FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1934

YING YING CHEN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD764 OF 2005

EMMETT J

23 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed. 

2.         The appellant pay the first respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     The appellant is a national of the Peoples’ Republic of China.  On 18 August 2003, she applied for a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) (‘the Act’).  On 12 December 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant the visa.

2                     On 7 January 2004, the appellant applied to the second respondent, the Migration Review Tribunal (‘the Tribunal’), for review of the delegate’s decision.  On 29 October 2004, the Tribunal affirmed the decision under review, finding that the appellant was not entitled to the grant of a Student (Temporary) (Class TU) visa.

3                     The appellant then commenced a proceeding in the Federal Magistrates Court of Australia by way of application under s 39B of the Judiciary Act 1903 (Cth) seeking Constitutional writ relief in respect of the Tribunal’s decision.  That proceeding was commenced on 24 November 2004.  On 20 April 2005, for reasons then given, Scarlett FM ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs.

4                     On 18 May 2005, the appellant applied to this Court for an extension of time within which to file and serve a notice of appeal from the judgment of Scarlett FM.  On 7 June 2005, Hely J ordered that the appellant be granted an extension of time and gave directions for the preparation of the appeal for hearing.  On 9 June 2005, the appellant filed a notice of appeal pursuant to Hely J’s order.  The Chief Justice has directed that the appeal be heard by a single judge.

5                     The issue raised in the appeal is a simple one and involves the question of whether or not the appellant has satisfied the criteria in clause 573.212 and clause 573.226 of Schedule 2 to the regulations made under the Act.  Those criteria require that the decision-maker be satisfied that the appellant had complied substantially with condition 8202 of the visa that she then held.

6                     Condition 8202 in the form that was applicable on 19 April 2002, being the date on which the visa held by the appellant was granted, was relevant in the following terms.

(1)        the holder must meet the requirements of subclauses (2) and (3);

(2)        a holder meets the requirements of this subclause if the holder is enrolled in a registered course;

(3)        a holder meets the requirements of this subclause if 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.

7                     In the delegate’s decision of 12 December 2003, the delegate stated the following as the reason for refusing her visa:

‘In a written statement received by this office on 17 November 2003, the University of Western Sydney stated that while Ms Ying Ying Chen was studying at the university, she had failed to meet the minimum progression requirements of her course.  As a result of that she was suspended from her course for two sessions of study. 

As her education provider has certified that Ms Chen did not achieve satisfactory academic results, I find that she does not satisfy criterion 573.212. 

With consideration to the aforementioned information I am therefore unable to be satisfied that the applicant meets regulation 573.226.

...

In view of the findings of fact and the assessment above, I find that the applicant does not satisfy all of the prescribed criteria for any of the subclasses of visa within the Student (Temporary) Visa.  I therefore refuse the grant of a Student (Temporary) (Class TU) visa…’

Those reasons were furnished to the appellant prior to her application to the Tribunal.

8                     On 24 March 2004, the Tribunal communicated with the University of Western Sydney relevantly saying as follows:

‘The Tribunal is currently undertaking a review of a decision to refuse Ms Chen a student visa. 

In order to facilitate the review could you please provide a copy of the students academic records for the whole period she was enrolled. 

Could you also provide the semester dates for the academic years 2001, 2002 and confirm whether Ms Chen was enrolled at your institution in 2002. 

It is the Tribunal’s understanding that the student was suspended from her course as she failed to meet minimum progression requirements, could you please indicate which sessions the suspension corresponds to.’

9                     The University of Western Sydney responded on the same day, relevantly saying:

‘This is to confirm that Ms Ying Ying Chen… was enrolled as a full fee paying student at the University of Western Sydney. 

Ms Chen was enrolled in the Bachelor of Commerce (Accounting) from February 2001.  In February 2002 Ms Chen transferred into the Bachelor of Business (Accounting) and continued in this degree until she was discontinued from the University on 31^st July 2003.  Please see attached transcript. 

