Xin Li v Minister for Immigration - [2007] FMCA 165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XIN LI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 165

MIGRATION – Migration Review Tribunal – student visa – cancellation – satisfactory academic progress – certification – exceptional circumstances beyond visa holder’s control.

Migration Act 1958, ss.116(1)(b), 116(3),137J, 359, 368B(4),
Migration Regulations 1994, Schedule 8 – Condition 8202(a), Condition 8202(3)(a)(ii), Condition 8202(3)(b)(ii), Regulation 2.43(2)(b),
Education Services for Overseas Students Act 2000, s.20

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

XIN LI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2650 of 2006

Judgment of:

Nicholls FM

Hearing date:

15 February 2007

Date of Last Submission:

9 February 2007

Delivered at:

Sydney

Delivered on:

20 February 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The reference to the first respondent be amended to read the Minister for Immigration and Citizenship.
The application is dismissed.
The applicant to make any submissions in writing by 27 February 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2650 of 2006

XIN LI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

I have before me an application filed in this Court on 19 September 2006 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 17 August 2006 to affirm the decision of a delegate of the respondent Minister made on 17 August 2006 to cancel the applicant’s Student (Temporary)(Class TU) subclass 573 (Higher Education Sector) visa pursuant to s.116(1)(b) of the Migration Act 1958 (“the Act”).
The background to this case is that the applicant (Mr. Xin Li) applied to the first respondent’s Department for a Student (Temporary) (Class TU) visa which was granted on 25 May 2005. Attached to this visa was a condition that the visa holder meet course requirements (Condition 8202 – See Schedule 8 of the Schedules to the Migration Regulations 1994 (“the Regulations”)). Relevantly, this required the applicant to be enrolled in a registered (education related) course (Condition 8202(2)(a)), and to attend for at least 80% of the contact hours scheduled for each term or semester of the course (Condition 8202(3)(a)(ii)), and achieve an academic result that was certified by the education provider to be at least satisfactory for each term or semester of the course (Condition 8202(3)(b)(ii)).
On 4 November 2005 the applicant was issued a notice from Sydney Institute of Business and Technology Pty Ltd (trading as “SIBT”)(the relevant education provider), pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”), informing him that he appeared to be in breach of a condition of his visa because of his failure to achieve the required academic results in the course in which he had enrolled such that it could be certified by the education provider that his academic results for the relevant period were “at least satisfactory”. He was notified that if he failed to attend an office of the first respondent’s Department within 28 days then his visa would cease (be “automatically cancelled”) pursuant to s.137J of the Migration Act 1958 (“the Act”) (see Court Book (“CB”) 18 to CB 19).
On 30 November 2005 the applicant attended at the first respondent's Department and was issued with a Notice of Intention to Consider Cancellation (“NOITC”) of his visa (CB 20 to CB 21). The relevant possible grounds for cancellation were notified as:
“Sydney Institute of Business and Technology Pty Ltd (trading as SIBT) has determined that, in the course running from 05/07/04 to 08/10/05, your academic results were not satisfactory. This is because you failed 10 subjects out of the 12 subjects you were enrolled in. As a result you have failed to comply with Condition 8202(3)(b) of your visa.”
The applicant was invited to attend an interview with an employee of the first respondent’s Department on 17 January 2006 for the purpose of providing comments in relation to this issue.
On 17 January 2006 the applicant was advised in writing (CB 29 to 31) that his student visa may be cancelled pursuant to s.116 of the Act because he had failed to comply with Condition 8202 attached to this visa. The applicant was also advised of the relevance of Regulation 2.43 to his circumstances.
In all, relevant to the applicant’s circumstances:
1) Section 116(1)(b) states:
“116 (1)     Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b)     its holder has not complied with a condition of the visa.
(3)     If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”
2)     These circumstances were prescribed by Regulation 2.43(2)(b) which relevantly reads:
“(2)   For 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:
(A)the visa holder has not complied with condition 8202; and
(B) the non compliance was not due to any exceptional circumstances beyond the visa holder’s control.”
3) Schedule 8 to the Migration Regulations:
“Condition 8202:
…
(1)     The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)     A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training.
(3)     A holder meets the requirements of this subclause if:
(a)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
(b)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.
(4)     In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full time course of study or training.”
The applicant’s visa was cancelled on 17 January 2006.
The delegate’s decision record is set out at CB 29 to CB 38. It reveals that the delegate’s decision to cancel the applicant’s visa ultimately turned on his failure to achieve satisfactory academic results for the relevant period. The delegate’s reasons are at CB 33:
“I am satisfied the visa holder has breached condition 8202 by not achieving an academic result for semester 2 (2005) that is certified by the education provider to be at least satisfactory. I am satisfied grounds for mandatory cancellation exist.”
The applicant was provided with a written notice on 17 January 2006 of the cancellation and the reasons (see generally CB 32 to CB 40). The applicant acknowledged receipt of relevant documents on 17 January 2006 (see CB 39 and CB 29).
