Weerakoon v Minister for Immigration - [2005] FMCA 624

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 624
Decision Date: 20 April 2005

CaseChat Overview and Summary

Weerakoon v Minister for Immigration is an application under section 483A of the Migration Act 1958 (Cth) that challenges the decision of the Migration Review 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. The court's jurisdiction in this matter is derived from section 39B of the Judiciary Act 1903 (Cth), but is limited by Part 8 of the Migration Act as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476. The applicant seeks relief by way of declarations of invalidity and, alternatively, writs of certiorari and mandamus directed to the Tribunal in relation to its decision. The applicant has a history of issues with obtaining and maintaining a student visa in Australia. The visa in question was initially refused due to the applicant's failure to provide medical and x-ray results, but was later issued on 2 April 2001 with a termination date of 15 March 2004. The visa was subject to cancellation action under section 116 of the Act due to an opinion within the Department of Immigration that the applicant had not commenced his course at Central Queensland University. However, the Tribunal set aside the cancellation decision in November 2002. In 2003, the applicant enrolled in a Master of International Business Studies course at the University of New England, Brisbane Centre. However, information from the Director of the University reached the Department, calling into question the applicant’s satisfaction of condition 8202 attaching to his visa.

The legal issues in this case revolve around the validity of the Tribunal's decision to affirm the delegate's decision to cancel the applicant's visa and whether the Tribunal's decision was affected by jurisdictional error. The court's reasoning in dismissing the application was that the Tribunal's decision was not affected by jurisdictional error and therefore the court did not have the power to grant the relief sought by the applicant. The court found that the Tribunal had correctly identified and applied the relevant condition attaching to the visa and that the evidence supported the Tribunal's decision that the applicant did not satisfy that condition. The court also found that the applicant's arguments that the Tribunal had failed to consider relevant evidence or had made errors of law were without merit.

The final orders of the court were that the application be dismissed and that the applicant pay the Respondent's costs in the sum of $5000. The court found that the application was without merit and that the costs were reasonably incurred by the Respondent. The court did not make any orders in relation to the relief sought by the applicant.

Orders

Orders of the court

Application dismissed.

Applicant to pay the Respondent’s costs in the sum of $5000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.