FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1484

MIGRATION – appeal from Migration Review Tribunal – cancellation of visa – delegate of the Minister for Immigration & Multicultural & Indigenous Affairs found applicant in breach of Condition 8202 which required the applicant to attend at least 80% of contact hours at school – substantial compliance with Condition 8202 is not sufficient

Migration Act 1958 (Cth) s 166

Migration Regulations 1994 (Cth) reg 2.43

Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238

JIA CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2541 OF 2003

BENNETT J

9 DECEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     By application filed on 23 December 2003, Jia Chen (‘the applicant’) seeks judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth), of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 28 November 2003.  The Tribunal’s decision was to affirm a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) to cancel the applicant’s Student (Temporary) (Class TU) Visa.

Background

2                     The applicant, a national of the People’s Republic of China, arrived in Australia on 19 April 2002 on a Student (Temporary) (Class TU) visa which was valid until 15 March 2004 (‘the applicant’s visa’).

3                     The applicant’s visa was subject to conditions, including Condition 8202 of Schedule 6 of the Migration Regulations (‘the Regulations’).  Condition 8202 relevantly included a requirement that the Minister be satisfied that the visa holder attends at least 80% of the contact hours of the course in which the visa holder is enrolled.

4                     The version of Condition 8202 which applied on 2 April 2002, being the date on which the applicant’s visa was granted, is set out in the decision of the Tribunal.  On 6 February 2003, the applicant was sent a Notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) from his education provider, The Meridian International School (‘Meridian’), stating that his attendance for term 4 of 2002 was 78%.

5                     On 21 February 2003, the applicant was given a Notice of Intention to Consider Cancellation (‘the Notice’) of his visa under s 166 of the Migration Act 1958 (Cth) (‘the Act’) and reg 2.43 of the Regulations on the grounds that he breached Condition 8202.  The Notice stated that the particulars of the breach were that the applicant had failed to maintain 80% attendance for his course in term 4 of 2002.  An interview was arranged for 4 March 2002, and rescheduled to 18 March 2003.

6                     Section 116 of the Act relevantly provides as follows:

‘(1)      Subject to subsections (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 subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’

7                     Regulation 2.43(2) of the Regulations relevantly provides as follows:

‘(2)      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:

            …

(ii)                Condition 8202’

8                     On 11 April 2003, a delegate of the Minister (‘the delegate’) decided to cancel the applicant’s visa on the basis that he failed to maintain 80% attendance for his course in term 4 of 2002.

9                     On 15 May 2003, the applicant lodged with the Tribunal an application for review of the delegate’s decision.  The Tribunal’s jurisdiction to review the delegate’s decision is not in issue in these proceedings.

The Tribunal proceedings and decision

10                  The Tribunal ascertained from Meridian, inter alia, that the applicant had attended 78% of the scheduled classes in term 4 of 2002 (14 October 2002 – 20 December 2002). The Tribunal invited the applicant to comment on this information.  The Tribunal convened a hearing on 5 November 2003 at which the applicant gave oral evidence.  The Tribunal also had before it material from the applicant’s migration adviser.

11                  In his evidence and submissions before the Tribunal the applicant accepted that his attendance was below 80% for term 4 of 2002.  His case before the Tribunal was that his poor attendance was justified for two reasons.  The first reason was that he was scared to go to school because some other students had threatened him because he was wealthy.  The second reason was that he had stomach problems.

12                  The applicant said that he has had a painful stomach problem all his life.  The applicant said that he could not recall the dates when this prevented him from going to school.  He did not see a doctor because he has had this illness since he was young and he has his own medication for it.  He was homesick at the time, and this affected his stomach.  The applicant said that he would not be able to find receipts from any doctors.

13                  The Tribunal considered all of the material before it, including the oral and written evidence and submissions by the applicant and made the following findings:

(a)        the delegate had followed all of the relevant procedures in subdivision E of the Act in relation to visa cancellations under s 116 of the Act – this aspect of the decision does not appear to be challenged by the applicant;

(b)        the Tribunal accepted the evidence from the applicant’s education provider which established that the applicant did not attend for at least 80% of the contact hours scheduled for his course for term 4 of 2002;

(c)        the Tribunal was not satisfied that any threats made to the applicant constituted a reason for his non-attendance and said ‘the review applicant has not provided confirmation of any absences for medical reasons during Term 4, 2002’.  It did not say what the consequences, if any, of this absence of confirmation were.

14                  The Tribunal accordingly found that the applicant had breached Condition 8202 and that, by reason of s 116(3) of the Act and reg 2.43 of the Regulations, it was bound to affirm the delegate’s decision to cancel the applicant’s visa.

