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1 The Migration Review Tribunal affirmed a decision made by a delegate of the Minister to cancel the respondentís sub-class 560 (Student) visa. The Tribunal did so on the ground that the respondent had breached condition 8202 by not achieving the prescribed attendance rate (80 per cent) of lectures and failing to achieve an academic result certified by the education provider to be at least satisfactory.

Minister for Immigration & Multicultural & Indigenous Affairsv Li [2004] FC

Minister for Immigration & Multicultural & Indigenous Affairsv Li [2004] FCAFC 42 (2 March 2004)
Last Updated: 4 March 2004

FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural & Indigenous Affairs v Li

[2004] FCAFC 42


CORRIGENDUM






























MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V HONG JIA LI
N2498 OF 2003

HEEREY, SUNDBERG & CRENNAN JJ
2 MARCH 2004 (CORRIGENDUM 4 MARCH 2004)
SYDNEY






IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2498 OF 2003


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: HONG JIA LI
RESPONDENT
JUDGE: HEEREY, SUNDBERG, CRENNAN JJ
DATE OF ORDER: 4 MARCH 2004
WHERE MADE: MELBOURNE


CORRIGENDUM


1. On the order page of the Judgment delete "The respondent pay the Ministerís costs and replace with "The respondent pay the Ministerís costs of the appeal and of the proceedings before the primary Judge".











I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justices Heerey, Sundberg and Crennan



Associate:

Dated: 4 March 2004

FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural & Indigenous Affairs v Li

[2004] FCAFC 42




































MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V HONG JIA LI
N2498 OF 2003

HEEREY, SUNDBERG & CRENNAN JJ
2 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2498 OF 2003


On appeal from a judgment of a single judge of the Federal Court


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPLICANT
AND: HONG JIA LI
RESPONDENT
JUDGE: HEEREY, SUNDBERG & CRENNAN JJ
DATE OF ORDER: 2 MARCH 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal is allowed.
2. The decision of the Tribunal is affirmed and the decision of the primary Judge is set aside.
3. The respondent pay the Ministerís costs.













Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2498 OF 2003


On appeal from a judgment of a single judge of the Federal Court


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPLICANT
AND: HONG JIA LI
RESPONDENT


JUDGE: HEEREY, SUNDBERG & CRENNAN JJ
DATE: 2 MARCH 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

1 The Migration Review Tribunal affirmed a decision made by a delegate of the Minister to cancel the respondentís sub-class 560 (Student) visa. The Tribunal did so on the ground that the respondent had breached condition 8202 by not achieving the prescribed attendance rate (80 per cent) of lectures and failing to achieve an academic result certified by the education provider to be at least satisfactory.

2 The primary judge set aside this decision. His Honour found that the Tribunal made a jurisdictional error by failing to address a "central issue" in the respondentís claims, namely her assertion that on occasions she had been marked as absent because she had been more than ten minutes late for the commencement of a class: Hong Jia Li v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1432.

3 On this appeal the Minister contends that there was no jurisdictional error because this particular evidence could not have been determinative of the issues before the Tribunal. In any event, it is said that the finding could not have affected the result, because breach of condition 8202 was otherwise made out.

The respondentís visa

4 The respondent, a citizen of the Peopleís Republic of China, entered Australia on 30 April 2000 on a Student (Temporary) (Class TU) sub-class 560 visa. The visa was subject to condition 8202, item 4(3) of which provided:

"(3). The condition is that
(a) ...
(b) ...
(c) In the case of a holder whose education provider keeps attendance records Ė the Minister is satisfied that the holder attends for at least 80 per cent of the contact hours scheduled;
(i) for a course that runs for less than a semester Ė for the course; or

(ii) for a course that runs for at least a semester Ė for each term and semester of the course; and

(d) in any case Ė the holder achieves an academic result that is certified by the education provider to be at least satisfactory Ė
(i) for a course that runs for less than a semester Ė for the course or

(ii) for a course that runs for at least a semester Ė for each term or semester (whichever is shorter) of the course."

