Akter v Minister for Immigration & Multicultural & Indigenous Affairs

Introduction 1 This is an application by Mr Akter ("the applicant") for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") of 12 August 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to cancel the Student (Temporary) (Class TU) visa held by the applicant.

Background 2 The applicant is a citizen of Bangladesh, and was born on 7 May 1981. He arrived in Australia on 20 October 2000, to commence classes at the Sydney Institute of Business and Technology ("SIBT") on 30 October 2000. His student visa was cancelled by a delegate of the Minister on 26 November 2001 as the applicant had breached conditions concerning attendance rules and satisfactory academic performance. The visa was due to expire on 30 November 2001.

3 The applicant's visa was a Student (Temporary) (Class TU) Subclass 560 visa, and was cancelled by a decision made under s 116 of the Migration Act 1958 (Cth) ("the Act"). Relevantly, the section reads: "116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) any circumstances which permitted the grant of the visa no longer exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) …; or (e) …; or (f) …; or (fa) in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student; or (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or (g) a prescribed ground for cancelling a visa applies to the holder. (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose. (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. (3) 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." 4 Regulation 2.43 of the Migration Regulations 1994 (Cth) ("the Regulations") is also relevant to the cancellation of the applicant's visa. It provides: "(1) ... (2) For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are: (a) each of the circumstances comprising the grounds set out in paragraphs (1) (a) and (b); and (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) condition 8104 or 8105 (if the condition applies to the visa); or (ii) condition 8202. …" [Emphasis added] 5 The applicant's visa was cancelled because he had not complied with condition 8202. It is convenient, at this stage, to note that the terms of condition 8202 were altered in December 2000 by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), ("the amending Act") shortly after the applicant arrived in Australia. In addition the condition was embodied in the legislation itself, and not in delegated legislation. This alteration applied to all student visas in force at the time, as provided by Item 4(1)(a) of Schedule 4 of the amending Act. In November 2001, at the time the applicant's visa was cancelled, condition 8202 read: 8202 - The condition is that: (a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student - the holder is enrolled in a full-time course of study; and (b) in any other case - the holder is enrolled in a registered course; and (c) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (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 and semester of the course; and (d) in any case - 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 and semester of the course.

The Tribunal's reasons 6 The reasons of the Tribunal commenced with a discussion of the applicant's educational history since his arrival in Australia, focusing on the issues that eventually led to his visa cancellation. It noted that if it found that the applicant had failed to comply with condition 8202, the visa must be cancelled and it would be unnecessary to investigate whether the visa conditions had not been complied with in any other way. The following is a summary of the applicant's circumstances drawn from the reasons for decision of the Tribunal. 7 Following his arrival in Australia, the applicant commenced a Diploma of Business Administration at the SIBT on 30 October 2000. On 3 August 2001, the SIBT sent the applicant a notice stating that his attendance for the March-June 2001 semester was 76.2%. On 20 August 2001 the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") gave the applicant a notice of intention to consider cancellation, based on the ground that he had not complied with condition 8202 by not attending at least 80% of classes in a single semester. 8 The applicant responded to this notice by offering an explanation that it was difficult for him to travel to and from Macquarie University, where the SIBT is located. The delegate requested that the applicant attend an interview on 22 November 2001, bringing information regarding his attendance and results for the second semester of 2001. 9 On 22 November 2001, the Department wrote to the SIBT requesting information on the applicant's attendance and academic progress. The SIBT replied the same day by facsimile. The information showed that:

• In Term 3 of 2000, the applicant's attendance was 92%
• In Term 1 of 2001, the applicant's attendance was 76.2%
• In Term 2 of 2001, the applicant's attendance was 92.1%
• The applicant had not been making satisfactory academic progress and had not enrolled in Term 3, 2001. 10 The applicant did not re-enrol in his course at the SIBT for Term 3 of 2001, instead enrolling in a Bachelor of Business course at the Sydney Campus of Central Queensland University on 5 November 2001. This information was provided to the Department. On 26 November 2001 the applicant was asked by the Department why his visa should not be cancelled. He stated that the cancellation of the visa would be detrimental to his career plans, and that he did not consider that there were any grounds for cancelling his visa. 11 The delegate cancelled the applicant's visa on 26 November 2001, following discussions with the applicant on the basis that he had not complied with condition 8202. The delegate noted that although the applicant's attendance had improved in Term 2 of 2001, his academic progress was not satisfactory. 12 On 3 December 2001 the applicant applied for a review of the delegate's decision. The applicant was invited to provide any additional comments to the Tribunal by letter on 18 January 2002, and these comments were provided on 30 January 2002. A hearing was held on 27 March 2002, at which the applicant gave oral evidence. The applicant noted that he had been performing well at his new course, and that this factor should be taken into account. During the review process the applicant offered some additional information regarding his attendance in Term 1 of 2001. He explained that he had difficulties with two subjects which he had not studied previously, he was depressed because he had broken up with his girl friend, and that the accommodation he was living in made it difficult for him to travel to the SIBT. 13 At the hearing, the applicant submitted that these circumstances, which had resulted in his poor attendance, were beyond his control. The Tribunal did not accept this submission. It found that the applicant was responsible for the travel difficulties, following an admission from the applicant that he had chosen inappropriate accommodation. It also found that it was the applicant's responsibility to select classes that were within his capabilities. The Tribunal concluded that the applicant had not complied with condition 8202, and not for reasons beyond his control. The delegate's decision was affirmed.

Issues before the Court 14 The application before the Court is as follows: A. Details of claim I am seeking a review of the MRT decision of dated [sic] 12/08/2002 under concerned Section (Error of Law) of the migration act. I received the decision dated 15/08/2002, and lodging this application [sic] under Section 39B of the Judiciary Act 1903. I am totally aggrieved by the decision because: 1. The Migration Review Tribunal (MRT) Member failed to consider the circumstance that I have confronted as a new arrival student in Australia and also did not consider at all about the consequence that I would be paying if I have to go back to Bangladesh with my education uncompleted - 2. I am aggrieved because the MRT member could not consider me as a genuine student in Australia whereas I came to Australia with a sole purpose of study and therefore I have spent so much money time and effort - 3. The tribunal member also did not bring into account the gravity of breaching the visa condition 8202. The average 80% of attendance is required to comply with the visa condition 8202, whereas my attendance appeared to be 92%, 76.2% and 92.9% in the consecutive three semesters. Non-compliance of condition 8202 was very marginal. 4. The Tribunal Member did not bring into account that I have been half way through my course completion - 5. The Migration Review Tribunal (MRT) member's decision was unfair, unjustified and was unrealistic - 15 At a directions hearing on 3 October 2002 leave was given to the applicant to file an amended application. No amended application has been filed. 16 A number of submissions were made on behalf of the applicant. These submissions consisted primarily of explanations regarding the applicant's poor attendance and academic performance. The submissions also noted the applicant's good performance in his new course, and his consistent cooperation with the Department in all matters relating to his visa. 17 In his submissions, the applicant relied on a construction of condition 8202 given by Katz J in Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575. In that matter, Katz J found that the attendance requirement of 80% in condition 8202 should be calculated at the conclusion of the registered course. However, this judgment related to an earlier version of condition 8202. 18 The respondent's submissions noted that the cancellation of a visa was mandatory once non-compliance condition 8202 had been established. Counsel for the respondent then submitted that the applicant had failed to comply with condition 8202 in two respects, namely that he had not attended 80% of classes in one semester, and that his academic performance was not satisfactory. In written submissions, Counsel for the respondent asserted that in any event, the Tribunal's decision was one to which s 474 of the Act applies.

19 There was no issue raised about the retroactive effect of the alteration of the terms of condition 8202. Although the relevant change occurred after the applicant's visa had been issued, the relevant non-compliance of condition 8202 occurred at a time when the amended Act had come into force. In any event, the retrospectivity issue has been dealt with previously by this Court in Zou v Minister for Immigration and Multicultural Affairs [2002] FCA 1126 and Ciddeque v Minister for Immigration and Multicultural Affairs [2002] FCA 1226. 20 The cancellation of the applicant's visa was mandatory under the Act, the regulations, and condition 8202 as it stood at the time of cancellation. Counsel for the respondent described the provisions as essentially "strict liability" provisions at one point in the hearing. How these provisions operate was discussed by Emmett J in Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 at [7] - [8]: Section 116(1)(b) of the Act relevantly provides that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. Under s 116(3), if the Minister may cancel a visa under s 116(1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2)(b) relevantly provides that, for s 116(3) of the Act, the circumstances in which the Minister must cancel a visa are that the Minister is satisfied that the visa holder has not complied with condition 8202. For the purposes of review of the decision of the Minister's delegate, the Tribunal exercised the power of the Minister. Accordingly, if the Tribunal was satisfied that the applicant had not complied with condition 8202, s 116(3) required that the visa be cancelled. The Tribunal, in its reasons, recorded that the circumstances of the cancellation of the applicant's visa fell within the ambit of s 116(3) and r 2.43. 21 Despite the mandatory effect of these provisions, the Tribunal in this matter considered whether the applicant's non-compliance with condition 8202 was due to circumstances beyond his control. Counsel for the respondent suggested that the Tribunal may have thought, incorrectly, that the principles discussed by Madgwick J in Shrestha v Minister for Immigration & Multicultural Affairs [2000] FCA 359 were applicable. That matter concerned the previous form of condition 8202, and was set aside by consent by a Full Court of this Court. The consideration by the Tribunal of these matters in relation to the new form of condition 8202 was discussed by Emmett J in Nguyen (supra) at [11]: I consider that the Tribunal based its decision on a misapprehension. The matter was not governed by the decision in Shrestha's Case. Section 116(3) is clearly mandatory in using the word "must". Section 116(1), on the other hand, uses the word "may". There can be no discretion for the Minister, or the decision maker making a decision as the Minister's delegate, as to the cancellation of a visa where s 116(3) applies. The Tribunal found that the applicant had not satisfied condition 8202, as that condition was imposed by Item 4 of the schedule to the Overseas Student Act. Accordingly, the Tribunal was bound to cancel the visa. 22 The matter was considered more recently by Gyles J in Iftikhar v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1123, where he said, at [8]: It is, to say the least, arguable that the Tribunal fell into error in taking the view that the approach taken by Madgwick J in Shrestha was still available for use by decision makers in the appropriate case. However, if there were an error, it was an error to the advantage of the applicant. It seems to me that the Tribunal in par [27] did direct its mind to the principle applied in that decision and, despite the valiant efforts of the counsel for the applicant, I cannot see any arguable basis upon which that principle, even if it exists, could apply in the present case. 23 It follows that in the present circumstances, the Tribunal was obliged to affirm the cancellation decision. If anything, an error of law in favour of the respondent, of the type described by Gyles J in Iftikhar (supra), was made by the Tribunal in considering the circumstances of the applicant. 24 It is unnecessary to consider the operation of s 474. I order that the application be dismissed, and the applicant pay the respondent's costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Respondent: Australian Government Solicitor