Wang v Minister for Immigration
[2005] FMCA 1096
•8 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION | [2005] FMCA 1096 |
| MIGRATION – Application for review of decision by the Migration Review Tribunal – cancellation of student visa due to breach of condition 8202 – unsatisfactory academic results – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), ss. 19, 20 Judiciary Act 1903 (Cth), s. 39B Migration Act 1958 (Cth), ss. 116, 137J, 137K, 137L, 475A, 477, 478, 479 Migration Regulations 1994 (Cth), Schedule 8, r. 2.43 |
| Craig v South Australia (1995) 184 CLR 163 Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495 (22 May 2003) Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 Minister for Immigration and Multicultural Affairs and Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 (30 August 2004) Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60; [2004] FCA 1078 (20 August 2004) |
| Applicant: | FENG JIN WANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 10 of 2005 |
| Judgment of: | Connolly FM |
| Hearing date: | 3 August 2005 |
| Date of Last Submission: | 3 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Scriva |
| Solicitors for the Applicant: | Michael Kane Barrister and Solicitors |
| Counsel for the Respondent: | Ms G. Costello |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 10 OF 2005
| WANG |
Applicant
And
| MINISTERF FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
6 January 2005 seeking judicial review of the decision of the Migration Review Tribunal on 18 November 2004 to affirm the decision of the delegate of the Minister for Immigration and Indigenous and Multicultural Affairs to refuse to revoke the cancellation of the applicant’s Student (Temporary) (Class TU) visa.
The history
The applicant is a national of the People’s Republic of China. He came to Australia on 18 May 2000 on a Student (Temporary) (Class TU) visa (subclass 560). This visa expired on 15 June 2000. He was then re-issued with the same class of visa, valid until 15 March 2003.
A Student (Temporary) (Class TU) visa (subclass 573) was issued to the applicant on 17 April 2003. That visa, which is the subject of these proceedings, was cancelled on 30 July 2004 for breach of condition 8202 (‘Enrolment and course requirements’) under Schedule 8 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”).
A Non-Compliance Notice was issued to the applicant pursuant to section 20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”), by reason that the applicant had breached condition 8202 by not meeting his course requirements. The applicant was enrolled in a Diploma of Commerce at the Melbourne Institute of Business and Technology (“MIBT”). The applicant commenced this course in March 2003 and the anticipated completion date for the Diploma was February 2005. The Non-Compliance Notice (dated
16 June 2004) specifically stated that:
Student has failed two out of three subjects attempted in semester 1, 2004 (1 March - 5 June). He also failed two out of three subjects in semester 3, 2003 (October 03 to February 04). The student did not meet MIBT’s course requirements.
On 9 July 2004, the applicant received a written Notice of Intention to Consider Cancellation regarding his visa from the Department of Immigration. This Notice (“the section 116 notice”), issued pursuant to section 116 of the Migration Act 1958 (Cth) (“the Migration Act”), indicated that the applicant would be required to attend an interview at the Department to explain the reasons why the cancellation of his visa should not occur. On 30 July 2004, the Department of Immigration received a fax from MIBT, which attached a further statement of the applicant’s results, including the following:
The student enrolled in a Diploma of Commerce in 2001. In his first two semesters he failed 6 out of 7 diploma subjects. He then did a semester of Certificate IV subjects which he passed. He returned to diploma level in semester 1, 2004 and failed two out of three subjects.
The applicant attended a meeting at the Department on 30 July 2004. The visa was cancelled by the delegate of the Department on this date on the basis that condition 8202 had been breached due to unsatisfactory academic performance. The record of cancellation stated:
Client agrees his results for semester 1, 2004 (1/3/2004-5/6/2004) were unsatisfactory (as deemed by MIBT). Client states his studies were affected by illness from previous operation for appendicitis and due to personal reasons regarding his girlfriend.
On 9 August 2004, the applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision. In the decision of the Tribunal, dated 18 November 2004, the delegate’s decision to cancel the applicant’s visa was affirmed. In summary, the Tribunal held that the applicant had breached condition 8202(3)(b)(ii) during the first semester of 2004 by failing to achieve satisfactory academic results. The Tribunal noted that it was bound by the reasoning in the decisions of Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 and Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and thus had no discretion in the matter. As a result, the Tribunal held that it was mandatory that the visa be cancelled pursuant to section 116(3) of the Migration Act.
On 6 January 2005, the applicant lodged an application for review of the Tribunal’s decision in this Court, being MLG 10 of 2005, pursuant to Section 39B of the Judiciary Act 1903 (Cth) and sections 475A, 477, 478 and 479 of the Migration Act. The applicant sought constitutional writs and stated that the Tribunal had erred in its decision, thus committing jurisdictional error. According to the applicant, the Tribunal had erred on a number of alternative grounds, including:
a)failing to take into account the applicant’s claims and the supporting evidence;
b)holding that the circumstances required to exist when there is mandatory cancellation of a visa did exist; and
c)its determination that it did not have a discretion to set aside the cancellation of the visa.