5 The combined operation of s 116(1) and (3) of the Migration Act 1958 (Cth) (the Act) and reg 2.43(2)(b)(ii) of the Migration Regulations is that the Minister is required to cancel a visa if the holder breaches condition 8202. There is no residual discretion.

Respondentís academic progress

6 The respondentís education provider was Access Learning Centre of Surry Hills, New South Wales (the Centre). The respondent enrolled in a specialist IELTS class commencing on 11 March 2002 and concluding on 26 July 2002. According to a certificate provided by the Centre to the Department on 30 August 2002 her overall attendance for the course was sixty-four per cent. Broken down into terms her attendance rates were as follows:

Term 1 74%
Term 2 68%
Term 3 61%
Term 4 69%
Term 5 56%

7 The respondent had submitted to the Centre five medical certificates covering absences for eleven weekdays in total. Her overall attendance was fifty-three per cent and sixty-four per cent when the medical certificates provided to the Centre were taken into account.

8 In a report from the Centre to the Department dated 19 July 2002 in answer to the question "Is the student making satisfactory academic progress for each term in this course?", the Centre had responded "No".

Delegateís decision

9 On 30 August 2002 a delegate of the Minister decided to cancel the respondentís visa.

Application for review

10 On 10 September 2002 the respondent applied for review by the Tribunal.

11 On 17 March 2003 the Assistant Director of Studies of the Centre provided a statement to the effect that the respondent was enrolled in a specialist IELTS class for the full five months. The statement continued:

"It is normal for students to advance from the IELTS class to the Tertiary Preparation Class once the appropriate level has been achieved (usually after three months). As Hong Jia Li did not attend a large majority of classes, it is difficult to assess her progress. When the Department of Immigration and Multicultural Affairs contacted me by phone regarding Hong Jia Liís case, I explained the difficulty in judging progress when there is no output received to measure. Nevertheless, it may by [sic] speculated with some surety that Hong Jia Liís progress was unsatisfactory due to her inability to advance to other courses." (Emphasis in original)

12 On 30 May 2003 the respondent made a statutory declaration which amongst other things stated:

"6. At the DIMIA interview I was surprised that in fact after my absences allowed in my medical certificates I would not reach 80 per cent attendance.

7. At times when I checked my attendance at the school Ė I was surprised my attendance was lower than I thought Ė and after checking several times I found it was because where I had been more than 10 minutes late to a class I had been marked as absent. I am aware that this occurred several times in term 1 and 2 though I do not know of it happening on any other occasions."

13 The respondent went on to state that some of her absence was due to showing her father around for some four days while he was visiting Australia. She felt obliged to stay with him because her parents were in the process of divorcing. She also claimed that while she understood the Centre wrote to the Department stating that her academic progress was unsatisfactory, this had not been brought to her attention before the Departmental interview.

Tribunal decision

14 The Tribunal referred to the material already mentioned, including the impression by the respondent that she was surprised to find that she had been marked absent on several occasions in terms 1 and 2 when she was late for class. The Tribunal recorded the information provided by the Centre that there were five terms and that her attendance in each term was below eighty per cent, including eleven days of absence covered by medical certificates and that her overall attendance was sixty-four per cent. Four further medical certificates had been provided to the delegate, but these only brought the attendance up to seventy four per cent. The Tribunal did not accept the respondentís evidence that she was unable to attend classes due to illness on days other than those covered by medical certificates.

15 The Tribunal accepted the respondentís evidence that she was ill on some days and was unable to attend classes and that contact hours were reduced on the days for which she submitted medical certificates. The Tribunal nevertheless was not satisfied that illness prevented her from attending at least eighty per cent of the contact hours scheduled, even after taking into account the days she was ill. The Tribunal said:

"42. The Tribunal finds that the (respondent) failed to comply with condition 8202 on the basis that she did not attend for at least 80 per cent of the contact hours scheduled for each term the specialist IELTS course that she attended at the (Centre) from 11 March 2002 to 26 July 2002. As such, a ground for cancelling the visa exists under s 116(1)(b) of the Act and reg 2.43 provides that a visa must be cancelled where the applicant has not complied with condition 8202.

