WEI v Minister for Immigration
[2005] FMCA 1304
•22 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEI v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1304 |
| MIGRATION – MRT decision – cancellation of student visa – breach of condition 8202 – no error found. |
Education Services for Overseas Students Act 2000 (Cth), s.20
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 116(1), 116(3), 359A, 483A, Pt.8
Migration Regulations 1994 (Cth), reg.2.43
Bao v Minister for Immigration [2004] FMCA 1044
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
Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 359
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60
| Applicant: | QIANG WEI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1067 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 22 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms S Koya |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1067 of 2005
| QIANG WEI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second 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”) handed down on 6 April 2005. The Tribunal affirmed a decision of a delegate to cancel the applicant’s subclass 573 (Higher Education Sector) visa, which would otherwise have allowed the applicant to continue studies in Australia until March 2006.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to determine questions of fact going to eligibility for a visa.
The applicant has studied in Australia since 2002, and his present visa was granted in May 2003. He then enrolled in a course of study at the Sydney Institute of Business and Technology (“the Institute”).
On 14 July 2004 the Institute sent the applicant a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth), which informed him that he had breached a condition of his student visa relating to satisfactory academic performance in the course in which he was enrolled. It said that the particulars of the breach were: Academic progress: … 2004/01 No. Student has been excluded from SIBT. In effect, this alleged that unsatisfactory academic results in the first semester of 2004 constituted a breach of visa conditions. The notice otherwise indicated that his attendance was in accordance with visa conditions and that his academic progress during semesters one, two and three of 2003 was not regarded as unsatisfactory.
The notice informed the applicant that his visa would be automatically cancelled unless he attended for interview in the Department. It also indicated that an automatic cancellation could be revoked if the Minister was satisfied that the student did not breach the condition, or that the breach was “due to exceptional circumstances beyond the student’s control”. What the notice failed to inform the applicant was that if he avoided an automatic cancellation by attending for interview, his visa might still be cancelled by a delegate of the Minister under s.116(1) of the Migration Act, and that by reason of s.116(3) of the Act and reg.2.43 of the Migration Regulations 1994 (Cth) (“the Regulations”), the delegate would have no power to take into account extenuating circumstances even if they were “exceptional”.
I have in other cases commented on the unfairness of this procedure (e.g. Bao v Minister for Immigration [2004] FMCA 1044 at [23‑24], but c.f. Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60).
The applicant did conscientiously attend for interview, and explained to the delegate his reasons for his results in the first semester of 2004. His results in that semester were, as evidence before the Tribunal ultimately showed, failures in all three of his subjects, with one of the failures being a repeat failure from the previous semester and a previous history of repeat failures in other subjects. The applicant explained to the delegate that a gastric problem had affected him severely. He also told the delegate that he had changed his school to a different education provider and was now “doing excellent”.
The delegate exercised the power under s.116(1) upon an opinion that there was breach of condition 8202 which attached to the applicant’s visa. The relevant provisions of this condition were:
(3)A holder meets the requirements of this subclause 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.
On the material before the delegate, and ultimately before the Tribunal, it was plain that there was no evidence that there was such a certificate in relation to the results of the first semester of 2004, and the information conveyed by the Institute in the s.20 notice suggested that such a certificate would not be issued.
The delegate cancelled the visa on 18 October 2004. The applicant then sought review by the Migration Review Tribunal assisted by a migration agent.
On 29 November 2004 the Tribunal sent to the applicant’s agent a letter, which the applicant has today agreed he was aware of. The letter invited the applicant to comment under s.359A of the Migration Act on the following:
·Sydney Institute of Business and Technology advised the Department that you had unsatisfactory academic results for term 1, 2004.
This information is relevant to the review because condition 8202 of your student visa required that you achieve an academic result that is certified by the education provider to be at least satisfactory for each semester of your course. This information indicates you have breached condition 8202. Cancellation of your visa is mandatory.
