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.