Yu v Minister for Immigration

[2004] FMCA 206

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YU v MINISTER FOR IMMIGRATION [2004] FMCA 206

MIGRATION – Review of Migration Review Tribunal decision – cancellation of student visa on grounds of failure to make satisfactory academic progress – whether Tribunal incorrectly considered applicant’s progress in relation to his ability to enrol in a new course rather than the course which he was actually undertaking – where report cards indicated advancement by the applicant – whether information provided by education provider was ambiguous and thus warranted further investigation.

Migration Act 1958 (Cth), ss.116(1)(b), 116(3)

Kan v MIMA [2002] FCA 923
Prasad v MIEA (1985) 65 ALR 549
NAYQ v MIMIA [2004] FCA 365
Htun v MIMA [2001] FCA 1802
VGAO of 2002 v MIMIA [2003] FCAFC 68
SCAT v MIMIA [2003] FCAFC 80
Applicant WAEE v MIMIA [2003] FCAFC 184

Applicant: SHI BO YU

Respondent: MINISTER FOR IMMIGRATION & IDIGENOUS & MULTICULTURAL AFFAIRS

File No: SZ 1485 of 2003

Delivered on: 7 April 2004

Delivered at: Sydney

Hearing date: 25 March 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Court declares that the decision of the Migration Review Tribunal made on 21 July 2003 is void and of no effect.

2. The Court orders that the matter be referred to the Migration Review Tribunal to be heard and considered in accordance with law.

3. The respondent to pay the applicant’s costs assessed in the sum of $4000 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1485 of 2003

SHI BO YU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant Mr Yu is a Chinese student who arrived in Australia on 24 April 2002 as the holder of a Subclass 571(Schools Sector) student visa. On 1 October 2002 a further Subclass 571 visa was granted. This visa was due to expire on 4 March 2004 and had condition 8202 attached. The visa was granted on the basis of Mr Yu’s ongoing enrolment in Senior Secondary Studies – Extended Course at Sydney West International College (SWIC) an affiliate of the University of Western Sydney. At the relevant time he was engaged in a Senior Secondary Preparation Program which he had commenced on 10 June 2002.

2. On 10 June 2003 Mr Yu was served with a notice of intention to consider cancellation of his visa. Two possible grounds for cancellation were given to Mr Yu. In [9] of the form found between [CB 1-6] the only relevant ground for the purpose of this decision is that:

   “You appear to have breached condition 8202 by failing to maintain satisfactory academic results and attendance in term 4 2002.”

   The delegate of the Minister interviewed Mr Yu on 10 June 2003 and cancelled his visa saying in his reasons [CB 5]:

   “I am satisfied you have breached condition 8202.”

3. Condition 8202 is in the following form:

   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 subclass 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 an 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 one 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 delegate made the decision to cancel Mr Yu’s visa pursuant to subsections 116(1)(b) and 116(3) Migration Act 1958 and paragraph 2.43(2)(b) of the Regulations. Cancellation is mandatory under Regulation 2.43 for a breach of condition 8202.

4. Mr Yu applied for review of the delegate’s decision from the Migration Review Tribunal. He was represented by a migration adviser. The sole finding upon which that decision was based related to condition 8202(3)(b)(ii) and the alleged failure of the applicant to achieve the academic result required. At [CB 52] the tribunal said:

   “The tribunal is satisfied that the review applicant’s education provider SWIC has not certified his academic performance in term 4 of 2002 was satisfactory. This in itself amounts to a breach of condition 8202. It is unnecessary for the Tribunal to make a finding in relation to the review applicant’s level of attendance or in relation to whether he was engaged in activities not contemplated by the grant of the student visa or whether or not he was a genuine student. The Tribunal is satisfied that the review applicant has not complied with condition 8202.

   …

   Th Tribunal’s finding that the visa applicant did not comply with condition 8202 in term 4 of 2002 determines the outcome of the review application.”

