Humayun v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal by Ali Beg Humayun against a decision of Smith FM dismissing an application for prerogative relief in respect of a decision of the Migration Review Tribunal ('the MRT'). On 31 May 2004, the MRT decided to affirm a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), cancelling the appellant's Student (Temporary) (Class TU) visa, subclass 560, pursuant to s 116 of the Migration Act 1958 (Cth). The facts 2 The facts of the case are set out in the reasons for decision of Smith FM: see Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1247. I need only mention the critical elements in the factual background. 3 The appellant first entered Australia in 2000. The subject visa was granted to him on 28 March 2001. The visa was issued subject to condition 8202, prescribed under subsection (3) of Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). Condition 8202 was stated in the following terms: '(3) 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 or semester (whichever is shorter) of the course.' 4 In July 2001, the appellant commenced a Bachelor of Information Technology course at the University of Canberra ('the University'). He continued that course in 2002. His performance was poor. The appellant says this was because of personal problems, including that he was suffering from depression. On 2 December 2002, David Sneddon, Student Affairs Manager in the Division of Business, Law and Information Sciences at the University, wrote to the appellant. On 5 January 2003, the appellant made some submissions, as a result of which Mr Sneddon wrote again on 22 January 2003. The letter was headed 'Direction to continue on conditions'. It included the following: 'On 2 December 2002 I wrote to you advising that the Divisional Academic Progress Committee had reviewed your academic progress and had resolved to ask you to show cause why it should not exercise its powers under the Academic Progress Rules 1995 ("the Rules") and direct that you not continue with your course of study. The Committee has further considered the matter of your academic progress and has decided that you be allowed to continue in the course, Bachelor of Information Technology, on the following conditions. must pass half of all subjects attempted in 2003 Failure to meet these conditions will result in you not being permitted to continue study in your course. 5 Between the date of that letter and the next significant event, there seems to have been discussion between the appellant and officers of the University. On 7 February 2003, Keith Hyde, Principal Executive Officer of Marketing and Business Development in the University, sent a notice in these terms to the appellant: 'This Notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 as you have breached a condition of your student visa relating to satisfactory academic performance in the course in which you have been enrolled at this institution. Particulars of breach: Student failed to meet course requirements. Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter. You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office: AUSTRALIA (Canberra ACT) Levels 3 & 4, 1 Farrell Place Canberra City CANBERRA ACT 2601 Australia Telephone: 131881 with photographic identification of yourself (preferably your current passport), and a copy of this notice, to explain the breach of your student visa condition as specified above. If you fail to bring satisfactory identification to DIMIA, the automatic visa cancellation process will continue and your student visa will be cancelled. If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred. Particulars of this notice have been sent to the Department of Employment, Science and Training (DEST) and DIMIA.' 6 Section 20 of the Education Services for Overseas Students Act 2000 (Cth) ('the ESOS Act') relevantly 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. (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.' (Notes omitted) The reference to 'registered provider', in the present context, is a reference to the University. 7 The appellant reported to DIMIA on 28 February 2003. An interview with a Minister's delegate was appointed for 4 March 2003. The interview ended with a decision by the delegate to cancel the appellant's visa. The MRT decision 8 The appellant sought review of that decision by the MRT. The MRT member felt uncertain as to the University's position in relation to the appellant and wrote for further information. The University responded, by letter dated 21 August 2003, in these terms: 'I refer to your letter of 19 August seeking clarification of the University position on this student. The Divisional Academic Progress Committee erred in it's [sic] advice to Mr Humayun of 22 January, 2003 and this advice subsequently has been withdrawn. The University has instituted procedures to ensure that future considerations are in accord with the Academic Board decision. The University's Academic Board has determined that "satisfactory academic progress" for the purposes of the ESOS Act and international students be defined as follows: "Resolution AB 02/3/5 Academic Board resolved that, for the purposes of providing a provisional definition of "satisfactory academic performance" for overseas students under the ESOS Act, in relation to either semester-long or year-long subjects: (a) an overseas student who has failed to pass 50% of subjects in two consecutive semesters of study be allowed to course change; (b) an overseas student who has failed 50% of subjects in three consecutive semesters in the same course should not be allowed to apply for course change and should be reported to DIMIA for not having met "satisfactory academic progress"; (c) an overseas student who fails to pass 50% of subjects in a third semester undertaken in a different course not be allowed to apply for another course change;- (d) the UC Education Committee take this recommendation into account in its review of its academic progress policy and procedures." Mr Ali Beg Humayun passed only two subjects in the nine for which he enrolled over three semesters and therefore came under sub-clause (b) of the above determination. In addition, he received a fail grading in two subjects in 2002 because of his failure to attend class. Our record indicates that Mr Humayun had several meetings with the University's International Student Advisor during which his options and the University's ESOS obligations were reiterated. He was advised that his best option was to defer his studies, return home, sort out his personal life, then return to study at a later date. He chose not to accept this advice, which left the University with no alternative but to report him to DIMIA for non-compliance.' 9 The MRT regarded this letter as determinative of the question whether or not the appellant had failed to comply with the requirement of para (d) of condition 8202: that he 'achieves an academic result that is certified by the education provider to be at least satisfactory … for each term or semester … of the course'. 10 In its reasons for decision, the MRT noted certain objections raised by the appellant to the actions of the University. The MRT went on: '53. However, whether or not all the procedures were followed, ultimately those are matters relating to the contractual relationship between the review applicant and UC. They may well be matters in respect of which the review applicant has ongoing appeal rights or a cause of action against UC. These are matters for the review applicant to consider on the basis of independent legal advice, just as is any question of appeal from the decision of the Tribunal. While those matters do ultimately impact on issues relating the review applicant's visa, they are not matters over which the Tribunal has concluded, on balance, that it has any jurisdiction to resolve. 54. What is relevant from the Tribunal's perspective, is that the Divisional Academic Committee is not the highest authority at UC (for example, it appears clear that the Academic Board has higher decision-making authority) and that, no doubt, power exists within UC to override any decisions that have been wrongly taken by it or other Divisional or sub-committees. The Tribunal has been made conscious of the apparently conflicting decisions reflected in the Divisional Academic Committee's decision and in the section 20 non-compliance notice (although the Tribunal notes that, for the purpose of the Migration regulations, the Divisional Academic Committee's decision may not necessarily mean that the review applicant's academic results are to be regarded as "at least satisfactory", although that is probably the better and most realistic view to take in terms of what is an extremely difficult and complex national issue, namely, the policy development and administration of rules for international students for education and migration purposes). 55. Faced with such apparent conflict, the Tribunal sought specific advice from the UC as to University's final position in respect of the review applicant. It received the advice referred to earlier, namely that the Divisional Committee's decision has been withdrawn, that a specific Resolution of the higher Academic Board does exist defining "satisfactory academic progress" for the purposes in effect of administering condition 8202, and that as interpreted and applied by the University the review applicant does not meet that definition. 56. While, as indicated earlier, there may well be some unanswered questions in respect of that advice, they are not matters over which the Tribunal appears to have jurisdiction. The final position that is before the Tribunal is that UC, after having a specific request put to it by the Tribunal, has not "certified" that the review applicant's results are "at least satisfactory". That is a matter that under the regulations has been deliberately vested in the education provider to determine, for good reason, as the Department and the Tribunal are not the appropriate experts in determining academic performance ...' 11 The MRT pronounced itself satisfied that the appellant had not complied with condition 8202, and therefore affirmed the decision of the delegate. The magistrate's decision 12 When the matter came before the learned magistrate, the appellant sought to amend his application so as to add claims against the University. The magistrate refused that application. The appellant has not appealed against that refusal. Consequently, no point arises on this appeal concerning claims against the University. 