Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1934

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1934 YING YING CHEN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD764 OF 2005 EMMETT J 23 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD764 OF 2005

BETWEEN: YING YING CHEN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 23 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the proceeding. 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 NSD764 OF 2005

BETWEEN: YING YING CHEN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 23 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a national of the Peoples' Republic of China. On 18 August 2003, she applied for a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) ('the Act'). On 12 December 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant the visa. 2 On 7 January 2004, the appellant applied to the second respondent, the Migration Review Tribunal ('the Tribunal'), for review of the delegate's decision. On 29 October 2004, the Tribunal affirmed the decision under review, finding that the appellant was not entitled to the grant of a Student (Temporary) (Class TU) visa. 3 The appellant then commenced a proceeding in the Federal Magistrates Court of Australia by way of application under s 39B of the Judiciary Act 1903 (Cth) seeking Constitutional writ relief in respect of the Tribunal's decision. That proceeding was commenced on 24 November 2004. On 20 April 2005, for reasons then given, Scarlett FM ordered that the proceeding be dismissed and ordered the appellant to pay the Minister's costs. 4 On 18 May 2005, the appellant applied to this Court for an extension of time within which to file and serve a notice of appeal from the judgment of Scarlett FM. On 7 June 2005, Hely J ordered that the appellant be granted an extension of time and gave directions for the preparation of the appeal for hearing. On 9 June 2005, the appellant filed a notice of appeal pursuant to Hely J's order. The Chief Justice has directed that the appeal be heard by a single judge. 5 The issue raised in the appeal is a simple one and involves the question of whether or not the appellant has satisfied the criteria in clause 573.212 and clause 573.226 of Schedule 2 to the regulations made under the Act. Those criteria require that the decision-maker be satisfied that the appellant had complied substantially with condition 8202 of the visa that she then held. 6 Condition 8202 in the form that was applicable on 19 April 2002, being the date on which the visa held by the appellant was granted, was relevant in the following terms. (1) the holder must meet the requirements of subclauses (2) and (3); (2) a holder meets the requirements of this subclause if the holder is enrolled in a registered course; (3) a holder meets the requirements of this subclause if 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. 7 In the delegate's decision of 12 December 2003, the delegate stated the following as the reason for refusing her visa: 'In a written statement received by this office on 17 November 2003, the University of Western Sydney stated that while Ms Ying Ying Chen was studying at the university, she had failed to meet the minimum progression requirements of her course. As a result of that she was suspended from her course for two sessions of study. As her education provider has certified that Ms Chen did not achieve satisfactory academic results, I find that she does not satisfy criterion 573.212. With consideration to the aforementioned information I am therefore unable to be satisfied that the applicant meets regulation 573.226. ... In view of the findings of fact and the assessment above, I find that the applicant does not satisfy all of the prescribed criteria for any of the subclasses of visa within the Student (Temporary) Visa. I therefore refuse the grant of a Student (Temporary) (Class TU) visa…' Those reasons were furnished to the appellant prior to her application to the Tribunal. 8 On 24 March 2004, the Tribunal communicated with the University of Western Sydney relevantly saying as follows: 'The Tribunal is currently undertaking a review of a decision to refuse Ms Chen a student visa. In order to facilitate the review could you please provide a copy of the students academic records for the whole period she was enrolled. Could you also provide the semester dates for the academic years 2001, 2002 and confirm whether Ms Chen was enrolled at your institution in 2002. It is the Tribunal's understanding that the student was suspended from her course as she failed to meet minimum progression requirements, could you please indicate which sessions the suspension corresponds to.' 9 The University of Western Sydney responded on the same day, relevantly saying: 'This is to confirm that Ms Ying Ying Chen… was enrolled as a full fee paying student at the University of Western Sydney. Ms Chen was enrolled in the Bachelor of Commerce (Accounting) from February 2001. In February 2002 Ms Chen transferred into the Bachelor of Business (Accounting) and continued in this degree until she was discontinued from the University on 31st July 2003. Please see attached transcript. The UWS Autumn Semester runs from March until June every year. The UWS Spring Semester runs from August until December every year. The UWS Winter Semester runs between June and August and the UWS Summer Semester runs between December and March.' The academic transcript was attached, the particular details of which are not presently relevant. Having received that communication, the Tribunal wrote to the appellant on 2 April 2004, relevantly saying: