Chang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1112

FEDERAL COURT OF AUSTRALIA

Chang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1112 MIGRATION – Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector (Student)) visa – non appearance by applicant – no jurisdictional error identified Migration Act 1958 (Cth) s 116(3) Migration Regulations 1994 CHIA-HUEI CHANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No Q 94 of 2004 SPENDER J BRISBANE 24 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 94 OF 2004

BETWEEN: CHIA-HUEI CHANG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 24 AUGUST 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application be dismissed, 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

QUEENSLAND DISTRICT REGISTRY Q 94 OF 2004

BETWEEN: CHIA HUEI CHANG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE: 24 AUGUST 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 In this matter, the applicant has not appeared. When the matter was last before the court, I gave directions. Ms Chang was present and was assisted by an interpreter, Mr Fred Hong, who also appears today to provide assistance as interpreter on Ms Chang's appeal. 2 On 14 July 2004, I ordered that: (a) the respondent file and serve an agreed index for the bundle of documents on or before 4 August 2004; (b) the matter be listed for hearing on 24 August 2004, before me, at not before 11.15 am; (c) Ms Chang file and serve an outline of submissions on or before seven working days before the hearing date; (d) the respondent file and serve an outline of submissions on or before three working days before the hearing date; (e) the parties have liberty to apply on three days notice, and (f) costs be reserved. 3 I am satisfied that those directions or orders, which were interpreted for Ms Chang, were understood by her. 4 On that occasion, I indicated to Ms Chang the need to identify an error of law on the part of the Migration Review Tribunal ("MRT"). The grounds to her application state only: '(a) Uni Semester Report As I wish get my student visa back I'd like to ask reconsiderate the Uni result. (b) Physical Health Condition Wish to reconsiderate the health condition.' 5 On 12 August 2004, a letter was sent to Ms Chang indicating that the matter which had been listed at not before 11.15 am on 24 August 2004, had been advanced to 10.15 am on 24 August 2004. On 13 August 2004, a Deputy District Registrar wrote to Ms Chang reminding her that the matter had been listed for trial, and of the directions I made in respect of submissions on the matter. Ms Chang failed to comply with that direction, and she failed to appear this morning either at 10.15 am or now, when the matter was called on at 11.15 am. It is now 11.25 am. 6 The decision of the MRT to affirm a decision of the delegate of the respondent to cancel the applicant's Student (Temporary) (Class TU) subclass 573 (Higher Education Sector (Student)) visa on 31 March 2004 was based on the failure by the applicant to meet the requirement of condition 8202, which applied to her visa. That condition required Ms Chang to meet certain course requirements. Her visa was cancelled as she failed to satisfy the condition requirement to obtain 'satisfactory academic results.' 7 Section 116(3) of the Migration Act 1958 (Cth) states that: 'If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.' 8 Regulation 2.43(2) of the Migration Regulations 1994 provides: 'For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: … (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) … (ii) condition 8202.' 9 A letter dated 27 November 2003 from the Queensland University of Technology ("QUT") to the applicant stated: 'You have been now enrolled at QUT for nine semesters and have successfully completed a total of only two units. You have also failed three of the four units that you have completed in Semester 2, 2003.' 10 On that material, it seems plain that the Minister was bound to find that the visa holder had breached a condition of the visa and was thus required to cancel the visa. Ms Chang pointed to health problems as the cause of her poor performance. The MRT considered the evidence given by the applicant's doctor and placed 'little weight on it.' 11 The MRT also considered a suggestion by Ms Chang that the results recorded by QUT were wrong, the MRT finding that the results were correct. 12 Notwithstanding the non appearance of Ms Chang to prosecute her appeal and the appropriateness of dismissing the appeal for that reason, it is also the case that I have looked at the material and no jurisdictional error has been demonstrated, nor can any such error be deduced from the material. 13 The relevant considerations were considered by the MRT. It is clear that the applicant has not achieved '… an academic result that is certified by the education provider to be at least satisfactory' as required by condition 8202(1)(b). 14 In the above circumstances, and for the reasons I have expressed, the application should be dismissed, with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .