Zhi Bin Tian v Minister for Immigration
[2006] FMCA 861
•16 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHI BIN TIAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 861 |
| MIGRATION – Review of visa cancellation decision by Migration Review Tribunal – alleged failure of visa-holder to comply with condition of student visa – s.20 of Education Services for Overseas Students Act 2000 – application dismissed. |
| Judiciary Act 1903 Migration Act 1958 (Cth) Migration Regulations 1994 Education Services for Overseas Students Act 2000 (Cth) Migration Legislation Amendment (Overseas Students) Act2000 |
| Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826 Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 193 Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 495 Ariyagama v Minister for Immigration and Multicultural Affairs (2001) FCA 1407 (20) Nguyen v Minister for Immigration and Multicultural Affairs (2002) FCA 460 (11) Akter v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1504 (20) Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 35 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 248, 211 ALR 261 Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) FCAFC 58, 143 FCR 314 Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 218 Shek v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 522 at 41 to 45 Shen v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 408 |
| Applicant: | ZHI BIN TIAN |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 879 of 2005 |
| Judgment of: | Hartnett FM |
| Hearing date: | 6 June 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Scriva |
| Solicitors for the Applicant: | Issac Brott and Co |
| Counsel for the First Respondent: | Mr R.C. Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to The Minister for Immigration and Multicultural Affairs.
The application is dismissed.
The applicant pay the first respondent's costs fixed in the sum of $6500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 879 of 2005
| ZHI BIN TIAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
The applicant made application to this court pursuant to s.39B of the Judiciary Act 1903 and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) (“the Act”) for writs of prohibition and certiorari and for a declaration in relation to a decision of the respondent made on
30 March 2005 to the effect that the applicant was in breach of condition 8202 of his student visa (TU573).
That application was supported by contentions of fact and law filed 4 January 2006. At the hearing, counsel for the applicant indicated those earlier contentions were no longer relied upon and the applicant's supplementary contentions of fact and law filed 23 May 2006 were relied upon by the applicant. The respondent relied upon the first respondent's contentions of fact and law filed 1 June 2006.
Background
The applicant is a citizen of the People's Republic of China. He entered Australia on 27 October 2003 as the holder of a student (temporary) (class TU) visa, such visa being valid until 15 March 2006. The applicant's visa was also subject to condition 8202 as set out in Schedule 8 to the Migration Regulations 1994 (the Regulations).
The applicant was enrolled in a diploma of commerce course at the Melbourne Institute of Business and Technology (MIBT). In correspondence dated 15 June 2004, MIBT informed the applicant that due to his unsatisfactory academic process, he would be "excluded from further study at MIBT with no right of appeal".
On 16 June 2004, MIBT issued a notice pursuant to section 20 of the Education Services for Overseas Students Act 2000. The notice issued by MIBT pursuant to section 20 of the said Act relevantly stated that:
Student failed two out of three subjects in semester 1, 2004 (March to June). He also failed three out of three subjects in semester 3, 2003 (October 03 to February 04). The student did not meet MIBT's course requirements.
On 8 July 2004 the applicant attended an office of the Department of Immigration and Multicultural and Indigenous Affairs (as it then was). At that time, an officer of the Department gave the applicant a notice of intention to consider cancellation of his student visa. That notice was issued pursuant to section 119 of the Act. It relevantly stated that:
MIBT reported on 16/6/04 that you failed to met [sic] course requirements for semester 3, 2003 (October 03 to February 04) and semester 1, 2004 (March to June).
Possible breach of condition 8202.
The s.119 notice also included an invitation for the applicant to attend an interview on 26 July 2004 at 10 am at which time he could comment on the notice of intention to cancel his visa and give reasons why his visa should not be cancelled.
The applicant attended the interview at the office of the Department on 26 July 2004. The decision record indicates that the student stated at interview that the results provided by MIBT were correct. He stated that he found his girlfriend was pregnant before the exams in semester 1, 2004; that he did not have any friends and that he found his subjects difficult. He stated that he wanted one more chance to prove he was a good student.
By decision of 26 July 2004, the first respondent's delegate cancelled the applicant's student visa pursuant to s.116 of the Act. The delegate found the applicant had failed to comply with condition 8202 and that as a result of sub-s.116(3) of the Act and subregulation 2.43(2) of the Regulations, cancellation of the applicant's visa was mandatory.
On 2 August 2004 the applicant lodged with the Migration Review Tribunal an application for review of the delegate's decision. On 3 March 2005 the Migration Review Tribunal (the tribunal) conducted a hearing at which the applicant gave evidence. Prior to that hearing, the tribunal had forwarded to the applicant by letter dated 14 December 2004 an invitation to comment on information pursuant to section 359A of the Act. The applicant was invited to comment in writing on the following:
The tribunal has information that in term 3 of 2003 you failed all three subjects in your diploma of commerce course at MIBT, and that in term 1 of 2004, you failed two out of three subjects in the same course.
