Zheng v Minister for Immigration [2010] FMCA 92 (19 February 2010)

Last Updated: 23 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHENG v MINISTER FOR IMMIGRATION

[2010] FMCA 92

MIGRATION – Whether the Court has jurisdiction to review the cancellation pursuant to s.137J of the Migration Act 1958 (Cth) of a Student visa – whether a cancellation pursuant to s.137J of the Migration Act 1958 (Cth) is a decision of an administrative character made under the Migration Act 1958 (Cth) – application seeking revocation in accordance with s.137K was filed after his visa had expired.

Education of Overseas Students Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.5,137J, 137K, 474, 476 Federal Magistrates Court Rules 2001 (Cth), r.44.05

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 Kumar v Minister for Immigration & Citizenship [2008] FMCA 1458 Ni v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1143 Prasad v Minister for Immigration & Citizenship [2007] FMCA 2147 Shao v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 18; (2007) 157 FCR 300 Zhou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1078

Applicant:

XIAO GANG ZHENG

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 2561 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

4 February 2010

Delivered at:

Sydney

Delivered on:

19 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr W. Chan (solicitor)

Solicitors for the Applicant:

William Chan & Co. Lawyers

Counsel for the Respondents:

Ms B. Griffin (solicitor)

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The original application filed on 23 October 2009 be dismissed by reason of the Federal Magistrates Court of Australia’s lack of jurisdiction under the Migration Act 1958 (Cth) to consider the application.
(2) The Applicant pay the Respondent’s costs of and incidental to the application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2561 of 2009

XIAO GANG ZHENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

The application

1. This is an interlocutory application made on behalf of the Minister for Immigration and Citizenship by the Australian Government Solicitor that this Court lacks jurisdiction to hear an application for judicial review of a cancellation of Mr Xiao Gang Zheng’s student visa on 24 June 2009 pursuant to s.137J of the Migration Act 1958 (Cth), (“the Act”). Mr Zheng’s original application to this Court was brought pursuant to r.44.05 of the Federal Magistrates Court Rules 2001 (Cth).
2. In the response filed on behalf of the Minister on the 18 November 2009 the application for an order to show cause was opposed on the following grounds

1. Insofar as the Applicant seeks review of the automatic cancellation under section 137J of the Act the Federal Magistrates Court lacks jurisdiction to hear the application [Rule 44.06(2)(a)].

Particulars

1.1. The jurisdiction of the Court under section 476(1) of the Act is in respect of ‘migration decisions’ as defined by section 5 of the Act.
1.2. The application purports to seek judicial review of the cancellation of the Applicant’s student visa pursuant to s137J of the Act.
1.3. The Court does not have jurisdiction to review the cancellation of the Applicant’s visa under section 137J of the Act because the cancellation pursuant to that section occurs by operation of law, and does not involve a ‘migration decision’ for the purposes of the Act; that is, no administrative decision of any kind is made when section 137J applies by reason of a notice having been given under section 20 of the ESOS Act to a non-citizen: see Kumar v Minister For Immigration [2008] FMCA 1458.

2. Insofar as the Applicant seeks review of the education provider’s issuing of a notice under section 20 of the Education Services Overseas Students Act 2000 (the ESOS Act) the Federal Magistrates Court lacks jurisdiction to hear the application: Rule 44.06(2)(a) of the Federal Magistrates Court Rules 2001.

Particulars

2.1. The jurisdiction of the Court under section 476(1) of the Act is in respect of ‘migration decisions’ as defined by section 5 of [the] Migration Act 1958 (‘the Act’).
2.2 The education provider’s certification that the Applicant was not achieving satisfactory course progress and/or course attendance is not a migration decision reviewable by the Federal Magistrates Court under section 476 of the Act.

3. At the first court date directions hearing on 1 December 2009 Orders were made setting the matter down for hearing on jurisdiction on 4 February 2010.
4. The ground of review contained within the application states:
   • 1. On 26 May 2009 Macquarie University sent the Applicant a purported notice under s.20 of the Education of Overseas Students Act 2000 (Cth) (“the EOS Act”). The notice was invalid for reasons including the following:
     • (a) The Applicant was not an “accepted student” within the meaning of s.20(1) of the EOS Act.
     • (b) The notice did not contain particulars of the breach as required by s20(4)(a) of the EOS Act.

(c) Macquarie University did not send the notice “as soon as practicable after the breach” as required by s20(2) of the EOS Act.

2. If the court agrees that the notice was invalid, then the Applicant’s student visa was not cancelled under s.137J of the Migration Act.

Evidence

5. The following affidavits were filed by Xiao Gang Zheng
   1. Affirmed 22 October 2009 (“first affidavit of Mr Zheng”)
   2. Affirmed 12 November 2009 (“second affidavit of Mr Zheng”)
   100. Affirmed 11 January 2010 (“third affidavit of Mr Zheng”)
6. A Court Book (“CB) prepared and filed by the Respondent’s solicitors is marked “Exhibit A”.

