Wong v Minister for Immigration

[2004] FMCA 524

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 23^rd 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 13^th March 2001.  The applicant's student visa was cancelled on 5^th March 2003 for failure to meet course requirements.

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

3. On 28^th 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…