On 16 March 2005 the tribunal received a letter from MIBT of that date which referred to the applicant being excluded from the Institute due to his poor academic process, but went on to say:
MIBT is satisfied that the student has dealt with his psychological condition and has overturned his exclusion from MIBT. Accordingly, the student will be permitted to re-enrol at MIBT if his visa is reinstated.
On 30 March 2005, the tribunal handed down its decision affirming the delegate's decision.
The tribunal's decision
The tribunal had regard to the departmental file and matters put before it by the applicant. Those included an undated medical report received on 24 December 2004 from Dr Aranda who stated that the review applicant had a history of migraines which he suffered weekly for the past year and also included a 10-page psychological report dated 22 November 2004 from Mr Forbes who stated that the review applicant suffered from clinical anxiety and depression and was socially isolated in Australia.
The tribunal also noted the applicant's evidence given at the hearing that he, the applicant, approached MIBT after receiving his results for semester 1 of 2004, but before MIBT issued the noncompliance notice on 16 June 2004. He stated he advised MIBT that his studies were affected by his girlfriend's pregnancy, by his own ill health and because his parents were also unwell; his mother suffering from leukaemia. The applicant did not believe MIBT took proper notice of his reasons for performing badly and wished for an opportunity to present all of the evidence to MIBT before the tribunal made a decision on the review.
The tribunal noted in its findings, having set out the applicable parts of s.116 of the Act and Regulation 2.43 of the Regulations that it had no discretion to set aside a visa cancellation where there had been a substantiated breach of condition 8202. The tribunal stated that once noncompliance with the condition was established, the tribunal was bound by the operation of s.116(3) to affirm the visa cancellation.
The tribunal found the delegate complied with the procedural requirements of the Act as to notification and, having done so, was entitled to consider whether or not to cancel the review applicant's student visa. The tribunal set out condition 8202 in its reasons and said at paragraphs 28 and 30 thereof:
(28) The tribunal notes that only the education provider can certify whether a visa holder has achieved satisfactory academic results for each term and semester of the course. MIBT certified that the review applicant failed all three subjects attempted in semester 3 of 2003 and failed two of the three subjects attempted in semester 1 of 2004 The review applicant acknowledged that he failed to achieve satisfactory academic performance in these two semesters. Although MIBT overturned the review applicant's exclusion from the course after considering the medical and psychological evidence provided by him, MIBT did not reassess the review applicant's academic performance in semester 3 of 2003 and semester 1 of 2004.
(30) The tribunal finds that the review applicant breached condition 8202 of his subclass 573 student visa in semester 3 of 2003 and semester 1 of 2004. Having found that the review applicant breached condition 8202 during the term of his student visa, the tribunal has no alternative but to find that his visa must be cancelled.
Consideration
The applicant argues that the decision of the first respondent's delegate was affected by jurisdictional error. The application for judicial review only relates to the tribunal's decision. The applicant cannot seek to impugn the delegate's decision in circumstances where he has exercised his right to full merits review of that decision before the tribunal. Otherwise the applicant argues that the validity of the tribunal's decision was affected by the validity of the s.20 notice issued by MIBT. The foundation for that argument is the alleged invalidity of the section 20 notice.
The applicant submits that the section 20 notice was "misleading and prejudicial". The applicant in his contentions said:
Once the Minister elects to issue such a notice, that notice must comply with the principles of procedural fairness.
However, it is not the Minister who elects to issue such a notice. Section 20 notices are issued by education providers as was the case here.
The applicant relies on the decision of McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826.
On 22 May 2006, the Full Federal Court heard an appeal instituted by the Minister for Immigration and Multicultural Affairs against McInnis FM's decision in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) (Federal Court proceeding number VID 1662 of 2005). The Full Court has reserved its decision. The arguments in the appeal were substantially identical to those raised in this matter and the factual background was analogous to the present matter.
The Minister concedes in the proceedings before me that the s.20 notice here is materially indistinguishable from the notice in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826.
His Honour McInnis FM in the decision of Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826 referred to certain obiter remarks made by the Full Federal Court in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 193 at (8) to (26). Those remarks were critical of certain features of the section 20 saying those features created a "trap for a student". The Full Court said those features of the notice were calculated to lead the student to take a step; that was to attend before an officer of the Department in compliance with the requirements of the notice. The Full Court observed that upon doing so, the student would then lose the prospect of being able to rely on "exceptional circumstances" beyond his or her control for the purposes of having any automatic visa cancellation revoked pursuant to section 137L of the Act. The Full Court noted that despite any contrary impression created by the s.20 notice, if (a) condition 8202 had in fact been breached and (b) the step of attending before an officer was actually taken, cancellation would become mandatory under s.116 of the Act and cancellation in such circumstances would be valid.
In Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 193, Heerey, Marshall and Weinberg JJ said at (17) to (26) as follows:
(17) If a person is sent a section 20 notice, having breached condition 8202, and then complies with that notice by making themselves available to an officer to explain the breach, their visa will not be automatically cancelled under section 137J.
(18) However, that person remains subject to section 116, which requires the Minister to cancel a visa if she is satisfied that there has been a breach of condition 8202. Once a section 20 notice has been sent, and a person has attempted to "explain the breach" (rather than deny it), it is difficult to see how the Minister could fail to be satisfied that there has been a breach of condition 8202. Therefore, while the person may not have their visa automatically cancelled, the Minister will be compelled to cancel pursuant to section 116.
(19) In contrast, if that same person does not "report to DIMIA" to explain the breach, their visa is automatically cancelled. Once a visa has been automatically cancelled pursuant to section 137J, they may apply for revocation of that automatic cancellation on the ground that the breach was due to "exceptional circumstances beyond the non-citizen’s control".
(20) If revocation is granted, not only is the automatic cancellation revoked, but, more importantly, the breach in issue is prevented from being used as a basis for cancelling their visa under section 116. This is because section 137P(2) provides:
"(2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116."
(21) Therefore, the only way a holder of a student visa who has breached condition 8202, but whose breach was due to exceptional circumstances beyond their control, can avoid having their visa cancelled is to not comply with the section 20 notice.
(22) Given this, we consider that the statement in the section 20 notice, extracted above, is misleading. In the event that a person has breached condition 8202, and reports to DIMIA as requested, it is incorrect to state that "a decision will then be made whether or not to cancel your visa". This may imply some sort of discretion on the part of the officer, particularly given that the notice asks the recipient to "explain" their breach. It implies that it is possible that the visa will not be cancelled if the breach is adequately explained. However, the true position is that the Minister is obliged under section 116 to cancel the visa if satisfied there has been a breach.
(23) Furthermore, the section 20 notice may be misleading by omission. The notice states that the visa will not be cancelled "if you can show that no breach occurred". It does not go on to say the corollary of that, which is that a visa will be cancelled if a breach did occur, (or, probably more accurately, if it cannot be shown that no breach occurred).
(24) For those visa holders who have breached condition 8202, but may have exceptional circumstances beyond their control to explain that breach, the notice creates a trap. It encourages the visa holder to explain their circumstances to avoid automatic cancellation. However, it does not tell them that in doing so, and in admitting a breach, they will then have their visa cancelled pursuant to section 116.
(25) In fact, if a person’s breach was due to exceptional circumstances beyond their control, they would be best served by not complying with the section 20 notice, having their visa automatically cancelled under section 137J, and then applying for revocation under section 137K. If revocation is granted, their breach is then "immunised" from being used as a basis for cancelling their visa under section 116.
(26) We would urge the department to give careful consideration to modifying the standard form of a section 20 notice in order to avoid the difficulties outlined above.
This Court is bound by the decision of the Full Court of Allsop and Tamberlin JJ, Moore J dissenting, in Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448. In that case, Allsop J (with whom Tamberlin J agreed) said in relation to the operation of s.116 of the Act, condition 8202 and s.20 of the ESOS Act at (37) to (40) that:
(37) It was submitted on behalf of the respondent that the scheme provided for under subdivision GB of the Migration Act was effectively a code for the use of powers to cancel a visa of a student under section 116 of the Migration Act. Thus, it was said that failure to comply with condition 8202 could lead to visa cancellation only in a circumstance in which a student’s education provider has issued a notice under section 20 of the ESOS Act.
(38) Whilst there is a coherent body of regulation under subdivision GB of the Migration Act when examined in the light of the terms of the ESOS Act, I do not see any express or implied statutory limitation on the circumstances in which section 116 of the Migration Act can be invoked. Subdivision GB comes into operation if a notice is sent to a non-citizen under section 20. Section 116 of the Migration Act is not so limited.
(39) Nor do I see condition 8202 as limited by reference to certification expressly under section 20. Condition 8202(3) is couched in terms of meeting the requirements of the condition by, amongst other ways, the visa holder achieving a result that is certified as satisfactory. This contemplates an act of certifying that is positive. Section 20 of the ESOS Act only contemplates the opposite: a notice of breach, that is certification of a result that is unsatisfactory.
(40) In my view, the ESOS Act does not limit the circumstances under which section 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 section 20 of the ESOS Act that would have been simple enough to say.