Background

7. Mr Zheng arrived in Australia on 20 March 2005 on a sub-class 573 Student (temporary) (Class TU) visa which had been extended and was due to expire on 30 August 2009. Mr Zheng enrolled in the Sydney Institute of Business and Technology (“SIBT”) at Macquarie University and obtained a Diploma of Commerce on 1 August 2007. He then enrolled and commenced attending lectures in a Bachelors of Commerce – Accounting Degree course at Macquarie University in July 2007.
8. Mr Zheng on 18 December 2008 received a notification of examination results for Macquarie University advising that he had failed three out of the four subjects in which he was enrolled. The correspondence indicated that Mr Zheng had twice failed a specified core accounting unit and as a sanction was consequently excluded from further enrolment in the BCom- Accounting program for 2009 and 2010. He was advised that he had failed to meet the minimum rate of progress in the program for which he was enrolled in 2008 and in the absence of successfully showing cause to the satisfaction of the Academic Appeals Committee, he was excluded from enrolling from the Bachelor of Commerce – Accounting program. This sanction included enrolling in any other academic program conducted by Macquarie University.
9. On 19 December 2008 Mr Zheng received a further letter from Macquarie University headed Re: Unsatisfactory Progress and Notice of Intention to Report to DIAC. The letter confirmed that Mr Zheng had failed to meet the minimum amount of progress in the program for which he was enrolled in 2008 as specified in the Bachelor Degree Rule 13 of the Undergraduate Handbook Degree Rules. The letter was a formal notification of the University’s intention to report Mr Zheng to the Department of Immigration and Citizenship (DIAC) for not achieving satisfactory course progress. The letter noted that satisfactory academic progress is a mandatory condition of all students holding visas.
10. Mr Zheng stated that he did not understand the contents of these two notification letters so he contacted Mr Peter Komsta at Macquarie University for advice. Mr Komsta advised Mr Zheng to enrol in another university to continue his studies in order to avoid a s.20 notice being issued.
11. In March 2009 Mr Zheng enrolled at La Trobe University in a Bachelor of Business Degree course that commenced in March 2009. La Trobe University accepted Mr Zheng’s previous studies and was granted exemptions for 10 subjects that he had already completed at either SIBT or Macquarie. A Confirmation of Enrolment (COE) from La Trobe University was forwarded to DIAC on 3 March 2009.
12. Mr Zhen attests in his second affidavit that on 16 April he received a letter from Macquarie University headed Progressive Monitoring referring to his academic performance in 2008. He further attests that the letter stated:
    • Please disregard this notice if your visa status is other than a student visa or not enrolled in Macquarie University.

(The full letter is not contained in the Annexures to this affidavit.)

As Mr Zheng was not enrolled in Macquarie University, having completed enrolment at La Trobe University, he disregarded the letter.

13. On 4 September 2009 Mr Zheng attended the DIAC office to apply for a visa extension of his sub-class 573 student visa which expired on 31 August 2009. He was advised that his visa had been automatically cancelled on the basis that a s.20 notice (“notice”) issued by Macquarie University on the 26 May 2009. That notice indicated that the requirements of sub-clause 8202 had been breached. Mr Zheng claims that he changed his address on 2 May 2009 and did not receive a copy of the notice. He states that he did notify the new education provider, La Trobe University of the change of residential address.