13 In his reasons for judgment, Smith FM quoted paras 55, 56, 58 and 59 of the MRT's reasons. He also noted that, in material presented to both the MRT and the Federal Magistrates Court, the appellant had 'pointed to explanations for his bad results and to the hardships which would result from the cancellation of his visa'. However, he held 'this material was irrelevant to the issue which the Tribunal had to decide'. He cited Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [55] and [66]. The magistrate then said at [10]: 'Applying this interpretation, I can find no error of law affecting the Tribunal's conclusion that, on the evidence before it, it: … must conclude … that the review applicant "has not complied with … condition 8202" and therefore must affirm the decision under review.' Submissions on appeal 14 Mr D K Catterns QC, who appeared for the appellant at the hearing of the appeal, put two basic propositions. First, he said that the MRT erred in law in finding that the documents issued by the University were capable of establishing that the appellant had not complied with condition 8202. Second, the MRT had erred in failing to rule that the decision of the delegate to cancel the appellant's visa was invalid because of a defect in the notice given to him under s 20 of the ESOS Act. 15 Mr A L Cavanough QC and Mr R Bromwich, who appeared on the appeal for the Minister, contested both these propositions. Whether the University material could establish non-compliance 16 Mr Catterns' argument in relation to the first point has two elements: (i) the letter written by Mr Sneddon, on 22 January 2003, on behalf of the University, properly construed, is a certificate by the University that the appellant had achieved, to that date, 'an academic result that is … at least satisfactory'; and (ii) having given that certificate, it was not open to the University subsequently to say otherwise. 17 Mr Catterns did not contend that, properly construed, the notice of 7 February 2003 and the letter of 21 August 2003, were otherwise than indications to the contrary of what is required by para (d) of condition 8202. He merely said it was not open to the MRT to have regard to those documents. 18 It will be recalled that, in para 54 of its reasons, the MRT said the Divisional Academic Progress Committee's decision (referred to in the letter of 22 January) 'may not necessarily mean that the review applicant's academic results are to be regarded as "at least satisfactory".' However, the MRT added that the view that the decision did have that meaning was 'probably the better and most realistic view to take'. Not surprisingly, Mr Catterns supported that comment. He said the phrase 'at least satisfactory': 'is plainly intended to give to the education provider a discretion to consider the results in the context of other circumstances such as a student's ill-health (as here), language difficulties or other matters which might result in a student who "failed to meet course requirements" … nevertheless having achieved results which were "at least satisfactory" in the circumstances.' 19 I agree that the phrase 'at least satisfactory' gives to the education provider a measure of discretion. Results that might be considered unsatisfactory for a student in one situation might be regarded as satisfactory for another student, differently circumstanced. My difficulty is that I cannot read the letter of 22 January 2003 as a statement that the University considered the appellant's academic results to that date as being satisfactory. I do not see an inconsistency between what Mr Sneddon said in his letter of 22 January and the terms of Mr Hyde's notice of 7 February 2003. The two documents addressed different issues. 20 Mr Sneddon's letter must be read against the background of what had gone before. On 2 December 2002, Mr Sneddon had communicated a decision of the Divisional Academic Progress Committee to ask the appellant to show cause why it should not exercise its powers under the Academic Progress Rules and direct he not continue with his course of study. As I understand the situation, the Divisional Academic Progress Committee was taking the same step as it would take in relation to any poorly performing student, whether the student was from overseas or an Australian resident. No doubt the University thought it important, from the point of view of both the University and students themselves, to weed out those students who seemed to have little chance of successfully completing their courses. The question posed by the 'show cause' letter was not whether the appellant's results to date were satisfactory, but whether he should be allowed to continue in his current course of study. The appellant understood this and responded with submissions that did not attempt to argue his results were satisfactory; rather to set out reasons for their unsatisfactory nature and to plead to be allowed to continue. The Committee acceded to that plea, but subject to the condition stated in Mr Sneddon's letter of 22 January 2003. To regard that decision as a decision that the appellant's results to that date were satisfactory, seems to me a misunderstanding of both what was happening and the terms of the letter. 