Zhang v Minister for Immigration
[2006] FMCA 1349
•28 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1349 |
| MIGRATION – Visa – Migration Review Tribunal – application for review of decision to cancel visa – Subclass 573 (Higher Education Sector) visa – condition 8202 – failure to comply with attendance requirement – failure to maintain satisfactory academic results – whether the Tribunal acted beyond jurisdiction – whether failure to consider relevant facts – whether denial of natural justice – whether notice under Education Services for Overseas Students Act 2000 (Cth) s.20 was invalid – MRT-reviewable decision – decision to cancel a visa is an MRT-reviewable decision – the powers of the Tribunal to review an MRT-reviewable decision arise from Migration Act 1958 (Cth) s.349 - an inadequacy in the delegate’s decision does not mean that the Tribunal cannot examine the matter on the merits – error by the delegate does not establish jurisdictional error on the part of the Tribunal – a defect in a notice under Education Services for Overseas Students Act 2000 s.20 does not affect the power of a delegate of the Minister under Migration Act 1958 s.116. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 118A 119, 127, 137J, 338, 348, 349, 368
Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Regulations 1994 (Cth), Schedule 8
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 applied
Zhou v Minister for Immigration [2005] FMCA 1826
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 followed.
Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35 followed.
Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96 followed.
Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 followed.
Yo Han Chung v University of Sydney [2002] FCA 186 applied
| Applicant: | SHI YU ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 61 of 2005 |
| Delivered on: | 28 September 2006 |
| Delivered at: | Sydney |
| Hearing date: | 19 December 2005 |
| Date of last Submission | 13 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Migration Review Tribunal is joined as Second Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,000.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 61 of 2005
| SHI YU ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal made on 20th December 2004. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel the Applicant’s Student (Temporary) (Class TU) visa.
The Applicant seeks writs of certiorari, prohibition and mandamus.
Background
The Applicant is a citizen of the People’s Republic of China who first entered Australia on 26th August 2000 as the holder of a Subclass 560 Student (Temporary) visa. He was granted a Subclass 573 visa on 15th May 2003. Had it not been cancelled, the visa would have ceased on 30th July 2005.
A delegate of the Minister cancelled the Applicant’s visa on 1st December 2003 because the Applicant was said to have breached condition 8202 of his visa by failing to maintain satisfactory academic results.
The Applicant had been studying an Advanced Diploma in Information Technology at Wollongong University College from 8th July 2002 to 3rd October 2003. The course is divided up into three sessions. The Applicant repeated Session 3 twice.
On 11th August 2003 the University sent a Notice under Section 20 of the Education Services for Overseas Students Act 2000 to the Applicant, telling him that he had breached a condition of his student visa. The breach complained of was attendance for only 74% of the course without medical certificates.
On 4th September 2003 the Applicant attended an interview with a compliance officer of the Department of Immigration and Multicultural and Indigenous Affairs as required by the Notice under Section 20. The officer noted that the Applicant’s attendance for Session 1 2003 was 74% and he had failed all four subjects for that session. The officer also noted that the Applicant had passed only 3 out of 11 subjects to that date.
The officer advised the Applicant that his visa would not be cancelled at that time as it was granted part way through Session 1 and he was found not have breached condition 8202. However, in a Departmental Minute dated 4 September 2003, the officer noted:
I advised him that I would not cancel his visa today but we would cancel his visa if his results warranted his being reported to us again. I also advised him that medical certificates from a non-registered doctor would not be considered[1].
[1] See at Court Book page 31.
The University sent another Notice under Section 20 of the Education Services for Overseas Students Act 2000 on 30th October 2003. The breach alleged in this notice was that the Applicant’s attendance between 30th June and 3rd October 2003 was only 65% without medical certificates. As required by the Notice, the Applicant attended the Department on 13th November 2003. This time, he was issued with a Notice of Intention to Consider Cancellation. The Notice stated:
Breach 8202 – Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course[2].
[2] See at Court Book page 34.
The applicant attended an interview at the Department on 1st December 2003. The delegate cancelled the applicant’s visa. The reasons given in the Decision record were that:
a)The Applicant failed to achieve satisfactory attendance for Session 3, 2003 (his third attempt); and
b)The Applicant failed to maintain satisfactory academic results in Session 3 on 3 occasions.
The Applicant applied to the Migration Review Tribunal for a review of the delegate’s decision on 9th December 2003. He attended a hearing on 23rd July 2004 where he gave oral evidence. On 20th December 2004 the Tribunal made its decision, affirming the delegate’s decision to cancel the Applicant’s visa.
