FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration and Citizenship [2007] FCA 1188

MIGRATION LAW — appeal from decision of Federal Magistrate affirming decision of Migration Review Tribunal — breach of condition 8202 — student visa cancelled on ground of failure to be enrolled in a registered course — application for leave to argue grounds not before Federal Magistrate — whether futile to grant such leave

Education Services for Overseas Students Act 2000 (Cth) s 20

Migration Act 1958 (Cth) ss 116, 116(1)(b), 116(3), 137J, 359A

Migration Regulations 1994 (Cth) r 2.43, Sch 8, condition 8202 

Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170 cited

Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489 applied

Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 applied

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 referred to

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 cited

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 referred to

SHI NUO WANG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 630 OF 2007

WEINBERG J

8 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s 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 appeal from a decision of a Federal Magistrate who, on 23 March 2007, dismissed an application to review a decision of the Migration Review Tribunal (“the MRT”).  The MRT had earlier affirmed a decision of a delegate of the respondent Minister to cancel the appellant’s Student Temporary (Class TU) visa on the basis that the appellant had failed to maintain enrolment in a registered course.

2                     The appellant seeks to rely on an amended notice of appeal dated 27 July 2007.  The amended notice abandons each of the grounds of appeal previously relied upon, and raises four entirely new grounds.  I shall return to that matter shortly. 

3                     It is necessary to say something briefly regarding the background facts.  The appellant is a citizen of the People’s Republic of China.  He entered Australia on 2 September 2004 as a holder of a Student (Temporary) (Class TU) Subclass 571 (Schools Sector) visa (“the visa”).  He had applied for that visa based on his enrolment at St Augustine’s College in Sydney to study senior secondary years 11 and 12.  He was enrolled to study at that College from 31 January 2005. 

4                     It was a condition of the visa that the appellant comply with condition 8202 as set out in Schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”).  That condition relevantly provides:

“(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 subclause if:

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

… ”

(Emphasis added.)

5                     It appears that the Minister’s Department was advised on or about 31 March 2005 that the appellant had been expelled from St Augustine’s College.  On or about the same date, the Principal of that College wrote to the appellant in the following terms:

“This letter is to inform you that your position at St Augustine’s College has been terminated as at today’s date, 31 March 2005.

Your attendance and behaviour within the College and the community is totally unsatisfactory for a student attending St Augustine’s College.  In accordance with your visa regulations, the College has notified DIMIA of your misdemeanours.”

6                     Also on 1 April 2005 the Department wrote to St Augustine’s College seeking further information regarding the appellant’s attendance at the school, and, if he were no longer enrolled, advice as to the circumstances of the termination of that enrolment.  The school replied that the appellant was no longer enrolled “due to serious misconduct”.  

7                     Again on 1 April 2005 the appellant was given notice by the Catholic Education Commission, pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth), that he had breached a condition of his student visa.  That notice particularised the breach as being his termination of enrolment at St Augustine’s College by reason of “serious misconduct and failure to meet course requirements”.  It advised the appellant that pursuant to s 137J of the Migration Act 1958 (Cth) (“the Act”) his visa would be cancelled on the twenty-eighth day after the date of the notice, unless he reported to the Department by that time. 

8                     On 11 April 2005 the appellant attended the Department and was provided with a “Notice of Intention to Consider Cancellation”.  That notice identified the possible ground of cancellation as being that the appellant had breached condition 8202 by failing to maintain enrolment in a registered course of study in Australia.  The notice further indicated that as a consequence his visa might be cancelled pursuant to s 116(1)(b) and 116(3) of the Act and clause 2.43(2)(b) of the Regulations.  On the same day the Minister’s delegate decided to cancel the visa and the appellant was provided with notice of that decision. 

9                     The appellant applied to the MRT for a review of the delegate’s decision.  By letter dated 26 May 2005 the MRT provided the appellant with particulars of information that it considered would be the reason, or a part of the reason, for affirming the delegate’s decision.  It invited him to comment upon that information.  That letter was provided pursuant to s 359A of the Act.  Relevantly it noted that the appellant’s enrolment at St Augustine’s College had been terminated on 31 March 2005 by reason of serious misconduct and failure to meet course requirements.  It further stated that he was not currently enrolled in a registered course of study. 

10                  By letter which appears to be incorrectly dated 7 May 2005 the appellant’s legal representatives replied, advising that he had been enrolled in a different year 11 to year 12 course since 26 April 2005.  They also provided the MRT with written confirmation of his enrolment at Australian Pacific College, Southern Cross High School as from 26 April 2005. 

11                  The MRT conducted a hearing on 26 July 2005.  It found, on the basis of the documentary evidence, that the appellant was not enrolled in a registered course between 31 March 2005 and 26 April 2005.  It also noted that he had not been enrolled in a registered course as at the date of the delegate’s decision, namely 11 April 2005. 

12                  The MRT found that s 116(3) of the Act and clause 2.43 of the Regulations, when combined with condition 8202, established a mandatory regime for the cancellation of a visa once there had been non-compliance with condition 8202.  It held that, on the basis of the above findings, it was bound to affirm the delegate’s decision.

13                  It should be noted that the MRT accepted that the appellant had provided a reasonable explanation as to why he had not enrolled in another course immediately after his enrolment was terminated.  In substance, he told the MRT that another student had made a false complaint against him, and that a criminal charge that had been laid was without foundation.  The MRT accepted that the appellant was entitled to the presumption of innocence as regards that charge, but stated that its only role in relation to condition 8202 was to determine whether a breach had occurred.  Having concluded that there was a breach, it affirmed the delegate’s decision.

