FEDERAL COURT OF AUSTRALIA

Patsanza v Minister for Immigration & Multicultural Affairs [2001] FCA 734

Migration Act 1958 (Cth)

Nguyen v Minister for Immigration and Multicultural Affairs (2000) FCA 1285

Peng v Minister for Immigration and Multicultural Affairs (2000) FCA 1672

SHEPHERD JOSEPH PATSANZA v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

S 102 OF 2000

MANSFIELD J

ADELAIDE

1 JUNE 2001

THE COURT ORDERS THAT:

1.         The application is dismissed.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) given on 30 August 2000.  The Tribunal affirmed a decision of a delegate of the respondent made under s 16(1) of the Migration Act 1958 (Cth) (“the Act”) to cancel the Student (Temporary) (Class TU) Subclass 560 (Student) Visa (“the visa”) granted to the applicant.  That visa was granted on 1 July 1999 and was valid until 29 February 2000.  It entitled the applicant to enter Australia for the purposes of undertaking a course of study at the University of Adelaide. 

2                     The letter of offer made to the applicant by the University of Adelaide dated 7 May 1999, by an attached schedule, indicated to him that he would be obliged to undertake a Foundation Studies Program and satisfactorily complete it before he would be entitled to undertake a course of study leading to a Bachelor of Commerce degree provisionally offered at the University of Adelaide.  That schedule identified the Foundation Studies Program as being at the city campus of Eynesbury College, to be completed by 28 January 2000.  It also identified the tuition fee to be $A9750, of which $A4875 was payable prior to the issue of the visa and the balance on 6 October 1999.

3                     Although the applicant in his submission to the Court today suggested that there was some confusion in his mind, and perhaps in the minds of those who were intending to support him financially during his studies, as to whether he was required to undertake that Foundation Studies Program, or as to the obligation to pay the costs involved, the Tribunal expressly found that the applicant was not confused about those matters.  The applicant has not indicated any reviewable error on the part of the Tribunal in reaching that conclusion.

4                     The applicant arrived in Australia on 6 July 1999.  He then commenced the Foundation Studies Program at Eynesbury College.  He did not pay the fees outstanding of $4875 payable on 6 October 1999.  Eynesbury College brought that non-payment to the attention of the respondent’s officers.  Lest it be thought that that involved some callous indifference on the part of Eynesbury College, it is plain from the communication to the Department of Immigration and Multicultural Affairs that the co-ordinator of the Foundation Studies Program was concerned about the wellbeing of the applicant, because not simply had he not paid those monies, but had needed to have advanced to him monies by the college for his own sustenance and support.

5                     The applicant acknowledges that the outstanding fees were not paid on 6 October 1999, nor on 23 November 1999 when, following an interview with a delegate of the respondent, his visa was cancelled.  He was duly notified of that cancellation on that date.  The delegate’s notices to the applicant under s 116 of the Act of the intention to cancel the visa, and subsequently of the decision to cancel the visa, identify s 116(1)(a) of the Act as the provision under which that cancellation was made.  That, in my view, is clearly in error.  The appropriate provision is s 116(1)(b).  It is in error because the grounds for cancellation are expressed to be that the applicant has not met the course fees; a matter which clearly attracts the operation of s 116(1)(b).  That is not a matter which gives rise to a ground of review on this application, as it is the Tribunal’s decision which is under review.  The Tribunal’s decision was based upon the ground of cancellation under s 116(1)(b) of the Act.  As the Tribunal exercises all the powers and discretions conferred by the Act upon the initial decision-maker in conducting its review:  see s 349(1), in my view that error of expression on the part of the decision-maker does not have any consequence.  I am not to be taken as indicating that necessarily the decision of the delegate was in the circumstances an incorrect one.  I have not heard argument on the point.  Where the foundation of the decision is clearly identifiable from the material to which the decision-maker refers, a slip in the reference to the correct subsection of s 116(1) may not vitiate the decision.  However, for reasons which I have given I do not need to determine that question.

6                     Following the cancellation of his visa, the applicant applied to the Tribunal for review of that decision.  He was then granted a bridging visa and has continued his studies in Australia.  At present he remains in receipt of a bridging visa pending the hearing and determination of this application.  As I have noted, on 2 August 2000, the Tribunal affirmed their decision to cancel the visa.  He then applied to the Court to review the decision of the Tribunal.  The applicant has sought on three occasions to have the hearing by the Court deferred.  At a directions hearing on 5 December 2000, the Court intimated that the matter could be listed for hearing in February 2001. 

