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MIGRATION - Review of decision of the Migration Review Tribunal affirming a delegate's decision to cancel student visa - whether the applicant breached a condition of the visa - whether the MRT had a discretion not to cancel the visa if the condition was breached.

Wong v Minister for Immigration [2002] FMCA 127 (26 June 2002)

Wong v Minister for Immigration [2002] FMCA 127 (26 June 2002)
Last Updated: 3 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WONG v MINISTER FOR IMMIGRATION
[2002] FMCA 127



MIGRATION - Review of decision of the Migration Review Tribunal affirming a delegate's decision to cancel student visa - whether the applicant breached a condition of the visa - whether the MRT had a discretion not to cancel the visa if the condition was breached.



Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.116(1), 353, 359, 474

Migration Regulations 1994

MIMIA v Nguyen [2002] FCA 460

Patsanza v MIMA [2001] FCA 734

Shrestha v MIMA [2001] FCA 359

Shrestha v MIMA [2001] FCA 871

Walton v Ruddock [2001] FCA 1839

Applicant:
SZE LEUNG WONG



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


SZ290 of 2002



Delivered on:
26 June 2002


Delivered at:

Sydney



Hearing Date:
26 June 2002



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Ms R Winfield



Solicitors for the Applicant:


W Chan & Co



Counsel for the Respondent:


Mr Z Chami



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the costs and disbursements of the application, fixed at $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ290 of 2002

SZE LEUNG WONG


Applicant

And

MINISTER FOR IMMIGRATION,

MULTICULTURAL AND INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. I have before me for ex tempore judgment an application to review a decision of the Migration Review Tribunal ("the MRT") which was made on 10 April 2002. I have the benefit of written submissions filed on behalf of the respondent minister as well as by the applicant, for which I am grateful. I accept as accurate the following statement of facts set out in the various subparagraphs at paragraph 1 in the written submissions filed on behalf of the Minister.

2. On 20 October 1995 the application entered Australia as the holder of a student visa. The application was subsequently granted further student visas, the last of which was on 16 April 1999. That student visa was granted to him for the purpose of allowing him to undertake a Bachelor of Commerce degree at the University of New South Wales. The visa was valid until 15 March 2002.

3. On 3 September 2001 the applicant was notified of the Minister's intention to cancel his student visa. The grounds nominated by the Minister for such cancellation were s.116(1)(b) and s.116(1)(g) of the Migration Act 1958 (Cth) ("the Migration Act") and regulation 2.43(2)(b) of the Migration Regulations 1994 ("the Migration Regulations").

4. On 17 September 2001 the Minister's delegate decided to cancel the applicant's visa on the basis that the applicant "has not complied substantially with condition 8202 subject to which his student visa was granted. Mandatory cancellation regulation 2.43(2)(b)".

5. On 24 September 2001 the applicant lodged an application with the MRT for review of the Departmental delegate's decision.

6. On 24 October 2001 the MRT issued a s.359 notice inviting the applicant to comment on information which was or was likely to be the reason or part of a reason for affirming the decision under review.

7. On 26 November 2001 the applicant's solicitor responded to the s.359 notice. The applicant's solicitor admitted that his client experienced difficulties in passing many of the subjects that he was studying. However, he implored the MRT not to affirm the decision on the basis that the MRT should apply its discretion not to cancel the visa because:

a) a cancellation of the visa would cause hardship to the applicant and his family;

b) the applicant was distracted by his parents' failing relationship;

c) the course at the University of New South Wales is extraordinarily demanding;

d) the applicant is a genuine student and has enrolled in a Diploma of Commerce at another institution;

e) the applicant has no adverse immigration history;

f) the applicant was cooperative during the DIMA interview;

g) the applicant was suspended by the University of New South Wales for a period of one year but has a right of automatic re-enrolment for semester 2 in 2002;

h) the applicant has sufficient funds to support his studies whilst in Australia.

8. On 10 April 2002 the MRT decided to affirm the Departmental delegate's decision cancelling the applicant's student visa.

The legislation

9. Section 116 of the Migration Act provides as follows:

(1) Subject to sub-sections (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; or

...

(3) If the Minister may cancel a visa under sub-section (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

10. The prescribed circumstances referred to in s.116(3) are set out in regulation 2.43. regulation 2.43 relevantly provides:

(2) For sub-section 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

(b) in the case of a Student (Temporary) (Class TU) visa - that the Minister is satisfied that the visa holder has not complied with condition 8202.