14                  The application before the Federal Magistrate was based upon a number of overlapping grounds of review.  However, his Honour noted that the only relevant issue before the MRT had been whether or not there was a period during which the appellant was not enrolled in a registered course.  He rejected a submission to the effect that the MRT had been obliged to consider the situation that pertained after the period of non-enrolment had occurred.  He referred to the Regulations, as they stood before 8 October 2005, in support of that conclusion. 

15                  His Honour noted in passing that the Regulations had been amended as from that date to require the Minister to consider whether “the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”.  He observed that that amendment took effect without retrospective operation as from 8 October 2005 after both the delegate’s decision and the MRT decision, and was therefore of no assistance to the appellant. 

16                  The appellant’s amended notice of appeal identifies four grounds of appeal.  In substance he contends that the Federal Magistrate erred in failing to find that:

·                    the MRT had breached the requirements of s 359A by failing to ensure that the appellant understood the relevance of the information to which the MRT had referred;

·                    the s 359A letter was misleading;

·                    the appellant had been misled by the s 359A letter; and

·                    the MRT had taken into account irrelevant considerations. 

Detailed particulars of each of these grounds were provided. 

17                  Ms Welshman, counsel for the appellant, frankly conceded before me that none of the grounds in the amended notice of appeal had been argued before the Federal Magistrate.  She has also frankly acknowledged that there was no good reason why those grounds had not been raised. 

18                  The appellant requires leave to raise new grounds that were not argued before his Honour.  The Minister opposes such leave on the basis that it is not expedient in the interests of justice that leave be granted.  He submits that the new grounds have no reasonable prospects of success: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 per Madgwick J (with whom Conti J agreed) at [162]–[175]. 

19                  It is unnecessary to refer to the many cases which say that where there is no adequate explanation for the failure to take a point before the primary judge, and the point seems to be of doubtful merit, leave should ordinarily be refused.  See, however, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48].  The real question, so far as leave is concerned, is whether any of the grounds sought to be raised has a reasonable prospect of success.  That question cannot be determined without also considering the related issue of whether it would be futile to remit this matter to the MRT for reconsideration. 

20                  The legislation which relevantly governs the issues raised in this appeal is tolerably clear in its effect.  Section 116(1)(b) provides that the Minister may cancel a visa if satisfied that its holder “has not complied with a condition of the visa”.  Section 116(3) provides that in such circumstances the Minister must cancel the visa if there exist prescribed circumstances in which a visa must be cancelled.  Clause 2.43(2)(b) of the Regulations relevantly provided, prior to 8 October 2005, that for the proposes of s 116(3) the Minister must cancel a Student (Temporary) Class TU visa if satisfied that the visa holder has not complied with condition 8202.  Condition 8202(1) requires the visa holder to comply with sub-clause (2).  In order to meet the requirements of sub-clause (2) the visa holder must be enrolled in a registered course: see condition 8202(2)(a).  That requirement, as with the other requirements in condition 8202, concerns a continuing state of affairs.  In effect, the visa holder is not permitted to cease to be enrolled in such a course: Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 at [19]–[20].

21                  There is an inexorable and somewhat remorseless logic to this sequence of statutory requirements.  The Minister has no discretion in the matter.  The Regulations as they stood prior to 8 October 2005 plainly had the potential to operate unfairly.  That was subsequently recognised, and clause 2.43 was amended. 

22                  However, there is clear authority for the proposition that the appellant’s case must be considered in the light of the law as it stood at the time of the visa cancellation.  Both the delegate’s decision and the MRT’s decision to affirm that decision took place before the amendments came into effect.  The appellant cannot call in aid the ameliorated version of the clause because it has no retrospective effect.  See the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 at [44] per Ryan, Nicholson and Lander JJ.  See also Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489 per Marshall J. 

23                  It may well be that there is an arguable case to be made in support of one or more of the appellant’s grounds of appeal, as set out in the recent notice of appeal.  In the end, however, it seems to me to be unnecessary to determine that question.  If this matter were remitted, the MRT would, on the authority of Zhou, still be required to consider his case on the basis of the Regulations as they stood prior to 8 October 2005. 

24                  Ms Welshman submitted that new material might be placed before the MRT which might lead it to conclude that the appellant had not ceased to be enrolled at St Augustine’s College as from 31 March 2005.  She submitted that it might be possible to attack the process by which the school arrived at its decision to terminate his enrolment. 

25                  That submission seems to me to have an air of unreality.  This case has always proceeded upon the assumption that the appellant’s enrolment at St Augustine’s College came to an end as at 31 March 2005.  I cannot conceive of any circumstances in which the MRT would, or could, arrive at any different conclusion.  It follows that if this matter were remitted, the ultimate result of any reconsideration would inevitably be that the delegate’s decision would be affirmed. 

26                  Futility is a well recognised basis upon which a Court will decline to grant judicial review: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29].  In such circumstances relief is refused because the applicant has in fact suffered no injustice since the statutory law compels a particular outcome. 

27                  Had any of the grounds of appeal that are now sought to be agitated before me been raised before the Federal Magistrate his Honour would undoubtedly have rejected the application for judicial review.  That is because it would have been futile to grant the relief sought. 

28                  There is no basis upon which to grant leave to permit the new grounds to be argued.  It would be futile to grant such leave.  It also follows that no appealable error can be demonstrated in relation to his Honour’s decision to dismiss the application for judicial review. 

29                  The appeal must be dismissed with costs. 

Associate:

Dated:         8 August 2007