7                     The applicant urged the Court to adjourn the hearing to a much later date on the basis that he had been unable to secure legal representation, and expected to receive from his family in Zimbabwe some $A5,000 to $A6,000 by about the end of May 2001.  Although the respondent then opposed the application to defer fixing a hearing date until after, the Court acquiesced in his request and fixed a hearing date for June 2001.  On 9 May 2001 the applicant then applied to have that hearing date vacated to later in the year.  He claimed that, due to the shortage of foreign currency in Zimbabwe, his family and friends had been unable to provide him with the funds necessary for legal representation, and that he expected that he would receive those funds in August 2001 when foreign currency would again be available in Zimbabwe.  That application was refused on 11 May 2001 for reasons given at the time and the hearing date for 1 June 2001 confirmed. 

8                     On 25 May 2001, the applicant again applied by motion to have the hearing date vacated.  On this occasion he sought the hearing for a date towards the end of October or in November 2001.  His ground of application was the same, namely, the shortage of foreign currency in Zimbabwe making it impossible for his family and friends in Zimbabwe to provide him with the funds necessary for legal representation.  He asserted that his family in Zimbabwe would be able to send the required amount in October.  In support of that assertion, he provided a letter from his mother dated 10 May 2001 in the following terms :

“I refer to the above matter and wish to advise that due to severe foreign currency in Zimbabwe I am afraid I might not be able to send AUD6,000 in time for the hearing set down for 8 June 2001.  But, however I and my family with friends are hopeful that we will be able to send the amount of AUD6,000 in about October 2001.  Kindly therefore bear with me over the above issue.”

There was a further document exhibited to his affidavit, but it does not touch upon that issue. 

9                     At the commencement of the hearing today that motion was first heard.  I indicated that I would refuse the application to vacate the hearing date today.  In my judgment the applicant has not made out sufficient grounds to vacate the hearing date.  He has now had some eight months since this application was instituted within which to procure funding for legal representation.  He has been, I accept, unable to procure funding from his family overseas to do so.  However, I do not have any confidence on the material before me that a further delay of this hearing, for what would be a further period of about five months or more, will lead to the situation being any different.

10                  In January he indicated to the Court that he expected those funds to be available by about May; they were not forthcoming.  The present letter from his mother is expressed in terms of a “hope” rather than with any degree of confidence or at least in terms in which the Court can confidently expect and could find that those funds would be available to the applicant later in the year.  The terms of the letter from his mother do not indicate that the money is available, that is that the family has the funds and it is a matter of being able to convert them to foreign currency.  The expression, “I and my family with friends” does not indicate to me that the funds are, in fact, available, nor does the expression of hopefulness indicate to me any foundation for a firm and confident finding that a further adjournment of the hearing will mean that the hearing can proceed in October or November with the applicant legally represented.  There is, in my view, a clear and real risk that the situation which faced the applicant in December 2000, when a February hearing date was mooted, and in May 2001, will again simply recur in October 2001. 

11                  On the other hand, the respondent, through his delegate, has made a decision as long ago as 23 November 1999.  The respondent itself has interests in ensuring that matters before the Court are expeditiously dealt with, and indeed the Court too has an obligation to ensure, so far as practicable and in the interests of justice, that matters proceed expeditiously.  In those circumstances, I refuse the application for the adjournment.

12                  I turn to consider the merits of the application.  The applicant is a young man from Zimbabwe.  I have referred to the circumstances in which he came to Australia above.  I note that in 2000, and apparently continuing, he enrolled at the University of South Australia for a degree course, that the fees have been paid, and that he is attending lectures and meeting his course requirements.  He is now in receipt of a scholarship from the Government of Zimbabwe and is also supported by a church there.  However, as the Tribunal found, those matters are really incidental to the decision under review. 

13                  Section 116(1) provides :

“(1)     Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that :

(a)       any circumstances which permitted the grant of the visa no longer exist;  or

(b)       its holder has not complied with a condition of the visa;  or

(c)        another person required to comply with a condition of the visa has not complied with that condition;  or

(d)       if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared;  or

(e)        the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community;  or

(f)        the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth;  or

(g)       a prescribed ground for cancelling a visa applies to the holder.

(2)       The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

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

14                  The power to impose conditions upon the grant of a visa is contained in s 41(1) of the Act.  The applicant’s visa, by virtue of subparagraph 560.611(1)(a) of the Migration Regulations imposed condition 8202 upon the visa.  Condition 8202 is in Schedule 8 of the Migration Regulations.  It was in the following terms at the relevant time :

“The holder must:

(a)       be enrolled in a registered course;  and

(b)       attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise;  and

(c)        if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory;  and

(d)       comply with any requirement of the education provider in relation to payment of fees for the course.”

