YU v Minister for Immigration - [2005] FMCA 1782

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YU v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1782

MIGRATION – MRT – Student visa – condition 8202 mandatory cancellation – no error found.

Migration Act 1958 (Cth), ss.20, 116(1), 116(1)(b), 116(3), 119, 359A, 414(1) 425(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B
Education Services for Overseas Students Act 2000 (Cth)

Samad v District Court of New South Wales (2002) 209 CLR 140
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62
Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

Applicant:

YANG YU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2053 of 2005

Judgment of:

Smith FM

Hearing date:

22 November 2005

Delivered at:

Sydney

Delivered on:

22 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Riley

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the second respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2053 of 2005

YANG YU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Migration Review Tribunal made on 13 July 2005. The Tribunal affirmed a decision made by a delegate applying s.116(1) read with s.116(3) and regulation 2.43, to cancel a subclass 573 (higher education sector) visa, which had been granted to the applicant to allow him to pursue a Bachelor of Business degree at the Australian National University.
The Court's jurisdiction under s.483A is the same as the Federal Court's under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act. The effect of the limitations is that the Court has no power to set aside the Tribunal decision and send the matter back to the Tribunal unless it is satisfied that the decision was affected by jurisdictional error. The Court does not have power itself to decide whether the applicant should be granted a visa or any other permission to stay in Australia.
The cancellation decision taken by the delegate, and affirmed by the Tribunal, was based on satisfaction under s.116(1)(b) that the applicant: “has not complied with a condition of the visa”. The relevant condition was in item 8202 of schedule 8 to the migration regulations, and in particular subclause 3(b)(2), which required that:
The holder achieves an academic result that is certified by the education provider to be at least satisfactory . . . for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course.
The effect of any non-compliance with that condition is a mandatory duty on a decision-maker to cancel the visa. This has now been well-established in Full Court cases (see, in particular, Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [54], [55], [66] and [72]). In Tian, the Court pointed out that a Tribunal will not be satisfied as to compliance unless an applicant can point to the provision of a certificate by the education provider in the terms of the condition. As their Honours said at [55]:
A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subcl (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).
Other authorities in the Full Court have established that the Tribunal's jurisdiction is not conditioned upon compliance with procedures by the delegate under s.119 in relation to the service of a notice of intent, and also that it is not relevant for the Tribunal to consider whether there has been compliance with procedures in relation to the automatic cancellation of student visas under the Education Services for Overseas Students Act 2000 (Cth) (see Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314, and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218).
In view of these authorities, there is no purpose for me to examine the procedures which preceded the present matter reaching the Tribunal. No argument was presented to me which was directed at these procedures.
In the material before the Tribunal there was evidence from the Australian National University of an opinion by the university contained in a s.20 certificate, that the applicant had “failed to achieve satisfactory academic results”. There was also a university transcript of his results for all four semesters that he had studied in 2003 and 2004. This showed that he had repeated the first year of his course, and that over the whole of the two years he was able to pass only two subjects.
The Tribunal sent to the applicant on 4 April 2004 an invitation to comment pursuant to s.359A, which said:
You are invited to comment in writing on the following information:
·the Australian National University has informed the department that you have been excluded from the university, as you have failed to achieve a satisfactory academic result for 2003 and 2004.
This information is relevant to the review because condition 8202 of your student visa requires that you achieve an academic result that is certified by the education provider to be at least satisfactory for each semester of your course. If the Tribunal finds that you breached condition 8202, your visa must remain cancelled.
The above information does not include information that you gave the Tribunal for the purpose of the application, or information that, under the Act, is non-disclosable.
Your written comments should be provided within 5 working days of the date of notification of this invitation. As this letter has been posted, you will be considered to have been notified of this invitation to comment 7 working days after the date of this letter. Please not that ‘working days’ do not include weekends or public holidays. The effect of this is that you have a total of 12 working days from the date of this letter to respond.