The Application and the Amended Application
The Applicant filed an application for judicial review of the Tribunal’s decision on 10th January 2005. He filed an Amended Application on 10th June 2005.
In his Amended Application, the Applicant seeks:
a)A writ of certiorari;
b)A writ of prohibition;
c)A writ of mandamus; and
d)An order joining the Migration Review Tribunal as a party to the proceeding.
The order joining the Tribunal is necessary to comply with the ruling of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.
The Applicant relies on the following grounds:
a)The MRT acted beyond the jurisdiction conferred on it by the Migration Act 1958;
b)The MRT failed to consider relevant facts in reaching its decision; and
c)The Applicant was denied natural justice because of the delegate’s failure to consider the scheme for cancellation or his medical condition.
On 12th December 2005 the Applicant’s solicitor filed a Notice of Withdrawal of Appearance under Order 22 Rule 1 of the Federal Court Rules. The solicitor also filed a Notice of Address for Service on his former client’s behalf.
The Applicant attended court on 19th December 2005, where he tendered a written outline of submissions. The solicitors for the Respondent Minister had already filed an outline of submissions on 14th December 2005. Ms Alex, solicitor for the Minister, sought leave to file a supplementary outline of submissions. As the solicitors for the Respondent had not received a copy of the Applicant’s submissions prior to the hearing, I granted that leave. I was also informed that an appeal was pending in respect of the decision of McInnis FM in Zhou v Minister for Immigration [2005] FMCA 1826, which was relevant to the case before me.
As a result, I granted leave to the First Respondent to file and serve written submissions by 3rd March 2006. I granted leave to the Applicant to file a further submission in reply by 31st March 2006.
The First Respondent filed a supplementary outline of submissions on 13th April 2006. The Applicant has not filed any further submission.
Submissions
In the Amended Application, the Applicant claimed that the Tribunal acted beyond jurisdiction by:
a)affirming the delegate’s decision to cancel the visa without proper grounds;
b)(the delegate) failing to take into consideration the requirements of ss.118A to 127 of the Migration Act;
c)(the delegate) failing to comply with the code for cancellation of a visa;
d)purporting to rectify a failure on the part of the delegate.
The Applicant claimed that the Tribunal failed to consider relevant facts by:
a)failing to examine the requirements of ss.118A to 127 of the Act;
b)asking the wrong question on review;
c)failing to take into consideration the medical certificates provided by the Applicant.
The Applicant claimed that he was denied natural justice because the delegate failed to consider the scheme for cancellation or his medical condition.
In his written submission, the Applicant sets out his history from his arrival in Australia on 26th February 2000 until the Migration Review Tribunal affirmed the delegate’s decision to cancel his subclass 573 visa on 20th December 2004.
The Applicant submits that the notice that he received under s.20 of the Education Services for Overseas Students Act from Wollongong University was defective because it did not particularise the breaches of the visa conditions alleged. He submits that the delegate’s reasons for cancelling his visa are recorded on page 63 of the Court Book[3] and consist of both unsatisfactory attendance and failure to maintain a satisfactory academic result, whilst on the s.20 notice the only breach alleged was that his attendance fell below the required 80%.
[3] That may be a typographical error. The reasons appear on page 65.
The Applicant submits that under s.137J of the Migration Act a section 20 notice must give particulars of the breach. As he was not given any notice of the breach relating to his academic performance, he submits that the decision to cancel his visa is invalid.
The Applicant further submits that the Tribunal took into account an irrelevant consideration in determining whether or not it was satisfied that the Applicant had complied with condition 8202 of his visa. The Applicant refers to the statement by the Tribunal on page 139 of the Court Book:
This evidence satisfies the Tribunal that the review applicant did not achieve academic results that were at least satisfactory in the session which ran from 30 June 2003 and 3 October 2003.
The Applicant submits that this was the wrong question to ask. The correct question is whether the visa holder achieves an academic result that is certified by the education provider to be at least satisfactory. The question of whether or not the visa holder achieves a satisfactory academic result is for the education provider to decided, not the delegate or the Tribunal. Thus, the Applicant submits that by making its own assessment of whether or not the Applicant achieved a satisfactory academic result the Tribunal committed a jurisdictional error of law.
For the First Respondent, it is submitted that the first of the Applicant’s grounds is an attack on the delegate’s decision, whilst the second is an assertion that the Tribunal in reaching its decision failed to take relevant facts into consideration. The First Respondent submits that neither of the grounds has any merit and the application should be dismissed with costs.
