FEDERAL COURT OF AUSTRALIA Qi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1300 TIAN ZI QI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 225 of 2002 WHITLAM J 24 OCTOBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 225 of 2002 BETWEEN: TIAN ZI QI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: WHITLAM J DATE OF ORDER: 24 OCTOBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the 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 N 225 of 2002 BETWEEN: TIAN ZI QI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: WHITLAM J DATE: 24 OCTOBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal ("the Tribunal") made on 25 February 2002 affirming the decision of a delegate of the respondent ("the Minister") to cancel the applicant's student visa. 2 The applicant is a Chinese national born on 12 November 1983 who arrived in Australia on 16 May 2000. The visa in question was granted to him on 21 August 2000 and permitted him to remain in Australia until 15 March 2003. It was subject to statutory condition 8202, which provided (inter alia): "(c) 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;" The expression "contact hours" used in the condition is defined in the Migration Regulations 1994 as follows: "contact hours, for a course for a period, means the total number of hours in the period for which students enrolled in the course are scheduled to attend classes for teaching purposes, course-related information sessions, supervised study sessions and examinations." 3 On 18 September 2001 the International Students Coordinator at Concord High School notified the NSW Department of Education and Training of concern about the applicant's attendance at school and gave details of his absences, lateness and truancy. She said that the applicant had "a 67% attendance rate". The NSW Department then sent the applicant a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth). The notice contained particulars of the breach of the visa condition and required him to attend the Rockdale office of the Department of Immigration and Multicultural Affairs ("DIMA") for the purpose of explaining the breach. 4 At DIMA's Rockdale office on 19 October 2001, the applicant was given notice of the intention to consider cancelling his visa. He was asked to provide his comments at an interview on 2 November 2001. Following an interview on that date, a delegate of the Minister determined that the applicant had not complied with condition 8202 and cancelled the visa. 5 On 8 November 2001 a migration agent lodged with the Tribunal an application for review of the delegate's decision. Documents and written arguments were later forwarded to the Tribunal. On 28 November 2001 the Tribunal invited the applicant under s 359A of the Migration Act 1958 (Cth) ("the Act") to comment in writing on the following information: "● Advice from the NSW Department of Education and Training that your attendance rate was 67%. ● You submitted medical certificates to DIMA that you admit were fraudulent." 6 The applicant gave his comments on this "information" in a letter dated 3 December 2001, in which he particularly addressed a two-page printed document purporting to detail his absences for the year to 16 October 2001. The applicant subsequently appeared before the Tribunal on 30 January 2002. 7 In its reasons for decision the Tribunal noted the fact that the applicant had provided comments in response to the invitation under s 359A of the Act, but it did not outline at all the substance or general drift of those comments. The Tribunal did refer, however, to the evidence given by the applicant at the hearing, and then tersely set out its findings in this way: "33. A summary of the evidence is as follows: 34. The Tribunal examined the review applicant's student history and asked a number of questions of him. He denied the allegations of the Department in regard to the fraudulent medical certificates though the Tribunal read out to him the actual Departmental file note and date of the Departmental allegation. He was asked if he had ever been counselled about his infraction by the Deputy headmaster of his school. He said that he had been but that shortly after this the Department had cancelled his visa. He did not deny breaching his visa and did not advance in the hearing any 'misadventure' claims other than that his ankle had been giving him constant pain. FINDINGS 35. The Tribunal makes the following findings: · The review applicant has not established any basis for an alternative finding to that of the delegate at first instance. Despite his obvious youth and immaturity the Tribunal does not believe the review applicant is 'genuine student' [sic]. His denial of the Departmental allegations concerning the medical certificate fraud is not credible. His pleas to be given another chance fly in the face of a serious breach of condition 8202 which stipulates mandatory visa cancellation." 8 The applicant submits that the Tribunal's "findings" in [35] of its reasons reproduced above reveal jurisdictional error of a kind explained in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346. Whilst the evidence before me does not include a transcript of the Tribunal hearing on 30 January 2002, the applicant would appear to have a strong chance of making out such error. However, s 474(1) of the Act stands in his way. 9 It must be accepted that, generally speaking, s 474(1), as construed by the majority in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, validates a decision of the Tribunal that otherwise would be affected by jurisdictional error. The applicant did not submit that the Tribunal's exercise of power in the present case contravened a structural element in the legislation. However, the applicant did submit that the Tribunal had not satisfied the first proviso of the principle of statutory construction of such a privative clause laid down by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-615. 10 The applicant's case that the Tribunal has not made a bona fide attempt to exercise its power rests on what his counsel described as the "dearth" of findings by it. For this purpose counsel analysed in exquisite detail material that was before the Tribunal. Essentially this exercise involved a more sophisticated examination of the requirements of par (c) of statutory condition 8202 and of expressions used in it against the background of the factual assertions in the applicant's letter dated 3 December 2001, other documentary evidence and certain not unreasonable assumptions about school hours and course requirements. The applicant mounted a strong argument that the Tribunal ignored or overlooked material that was relevant to the issue whether his attendance was nearer to the required 80% level. The Tribunal's finding that the applicant was not a "genuine student" was also quite irrelevant to the condition 8202 issue. However that may be, in my view, the applicant has not established that the Tribunal showed such a "conscious disregard for the task it was statutorily bound to perform" that its exercise of power did not meet the first of the so-called Hickman conditions: Kan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 923 at [36]. Here I cannot be satisfied that there was "a deliberate effort to find evidence or manipulate evidence in order to defeat the applicant's claim": Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 at [63]. 11 The application will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 24 October 2002 Counsel for the applicant: N C Poynder Counsel for the respondent: G R Kennett Solicitors for the respondent: Blake Dawson Waldron Date of hearing: 9 October 2002 Date of judgment: 24 October 2002