Guo Dong Ni v Minister for Immigration & Multicultural & Indigenous Affairs

Legislation 4 Before examining the Tribunal's decision, it is convenient to set out the legislation applicable to the applicant's circumstances. The visa was subject to Condition 8202 in Schedule 8 of the Regulations, which stipulates, so far as is relevant, that; '(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). … (3) A holder meets the requirements of this subclause if: (a) 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 (b) 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 or semester (whichever is shorter) of the course.' 5 A breach by a student of a visa condition relating to academic performance brings into operation s 20 of the ESOS Act, which provides; '(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance. Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104. Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108. (2) The registered provider must send the notice as soon as practicable after the breach. (3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department. (4) The notice must: (a) contain particulars of the breach; and (b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and (c) state that the student must present photographic identification when so attending; and (d) set out the effect of sections 137J and 137K of that Act.' 6 Subdivision GB of Division 3, Part 2 of the Act deals with the automatic cancellation of student visas. Section 137J relevantly provides; '(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach. (2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day: (a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either: (i) in Australia; or (ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette; makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.' 7 Section 137K(1) provides that; 'A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation." 8 Section 137L provides, so far as is relevant; '(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister: (a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or (b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or (c) of any other matter prescribed in the regulations. (2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J. (3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.'

The Tribunal's decision 9 The issue before the Tribunal was whether the Minister's delegate should have revoked the cancellation of the visa pursuant to s 137L of the Act. The Tribunal first considered, in accordance with s 137L(1)(a), whether the applicant had in fact breached a visa condition, specifically, Condition 8202. The applicant submitted that he had not been in breach of Condition 8202 as he had been allowed to continue to pursue the single degree. The applicant submitted a letter from Kris Lakusa, Academic Programs, Faculty of Science, University of Melbourne, dated 7 August 2003, the relevant parts of which recited; '[The applicant] was initially enrolled in the Bachelor of Commerce/Bachelor of Information Systems … In January 2003 he was recommended for suspension from the commerce component of his combined degree due to poor academic performance in Semester 1 and Semester 2, 2002. This recommendation was upheld by the University's Academic Board on 11 March 2003. As a result of this suspension being upheld, [the applicant] is currently enrolled in a Bachelor of Information Systems single degree… On 12 February 2003 [the applicant] sought course advice from the Faculty of Science to enable his enrolment for 2003 to be confirmed. He was authorised to enrol in the Bachelor of Information Systems … and provided with documentation to enable him to be issued with a new Confirmation of Enrolment (CoE) and hence, apply for a new student visa. … In semester 1, this student passed 75 percent of the subjects that he attempted. Unfortunately he failed the core subject 325-101 Management for a second time … He has been permitted to continue in his Course with no restrictions. The Faculty therefore requests that his student visa be extended to enable him to complete his course …' The applicant also stated that the Commerce faculty had told him that he could re-enrol in the Commerce course after one year if he did well in his Information Systems course. 10 The Tribunal was satisfied that the applicant had breached Condition 8202(3)(b)(ii) in each of Semester 1 and Semester 2 of 2002. In the relevant part of its reasons it explained this conclusion in these terms; 'As such, even though the letter from Kris Lakusa requests that the applicant's visa be renewed so that the review applicant can complete the single Information Systems degree, the Tribunal does not consider this to be certification on the part of the education provider that the review applicant's academic results in his combined Bachelor of Commerce/Information Systems course were at least satisfactory. The fact that the review applicant was suspended from the Commerce component of the combined degree by the University's Unsatisfactory Progress Committee (as set out in Mr Lakusa's letter) because of his poor results confirms that his academic results were not certified by the University of Melbourne to be at least satisfactory in semester 1 or 2 of 2002.' 