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MIGRATION - Review of decision of MRT - where applicant is a student who was found to have breached condition 8202 - whether there is a duty on Tribunal to obtain certificate from education provider - whether the Tribunal misled the applicant - whether the Tribunal should have taken into account results subsequent to the semesters in which the applicant's results were not satisfactory.

Bosi v Minister for Immigration [2004] FMCA 573 (25 August 2004)

Bosi v Minister for Immigration [2004] FMCA 573 (25 August 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOSI v MINISTER FOR IMMIGRATION
[2004] FMCA 573



MIGRATION - Review of decision of MRT - where applicant is a student who was found to have breached condition 8202 - whether there is a duty on Tribunal to obtain certificate from education provider - whether the Tribunal misled the applicant - whether the Tribunal should have taken into account results subsequent to the semesters in which the applicant's results were not satisfactory.



Migration Act 1958 (Cth), ss.16, 359A

Tian v Minister for Immigration [2004] FCA 216

Applicant:
SRINIVAS BOSI



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1000 of 2003



Delivered on:


25 August 2004



Delivered at:


Sydney



Hearing date:


25 August 2004



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr B Zipser



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,250.00

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1000 of 2003

SRINIVAS BOSI


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. These proceedings involve an application for judicial review of a decision of the Migration Review Tribunal made on 29 January 2003. In that decision the Tribunal upheld the cancellation of the applicant's student visa by a delegate of the Minister on 2 May 2002.

2. The grounds upon which the visa had been cancelled were that a conditions of the visa, in particular condition 8202, had been breached by the applicant in respect of the second semester of 2000 and the first semester of 2001. A breach of condition 8202 made the visa liable for cancellation pursuant to subsections 116(1)(b) and 116(3) of the Migration Act 1958 (Cth) (the "Act"). The terms of condition 8202 are important, indeed central to the issue of this case. The condition is that:

"(d) In any case - the holder includes 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.

3. The applicant was enrolled at the University of Technology Sydney under a visa that was due to expire on 15 October 2002. On 15 February 2002 an officer of the Department of Immigration and Multicultural and Indigenous Affairs gave notice to the applicant of an intention to cancel his visa under s.116 of the Act. The reason given was that:

"You failed to maintain 80 per cent attendance for each term and semester of your course. You may also have failed to maintain satisfactory academic progress."

4. The applicant was given opportunities to attend before the delegate and it would appear that the ground relating to his attendance was not pursued. However, the delegate was informed by the education provider that the applicant had earned 12 credit points out of a total of 36 of semester II of 2000 and semester I of 2001. Put in more understandable language he had passed two out of the six subjects which he was undertaking. It was based upon that information that the delegate decided to cancel the visa having been satisfied that the applicant had not achieved an academic result that was certified by the education provider to be at least satisfactory.

5. When the matter came before the Tribunal these matters and some others were considered. A number of facts concerning the applicant's activities during the time of his course were put to him. The applicant also made representations to the Tribunal, in particular a letter which is found at [CB 77] to [79]. Based upon the information provided by the applicant in response to questions from the Tribunal and information provided to the Tribunal by UTS all of which had been provided to the applicant pursuant to s.359A the Tribunal found that the applicant had breached s.116(1)(b) and that cancellation of his visa was therefore mandatory in accordance with subsection 116(3) of the Act.

6. In seeking review the applicant has filed a further amended application the grounds of which are:

"1. The Tribunal bore or assumed the onus of obtaining evidence in order to be satisfied that the applicant had not complied with condition 8202. The Tribunal failed to obtain the evidence, giving rise to jurisdictional error.

2. The applicant was misled into believing that UTS had certified that he had failed to comply with condition 8202. In the circumstances of the case, the applicant was denied procedural fairness giving rise to jurisdictional error in the Tribunal's decision.

3. The Tribunal, in determining whether the applicant had complied with condition 8202, failed to take into account the applicant's academic results in the first semester of 2002, as well as the second semester of 2002. In the circumstances of the case the Tribunal fell into jurisdictional error."

7. Mr Zipser, who appears on behalf of the applicant, provided the court with his usual thorough and well argued submissions.

