Wei v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1552

FEDERAL COURT OF AUSTRALIA

Wei v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1552 QIANG WEI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL NSD 1721 OF 2005 STONE J 1 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1721 OF 2005

BETWEEN: QIANG WEI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 1 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 1721 OF 2005

BETWEEN: QIANG WEI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE: 1 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal from the judgment of a Federal Magistrate delivered on 22 August 2005. His Honour dismissed an application challenging a decision of the second respondent, the Migration Review Tribunal ('the Tribunal'), affirming a decision of a delegate of the first respondent ('the Delegate') to cancel the applicant's Subclass 573 (Higher Education Sector) visa.

Background 2 The applicant first arrived in Australia on 13 December 2002 as the holder of a Student (Temporary) (Class TU) Subclass 573 visa. On expiry of his initial visa on 29 May 2003 the applicant was granted a further Subclass 573 visa which was due to expire on 31 March 2006. 3 By letter dated 14 July 2004, the applicant's education provider, Sydney Institute of Business and Technology ('the Institute'), wrote to the applicant by way of notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) ('ESOS Act') informing him that he had breached a condition of his student visa relating to satisfactory academic performance, namely condition 8202. Relevantly, the letter provided: 'Particulars of breach: …Academic Progress: 2003/01 Yes. 2003/02 Yes, 2003/03 Yes, 2004/01 No. Student has been excluded from [the Institute]. Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter. You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office: AUSTRALIA (Sydney CBD) Level 4, 26-30 Lee Street SYDNEY NSW 2000 Australia Telephone: 131881 with photographic identification of yourself (preferably your current passport), and a copy of this notice, to explain the breach of your student visa condition as specified above. If you fail to bring satisfactory identification to DIMIA, the automatic visa cancellation process will continue and your student visa will be cancelled. If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or nor to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred.' 4 On 11 August 2004, the applicant approached the Department of Immigration and Multicultural and Indigenous Affairs ('the Department'). At this time he was given a Notice of Intention to Consider Cancellation. The notice stated that there were possible grounds for the cancellation of the applicant's visa. 5 The applicant attended an interview with the Delegate on 18 October 2004. At the interview he stated that there were two reasons why his visa should not be cancelled. First, because he had a 'sickness in his stomach', which he had had since he was 12 years old and which causes difficulty sleeping. Second, that he had 'tried his best' at the Institute, however this was not sufficient. The applicant indicated that he had changed schools and was now doing well. On the same day as the interview, that is 18 October 2004, the Delegate proceeded to cancel the applicant's visa for breach of condition 8202(3) pursuant to ss 116(1)(b) and 116(3) of the Migration Act 1958 (Cth) ('Migration Act') and reg 2.43(2)(b) of the Migration Regulations 1994 (Cth).