11 The Tribunal next considered whether, in accordance with s 137J(1)(b), the breach of the condition had been due to exceptional circumstances beyond the applicant's control. Before and during the hearing the applicant directed a number of submissions to this issue. He submitted that in 2002 he had moved to shared accommodation with other students where he had less support than where he had previously stayed. While sharing the accommodation the applicant had not been able to balance his studies and social life. Further, he submitted that the different policies of the Commerce and Science faculties, which resulted in his being suspended from one course but not the other, constituted exceptional circumstances beyond his control. The applicant also claimed to have been homesick. 12 In addition to these submissions, the applicant filed further written submissions after the Tribunal hearing. One such submission filed on 10 November 2003 amplified the difficulties he had experienced with shared accommodation. On 18 November 2003, the applicant provided further submissions outlining new reasons for his poor academic performance. He disclosed that his grandfather in China had been ill and hospitalised in June 2002, during the applicant's Semester 1 examinations. That matter, he claimed, had not been mentioned earlier because of Chinese culture and convention. The applicant provided documents tending to corroborate his grandfather's illness. The applicant also pointed out that he had moved house five times since his arrival to Australia. 13 The Tribunal, in considering these submissions, quoted these extracts from the Migration Series Instructions: MSI 382 "Visa Cancellation under Subdivision GB - Automatic Cancellation of Student Visa"; 'Exceptional circumstances beyond the non-citizen's control 7.3.4 Under policy this is restricted to serious illness, hospitalisation, bereavement of close family members (of either the visa holder or their spouse) or major political upheaval or natural disaster in the home country requiring their emergency travel. … 7.3.7 It is not the intention that 'exceptional circumstances beyond control' encompasses such things as difficulties in adjusting to living in Australia or academic life, relationship problems, financial difficulties or generally feeling "depressed" about circumstances ie where the depression is not clinically diagnosed by a qualified professional.' 14 Of the applicant's shared accommodation, the Tribunal said that it was an arrangement which the applicant had chosen and was entered into by many local and international students and that balancing adult responsibilities was part of the maturing process through University studies. The Tribunal found that it did not constitute exceptional circumstances. The Tribunal also did not accept that the applicant had moved house five times, although. even if he had, that was his choice and did not constitute exceptional circumstances. The applicant's homesickness, the Tribunal held, was a common affliction for students and did not constitute exceptional circumstances. 15 The Tribunal regarded the documents supporting the claim related to the grandfather's illness as unreliable and was "not satisfied as to the veracity of the information they purport to contain." Moreover, the Tribunal did not accept the applicant's explanation for failing, until recently, to refer in written submissions to the circumstances of his grandfather's illness and concluded that it was "not satisfied that the review applicant's grandfather did suffer a serious illness as claimed". The Tribunal further held that "even if the review applicant's grandfather did suffer a serious illness, in light of the fact that the review applicant did not mention this until the eleventh hour, the Tribunal is not satisfied that the review applicant's poor performance in 2002 was due to any illness his grandfather claimed to have suffered." 16 As to the disparity between the policies of the Science Faculty and the Commerce Faculty, the Tribunal considered that it could be explained by the different core skills required by each component of the combined course and that this was a matter of which students should be aware. The Tribunal did not regard those policies as constituting exceptional circumstances beyond the applicant's control. The Tribunal then finally concluded as follows; 'The Tribunal has considered the review applicant's claims singly and cumulatively, however the Tribunal finds that the review applicant has not demonstrated circumstances constituting exceptional circumstances beyond his control such that they explain his poor results and subsequent suspension from the Commerce component of the combined degree in Semesters 1 and 2 of 2002. Consequently, there are not grounds for revocation of the automatic cancellation of the review applicant's visa.'

Submissions 17 Counsel for the applicant submitted in writing that the Tribunal had erred in two respects. In the first place, it had asked itself the wrong question in relation to the applicant's compliance with Condition 8202, by not determining the application in the light of the applicant's enrolment status at the time of the delegate's decision. However, this ground was not pressed at the hearing of this application and I take it to have been abandoned. 18 The second error imputed to the Tribunal is that it failed to consider a relevant consideration when it refused to revoke the cancellation. Specifically, the s 20 notice sent by the University did not comply with s 20(2) of the ESOS Act in that it was not sent as soon as practicable after the breach. The foundation of the applicant's argument is that the language of s 20(2) does not reveal a clear meaning for the word 'breach'. The applicant submits that the "breach" occurred in January 2003, when the applicant was initially suspended from the double degree course. Accordingly, as the notice under s 20(2) of the ESOS Act was sent on 23 March 2003 (after the applicant had enrolled and paid his tuition fees for the single degree course), the notice had not been sent as soon as practicable after the breach. The notice was, therefore, of no effect and could not have engaged the process of cancellation under s 137J of the Act. 19 The answering submission by Counsel for the respondent was that the Academic Board of the University had upheld the suspension from the commerce component of the double degree on 11 March 2003. The notice had been sent 15 days later, which was as soon as practicable after the breach. Although the decision by the Faculty of Commerce to suspend the applicant had been made earlier, the applicant had sought review of that decision before the Academic Board. Alternatively, the respondent contended that a failure to send it as soon as reasonably practicable did not invalidate the s 20 notice. It could not have been Parliament's intention, the argument continued, that a delay in sending a notice would enable the applicant to continue a course in which he had manifestly failed to achieve satisfactory results.

Conclusion 20 The question raised by this application is whether the delegate and the Tribunal failed to take into account a relevant consideration, which was identified as the fact that the s 20 notice sent to the applicant on 23 March 2003 did not comply with s 20(2) of the ESOS Act. As recited at [5] of these reasons, s 20(2) requires the notice to be sent to the visa holder 'as soon as practicable after the breach'. In determining whether the notice complied with s 20(2), it is necessary to establish when the "breach" occurred. The "breach" in s 20(2) refers to non-compliance with a condition of a student visa relating to attendance or satisfactory academic performance; s 20(1). The relevant visa condition relating to academic performance in this case is to be found in subpar (3)(b) of Condition 8202, requiring a visa holder to achieve an academic result that is certified by the education provider to be at least satisfactory for each semester of the course. 21 The ascertainment of when a breach of Condition 8202(3)(b) occurs for the purposes of s 20 of the ESOS Act is complicated by the cumbersome formulation of that condition. The condition does not require the achievement of satisfactory academic performance without more. Rather, it requires the education provider to certify that the performance has been at least satisfactory. The requisite certification must be a positive act (see Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 216, at [28]). So, even if a visa holder has achieved first class honours in every subject attempted, unless he or she has a positive certification of satisfactory results by the education provider, the visa holder is technically in breach of the condition. This is, of course, an absurd result and a strict interpretation of legislation which leads to an absurdity of that kind should be avoided (see Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 at [55]). 22 A breach by a visa holder of a condition of a visa like Condition 8202 is a significant event that brings about automatic cancellation of the visa, bringing into operation various other parts of the Act and the Regulations, as well as s 20 of the ESOS Act. It requires action to be taken by the Minister and the education provider, and these actions can be conditioned by time limits. Accordingly, an intention can be imputed to the legislature that a particular point in time be identifiable at which a visa holder can be said to have breached Condition 8202. 23 It is unnecessary and inadvisable for the purpose of these reasons to attempt to formulate a universally applicable test for determining when Condition 8202 has been breached. However, I consider that one available basis for concluding that a breach of Condition 8202(3)(b) has occurred is an inference that the education provider will not provide the requisite certificate for a particular visa holder. Whether and when such an inference should be drawn is a question of fact to be decided in light of all the circumstances pertaining to the visa holder. Once it can be said that the inference should be drawn, the visa applicant is, from that moment, in breach of Condition 8202(3)(b). For example, it would be open to infer from the conduct of the education provider in suspending a visa holder from the course in which he or she had been enrolled that it would not issue that visa holder a certificate of satisfactory academic performance. The visa holder would then be in breach of Condition 8202(3)(b). 24 However, in this case, the matter does not end there. The applicant availed himself of the University's internal appeal processes to challenge his suspension from the double degree. A possible outcome of that process was that the suspension would be overturned and the applicant would be allowed to continue to study for the double degree. If that were to happen, it would not be open to infer that the University would not then certify that the applicant's academic result had been at least satisfactory. However, the University upheld the suspension on 11 March 2003 and, in my view, from that point the preferable, if not the only available, inference was that the University would not certify the applicant to have achieved an academic result for the preceding semester that was at least satisfactory. Accordingly, 11 March 2003 was the date on which the breach of Condition 8202(3)(b) occurred. 25 The applicant submits that the breach could not be said to have occurred on 11 March 2003 because, by that point, the applicant had already been accepted to pursue the course for the single degree. Having allowed the applicant to enrol for that degree, it was argued, the University could no longer issue the s 20 notice. I am not persuaded by this argument. Acceptance into the single degree course did not, in my view, give rise to the inference that the University would certify the applicant's results for the preceding semester to have been least satisfactory. The preferable inference is that the University regarded those results as unsatisfactory but was prepared to give the applicant the chance to redeem himself by confining him to the single degree. It will be recalled that the condition of the visa in 8202(3)(b) requires certification of satisfactory performance of "each term or semester of that course". It was accepted by the applicant that, having failed all four subjects in each semester in 2002, his results could not have been considered satisfactory. The fact that the Science Faculty saw fit to allow the applicant to pursue the single degree in 2003 did not render the applicant's academic result in 2002 at least satisfactory so as to leave open the inference that he would procure a certificate enabling compliance with Condition 8202(3)(b) in respect of 2002. As Mansfield J held in Tian, at [29], a mere offer of enrolment in a school for a following year does not amount to a certification of the kind required by Condition 8202(3)(b). 26 Furthermore, the applicant's submission postulates that, once the s 20 notice had been issued, it was inevitable that his visa would be cancelled. Accordingly, so the argument went, to permit him to enrol in a single degree course before sending the s 20 notice would produce an "extraordinary result." That does not necessarily follow. It is true that the issue of a s 20 notice can lead to the automatic cancellation of a visa. However, in this case, the applicant still had an opportunity to apply for the revocation of the cancellation pursuant to ss 137K and 137L of the Act. In fact, the applicant availed himself of that opportunity. That the applicant was not ultimately successful in that application was not something which the Faculty of Science could have predicted when it allowed the applicant to pursue the single degree. On the other hand, the applicant can be taken to have been aware that re-enrolling for the single degree in 2003 entailed a considerable risk given that he had not achieved satisfactory results in his course in 2002 and the restitution of his student visa was far from certain. 27 I accept that it may be regrettable that the University sent the applicant the s 20 notice shortly after allowing him to enrol in the course for the single degree. However, two points can be made about that circumstance. In the first place, there was no evidence before the Court as to what, if anything, was said by the University to the applicant about the consequences of his enrolment for the single degree course of the impending or potential breach of his visa condition. It is impossible, therefore, to find whether the University misled the applicant into believing that it would or would not send a s 20 notice after permitting the applicant to enrol for the single degree. Secondly, this is an application to review a decision of the Tribunal for a jurisdictional error of law. As the proceedings are constituted there is no scope for reviewing the internal processes of the University or granting any other relief against it. 28 It should also be noted that the opportunity for the applicant to apply for the revocation of the cancellation of the visa only arose because he did not comply with the s 20 notice. Had the applicant complied with the s 20 notice, the visa would not have been