11. Condition 8202 relevantly provides as follows:

(d) 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; or

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

Consideration and findings

12. At the hearing of the matter today, the issues in dispute between the parties essentially resolved themselves into two. The first was whether there was a proper basis for the MRT to conclude that the applicant had breached paragraph (d) of condition 8202 on his student visa and secondly, whether the MRT should have exercised a discretion either to give the applicant the benefit of any doubt or whether, even if there was no doubt, whether the MRT should have exercised a residual discretion not to cancel the visa, taking into account explanations for academic performance advanced by Mr Wong.

13. Although it is not entirely clear from the court book, it does seem that the question of Mr Wong's academic performance came to the attention of the Department following some contact from the University of New South Wales, where Mr Wong was enrolled in his commerce degree course. Mr Wong had had a number of extensions to his student visa from 1995 onwards but the relevant extension to the student visa was I find related to his commerce course at the University of New South Wales. Therefore, the question of his performance in that course was the relevant question to be determined with reference to paragraph (d) of condition 8202 on his visa. That paragraph relevantly provides that the condition is that the holder of the visa achieve an academic result that is certified by the education provider to be at least satisfactory for a course that runs for at least a semester for each term or semester, whichever is shorter, of the course.

14. It follows that on a regular basis the issue of academic performance needs to be determined for the student visa to continue to subsist. There is a need for a certification of academic performance to be provided on a regular basis. I was told by Mr Chami, for the Minister, that this requirement has been tightened up by amendments to the relevant condition to compel education providers to report on compliance with the various elements of condition 8202. However, at the time this matter fell to be determined, the amendment had not been made and it appears that in the present case the decision making process was put into train following information received from the university that Mr Wong had been suspended from the course, having regard to his academic performance.

15. The first issue is whether there was material before the MRT to enable the MRT to satisfy itself that paragraph (d) of condition 8202 was not met. Having heard from Mr Chami and having been taken to the relevant parts of the court book, I find that sufficient probative material was before the MRT to permit the MRT to come to that conclusion. The MRT was aware that Mr Wong had been suspended from his course. It appears that at the time Mr Wong was invited to comment on the material before the MRT, a factual error was made that he his enrolment had been cancelled. But it is apparent, in particular from paragraph 20 of the MRT decision, that that error was corrected by the time the MRT made its decision.

16. The MRT was also aware that notification of a breach of the conditions on the student visa had been made to Mr Wong by the university. I refer in particular to page 36 of the court book. In addition, Mr Wong had himself provided a copy of the transcript of his academic record. That showed that of 20 subjects undertaken by him for the purpose of his commerce course at the university, he had successfully completed only two subjects: introductory Chinese 1 and 2. At paragraph 35 of its reasons the MRT incorrectly stated that he had passed only one subject, introductory Chinese. That is an error of fact but I find that whether one regards that as two parts of one subject or, more correctly, as two subjects, the MRT was entitled to find that a failure to pass the remaining subjects which had been attempted was sufficient cause for concluding that performance had not been satisfactory.

17. Mr Wong had admitted to the MRT that his performance had not been good but sought to explain the quality of that performance by reference to particular stress factors relating to his inclinations and family pressures. It seems to me quite clear that there was sufficient material before the MRT that supported a conclusion that paragraph (d) of condition 8202 had been breached. There was no need for the MRT to give the applicant the benefit of the doubt, as there was none.

18. The next question is whether, having reached that conclusion, the MRT should have exercised a discretion not to cancel the student visa. The MRT at paragraph 10 of its reasons referred to the decision of Madgwick J of the Federal Court in the Shrestha v MIMA [2001] FCA 359 as well as the later appeal to the Full Court in that case, reported at [2001] FCA 871.

19. That appeal was dealt with by consent on the basis that the judgment of Madgwick J at first instance was set aside and that the matter would be reconsidered by the MRT. At paragraph 10 of its reasons the MRT stated that the Full Federal Court in that decision made it clear that it was making no ruling one way or the other as to the correctness or applicability of Madgwick J's approach to other student cases. The MRT concluded that in those circumstances it was clear that the approach taken by Madgwick J was still available for use by decision makers in an appropriate case.

