Ting v Minister for Immigration & Multicultural Affairs [2006] FCA 1209 (11 September 2006)

MIGRATION – application to reinstate proceeding previously dismissed for want of prosecution – application for extension of time in which to file notice of appeal – student visa – whether breach of condition 8202 – whether reasonable prospects of establishing jurisdictional error by Tribunal.

HELD – application to reinstate proceedings refused.

WEI-MIN TING v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL

SAD 213 of 2005

MANSFIELD J
11 SEPTEMBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 213 OF 2005

BETWEEN:	WEI-MIN TING Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:	MANSFIELD J
DATE OF ORDER:	11 SEPTEMBER 2006
WHERE MADE:	ADELAIDE

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 213 OF 2005

BETWEEN:	WEI-MIN TING Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	MANSFIELD J
DATE:	11 SEPTEMBER 2006
PLACE:	ADELAIDE

1 By application made on 8 September 2005, Mr Ting sought an extension of time in which to file and serve a notice of appeal from a decision of a Federal Magistrate given on 9 August 2005. Mr Ting did not appear on 14 October 2005 when the application was first listed for hearing, and it was dismissed for want of prosecution. I directed that that order not be sealed for a period of time, to give Mr Ting an opportunity to re-instate the application if his non-attendance was for some satisfactory reason.

2 By motion of 9 November 2005, he applied to reinstate the application. The application and the motion have been adjourned from time to time at the request of the parties, or one or other of them. It is not necessary to go into the reasons why that has occurred.

3 Both the motion and, if it is re-instated, the application, are listed for hearing together. It was accepted that they should be heard together, because in substance the outcome of one would dictate the outcome of the other. It was also accepted that the relevant considerations to determine those matters include the length and reasons for the delay, and whether there is any real prospect of an appeal succeeding: see, e.g. Jess v Scott (1986) 12 FCR 187 at 195.

4 Under O 52 r 15(1)(a) any appeal from the decision of the Federal Magistrate had to be commenced within 21 days after judgment, namely 30 August 2005. The application was brought only some 9 days after that. The Minister does not suggest that the delay has caused her any prejudice. There is no evidence to explain why the proposed appeal was not instituted within time, but given the shortness of the delay, I do not think the delay weighs heavily against the application if it is shown to have arguable merit. Mr Ting’s failure to attend the hearing on 14 October 2005 was because he had misplaced the application on which the hearing date was shown, and he had not received correspondence to his address for service as he had moved.

5 Mr Ting is a national of Taiwan. He entered Australia on 22 July 2002 on a Short Stay (Visitor) (Class TR) visa, subclass 676. He was then granted a Student (Temporary) (Class TU) visa, subclass 572. The student visa was granted subject to conditions, including condition 8202 as specified in Sch 8 to the Migration Regulations 1994 (Cth): see cl 572.611(1)(a) of Sch 2 to the Regulations. Condition 8202 imposes enrolment and academic performance requirements on the holder of a student visa.

6 Mr Ting enrolled at the South Australian Institute of Business and Technology (SAIBT) in a course called a ‘Mixed Program’. It is designed for international students with an English language proficiency below that required for a full academic program.

7 On 25 October 2004 the SAIBT notified the Department by a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) that Mr Ting had breached the academic performance requirements of the course. The breach was described as:

8 As was required, Mr Ting was informed that his student visa would cease 28 days after the date of the s 20 notice, unless in the meantime he reported to the Department. Mr Ting then attended the Department on 22 November 2004.

9 Section 116(1)(b) of the Migration Act 1958 (Cth) (the Act) empowers the Minister to cancel a visa if satisfied that its holder has not complied with a condition of the visa. Section 116(3) obliges the Minister to cancel a visa under s 116(1) if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2)(b) of the Regulations prescribes a breach of condition 8202 as a prescribed circumstance for the purposes of s 116(3). Hence, if the delegate of the Minister or on review the Migration Review Tribunal were satisfied that Mr Ting had not complied with condition 8202 of the visa, they were obliged to affirm the decision to cancel the visa. There was no discretion.

10 Mr Ting was given notice under s 119 of the Act that the Minister was considering cancelling his student visa for possible breach of condition 8202. The notice said that the applicant had been reported by the SAIBT for ‘failing to meet the course requirements as Mr Ting had insufficient academic performance and failed to meet conditional enrolment’. Mr Ting took the opportunity at an interview on 7 December 2004 to make submissions about why the student visa should not be cancelled. He did not then dispute that he had breached condition 8202, but claimed his unsatisfactory academic performance was due to illness. There is no suggestion that the procedure for cancelling Mr Ting’s visa imposed by Subdiv E of Div 3 of Pt 2 of the Migration Act was not followed.

11 On 16 December 2004 a delegate of the Minister decided to cancel the student visa. The record of decision records the breach of condition 8202 in the same terms as the notice given under s 119(1) as the reason for the cancellation. Having been satisfied that Mr Ting had not complied with a condition of his student visa, so as to activate the power to cancel his visa under s 116(1)(b), the decision-maker was obliged to cancel it because of s 116(3).

