FEDERAL COURT OF AUSTRALIA

Ji v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 207

CHANGYU JI  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 962 of 2003

RYAN J

9 MARCH 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     There is before the Court an application by the applicant, who appears in person, with the assistance of an interpreter and a McKenzie's friend, for an order of review of a decision of the Migration Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent Minister to cancel the applicant's Student (Temporary) (Class TU) (Vocational, Education and Training Sector) Visa, subclass 572 ("the visa").  The grounds of the application, apparently drawn by the applicant himself, are:

‘The applicant was not afforded natural justice.  It is not fair and reasonable in addition, the applicant didn't receive any notification from MRT regarding the hearing which was conducted on 20 August 2003.  The applicant claims, provided he has another chance he should be able to lift his performance at school and meet the requirements set forth by condition 8202.’

2                     The applicant has been in Australia since 20 May 2000.  He held a succession of student visas and a bridging visa, before the visa was granted on 7 June 2002.  At that time he was undertaking a course leading to a Diploma of Information Technology at Monash College (“Monash”).  He had commenced the course on 4 March 2002 and, had he completed it in minimum time, would have satisfied the requirements for the diploma by the end of Semester 2 (31 December 2002).  However, in Semester 1 he failed all four subjects in which he had enrolled, and in Semester 2 he failed in all three subjects in which he had enrolled, including two from Semester 1 which he had repeated.

3                     Accordingly, Monash issued him with a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth), notifying him that his visa was likely to be cancelled for unsatisfactory academic performance.  The applicant was given 28 days to explain his apparent breach of a condition of his student visa.  On 9 January 2003 the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") wrote to the applicant advising him of his non-compliance with condition 8202 of his student visa, which, the letter said, "might afford a ground for cancellation" of his visa under s 116 of the Migration Act 1958 (Cth) ("the Act").  The applicant replied as follows, by letter dated 16 January 2003:

‘I am writing regarding my academic performance at Monash College.  I am very sad and disappointed about my academic results, but I have reviewed what I did and learnt that two main reasons causing this failure. 

One is the requirement of the Monash College is too high.  For example, there are 42% of students failed Marketing subject.  Also, it was common that the teaching staff and students didn't understand each other's expectation.  In semester one, I wasn't aware of the assignment requirements, even the format.  I still used my high school report writing style.  This led to 3 assignments' failure. 

Another reason is that my English language ability is not strong enough to cope with the difficulties of the course.

After my initial arrival in Australia in May 2000, I studied at Parkdale Secondary College.  The college didn't send me for any English language course.  They arranged me to study Year 11 with a language aide.  So, my English foundation was very weak.  With one and a half year's hard working, I successfully obtained a place in Diploma of Business at the Monash College.  My attendance at Parkdale Secondary College was 96%.

In 2002 I studied Diploma of Information Technology,(Business System) at Monash College.  My overall attendance was over 80%. 

In the first semester I took 4 subjects.  I found that the study was very demanding.  The teacher covers a lot of content each lesson and required us to do a great deal of private reading.  Also, the assignments were huge tasks for me  As my English was not adequate to cope with it, I fell behind dramatically.  Though I spent at least three to five hours to study in private, I still found it difficult to catch up.  So I failed four subjects due to the high standard of the college and my poor English language skills.

In semester two, I took three subjects and made up my mind to study harder.  For two subjects - Business Statistics (45) and Business Application (41), I have improved my results greatly comparing to semester one.  But very unfortunately, I still did not pass. 

For the 3^rd subject, Managerial Communication, I was so in hurry and forgot to bring my purse with on the exam.  So the staff was checking ID and I was forced to leave the classroom.  I was asked to go home to bring the ID, but it would take 45 minutes for one trip and at least 1.5 hours to fetch my ID.  Even I came back with the ID, there was no time left for me to do the examination.  So I didn't sit for the final exam and I got 36 out of 60 for assignment and class performance.

I had a very bad year in my school life.  But I didn't give up my study.  I still want to continue my study in Australia.  I want to go to a second-class college to adapt myself better to Australian higher education system and achieve a better result in 2003.  Comparing two semesters' results, it was apparent that I have made a big progress.  Please give me the opportunity to complete my study in Australia. 

I wish that the Department of Immigration not to cancel my student visa and I will treasure the last opportunity and achieve satisfactory academic results.’