The applicant’s grounds of challenge

15                  The Application identifies the following grounds of challenge to the Tribunal’s decision:

(a)        the Tribunal ignored parts of the applicant’s claims;

(b)        the Tribunal ignored relevant material; and

(c)        the Tribunal reached a decision that could not reasonably be reached.

16                  The applicant has provided no particulars of the parts of his claims or the “relevant material” that he contends the Tribunal ignored.  The applicant has filed no written submissions as required by directions made by the Court.

17                  At the hearing before me, the applicant appeared in person, assisted by an interpreter.  The applicant had previously appeared when the matter was fixed for hearing and orders were made by consent, including orders as to the filing of an amended application and written submissions.  Nothing was received from the applicant.  When asked why this was so, he said that he had shown the orders to his migration agent.

18                  The applicant, when asked to identify any error on the part of the Tribunal, said that he explained why he had not attended 80% of the classes, that his reasons were sufficient and supported by evidence and that the Tribunal had ignored his evidence and had not given reasons for rejecting his reasons for non-attendance.  When pressed as to whether he had put in issue before the Tribunal the fact of less than 80% attendance in term 4 of 2002, the applicant said that, had he attended 80% or more of the classes, he would not have appealed to the Tribunal and that when he was before the Tribunal he had mentioned that 78% was close to 80% attendance.  I took that to mean that he had not challenged the point that he attended less than 80% of the classes.

Consideration

19                  The Tribunal did not ignore any parts of the applicant’s claims or any other “relevant material” that it was bound to consider in the exercise of its jurisdiction.

20                  The Tribunal correctly identified and applied the relevant legislation and case law in relation to the cancellation of the applicant’s visa.  The delegate had found that the applicant had not complied with Condition 8202 because Meridian had advised that he had failed to maintain 80% attendance for term 4 of 2002.  The Tribunal identified the issue as whether there had been non-compliance with Condition 8202.  The Tribunal accepted the attendance details provided by Meridian and found that the applicant did not attend for at least 80% of the contact hours for term 4 of 2002.  It is clear that the evidence of 78% attendance in term 4 of 2002, as set out in the facsimile from Meridian to the Tribunal, was not questioned by the applicant and was accepted as stating the true position.  Accordingly, there was a breach of Condition 8202.  That finding was available to the Tribunal on the evidence before it.  The Tribunal held that it did not have any discretion to set aside the visa cancellation where there had been a substantiated breach of Condition 8202 and that it was bound, by the operation of s 116(3) of the Act, to affirm the visa cancellation.

21                  The Tribunal complied with all relevant provisions of the Act in relation to the conduct of the review and there was no denial of procedural fairness.  The applicant does not contend otherwise.

22                  The Tribunal did refer to the reasons advanced by the applicant for non-attendance.  It did not accept that any threats made to the applicant were a reason for his non attendance.  It gave reasons for that view.  As to the second reason, the applicant’s medical complaint, in my view the Tribunal failed to give reasons for rejecting that as a cause of non-attendance.  The applicant explained, as part of his claim, that his medical condition was such that it was not susceptible to medical treatment so that he did not see a doctor for it.  The only statement by the Tribunal in respect of this claim was ‘The review applicant has not provided confirmation of any absences for medical reasons during Term 4, 2002’.  In my opinion, this does not amount to a determination of that part of the claim.  If reasons for non-attendance were to be taken into account or if the Tribunal were exercising a discretion in deciding whether to affirm the visa cancellation, I would find that there had been a constructive failure to exercise jurisdiction.

23                  However, this aspect of the Tribunal’s decision is not relevant.  With respect to Condition 8202(3), the visa holder either meets the requirements or does not.  If not, the holder will have breached Condition 8202 (Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 (‘Tian’). 

24                  In Tian the Full Court considered whether, on the true construction of Condition 8202, the appellant only needed substantially to comply with the condition rather than to strictly comply with it.  In particular, the Full Court considered whether the condition was satisfied if there had been substantial compliance or whether the circumstances surrounding the non-attendance were reasonably beyond the  student’s control.  The Court held at [66]:

‘Section 116(3) does not permit the Minister to exercise any discretion at all.  If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa.  In our opinion, the words of the section are clear.  The subsection is mandatory.  No discretion arises if the prescribed circumstances referred to in s116(3) and provided for in regulation 2.43(2) exist.  The Minister must cancel the visa.  Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.’

25                  Although the Tribunal failed properly to consider one of the applicant’s claims, that failure was not relevant to the Tribunal’s decision to affirm the decision of the delegate.

26                  In my view, it is most unfortunate that the applicant should face deportation when his attendance was not substantially less than that required.  However, the application must be dismissed with costs.

Associate:

Dated:              9 December 2004