The First Respondent submits that the claim by the Applicant that the Tribunal has no jurisdiction to rectify any failure on the part of the Minister’s delegate is clearly wrong. An attack on the delegate’s decision cannot give rise to jurisdictional error in the Tribunal’s decision.
Conclusions
In my view, the applicant’s claims do not show any jurisdictional error on the part of the Tribunal. I accept and adopt the submissions of the First Respondent.
Section 116 of the Migration Act gives the Minister power to cancel a visa if the holder has not complied with a condition of the visa:
s. 116 (1) Subject to subsection (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.
A decision to cancel a visa is an MRT-reviewable decision:
s. 338 (3) a decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non-citizen was in immigration clearance; or
(c) was made under subsection 134(1), (3A) or (4) or section 501.
Section 348 (1) provides that if an application is properly made under s.347 for review of an MRT-reviewable decision, the Tribunal must review the decision. Further, s.349(1) provides:
The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
The Tribunal’s powers arise from s.349 (1) and not from s.116, so they are not subject to the same limitations as the powers under s.116. Whether or not there is an error affecting the decision of the delegate, the Tribunal still has power to review it. Further, the Tribunal has power to affirm a decision regardless of whether the delegate had properly complied with the provisions of s.119 et seq. (See Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [35]-[39]; Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218).
In Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (supra), the Full Court of the Federal Court considered whether the inadequacy of the notification given under s.119 of the Act meant that the functions of the Tribunal on review were limited to recognising that the delegate had no power to cancel the visa of the visa-holder and to exercising that power under s.349(2) of the Act to set aside the delegate’s decision and decide that there was no power to cancel the visa; or, whether, notwithstanding the inadequacy of the notification under s.119, the Tribunal could examine the matter on the merits after employing its own procedures.
The Full Court (Hely, Gyles and Allsop JJ) held at [39]:
If s.119 has not been satisfied, that is no more a reason to deny the Tribunal the task of exercising a full review of the MRT-reviewable decision, than would an asserted failure of the delegate to afford procedural fairness or otherwise comply with requirements failure to undertake which leads to the conclusion that jurisdictional error has occurred.
Thus, whether or not there was an error in the delegate’s decision, this does not indicate a jurisdictional error on the part of the Tribunal. The Applicant’s first ground fails.
There are three parts to the Applicant’s second ground.
Ground 2(i) asserts that the Tribunal failed to examine the requirements of ss.118A to 127 of the Migration Act. Ground 2(ii) asserts that the failure by the Tribunal to consider the requirements of ss.118A to 127 led the Tribunal to ask itself the wrong question on review.
I will deal with these two grounds together because they fail for the same reason. The matters in ss.118A to 127 relate to the exercise of power under s.116 of the Act. The Tribunal was not exercising power under s.116, but under s.349.
Ground 2(iii) complains that the Tribunal failed to take the applicant’s medical certificates into consideration. I agree with the submission that this ground must fail.
The Tribunal was considering sub-clause 8202(3)(b) in Schedule 8 of the Migration Regulations 1994:
(3) A holder meets the requirements of this subclause if:
(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;
(ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
There was no certification from the education provider that the Applicant had achieved an academic result that was at least satisfactory, quite the reverse, in fact. Wollongong University College certified that the Applicant’s academic performance for Session 3 (30/6/03 to 3/10/03) was not satisfactory.[4] It was this information upon which the Tribunal relied:
On 17 February 2004 WUC[5] advised the Tribunal that between 30 June 2003 and 3 October 2003 the review applicant’s academic results were unsatisfactory. The review applicant’s evidence is that he was on notice that he must pass the 4 subjects in the session. He failed the 4 subjects. He did not approach WUC after the 3 October 2003. This evidence satisfies the Tribunal that the review applicant did not achieve academic results that were at least satisfactory in the session which ran from 30 June 2003 and[6] 3 October 2003. He did not comply with condition 8202 during the tenure of his last held student visa.[7]
[4] See Court Book page 81
[5] i.e. Wollongong University College
[6] sic
[7] Court Book at pages 138-139
The First Respondent submits, correctly, in my view, that the Tribunal is not required in its Statement of Reasons to set out all the material in evidence before it and its consideration of those matters. Section 368(1) provides:
Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376A(3)(b) prepare a written statement that:
a) sets out the decision of the Tribunal on the review;
b) sets out the reasons for the decision;
c) sets out the findings on any material questions of fact; and
d) refers to the evidence or any other material on which the findings of fact were based.