4                     At an interview with a delegate of the Minister on 17 January 2003, the applicant repeated the assertions set out in that letter, adding that local Australian students were given additional help and were able to continue their studies elsewhere more easily.  At the conclusion of the interview, the delegate cancelled the applicant's visa under s 116(1)(b) and s 116(3) of the Act.  The applicant applied to the Tribunal for a  review of the cancellation of his visa, and in the body of his application recited:

‘I don't agree with the decision to cancel my student visa.  The standard and requirement of Monash College are too high.  And my English was a bit too weak.  This takes time to improve.  The case officer didn't care about my personal situation and some circumstances badly affecting my exam results.  Actually I am a genuine student and my attendance was always very good.  The cancellation of my student visa will totally destroy my education and my future career.  It is a disaster for me and my family.  Please don't cancel my visa.  I will study a lot harder this year to achieve a satisfactory result.’

5                     On 6 May 2003 the Tribunal sent the applicant a letter by way of complying with s 359A of the Act and, in response, the applicant, by letter of 12 June 2003, essentially repeated the substance of his letter to the Department of 16 January 2003, which I have already quoted.  His later letter also included this allegation about the marking system at Monash:

‘Actually I think the marking system has some problems.  The college always set a certain percentage of failure rate.  To reach the set rate, the teacher has to be tough when marking paper.  In February this year, I went back to Monash College and requested to view my exam papers.  The administrative staff refused my request.  This deepened my suspect of the unfair marking in Monash College.  Also, my friend has his mark changed from 40 something to pass after viewing the exam paper.  Therefore I wish the Tribunal can investigate this and make a favourable decision on my application.’

6                     The hearing before the Tribunal was scheduled for 23 July 2003 but the applicant sought, and was granted, an adjournment, on production of a medical certificate that he had sustained a back injury.  He was then advised by letter dated 31 July 2003 that the hearing had been re-scheduled for 20 August 2003.  The applicant asserts that he did not receive that letter and consequently did not attend the adjourned hearing.  The Tribunal proceeded in his absence to refuse his application for review, noting that s 116(1)(b) of the Act conferred a discretion on the Minister to grant a visa if he or she is satisfied that "its holder has not complied with a condition of the visa".  It was also noted that s 116(3) of the Act provides;

‘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.’  (emphasis added)

7                     Regulation 2.43(2)(b) of the Migration Regulations 1994 sets out the prescribed circumstances in which a visa must be cancelled.  Paragraph (b) includes, among those circumstances;

‘For subsection 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:

(i)        condition 8104 or 8105 (if the condition applies to the visa);  or

(ii)       condition 8202.’

8                     Condition 8202 stipulates that:

‘(1)      The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa must meet the requirements of subclauses (2) and (3).

(2)       A holder meets the requirements of this subsection if:

(a)        the holder is enrolled in a registered course;  or

(b)       in the case of a holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student - the holder is enrolled in a full-time course of study or training.

(3)       A holder meets the requirements of this subclause if:

(a)       in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(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 and semester of the course;  and

(b)       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.’

9                     The Tribunal appeared to conclude that the applicant's failure to meet the requirement in condition 8202(3)(b) had the effect that cancellation of his visa was mandatory.  Support for that view was derived from the judgment of Emmett J in Minister for Immigration and Multicultural and Indigenous Affairs v Nguyen [2002] FCA 460, and of Conti J in Minister for Immigration and Multicultural and Indigenous Affairs v Hou [2002] FCA 574.

10                  As there has never been a suggestion that Monash had certified, or would certify, the academic results achieved by the applicant in either Semester 1 or Semester 2 of 2002 to have been at least satisfactory, the conclusion reached by the Tribunal is, in my view, unexceptionable and the only one at which it could have arrived.  It follows that, even if at some point in the process there had been some failure to accord procedural fairness to the applicant (and I do not find that there has been such a failure), it could not avail the applicant;  see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384, where Toohey and Gaudron JJ said:

‘For an error of law to be involved in a decision, something more than the mere occurrence of error is necessary.  The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute.  Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error.

Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.  This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond.  See Kioa v West (1985) 159 CLR 550 at 603.

11                  I accept the applicant's claims that the training in English which he has received since arriving in this country has been less than satisfactory, and that his marks in the second Semester at Monash, although still not at pass level, markedly improved on those obtained in Semester 1.  However, like the Tribunal, the Court has no discretion, in the absence of a certificate from the course provider of an academic result that is at least satisfactory, to set aside the cancellation of a visa of the present kind.

12                  It seems that a consequence of the cancellation of the applicant's last substantive visa may be that he is precluded, by force of s 48 of the Act, from obtaining a fresh student visa while remaining in this country.  I am not to be taken as holding that there is no residual discretion in the respondent Minister to override what appears to be an absolute statutory bar, but that question is outside the review function reposed in this Court.  For the reasons which I have explained, the application must be refused, with costs.

Associate:

Dated:              9 March 2004