior to the amendments that were made to condition 8202 in October 2005.  Hopefully, the number of cases that come before the Court of this type will soon diminish and then cease entirely. 

2. Mr Wang was the holder of a student temporary (Class TU) visa and enrolled himself at St. Augustine’s College in Brookvale.  On 31 March 2005 his enrolment ceased because he was expelled from the College.  In accordance with the College’s duties under the Migration Act 1958 (the “Migration Act”) and the Education Services for Overseas Student Act 2000 (the “Overseas Student Act”), the College advised the Department that the applicant’s enrolment had ceased. On 1 April 2005, the Catholic Education Commission served the applicant with a notice under s.20 of the Overseas Student Act, informing him that he was in breach of a condition of his visa. On 11 April 2005, the applicant attended the office of the Department and was issued with a Notice of Intention to consider cancellation pursuant to s.116 of the Migration Act because of a breach of condition 8202, namely, that the applicant “may have failed to maintain enrolment in a registered course of study in Australia.”.The relevant notice is found at [CB28]. 

3. At the time in question, condition 8202 was in the form set out at [CB65], the relevant parts of which are:

   “8202

   (1) The holder … must meet the requirements of subclauses (2) and (3);

   (2)  A holder meets the requirement of this subclause if

   (a) the holder is enrolled in a registered course…”

4. On 11 April 2005, the applicant was interviewed by a delegate of the first respondent and gave to the delegate his version of the events which had caused his enrolment to be terminated.  He told the delegate that he wanted to enrol in another course but he had not started looking yet.  It later turned out that one of the reasons that the applicant had not yet enrolled in another course was that his passport had been taken and it was difficult to effect enrolment without a passport.  On 11 April 2005, the delegate cancelled the applicant’s visa on the grounds that he was not currently enrolled in a registered course in Australia and therefore had breached condition 8202.

5. The applicant applied for review to the Refugee Review Tribunal on 14 April 2005. On 25 April 2005, he secured enrolment in another registered course and remained enrolled in that course when he went to the Tribunal hearing on 26 July 2005. The Tribunal noted this fact in its decision which commences at [CB62]. At [CB67] the Tribunal commences its “Findings and Reasons” noting that the delegate had decided to cancel the visa as he had found that the applicant had not complied with condition 8202 because he had failed to maintain his enrolment in a registered course. The Tribunal noted that s.116(3) and Regulation 2.43(2) and condition 8202 did not allow for a discretion not to cancel a visa if there was non-compliance with condition 8202. This lack of discretion applied not only to the Tribunal but also to the delegate. The Tribunal noted that once non-compliance with that condition had been established, the Tribunal was bound by the operation of s.116(3) to affirm the visa cancellation.

6. The Tribunal discussed the documentary evidence which indicated the applicant was not enrolled in a registered course in the period from 31 March until 26 April and was not enrolled at the time of the cancellation and said at [32]:

   “The Tribunal accepts that there were reasons, as explained by the review applicant at the hearing, as to why he had not enrolled in a course immediately after his enrolment was terminated by St. Augustine’s College.  The Tribunal accepts the review applicant’s submission that he is entitled to the presumption of innocence as regard to the charges against him.  However, the Tribunal’s only role in relation to condition 8202 is to determine whether a breach has occurred.  The Tribunal finds that the review applicant breached condition 8202 in that he was not enrolled in a registered course from 31 March 2005 when he was expelled from St. Augustine’s College until 26 April 2005. Given the finding of a relevant breach the combined operation of subsection 116(3) and regulation 2.43 requires that the visa held by the applicant be cancelled.  The delegate’s decision to this effect should be affirmed.” [CB68]

7. The applicant was represented at the hearing before me and I have the benefit of some written submissions provided by his counsel.  The first relevant submission made by the applicant was that:

   “Once the Tribunal steps into the shoes of the delegate on the date of the review, the applicant submits that it must then find that on the date of the hearing “de novo”, there is evidence before it that the applicant has complied with the requirement of enrolment in “a registered course” as evidenced by the certificate of enrolment to the Tribunal…[25] The Tribunal’s reasoning is also flawed if on the one hand it attempts to simply affirm the delegate’s decision (as it apprehends) and then moves to address the issues that the delegate made no finding upon such as attendances which without any inquiry appears to become part of the Tribunal’s reasoning.”