The applicant made a submission in response which said:
I was reported by SIBT in June 2004 for poor academic performance. This is due to my poor health. From early childhood I have been suffering from gastric problem and stomachache. I also have too much acid down in the stomach if I lie down flat on my back. This problem sometimes makes me unable to sleep. Because of this, I feel stressed with my study and I have poor appetite. This problem was not treated by medical treatment. During my studies in Australia, I constantly sought medical attention for this problem. Please refer to doctor’s medical certificates. However, the doctor can not find the source of the problem. I have been worried about this for a long time because this affected my study. So in June this year I took the school holiday period to return to China for treatment. Over there I was diagnosed as suffering from chronic gastritis. Now I am taking medication and adjust my life style. I feel that my current physical condition is improving.
In July this year I changed an education provider and now I am studying marketing. Comparing with what I was doing at SIBT for accounting, I feel much better. Firstly my physical condition has improved. Secondly I like my new course. Accounting was a bit difficult for me. I am performing academically well in the last three months.
To sum up, my reasons for review is:
1.Physical condition with medical certificates both in China and in Australia before and after the examinations.
2.Accounting was pre‑arranged before I came to Australia in New Zealand, which I found difficult. I have now re‑arranged the course and doing well.
I hope I have answered your questions.
The applicant also attended a hearing to which he was invited by the Tribunal on 10 March 2005. The applicant explained to the Tribunal his extenuating circumstances and clearly did not dispute the results to which I have referred above. Neither the applicant nor the Tribunal appear to have gone back to the Institute to seek further evidence of its opinions about the applicant’s academic results.
The Tribunal referred to legal authority which at one time was thought to raise doubt about whether cancellation was discretionary when breach of condition 8202 was alleged. It formed the view that the Tribunal:
40. … does not have any discretion to set aside a visa cancellation where there has been a breach of condition 8202. Once non‑compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation.
The Tribunal’s opinion in this respect is undoubtedly correct, and is in accordance with recent Full Court decisions. In Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 a Full Court said:
[55] A 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).
[56] On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.
…
[66] Section 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.
…
[72] The Tribunal did not ask itself the wrong question. It clearly recognised that the question before it was whether there was a certificate of the kind contemplated in Condition 8202(3)(b). It therefore reached the correct decision. In doing so, it did not deny the appellant procedural fairness because, on 17 December 2002, well before the Tribunal hearing, the Tribunal brought to the appellant’s attention:
‘Condition 8202 currently provides, and relevantly to your circumstances, that you achieve both an attendance rate of at least 80% and academic progress that is certified by the education provider to be at least satisfactory, for each term or semester of your course. If this information is found to be true, then your visa will remain cancelled, as it is a ground for mandatory cancellation.’
[73] The appellant was on notice of the question that had to be addressed by the Tribunal. It was for her to provide the Tribunal with the certificate to comply with Condition 8202(3)(b). That she did not do, not because she was misled but, because it may be inferred such certificate could not be obtained.
The mandatory nature of this power was also referred to in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 at [19], and in Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333 at [30] where Allsop J said:
[30] I am of the view that the Federal Magistrate erred in a number of respects. First, there was no obligation upon the Tribunal to enquire of the College about the answer. No statutory obligation arose to do so: WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277. The proper task before the Tribunal was to consider whether the respondent had met the requirement of condition 8202(3)(b) that he achieved in the term in question an academic result that was certified by the College as satisfactory. It had a certificate, which stated that the respondent’s academic progress was unsatisfactory. It was not obliged by s 116, s 119, Reg 2.43(2), condition 8202 or otherwise to seek to go behind the communication from the College. It was certainly not entitled to assay the task of assessing the progress of the respondent for itself.
In the face of these authorities, the ground for review argued by the applicant in his application cannot succeed. That ground invited the Court to prefer reasoning of Madgwick J in Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 359. That case concerned an earlier version of the legislation and cannot be applied to the present legislation in the face of the Full Court authorities to which I have referred above.