43. The education provider advised that the (respondent) was not making satisfactory academic progress and stated that her Ďprogress was unsatisfactory due to her inability to advance to other coursesí. The Tribunal is satisfied that the (respondent) has not complied with condition 8202 of her visa on the basis that her education provider has not certified that she has not achieved an academic result which was at least satisfactory for each term of the course."

16 The Tribunal therefore affirmed the decision to cancel the respondentís visa.

Decision of the primary judge

17 His Honour held that the Tribunal did not consider and make a finding on the issue raised in the respondentís statement that she had been marked absent on several occasions in terms one and two when she was merely late for class. His Honour found that this was a failure to "address a central issue in the applicantís claim" and that the Tribunal had thus "erred jurisdictionally". His Honour referred to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 197 ALR 389 at [24]-[27]. His Honourís view was that, notwithstanding the presence of the privative clause (s 476 of the Act), mandamus should issue.

Objection to competency

18 On 1 March 2004 the respondent filed a notice of objection to competency. The stated grounds were (1) that the respondent had returned to China in February 2004 and the appeal "thus has no practical significance" and (2) the issues raised by the appeal "turn on the facts of this matter only and are thus not of continuing importance".

19 We dismiss the objection. There is at least the outstanding order as to costs. The parties have attempted to negotiate a resolution of this issue but without success. The respondent argued that the present case was to be distinguished from the dismissal of a similar objection in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 at [19]-[21] because in that case there were "quite substantial sums of money involved" and the issues raised were of continuing importance because the decision of the trial judge had not been followed in some subsequent cases.

20 It is not quite clear from Al Masri whether the Full Court in that case rejected the Solicitor-Generalís primary submission (at [20]) that, once there was an adverse decision as to costs which could only be resolved by determining the merits of an appeal, there was no discretion to stay the appeal. But in any event it is clear from the evidence as to negotiations that the costs here, while probably very much less than those involved in Al Masri, are not trivial. And while this case, like most cases, is no doubt dependent on its particular facts, there is some value in decisions at Full Court level which give practical application in different factual situations to the problematic concept of jurisdictional error. In any event, the respondent has in her favour the judgment of the primary judge directing reconsideration of her visa cancellation and she can, in theory at least, pursue that right without physically returning to Australia.

Conclusion

21 We agree with the Ministerís submission that the question whether the respondentís late arrival at a class had been treated as absence from that class was not a central issue. This is because on the respondentís own account this was only the case in terms one and two. However she had to satisfy condition 8202 as to eighty per cent attendance in all terms.

22 In any event the respondent had to satisfy the separate condition as to satisfactory academic progress and it is clear that it was open to the Tribunal to find, on the certificate of the Centre, that she had not done so.

23 The respondent sought to raise two arguments to show that the Tribunal should have found that she had not, or might have not, breached the two conditions of her visa.

24 First it was said that the ten days covered by the further medical certificates would be "likely" to be later than earlier days of the course and thus would bring the respondent "within reach" of the eighty per cent requirement for those terms. Added to the wrongful treatment of late arrival as non-attendance for the first two terms, the eighty per cent for all terms would be achieved.

25 This is but the purest speculation. It attempts to rerun the merits of the case before the Tribunal, on arguments not put to it.

26 Secondly there was an argument that the respondent did in fact make satisfactory progress. However the condition of the visa makes the presence or absence of a positive certificate of the education provider the matter on which the Minister is to rely. Plainly the Centreís certificate referred to in [11] above was capable of bearing the meaning attributed to it by the Tribunal, particularly as the present argument again was not put.

27 The appeal will be allowed, the decision of the primary judge set aside and the decision of the Tribunal affirmed. There will be an order that the respondent pay the Ministerís costs of the appeal and of the proceedings before the primary judge.




I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Sundberg and Crennan



Associate:

Dated: 2 March 2004



Counsel for the Applicant: M A Wigney



Solicitor for the Applicant: Blake Dawson Waldron



Counsel for the Respondent: L Tucker



Solicitor for the Respondent: Jonathon Wong Lawyers



Date of Hearing: 2 March 2004



Date of Judgment: 2 March 2004
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