12 Mr Ting sought review of the delegate’s decision. He contended that the basis of the notice under s 119(1) and for cancellation of his student visa was different from the contents of the s 20 notice because the s 20 notice ‘did not mention the enrolment matter’.

13 Mr Ting also claimed that his unsatisfactory academic performance was because he had been put into a course which was too difficult for him. His evidence was that the SAIBT course required a 5.0 level under the International English Language Testing System (IELTS), but that he had attained only level 4.5, although he accepted he had been encouraged by his mother to enrol in the SAIBT course.

14 The Migration Review Tribunal rejected the first claim. It found that the s 20 notice did refer to ‘conditional enrolment’ (as it did), that the notice of intention to consider cancellation under s 119(1) adequately informed Mr Ting of the basis upon which his student visa might be cancelled, and was consistent with the s 20 notice.

15 Condition 8202, as in force at the time of the grant of Mr Ting’s student visa (see Pradhan v Minister for Immigration & Multicultural Affairs (1999) 91 FCR 91) relevantly provides:

16 The s 20 notice from the SAIBT did not, as that requirement stipulates, certify Mr Ting’s academic result to be at least satisfactory. It certifies to the contrary. It is plain enough that condition 8202 was not satisfied.

17 It is convenient to deal with one contention of Mr Ting at this point. His submission was that the notice under s 119 given by the delegate of the Minister referred only to a ‘possible breach’ of condition 8202, so that somehow neither the delegate nor the Migration Review Tribunal was, or could be, satisfied that he had failed to satisfy the condition. There is no merit in the point. Condition 8202 is only satisfied if the education provider positively certifies that the visa holder has achieved at least a satisfactory academic result. Plainly it did not do so. Moreover, even if there were any inadequacy in the decision-making process of the delegate (and I do not think there was), the Migration Review Tribunal had the function of reconsidering all the material on the merits and making its own decision; any inadequacy on the part of the initial decision-maker would not affect the validity of the decision of the Migration Review Tribunal.

18 The Migration Review Tribunal then considered whether, by reason of Mr Ting’s reasons for non-compliance with condition 8202, it could be said that there was nevertheless no breach of the condition. It regarded that the course was open to it (as distinct from excusing the breach, which s 116(3) does not permit), because there would otherwise be no purpose in the opportunity given by s 119(1) to show cause why the cancellation should not take place. It noted Mr Ting’s concern that he had been permitted to enrol in a course for which the language entry equivalent was IELTS 5.0 or equivalent, when Mr Ting had attained only an IELTS 4.5 level, but it also had regard to the fact that Mr Ting had nevertheless enrolled in the course and had done so with his mother’s encouragement. It also did not think that the illness of his grandparents, and the death of his grandmother, would support a conclusion that the breach of condition 8202 did not occur.

19 As the Migration Review Tribunal found Mr Ting had breached condition 8202, in the light of s 116(3) of the Act it had no option but to affirm the decision to cancel his student visa.

20 The Federal Magistrate could only set aside the Migration Review Tribunal’s decision if the Migration Review Tribunal decision was infected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2002) 211 CLR 476.

21 Mr Ting was represented by counsel. The only matter raised on his behalf as indicating error on the part of the Migration Review Tribunal was that the SAIBT had wrongly accepted Mr Ting into a course for which he was not eligible, because his standard of English was not at the required level. As the Federal Magistrate described it, the focus of submissions was really directed at the SAIBT for somehow having breached a duty of care to Mr Ting.

22 The Federal Magistrate did not consider that the contention that the SAIBT had somehow breached a duty of care owed to Mr Ting, even if established, would demonstrate jurisdictional error on the part of the Migration Review Tribunal. The Migration Review Tribunal was required to determine whether Mr Ting had breached condition 8202 in relation to the course of study he had undertaken. The reasons why he had undertaken the course, and any (assumed) fault in the education provider for letting him undertake that course, could not show that the Migration Review Tribunal itself had committed jurisdictional error.

23 The Federal Magistrate therefore refused to set aside the decision of the Migration Review Tribunal.

24 Mr Ting supported his present application by an affidavit of 8 September 2005 apparently prepared by him personally. He described the Migration Review Tribunal decision as being ‘wrong and not fair to me’. He attached a ‘Pleading’. That document firstly focused on the SAIBT having put him into a study program which was above his language ability. He said he had intended to study a program called Centre for English Language in the University of South Australia, but had enrolled in the higher language program prompted by his previous migration agent and by the SAIBT. (I interpose to note that there is no evidence that the SAIBT course was first promoted to the applicant as preferable for him by SAIBT; it seems to have emerged as an option from Mr Ting’s then migration agent or his mother, or both of them). Mr Ting secondly claims that he requested the study director of the SAIBT during the course he had undertaken to transfer him to a lower level of English study program but was first told to keep trying, and then ignored. Hence, he claimed, the change in his study program was beyond his control.