8. In respect to the first ground to review, he argues that the Minister must be positively satisfied that the holder has not complied with the condition of the visa. He argues that in these circumstances, the onus is on the Minister and the Tribunal on review, to obtain the evidence in order to be satisfied that the holder has not complied with the condition. He suggests that in the present case, neither the delegate nor the Tribunal sought a certificate from the UTS in relation to whether the applicant's academic results were satisfactory. Instead, the Minister's delegate sought a certificate as to whether the applicant's academic progress was satisfactory.

9. Whilst I am satisfied that the Tribunal asked the UTS for information concerning the applicant's academic progress, and that this is not the same question as one relating to the satisfactoriness of academic results; Tian v Minister for Immigration [2004] FCA 216 at [22] I do not believe that this avails the applicant. The applicant obtained a visa on the basis of a particular condition, that being condition 8202. It was his duty to ensure that he complied with that condition in order that he might be able to remain in the country.

10. The task placed upon the delegate and the Tribunal was to ascertain whether or not that condition had been complied with. This is an administrative process. It has been made clear by the High Court that in administrative processes and in Tribunal hearings there is no such thing as an onus of proof but there is a requirement upon an applicant to satisfy the adjudicator that he is doing that which is required of him by his visa. Whilst obviously the Minister, represented by a delegate or by the Tribunal, could not pick out a visa holder at random and cancel on the basis that condition 8202 had been breached without any evidence thereof whatsoever, she must be entitled, once suspicion is aroused that the condition may not have been complied with, to require the applicant to satisfy her that it had. That is, in effect, what Mansfield J was saying in Tian supra at [18].

11. In relation to the duties of the Tribunal it was the view of his Honour at [23] that the Tribunal's duty was to consider properly whether the "school had provided a certificate that the applicant's academic results were, at least, satisfactory". Provided the Tribunal considered that question properly it had completed the task which was mandated to it and no jurisdictional error can be asserted.

12. In this particular case it is clear to me that the University had not provided a certificate that the applicant's academic results were, at least, satisfactory and that entitled the Tribunal to come to the conclusion that it did, namely that it was not satisfied of this fact.

13. I cannot accept any argument that there is an onus on the Tribunal to obtain some form of negative certificate.

14. The second submission made by Mr Zipser is that the applicant was misled into believing that UTS had advised and certified that he had failed to comply with condition 8202. Unfortunately for the applicant this argument cannot run because it is clear from the letter which he wrote to the Tribunal and to which I previously referred at [5] that he was well aware of the precise terms of condition 8202 and that the letters from UTS did not say exactly what it has been suggested they should have said. In [CB 79] this is all set out and the applicant asks the Tribunal for further time so that UTS can consider his results and decide whether or not they will suspend his registration.

15. The suspension of registration is not a requirement or other part of the condition. I am unable to see how the applicant was misled in the way suggested and that this alleged misleading conduct denied him procedural fairness.

16. The third point made by Mr Zipser is that when the Tribunal made its decision in January 2003, it had information before it about the applicant's results in the first semester of 2002 and it could have obtained information about his results in the second semester of that year.

17. Mr Zipser argues that the Tribunal did not take those matters into account when deciding whether the applicant's academic results were satisfactory in the second semester of 2000 and the first semester of 2001 and this evidenced that the Tribunal had misunderstood its task which gave rise to jurisdictional error or it ignored information it was required to take into account giving rise to jurisdictional error.

18. The error in this argument is that it appears to be placing upon the Tribunal an obligation to decide for itself the quality of the applicant's academic results. That is not what it is required to do at all. It is required to make a finding as to whether or not a condition has been breached. To the extent that the condition involves consideration of an academic result, that is dealt with by the education provider who is required to give the necessary certificate. It is not the Tribunal's task to interpret that certificate.

19. Insofar as Mr Zipser's arguments involve placing upon a Tribunal an obligation to obtain information because the Tribunal has assumed a responsibility to do so, I accept Mr Smith's argument that this is not part of administrative law. I accept that the assumption of responsibility to do something may sometimes lead to an obligation to complete the task but that would sound more in the tort of negligence than in administrative decision making.

20. In any event, I have already expressed a view that it is not the Tribunal's duty to seek out these certificates, it is the applicant's obligation to satisfy the Tribunal that he has complied with his visa terms and those visa terms require a certificate to be issued by the educational provider.

21. For all these reasons I must dismiss this application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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