The UWS Autumn Semester runs from March until June every year.  The UWS Spring Semester runs from August until December every year.  The UWS Winter Semester runs between June and August and the UWS Summer Semester runs between December and March.’

The academic transcript was attached, the particular details of which are not presently relevant.  Having received that communication, the Tribunal wrote to the appellant on 2 April 2004, relevantly saying:

‘You are invited to comment, in writing, on the following information:

·        You were enrolled in a Bachelor of Business - Accounting course with University of Western Sydney in March 2001.  Academic records from UWS show that you failed all but 1 subject attempted.

·        A statement issued by UWS on 17 November 2003 certified that as your academic performance was unsatisfactory you were suspended from your course for two sessions and you were allowed to reenrol in March 2003.

·        This statement also stated that you were enrolled at the institution from March 2001 to December 2001, which indicates that you were not enrolled in an approved course of study for 2002.

·        In a statement you provided to the Department you admitted that you were not enrolled in an approved course of study from August to December 2002.

The criteria for the grant of a Student (Temporary) (Class TU) visa require that you have complied substantially with the conditions attached to the visas held or last held, by you.  You held a visa subject to the following condition 8202.

…

The above information is relevant to the review because it indicates that you may not have complied substantially with this condition.

…’

10                  The Tribunal received the appellant’s response of 7 May 2004.  The letter relevantly said:

‘Unfortunately I still could not pass MRT’s inspection.  MRT also refuse me to grant a student visa, and MRT sent a letter to me.  Inside the letter, it told me about the condition 8202.  The version of condition 8202 that a holder is enrolled in a full-time course of study, a holder meets the requirement of the subclause that the holder attends for at least 80% of the contact hours scheduled…

During I studied at University of Western Sydney, I am a full-time student and I attend for at least 80% of the contact hours.  I just failed most subjects when I studied at UWS, I could not pass the UWS rule which each person need to pass three subjects in each semester.  But I did not have. 

At UWS, for most subjects I got good marks during the class, but I still failed in the final exam because I did not study hard.  When I failed the final exam, I did not have one more chance.  I have to repeat again.  Thus I studied for a long time and I did not get a certificate. 

In April 2002, my course was suspended for one semester; This was started from August until March 2003.  UWS staff told me that I could reenrol in March 2003.

In March next year I came back and knew I could not reenrol; the UWS just refused my reenrol and said nothing.  I didn't know how to do but I knew I could not just wait and I could not cancel my study again.  So I changed the school to CSU.

…’

11                  In its reasons of 29 October 2004, the Tribunal referred to the correspondence and the study history of the appellant in Australia.  The Tribunal was satisfied that the course being undertaken by the appellant at the University of Western Sydney during the period of the last held student visa was a course that runs for at least a semester.  The Tribunal was satisfied that the University of Western Sydney has divided the course into semesters and that, accordingly the appellant was required to satisfy condition 8202(3)(b)(ii).  The Tribunal observed that there was an absence of any certification from the University of Western Sydney that the appellant had achieved academic results that were at least satisfactory for each semester of her course at the University of Western Sydney, in the period of her last held student visa.

12                  The Tribunal found that the evidence from the University of Western Sydney showed that it had suspended the appellant on the basis of her unsatisfactory academic results and that she had failed all but one out of nine subjects in 2001 and had not passed any subject in 2002.  The Tribunal found that there was no certification by the University of Western Sydney that the appellant's academic results were at least satisfactory for each semester of her course in the relevant period.  On that basis, the Tribunal found that the appellant had breached condition 8202(3)(b). The Tribunal therefore found that the appellant had not complied substantially with the conditions of her last held student visa and that accordingly she failed to satisfy clause 573.212, an essential criterion of the grant of a subclass 573 visa.