21 The background to the notice under s 20 of the ESOS Act was different to that of the letter of 22 January 2003. Section 20(1) requires a registered provider to give a written notice to a student who has breached a student visa condition concerning satisfactory academic performance. Although the registered provider has a measure of discretion as to what level of performance is satisfactory, under all the circumstances, once it reaches a conclusion that the performance is not satisfactory, the registered provider has no discretion as to whether or not to issue a s 20 notice to the student. By force of s 20(1) of the ESOS Act, it is bound to do so. That is what the University did, in this case, on 7 February 2003. 22 I see no inconsistency in an educational institution saying to a student, whether simultaneously or at different times: (i) 'we will allow you to continue your course'; (ii) 'your academic results to date are unsatisfactory'. On 22 January 2003, the University made the first statement to the appellant; on 7 February 2003 it made the second. 23 Mr Catterns concedes his first point must fail if (as I believe) it is correct to say the letter of 22 January 2003 is not an expression of the University's opinion that the appellant's academic results to that date were, at least, satisfactory. However, against the possibility that what I say is not correct, I will deal with the second element in the argument. In relation to that element, Mr Catterns submitted: 'By virtue of s116 [of the Migration Act] and reg 2.43, condition 8202 has a statutory effect in the sense that its breach leads to automatic cancellation of the student's visa. The condition must be met "for each term or semester … of the course". This must contemplate a once and for all certification for that term or semester, rather than any regime of revocation or cancellation (with attendant requirement for natural justice) and so on.' 24 Mr Catterns referred to the decision of the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 ('Bhardwaj'). However, that decision does not seem to assist his argument. 25 Bhardwaj was a case in which the Immigration Review Tribunal ('IRT') had appointed a date to hear an application to review a decision by a delegate to cancel the applicant's student visa. The applicant's migration agent advised the IRT that the applicant was ill and sought a later hearing date. Unaware of this request, the IRT made a decision adverse to the applicant. When apprised of the situation, the IRT arranged a new hearing date. At the hearing, the IRT accepted the applicant's explanation for his non-attendance and considered, on its merits, the application for review. The IRT eventually set aside the delegate's cancellation decision. In this Court, the Minister unsuccessfully contended that the IRT had had no power to reconsider its original decision. Upon further appeal, the High Court agreed with this Court that the IRT had power to make the second decision. 26 The decision in Bhardwaj largely turned on provisions in the Migration Act concerning decisions of tribunals, which are not relevant in considering a certificate given by a registered provider. However, as Mr Catterns pointed out, at [5]-[6] Gleeson CJ made some general observations about power to revisit an administrative decision. His Honour said: 'There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [1964] AC 40 at 79, Lord Reid said: "I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made.' 27 It seems to me these observations apply to the present case. It is no doubt true, as Mr Catterns submitted, that a certificate of satisfaction has a statutory effect. However, the same comment may be made about most administrative decisions, including the decision in Bhardwaj. I think Gleeson CJ was looking for more than that. I can find nothing in the legislation relevant to this case indicating a contrary intention to the principle stated by Lord Reid. 28 Mr Catterns did not argue that the notice of 7 February 2003 was invalid for want of procedural fairness. Given the submissions made to the University by and on behalf of the appellant in early January 2003, and the consultations that apparently occurred between 22 January 2003 and 7 February 2003, such an argument would have been difficult to make. 29 It follows that if, contrary to my view, the letter of 22 January 2003 is properly to be read as a certificate of satisfaction, for the purposes of para (d) of condition 8202, then it was open to the University to reconsider the matter afresh and make a different decision. On 7 February 2003, an unequivocal decision was made. This was confirmed in the letter to the MRT of 21 August 2003. The effect of any defect in the s 20 notice 30 Mr Catterns argued the s 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (No 1) [2005] FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any view about its correctness. Counsel for the Minister contended that, even if the s 20 notice was incapable of having the consequences set out in Subdivision GB of Division 3 of the Migration Act (ss 137J - 137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate's decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248, 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58, 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218. 31 Both the respondents' contentions are correct. There is nothing in this point. Disposition 32 I would order that the appeal be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.