Wickramasinghe v Minister for Immigration - [2005] FMCA 1558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WICKRAMASINGHE v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1558

MIGRATION – Judicial review – Student visa – Migration Review Tribunal education provider ceases operation – no certificate of academic performance as attendance provided – whether Tribunal should make inquiry of Department to determine any notices issued by education provider pursuant to ss.19 and 20 of Education Services for Overseas Students Act.

Migration Regulations 1994
Migration Act 1958, ss.363(1)(d), 363(3)
Education Services for Overseas Students Act 2000, ss.19, 20

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 (4 June 2004)
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural Affairs Re; Ex parte Cassim (2000) 175 ALR 209
Azzi & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166
Majeed v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 470

Applicant:

INESH UDITHA WICKRAMASINGHE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION
& MULTICULTURAL & INDIGENOUS AFFAIRS

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 120 of 2005

Judgment of:

McInnis FM

Hearing date:

4 October 2005

Delivered at:

Melbourne

Delivered on:

28 October 2005

REPRESENTATION

Counsel for the Applicant:

Mr J. Gibson

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondents:

Mr R. Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The decision of the Migration Review Tribunal dated 10 February 2003 be set aside and the matter remitted to a differently constituted tribunal to be decided according to law.
The first respondent shall pay the applicant’s costs of this application fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 120 of 2005

INESH UDITHA WICKRAMASINGHE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 10 December 2003. The application, though originally commenced in the Federal Court of Australia, appears to have been transferred to the Federal Magistrates Court by order of the Federal Court made 20 January 2005.
Both parties were represented and filed contentions of fact and law. The applicant arrived in Australia on a temporary student visa (subclass 560) on 2 February 1997. The respondent's delegate granted further temporary student visas to the applicant on 9 June 1998 and 14 March 2000. The applicant's temporary student visa granted on 14 March 2000 was valid until 14 April 2002 and was subject to condition 8202 of schedule 8 of the Migration Regulations 1994 (the Regulations).
On 11 April 2002 the applicant lodged an application for a temporary student visa (subclass 572). In support of that application the applicant submitted a copy of the following:
a)his academic results and attendance record for the period 1 February 1999 to 6 March 2000, and;
b)correspondence…

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 1558
Decision Date: 28 October 2005

CaseChat Overview and Summary

The applicant, Wickramasinghe, appealed against the decision of the Migration Review Tribunal which had dismissed his review of a decision by the Minister for Immigration to refuse him a temporary student visa. The central issue before the court was whether the Tribunal had properly exercised its jurisdiction under the Migration Act to invite the applicant to provide additional information, and whether the Tribunal had considered all relevant information before dismissing the applicant's review. The applicant argued that the Tribunal had not properly considered his additional information, specifically his attendance records and academic results from previous semesters, which were submitted after the Tribunal had invited him to provide such information.

The court considered whether the Tribunal had acted within its jurisdiction by requesting additional information from the applicant and whether it had properly considered the additional information in its decision-making process. The court noted that while the Tribunal had the authority to invite additional information under section 359 of the Migration Act, it was required to consider all relevant information in making its decision. The court found that the Tribunal had failed to adequately consider the applicant's additional information and had not explained why it had not accepted the additional information as relevant.

Accordingly, the court set aside the decision of the Migration Review Tribunal and remitted the matter to a differently constituted tribunal for reconsideration in accordance with the law. The court further ordered that the Minister for Immigration pay the applicant's costs of the application in the sum of $6,500.00. This decision underscores the importance of the Tribunal considering all relevant information and adequately explaining its reasons for rejecting any additional information provided by the applicant.

Orders

Orders of the court

The decision of the Migration Review Tribunal dated 10 February 2003 be set aside and the matter remitted to a differently constituted tribunal to be decided according to law.

The first respondent shall pay the applicant’s costs of this application fixed in the sum of $6,500.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A delegate of the first respondent, by a letter dated 19 December 2002 addressed to the applicant, sought further information concerning the applicant's academic results for periods not covered in documents previously supplied. The letter specifically states the following:-(1) evidence previous results We require the results and attendance from previous study, including your current course. That letter requested the documents to be provided within 14 days, and again provided that failure to provide the documentation would result in a decision to be made on the available documents held on file. In the court book a further relevant document, also dated 19 December 2002, is included and it appears to be from Hales Institute and refers to the applicant's record of attendance as being "unsatisfactory – 57.9 per cent". The letter goes on to state the following:-I cannot find any results for him - but end of year correction is not quite completed so it is possible that he may have some recent uncorrected assessments in the pipeline. I will check on this further this afternoon and let you know via email. On 7 January 2003 the respondent's delegate decided to refuse to grant the applicant a temporary student visa on the basis of his unsatisfactory attendance in the 2002 academic year. In the letter dated 7 January 2003 the delegate states the following, after acknowledging receipt of the application lodged on 11 April 2002:-The information you provided has been carefully considered. I am sorry to advise you that you have not been granted a visa. The decision made in this matter is based on the applicable migration law and policy relating to the entry and stay of students.In your case the decision‑maker was not satisfied that you met the following requirements:560.212If the application is made in Australia the applicant has complied substantially with the conditions to which the visas (if any) held or last held, by the applicant is, or was, subject. On 3 February 2003 the applicant lodged a review application with the Tribunal. By a letter dated 4 February 2003 addressed to the applicant, the Tribunal acknowledges receipt of the applicant's application and in part states the following:-You should provide any documents or written arguments you wish the tribunal to consider and which you have not already provided to the tribunal or the department. By letter dated 4 July 2003 from the Tribunal to the applicant, the following appears:-Section 359(2) of the Migration Act allows the tribunal to invite a person to give it additional information that is relevant to the review of a decision.Accordingly, the tribunal now invites you to provide the following additional information:·Please provide a statement of results and attendance records from Victoria Institute of Computer Training for semester 1 and 2, 2000; and semester 1 and 2, 2001.· Please provide a statement of results and an attendance record from Hales Institute for semester 1, 2002.... Section 359A of the act states that the tribunal must explain and invite comment on 'particulars of any information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review'.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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