Li v Minister for Immigration and Citizenship [2007] FCA 649 (9 May 2007)

Last Updated: 9 May 2007

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration and Citizenship [2007] FCA 649

HAO XING LI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
NSD 2544 OF 2006

MOORE J
9 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2544 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	HAO XING LI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	9 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".
2. The appeal be dismissed.
3. 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2544 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	HAO XING LI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	MOORE J
DATE:	9 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate of 5 December 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") of 7 April 2006: see Hao Xing Li v Minister for Immigration & Anor [2006] FMCA 1565. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to cancel the appellant’s Student (Subclass 573) (Higher Education Sector) visa under s 116(1)(b) of the Migration Act 1958 (Cth) ("the Act").

2 The appellant is a citizen of the People’s Republic of China and was granted the visa on 27 February 2004. On 18 October 2005 the delegate cancelled the visa on the basis that the appellant had failed to achieve satisfactory academic results as required by condition 8202(3)(b) attached to his visa pursuant to the Migration Regulations 1994 (Cth) ("the Regulations"). The appellant had failed to achieve satisfactory academic results. Before the delegate was evidence that from 1 March 2004 to 30 June 2005 the appellant had failed 8 out of 10 subjects that he had enrolled in at Macquarie University.

3 On 20 October 2005, the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal invited the appellant, in a letter dated 15 November 2005 addressed to the appellant’s authorised recipient, to comment on information that the appellant’s results were not satisfactory for semesters 1 and 2 of 2004 and semester 1 of 2005. The appellant, through his migration agent, replied in a letter dated 9 January 2006 and received by the Tribunal on 11 January 2006. He claimed that there were compelling reasons for his not satisfying course requirements, namely the departure from Australia of his girlfriend at the time which had a significantly adverse impact on him. The appellant also submitted that the delegate should have considered the financial impact of the cancellation on the appellant and that the delegate had failed to consider the fact the appellant had finished course requirements for a diploma of commerce. On 16 January 2006 the Tribunal invited the appellant to provide further information including his reason for travel to Australia and the impact of the cancellation.

4 In its reasons for decision, the Tribunal considered the appellant’s arguments concerning the financial impact and the departure of the appellant’s girlfriend. It also had regard to the appellant’s evidence which indicated he did not always attend classes and examinations, and further, that he did not seek help from the university after his results showed he had failed some subjects. The Tribunal found these were not exceptional circumstances beyond the appellant’s control and was satisfied that it had been within the appellant's power to do something to improve his results. The Tribunal was not satisfied that his failure to achieve satisfactory academic results was due to exceptional circumstances beyond the appellant’s control and affirmed the decision to cancel the visa.

5 The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court on 18 April 2006. Before the Federal Magistrate, the appellant relied on an amended application filed on 27 June 2006. He asserted that the Tribunal failed to comply with reg 2.43(2)(b)(ii) of the Regulations as the Minister had to be satisfied that the appellant has not complied with condition 8202 and that this was not due to circumstances beyond appellant’s control. The appellant had identified circumstances which were beyond his control which included his girlfriend’s departure which had caused him stress and anxiety, that he came from a different cultural and educational background, and that he did not receive help from the educational provider.

6 In his reasons for judgment, the Federal Magistrate addressed the question, raised by counsel for the first respondent, whether the Tribunal had complied with s 359A of the Act. His Honour concluded the Tribunal had complied. As to a complaint made by the appellant about the interview with the delegate, his Honour noted that any defect in the processes attending the delegate’s decision was cured by the decision of the Tribunal. In relation to the grounds in the amended application his Honour indicated that, in substance, they involved merits review. His Honour was satisfied that the Tribunal had considered all the appellant's claims and had correctly applied the relevant legal tests.

7 The notice of appeal filed in this Court on 28 December 2006 raised one ground, namely that the Tribunal had failed to comply with s 359 of the Act by not considering all the information before it including the amended application. An amended application was in fact filed in the Federal Magistrates Court, but none appears to have been filed in the Tribunal. No other particulars of the alleged failure were provided, without which the claim that the Tribunal did not consider information before it is meaningless.

8 At the hearing of the appeal the appellant submitted that the Tribunal had not provided him with the report from Macquarie University, recounting his poor academic record. This appears not to have been a point raised before the Federal Magistrate. In any event, to the extent that it is a submission that the Tribunal failed to comply with s 359A of the Act, which requires the applicant to be given certain information by the Tribunal, the appellant has not demonstrated that failure. The substance of the report was referred to in the letter of 15 November 2005 from the Tribunal. The letter provided the relevant particulars for the purposes of the section.

9 In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct and do not manifest applicable error. The appeal should be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 9 May 2007

The Appellant appeared in person

Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 May 2007
Date of Judgment:	9 May 2007