I should also just note that, curiously, at CB 28 there is reproduced a letter addressed to the applicant, also dated 17 January 2006, also containing a signed acknowledgement dated 17 January 2006 by the applicant that he had received this letter, which notified the applicant that the first respondent's Department had decided:
“that there is no ground for cancellation of your visa”.
It is not clear to this Court why the applicant was provided with two sets of contradictory advice on the same day in relation to the issue of the cancellation of his visa.
There may indeed be some good reasons as to why at the same time that the applicant was advised that the visa had been cancelled, that he was also advised that there was no ground for the cancellation. However, this reason is not immediately apparent to this Court (nor was it apparent to the Minister's legal representatives who attended at the hearing and of whom the Court made inquiries). I ask the Minister's legal representatives to convey to those who advise the Minister in these matters that the scheme attendant on the grant and cancellation of visas is, in my respectful view, complicated enough without further confusing the clients of the Minister's Department, particularly persons such as the applicant before the Court now from a non English speaking background, being provided with two completely different and contradictory sets of advice on the same day. If there is a good reason for what has occurred in the matter before me, then I ask the Minister's representatives to consider whether one or the other of the two sets of contradictory advices should contain some explanation.
In any event, it is clear that the applicant understood that his visa had been cancelled and applied for review of the delegate’s decision to the Tribunal on 25 January 2006. The Tribunal accepted that it had jurisdiction to consider the applicant's application for review (see Tribunal's decision record at CB 89.4)
The application for review is reproduced at CB 41 to CB 47. Amongst other things it reveals that the applicant appointed a representative to act on his behalf (CB 44). The representative was presented in the application as being a “registered migration agent” (see CB 44.8). Further the applicant directed the Tribunal to send all correspondence in connection with the review to the representative who was nominated as the “authorised recipient” for this purpose (see CB 45.4).
Both the applicant and the representative attended a hearing before the Tribunal on 13 June 2006 (CB 66). The Tribunal's account of what occurred is in its decision record at CB 91.8 to CB 93.5.
Previously on 27 April 2006 the Tribunal had written to the applicant, by letter sent to his authorised recipient, inviting him to comment on information that it had received from SIBT that the applicant had failed to achieve an academic record considered to be, at least satisfactory, for the period of “Term 2 in 2005”, and that he had been excluded from the academic program for his course. The Tribunal advised that the relevance of this information was that it indicated, at least on its face, that he had failed to comply with Condition 8202 of the student visa.
The applicant responded by letter dated 15 May 2006 (CB 52 to CB 54). The applicant claimed that he had been ill during a relevant examination period. He provided a medical certificate in support which indicated that he had been unfit for school activities from 4 October to 6 October 2005 (see CB 54). The applicant explained in his letter that in spite of this, he attended the examinations but was very “uncomfortable”. He further explained that he had wanted to change his course of study after commencing with SIBT and had in fact subsequently enrolled in a hairdressing salon management course (at another institution) and sought an opportunity from the Tribunal to complete this course.
On 5 June 2006 the Tribunal wrote to SIBT conveying the applicant's advice that he failed his examinations because he was ill during the examination period. It attached the medical certificate, and sought that SIBT consider the contents of the certificate and advise whether this would induce SIBT to reassess the certification that it had provided that the applicant academic achievement was not satisfactory (see CB 65).
SIBT’s response dated 17 July 2006 is at CB 68. The letter states:
“ Mr Xin Li (DOB 11/2/1985) studied at S.I.B.T from June 2004 to October 2005. His enrolment was terminated on the grounds that he had failed to demonstrate satisfactory academic process during his enrolment. Mr Li attended a total of 12 units however only passed two of them.
Prior to terminating an enrolment S.I.B.T carefully considers all aspects of the student enrolment including any mitigating factors. Mr Li had previously submitted the medical certificate in question in relation to the final exam and as such it was considered when reviewing his enrolment status.
The decision to terminate Mr Li's enrolment on the grounds of failure to show satisfactory academic progress remains unchanged.”
On 8 August 2006 the Tribunal again wrote to the applicant, pursuant to s.359A of the Act, by letter sent to the authorised recipient, inviting him to comment and enclosing the letter sent by SIBT (CB 70 to CB 71). Subsequently, the applicant’s representative responded by letter dated 13 August 2006 with specific comment enclosing supporting documentation (CB 72 to CB 79).
The Tribunal’s “Findings and Reasons” are reproduced at CB 94.3 to CB 95.5. I note that the Tribunal also took into consideration the applicant’s further submissions dated 13 August 2006 which were received after the date of the signing of its decision (CB 95.3), but before the date of the decision, which pursuant to s368B(4) is the date the decision is handed down. The Tribunal found that the applicant’s visa was cancelled for breach of Condition 8202 which attached to his visa (CB 90.8 and CB 94.5).