20. That approach was in substance that even where a decision maker concluded that condition 8202 had not been met in some respect, it remained open to the decision maker to consider whether there was any explanation for the failure to meet the condition that might support a decision not to cancel the visa. In other words, his Honour found that decision makers could exercise a residual discretion. The MRT went on at paragraph 37 to conclude that having determined that the condition in this case had not been met it was bound to confirm the cancellation of the visa but the MRT also purported at paragraph 36 to take into account the exculpatory factors advanced by Mr Wong should a residual discretion be applicable. In doing that the MRT acted inconsistently. It seems that the MRT was covering its bases given the conclusion it reached at paragraph 10 that the approach adopted by Madgwick J was still applicable.

21. I am satisfied that the MRT was mistaken in what it said at paragraph 10. It is clear from the decisions of the Federal Court in Patsanza v MIMA [2001] FCA 734 at paragraph 15 and MIMIA v Nguyen [2002] FCA 460 at paragraphs 7-9 and 11 that once a decision maker determines that condition 8202 is breached there is no residual discretion.

22. In Nguyen at paragraph 11, his Honour Emmett J said that the decision of the MRT in that case was based on a misapprehension; the matter was not governed by the decision on Shrestha's case. Section 116(3) of the Migration Act is clearly mandatory in using the word, "must". This is contrasted with section 116(1) of the Act which uses the word "may". His Honour said:

There can be no discretion for the Minister or the decision maker making a decision as the Minister's delegate as to the cancellation of a visa where section 116(3) applies.

23. His Honour held that the MRT, having found that the applicant had not satisfied condition 8202, was bound to cancel the visa. I respectfully agree with his Honour's conclusion and find that there was no residual discretion open to the MRT once it had concluded that condition 8202 had been breached.

24. Although the MRT was mistaken in the view that it adopted of Justice Madgwick's decision at first instance in Shrestha I am satisfied that there is no reviewable error on the part of the MRT disclosed by its decision, for three reasons. First, the MRT properly found at paragraph 37 of its reasons that it was bound to cancel the visa once it had concluded that there was a breach of the condition. Secondly, even if there had been a residual discretion, the matters advanced by the applicant were not convincing and it would have been a proper exercise of discretion on the part of the decision maker to decline to accept those explanations. That is what the MRT did at paragraph 36 of its reasons. Finally, the error made by the MRT operated in favour of the applicant.

25. I have considered whether the position could be different depending on what view one takes of the privative clause now existing in the Migration Act. I do not believe that the interpretation of the privative clause contained in s. 474 of the Act has any material bearing on this case, given that I have found that there was clearly a factual basis for the conclusion reached by the MRT that condition 8202 had been breached and given that the matters advanced by the applicant by way of explanation or exculpation for his academic performance could not reasonably have convinced a decision maker to exercise any discretion in his favour if any had existed.

26. Ms Winfield did submit to me that the decision of the MRT was not a decision in substance made under the Act because of errors made by the MRT. She relied on the decision of the Federal Court in Walton v Ruddock [2001] FCA 1839. Alternatively, at my suggestion, Ms Winfield submitted that the decision disclosed a breach of a fundamental condition for the exercise of power by the MRT contained in s.353(2)(b) of the Migration Act.

27. I reject those submissions on the facts of this case. I do not need to make any ruling whether such submissions might on different facts be accepted. On any view the decision of the MRT in this case was not vitiated by legal error. Therefore I must dismiss the application.

28. On the question of costs, in the absence of any particular order the scale set out in schedule 1 of the Federal Magistrates Court Rules 2001 would apply. That would entitle the respondent minister to costs for stage 1, comprising $1820 plus a hearing fee for at least a short mention, plus preparation for a one day of $4090, plus the final hearing costs for a solicitor of $685 for a half day matter. That would produce a costs award well in excess of $6,000, which I am satisfied would be an excessively generous outcome for the Minister in the context of these proceedings.

29. My own assessment is that in matters which are heard in a couple of hours and which are relatively straightforward factually and where the legal issues are relatively straightforward, a taxation of costs in the Federal Court could be expected somewhere in the range of $4,000 to $5,000 and that a similar order should be made by me fixing the costs in that range.

30. This matter in my view falls at the lower end of the range, given the relatively straightforward factual position applying and given that there was no need to have any detailed argument on the operation of the privative clause, the legal issues appearing to be pretty clear cut.

31. I will therefore fix the amount of costs payable by the applicant pursuant to rule 21.02 (2)(a) for the Minister's costs and disbursements of this application in the sum of $4,000.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 June 2002
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