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MIGRATION - Review of Migration Review Tribunal decision - cancellation of a student visa - MRT finding it lacked jurisdiction - MRT making the correct decision for the wrong reason - further review futile - application summarily dismissed as disclosing no reasonable cause of action.

Chen v Minister for Immigration [2004] FMCA 860 (23 November 2004)

Chen v Minister for Immigration [2004] FMCA 860 (23 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION
[2004] FMCA 860




MIGRATION - Review of Migration Review Tribunal decision - cancellation of a student visa - MRT finding it lacked jurisdiction - MRT making the correct decision for the wrong reason - further review futile - application summarily dismissed as disclosing no reasonable cause of action.




Education Services for Overseas Student Act 2000 (Cth), s.20

Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.137, 137J, 137K, 137N, 338

Applicant:
GUANG CHEN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1432 of 2003




Delivered on:


23 November 2004




Delivered at:


Sydney




Hearing date:


23 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Ms A Nanson

Australian Government Solicitor




INTERLOCUTORY ORDERS

(1) The application for judicial review filed on 25 July 2003 is dismissed summarily pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1432 of 2003

GUANG CHEN



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me an interlocutory application by the Minister filed on 5 August 2004 seeking the summary dismissal of a judicial review application filed on 25 July 2003. The judicial review application sought review of a decision of the Migration Review Tribunal ("the MRT") made on 25 June 2003. The MRT decided that it had no jurisdiction to review or to deal with the application before it, which concerned the automatic cancellation of a student visa pursuant to s.137J of the Migration Act 1958 (Cth) ("the Migration Act"). The MRT decided that the decision for which the applicant had sought review was not an MRT reviewable decision under s.338 of the Migration Act.

2. The Minister's interlocutory application seeks the summary dismissal of the judicial review application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules") on the basis that the judicial review application discloses no reasonable cause of action. The Minister's application is supported by the affidavit of Angela Nanson made on 3 August 2004 which gives the procedural history to the matter and annexes relevant documents. I received that affidavit into evidence. Ms Nanson has also prepared written submissions in support of the Minister's application. I adopt paragraph 1-7 of those submissions for the purposes of this judgment by way of background:

The applicant, a citizen of China, was granted a Student (Temporary) Visa offshore on 10 May 2000 effective until 15 March 2003.

On 16 April 2002, notification pursuant to s.20 of the Education Services for Overseas Student Act 2000 (Cth) ("the ESOS Act") was sent to the applicant informing him that he had a breached a condition of his student visa for reason of poor attendance and requiring him to report personally to a compliance officer at the Department of Immigration and Multicultural and Indigenous Affairs at Sydney ("the Department").

On 6 June 2002, the applicant's student visa was cancelled by operation of s.137J of the Migration Act .

On 21 March 2003, the applicant lodged an Application for review of this `decision' with the MRT.

On 18 June 2003 the MRT wrote to the applicant care of Ms Betty Lin, AEI International informing the applicant as follows:

"The Tribunal can only review decisions by the Department of Immigration and Multicultural and Indigenous Affairs not to revoke an automatic student cancellation (see Subsection 338(3A) of the Migration Act 1958). As there has been no decision by the Department not to revoke your cancellation, there is nothing for the Tribunal to review."

The MRT invited the applicant to provide further information to the MRT within 7 calendar days.

On 24 June 2003, the applicant wrote to the MRT claiming that, on 21 March 2003, he had applied to the Department not to revoke the cancellation of his student visa and that he had lodged the application within the time limit as he had received notification from the Department on 15 March 2003.

On 25 June 2003 a tribunal officer of the MRT wrote to the applicant informing him that the MRT could not accept or consider an application unless the person applying for review was eligible to do so. The letter went on to state:

"Applications for review of a decision to cancel a visa, or not to revoke the automatic cancellation of a visa, while the visa holder is in Australia, can only be made by the former visa holder, who must be physically present in Australia when the application for review is made. As you were not the former visa holder or you were not in Australia when the application for review was made, your application is found to be ineligible."

3. I also adopt paragraphs 8 to 10 of Ms Nanson's written submissions which describes the judicial review application made to this Court:

On 25 July 2003, the applicant filed an Application seeking review of this decision. There are no grounds set out in this Application.


