Pathirana v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1051

FEDERAL COURT OF AUSTRALIA

Pathirana v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1051 MARLIN NILANTHA PATHIRANA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 546 of 2004

RYAN J

9 AUGUST 2004

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 546 of 2004

BETWEEN: MARLIN NILANTHA PATHIRANA

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 9 AUGUST 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for an order nisi be refused with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 546 of 2004

BETWEEN: MARLIN NILANTHA PATHIRANA

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 9 AUGUST 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an application for an order nisi calling on the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), to show cause why a writ of prohibition should not issue prohibiting further proceedings in the Migration Review Tribunal ("the Tribunal") arising out of cancellation of the applicant's student subclass 573 visa ("the visa"). 2 The applicant also seeks a writ of certiorari to quash the decision of the Tribunal of 16 July 2003 affirming a decision of a delegate of the Minister to cancel the applicant's visa. The application for prerogative relief was commenced in the High Court and was remitted to this Court by Hayne J who, on 16 February 2004, ordered; '(1) The further proceeding in this application for an order nisi for writs of prohibition and certiorari be remitted to the Federal Court of Australia, Victoria District Registry. (2) The application for an order nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court. (3) The Deputy Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court. (4) Costs of the matter,(including the costs of the application to the date of this order) be reserved to the Federal Court of Australia. 3 The affidavit in support of the application for an order nisi rehearsed facts almost all of which are common ground between the applicant and the Minister. The affidavit is not directed to the grounds on which it was claimed the proposed order nisi should be granted. Those grounds were; '(1) The decision made by the Second Respondents (the Tribunal)

(a) was made without jurisdiction or is affected by an error of jurisdiction;

(b) is affected by an error of law;

(c) is so unreasonable that no reasonable decision-maker could have made it;

(d) is based on a finding for which there was no evidence or other material;

(e) takes into account irrelevant considerations;

(f) fails to take into account relevant considerations;

(g) was an improper exercise of power conferred by the Migration Act 1958;

(h) was otherwise contrary to law;

(i) was made in bad faith.

