Nguyen v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 On 10 December 1999 the applicant was granted a Student (Temporary) (Class TU) visa, Subclass 560, valid until 7 March 2002. 2 The visa was issued subject to condition 8202. It is accepted that as and from 1 December 1998 condition 8202 read: "The holder must: · be enrolled in a registered course; and · attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and · if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and · comply with any requirement of the education provider in relation to payment." 3 On 15 May 2000 the Minister cancelled the applicant's visa for non-compliance with condition 8202. Counsel for the applicant accepted that the applicant's attendance at classes and tutorials did not conform to the requirements of the condition. There was evidence that she had only attended 40 per cent of the classes and tutorials scheduled for the course, rather than the 80 per cent attendance level required by the condition. 4 On 28 June 2000 the Migration Review Tribunal ("MRT") affirmed the decision to cancel the applicant's Subclass 560 (Student) visa. MRT found that the visa applicant breached condition 8202. Cancellation of her visa was thus required and there was no discretion in the decision to cancel the visa. 5 The applicant is the mother of a young child. She told the Tribunal that she was unable to attend her classes due to the illness of the child. The applicant relies on Australia's ratification of the United Nations Convention on the Rights of the Child as giving rise to a legitimate expectation that decision-makers would give primacy to the best interests of the applicant's child, who is necessarily affected by the decision: see Minister for Immigration & Ethnic Affairs v Teoh (1994-1995) 183 CLR 273; Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608. It is said that clear and unambiguous words are required before a statute would be construed as displacing that expectation: Bropho v Western Australia (1990) 171 CLR 1 at 17. 6 Section 116(1)(b) of the Migration Act 1958 (Cth) ("the Act") provides that the Minister may cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. Section 116(3) provides that if the Minister may cancel a visa under sub-section 1, the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2) provides: "For sub-section 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: (a) ... (b) in the case of a Student (Temporary) (Class TU) visa - that the Minister is satisfied that the visa holder has not complied with condition 8202." Whilst elements of evaluation or judgment may be involved in determining whether or not the Minister is satisfied that the visa holder has not complied with condition 8202, his decision in that respect does not involve the exercise of a discretion. 7 In my view, there is no substance in the applicant's argument, even assuming that the factual foundations for it have been sufficiently established by the evidence. The Convention does not form part of Australian municipal law: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438. The operation of the Act and Regulations is such that cancellation of the applicant's visa was required once the Minister was satisfied that the applicant had not complied with condition 8202. In such circumstances, Australian law unambiguously requires the cancellation of the visa. There is no legal principle which permits a decision-maker to ignore or to set aside the requirements of Australian law in favour of the Convention: Sikahele v Minister for Immigration & Multicultural Affairs [1998] FCA 1453; Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118. The applicant sought to distinguish those cases upon the basis that they were concerned with provisions which established a time limit within which an application must be made. There is no substance in this supposed distinction. 8 The Teoh principle cannot be relied upon to modify what would otherwise be the operation of Australian law in particular circumstances. 9 Even in the area where the Teoh principle operates, it is only relevant to questions of procedural fairness. If there is a denial of the legitimate expectation which is the foundation of the principle, then the result may be that there is a denial of natural justice. But s 476(2) of the Act expressly provides that breach of the rules of natural justice is not a ground on which application may be made for a review of a decision. 10 The application should be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.