Under the heading "Orders sought by the applicant" the applicant set out the following:

"Turn over the unjust decision and put me back on track using the correct procedure. My student visa was cancelled by operation of s.137 (automatic visa cancellation). But I never got informed until I lodged by visa extension by my visa expiry date. DIMIA did not even allow my revocation application. I need an opportunity to express my unfair treatment."

On 8 October 2003 the matter was listed for directions and certain orders were made by consent including an order the applicant file and serve any amended application setting out in full the grounds relied upon together with any affidavit material relied upon on or before 31 March 2004.

4. In addition, I note that the Minister's application came before me for hearing on 25 October 2004. On that occasion the applicant failed to appear. I adjourned temporarily to enable an attempt to be made to contact the applicant by telephone. That was successful. The applicant told me that he was not aware of the hearing on that day as he had not received correspondence. It appears that the correspondence may have gone to a migration agent who at some former time had been assisting the applicant but the applicant was not made aware of it. In the light of those circumstances, I adjourned the hearing of the Minister's application to today. I also ordered the applicant to file and serve a notice of address for service giving the applicant's residential address which he gave me orally over the telephone.

5. The applicant did not comply with that order and correspondence sent by the Minister's solicitors to the applicant at the address he gave by phone was returned with a note, "please check the address". The applicant told me today that this was because the postcode shown on the letter was incorrect. I do not know how the applicant could have been aware of that without seeing the letter. I find in the circumstances that the applicant did receive correspondence sent by the Minister's solicitors dated 4 November 2004 enclosing a copy of the Court's orders made on 25 October 2004.

6. Notwithstanding the applicant's failure to comply with my order that he file and serve a notice of address for service, I have decided not to exercise my power to dismiss his judicial review application for that non-compliance. The applicant has appeared today, albeit somewhat late, and has explained that he did not understand that he needed to comply with my order prior to today's hearing.

7. The circumstances in which the proceedings came before the MRT are somewhat convoluted and confused. That confusion, it appears, led to the presiding member making an error when she dealt with the matter before the MRT on 25 June 2003. The only reasons for that decision are those set out in a letter of the same date under the hand of a tribunal officer, William Wong. The error was that the presiding member mistakenly believed that Mr Chen was not the same person as formerly held the student visa that had been cancelled or, alternatively, was operating under the mistaken belief that Mr Chen was not in Australia when he applied to the MRT for review.

8. Mr Chen was in Australia when he applied to the MRT for review and he was the former student visa holder. Those may well be jurisdictional errors by the MRT in that they appeared to be the reason or a part of the reason for the presiding member having determined that she had no jurisdiction to deal with the application to the MRT. Nevertheless, for reasons which follow, it would be futile to return this matter to the MRT for a rehearing because, for other reasons, the MRT had no jurisdiction.

9. The applicant's student visa was cancelled pursuant to s.137J of the Migration Act. The applicant had an opportunity to apply for revocation of that cancellation pursuant to s.137K of the Migration Act. However, that opportunity existed only for so long as the applicant's student visa would have run until it expired by ordinary effluxion of time.

10. I find on the basis of the material annexed to the affidavit of Angela Nanson that the applicant's student visa would have expired by ordinary effluxion of time on 15 March 2003.

11. On the applicant's own account, he attended the Minister's Department shortly before his visa was due to expire to apply for renewal of his student visa. It was then that the applicant found out that his earlier student visa had been cancelled. This is corroborated by a letter from the Minister's Department to the applicant dated 15 march 2003. The applicant says that he did not receive the notice of pending cancellation issued under s.20 of the ESOS Act but it is clear from s.137J(1) of the Migration Act that the automatic cancellation based upon that notice operates even where the visa holder does not receive the notice. That may seem harsh but that is how Parliament has expressed itself.

12. When the applicant apparently attended the Minister's Department on or about 13 March 2003 he could have applied for revocation of the cancellation decision pursuant to s.137K. On the applicant's account, he was advised of the possibility of applying for revocation and attended later to make that application but an officer in the Department declined to accept that application.

13. The Department's letter dated 15 March 2003 establishes that the Department wrote to the applicant referring to the possibility of an application for revocation but given that the applicant's former student visa would have expired on 15 March 2003, that advice was of no benefit to the applicant. If a Departmental officer did refuse to accept an application for revocation when the applicant subsequently attended the Minister's Department, the officer would have acted correctly. The applicant says that he was only permitted to apply for a bridging visa. The material confirms that the applicant applied for a bridging visa on 20 March 2003. By then it was too late for the applicant to apply for revocation of the cancellation decision.

