Wang v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The application before the Court today is an application by the applicant, Feng‑Jin Wang, for an extension of time within which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court of Australia constituted by Federal Magistrate Connolly, given on 8 August 2005. That was a judgment which arose from an application filed by the applicant on 6 January 2005 seeking judicial review of a decision of the Migration Review Tribunal on 18 November 2004 affirming the decision of the delegate of the Minister for Immigration and Indigenous and Multicultural Affairs to refuse to revoke the cancellation of the applicant's Student (Temporary) (Class TU) visa. 2 The history leading up to the matter is set out in the Federal Magistrate's reasons for judgment and I do not repeat them. The reason why the applicant has applied for an extension of time and needs leave to serve a notice of appeal is that the notice was not filed within the time limited by O 52 r 15 of the Federal Court Rules which prescribes among other things that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced. 3 The judgment was pronounced on 8 August 2005 and the application for an extension of time was filed on 6 September 2005. In support of the application for leave the applicant has sworn an affidavit in which he says that on the date of the judgment his previous solicitors filed a notice of ceasing to act. He also says that at the time of the delivery of the judgment he did not recall being advised of the applicable time limits for lodging an appeal and says, apparently in the alternative, that if he was so advised, he was not able to understand the advice being given due to the fact that English was not his first language. It is not immediately clear whether he is saying he was or was not given advice. 4 It is apparent that the time limit of 21 days went by without him proceeding to instruct solicitors or have them lodge a notice of appeal to this Court. In order for leave to be granted in such circumstances, the applicant has to explain the reasons why the delay occurred and also has to show that he has arguable or reasonable prospects of success on the appeal if leave is granted. The material before me is very sparse on the reasons why there was no notice of appeal filed within the 21 days. I put that issue to one side for present purposes and examine the issue of whether there are arguable or reasonable prospects of success of the appeal in this matter. 5 As I noted earlier, the applicant was the holder of a Student (Temporary) (Class TU) visa subclass 573. It was cancelled on 30 July 2004 for breach of condition 8202 under schedule 8 of the Migration Regulations 1994 (Cth). The applicant had enrolled in a Diploma of Commerce course at the Melbourne Institute of Business and Technology. A non‑compliance notice was issued to him, pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) ("the ESOS Act") on 16 June 2004. On 9 July 2004 the applicant received a written notice of intention to consider cancellation of his visa, which was issued pursuant to s 119 of the Migration Act 1958 (Cth) ("the Act"). 6 The notice specified two grounds. One was that there had been a report from the educational institution, to the department of unsatisfactory academic results of the applicant. The first particular was that: "You failed 2 out of 3 subjects in Semester 1 2004, (1 March - 5 June.)" and the second ground was that: "[You failed] 2 out of 3 subjects in Semester 3 2003 (October 03 - Feb 04)." 7 In fact, the latter ground was not correct. The failure of the applicant had been in semester 2 of 2003. However, a subsequent notice was sent to the applicant which gave as the ground that he did not satisfy the academic requirements for semester 1 of 2004 (1/3/04‑5/6/04), in that he failed two out of his three subjects in this period. The notice asserted that this was a possible breach of condition 8202. 8 The Migration Review Tribunal held that the cancellation decision was mandatory because of the mandatory nature of s 116(3) of the Act. On review before the Federal Magistrates Court, the learned Federal Magistrate took the same view. Visa condition 8202 provided as follows: "8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student - the holder is enrolled in a full‑time course of study or training. (3) A holder meets the requirements of this subclause if: (a) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term and semester of the course; and (b) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course. (4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training." In substance, Visa Condition 8202 required a satisfactory result to be certified by the education provider. This was not done. 9 The learned Federal Magistrate concluded that the court had no discretion in the matter and relied in particular on the decision of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60 and the judgment of Conti J in Minister for Immigration and Multicultural and Indigenous Affairs v Hou [2002] FCA 574. There was also the decision of the Full Court of this Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238, where, in particular at par [66] of the joint judgment of Ryan, Jacobson, and Lander JJ, the Full Court said: "Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa." 10 It was submitted on behalf of the applicant that there was, in substance, a jurisdictional error in the reasoning of the learned Federal Magistrate, because the basis for the exercise of the jurisdiction under s 116(3) had not arisen. It was submitted that the s 119 notice which had been given specified the wrong grounds and that therefore vitiated any of the notices which followed thereafter. It was also submitted that the applicant's medical condition, which was set out extensively in the material before the Tribunal and the Federal Magistrates Court, and before me, was relevant to be taken into account. One may sympathise with the applicant in relation to the medical condition under which he laboured but the medical condition, having regard to the relevant statutory provisions, is not relevant to any consideration before me. 11 Two notices were given pursuant to s 119 of the Act. In the first notice dated 9 July 2004 there was an error in one of the grounds identified. Nevertheless, there was a valid ground specified in that notice. In any event, the second notice dated 30 July 2004 set out correct grounds. That means that the jurisdictional basis for the exercise of the cancellation power under s 116 existed. 12 The end result of the analysis is this. It is not disclosed that there is any error of reasoning in either the reasons of the Tribunal or the reasons of the Federal Magistrates Court. The draft notice of appeal, which has been filed in support of the application, specifies grounds that the Federal Magistrate erred in finding that the Tribunal's decision was not affected by jurisdictional error, because the Magistrate did not find and should have found that the notice of intention to cancel the visa did not comply with s 119 of the Act. 13 As I have noted earlier, the notice of intention did satisfy s 119, certainly in the second notice, but also arguably in the first notice, because there was a valid ground specified. Even if the first notice was vitiated by the incorrect specification of the second ground on which I express no view, the second notice was in its terms, valid, and was not challenged by the applicant. 14 There was also a ground specified in the notice of appeal that the Tribunal's decision was affected by jurisdictional error as the notice sent pursuant to s 20 of the ESOS Act misled the applicant and/or induced him to adopt a course that resulted in him abandoning any benefits to the grounds of exceptional circumstances to avoid the cancellation of the visa that would otherwise have accrued under s 137L(1)(b) of the Act. 15 There is no material before me that indicates that that ground is made out and it was not seriously pursued in the hearing. I am therefore satisfied, on the material before me, that the applicant's proposed appeal has no prospects of success. There was no discretion available under s 116. The visa had to be cancelled in the light of the materials supplied by the educational institution. As I have noted earlier, there is no jurisdictional error attendant upon the decision of the Tribunal or the Federal Magistrates Court. In those circumstances, the application for an extension of time in which to file and serve a notice of appeal is dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.