[2004] MRTA 596

CATCHWORDS: Student visa cancellation under section 116 - Subclass 571 - condition 8202 - failure to meet course requirements - cancellation - notification procedures - intention to cancel

DECISION: The Tribunal sets aside the decision under review to cancel the review applicant's Student (Temporary) (Class TU) visa and substitutes a decision that the visa not be cancelled.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) on 25 June 2003 to cancel the subclass 571 (Student) visa held by Cong Min Lian (the review applicant), a national of the Peoples Republic of China, born on 5 July 1984. The delegate's decision to cancel the visa was made under the Migration Act 1958 (the Act).

2. The review applicant lodged a valid application for review to the Migration Review Tribunal on 26 June 2003 (T1, f.3-7). The decision is reviewable by the Tribunal and the application for review has been validly made by a person with standing to apply for review.

3. Section 338(3) of the Act sets out the Tribunal's general power to review cancellation decisions, allowing review of a decision to cancel a visa of a non-citizen who is in the `migration zone' at the time of cancellation and not in immigration clearance.

4. When reviewing a cancellation decision, the Tribunal generally restricts itself to considering the grounds for cancellation raised by the delegate. It also examines the procedures followed by the delegate in cancelling the visa to ensure that the requirements set out in the Act have been met.

5. In reaching a decision on a review, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the _Procedures Advice Manua_l 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). Policy guidelines should be observed where they are not inconsistent with the legislation and where there are no cogent reasons against their application. The Tribunal generally has regard to the Regulations as they stood at the time of a visa cancellation. However, subsequent amendments may apply in some circumstances.

6. The Tribunal has the power to affirm, vary, or set aside a decision to cancel a visa. Where the Tribunal sets aside a decision to cancel a visa, the effect is that the visa is treated as if it was never cancelled. If the visa would have otherwise expired, the outcome is that the visa is no longer current but that the particular consequences of cancellation no longer apply (e.g. the restrictions on applying for another visa).

7. The legislation, policy, and other materials immediately relevant to this review are:

Section 116 of the Migration Act.

Part 571 of Schedule 2 to the Migration Regulations

Clause 8202 of Schedule 8 to the Migration Regulations

Migration Series Instruction: MSI 368 'Visa Cancellation under sections 109, 116, 128 and 140'.

Procedure Advice Manual 3: Generic Guidelines G - Student Visas

Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574

Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460

Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575

Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240

8. The Act sets out the procedure for cancelling visas. The Departmental policy is to give all information supporting a cancellation decision to a visa holder in a notice of intention to consider cancellation (Migration Series Instruction at 12). Section 119 of the Act provides that the Department must notify a visa holder of the particular grounds on which cancellation is being considered and the visa holder invited to show either that the grounds do not exist or there are reasons that the visa should not be cancelled. Whilst the Department's practice is generally to provide a written notice to a visa holder, the Act allows for such notice to be given orally.

9. Where the Department receives additional relevant information after giving a notice pursuant to section 119 of the Act, the visa holder must be informed of that additional information. Section 120 of the Act provides that the Department must give particulars of relevant information to a visa holder, ensure, as far as reasonably practicable, that the visa holder understands why it is relevant to the cancellation and invite the visa holder to comment on the information before a visa is cancelled.

10. Following the proper procedure is therefore an essential precondition to the exercise of the cancellation power. As the Tribunal may only exercise the same powers and discretion conferred on the primary decision-maker (subsection 349(1) of the Act), it follows that the Tribunal has no power to affirm a cancellation where the proper cancellation procedure has not been followed. Nor does the legislation allow for the Tribunal to `cure' a defect in the notification procedures.

11. In Zhao, the Full Federal Court of Australia discussed the level of particularity that is required in a notification under section 119 of the Act and held that:

Section 119 requires particulars of the grounds relied upon to be included in the notice. The Level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based.

12. In Tien, the Federal Court of Australia found that the procedure for cancelling visas under Subdivision E of the Act was mandatory and that the fact of the nexus between the grounds of cancellation and the information giving rise to the grounds for cancellation must be communicated to the visa holder.

13. The relevant legislation, as at the time of the cancellation decision, is set out below:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(b) its holder has not complied with a condition of the visa; or

(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.