The Tribunal’s Statement of Reasons indicates that its finding of a breach of condition 8202 was not based on the medical certificates. It was based on the certification from Wollongong University College that the Applicant had not achieved an academic result that was at least satisfactory.
The Applicant, in his written submission filed in court, submitted that the Tribunal committed a jurisdictional error by asking itself the wrong question by making its own assessment of whether or not the Applicant had achieved an academic result that was at least satisfactory. This does not constitute a jurisdictional error. It is clear that the Tribunal based its finding that the Applicant did not achieve a satisfactory academic result entirely on the certification from the education provider. There is no jurisdictional error made out.
The Applicant’s third ground is that he was denied natural justice “because of the delegates[8] failure to consider the scheme for cancellation or his medical condition”. This ground clearly fails. Any failure by the delegate does not establish jurisdictional error on the part of the Tribunal.
[8] sic
A ground raised in the Applicant’s written submission but not in his Amended Application is that the notice under s.20 of the Education Services for Overseas Students Act is defective in that it did not comply with s.137J of the Migration Act. The First Respondent considered this matter in a supplementary outline of submissions addressed to the issue of non-compliance with s.20 of the Education Services for Overseas Students Act in the light of the decision by McInnis FM in Zhou v Minister for Immigration [2005] FMCA 1826.
In Zhou McInnis FM found a s.20 Notice in similar terms to the notice in this case to be invalid and said, at [46]:
An invalid notice which triggers a decision which is in turn considered by the Tribunal, in my view, should properly be regarded as a decision making process which is void ab initio.
The First Respondent relies on the decision of the Full Court of the Federal Court in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 where Wilcox J, with whom Conti and Stone JJ agreed, dismissed the argument that a defective s.20 Notice infected the Tribunal’s decision with jurisdictional error.
Wilcox J held at [30] and [31] that, even if the s.20 notice was incapable of having the consequences set out in Subdivision GB of Division 3 of the Migration Act (ss.137J – 137P), that did not affect the power of the delegate to effect a visa cancellation under s.116 of the Act. Furthermore, a legal deficiency in the delegate’s decision would not affect the power of the Migration Review Tribunal to review the purported decision and to make such order as the delegate ought to have made.
The First Respondent submits that the decision of the Full Federal Court is inconsistent with the decision in Zhou and is binding on this court. That submission is correct.[9]
[9] The First Respondent’s legal advisors are apparently under the misapprehension that McInnis FM is a woman, as their submission refers consistently to “her Honour”.
On 16th June 2006 the Full Court of the Federal Court handed down its decision in Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96. The Full Court allowed the appeal and set aside the decision of the Federal Magistrates Court.
I also note that Allsop J held in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 at [38] and [40]:
[38] I do not see any express or implied statutory limitation on the circumstances in which s.116 of the Migration Act can be invoked. Subdivision GB comes into operation if a notice is sent to a non-citizen under s.20. Section 116 of the Migration Act is not so limited.
[40] In my view, the ESOS[10] Act does not limit the circumstances under which s.116 might operate where there has been a failure to comply with condition 8202; nor does it confine the operation of condition 8202. If a breach of condition 8202, or some part of it, was only intended to arise upon giving of a notice under s.20 of the ESOS Act that would have been simple enough to say.
[10] i.e. Education Services for Overseas Students
Minister for Immigration and Multicultural and Indigenous Affairs v Yu is a decision of the Full Court of the Federal Court (and, like the decisions in Zhou and Humayun, is an appeal from a decision of the Federal Magistrates Court). It is binding on this Court.
It is now well established that a defect in a notice under s.20 of the Education Services for Overseas Students Act does not affect the power of the Minister’s delegate to cancel a student visa under s.116 of the Migration Act. A legal deficiency in the delegate’s decision does not affect the power of the Migration Review Tribunal to review the decision.
The Applicant’s contention that the decision of the Tribunal is infected by jurisdictional error because of a defect in the notice under s.20 of the Education Services for Overseas Students Act fails.
I am aware that the Applicant is not legally represented in these proceedings. I have, therefore, made an independent consideration as to whether an arguable case of any other jurisdictional error could be made out, based on the material before me (See Yo Han Chung v University of Sydney [2002] FCA 186 at [31] – [34]). I am unable to discern any such arguable case.
It follows that, as there is no jurisdictional error, the Tribunal decision is a privative clause decision under s.474 of the Migration Act. The decision is not subject to prohibition, mandamus or certiorari (s 474(1)).
The application will be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 11 September 2006
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