FEDERAL COURT OF AUSTRALIA

Wei v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1552

QIANG WEI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL

NSD 1721 OF 2005

STONE J

1 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal from the judgment of a Federal Magistrate delivered on 22 August 2005.  His Honour dismissed an application challenging a decision of the second respondent, the Migration Review Tribunal (‘the Tribunal’), affirming a decision of a delegate of the first respondent (‘the Delegate’) to cancel the applicant’s Subclass 573 (Higher Education Sector) visa.

Background

2                     The applicant first arrived in Australia on 13 December 2002 as the holder of a Student (Temporary) (Class TU) Subclass 573 visa.  On expiry of his initial visa on 29 May 2003 the applicant was granted a further Subclass 573 visa which was due to expire on 31 March 2006. 

3                     By letter dated 14 July 2004, the applicant’s education provider, Sydney Institute of Business and Technology (‘the Institute’), wrote to the applicant by way of notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) informing him that he had breached a condition of his student visa relating to satisfactory academic performance, namely condition 8202.  Relevantly, the letter provided:

‘Particulars of breach:

…Academic Progress: 2003/01 Yes. 2003/02 Yes, 2003/03 Yes, 2004/01 No. Student has been excluded from [the Institute].

Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28^th day after the date of this notice, unless you report to DIMIA by that time.  The day count begins on the first day after the date of this notice and ends on the 28^th day thereafter.

You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office:

AUSTRALIA (Sydney CBD)

Level 4, 26-30 Lee Street

SYDNEY

NSW 2000

Australia

Telephone: 131881

with photographic identification of yourself (preferably your current passport), and a copy of this notice, to explain the breach of your student visa condition as specified above.  If you fail to bring satisfactory identification to DIMIA, the automatic visa cancellation process will continue and your student visa will be cancelled.

If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or nor to cancel your visa.  Your student visa will not be cancelled if you can show that no breach occurred.’

4                     On 11 August 2004, the applicant approached the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’).  At this time he was given a Notice of Intention to Consider Cancellation.  The notice stated that there were possible grounds for the cancellation of the applicant’s visa.

5                     The applicant attended an interview with the Delegate on 18 October 2004.  At the interview he stated that there were two reasons why his visa should not be cancelled.  First, because he had a ‘sickness in his stomach’, which he had had since he was 12 years old and which causes difficulty sleeping.  Second, that he had ‘tried his best’ at the Institute, however this was not sufficient.  The applicant indicated that he had changed schools and was now doing well.  On the same day as the interview, that is 18 October 2004, the Delegate proceeded to cancel the applicant’s visa for breach of condition 8202(3) pursuant to ss 116(1)(b) and 116(3) of the Migration Act 1958 (Cth) (‘Migration Act’) and reg 2.43(2)(b) of the Migration Regulations 1994 (Cth).

Tribunal’s decision

6                     On 25 October 2004, the applicant lodged an application for review with the Tribunal.  By letter to the applicant’s authorised recipient dated 29 November 2004, the Tribunal invited the applicant to comment on information provided by the Institute to the Department advising that the applicant had unsatisfactory academic results for term 1 of 2004: see s 359A of the Migration Act. 

7                     At the hearing before the Tribunal, the applicant again referred to his health difficulties during the relevant period and his subsequent positive results at the new school.  He also confirmed that he had been advised by the Institute that he could not continue his studies there during 2004.  The applicant indicated that he did not realise that his visa was liable for automatic cancellation for unsatisfactory academic performance and that it had not been explained to him that this was a condition of his visa.

8                     The Tribunal found that the applicant had not achieved an academic result which was certified as at least satisfactory for each semester of his course of study at the Institute.  It noted that he had been advised of this in respect of semester 1, 2004 and that he had failed all subjects (two for the second time) during this semester.  The Tribunal also commented that if a breach of condition 8202 was established, it had no discretion and was bound to affirm the Delegate’s cancellation: see Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 and Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333.  As such, the Tribunal affirmed the Delegate’s decision.

Proceedings in the Federal Magistrates Court

9                     On 27 April 2005, the applicant filed an application for review under s 39B of the Judiciary Act 1903 (Cth) and s 483A of the Migration Act in the Federal Magistrates Court.  The applicant contended that despite the authorities referred to above at [8], s 116 of the Migration Act, when read in conjunction with s 137L, should be construed favourably to visa holders that report to the Department.  In this respect the Federal Magistrate stated at [16] that:

‘In the face of these authorities, the ground for review argued by the applicant in his application cannot succeed.  That ground invited the Court to prefer reasoning of Madgwick J in Shrestha v Minister for Immigration &Multicultural Affairs[2001] FCA 359.  That case concerned an earlier version of the legislation and cannot be applied to the present legislation in the face of the Full Court authorities to which I have referred above.’