cancelled by force of s 137J(2) and the applicant would not have been able to apply for revocation of the cancellation pursuant to ss 137K and 137L. Rather, the respondent Minister would have been obliged, upon being apprised of the applicant's breach of Condition 8202, to cancel his visa in accordance with s 116 of the Act. This analysis points up another unsatisfactory feature of the legislative scheme which brings about the result that, by not complying with a notice ordained by the scheme, an applicant like the present would be in a more favourable position that if he had complied with the notice because the visa would be cancelled by force of s 137J (rather than s 116), thus enabling the former visa holder to apply for the revocation of the cancellation and invoke the discretion conferred by s 137L(1)(b) of the Act. Compliance with the notice, on the other hand, leads to a mandatory cancellation of the visa pursuant to s 116 of the Act, with no corresponding opportunity to apply for revocation. However, this reflection does not bear on the question discussed above at [21]-[24] of these reasons of whether the breach of Condition 8202 should be taken to have occurred on a date other than when the Academic Board upheld the applicant's suspension from the double degree. 29 It is next necessary to determine whether the s 20 notice was sent as soon as practicable after the breach. I have not been referred to, and am not aware of, any authorities directly in point. However, Mr Gibson of Counsel for the applicant referred to a number of decisions of this Court discussing the expression "as soon as reasonably practicable", particularly in the context of s 198(6) of the Act (which deals with the removal of non-citizens). Although s 198(6) includes the word "reasonably" and is in a different context from s 20(2) of the ESOS Act, that discussion still illuminates the problem. A common theme, which I endorse, is that whether something has been done as soon as practicable will depend on the facts of each case considered as a whole (M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 at [67] and NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 at [51]). The Full Court in NATB also elaborated the concept inherent in the word "practicable" when it said, at [47]-[48]; '… The word 'practicable' has been defined to mean: '[c]apable of being put into practice, carried out in action, effected, accomplished or done; feasible.' (Oxford English Dictionary online) and: 'capable of being put into practice, done, or effected, esp with the available means or with reason or prudence: feasible.' (The Macquarie Dictionary, 2nd Revised Edition, 1987) In M38, the Full Court discussed the meaning of the expression 'reasonably practicable', and, in particular, the meaning of the word 'reasonably' in that expression (at [65] - [69]. Subject to one qualification, we agree with their Honours' observations. The qualification concerns their statement at [66] that '[i]n the context of 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses.' As the word 'feasible' in both of the dictionary definitions suggests, at least some element of reasonableness is inherent in the notion of 'practicable'…' 30 That observation leads me to conclude that whether something has been done as soon as practicable involves considerations of feasibility and "reasonableness" (notwithstanding the absence of the word "reasonable" from s 20(2) of the ESOS Act). 31 Given my conclusion that the applicant's breach of Condition 8202 occurred on 11 March 2003, 15 days elapsed before the s 20 notice was sent on 26 March 2003. For the applicant it was contended that, even if I were to find that the breach of the condition had occurred on 11 March 2003, the University should have issued the notice before the applicant enrolled in the single degree, that is before 12 March 2003. Ms Riley of Counsel for the respondent answered that contention by submitting that 15 days was a reasonable period to allow the University for the sending of the s 20 notice. 32 For reasons explained at [24]-[27] above, it was not necessary for the University to send the s 20 notice before the applicant enrolled in the course leading to the single degree. Its failure to do so did not entail, in my view, that the notice was not sent as soon as practicable. As I have said, the sequence of events was unfortunate and I am not without sympathy for the applicant. However, I have not been persuaded that the 15 days taken by the University to issue the s 20 notice after the breach of Condition 8202 (i.e. when the Academic Board dismissed the applicant's appeal) was unreasonable. The applicant has failed to establish that the University contravened s 20(2) of the ESOS Act. Moreover, the application for revocation of the cancellation under ss 137K and 137L of the Act was predicated on an effective notice under s 20 of the ESOS Act so there was no requirement for the delegate of the Minister, or the Tribunal standing in the shoes of the delegate, to consider whether the notice had been issued in contravention of s 20(2) of the ESOS Act. 33 For these reasons the application must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicant: Jonathon Wong Lawyers