5. The evidence which was before the Tribunal consisted of the following:

   ·A facsimile message dated 2 June 2003 to SWIC from the department requesting urgently information concerning the applicant and the handwritten response [CB 13-14] including the following:

   Please specify whether the student has achieved an academic result that is at least satisfactory for each term and/or semester of their course by placing a “Yes” or “No” in each box

Year	Term 1	Term 2	Term 3	Term 4
2002	10/6/02 – 25/10	28/10/02 – 21/2/03
2003	Satisfactory (Yes)	Unsatisfactory (No)

·A document entitled “Senior Secondary English Preparation Progress Report” [CB 15]. This document is in respect of the course dates 10/6/02 to 25/10/02 and describes the applicant’s level at the commencement and at the end of the semester. There are some general comments made.

·A certificate [CB 16] certifying that the applicant had completed 20 weeks of intensive English tuition from 10/06/02 to 25/10/02 and had achieved an overall elementary level of English language competence.

·A further “Senior Secondary English Preparation Progress Report” [CB 17] that in reading his level had risen from elementary at week 10 to intermediate at week 20 (although the first document indicated that his writing was only elementary 5 days prior to the commencement of the course), his listening had improved from elementary to low intermediate and his speaking had improved from nothing to intermediate. The general comments include the following:

“If he is to succeed in his study pursuits a more positive approach to all aspects of his studies is required.”

·A certificate [CB 18] dated 21 February 2003 indicating that the applicant had completed 15 weeks of intensive English tuition from 28/10/02 to 21/02/03 and had achieved an overall Low Intermediate level of English language competence.

·A facsimile [CB 12] from SWIC to the department dated 4 July 2003 which states as follows:

“Dear Sophie

As per your request please find the attached. If you have any enquires regarding the result please contact me on 9685 9868. Thank you

·A facsimile [CB 29] from SWIC to the Department dated 10 July 2003 which states as follows:

“Re: The Applicant. Explanation of levels of English competence

Dear Lin

As per your request please find the attached.

Please note that students need to reach High Intermediate level in minimum three components for Senior Secondary Studies.”

·A one-page document [CB 30] entitled “Explanation of Levels of English Language Competence”. This document goes from Survival through Elementary, Lower Intermediate, High Intermediate, Upper Intermediate to Advanced. The criteria for each level is described.

1. There was also provided to the Tribunal a letter from the applicant’s immigration adviser dated 11 July 2003 which states at [CB 33]:

   “ I refer to your fax dated 11 July 2003 in which you invited Mr Yu to comment on information provided by Elizabeth Na from SWIC as to whether the Lower Intermediate level the applicant had achieved could be taken as academically satisfactory.

   I noticed that Ms Elizabeth Na stated “Students need to reach High Intermediate level in minimum three components for Senior Secondary Studies”. Meanwhile, I have the applicant in Villawood Detention Centre who says this requirement is only set for High School entry. Those who fail to meet the requirement only need to continue to study at English language College

   …

   The applicant will supply [and did supply] a list of students who achieved the same level as the applicant did, namely the Lower Intermediate Level, but are still studying English in the school instead of being put into the detention centre.

   The applicant also claims that he has never been told by the school that his academic performance was unsatisfactory…”

2. In its findings and reasons at [35] of [CB 52] the Tribunal made the finding which I have set out above at [4].

3. The issue to be resolved in this case is whether or not the Tribunal was entitled to accept the unsatisfactory finding contained in the response to the facsimile of 2 June 2003 on its face or whether it should have made more enquires as to the accuracy of this assessment.

4. It is submitted by the applicant that the assessment which was made was made on the basis of the requirements for the Senior Secondary Studies course which the applicant had not yet begun, in other words it was not a requirement that related directly to the course which he was undertaking. It is clear that the applicant’s progress was not sufficient to enable him to enrol in the new course, but does that mean that he was not making satisfactory progress in his own course?