In particular, I note that the applicant as the holder of the visa was required to comply with any requirement of the education provider in relation to the payment of fees for the course. 

15                  Finally, it is necessary to refer to reg 2.43(2)(b) which provides that for the purposes of s 116(3) of the Act, the Minister must cancel a Student (Temporary) (Class TU) visa where the Minister is satisfied that the visa holder has not complied with condition 8202.  Section 116(3) of the Act set out above obliges the Minister, where he is empowered under s 116(1)(b) to cancel a visa for noncompliance with a condition, to cancel that visa if there exists prescribed circumstances in which the visa must be cancelled.  Regulation 2.43(2)(b)(ii) has the effect that noncompliance with condition 8202 is such a prescribed circumstance.  Effectively, the legislative and regulatory regime means that the Minister or his delegate was obliged to cancel the applicant’s visa if he had not complied with a requirement of the education provider in relation to payment of fees for the course.  Upon  review, the Tribunal standing in the shoes of the original decisionmaker was also obliged to give effect to those provisions.

16                  The Tribunal found that the applicant had not complied with condition 8202 of his visa in that he had not paid his course fees as required by the education provider, that is Eynesbury College.  Accordingly, as it was obliged to do under the Act and Migration Regulations, it affirmed the decision to cancel the applicant’s visa.  It had no discretion in the matter, in the light of that finding of fact. 

17                  There is nothing in the submissions that are put on behalf of the applicant to challenge the view taken by the Tribunal as to the proper operation of the Act and the Migration Regulations, in particular the interaction of s 116(1)(b) of the Act and reg 2.43(2)(b)(ii) of the Migration Regulations, where there has been noncompliance with a provision of condition 8202 of a visa.  In my view, the view taken by the Tribunal is correct.  It is a view consistent with the view taken by Hely J in Nguyen v Minister for Immigration and Multicultural Affairs (2000) FCA 1285 at [6 - 7], and in Peng v Minister for Immigration and Multicultural Affairs (2000) FCA 1672 at [16 - 18].

18                  The applicant on this application did contend that both the delegate of the respondent and the Tribunal had erred in finding that he had not complied with a requirement of the education provider in relation to the payment of fees for the course.  He said that the first semester fees had been paid (presumably meaning the first half of the fee fixed for the Foundation Studies Program) and that the second semester fees were not due.  However, the Tribunal has positively found on the evidence that the applicant had not paid his course fees as required by condition 8202(d) of the Migration Regulations.  In my view, it is not shown to have been wrong in that conclusion.  Indeed, by reference to the Foundation Studies Program schedule to which I referred earlier, in my judgment the Tribunal made a correct decision on that question, as the balance of the course fees were in fact due on 6 October 1999.  That is confirmed also by the communication from the coordinator of the Foundation Studies Program to the delegate of the respondent of 22 October 1999.

19                  The application for review to this Court identifies four grounds of review but without any particularity.  Nor has the applicant, on the hearing of this application addressed those four matters.  I can deal with them shortly.  It is said that the decision of the Tribunal was an improper exercise of the power conferred by the Act and Migration Regulations in that it was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the applicant’s particular case, thus identifying s 476(1)(d) and s 476(3)(b) as the foundation of that ground of review.  Nothing has been put to me upon which that ground of review could be made out.  As I have indicated, in my judgment the legislative and regulatory regime left the delegate of the respondent, and on review the Tribunal, with no discretion once the finding of fact was made that there had not been compliance with paragraph 8202(d) of the condition.  It is then said that there was no evidence or other material to justify the making of the decision, in that the person who made the decision based the decision on the existence of a particular fact and that fact did not exist:  see s 476(1)(g) and s 476(4)(b).  The only particular fact to which the applicant referred in his contentions was that relating to the question of whether he had in fact paid the fees as required by Eynesbury College, the education provider.  I have referred to the material upon which the Tribunal’s finding of fact was based.  I do not think that that ground of review has been made out.  It is then contended that procedures required by the Act or Migration Regulations to be observed in connection with the making of the decision were not observed:  s 476(1)(a).  Nothing has been identified as giving rise to that alleged failure.  I do not think that ground of review has been made out.  Finally, it is contended that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law to the facts as found by the person who made the decision:  s 476(1)(e).  For reasons which I have already given, in my view no error of law has been established on the part of the Tribunal.

20                  In my judgment the application must be dismissed and I so order.

Associate:

Dated:              1 June 2001