Wong v Minister for Immigration

Case •

[2004] FMCA 524

•

17 September 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WONG v MINISTER FOR IMMIGRATION [2004] FMCA 524
MIGRATION – Review of Migration Review Tribunal decision – cancellation of student visa on grounds of failure to make satisfactory academic progress.

Judiciary Act 1903
Migration Act 1958

Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495
Minister for Immigration and Multicultural Affairs and Nguyn [2003] FCA 460

Applicant: SUI TING WONG
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: AZ275 of 2003
Delivered on: 17 September 2004
Delivered at: Adelaide
Hearing date: 8 March 2004
Judgment of: Mead FM

REPRESENTATION

Counsel for the Applicant: Mr Cheng
Solicitors for the Applicant: Gordon Cheng
Counsel for the Respondent: Mr Tredrea
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. That the application do stand dismissed.

  2. That the applicant pay the respondent's costs fixed in the sum of THREE THOUSAND DOLLARS ($3,000) in accordance with Rule 21.2 (2) (a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ275 of 2003

SUI TING WONG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

  1. The applicant is a British National.  He first entered Australia on 23rd April 1997 on a student (temporary) (Class TU) Sub Class 560 visa (a student visa). He was subsequently granted two further Sub Class 560 visas, the most recent being on 13th March 2001.  The applicant's student visa was cancelled on 5th March 2003 for failure to meet course requirements.

  2. The applicant filed an application with the Migration Review Tribunal on 10th March 2003 seeking to review the decision to cancel his student visa.

  3. On 28th November 2003, the Tribunal affirmed the delegates decision to cancel the applicant's student visa.

  4. The application was made under Section 39B of the Judiciary Act 1903 and Section 475A of the Migration Act 1958. The applicant claimed a failure on the part of the Migration Review Tribunal to give sufficient consideration to the applicant's examination results in Semester 1 of 2003 and claimed that as the applicant was unrepresented before the Tribunal and "in all the circumstances" the decision made by the Tribunal was unfair, unjust and inequitable and should be set aside.

  5. It was submitted by counsel for the respondent that the claim in respect of the lack of legal representation must be a claim of denial of procedural fairness on the part of the Tribunal and I have approached the matter from that perspective, albeit that the submissions of counsel for the applicant were unclear in that regard.

  6. The applicant commenced a Bachelor of Banking (Banking and Finance) Degree at the University of South Australia in 2001.  He continued in that course for all of 2001 and 2002 and his academic results were as follows:-

    a)Semester 1, 2001 - failed in all four subjects taken;

    b)Semester 2,2001 - failed two subjects taken, one incomplete;

    c)Semester 2, 2002 - failed two subjects taken, one incomplete;

    d)Semester 2, 2002 - failed in all three subjects taken.

  7. On 24th February 2003 the University of South Australia (the education provider) issued a written notice under Section 20 of the Education Services for Overseas Student Act in 2000 informing the applicant that he had “failed to meet course requirements”.

  8. On 3rd March 2003 the applicant attended at an interview at the Department's office in Adelaide and on that day the delegate issued a written notice of intention to cancel the visa to the applicant that stated in part:  "subject has been issued NCN due to possible breach of 8202.  Failed to meet course requirements".

  9. The applicant responded to the Notice of Intention to cancel the visa at an interview on 5th March 2003 and on that day the delegate cancelled the applicant's student visa Sub Class 560 on the ground that the student had failed the course requirements.

  10. On 10th March 2003 the applicant filed an Application for Review to the Migration Review Tribunal.  The application was heard on 23rd September 2003. The applicant gave oral evidence at the hearing through a Cantonese language interpreter.

  11. At the commencement of 2003 the applicant had commenced studying for a degree in visual communications at the University of South Australia.  

  12. At the time of the hearing before the delegate, he had just commenced that course and at the time of the review hearing he advised the Tribunal that he did not have any formal results to hand but that he had passed all of his subjects.