Consideration

Jurisdiction of this Court to review the cancellation

14. The Applicant applied for an order that the Respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act in respect of the decision to automatically cancel Mr Zheng’s 573 student visa in June 2009 under s.137J of the Act.
15. Mr Chan, appearing for the Applicant, acknowledges and concedes that there has been a cancellation by operation of s.137J of the Act and there has not been an exercise of an administrative decision. Accordingly both parties accept that this Court does not have jurisdiction under s.476(1) of the Act to review the cancellation of the Student visa because it does not constitute a migration decision within the meaning of ss.5 & 474 of the Act.. The cancellation of the visa occurred by operation of s.137J itself and nothing needed to be done by the Minister or his delegate or any other party to effect that cancelation: Shao v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 18; (2007) 157 FCR 300 per Lander J at [9] where His Honour stated
    • [9] It is the subsection itself which cancels the non-citizen’s visa. Nothing needs to be done by the Minister or any other party to effectuate the cancellation of the non-citizen’s visa.
16. No administrative decision of any kind arises pursuant to s.137J of the Act when s.20 notices are issued under the Education Services of Overseas Students Act 2000 (Cth) (“ESOS Act”) to a non-citizen: Shao (supra) at [55] where His Honour stated
    • [55] There is nothing, in my opinion, in the Act or in Uddin which would support the Applicant’s contention that any administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the ESOS Act to a non-citizen. There is no administrative decision to be made. Section 137J(2) operates to cancel the non-citizen’s visa. The only decisions which have to be made relate to the Minister’s power to revoke the cancellation effected by s 137J(2).
17. The only decision that may have to be made under Subdivision GB of Part 2, Division 3 of the Act relates to the Minister’s power to revoke the cancellation effected by s.137J(2). In this case there was no such decision made, principally because the Applicant did not apply for revocation in accordance with the time limits set out in s.137K(2) of the Act.
18. This approach has been followed in subsequent decisions of this Court. In Prasad v Minister for Immigration & Citizenship [2007] FMCA 2147, His Honour Smith FM held that the Migration Review Tribunal’s finding that a cancellation under s.137J was not a decision reviewable under the Act. Therefore His Honour Smith FM found that the Migration Review Tribunal’s view that such decisions are not MRT-reviewable was “undoubtedly correct, and has the support of authority including the decision of Lander J...” in Shao (supra). His Honour’s decision in Prasad (supra) was upheld on appeal to the Federal Court (Prasad v Department of Immigration and Citizenship & Anor [2008] FCA 945 per Spender ACJ).
19. Similarly in Kumar v Minister for Immigration & Citizenship [2008] FMCA 1458 Her Honour Emmett FM considered whether or not a s.137J cancellation invokes the jurisdiction of the Federal Magistrates Court. In that case Her Honour accepted the Respondent’s submission that an automatic cancellation under s.137J is not a migration decision for the purposes of invoking the Federal Magistrates Court jurisdiction. The court was referred to the High Court decision in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [89] where Gummow, Callinan and Heydon JJ held:
    • [89] The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment...
20. I am satisfied that both parties readily accept that this Court does not have jurisdiction to review the cancellation of the Applicant’s sub-class 573 (Class TU) Students visa under s.137J of the Act because the cancellation occurs by operation of the law and does not involve a migration decision for the purposes of the Act.