13                  In her application to the Federal Magistrates Court, the following ground was stated:

‘The Tribunal failed to consider the terms of the contract or against the terms of the contract which is subject to the relevant legislations and common law in the NSW State jurisdiction the education provider operates in, that governs the foundation of relationship that exists between the student and his education provider. 

Particulars:

(a)  Failure to consider what the terms of the contract between the applicant and his education provider on key issues for determining whether the applicant is enrolled, when and where he should attend studies, and what his academic performance should be,

(b)  Failure to ask itself whether the applicant’s past contract does in fact stipulate that he had to undertake 9 subjects in the semester or term and that he must pass more than one.’

14                  In his careful reasons of 20 April 2003, Scarlett FM dealt with that question by observing that failure means what it says on its face.  Whether or not the appellant was enrolled at the University of Western Sydney made no difference when there was clear evidence from the university that she had failed eight out of nine subjects.  His Honour observed that failure indicated that a student has not met the academic requirements and made satisfactory progress.  His Honour referred expressly to the requirements to condition 8202 that a student must be able to provide a certificate from the education provider that the student has made satisfactory education progress and that satisfaction must be the satisfaction of the education provider. His Honour referred to the observations made in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238.

15                  In the notice of appeal to this Court, the grounds of appeal are stated in the following terms:

‘1.        His Honour erred in finding that [the Tribunal] was not obliged to make independent inquiries as to the existence of any contract between the appellant and the education provider and, if such contract existed, to obtain and construe it in relation to issues of enrolment and performance.

2.         His Honour erred in finding that a letter and an attached transcript to [the Tribunal] from the University of Western Sydney dated 24 March 2004 “does not say anything about her enrolment and the status of her enrolment during the period of suspension”.’

16                  Counsel for the appellant accepted that, if the Court was not persuaded that there was an error in relation to condition 8202(3), it is of no consequence whether there was any error in relation to condition 8202(2).  Both subclauses of condition 8202 must be satisfied.  I consider that the ground upon which the finding in relation to condition 8202(3) was impugned is misconceived.

17                  It is clear from the terms of condition 8202(3) that the relevant criterion is whether there has been an academic result, certified by the education provider, which has been at least satisfactory for each term or semester of a relevant course.  The complaint that is made is that it was incumbent upon the Tribunal to make some further inquiry of the University of Western Sydney beyond that of 24 March 2004, to ascertain the contractual relationship, if any, that existed between the appellant and the University of Western Sydney in order to determine whether under the terms of that contractual arrangement the appellant had achieved an academic result that could in some way be characterised as at least satisfactory.

18                  Where it is obvious that a decision-maker proceeds to make a decision without making any attempt to obtain readily available, centrally relevant information, may well be an exercise of the decision-maker’s power in a manner so unreasonable that no reasonable person would have so exercised it (see Prasad v Minister for Immigration & Ethnic Affairs) (1985) 65 ALR 549.  However, that principle has no application in the present circumstances for two reasons.

19                  First, it is clear that the appellant was informed in unequivocal terms that the question that concerned the Tribunal was whether or not she satisfied condition 8202(3)(b).  the appellant in fact responded in a way which, if anything, confirmed that her academic results were anything but satisfactory.  I do not consider that any criticism can be addressed to the Tribunal for failing to make an inquiry of the University of Western Sydney as to the terms of any contract between it and the appellant.

20                  Secondly, if there were any relevant terms, the appellant had ample opportunity to put them before the Tribunal.  In any event, it is not for the Tribunal to ask for additional material.  In circumstances where the Tribunal had before it the academic transcript and statements from the University of Western Sydney concerning the unsatisfactory progress of the appellant, it is clear that condition 8202(3)(b) was not satisfied.  It is clear that the appellant had not achieved an academic result that was certified by the University of Western Sydney to be at least satisfactory for each term or semester of her course.

21                  I do not consider that there was any error on the part of Scarlett FM.  It follows that the appeal must be dismissed.

Associate:

Dated:              31 January 2006