Du v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1299 (31 October 2003)

Last Updated: 13 November 2003

FEDERAL COURT OF AUSTRALIA

Du v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1299

JIANG DU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

N348 OF 2003

EMMETT J

31 OCTOBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N348 OF 2003

BETWEEN:	JIANG DU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT DIMITRA PSIROUKIS in her capacity as a delegate of the First Respondent SECOND RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	31 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed;

2. the applicant 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	N348 OF 2003

BETWEEN:	JIANG DU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT DIMITRA PSIROUKIS in her capacity as a delegate of the First Respondent SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	31 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 24 May 2001, a student visa was granted to the applicant. The visa was valid up to 15 March 2002. On 16 November 2001, the applicant was notified of the intention on the part of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (`the Minister'), to consider cancelling the visa. On the same day, the applicant applied for a new student visa.

2 On 8 January 2002, the applicant attended an interview with a delegate of the Minister, and was given a second notice of intention to consider cancelling his visa. On 17 January 2002, he attended a further interview, and on that day, a decision was made to cancel the existing visa. On 21 January 2002, the applicant applied to the Migration Review Tribunal (`the Tribunal') for review of the decision of the Minister's delegate to cancel his existing visa. On 2 April 2002, the Tribunal made a decision setting aside the decision to cancel the visa.

3 On 22 January 2002, a decision was made by a different delegate of the Minister to refuse the application for a new visa that had been made on 16 November 2001. The applicant commenced a proceeding in the High Court of Australia for prerogative writ relief in respect of the decision to refuse the application for a new visa. That proceeding was commenced on 28 May 2002.

4 On 6 February 2003, Gaudron J ordered that the further proceedings in the application to the High Court be remitted to this Court, and that the application proceed in this Court as if the steps already taken in the High Court had been taken in this Court. The proceeding remitted by the High Court to this Court is now before me for hearing.

5 The draft order nisi filed on behalf of the applicant specifies that the ground upon which relief is sought is that the decision to refuse a visa was made in breach of s 57 of the Migration Act 1958 (Cth) (`the Act'). Section 57(2) of the Act provides that the Minister must:

* give particulars of relevant information to an applicant;

* ensure, as far as is reasonably practicable, that the applicant understands why the relevant information is relevant to consideration of the application;

* invite the applicant to comment on the relevant information.

`[R]elevant information' is defined in s 57(1) as information that:

* the Minister considers would be the reason, or part of the reason, for refusing to grant a visa;

* is specifically about the applicant; and

* was not given to the applicant for the purposes of the application.

6 The Minister contends that the applicant is not entitled to maintain the proceeding in this Court because of the operation of s 476 of the Act. Section 476(1) of the Act provides that the Federal Court of Australia does not have any jurisdiction in relation to a `primary decision'. A `primary decision' is defined in s 476(6) as a `privative clause decision' that is reviewable or has been reviewed under the Act, or would have been so reviewable if an application for review had been made within a specified period. A `privative clause decision' is, by the operation of s 474(2), a decision of an administrative character made under the Act. If the decision in question involved jurisdictional error on the part of the Minister's delegate, such as a significant denial of procedural fairness, the decision would not be a decision made under the Act. In such circumstances, s 476 would not apply.

7 It is necessary to have some regard to the delegate's decision under consideration. The application for a new student visa, which was lodged on 16 November 2001, specified a subclass 572 Student (Temporary) Visa. The scheme of the Act and the Migration Regulations 1994 (Cth) (`the Regulations') requires that the criteria specified in the Regulations must be satisfied before such a visa can be granted. One of the criteria for the grant of such a visa is that the applicant has complied substantially with the conditions to which the visa, if any, held or last held by the applicant, is or was, subject.

8 The visa that was held by the applicant at the time of his application of 16 November 2001 was subject to condition 8202. Condition 8202 is that, in the case of a holder whose education provider keeps attendance records, the Minister be satisfied that the holder attends for at least 80 per cent of the contact hours scheduled for each term and semester of a course that runs for at least a semester.