Jurisdiction to review the s. 20 notice

21. Mr Chan, appearing for the Applicant, submits that in respect to a s. 20 notice under the ESOS Act, the education provider must send an accepted student a written notice giving particulars of any breach as soon as practicable after the breach. The argument advanced by Mr Chan was that the s.20 notice was invalid and of no effect. Consequently, the Department should not have accepted the notice or alternatively they should have accepted the notice, noting it was invalid and of no effect, and therefore they should have decided not to treat it as being operative pursuant to s.137J, but instead an administrative decision. The nexus of the argument is that the Department and its officer failed to exercise their discretion to consider the s.20 notice that contained an error on the face of the record. The error was that the Applicant was no longer an accepted student of the educational provider issuing the certificate.
22. The basis of this contention is that the Applicant pursued enrolment at another university because in December 2008 Macquarie University indicated to the Applicant that he had failed and would not be allowed to re-enrol in any course at that university for two years. That course of action was pursued and a Certificate of Enrolment (CB 28) was subsequently forwarded to the Department. That form is date-stamped as received by the Department Compliance Sydney on 3 March 2009. Mr Chan argues that at the time, when the s.20 notice was received by the Department it had actual or constructive notice that the issuer of the s.20 notice was no longer the education provider of that particular Applicant and they had no right to issue the notice.
23. Mr Chan contends that the officer that accepted and examined the s. 20 notice should have constructive notice, if not actual, to the effect that there was an error on the face of the record and accordingly that officer with due diligence should have simply disregarded that document or alternatively declared the document to be invalid and of no effect. It was argued that the officer failed to do so and that is the jurisdictional error by the Department and an administrative decision should be reviewable.
24. Ms Griffin, representing the Respondent, submits that this Court does not have jurisdiction under s.476 of the Migration Act to review any decision that may have been made in relation to a notice issued to the Applicant pursuant to s.20 of the ESOS Act. In support of this contention, s.474(2) of the Migration Act states
    • (2) in this section :
      • Privative Clause decision means a decision of an administrative character made, proposes to be made, or required to be made, as the case may be, under this Act or other instrument made under this Act...
25. The obligation to certify is imposed on the education provider under s.19(2) of the ESOS Act, “to give the secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs”. Even if notification of a breach involves an “administrative decision” in the relevant sense, the decision to notify of the breach is not one made by the Respondent Minister and is not made under the Act (or the regulations): Kumar v Minister for Immigration (supra), per Emmett FM at [16]-[24].
26. In Zhou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1078 His Honour Cooper J at [34]-[36] sets out the way in which a s. 20 notice of the ESOS Act operates in conjunction with the Act:
    • [34] Section 137J of the Act is part of Subdiv GB of Div 3 of Pt 2, which is concerned with the automatic cancellation of student visas. The subdivision is completely self-contained and includes s 137J — s 137N inclusive. The subdivision has no relevant operation in respect of Subdiv D of Div 3, which contains s 116 of the Act. Subdivision D is concerned with the cancellation of visas on the grounds specified in s 116 of the Act. Subsection D has no relevant operation with respect to any of the matters provided for in Subdiv GB.
    • [35] The process for automatic cancellation of a student visa is initiated by the giving of a notice pursuant to s 20 of the ESOS Act: s 137J(1) of the Act. Subdivision GB cannot operate in the absence of the giving of a notice under s 20 of the ESOS Act.
    • [36] If a notice is not complied with, the visa is automatically cancelled by force of s 137J(2) upon the expiration of the statutory time period provided for in the subsection. In that event, the student has the right to seek revocation of the cancellation: s 137K. However, the grounds of revocation are limited to those specified in s 137L of the Act. So far as presently relevant, those grounds are:
    • (a) that the student did not, in fact, breach the relevant visa condition or conditions; or
    • (b) that the breach was due to exceptional circumstances beyond the student’s control.
27. In Ni v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1143 His Honour Ryan J discusses the operation of the revocation provisions of the Act
    • Furthermore the Applicant’s submission postulates that, once the s20 notice had been issued, it was inevitable that his visa would be cancelled. Accordingly, so the argument went, to permit him to enrol in a single degree course before sending the s 20 notice would produce an “extraordinary result.” That does not necessary follow. It is true that the issue of a s 20 notice can lead to the automatic cancellation of a visa. However, in this case, the Applicant still had an opportunity to apply for the revocation of the cancellation pursuant to ss 137K and 137L of the Act, In fact, the Applicant availed himself of that opportunity...
28. Sub-division GB contains ss.137J - 137P, which sets up a procedure for automatic cancellation of a student visa where the provider of the education serves a notice on the student under s.20 of the ESOS Act where the student does not comply with that notice by reporting to the Department within 28 days. If that automatic cancellation takes effect, a student who does not report obtains an opportunity to apply for revocation of the cancellation. He can then put forward extenuating circumstances that must be taken into account by the Minister. It is noted that if a student does comply with the education providers notice and does report to the Department before the expiry of 28 days, then a delegate may exercise the mandatory power of calculation under s.116 of the Act. However this does not arise in this matter because clearly Mr Zheng did not attend the Department until September which was well outside of the 28 day notification period.
29. Ms Griffin submits that had the Applicant in this matter applied for revocation of the automatic cancellation under s.137K of the Act prior to the expiry of his visa on 30 August 2009 a delegate of the Minister would have been able to consider, as part of the Applicant’s claim of exceptional circumstances that led to the certification, whether or not the Applicant had in fact breached condition 8202. The Applicant did not apply for revocation of the automatic cancellation prior to the normal expiry of his student visa and there was no opportunity for the Department to consider the Applicant’s claim set out in his affidavit.
30. The operation of s.137K(2) states
    • A non-citizen who is in the migration zone cannot apply for revocation at the time when, because of s 82, the visa would have no longer been in effect anyway had the visa not been cancelled by s 137J.

Mr Zheng’s student visa expired on the 31 August 2009 and is the relevant date for the operation of the above section. The cancellation under s.137J took place on 24 June 2009 but it is irrelevant to the consideration whether the revocation application would be accepted. The first letter from Southpac Services to the Department as an application to the Minister for revocation of the cancellation under s.137K was dated 17 September 2009. A further letter encompassing the same application was dated 1 October 2009 but was not forwarded to the Department until 20 October 2009.

31. To the extent that the Applicant seeks to go behind the s.20 notice is not an issue that can be taken into account by this Court because it does not amount to an administrative decision made under the Act. The obligation to certify the Applicant as not having achieved what is required under condition 8202 is imposed on the education provider under s.19 of the ESOS Act.
32. In the Second Reading Speech before the House of Representatives for the Overseas Students Legislation Amendment Bill 2007 (Cth), Mr Robb (MP) states:
    • The national code 2007 allows international education providers to more effectively manage the educational outcomes of their students. Providers have some discretion as to when they elect to report a student for breaches of visa conditions in relation to attendance, where course progress is satisfactory and compassionate and compelling circumstances exist. The consumer support mechanisms of the provider, such as specified time frames for access to independent dispute resolution processes, have been strengthened. Consequently, when a student is reported to the Department of Immigration and Citizenship for unsatisfactory course progress or attendance, its officers will not look behind the educational judgment of the provider. This amendment will ensure that the provider is responsible for educational issues. The role of the Department of Immigration and Citizenship will be to finalise the student’s visa status.

Conclusion

33. The proceedings before this Court commenced by way of the original application filed on 23 October 2009 is dismissed by reason of the Federal Magistrates Court of Australia’s lack of jurisdiction to consider the application under the Act.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 19 February 2010