FEDERAL COURT OF AUSTRALIA Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 152 FENG WANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 2360 of 2003 LINDGREN J 24 FEBRUARY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 2360 OF 2003 BETWEEN: FENG WANG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 24 FEBRUARY 2004 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 2360 OF 2003 BETWEEN: FENG WANG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 24 FEBRUARY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 The applicant ('Mr Wang') applies under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Migration Review Tribunal ('the Tribunal') dated 5 November 2003. By that decision the Tribunal affirmed a decision of a delegate of the respondent (respectively, 'the Delegate' and 'the Minister') to cancel a Student (Temporary) (Class TU) visa held by Mr Wang. 2 In his application in this Court, Mr Wang relies on the following ground only: 'The MRT erred in finding [34] [a reference to the relevant paragraph in the reasons for decision of the MRT] that "in this case the delegate followed the procedure set out in the subdivision E of the Act", when the purported cancellation was made by an officer of the Department and not by a delegate of the Minister.' In other words, the ground of review challenges the authority of the Delegate, apparently on the ground that that person could not in fact have been a delegate of the Minister because he was an officer of the Department of Immigration and Multicultural and Indigenous Affairs ('the Department'). 3 On the application being called on for hearing today, Mr Wang did not appear. Order 32 r 2 of the Federal Court Rules empowers the Court in these circumstances, inter alia, to dismiss the proceeding or to proceed with the hearing. Mr Markus, solicitor for the Minister, has provided helpful and detailed submissions. I will proceed with the hearing. BACKGROUND FACTS 4 Mr Wang is a citizen of the People's Republic of China. He first arrived in Australia on a Subclass 560 (Student) visa granted on 7 March 2000. He was granted a further Subclass 560 (Student) visa on 19 June 2001, and a Subclass 570 (Student) visa on 26 April 2002. 5 On 27 February 2003 Mr Wang was granted a Subclass 573 (Higher Education Sector (Student)) visa on the basis of his ongoing enrolment in the Australian National University ('ANU') Foundation Studies Programme at the Anutech Education Centre ('Anutech'). This visa, the one with which the case is concerned, was subject, inter alia, to Condition 8202 (meet enrolment and course requirements). 6 The reference to Condition 8202 is a reference to Item 8202 in Schedule 8 to the Migration Regulations. Condition 8202 required the holder of a visa to which that condition was attached to be enrolled in a registered course, to maintain a certain standard of course attendance, and to achieve an academic result certified by the education provider to be at least 'satisfactory'. 7 Mr Wang's visa was to have expired on 15 March 2007, but on 1 July 2003 the Director, Student Administration, ANU, issued a notice to Mr Wang pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) informing him that he was in breach of a condition of his visa relating to academic performance, and that if he failed to attend at the Department within 28 days, his visa would be automatically cancelled. The letter advised Mr Wang that pursuant to s 137J of the Migration Act 1958 (Cth) ('the Act'), his visa would cease on the 28th day after 1 July 2003, unless he reported to the Department by that time. The letter also stated that the day count began on the first day after the date of the notice and ended on the 28th day thereafter. 8 The notice gave Mr Wang the following details of the alleged breach: 'Student failed to achieve satisfactory academic results in his first semester and has been excluded from further enrolment in the course.' 9 On 9 July 2003 Mr Wang attended a Departmental interview and was provided with a 'Notice of Intention to Consider Cancellation' in relation to his visa. The notice gave as possible grounds for cancellation that Mr Wang had failed to achieve satisfactory academic results in the first semester of his course, and that that failure resulted in a breach of Condition 8202. It gave as a further ground that Mr Wang was not eligible for 'further enrolment' due to his failure to achieve satisfactory academic results, again breaching visa Condition 8202. Apparently the second ground was intended to refer to Mr Wang's ineligibility to enrol in the following semester of the course. 10 The Notice of Intention to Consider Cancellation was signed by Mr Dave Ryan who held position number 757 in the Australian Capital Territory office of the Department. 11 On 9 July 2003 the Department received from the ANU a copy of Mr Wang's academic transcript which indicated that he had failed three of his four subjects for semester one of his Foundation Studies Program. This document also indicated that his application to study, his progress and his attendance were all 'unsatisfactory'. 12 Mr Wang attended a scheduled further interview at the Department on 17 July 2003 and made representations as to why his visa should not be cancelled. I need not concern myself with what he then said. At the conclusion of that interview, the Delegate proceeded to cancel his visa pursuant to s 116 of the Act. Section 116 empowers the Minister to cancel a visa if the Minister is satisfied that, inter alia, the holder of the visa has not complied with a condition of the visa. The notice of the cancellation referred to Mr Wang's 'failing to achieve satisfactory academic results' in semester one of his course and thereby failing to comply with Condition 8202. The notification of the cancellation decision was dated 17 July 2003 and was also signed by Mr Ryan. 13 On 25 July 2003 the applicant applied to the Tribunal seeking review of the Delegate's decision. The Tribunal held a hearing on 2 October 2003, at which Mr Wang and the principal of ANU Tech both gave evidence. As noted earlier, the Tribunal gave its decision on 5 November 2003. REASONING 14 I set out above the one and only ground relied on by Mr Wang before this Court. On 19 December 2003 directions were made requiring him to file and serve any amended application and any evidence on which he proposed to rely on or before 13 February 2004, and to file and serve any written submissions five working days prior to today's hearing. Neither class of document has been filed or served. On Friday, 20 February 2004, Mr Wang's former solicitor filed a notice of withdrawal of his appearance for Mr Wang pursuant to O 22 r 1 of the Federal Court Rules. 15 The ground relied on by Mr Wang is not made out. Unnecessarily, in view of the fact that the onus rests on Mr Wang, Mr Markus has put the matter beyond doubt by tendering in evidence a copy of an Instrument of Delegation and Authorisation dated 10 April 2003. This instrument makes it clear that Mr Ryan, the holder of position 757 in the Australian Capital Territory office of the Department during the period 6 January 2003 to 10 August 2003, had been delegated by the Minister, the power to cancel visas which is given to the Minister by s 116 of the Act. 16 Mr Markus also submits that the ground of review is misconceived because it attacks the decision of the Delegate rather than the decision of the Tribunal. Mr Markus has cited in support Calvin v Carr (1979) 22 ALR 417; Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 28 ALD 50 and Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72 at 78. I need not address this submission, beyond noting that in its terms, the application does attack the Tribunal's decision, since it asserts that the Tribunal erred in making a particular finding. 17 There is, however, a further matter. The ground relied on by Mr Wang, as stated in the form of application by which he commenced this proceeding, refers to [34] of the reasons for decision of the Tribunal. As stated in the ground set out in Mr Wang's application to this Court (see [2] above), that paragraph was as follows: 'In this case the Tribunal is satisfied that the delegate followed the procedure set down in Subdivision E of Division 3 of the Act.' 18 Subdivision E of Division 3 of Part 2 of the Act says nothing about delegation. As formulated by Mr Wang (see [2] above) , the ground correctly assumes that Subdivision E is concerned with procedures to be followed by, relevantly, a delegate already in place. Apparently, Mr Wong thinks that the Minister is not empowered to delegate power to an officer of the Department. He is wrong: see s 496 of the Act. CONCLUSION 19 For the above reasons the application should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 5 March 2004 The Applicant did not appear Solicitor for the Respondent: Mr A Markus of the Australian Government Solicitor's office Date of Hearing: 24 February 2004 Date of Judgment: 24 February 2004