In its decision record the Tribunal noted that for the applicant to comply with Condition 8202(3)(b) he must have achieved an academic result certified by the education provider (SIBT) to be “at least satisfactory” (CB 94.6). The Tribunal found that it was not satisfied that the applicant had complied with this condition (CB 94.6 to CB 95.1):
1)The applicant failed all but two out of twelve units between June 2005 and October 2005.
2)The applicant did not sit for two exams in October 2005 due to “claimed illness” and was denied the opportunity to sit for supplementary exams by SIBT after consideration of the medical certificate provided.
3)The applicant did not achieve an academic result that had been certified by the education provider to be satisfactory for term two of year 2005, and therefore had not complied with Condition 8202(3)(b).
4)That the non-compliance with the visa condition was “not due to exceptional circumstances beyond the applicant’s control.”
Given the above findings the Tribunal concluded that it was required to cancel the visa held by the applicant because of a combined operation of s.116(3) and Regulation 2.43.
The applicant's application to this Court, filed on 19 September 2006, puts forward the following grounds:
“1. The respondents denied the applicant natural justice by not considering the context in which the applicant had exceptional circumstances which resulted in cancellation of a student visa.
2. The respondents have not considered the evidence which is in favour of the applicant. They have only considered the evidence which is not in favour of the applicant.
3. MRT did not fully and reasonably consider the applicant’s special circumstances, which was beyond the applicant’s control.”
Before me today the applicant was unrepresented. He was assisted by an interpreter in the Mandarin language. Mr. T. Reilly appeared for the respondents.
At the hearing before the Court the applicant's complaints were:
(1)To a large extent, concerned SIBT and its alleged failure to take into account his medical circumstances and to give him a further chance to resit his examinations. He claimed that he should have been given the opportunity to resit his examinations because he had evidence of his illness.
(2)That the SIBT rules and regulations provided that there would be no effect on a student visa if the student passed 50% of his examinations.
(3)That he was not experienced in dealing with tribunals and it was true that he did not take any evidence, for example the “university rules" to the Tribunal.
(4)That the Tribunal did not give him the proper opportunity at the hearing it conducted with him and was not given the opportunity to explain his case.
(5)That the Tribunal hearing was brief and he did not have sufficient time to give his explanation and that another hearing was refused.
(6)That the person who accompanied him to the hearing with the Tribunal was a “friend”.
The applicant's complaint that he was not provided with an opportunity by the Tribunal to explain his circumstances is not supported by any evidence put before the Court by the applicant of what occurred at the hearing with the Tribunal, to contradict the Tribunal's own account of what occurred. In the absence of any other evidence, the Court can only rely on what has been put before it. (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241)
In this regard I note that in any event the hearing before the Tribunal lasted for an hour (see CB 66), and from the Tribunal's account of what occurred (CB 91.7 to CB 93.5) the relevant issues were discussed and opportunities were given to the applicant to respond. While the applicant is recorded as having expressed a wish to make further “oral” submissions, this was said to be on the issue of the circumstances of his family (see CB 4 which was part of the documentation provided to the first respondent's Department). In this regard the Tribunal provided a further opportunity to the applicant to make further written submissions which was an opportunity which was taken up. The Tribunal records that it considered (CB 93.3) that a further hearing would not be required and that in any event the applicant and his adviser should have come to the hearing “better prepared”. Given that the Tribunal provided a further opportunity to the applicant and his adviser to make further written submissions, and in the absence of any evidence as to why these written submissions would not have provided the applicant with an appropriate opportunity to put forward his case, as opposed to a further oral hearing, then I cannot see error in how the Tribunal proceeded.
The applicant sought to put to the Court that the person assisting him, and who accompanied him to the hearing, was a “friend” who worked at a migration agency. I understood the implication to be that his “friend” was inexperienced in migration matters. However, the applicant has not put forward any evidence before the Court to show that this person was not a registered migration agent as is indicated from the material on the file and particularly from his own application to the Tribunal.
In any event, if there was any deficiency in the conduct of the representative in assisting the applicant, then this is a matter for the applicant to pursue with the relevant authority that has responsibility for those matters (The Migration Agent Registration Authority – MARA). In my view in the circumstances presented, any deficiency in the capacity or actions on the applicant's behalf by the agent does not reveal jurisdictional error on the part of the Tribunal. Nor does any lack of competence on the part of the representative, implicit in the Tribunal's comment that the applicant and his representative should have come to the hearing better prepared, lead to jurisdictional error, given that further opportunity was given to the applicant to make further submissions in writing. Having brought to his attention the lack of preparation by the representative, it was always open to the applicant to have sought alternative advice.

As to the applicant's complaints about the education provider (SIBT) put both before the Tribunal, and before the Court, it is not for the Tribunal to review the actions of the education provider “per se”. The Tribunal's role was to review the decision to cancel the applicant's visa. To the extent that the education provider's actions are relevant to that issue then that comes within the Tribunal's range of consideration. But beyond that, any complaints that the applicant may have against the education provider, and its alleged failure to follow “the relevant regulations” (meaning its own rules) are not complaints that could have been resolved by the Tribunal. (In any event, incidentally, even if the SIBT rules stated that there would be “no effect” on a visa where a student passed 50% of his examinations, the applicant appears to have fallen well short of this: 2 passes out of 12 subjects for the course)
In written submissions the respondent contends that the Tribunal was bound to affirm the decision of the Minister’s delegate to cancel the applicant’s visa as it found that he had breached Condition 8202, which was a finding open to it for the reasons it gave (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Further, the respondent submitted that the Tribunal did consider the applicant’s explanation as to his failure to achieve the required academic results, but was not satisfied that it amounted to “exceptional circumstances”.
I cannot see on what is before the Court that the Tribunal failed to consider the applicant’s explanation for his academic failure. Essentially this explanation was that he was ill in October 2005 which resulted in his inability to competently sit for two examinations at that time and that his circumstances generally affected his capacity to competently perform at the examinations. However, the applicant’s complaint that the Tribunal did not consider this material is not made out. It plainly did.
The Tribunal found that the relevant medical certificate had been considered by SIBT (CB 94.9), and notwithstanding this, refused to certify that the applicant’s academic result was “at least satisfactory”. The Tribunal noted the evidence that the applicant failed all but two of twelve subjects attempted between June 2005 and October 2005 (CB 94.4):
“The review applicant has attempted to explain all that by sickness on two days. The Tribunal does not accept that there were exceptional circumstances which led to the review applicant’s failure to achieve a satisfactory academic result”
Without certification from the relevant education provider, and in the absence of exceptional circumstances beyond the applicant’s control, the Tribunal found that the grounds for cancelling the visa in s.116(1)(b) existed, and that the visa must be cancelled pursuant to s.116(3). The findings leading to this conclusion were open to the Tribunal on what was before it.
Further, to the extent that the applicant’s complaint appears to be that the Tribunal did not accept his explanation for his poor academic progress over some period of time, the Tribunal’s decision record shows the Tribunal did consider his explanations (as the Tribunal noted the applicant conceded at the hearing that he had received 3 warning letters as to his poor academic achievement (CB 92.1).
The applicant’s claims to special circumstances (such as they were presented) were considered, and found not to be exceptional. In my view on the material provided before me, the applicant was given every opportunity, both at a hearing, and twice in writing, to put forward his claims. The Tribunal was not convinced that the applicant’s explanation for his circumstances amounted to “exceptional circumstances beyond his control”. In all therefore, the Tribunal, on what is before the Court, gave the applicant the opportunity to set out his case, put him on notice of relevant material that it had received, and through its letters, and what is recorded as having occurred at the hearing, put the applicant fully on notice as to the critical issues in his case.
Essentially the applicant's lack of satisfactory academic process led to the relevant education provider deciding that it could not certify his academic process as being at least satisfactory. The absence of such certification, and exceptional circumstances beyond the applicant’s control, led the Tribunal to the conclusion that it made. Such a conclusion was open to it on the material before it I can see no jurisdictional error in what the Tribunal has done. The application to the Court is therefore dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 20 February 2007