5. The applicant received a satisfactory rating in respect of the first semester of the course and in this semester he did not move from the elementary level at which he commenced, except in the area of speaking where he had no speaking ability at the commencement of the course and an elementary level at the end. He received a certificate. The information concerning the second semester indicated an improvement in the applicant’s ability from elementary to low intermediate (and in two areas to intermediate). He again received a certificate. He received no information from the course that this progress was unsatisfactory. The documents raise a number of issues. Firstly, why was a 10-week course in which the applicant hardly advanced at all considered to be satisfactory but a 15-week course in which he did advance by one category considered to be unsatisfactory? Why was the lack of advancement in the first semester considered satisfactory when leaving the applicant at an elementary level, when the inference to be drawn from the remarks made by Elizabeth Na at [CB 29] required the applicant to advance through two grades to a grade three higher than elementary in the next 15 weeks? Taken with the fact that other students are remaining in the school on the same course could raise doubts as to whether Ms Na was looking at the schools’ satisfaction with the applicant’s progress in the course he was undertaking as opposed to his ability to undertake another course.

6. In Kan v MIMA [2002] FCA 923 Drummond J considered another alleged breach regulation 8202. The case before him was more extreme than the one before me but his Honour did say:

   “[33] [The Tribunal] determined that the applicant had not complied with condition 8202 on the basis of evidence that was manifestly irrelevant to that question and which in any event, required examination because it was inconsistent with information from the applicant’s education services provider prepared specifically for the Tribunal, which the Tribunal was apparently prepared to accept.

   [34] The Tribunal was not performing some routine administrative task that could be carried out more or less automatically. It had a statutory duty to conduct a fair, independent merit review of the primary decision.”

7. The duty of a Tribunal to make its own enquires was considered in Prasad v MIEA (1985) 65 ALR 549 where at 562-563 Wilcox J said:

   “But in a case where it is obvious that there is readily available material which is centrally relevant to a decision to be made it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it.”

   The judgment in Prasad was considered in an article by T J F McEvoy entitled, New Flesh on Old Bones, (1996) 3AJAdmin Law 36. The author said at 40:

   “In other words, if a decision-maker does not bother to make inquires in a situation where further information is obviously to hand but has not been consulted, and this material is important, then it might well be said that the failure was so unreasonable that the decision will be bad on the grounds of Wednesbury unreasonableness.”

8. I am sensible that one is walking on dangerous ground in discussing “Wednesbury unreasonableness” in the context of administrative decisions in the migration arena (although I do note that in the recent decision NAYQ v MIMIA [2004] FCA 365 the Wednesbury argument receives some support). I would prefer to categorise the Tribunal’s failure to make enquires in this case, where there was a clear indication that the certificate from the provider may not have been accurate, as a failure to complete the task which the Tribunal had been set. It was a failure to provide the applicant with a fair independent merits review of the primary decision. It was not as if the matter had not been raised by the applicant. It was squarely put to the Tribunal by his representative. It would not have been difficult for the Tribunal to have written a further letter to the education provider seeking clarification. The Tribunal did not do this. I think that its failure in this regard constituted a failure to complete its task and that therefore the decision should be reviewed: see Htun v MIMA [2001] FCA 1802; VGAO of 2002 v MIMIA [2003] FCAFC 68; SCAT v MIMIA [2003] FCAFC 80.

9. I also note that there is no evidence on the face of the decision that the Tribunal took into account the representations made by the applicant in regard to the education provider’s facsimile, indeed there is no discussion of it, so that it could be said that the Tribunal simply failed to deal with an issue that was fundamental to its decision. The Full Court in Applicant WAEE v MIMIA [2003] FCAFC 184 said:

   “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by an applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegates decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.” (emphasis added)

10. In the circumstances I will make orders declaring the decision of the Migration Review Tribunal made on 21 July 2003 to be void and of no effect. I order that the respondent pay the applicant’s costs assessed in the sum of $4,000 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:    7 April 2004