8. It is correct that the hearing before the Tribunal was a hearing de novo and the Tribunal is entitled to take into account evidence that is before it but was not necessarily before the delegate.  In this particular case such evidence could only go to the question as to whether or not there was a period during which the applicant was not enrolled in a registered course.  It would not go to the situation that pertained after a period of non-enrolment had occurred.  The Tribunal could hear that evidence, but could not really act upon it.  That was the effect of the clause prior to the amendments made in October 2005 and that effect has been described previously as “draconian”. But that was the law and that is the law that I am obliged to operate under.  No evidence was produced to the Tribunal which indicated that there had not been at least some short period during which the applicant was not enrolled and in those circumstances I cannot see that the Tribunal fell into a jurisdictional error when it determined the application on the basis that as a period of non-enrolment had occurred a breach which required mandatory cancellation had also occurred.

9. To the extent that there was some argument raised that the Tribunal had taken into account attendance records I think this is a mistake on the part of the applicant.  Any reading of the Tribunal’s decision would make it quite clear that there was only one ground for cancellation and that was the non-enrolment. 

10. Mr Kumar in his submissions orally also suggested that I ought to import into the Tribunal’s decision the ability to consider whether or not the condition had been substantially complied with.  He based this submission on regulation 571.212 but that regulation relates to the granting of a new visa after an old visa had terminated.  Had Mr Wang, the applicant, applied for a new visa, he could very well have argued that by obtaining an enrolment in a new course within a few days of his expulsion from St. Augustine’s College, he had substantially complied with the terms of the first visa and was entitled to another one.  But that is not the course he took and I cannot import into a decision upon clause 8202 a regulation that relates to an entirely different matter. 

11. Finally Mr Kumar makes a point in relation to s.359A. A letter under that section was sent to the applicant and is found at [CB50]-[51]. The first matter that the applicant is invited to comment upon is:

    “Information before the Tribunal indicates that your enrolment at St. Augustine’s College was terminated on 31 March 2005 due to serious misconduct and failure to meet course requirements.”

12. Mr Kumar argues that a document which is found at [CB23] and entitled Log Reports dated 1 April 2005 constituted “information” which should have been the subject of a s.359A notice. The relevant document reads as follows:

    “Log notes from previous afternoon shift:

    Received call from Megan Mooney at Dee Why detectives who advised that the following student had been expelled from St Augustine’s school of Brookvale following a suspected involvement in a robbery.  They have been advised by the school that his student visa would be cancelled by immigration.  These are still showing as in effect.  At this stage, the student is due to appear in Court this morning.  Contact Officer is Alan Walsh.  [Phone number given]”

13. With respect to Mr Kumar, I regret that I am unable to see how this document formed the reason, or part of the reason, for affirming the decision under review. The decision was clearly affirmed solely because there was a small period during which the applicant was not enrolled in a registered course and the reason why he was not enrolled in a registered course is only incidental to that fact. The matter is referred to by the Tribunal at [CB 68] at [32] as already extracted by me. That extract, to my mind, makes it clear that the reasons for which the applicant was expelled from the college had nothing whatsoever to do with the Tribunal’s decision, and therefore there was no need to make reference to this log report in the s.359A letter.

14. As I indicated at the commencement of these reasons, if this case had been decided by the delegate or the Tribunal post October 2005, the applicant’s situation may have fallen under the heading of Exceptional Circumstances, which the delegate and the Tribunal are now allowed to take into account when considering cancellation under 8202.  But that was not the case when this decision was made and I am therefore unable to find that any jurisdictional error occurred. I dismiss the application and order that the applicant pay the first respondent’s costs which are assessed in the sum of $4000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: