Case: Wang v Minister for Immigration and Citizenship [2007] FCA 488
Outcome: followed
The circumstances in Wang v Minister for Immigration and Citizenship [2007] FCA 488 are similar to those in this case. Ms Wang did not make satisfactory progress and failed a number of subjects. She was excluded by the relevant Faculty for unsatisfactory academic progress. A delegate of the Minister decided that there had been a breach of Condition 8202 and concluded that the decision to cancel the student visa was mandatory. Ms Wang applied to the Tribunal for review. The Tribunal sent her a letter in purported compliance with s 359A of the Act. Justice Besanko concluded that the letter did not comply with s 359A(1)(b) of the Act. The Minister did not dispute that such failure constituted jurisdictional error (at [29] to [30]). His Honour considered the finding of the Federal Magistrate that it would, in any event, be futile to grant relief. The Federal Magistrate had based this conclusion on the fact that the appellant had not sought to adduce any material to indicate that the academic performance could or should have been altered. The appellant had submitted that, as long as there was a theoretical possibility that relief would not be futile, the discretion should not be exercised to refuse relief (at [31]). 26 Justice Besanko observed at [32] that the only way in which a cancellation of the student visa could be avoided was if the university's decision not to certify the appellant's academic results as satisfactory was altered. There, as here, the decision by the university to exclude the appellant had been taken some two to three years ago. There, as here, it was not suggested that, since the Delegate's decision, the university had been approached to alter its decision or that there were any proceedings on foot to achieve that result. His Honour held at [32] that ' at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant's student visa '. 27 In Wang , as here, futility is not to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A of the Act or by asking if a decision by the Tribunal in the future to refuse the application were inevitable because there has been no relevant change of circumstances. Justice Besanko was of the view, consistent with Allsop J in SZEEU , that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at [32]). In the present case, as in Wang , the Tribunal was so bound and it was not possible that the Tribunal would reach a different result (cf Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536). I agree, with respect, with the reasoning of Besanko J. 29 The Tribunal applied the wrong test to the question of substantial compliance with Condition 8202 in circumstances where there was no compliance with Condition 8202(3)(b). The s 359A letter was referable to the Tribunal decision which was based not upon compliance with Condition 8202(3)(b) but upon whether there had been "substantial" compliance with that condition. That constituted jurisdictional error. However, Condition 8202 had not and could not have been complied with. The appellant submits that there is a theoretical possibility that, had he been informed in accordance with s 359A of the Act that the reason for the Tribunal decision was the lack of certification of at least satisfactory academic performance, he might have approached the University and requested that it provide the necessary certification. As in Wang , at a practical level, this had not been achieved, would not have been achieved and could not have been achieved. The inevitable result of a rehearing is a finding of lack of compliance with Condition 8202 in respect of the visa and a consequent refusal of the appellant's application for a further student visa. 30 Federal Magistrate Lucev was not in error in finding that to remit the matter to the Tribunal for further hearing would be ' an exercise in futility '. The appeal should be dismissed. The appellant should pay the first respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 15 June 2007 Solicitor for the Appellant: McMahons National Lawyers Counsel for the First Respondent: T Wong Solicitor for the First Respondent: Clayton Utz Date of Hearing: 9 May 2007 Date of Judgment: 15 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/907.html