25 There is also attached a proposed notice of appeal. It asserts that the Federal Magistrate erred by:

26 Mr Ting was also given the opportunity to make further written submissions after the hearing. I have addressed one of the matters he raised in those submissions in [17] above. The further written submissions were signed by the solicitor on the record for Mr Ting, although that solicitor at the hearing indicated he did not then wish to put anything forward on Mr Ting’s behalf, and wished to cease acting for Mr Ting. It was that circumstance which led me to permit Mr Ting to make further written submissions. I have nevertheless considered the matters the further written submissions raise. Apart from the point addressed at [17] above, it is claimed that the delegate of the Minister failed to ‘identify’ that the reason why Mr Ting did not attain a satisfactory academic result, was because the education provider had put him into a course demanding too high an English competency, and had not allowed him to transfer from that course. Assuming those matters were put to the delegate (and the evidence does not suggest they were) for the reasons set out in [22], that does not demonstrate jurisdictional error on the part of the Migration Review Tribunal. The relevant condition requires that Mr Ting be certified as attaining a satisfactory academic result. It was not met. The reason why a satisfactory academic result is not attained, or more correctly is not certified as having been attained, does not affect the question of whether the condition is met. The further written submissions also claim that the Migration Review Tribunal should have set aside the cancellation order by reason of the matters mentioned in [25] above. I refer to those claims below.

27 Mr Ting may well have enrolled for a course requiring a proficiency in English somewhat above his ability. It is not necessary to decide whether he did so in part as a result of unwise advice (whether from his former migration agent or from his mother or from the educational institution) as well as a result of an error of judgment on his part. That is because the reason for him undertaking the particular course does not assist him in avoiding the consequences of his failure to satisfy condition 8202. Condition 8202 applies, in its own terms, whatever the reason why the particular course was undertaken. The Act then specifies in turn that there is power in the Minister for cancel a visa when satisfied that condition 8202 has not been met, and then that the power must be exercised to cancel the visa.

28 The Federal Magistrate did not therefore err in concluding that the decision of the Migration Review Tribunal was within jurisdiction.

29 Mr Ting may well have sought advice from the study director of the SAIBT as he asserted in contentions on the applications before me. There is nothing to indicate that matter was put to the education provider before it issued its notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth), or to the initial decision-maker, or to the Migration Review Tribunal. Even assuming that information was capable of somehow enabling the Migration Review to reach a different conclusion (and it is not apparent to me that it would thereby be able to do so), the Tribunal could not be shown to have committed jurisdictional error by failing to consider that matter. The explanation is not shown to have been presented to the Tribunal, so it could not have been expected to have considered it.

30 In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 67-68 Deane J explained that a judicial officer should not hear and determine an application if a fair minded lay observer, in all the circumstances, and with knowledge of the material objective facts might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question in issue. Mr Ting has not identified any material from which it might be concluded that the Federal Magistrate might not, or did not, approach the issue with an impartial and unprejudiced mind. The fact that Mr Ting’s application was unsuccessful, or that the Federal Magistrate upon analysis and in the light of submissions could see little merit in it does not demonstrate apprehended bias. It is simply the result of due consideration of Mr Ting’s case.

31 The Federal Magistrate was obliged to provide reasons for his decision, so as to reveal that he had understood and considered Mr Ting’s claims, to show the reasoning leading to his conclusion, and thereby to enable Mr Ting and an appeal court to consider whether he properly applied the law: see e.g. Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 483 per McPherson and Davies JJ. However, in my view, the complaint about the adequacy of the Federal Magistrate’s reasons for judgment is also not made out. The reasons indicate why the Federal Magistrate considered there was no jurisdictional error on the part of the Tribunal. They indicate why the matters raised by Mr Ting did not demonstrate jurisdictional error. And they indicate that his Honour understood Mr Ting’s contentions. The reality, in my view, is simply that Mr Ting does not accept that, having undertaken the course of study which he selected despite his lack of proficiency in the English language, he did not achieve a satisfactory academic result and the consequences of his failure to do so are prescribed by the legislation.

32 For those reasons, I do not think Mr Ting’s proposed appeal has any prospect of success. Accordingly, the motion to reinstate the application for an extension of time to appeal from the Federal Magistrate’s decision of 9 August 2005 is refused. The consequence is that the order dismissing that application made on 14 October 2005 stands, as does the decision of the Tribunal. Mr Ting must pay the Minister’s costs of the motion. The costs of the application have already been ordered to be paid by him.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant:	J Pertl

Solicitor for the Applicant:	Joseph Pertl

Counsel for the Respondent:	R Prince

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	6 July 2006

Date of Last Submissions:	9 August 2006

Date of Judgment:	11 September 2006

Federal Court of Australia

Ting v Minister for Immigration & Multicultural Affairs [2006] FCA 1209 (11 September 2006)