The applicant did respond, and gave an explanation for his poor results which he had previously given the delegate. He said:
It is true that I was excluded by the Australian National University for failing to achieve a satisfactory academic result for 2003 and 2004. I understand that the visa condition 8202, which attached on my student visa, requires me to make satisfactory results for each semester. I did try my best to do so. The reasons that I could not achieve satisfactory results are as follows.
The applicant then said that his parents had chosen the subject for his university studies, notwithstanding his belief that he was not suited to an economics or business course. As he feared, he had found the course to be very difficult. At the end of the first year he tried to talk his parents into allowing him to pursue other courses, but they refused to permit this. He therefore attempted the course again, and:
It was (not) until I was excluded by the Australian National University that my parents understood that I could not make it.
They then allowed him to choose a hairdressing course as his career, and he started that course and has been performing very successfully in it.
He also presented a letter from his father, in which his father took responsibility for the bad decision and said:
I would say this is totally my fault, and feel very sorry for my son.
The applicant attended a hearing by the Tribunal on 2 June 2005, and explained his situation again. Although a transcript of the evidence is not before me, the applicant has given evidence on oath that at the end of the hearing the Tribunal member said that she would ask the ANU to provide a letter concerning his results, would pass that letter on to him for him to explain, and would then make a decision concerning the cancellation of his visa.
The documents before me indicate that the Tribunal did write to the ANU on 6 June 2005, saying:
The Tribunal would be grateful if you could please now advise whether Mr Yang achieved an academic result that was at least satisfactory in semester 1 of 2003, semester 2 of 2003, semester 1 of 2004, and semester 2 of 2004. It is sufficient to answer yes or no for each semester.
On 8 June 2005, the ANU wrote in response:
We wish to confirm Mr Yang's academic results as follows: -
answering ‘No’ to each of the identified semesters, under a heading:
satisfactory academic results.
In its statement of reasons, which the Tribunal published on 13 July 2005, the Tribunal referred to this correspondence and said:
The Tribunal did not write to the review applicant again, as this information had already been put to the applicant in the Tribunal's letter of 4 April 2005, and at the hearing.
It then addressed the issues in the matter:
39.    The Tribunal has considered the review applicant’s evidence in relation to his academic results. The review applicant has consistently acknowledged that despite his best efforts and good attendance the course was too difficult for him from the onset. He believes that he is better suited to a more practical course such as hair dressing, which his is now studying with some success. The review applicant has stated that at the start of his degree and at the end of 2003 he asked his parents to allow him to change courses but they did not agree until he was excluded by ANU. The review applicant’s father has written a letter in which he confirms the review applicant’s evidence. There is no dispute that the review applicant failed dor did not complete most subjects he undertook in Semesters 1 and 2 of 2003 and 2004 and that he was then excluded from the course by ANU. The Tribunal is satisfied that the review applicant failed to achieve an academic result that was certified by the education provider to be at least satisfactory in Semesters 1 and 2 of 2003 and 2004.
40.    Section 116(3), Regulation 2.43(2) and condition 8202 do not allow a discretion to not cancel a visa if there is non-compliance with 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 (MIMIA v Hou [2002] FCA 574, MIMIA v Nguyen [2002] FCA 460). The Tribunal accepts that the review applicant tried his best to achieve a satisfactory academic result in 2003 and 2004 but the course was too hard for him. However the Tribunal’s role is limited to determining whether there has been a breach of condition 8202.
41.    The Tribunal has found that the review applicant breached condition 8202 in relation to his failure to achieve satisfactory results in Semester 1 and 2 of 2003 and of 2004. Section 116(1)(b) is satisfied in relation to the review applicant. Given the finding that there has been a breach the combined operation of subsection 116(3) and regulation 2.43 requires that the visa held by the review applicant be cancelled. The delegate’s decision to this effect should be affirmed.
In my opinion the Tribunal's reasons reveal a correct appreciation of the relevant statutory provisions as they have been interpreted by the Federal Court. I can detect no error, and certainly no jurisdictional error in how it decided the matter.
The applicant's application to this Court gives particulars of two grounds:
a. The Tribunal failed to consider the applicant’s claim that his failed to achieve satisfying academic result required by the visa condition 8202 was due to wrongly choosing a subject made by his parents which is beyond his control.
b. The Tribunal member said she would ask the applicant to make a comment about the reason why his failed to achieve academic result when she got a reply from the ANU, but she did not do so and the applicant did not have the opportunity to make further explanation.
In relation to paragraph ‘a’, I can understand that the applicant feels that his explanations have been ignored. However, the effect of the legislation is that the Tribunal is bound to ignore them, in the sense of being unable to give weight to them as a consideration when deciding whether the visa must be cancelled. I am sure that the Tribunal understood his explanations, and probably had sympathy for the applicant, but the mandatory nature of the cancellation power did not allow it to exercise any discretion in which it could take his explanation for his poor results into consideration.
In relation to paragraph ‘b’, I accept that the Tribunal at the hearing did suggest to the applicant that he would be shown a response from the ANU to a further inquiry by the Tribunal, and that he was not shown the ANU's letter. However, in my opinion this did not give rise to jurisdictional error which invalidates the Tribunal's decision.
Information as to the ANU's opinion about the applicant's academic results had already been sufficiently put to the applicant in the course of its 4 April 2005 letter, and in my opinion it was not obliged by s.359A to give particulars of this information to the applicant again, as a result of receiving the ANU's letter of 8 June 2005.
It may be arguable that in a case such as the present, where s.357A renders s.359A an exhaustive statement of the requirements of the natural justice rule in relation to the matter it deals with, that no further obligation of procedural fairness could arise in relation to what happened at the hearing. It may also be arguable that no obligation for procedural fairness could arise under any other provision of the Act. However, I need not decide those issues.
This is because in my opinion the normal rule of procedural fairness requiring an applicant to be given a reasonable opportunity to answer adverse information had been complied with by the Tribunal. Plainly the applicant was given it by the earlier s.359A letter and the raising of the ANU’s opinions at the hearing. Moreover, the applicant at all times conceded that his results had been unsatisfactory.
Counsel for the Minister drew the Court's attention to Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62. This was a case where the High Court considered that jurisdictional error had arisen due to a failure by a Tribunal to complete its review process in accordance with the duty imposed by s.414(1) and s.425(1). The circumstances were that the Tribunal at the end of its hearing had told an applicant that it would write to the applicant with further questions to clarify what had been referred to as possible inconsistencies in his evidence, but failed to do that, and proceeded to make a decision without explaining why it had not. As I understand the reasoning of the majority, they considered that that the process of review which involved participation by the appellant, as provided for in s.425(1), had not been concluded (see [32] and [33]). At [42] and [43] they drew particular significance from the absence of explanation by the Tribunal member for not sending the promised questions. This led their Honours to conclude:
That the Tribunal did not send the promised questions, because she had forgotten or overlooked the fact that she had made the promise to send them.
In my opinion this provides a critical reason for their Honour's conclusion that the Tribunal never properly completed its review duty.
In the present case, the Tribunal member indicated clearly that she was aware that the procedure she had suggested to the applicant had not been followed, and provided a reasonable reason for deciding that it was not necessary. This was that the ANU's response added nothing to the previous advice from the university which had been put to the applicant previously. I therefore consider that no jurisdictional error comparable to ApplicantNAFF occurred in the present case.
For the above reasons, I can find no jurisdictional error affecting the Tribunal's decision. It is therefore not necessary for me to address a further submission by counsel for the Minister that in view of the concessions of the applicant as to his results, and the clearly demonstrated position take by the ANU in the material before the Tribunal, that the remitting of the matter to the Tribunal would be completely futile, since the outcome would be “virtually inevitable” (c.f. Samad v District Court of New South Wales (2002) 209 CLR 140 at [46]).
I have considerable sympathy for the applicant in this case, and consider that he has a compassionate case for being allowed to complete his hairdressing studies in Australia. However, as I have explained to him, it is not the function of the Court to address more than the legal merits of the decision of the Migration Review Tribunal, which has been brought up for judicial review in the present proceedings.
For the above reasons, I must dismiss his application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 December 2005