Ariyagama v Minister for Immigration & Multicultural Affairs

The legislative context 5 Under s 116(1)(b) of the Migration Act 1958 (Cth) ("the Act"), the respondent Minister may cancel a visa if he or she is satisfied that the holder of the visa has not complied with a condition of the visa. Section 116(3) of the Act provides that: "If the minister may cancel a visa under sub-section (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled." 6 The 'prescribed circumstances' are set out in Regulation 2.43(2) of the Migration Regulations 1994 (Cth). Regulation 2.43(2)(b) provides that: "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) condition 8104 or 8105 (if the condition applies to the visa); or

(ii) condition 8202." 7 The relevant condition for current purposes was condition 8202, which in its then form applied to Student (Temporary) (Class TU) visas, sub-class 560 issued on or after 1 December 1998; see Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240, (1999) 94 FCR 91, per Gyles J. 8 Condition 8202 of Sch 8 to the Migration Regulations required that the appellant: · be enrolled in a registered course of study; and · attend at least 80% of course classes, or achieve a satisfactory academic result; and · comply with any requirement of the education provider in relation to payment of fees.

The MRT's findings 9 The MRT noted the appellant's evidence, at the hearing before it, that he did not pay his fees for Term 2 of Semester 1 in 2000 and therefore stopped going to classes. It found that the appellant was not enrolled in a registered course of study and had not been so enrolled at the time his visa was cancelled. It also found that the appellant had "failed to attend at least 80% of the classes and tutorials scheduled for the course".

Section 359A 10 It was submitted on behalf of the appellant, in resisting an order for summary dismissal on his proceeding under O 20 r 2 of the rules of Court, that the MRT had failed to comply with s 359A of the Act. 11 Section 359A of the Act provides that: "Applicant must be given certain information

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it. (2)The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (4)This section does not apply to information:

(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)that the applicant gave for the purpose of the application; or

12 In reliance upon s 359A of the Act the MRT wrote to the appellant on 19 September 2000. The text of the letter is set out at [9] in the reasons of the primary judge and need not be repeated here. It is sufficient to say that the MRT notified the appellant that the letter from Swinburne dated 11 September 2000 and an "undated DIMA File Note" were relevant to the review task it was engaging in. The MRT letter described the relevance of that material as pertaining to the suggestion: "That the Review Applicant has breached Condition 8202 of the Student Visa in that you have not attended 80% of classes."

13 The primary judge identified the appellant's submission about non-compliance with s 359A of the Act in the following way at [11] of his reasons:

"Mr Fairfield submitted that, by identifying the relevance of the Swinburne letter as being "that the Review Applicant has breached condition 8202 of the student Visa in that you have not attended 80% of the classes", the Tribunal failed to alert the applicant to the possibility of its relying alternatively on the fact that he was no longer enrolled in a registered course." 14 The primary judge at [18] noted that the respondent contended that s 359A(4)(b) of the Act applied to exclude from the concept of "information" under the section, information "that the applicant gave for the purpose of the application". The respondent submitted that information about the appellant's failure to be enrolled related to information the appellant himself had given about non-payment of his fees.

15 His Honour resolved this aspect of the proceeding by holding that the s 359A(4)(b) exemption applied to the relevant information because that paragraph includes information given at any time up to the making of the decision of the MRT. The applicant had stated prior to the making of the decision that he had no current enrolment. A materially identical provision in s 424A(3)(b) of the Act was held in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919, to refer to material given for the purpose of the applicant's application to (in that case) the Refugee Review Tribunal; see, in particular, per Ryan and Conti JJ at [18]. That approach is consistent with that taken by the primary judge.

16 The appellant gave the MRT information which included the following:

· that he had left Swinburne and was "…too late to enrol in any other school" (in his application for review); and · that he did not pay the fee for the second term May to June 2000, and therefore stopped going to classes (in his evidence to the MRT). This was the information on which the MRT relied when it made the findings about non-enrolment referred to in [9] above. This, in our view, was information which fell within the exception provided in s 359A(4)(b). The MRT does not appear to have relied upon the delegate's notes of interview for its finding that the appellant was not currently enrolled.

17 On the hearing of the appeal the appellant represented himself. However, his notice of appeal was prepared by the solicitors who acted for him before the primary judge. Ground 1 of the notice of appeal states that:

"His Honour erred in not finding that the Tribunal had failed to discharge its obligations pursuant to s 359A of the Migration Act." 18 We see no error in the approach taken by the primary judge on this issue having regard to the views we expressed at [16] above. We consider that this aspect of the appeal lacks merit.

Condition 8202(a) 19 The second ground of appeal alleged that the primary judge erred "in not finding that the Tribunal misinterpreted and misapplied condition 8202(a) …"

20 We see no merit in this ground of appeal. In his written submissions filed on the appeal the appellant conceded that he was not enrolled in a course when his visa was cancelled. That means that the MRT did not err in law or "misinterpret" or "misapply" condition 8202(a).

Condition 8202(b) 21 The third ground of appeal alleged that the primary judge erred with respect to condition 8202(b) in that same way as alleged with respect to condition 8202(a).

22 At [13] in his reasons for judgment the primary judge said that: "on no view of the available evidence, could the applicant have been regarded on 7 August 2000 as capable of attaining that threshold of 80% attendance." 23 At [17] his Honour said that: "…the evidence before the Tribunal was that the applicant had withdrawn from the course on 14 April 2000, and had not attended any classes in the first semester of 2000. The applicant first enrolled for the Diploma of Computer Systems on 1 February 1999 (although the evidence as to his commencement date is conflicting) and was said to have "only sporadically attended classes" since his enrolment. In any event, even if the applicant could be shown to have attended 100% of classes in 1999, he would need to have attended 60% of classes in 2000 in order for him to have attended the minimum of 80% of classes over the entirety of the course. Given the evidence from Swinburne that by the time of either the delegate's decision or the Tribunal's decision the applicant had not attended any classes in 2000, he could not be said to satisfy the 80% attendance requirement in condition 8202(b). Therefore, it is irrelevant whether the Tribunal determined that the applicant had not satisfied 8202(b) before the date on which he would have completed the course as, on either construction, the applicant could no longer have satisfied the criterion from, at the latest, 14 August 2000 when he ceased to be enrolled in the course."

24 We agree, with respect, with the analysis of the primary judge.

Condition 8202(c) 25 Ground 4 of the grounds of appeal states that: "His Honour erred in his interpretation and application of condition 8202(c) of Schedule 8 of the Migration Regulations 1994." This ground is a curious one because the primary judge did not interpret nor apply condition 8202(c). The issue did not arise. It also did not arise before the MRT. This ground of appeal is also devoid of merit.

Disposition 26 Having regard to the foregoing we consider that the appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Moore and Marshall.

Solicitor for the Respondent: Australian Government Solicitor