Weerakoon v Minister for Immigration
[2005] FMCA 624
•20 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEERAKOON v MINISTER FOR IMMIGRATION | [2005] FMCA 624 |
| MIGRATION – MRT decision – cancellation of student visa – breach of condition 8202 – unsatisfactory results in two semesters – issues for consideration by Tribunal – no error found. |
Education Services for Overseas Students Act 2000 (Cth), ss.20, 20(1)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 116(1), 116(1)(b), 116(1)(fa), 116(3), 119, 347, 348, 349, 359A, 483A, Pt 2 Div 3 Subdivs D, E, GB, Pt 8
Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), Sch.4 item 4
Migration Regulations 1994 (Cth), reg.2.43(2), 2.43(2)(b)(ii)
Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
| Applicant: | ACHUTHA SANJEEVA WEERAKOON |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1870 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 20 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jayawardena |
| Solicitors for the Applicant: | Chandra Jayawardena |
| Counsel for the Respondent: | Ms J Jagot |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1870 of 2004
| ACHUTHA SANJEEVA WEERAKOON |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down on 28 May 2004. The Tribunal affirmed a decision of a delegate made on 6 January 2004 to cancel a student (temporary) (class TU) subclass 560 visa held by the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In matters such as the present, that jurisdiction is under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under Part 8 of the Migration Act. The limitations, as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, mean that I do not have power to give the relief sought by the applicant unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. The relief sought is relief by way of declarations of invalidity and, alternatively, writs of certiorari and mandamus directed to the Tribunal in relation to its decision.
In the present case, the applicant has had a troubled history of attempts to study in Australia under a temporary student visa. It is unnecessary for me to recite all the background which is set out in the Tribunal decision. Briefly, the applicant first entered Australia from Sri Lanka on 15 February 1998. In March 1999 he applied for the present visa. This was initially refused due to his failure to provide medical and x‑ray results, but that refusal was set aside by the Migration Review Tribunal in January 2001, and the visa was issued on 2 April 2001. As issued, it has a termination date of 15 March 2004.
During 2002, his visa was subject to cancellation action under s.116 of the Act due to an opinion within the Department of Immigration (“the Department”) that he had not commenced his course at Central Queensland University. There seems to have been a dispute between the applicant and that university whether his enrolment had been cancelled. Ultimately, the visa cancellation decision was set aside by the Tribunal in November 2002. The Tribunal considered that the applicant had been enrolled and there was no evidence of unsatisfactory attendance.
In 2003, the applicant enrolled in a Master of International Business Studies course at the University of New England, Brisbane Centre (“the University”). This course was structured to be completed within one year by study in four courses in each of two semesters. During late 2003, information from the Director of the University reached the Department, calling into question the applicant’s satisfaction of condition 8202 attaching to his visa.
It is unnecessary for me to trace how this condition became attached to the visa, since it is common ground that the visa was subject to the student’s ongoing satisfaction of that condition. The relevant form of that condition is set out in the Tribunal decision. No submission has been made to me that the Tribunal inaccurately identified its relevant version, which was inserted by Sch.4 item 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth):
4.(1) This item applies to the following visas (and only those visas):
(a)all student visas that are in effect when this item commences;
(b)all student visas that are granted after this item commences but before 1 July 2001.
(2)Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.
(3)The condition is that:
(a)in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student–the holder is enrolled in a full-time course of study; and
(b)in any other case–the holder is enrolled in a registered course; and
(c)in the case of a holder whose education provider keeps attendance records–the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(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 and semester of the course; and
(d)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 at least a semester–for each term or semester (whichever is shorter) of the course.
In relation to breaches of this condition, s.20(1) of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) provides:
(1)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 academic performance.
The effect of such a notice is then governed by the provisions of Subdivision GB of Division 3 of Part 2 of the Migration Act. The notice requires a student to attend in person before an officer at a specified place within 28 days of the day specified in the notice and to comply with other formalities. If there is non‑compliance within the 28‑day period, then there is an automatic cancellation. This is subject to a discretion to revoke in circumstances defined by further sections in Subdivision GB of the Migration Act. I need not explore those provisions further because, in my opinion, they were not followed in the present case and, for reasons I shall refer to below, compliance with them is not a matter which governed the procedures that were required to be followed in this case.
In Subdivision D of Division 3 of Part 2 of the Migration Act, a separate, more general, power to cancel visas is given by s.116(1)(b) if the Minister is satisfied that: “its holder has not complied with a condition of the visa”. There are also other paragraphs in s.116(1) whose satisfaction allows the cancellation of a visa, including paragraph (fa):
(fa)in the case of a student visa:
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
It is clear, in my opinion, that these paragraphs provide alternative preconditions to the cancellation powers and not cumulative. This is shown by their content and by the use of the word “or” at the end of each paragraph.
Procedures for exercising the s.116 power are set out in Subdivision E of Division 3 of Part 2 of the Migration Act, which include provision for a show cause procedure by way of a notice under s.119. I need not set out the details of those procedures, since it was not argued that they were not followed in the present case. Moreover, on authorities which I shall cite below, it would be irrelevant if they were not followed.
Section 116(3) of the Migration Act provides:
(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.
Such a prescription is found in reg.2.43(2) of the Migration Regulations 1994 (Cth) (“the Regulations”). In the case of a visa such as the present, the prescribed circumstances are:
(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
…
(ii)condition 8202.
I shall refer below to authority concerning the effect of the above provisions, after completing my summary of the history of this matter.
On 23 September 2003, a notice was signed by a person on behalf of the Pro Vice Chancellor Academic (Principal Executive Officer) of the University of New England, purporting to be under s.20 of the ESOS Act. The notice suggested to the applicant that he had breached a condition of his visa relating to satisfactory academic performance, the particulars of which were: “Your academic performance has been unsatisfactory”.
On the same day, a Notice of Intention to Consider Cancellation under s.116 of the Migration Act was signed by an officer of the Department of Immigration. The notice was addressed to the applicant and said:
It has come to the Department’s attention that there may be grounds for cancellation of your student visa under section 116 of the Migration Act 1958.
… UNEBC have reported that your academic progress was not satisfactory in that you received a grade of NI (“failed incomplete”) in each of the four units in which you were enrolled in semester 1/2003. If that is so you may have breached condition 8202 – meet course requirements, defined in the Migration Regulations as follows …
The applicant was invited to put in written statements by 13 October 2003 addressing:
·why you think the ground for cancellation does or does not exist; and
·why you think your visa should not be cancelled.
Submissions were made by the applicant to the Department in response to both notices, in which the applicant put forward medical and family explanations for his poor performance in semester 1. It is unnecessary for me to enter into a description of this evidence.
The applicant’s evidence seems to have caused the Department officers to have postponed consideration of his case until the results for semester 2 were known. These were brought to the attention of the Department by the University on 2 December 2003, and showed the same result, that is, “Failed Incomplete” for all of the four subjects for which the applicant was enrolled in semester 2 of 2003.
The applicant was then invited on 5 December 2003 to comment further. He submitted medical and other explanations for his results on 17 December 2003. Further information was then obtained by the delegate from the University. A response from the then director of the UNE Brisbane Centre, Professor Baldry, showed that there had been further consideration given within the University to the applicant’s difficulties in his studies since August 2003.
On 6 January 2004, a decision was made to cancel the visa under s.116(1)(b) on the ground that the applicant had:
… breached condition 8202 (meet course requirements) by not meeting course requirements at the University of New England, Brisbane Centre, while enrolled in the Master of International Business course.
The applicant appealed to the Migration Review Tribunal on 22 January 2004, and an extensive further consideration of the applicant’s case then occurred within the Tribunal. This involved the Tribunal inviting the applicant to a hearing, and also serving a notice under s.359A of the Migration Act, asking for his comments on the advice received from the University. The applicant submitted to the Tribunal his explanations concerning his medical problems and also a great deal of additional material, explaining his desire to continue and complete the course at the University. This included information indicating that the University had allowed him to re‑enrol in the course during 2004, notwithstanding his previous results.
That information caused the Tribunal to seek further information from an officer of the University, a Mr Wallace, to whom the Tribunal was referred by the applicant at the hearing. In response to that request, a document dated 13 April 2004 was sent by a new Director of the University’s Brisbane Centre, Mr Hall. This said:
In response to your fax dated 7th of April 2004, Mr Weerakoon’s academic results for the periods in question (semester 1 and 2 of 2003) were unsatisfactory. Mr Weerakoon recorded a grade of NI (failed incomplete) for all eight subjects attempted during this period.
That statement was given in response to the Tribunal’s question posed for Mr Wallace:
Are you able to certify, on behalf of your institution, that in Semester 1 and 2 of 2003, Mr Weerakoon achieved an academic result that was at least satisfactory?
Having received that response from Mr Hall, the Tribunal served a further s.359A invitation on the applicant to comment on Mr Hall’s statement and this produced, after some delay was allowed by the Tribunal, a facsimile from the applicant dated 5 May 2004 which said:
First of all I would like to thank MRT and the member for giving me an opportunity to comment on my student visa. This correspondence is based on the request I received recently from the MRT.
In my understanding the paragraph that refers to as “unsatisfactory performance” has not considered the medical conditions affecting my absence from exams. Class participation and group work was satisfactory until these medical conditions arose; refer to some of the lecturer’s comments that I provided to the MRT previously. The final results of my academic performance have not reflected my capabilities due to being medically unfit to perform.
From a telephone conversation on the 4/5/2004 with Mr. A. Hall (the Academic Director for UNE) it appears that he had very little information about my situation due to his recent appointment to this position. The previous Academic Director, Mr. J. Baldry, knew of my situation however this information was not directly passed on to Mr. A. Hall. As a result the information sent to MRT regarding incomplete failure did not take into account the information regarding my medical conditions.
His reply to the MRT was purely based on the transcript results rather than having considering my medical conditions. I had explained most of the things surrounding the situation. Therefore I have asked for an interview with Mr. A. Hall to discuss this further. As he is out of his office between the 5/5/2004‑6/5/2004, he has offered to call in to his office on Friday the 7th May 2004 to solve this matter. Therefore I very humbly request MRT and my member to consider the outcome of this meeting when attending to my case and when making the decision regarding my visa.
Mr. A. Hall and myself may send additional comments on Friday the 7th 2004.
I sincerely hope I can have the opportunity to complete my Master of International Business to fulfil my academic goals before returning to Sri Lanka.
I would be happy to assist you further, to clarify this situation. Please telephone me on [mobile telephone number] if you have queries. Thank you for your consideration in this.
The Tribunal subsequently received a phone call from Mr Hall and a facsimile dated 9 May 2004 from Mr Hall. The facsimile said:
Mr Weerakoon came to see me on Friday and provided me with further information (new to me) in relation to his performance during the period in question. While I am not able to comment on the exact extent of Weerakoon’s medical and emotional problems during the period in question it seems clear enough that they should be taken into consideration. Weerakoon did produce a number of medical certificates and I also note that there is a letter on file from his father to our University in which the father details Weerakoon’s mother’s hospitalization for ‘a serious cardiac problem’ during the period. While I am not in a position to determine the exact series of events during the period and the extent of their influence on Weerakoon’s performance I believe it is important to bring these to your attention.
Weerakoon has been permitted to continue his studies this semester but a number of academic and attendance conditions have been imposed on him, he is at present abiding by these.
In its reasons for affirming the delegate’s decision, the Tribunal recites the above history at greater length, and it refers to the relevant provisions of the Migration Act and Regulations. Under the heading, “Reasons and Findings”, the Tribunal sets out the following reasoning for affirming the decision:
Compliance with condition 8202
45.The delegate cancelled the review applicant’s visa pursuant to paragraph 116(1)(b) and subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations because of her finding that the review applicant had not complied with condition 8202 of his visa. The delegate found that the review applicant had not complied with condition 8202. He had not made at least satisfactory academic progress because in both Semesters 1 and 2 of 2003 the review applicant received NI (failed incomplete) for all 8 subjects attempted. Further, the review applicant’s attendance for Semester 2 of 2003 was below the required 80%.
46.The Tribunal will consider whether the review applicant achieved an academic result in Semesters 1 and 2 of 2003 that was certified by the education provider as being at least satisfactory.
47.The review applicant was enrolled in a registered course in 2003. The review applicant held the visa that is the subject of the review during 2003. The academic records for the review applicant show that in both Semesters 1 and 2 of 2003 he received NI (failed incomplete) grades for all 8 subjects he attempted. In various facsimiles to the Department the education provider certified the review applicant’s academic performance was “highly unsatisfactory”. A facsimile dated 13 April 2004 from Alistair Hall, Director of UNE Brisbane Centre certifies that the review applicant’s academic results for Semesters 1 and 2 of 2003 were unsatisfactory.
48.In the facsimile from Mr Hall dated 9 May 2004 he suggests that the review applicant’s medical and emotional problems should be considered. However Mr Hall does not amend his certification of 13 April 2004. On the contrary, Mr Hall goes on to state that the review applicant’s enrolment at UNE is subject to a number of academic conditions. The Tribunal is satisfied, given this evidence and the previous warnings UNE gave to the review applicant, that, had the review applicant achieved at least satisfactory academic results in Semesters 1 and 2 of 2003, he would not now be subject to the academic conditions.
49.The evidence and findings in the 2 preceding paragraphs satisfy the Tribunal that in Semesters 1 and 2 of 2003 the review applicant did not achieve academic results that are certified by UNE to be at least satisfactory. He has not therefore complied with condition 8202 in those semesters. As he has not complied with condition 8202 during the tenure of the visa, the visa must be cancelled. The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non‑compliance with the condition is established the Tribunal is bound, by the operation of subsection 116(3) and regulation 2.43, to affirm the visa cancellation. The application for review must therefore fail.
The applicant filed an application for review in this Court on 18 June 2004, acting for himself. Prior to the first Court date he employed a solicitor, Mr Jayawardena, who appeared at the first Court date, and pursuant to the directions of the Registrar, filed an amended application and an affidavit, and in recent times, a written submission. On objection by the Minister, I did not allow the affidavit to be read because, in my view, it did not contain material relevant to the grounds for review sought to be argued by the applicant’s solicitor. Mr Jayawardena’s amended application contained paragraphs (a) to (h) under the heading, “Grounds for Review”, but he informed me that he relied on those grounds only to the extent that they were addressed in his written submission under five paragraphs headed A to E. I shall address each of these separately.
Paragraph A of the applicant’s written submissions identified as a jurisdictional error:
A.That the Tribunal’s failure to examine the “decision record” of the Delegate who cancelled the Applicant’s Visa, whether, the Delegate had followed the proper assessment procedure before issuing of the Notification of Cancellation, and amounted to “jurisdictional error” on the part of the Tribunal.
In oral submissions it was submitted that the Tribunal had a duty to examine the reasoning followed by the delegate and make findings upon whether the delegate had addressed all relevant considerations. It was argued that in the present case the delegate had not performed such a consideration because the delegate did not address the reasons that had been put forward by the applicant for his poor academic results.
In my opinion, this submission fails due to a misconception of the role of the Tribunal in an application for review under ss.347, 348, and 349. There is abundant authority that establishes that the duty of the Tribunal is to “review the decision” of the delegate and not the reasoning followed by the delegate. The Tribunal performs a merit review function in which it makes a de novo assessment of the material before it against the substantive power which had been exercised by the delegate, for the purposes of deciding the correct or preferable outcome. When performing this function, the Tribunal is not required to examine the reasoning of the delegate and make findings about the adequacy of the reasoning of the delegate.
This opinion as to the function of the review Tribunal is implicit in the reasoning of the Full Court in two cases which have recently examined the Tribunal’s function in reviewing a s.116 cancellation (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, in particular at [26‑32], and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58, in particular at [31‑43]). I need not repeat what their Honours said, but I note that their Honour’s view as to the nature of the review function also explains their further conclusion that it is not the function of the Tribunal to address whether the delegate at first instance had complied with the procedural obligations on him prior to the first instance exercise of a s.116 decision. I consider comparable reasoning applies to the present submission.
The second ground of jurisdictional error argued for the applicant was:
B.That the Tribunal failed to recognize the fact that the Notification under Sec. 20 of the ESOS Act 2000 sent by the UNE (registered provider) was invalid because it breached the condition laid down in Sec. 20 (5) of the Act, which is a further “jurisdictional error” on the part of the Tribunal.
The submission made for the applicant was that the Tribunal was bound to consider the validity of the s.20 notice under the ESOS Act in the present case, and had not done so. It was submitted that if it had done so, it would have identified one aspect of the notice which resulted in its invalidity. This was that the notice was signed by an agent on behalf of the University CEO, and not by the CEO personally.
I do not need to rule upon the interesting question as to whether a notice under this Act can be signed by an agent in the present context, since in my opinion, the premise of the submission fails. I consider that, on current authority, the procedure for cancellation involving or initiated by a s.20 notice is a procedure which does not give rise to implied limitations on the s.116 power of cancellation. In my opinion, there is no obligation on a decision‑maker exercising the s.116 power at first instance or on appeal to consider whether procedures under Subdiv GB of the Migration Act or the related provisions of the ESOS Act have been complied with. I consider that this is the effect of the majority decision in the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333. Allsop J, with whom Tamberlin J agreed, said at [38]:
38Whilst there is a coherent body of regulation under subdivision GB of the Migration Act when examined in the light of the terms of the ESOS Act, I do not see any express or implied statutory limitation on the circumstances in which s.116 of the Migration Act can be invoked. Subdivision GB comes into operation if a notice is sent to a non‑citizen under s.20. Section 116 of the Migration Act is not so limited.
The applicant’s third ground of jurisdictional error was:
C.That the Tribunal failed to weigh the matters that should be taken into account for satisfying the Principle “Substantial Compliance”, before the Tribunal came to the conclusion that it has no discretion to set aside a visa cancellation where there has been substantial breach of 8202 condition. This failure on the part of the Tribunal was a “jurisdictional error”.
As elaborated by the applicant’s solicitor, his contentions were that the Tribunal was bound itself to consider whether the applicant’s results in his academic course at the University were “at least satisfactory”, and that when performing that consideration it was bound to assess the applicant’s explanations for poor performance in his exams during 2003. It was submitted that the Tribunal had to weigh up the applicant’s explanations for itself. It was pointed out that throughout the proceedings before the delegate, and again in the Tribunal, the applicant had been invited to put forward his explanations and had done so. It was submitted that the Tribunal had ignored relevant matters by failing to reach and make findings upon those explanations when addressing whether there was a breach of condition 8202.
Again, I consider that this submission is contrary to authority binding upon me. The provisions of s.116(3) and reg.2.43 make cancellation mandatory once satisfaction as to a breach of a condition is reached, and exclude any discretionary consideration of information put forward by an applicant seeking to explain his breach. Thus, in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55] and [65‑66], the Full Court said:
55A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. 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).
…
65Section 116(1) permits the Minister to cancel a visa for any of the reasons in that subsection. In exercising that discretion, the Minister would have regard to all of the surrounding circumstances to determine whether it is appropriate to cancel a visa for any of the reasons in that subsection.
66Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.
As their Honours point out in [55], the framing of the condition itself makes it clear that the issue of whether academic results are “at least satisfactory” is one that is not required to be addressed by the decision‑maker considering breach of the condition. The characterisation of academic results is left in the hands of the education provider, and the issue for a decision‑maker is only whether there is evidence of a requisite certificate of the provider. If the Tribunal is satisfied that that there is not, then the Tribunal is bound to find breach of the condition and is then bound to affirm a cancellation decision. While it may be open to a Tribunal and Court to consider whether the academic provider has properly addressed the question required to be addressed when providing certification evidence (see, for example, Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313 at [19], [23] and [27]), that is the limit of the Tribunal’s task.
In the present case, the Tribunal had before it evidence from the education provider addressing the issue posed under the condition. In my opinion it was open to the Tribunal to conclude that the evidence established a breach of the condition. I do not consider that the Tribunal has failed to take into account any matter which, as a matter of law, it was bound to take into account before it could validly exercise its jurisdiction.
The next ground of jurisdiction error was framed:
D.That the Tribunal failed to assess the full implications of Section 116 of the Act (Migration Act 1958) on the Applicant’s visa cancellation despite citing some provisions of this section for reaching its decision favorable to the Respondent, which was a “jurisdictional error” on part of the Tribunal.
This ground was elaborated with the proposition that the Tribunal was bound to address the matters identified in s.116(1)(fa) set out above at [8], that is, whether the student was “a genuine student” and other broader issues arising under that paragraph. As I have indicated above, I do not construe that paragraph as in any way impinging upon the power to cancel a visa by reference to paragraph (b), as has happened in the present case. I reject this submission for that reason.
The final ground of jurisdictional error was:
E.That the Tribunal failed to give proper weightage to the information it called for under section 359A of the Migration Act and obviously overlooked some of the information in entirety while being referred to some of them to in its decision which was highly prejudicial to the Applicant. The Applicant asserts that this was serious “jurisdictional error” on the part of the Applicant.
The applicant’s solicitor argued that the Tribunal in its recitation of evidence and in its reasoning did not refer to nor consider the matters set out in the applicant’s letter dated 5 May 2004, which I have set out above at [22]. In particular, it was argued that the Tribunal had failed to give proper weight and consideration to the second paragraph of that letter where the applicant had put forward his explanation for his absence from exams. He had said: “The final results of my academic performance have not reflected my capabilities due to being medically unfit to perform”.
For reasons given above, I consider that the Tribunal was not bound to consider his explanations, given the path of its reasoning and the structure of the legislation it was applying. The applicant’s explanation for the University considering that his academic results for 2003 were unsatisfactory, were irrelevant to the Tribunal’s reasoning. Nor was it relevant for the Tribunal to consider the wisdom or otherwise of the University forming its adverse opinion about his 2003 results.
I therefore am not satisfied that the argued omissions from the Tribunal’s reasons gave rise to jurisdictional error.
For the above reasons, I do not accept any of the arguments which have been made to me on behalf of the applicant, and I must dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $5000.
I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 17 May 2005
3