The applicant in his submissions to me today made two further points. First, he complained that the Tribunal did not itself make enquiries with the Institute as to its opinions as to whether the applicant’s results were or were not “at least satisfactory”. It is true that, on the evidence before me, it made no such enquiry and nor did the delegate. It is also true that the Institute’s s.20 notice and reporting to the Department did not in terms certify about “an academic result”, although, as I have said above, it contained an implied opinion that results in “2004/01” were unsatisfactory.
However, I do not consider that the Tribunal had any obligation to make further enquiries in relation to this in the face of the evidence which was before it. As I have indicated above, authority in the Full Court now is clearly to the effect that the onus is on the applicant to produce the requisite positive certificate. In circumstances where such evidence as was before the Tribunal, as to the applicant’s results and the opinions of the Institute, pointed almost overwhelmingly against prospects of obtaining such a certificate, I do not consider the Tribunal had any obligation to do more than it did. That is, to clearly raise the problem with the applicant by way of its s.359A letter.
I consider that the Tribunal’s reasoning then showed a proper appreciation of the question which it was required to address. Its reasoning proceeded as follows:
41.The review applicant has not achieved academic results which are certified as satisfactory for each semester of his course of study at SIBT. The institute has advised him of this and the details of his study shows that during semester 1, 2004 his results were found to be unsatisfactory. He failed all subjects, two of which he was attempting for a second time.
42.Although the review applicant has subsequently enrolled in a different course of study this was not until the first semester at SIBT was concluded. There was no overlap of his enrolment in the courses and therefore, the relevant course for semester 1, 2004 was the course he was pursuing at SIBT. His results for that semester have not been certified as satisfactory. There is no information which indicates that the institution would change that view.
43.As a result, a breach of condition 8202 as it attached to the review applicant’s visa occurred at the conclusion of semester 1, 2004. He failed at that time to achieve academic results which were at least satisfactory for that semester of study.
44.Given this finding, the combined operation of subsection 116(3) and regulation 2.43 requires that the visa then held be cancelled. There is no discretion available to the Tribunal to do otherwise. While the Tribunal accepts that the review applicant now finds his study more to his liking and is performing well in that study, this cannot cure the earlier breach. As a result, his visa should be cancelled and the delegate’s decision to this effect should be affirmed.
I can find no misapprehension by the Tribunal of the question it had to ask itself, and can find no material error affecting its conclusion that there was a breach of condition 8202. I consider the case in this respect cannot be brought within the reasoning of Stone J in Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313.
The applicant’s second complaint was that the Institute acted unfairly in its dealings with him by failing to alert him to the effect of condition 8202 of his visa, and the effect which his failing subjects could have on his ability to continue his studies under that visa.
The evidence as to what he was or was not told at the start of his studies as to condition 8202 is most unclear, and I will not make assumptions as to what the applicant was told about this. I am, however, prepared to assume the truth of the applicant’s statements that the Institute did not discuss with him his results, nor warn him before conveying the s.20 information to the Department. If this happened, the applicant might have cause for grievance about his treatment at the hands of the Institute. However, in my opinion, it was not the responsibility of the Tribunal to inform itself about what procedures had been followed by the Institute before bringing his academic progress to the attention of the Department. I do not consider that any failings of procedural fairness by the Institute in relation to its s.20 notice could vitiate the decision of the Tribunal. These procedures were, under the legislation, unrelated to the cancellation procedures and decisions taken under s.116 (see Minister for Immigration v Yu (supra)).
As many decisions in this Court and the Federal Court have now made clear, the provisions of the Migration Legislation in relation to breach of condition 8202 are strict and at times draconic in its effects on students. However, it is not in the power of this Court to ignore the effects of the law plainly enunciated by decisions binding upon it.
I can find no basis for giving the applicant the relief he seeks in this application. I must therefore dismiss his application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the first respondent’s costs in the sum of $2,500.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 9 September 2005
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