At paragraph [48] of his decision and in relation to the above McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826 said:
Whilst I accept that there is binding authority on this Court to the effect that it is not necessary that a section 20 notice be sent to a visa holder or that there be compliance with any of the provisions of the Education Services for Overseas Students Act 2000 (Cth) in order for a valid decision to be made under section 116 of the Act by reference to condition 8202, the fact remains in the present case that a notice was sent which I regard as invalid, with the effect that it then renders invalid the adverse decision of the delegate and the MRT.
The nature of the validity of a s.20 notice was considered by Ryan J in Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 495 at (13) to (17) where at 17 Ryan J stated:
Section 20 of the Overseas Students Act is not determinative of the attainment of satisfaction postulated by section 116 of the Act. The latter makes no reference to the Overseas Students Act which is not surprising since the relevant provisions of section 116 have remained in their present form since before the Overseas Students Act or the Migration Legislation Amendment (Overseas Students) Act 2000 (Act No 168 of 2000) were passed. Likewise condition 8202 was not amended in the light of the Overseas Students Act and related legislation. Accordingly, the validity of a notice under section 20 of the Overseas Students Act is not a prerequisite for cancellation of a student visa under section 116 although it may, as counsel for the Minister accepted, be essential for cancellation pursuant to section 137J which was inserted into the Act by the Migration Legislation Amendment (Overseas Students) Act 2000. A cancellation under section 116 must occur upon the Minister's attainment of the requisite satisfaction even if the process has been initiated on the Minister's own motion or otherwise without the issue of a notice under section 20 of the Overseas Students Act. Once that is understood, section 116(3) leaves no discretion to the minister or the MRT once he or it is satisfied that the holder has not achieved an academic result that is certified by the education provider as at least satisfactory. For a similar view of the effect of section 116(3) in excluding any discretion see Ariyagama v Minister for Immigration and Multicultural Affairs (2001) FCA 1407 (20), Nguyen v Minister for Immigration and Multicultural Affairs (2002) FCA 460 (11) and Akter v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1504 (20).
I note also the Full Federal Court decision of Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 35 being a decision of Wilcox, Conti and Stone JJ wherein an appeal against a decision of Smith FM was dismissed. That case concerned a decision by the tribunal to affirm a decision of a delegate to cancel a student visa pursuant to s.116 of the Act. The factual matters common to that case, this and that in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826 were as follows: (a) the appellant had been sent a s.20 notice; (b) the s.20 notice was relevantly in the same form as the s.20 notice in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826 and that in the present case; (c) in response to the s.20 notice, the appellant reported to the Department; (d) the appellant attended an interview with the delegate and at the end of the interview the delegate determined to cancel the appellant's visa; (e) the appellant sought review by the tribunal of the cancellation decision; (f) the tribunal found the appellant had failed to comply with condition 8202 due to a failure to achieve an academic result certified by the education provider to be at least satisfactory for each semester.
In the reasons of Wilcox J at (30) his Honour said:
Mr Catterns argued the section 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (No 1) (2005) FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any view about its correctness. Counsel for the Minister contended that, even if the section 20 notice was incapable of having the consequences set out in Subdivision GB of Division 3 of the Migration Act (sections 137J to 137P), that did not affect the power of the delegate to effect a visa cancellation under section 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) FCAFC 333; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate’s decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 248, 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) FCAFC 58, 143 FCR 314; and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 218.
The arguments of Counsel for the Minister were accepted. The Full Court's decision in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 35 was recently followed and applied by Siopsis J in Shek v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 522 at (41) to (45). Siopsis J noted at 44:
By reason of the Full Court in Humayun, having considered and rejected the grounds underlying the Federal Magistrate's decision in Zhou, there appears to be no utility in awaiting the outcome of the Full Court appeal in Zhou.
His Honour dismissed the application for review. The facts in that matter were analogous to those in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1826 and those in the present matter.
Subdivision GB of Division 3 of Part II of the Act does refer to the Overseas Students Act. There is clearly a relationship between the Overseas Students Act and the regime for automatic cancellation of student visas under subdivision GB. However, s.116 is contained in a different subdivision dealing with a separate and general power to cancel visas. The amendments made by the Migration Legislation Amendment (Overseas Students) Act2000 which introduced subdivision GB did not by implication limit, qualify or otherwise affect this general cancellation power.
The applicant argues that the s.20 notice led to procedural unfairness. However, the applicant was given a notice of the proposed cancellation under s.119 of the Act. He was interviewed and had an opportunity to be heard in relation to the proposed cancellation. He was thereafter afforded a hearing before the tribunal. He was written to pursuant to s.359A of the Act, and his comments were invited in respect of information adverse to his case. Any suggestion of a theoretical opportunity lost by ability to apply under s.137K of the Act was a direct consequence of the express provisions of the Act. There has been no absence of procedural fairness.
The application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 16 June 2006
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