Regulation 2.43. Grounds for cancellation of visa (Act, s.116)

(2) 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

14. Paragraph 2.43(2)(b) of the Regulations sets out the prescribed circumstances in which the Minister must cancel a visa pursuant to subsection 116(3) of the Act if the Minister may cancel a visa under subsection 116(1) of the Act. Paragraph 2.43(2)(b) of the Regulations includes non-compliance with condition 8202 as a prescribed circumstance in which the Minister must cancel a Student visa.

15. The version of condition 8202 which applied on 14 April 2002, being the date that the review applicant's visa was granted is found at Item 8202 in Schedule 8 to the Regulations and reads as follows:

8202 (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).

(2) A holder meets the requirements of this subclause if:

(a) the holder is enrolled in a registered course; or

(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student -- the holder is enrolled in a full-time course of study or training.

(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.

(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full-time course of study or training.

16. The Tribunal has had regard to the following material:

D1 - Departmental file CLF2003/33003, folio numbered 1-54.

17. The review applicant first entered Australia as a student on 7 May 2002 on a Student (Temporary) (Class TU) visa, subclass 571 which was granted on 14 April 2002 and which was due to expire on 15 March 2005. Attached to this visa was condition 8202 (`Enrolment and course requirements'). The visa was cancelled on 25 June 2003 for failure to meet course requirements.

18. Upon arrival in Australia, the review applicant undertook study at Alexander Language School (ALS) from 8 May 2002 until 17 April 2003. He then undertook study at the Australian College of English (ACE) from 28 April to 4 July 2003 before commencing a diploma course at La Trobe University (Perth).

19. On 19 June 2003, the delegate issued to the review applicant a written notice of intention to cancel the visa, stating that possible grounds existed for the cancellation of his visa, as the Department had been informed he had been sent a Section 20 Notice under the ESOS Act for failure to meet course requirements (D1, f.4-5). The review applicant was advised that he would be provided an opportunity to comment at an interview scheduled for the following day. This interview was rescheduled a number of times and took place on 25 June 2003. The reasons given by the applicant as to why the visa should not be cancelled are given on the Record of Decision Whether to Cancel Visa as:

student was informed by La Trobe (ACE) that he could change provider. Student was attending at ACE instead of Alexander College and therefore received 0% attendance (D1, f.24).

20. Under the grounds for cancellation the delegate has recorded:

ESOS Act S20. Breach 8202. Student did not attend at the provider on his visa. Poor attendance. Did not meet course requirements (D1, f.24)

21. On 25 June 2003, the delegate proceeded to cancel the review applicant's student visa, on the ground that there was a breach of condition 8202, per the s20 Notice issued under the ESOS Act for failure to meet attendance requirements (D1, f.25).

22. An application for review was lodged with the Tribunal on 26 June 2003.

23. When lodging the application for review, the review applicant's representative stated the following:

"The primary reason that DIMIA cancelled my client (Mr Cong Min Lian's) student visa was the poor attendance. But the letter from Australian College of English stated that Mr Cong Min Lian's attendance there was an average of 93% for the period stated (between the 28 April 200 and the 4 July 2003). Alexander Education Group's certificate of attendance stated that `this is to certify that the attendance of Lian Cong Min at Alexander Language School between 8 May 2002 and 17 April 2003 was satisfactory 98%'. These indicated that Mr Cong Min Lian has attended school for more then 80%. I will send more materials in to support my clients review application as soon as possible".

24. The review applicant's agent made submissions to the Tribunal in support of the applicant on 23 July and 15 December 2003. These submissions argued that the applicant's attendance at ALS and ACE were well above 80% and that the applicant believed the Department had agreed to his transfer from ALS to ACE, subject to him submitting some documentation requested by the Department. He also claimed that the cancellation procedure was deficient in that the reasons for cancellation were not clearly described to the applicant who did not know how to respond to the case against him. The following supporting documentation was presented together with the agent's submission:

* A hand delivered letter to the review applicant from DIMIA Perth stating that he must provide the Department with a completion certificate for ALS, private health cover to 4 July 2003, medical and x-ray results. It states that these documents must be provided to the Department by 30 May 2004. This letter was acknowledged by the applicant (T1, f.20).

* A completion certificate from ACE showing that the review applicant has passed his English for Academic Purposes I Course (T1, f.21).