9 The reasons of the delegate record that the applicant was interviewed at the Rockdale Student Compliance Centre on 17 January 2002. At the time of that interview the applicant provided attendance certificates from the University of New South Wales where the applicant had been enrolled. The certificates stated that between 28 January 2001 and 26 June 2001 the applicant's attendance was 89 per cent. However, between 23 July 2001 and 27 August 2001, the applicant's attendance record dropped to 55 per cent.

10 The applicant was asked at the interview what was his reason for such poor attendance. He replied he was sick with a fever and he provided medical certificates in support of that assertion. According to the delegate's reasons, the applicant was interviewed about the genuineness of those certificates and, subsequently, revealed that he purchased the certificates fraudulently in order to raise his attendance levels at the University of New South Wales.

11 The delegate referred to the doctor's certificates provided by the applicant in support of his poor attendance record. The delegate's reasons record that the evidence provided had been found to be fraudulent and referred to the decision of the other delegate to cancel the existing visa. The delegate who made the decision presently under consideration similarly gave no weight to those certificates and found the certificates as insufficient evidence. The delegate also recorded that, even if the certificates were found to be authentic, they would only make up for 8 days of incapacity and hence the applicant would still have failed the 80 per cent attendance requirement. The delegate's reasons record that no evidence was provided to account for the applicant's total absences for the second semester in 2001. The delegate was, therefore, unable to be satisfied that the applicant met the relevant criteria because he had breached Condition 8202 of the previous visa.

12 It is clear from the reasons of the delegate that the applicant was invited to comment on the question of his poor attendance record at classes of the University of New South Wales. He was questioned about the attendance certificates that he provided and it must have been obvious to the applicant that it was relevant to consider the attendance certificates in relation to the question of whether or not he had complied substantially with the conditions to which his then existing visa was subject. Accordingly, I am not persuaded that there was a failure to comply with s 57 of the Act.

13 It follows that the ground relied upon by the applicant is not established. It would follow that there is no basis for concluding that the decision of the delegate under consideration was other than a decision made under the Act. The consequence would be that, by the operation of s 476(1), this Court has no jurisdiction in relation to that decision. It would follow, therefore, that the application must fail.

14 However, before finally disposing of the matter, I should observe that one question that caused me some disquiet was the fact that the reason for cancelling the earlier visa was the failure to comply with Condition 8202. On review of that decision by the Tribunal, the Tribunal concluded that there was no basis for cancelling the visa under s 116, as the Minister's delegate had purported to do. The only question before me, of course, is whether or not there is a ground established for review of the decision to refuse the application for a further visa. Nevertheless, it would be unfortunate if there remained on foot two decisions of an administrative character in relation to the same question which were inconsistent.

15 The Minister contends, however, that examination of the reasons of the Tribunal for setting aside the decision to cancel the earlier visa demonstrates an error such that it cannot be said that there would be, in fact, any inconsistency in the decisions.

16 Condition 8202 is that the Minister be satisfied as to the matters specified. In the course of its reasons, the Tribunal observed that it was not possible to conclude that the applicant had failed to attend 80 per cent of the contact hours for term two of 2001. That, of course, is not the question. It is not a question of whether the Minister is satisfied that the applicant failed to attend 80 per cent of classes. The condition is that the Minister is satisfied that the applicant has attended 80 per cent of the contact hours.

17 By the time that the Tribunal's decision was given, the earlier visa would have expired by effluxion of time, had it not been cancelled earlier. There was, therefore, no utility for any application by the Minister for review of the Tribunal's decision.

18 The Minister also pointed to determinations made by the Tribunal that were erroneous as a matter of fact. Those matters may not have been a ground for review of the Tribunal's decision at the instigation of the Minister. However, the matters do dispel any disquiet that might otherwise arise by reason of the possibility of inconsistent conduct on the part of administrative functionaries of the Commonwealth.

19 As I have said, I am not persuaded that there is any ground for the grant of relief as claimed. I am not satisfied that this Court has jurisdiction. In those circumstances, accordingly, it follows that the application should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 12 November 2003

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	31 October 2003
Date of Judgment:	31 October 2003