14. In any event, no written application for revocation was ever made by the applicant and no decision was made by the Minister or her delegate in relation to an application for revocation. In those circumstances, there was no MRT reviewable decision for the MRT to review. In the absence of there being an MRT reviewable decision, the MRT lacked jurisdiction. It follows that regardless of the error made by the presiding member in dealing with the application, it would be futile to return the matter to the MRT to rehear.

15. There is also, in my view, no primary decision by the Minister or her delegate that the Court can properly review. The applicant is concerned about the cancellation of his student visa but cancellation occurred by force of s.137J of the Migration Act. There was no administrative decision made which the Court can review. I note that under s.137N of the Migration Act the Minister may of his or her own initiative revoke a cancellation decision. It is open to the applicant to request the Minister to exercise that power. I have no influence on the Minister's exercise or non-exercise of that power. On the basis of the material annexed to Ms Nanson's affidavit I could not hold out much hope that the Minister would be favourably disposed to a request that she exercise that power. It is apparent from that material that there were ample grounds for the notice sent to the applicant pursuant to s.20 of the ESOS Act. Those circumstances would obviously be relevant to any further consideration by the Minister under s.137N.

16. I agree with paragraphs 11 to 17 of Ms Nanson's written submissions in support of the Minister's application for summary dismissal. I adopt those paragraphs for the purposes of this judgment:

The decision of the respondent to cancel the applicant's student visa was made pursuant to s.137J of the Act. Section 137J reads as follows:

137 J Non-complying students may have their visas automatically cancelled

(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach.

Such a notice was sent to the applicant (see annexure A to the affidavit of Angela Margaret Nanson ("the affidavit") affirmed 3 August 2004 and filed in these proceedings.

Section 137J(2) provides that the non-citizen's visa is cancelled "by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice" unless the non-citizen does certain things also specified under that subsection.

The opportunity for the applicant to apply for a revocation of the decision is set out in the notice. Pursuant to s.137K(1) of the Act, application may be made to the Minister in writing but not at a time when "because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J" - s.137K(2).

Section 82 of the Act set out the circumstances when visas cease to be in effect and includes:

(5) A visa to travel to and enter Australia ...during a particular period or until a particular date ceases to be in effect at the end of that period or on that date ...."

The date for cessation of the applicant's visa had it not been cancelled would have been 15 March 2003.

The applicant's evidence is that he attended the Department in order to apply for a revocation. In its letter to the applicant dated 15 March 2003, the Department (at Annexure B page 13 of the Affidavit) the Department notes the applicant attempted to apply for a grant of a Student (Temporary) Visa on 13 March 2003 but in view of the earlier cancellation this application was considered to be invalid pursuant to s.48 of the Act.

The applicant did not, in writing, apply for a revocation of the decision to cancel his visa. The MRT was correct in its expression of the effect of the legislation set out in its fax to the applicant on 18 June 2003 (Annexure F to the affidavit). The decision of the MRT dated 25 June 2004 correctly noted eligibility as a factor the MRT must take into consideration and its conclusion that the applicant's application was ineligible was correct, albeit on an incorrect understanding of the facts.

17. I find that the application for judicial review filed on 25 July 2003 discloses no reasonable cause of action because it must necessarily fail. The MRT clearly lacked any jurisdiction to review any decision. In the circumstances, I will dismiss the judicial review application summarily pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.

18. On the question of costs, the application having been dismissed summarily, I accept that costs should follow the event. Ms Nanson has submitted that I should make a costs order fixed in the sum of $2,000. That is consistent with the costs outcome if schedule 1 to the Federal Magistrates Court Rules were applied in relation to a stage 2 proceeding. I note in that regard that costs in relation to a stage 2 proceeding are payable in addition to any costs incurred in relation to stage 1 up to the completion of the first court date.

19. I am satisfied that costs in the order of $2,000 have been reasonably and properly incurred on behalf of the Minister. I will order that the judicial review application filed on 25 July 2003 is dismissed summarily pursuant to rule 13.10(a) of the Federal Magistrates Court Rules; and the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 November 2004
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