* A letter from ACE that the review applicant had an attendance rate of 93% for the period of 28 April 2003 and 4 July 2003 (T1, f.22).

* A certificate of attendance from ALS stating the review applicant had an attendance rate of 98% for the period of 8 May 2002 and 17 April 2003 (T1, f.23).

25. On 5 January 2004 a hearing was conducted by videoconference from Canberra with the review applicant in Perth. The applicant gave sworn oral evidence. Evidence was also taken from Ms Eva Harris, an education agent who handled some of the applicant's student affairs. He was assisted by his representative, Mr Yue Guan, who also gave formal evidence. Translation in Mandarin Chinese was provided.

26. The applicant claimed that the reasons for cancellation were not adequately explained to him. This contention will be considered below. In respect to the formal cancellation process, however, the Tribunal considers the delegate in this case followed the procedure set out in subdivision E of the Act for the cancelling of visas under section 116 (General power to cancel).

27. The delegate made a decision to cancel the review applicant's visa pursuant to paragraph 116(1)(b) and subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations because of her finding that the review applicant had not complied with condition 8202 of his visa. The delegate found that the review applicant had not complied with condition 8202 because he had registered a nil attendance at Alexander Language School, having transferred to another education provider.

28. The Tribunal must therefore consider whether, at the time of the cancellation, it was possible to make a decision concerning non-compliance with condition 8202 as it appears in Item 8202 of schedule 8 to the Regulations from 14 April 2002. This requires that the applicant be enrolled in a registered course; that the applicant attain an attendance record of at least 80% for the course or the term or semester of the course if the course is structured in such a way; that the applicant achieve an academic result that is certified by the education provider as being at least satisfactory.

29. Following the decisions of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non-compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation.

30. Section 116 of the Act relevantly provides that if the Minister may cancel a visa under subsection (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2) of the Regulations sets out the prescribed circumstances contemplated by section 116(3). At the time of primary decision, this provision reads:

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

31. On a literal view, s116(3), Regulation 2.43(2) and condition 8202 appear designed to deny a discretion whether or not to cancel a visa if the condition was not complied with. That is, the Tribunal must affirm a decision to cancel if the condition was breached.

32. In deciding whether there has been a breach of condition 8202, however, the Tribunal can take into account the former visa holder's reasons for the alleged non-compliance with condition 8202, and whether the circumstances were such that it might reasonable be found that the condition was not breached. The Tribunal must also have regard to PAM3 Generic Guidelines G - Student Visas. Further, the Department has issued policy guidelines in the form of Migration Series Instructions No 368, dated 3 October 2002, which relate specifically to cancellations. These have been taken into account in the Tribunal's consideration of this appeal.

33. The central question to be decided in this case is whether the review applicant is in breach of condition 8202.

34. The decision to cancel the review applicant's visa was made following the issue of a notice under section 20 of the Education Services for Overseas Students Act 2000 on 27 May 2003. This notice states under Particular of Breach:

Stopped attending classes. Has not been in contact with the College regarding non-attendance. Enrolment cancelled.

35. The review applicant is enrolled in a registered course and was at the time of cancellation. Evidence provided by ALS is that he studied at that institution from 8 May 2002 to 17 April 2003. His attendance was 98%. He studied at ACE from 28 April to 4 July 2003, where his attendance was 93%. He was enrolled at ACE on 25 June 2003, the day his visa was cancelled.

36. The applicant confirmed at hearing that he was initially enrolled to study Years 11 and 12 at Murdoch College. He was required to undertake an English language course at ALS for a limited period prior to attending Murdoch College. After one year at ALS, well beyond what the applicant claims to have understood to be the period of the course, he has claimed his parents were not happy with that school and told the applicant that he must move to a school where he would progress better. Contrary to the advice in the section 20 notice that he had not been in contact with ALS concerning his attendance, the applicant has claimed that he informed ALS in advance that he was leaving and that his agent, Ms Harris had faxed the school a message to this effect. She confirmed this. The applicant claimed he had completed the course at ALS. This claim seems to be supported by a certificate issued by ALS covering the period 3 February 2003 to 17 April 2003, which is headed English for Secondary Academic Purposes: End of Course Report: Intermediate. It gives him an overall course grade of D, which is explained as a pass. He has also submitted a certificate from ALS to the effect that he studied there between 8 May 2002 and 18 April 2003 and reached intermediate level. He has claimed that ALS in fact rang him to tell him this certificate could be collected. There is no indication that he was required to continue at ALS. He did not pay any fees for the period after April 2003. He has claimed, and the Tribunal can find no evidence to the contrary, that ALS could have had no expectation that he would return after receiving his certificate.