  13. The Tribunal set out in paragraph 7 of the Statement of Decision and Reasons the legislation relevant to the review, and, in paragraphs 8 - 14 thereof,  notification procedures.

  14. The visa conditions attaching to the applicant's student visa, namely condition 8202, was set out in paragraphs 15 and 16 of the reasons. It was common ground that such a condition attached to the applicant's visa.

  15. Section 116 of the Migration Act refers to the cancellation powers in respect of visas.

  16. Regulation 2.43 of the Migration Regulations in reference to section 116 (3) of the Act defines circumstances in which the Minister must cancel a visa. Regulation 2.43 (2) specifies as follows:-

    "…was Subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa 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:-

    i)condition 8104 or 8105 (if the condition applies to the visa; or

    ii)condition 8282".

  17. There is no complaint on the part of the applicant that the Department did not follow correct notification procedures.

  18. The educational provider, the University of South Australia, issued the written notice informing the applicant that he had failed to meet course requirements on 24th February 2003.  It would appear to have had to hand at that time the applicant's academic record for 2001 and 2002.

  19. Condition 8202 of the Migration Regulations imposes as a condition on  Sub Class 560 visa holders, namely that the holder shall achieve academic results certified by the education provider to be at least satisfactory for a course that runs for less than a semester for the course, or for a course that runs for at least a semester, for each term or semester (whichever is shorter of the course).

  20. The Tribunal did not question the applicant's assertion at the hearing that he had passed all of his subjects in the Bachelor for Visual Communications course he had commenced in Semester 1 of 2003.

  21. The reference in condition 8202 is to certification by the educational provider of satisfactory academic result.  In the case of Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 Justice Ryan said at paragraph 13 -

    "accordingly, for the mandatory obligation to cancel the applicant's visa to arise, the Minister, or his delegate (or the MRT standing in the shoes of the Minister) had to be satisfied that the applicant had not complied with condition 8202.  The matters stipulated in condition 8202(2) and (3) are cumulative as are the two-fold requirements imposed by condition 8202 (3).  In other words, for an applicant to comply with condition 8202 (3) the Minister must be satisfied that the 80 per cent threshold for attendance has been satisfied and the holder must have achieved an academic result that has been certified by the education provider to be at least satisfactory.  The Minister can only be satisfied of non-compliance with the latter sub condition if there is no acceptable evidence of certification by the education provider of at least satisfactory results.  It is not open to the Minister to question, or go behind, such a certificate if one exists."

  22. In this case the education provider had certified unsatisfactory results for four semesters over two academic years on the part of the applicant.  It is not open to the Tribunal to look behind the certification of the academic results, and the subsequent results achieved by the applicant are irrelevant.

  23. Section 116 of the Migration Act imposes a mandatory obligation on the delegate or the Minister to cancel the visa in the event that condition 8202 is not complied with.

  24. The Tribunal noted the acknowledgment of the applicant that he did not pass any subjects in 2001 or 2002, and noted that his academic records stated that he failed or received incomplete in all of his classes taken at the University of South Australia in 2001 and 2002.

  25. The operation of section 116 (3) of the Migration Act is mandatory.

  26. Counsel for the respondent referred to the observations of Emmett J in paragraph 11 of his judgment in Minister for Immigration and Multicultural Affairs and Nguyn [2003] FCA 460 where His Honour said -

    "Section 116 (3) is clearly mandatory in using the word "must".  Section 116 (1) on the other hand uses the word "may".  There can be no discretion for the Minister, or the decision maker making the decision as the Minister's delegate, as to the cancellation of a visa where Section 116 (3) applies.  The Tribunal found that the applicant had not satisfied condition 8202, as that condition was imposed by item 4 of the schedule to the Overseas Student Act.  Accordingly the Tribunal was bound to cancel the visa".

  27. On that basis the application must fail and I accordingly dismiss same.

  28. I further order the applicant pay the respondent's costs fixed in the sum of THREE THOUSAND DOLLARS ($3,000) in accordance with Rule 21.2 (2) (a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Mead FM

Associate: 

Date: 

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