The applicant filed contentions of fact and law with the Court on 4 July 2005. The contentions detailed the reasons for the applicant’s poor academic performance, including illness and psychological problems. The applicant’s contentions also stated that the notice of intention to cancel the visa was defective “as it did not contain proper particulars of the breach that was alleged against him” and made an incorrect assertion as to the number of subjects failed in 2003. As a result of the defective notice, the applicant asserts that there was a failure to comply with section 119 of the Migration Act, thereby causing an unlawful decision. It was further argued in the contentions that the Tribunal erred by focusing on the applicant’s academic performance and not considering the applicant’s personal circumstances.
The respondent filed contentions of fact and law on 26 July 2005. The respondent submitted that the Tribunal did not err in making its decision. According to the respondent:
a)the notice of intention to cancel the visa of the applicant contained adequate particulars of the breach; and
b)the Tribunal was correct in holding that it did not have discretion to take into account the applicant’s personal circumstances and was bound to affirm the delegate’s decision if it found that condition 8202 had been breached.
The Law
Visa condition 8202 provided as follows:
(1) 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 to be at least satisfactory.
…
(ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
Section 19(2) of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) provided that:
A registered proprietor must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.
Section 20(1) of the ESOS Act provided that:
A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory performance.
Section 116 of the Migration Act provided, inter alia, that:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: …
(b) its holder has not complied with a condition of the visa;
…
(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.
Regulation 2.43(c) of the Migration Regulations outlines the circumstances in which the Minister must cancel a visa under section 116(3) of the Migration Act, as follows:
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) condition 8104 or 8105 (if the condition applies to the visa); or
(ii) condition 8202.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351 (“Yusef”).
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
Conclusions and findings
During the conduct of the proceedings the applicant’s Counsel, in effect, indicated that the applicant was abandoning his previous contentions, and pursuing a new argument: that the notice sent to the applicant under section 20 of the ESOS Act (“the section 20 notice”) mislead the applicant or induced the applicant to adopt the course that he did. That in complying with the section 20 notice he was no longer entitled to the benefit of the ground of exceptional circumstances to avoid cancellation of his visa pursuant to the terms of section 137L(1)(b) of the Migration Act.
With respect to the applicant’s written contentions, it is clear that the notice of intention to cancel the applicant’s visa (ie. the section 116 notice) contains sufficient particulars of the visa breach. The notice contained, inter alia, particulars that the applicant had failed two out of three subjects in 2004. Once the Tribunal was satisfied that condition 8202 had been breached, it was bound to affirm the delegate’s decision to cancel the visa in accordance with section 116(3) of the Migration Act.
Section 116(3) did not permit the Tribunal to exercise any discretion at all. If the circumstances prescribed by reg. 2.43(2) existed, which they did, it was mandatory for the Tribunal to cancel the visa (see Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 (30 August 2004) (“Tian”) at [66], and Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60; [2004] FCA 1078 (20 August 2004) (“Zhou”) per Cooper J at [46].) Further, the Tribunal’s findings that the applicant’s performance was unsatisfactory was not reviewable. The obligation to provide the certificate that the results were satisfactory fell upon the education provider. It was not open to the Tribunal to “question or go behind such a certificate if one exists”: per Ryan J at [13] in Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495 (22 May 2003). The Tribunal was not empowered to go behind the certification because:
The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
(Tian, [55].)
The respondent contends that the argument advanced by the applicant during the hearing was very similar to that confronted by Cooper J in the case of Zhou. At paragraph 37 of that decision, it was stated:
The perceived anomaly arising from the provisions of s. 137L of the Act (see per Mansfield J in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 216 at [33] and [34]) and the applicant’s case in the present proceedings as to the existence of an inconsistency arising from the terms of s. 137L(1)(b) is, it is said, that a student is better off not complying with the s. 20 notice because he or she obtains the benefit of a ground to avoid cancellation (being exceptional circumstances) which is not available to a student who appears in answer to the notice. The unavailability of the exceptional circumstances ground is said to arise because of the operation of s. 116(3) of the Act and reg 2.43(2)(b) of the Migration Regulations.
The precise terms of the section 20 notice in this matter were set out at page 2 of the Court Book. The notice makes it abundantly clear that the applicant breached a condition of his student visa relating to satisfactory academic performance. It further indicated that, pursuant to section 137J of the Migration Act, the applicant’s visa would cease on the 28th day after the date of the notice unless he reported to the Department by that time. The notice then explains section 137K (‘Revocation of automatic visa cancellation) of the Migration Act and that the cancellation of the visa will only be revoked in circumstances where the breach was due to exceptional circumstances beyond the student’s control. I am satisfied that there was nothing in the section. 20 notice, set out at pages 2 and 3 of the Court Book, that is in any way misleading. In Zhou, Cooper J held at [45-46] as follows:
Further, as there is no inconsistency between the operation of s. 116(3) together with reg 2.43(2)(b) of the Migration Regulations on the one hand and the operation of any provision of Subdiv GB of Div 3 on the other, no case is available of invalidity of the regulation based on an inconsistency between the regulation and the operative sections of Subdiv GB.
The MRT identified the correct question which arose on the exercise of a power to cancel a student visa for a breach of condition 8202 under s.116 of the Act. It was correct in its view that a finding of breach of condition 8202 lead to a mandatory cancellation of the visa.
The decision of the Tribunal was clearly open to it on all the material before it. The decision was not affected by error, let alone jurisdictional error. In all the circumstances, I am satisfied that the application should be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 8 August 2005
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