10                  His Honour continued at [17]-[18]:

‘The applicant in his submissions to me today made two further points.  First, he complained that the Tribunal did not itself make enquiries with the Institute as to its opinions as to whether the applicant’s results were or were not “at least satisfactory”.  It is true that, on the evidence before me, it made no such enquiry and nor did the delegate.  It is also true that the Institute’s s.20 notice and reporting to the Department did not in terms certify about “an academic result”, although, as I have said above, it contained an implied opinion that results in “2004/01” were unsatisfactory. 

However, I do not consider that the Tribunal had any obligation to make further enquiries in relation to this in the face of the evidence which was before it.  As I have indicated above, authority in the Full Court now is clearly to the effect that the onus is on the applicant to produce the requisite positive certificate.  In circumstances where such evidence as was before the Tribunal, as to the applicant’s results and the opinions of the Institute, pointed almost overwhelmingly against prospects of obtaining such a certificate, I do not consider the Tribunal had any obligation to do more than it did.  That is, to clearly raise the problem with the applicant by way of its s.359A letter.’

11                  The Federal Magistrate also considered the applicant’s claim that he was unaware of the effect of condition 8202.  His Honour stated at [22]:

‘…I am … prepared to assume the truth of the applicant’s statements that the Institute did not discuss with him his results, nor warn him before conveying the s.20 information to the Department.  If this happened, the applicant might have cause for grievance about his treatment at the hands of the Institute.  However, in my opinion, it was not the responsibility of the Tribunal to inform itself about what procedures had been followed by the Institute before bringing his academic progress to the attention of the Department.  I do not consider that any failings of procedural fairness by the Institute in relation to its s.20 notice could vitiate the decision of the Tribunal.  These procedures were, under the legislation, unrelated to the cancellation procedures and decisions taken under s.116…’

12                  As a result, the Federal Magistrate dismissed the application for review.

This application

13                  On 16 September 2005, the applicant filed the present application seeking an extension of time in which to file and serve a notice of appeal from the decision of the Federal Magistrate.  This was three days after the deadline for filing a notice of appeal from his Honour’s judgment; O 52 r 15(1)(a)(i) of the Federal Court Rules. 

14                  Order 52 r 15(2) states that the Court may, for ‘special reasons’, give leave to file and serve a notice of appeal notwithstanding the provisions of O 52 r 15(1).  Generally speaking, there are two considerations to be taken into account in considering whether leave should be granted; first, the reason for the delay in seeking to file a notice of appeal, and second, the issue of the appeal itself and whether such an appeal has any prospects of success; see Jess v Scott (1986) 12 FCR 187; Australian Prudential Regulation Authority v Holloway [2001] FCA 1240; and Howard v Australian Electoral Commission [2000] FCA 1767.

15                  In an affidavit accompanying the present application, the applicant states that on 5 September 2005 he posted to the Court a notice of appeal.  As he had not heard anything by 15 September 2005, he prepared a new application as the Court informed him it had not received the notice of appeal posted on 5 September 2005.  The draft notice of appeal is unparticularised and merely claims that the Tribunal failed to observe the required procedures and its decision involved errors of law.  At the hearing of his application for an extension of time the applicant, who appeared in person with the assistance of an interpreter, was not able to provide any particulars or make any submissions in support of his application.

16                  While I am prepared to accept that the delay in this case is not, of itself, sufficient to warrant the refusal of an extension of time, in my view an appeal, were an extension granted, would stand no prospects of success and consequently there is no utility in allowing the applicant an extension of time to file and serve a notice of appeal.

17                  The applicant’s reliance on Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 359, as the Federal Magistrate noted, flies in the face of later cases of the Full Court of this Court dealing with the legislation as it presently stands.  Further, I agree with the Federal Magistrate that the present circumstances are sufficiently different to those I considered in Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313.  I should also note that this was not a case of automatic cancellation.  As such, any deficiencies with the notice under s 20 of the ESOS Act are not of any present relevance: see Uddin v Minister for Immigration [2005] FMCA 841.

18                  Based on information received from the Institute, the Delegate considered that the applicant’s visa should be cancelled pursuant to s 116(1)(b) of the Migration Act on the basis that she was satisfied that the applicant had failed to comply with condition 8202 in respect of satisfactory academic performance.  On review, the Tribunal found that the Institute had not certified that the applicant had achieved an academic result that was at least satisfactory in semester 1, 2004 and the evidence indicated that this view was not likely to change.  Despite the draconian effect of the breach, in my opinion there is nothing to indicate that the Tribunal’s decision contains jurisdictional error.

19                  For the above reasons, in my view an appeal from his Honour’s judgment would stand no prospects of success and the application for an extension of time must be dismissed with costs.

Associate:

Dated:              1 November 2005