Particulars Particulars will be provided.' 4 The second ground was; 'Further or in the alternative, the Second Respondents (a) failed to accord the applicant natural justice (b) failed to follow the procedures required by the Migration Act; (c) asked the wrong question or misconceived her duty. Particulars Particulars will be provided.' 5 The third ground was; 'In the alternative, and in the event the amendments to Part 8 of the Migration Act 1958 introduced by the Migration Legislation Amendment Judicial Review Act 2001 are unconstitutional. (a) that procedures that were required by the Migration Act 1958 or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have the jurisdiction to make the decision. (c) that the decision was not authorised by the Migration Act 1958 or the regulations. (d) that the decision was an improper exercise of the power conferred by this Act or the regulations. (e) that the decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias. (g) that there was no evidence or other material to justify the making of the decision. Particulars Particulars will be provided.' 6 After the matter had been remitted to this Court, I ordered by consent, on 2 June 2004, amongst other things; '(2) The applicant file and serve an amended application for an order of review containing proper particulars of the grounds relied upon by 2 July 2004. … (4) The applicant file and serve contentions of fact and law by 9 July 2004.' 7 No particulars in accordance with those directions have been supplied, and the applicant has not filed and served contentions of fact and law by the due date or at all. However, I have been supplied with a copy of a letter written by the applicant to the solicitors for the Minister which is in these terms; 'I refer to your letter dated 4 July 2004. I am writing in my own words my facts and reasons as I don't have a lawyer to represent me. Mr Chandra Weerakoon submitted my story to MRT on may 19, 2003. I have completed my Certificate IV and Diploma, in Information Technology in May, 2002. As I mentioned before my father's death effected me, financially and mentally. The main reason to cancel my student visas is due to non payment of the balance of my University fees of $2000. Also my mentally was very poor for me to attend university and do examination properly. I only worked minimum hours that I was permitted under my Student Visa class. My father always sent me money and helped with every way. His sudden death shocked my family and my day to day life. After my fathers death we had court case with my brother-in-law against our property. According to Sri Lanka's law we cannot lease properties when there is a dispute. Now the case is over. My mother has leased the properties that my father had, which is a city building and apartment. My mother has a sufficient income to support me with the rest of my studies. I have 1˝ years to complete my degree. My only ambition is complete my degree and go back to home to my mother and my family. My Diploma is getting out dated as I have completed in May 2002. All my batch mates are already completed there studies and getting with their lives. Some times I am getting depressed, my life is on hold because of my visas, I cannot studies or work, just wasting time of my youth. Last two years my life has been miserable. I am begging here to give my student visas to continue my studies and to start my life. I am 26 years old. I kindly anticipate your kindly consideration making the decision about above appeal of my situation.' 8 The applicant has been in Australia since 6 February 1998. He has held a succession of student visas before the visa which, had it not been cancelled, would have expired on 30 July 2003. On 30 December 2002, the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") wrote to the applicant informing him that it had information to indicate that he had failed to comply with Condition 8202 of Schedule 8 to the Migration Regulations (1994) ("the Regulations"). 9 The letter from the Department invited the applicant to attend an interview with a departmental officer on 14 January 2003. On 22 January 2003 a delegate of the Minister decided to cancel the visa pursuant to s 116(1)(b) and s 116(3) of the Migration Act (1958) (Cth) ("the Act"). On 30 January 2003 the applicant applied to the Tribunal for a review of the delegate's decision to cancel the visa, and on 9 April 2003 the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment on information which it had received to the effect that he had failed all four subjects which he had undertaken at the Holmesglen campus of Charles Sturt University in the first semester of 2002. 10 The same letter also invited the applicant's comment on a claim by Central Queensland University ("CQU") that he had not paid tuition fees owing to that provider. On 20 May 2003, the applicant provided by way of a letter from Mr Chandra Weerakoon, the solicitor referred to in the applicant's letter of 2 August 2004, from which I have already quoted. Mr Weerakoon directed observations to the apparently unsatisfactory academic performance of the applicant and to the non-payment of tuition fees said to be owing to CQU. As well, on 8 July 2003, the applicant attended at a hearing before the Tribunal when he was represented by Mr Weerakoon, but on 16 July 2003 the Tribunal affirmed the decision of the delegate to cancel the visa. 11 Regulation 2.43(2)(b) of the Regulations sets out the prescribed circumstances in which a visa must be cancelled. Paragraph (b) includes among those circumstances; '(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with (i) condition 8104 or 8105 (if the condition applies to the visa) or (ii) condition 8202.' Condition 8202 stipulates that; (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 subsection if: (a) the holder is enrolled in a registered course; or (b) in the case of a holder of a Subclass 560 or 571(School 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 requirement 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. 12 The Tribunal concluded that the applicant's failure to comply with the condition in 8202(3)(b) had the effect that cancellation of his visa was mandatory. It observed; 'The Federal Court in Pradhan's case supra found that the scheme of the Act and Regulations does not provide for variation of conditions during the term of the visa. Consequently the operative version of condition 8202 is the version that was applicable at the time of visa grant. The Tribunal must consider whether the applicant had breached the relevant version of condition 8202 contained in Schedule 8 in the Regulations. At the time of visa grant condition 8202 provided …' The Tribunal then set out the text of that condition which I have already quoted. It continued, at par 29 of its decision; 'Condition 8202 as it appears in Schedule 8 of the Migration Regulations requires that the applicant be enrolled in a registered course, enrolled in fulltime study or training, attends 80% of contact hours scheduled, and achieves an academic result that is certified by the education provider to be at least satisfactory. In the present case, Charles Sturt University informed the Department that the review applicant did not meet course requirements during semester 1 2002, as he failed all 4 subjects he was enrolled in. The review applicant then enrolled in a course at CQU, but his enrolment was cancelled as he failed to pay tuition fees. The evidence indicates that the visa applicant did not achieve a satisfactory academic result in semester 1 of 2002, nor was he enrolled in a registered course whilst at CQU. Each of these matters amount to a breach of condition 8202 then attaching to his visa. The Tribunal finds that the review applicant breached condition 8202 of his last substantive visa held. Although the reasons given for the breaches are understood by the Tribunal, it does not have a discretion to set aside the cancellation where it is satisfied that the breach has occurred. Having found that the review applicant breached the condition, the Tribunal has no discretion on the basis of the cases previously cited, to set aside the cancellation of the visa. The Tribunal finds that: (a) the review applicant breached section 116(1)(b), (b) Cancellation is mandatory in accordance with section 116(3).' 13 The cases previously cited to which the Tribunal referred were Minister for Immigration and Multicultural and Indigenous Affairs v Hou (2002) FCA 574, per Conti J, and Minister for Immigration and Multicultural and Indigenous Affairs v Nguyen (2002) FCA 460, per Emmett J. In my view those judgments support the conclusion reached by the Tribunal and there can be no suggestion, on the present state of authority, that either of those judgments can have a contrary effect. 14 It follows that the conclusion reached by the Tribunal is unexceptionable, and was the only conclusion which the Tribunal could have reached. Even if, as suggested by the grounds of the application to the High Court, there had been some failure to accord procedural fairness to the applicant, (and there is no evidence in support of those grounds), any such failure could not avail the applicant; see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said, at 384; 'For an error of law to be involved in a decision, something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way, or at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision, or if the decision must have been the same regardless of the error. Thus to show that an error of law is involved in a decision it is necessary at the very least to show that the decision may have been different if the error had not occurred. This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond. See Kioa v West (1985) 159 CLR 550 at 603.' 15 I accept, as did the Tribunal, that family circumstances in Sri Lanka may have provided an explanation for the unsatisfactory progress which the applicant made in his studies at Charles Sturt University in the first semester of 2002. I also accept that the family difficulties to which he has made reference may have contributed to his inability to pay the fees required by CQU in order to maintain his enrolment with that provider in the second semester of 2002. However, like the Tribunal, the Court has no discretion in the absence of a certificate from a course provider of an academic result that is at least satisfactory, to set aside the cancellation of a visa of the present kind. 16 It seems that a consequence of the cancellation of the applicant's last substantive visa may be that he is precluded, by force of s 48 of the Act, from obtaining a fresh student visa while remaining in this country. I am not to be taken as holding that there is no residual discretion in the Minister to override what appears to be an absolutely statutory bar, but that is not a question with which this Court can be concerned on the present application as remitted from the High Court. For the reasons which I have explained, the application for an order nisi must be refused, with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 9 August 2004

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Mr R Knowles

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 9 August 2004

Date of Judgment: 9 August 2004