37. The applicant claimed that he went to the Department on 2 May 2003 and lodged an application to transfer education providers from Murdoch College to LaTrobe University. La Trobe University had informed him that he could do this. He claims to have been told by the officer who dealt with him that there would be no difficulty with his application and he was given a notice requiring him to provide a completion certificate from ALS, evidence of private health cover and medical results. He had signed an undertaking that he would provide these by 30 May 2004. A copy of this document has been provided to the Tribunal. The date of 2004 seems to have been an error. The officer concerned has written 2004 rather than 2003 in each of the dates included on the form.

38. The applicant claimed that he returned to the Department around 10 May 2003 with the information requested, except for the medical reports, which were to be sent direct. Ms Harris confirmed this account, claiming to have been with him on the occasion of both visits. He claims to have returned a few days later, expecting to receive his approval but was told to come back at a later date as the computer was down. He had returned on 19 June 2003, again expecting to receive his new visa to allow study at La Trobe, only to be told his visa was to be cancelled.

39. At hearing, the applicant stated that he could not understand the reason given by the delegate for cancelling his visa and therefore could not respond properly. The delegate had said it was because of poor performance. He knew his performance was not poor. He had said the reason he did not register attendance at ALS was because he was no longer there. He was under the impression that the Department was happy with him changing courses and he had not been told his request had not been approved. He had attended the Department expecting the formalities to be completed. He claimed that, on the basis of the information provided by the delegate, he could not understand why his visa had been cancelled.

40. There is no doubt that the applicant was enrolled in a registered course. There is no doubt that his attendance rate, ever since his arrival in Australia, was high. It was never less than 90%. There is no doubt that the applicant is a serious student. This is affirmed by all three of the institutions in which he has studied, including ALS. The issues for consideration in this case are whether the applicant changed providers without the approval of the Department, in which case he may have breached condition 8206, and whether condition 8202 requires a student to observe the conditions therein only at the specifically approved provider.

41. In relation to the first issue, there is no evidence before the Tribunal that the Department has made any decision regarding the applicant's approval for transfer. There is, however, no doubt that he applied in the correct fashion and the Tribunal believes him when he says he was given to understand there would be no problem with this proposed transfer, albeit he recognised that he was told this informally. The Tribunal also considers it probable that ALS were aware the applicant was not intending to return there in May 2003. It therefore considers it strange that they would issue a section 20 notice. Even if it is accepted, however, that the applicant breached condition 8206, regarding approval to change education providers, this is not a ground for mandatory cancellation and the visa was not cancelled on this ground. Had his request not been approved, it was open for him to return to ALS, which has affirmed that it would accept him.

42. Further, condition 8202 requires a student to maintain an attendance rate of 80% over a course or a term of a course. There is no information provided by ALS as to what period of the course or term of the course the applicant was absent. There is therefore no way of determining whether his absence would have constituted an absence of more than 80% over the term in which he was supposed to be absent.

43. There is nothing in condition 8202 or other parts of the legislation that requires an 80% attendance rate in anything other than a registered course. Neither does there appear to be any reference in policy that requires that this rate of attendance is only applicable to an attendance at any particular provider.

44. It would appear likely to the Tribunal that this cancellation has resulted from an error or confusion on the part of a number of the players. The applicant, himself, however, appears at all times to have been attempting to do the right thing. He did seek approval of the Department about transferring his provider. It would seem reasonable that the Department would make a decision on that before proceeding to cancel his visa. If the Department had refused the request the applicant would have been accepted by ALS. There is no doubt that he is a serious student, who has had an exemplary attendance record.

45. Given what appears to have been some confusion in relation to the review applicant's attendance in the light of his application to change providers, the Tribunal is not satisfied that it is clear that condition 8202 was breached and therefore finds that it was not. It accordingly finds that the review applicant did not breach section 116(1)(b).

* The Tribunal sets aside the decision under review and substitutes a decision that the review applicant's Student (Temporary) (Class TU) visa should not be cancelled.