The appeal
28 Ms Liew, although represented by lawyers before the Tribunal and the Federal Circuit Court, was not represented in the appeal to this Court.
29 On 6 August 2015 a Deputy District Registrar directed that the appellants file an outline of submissions before the hearing date, but no such submissions were filed. At the hearing, Ms Liew's oral submissions were largely confined to reiterating that she was unable to attend classes because she was pregnant. At the conclusion of the hearing, I made directions, including that the appellants file an outline of submissions in response to the first respondent's further outline of submissions by 6 January 2016. However, the appellants have not filed any written submissions.
30 The appellants' notice of appeal appears to assert that the Federal Circuit Court erred by failing to uphold the ground of appeal upon which they had relied in that Court. It is therefore necessary to consider whether the Tribunal fell into jurisdictional error by failing to consider Ms Liew's emails of 1 and 8 September 2011 in which she explained that she could not attend classes and could not study because of her pregnancy, childbirth and the need to look after her daughter.
31 It is true that the Tribunal did not refer to Ms Liew's emails and it may be assumed that they were not taken into account. However, it remains to be seen whether that constitutes jurisdictional error.
32 In Minister for Immigration and Border Protection v SZSRS, the Full Court at [50] (Katzmann, Griffiths and Wigney JJ) cited the following passages from the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT with approval:
[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [[2005] FCAFC 11] at [24]…The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[112] As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [[2003] FCAFC 11] at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. (Emphasis added.)
(See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ)).
33 Whether the Tribunal's failure to consider Ms Liew's emails amounts to jurisdictional error turns upon the relevance, cogency and importance of the emails to the exercise of the Tribunal's function.
34 The relevance of the Tribunal's findings concerning Ms Liew's credibility is somewhat unclear. While the Tribunal found that she was not a credible witness, the finding of credit does not seem to have ultimately had any impact upon its decision.
35 The Tribunal concluded that Ms Liew had not complied substantially with the conditions of her previous visa for two reasons. The first was that the breach was significant, as the purpose of the student visa was enrolment and study in a registered course, yet she had not been enrolled for more than 10 months out of the total period of the visa of about 17 months.
36 The appellants' case that the Tribunal fell into jurisdictional error is directed to the Tribunal's second reason. The Tribunal's second reason was that Ms Liew had not provided any adequate explanation as to why she had not been enrolled. Here the Tribunal distinguished between enrolment in a course and attending classes. The Tribunal accepted that Ms Liew was unable to attend at least some classes due to the birth of her child, but decided that she had not provided any adequate explanation as to why she could not have maintained her enrolment.
37 The word "enrolled" appears in cl 2 of condition 8202. It is not defined in the Act or Regulations. The ordinary meaning of the word may be ascertained by reference to a dictionary. The most relevant definition of "enrolled" in the Macquarie Dictionary (Online Edition) is:
Education to place on the register of an educational institution, or of a course offered by an educational institution.
38 Clause 2 of condition 8202 requires that the holder of a relevant visa be enrolled, in the sense of being registered for a registered course. It does not require that the visa holder attend classes for the course.
39 Failure to attend classes is dealt with in cl 3 of condition 8202. If a student does not attend 80% of scheduled class contact hours, the education provider can provide a certificate of the kind specified in cl 3 of condition 8202, and the student will then be in breach of cl 3. In this respect, I respectfully agree with the analysis of Judge Barnes in Zhang v Minister for Immigration and Citizenship (2010) 243 FLR 472; [2010] FMCA 809:
69. It is relevant to have regard to the distinction drawn in condition 8202 between enrolment and an absence of certification of unsatisfactory course attendance or certification of unsatisfactory course progress. Unlike condition 8202(3), condition 8202(2)(a) does not refer to certification (or an absence of certification) by an education provider. As counsel for the applicant submitted and as the Minister did not dispute, a failure to attend a course or to achieve satisfactory results is not of itself such as to establish that a person is not enrolled in a course within condition 8202(2)(a).
70. While mere non-attendance does not equate to cessation or termination of enrolment, it is important not to conflate the meaning of "enrolled" and the evidence that may satisfy a decision-maker in respect of compliance (or substantial compliance) with condition 8202(2)(a).
71. I accept that there must be an identifiable act by the student, such as notification to the education provider of withdrawal or discontinuance from a course. However, in the context of condition 8202(2)(a) it is consistent with the ordinary meaning of "enrolment" that a cessation of enrolment may be established not only by evidence of termination of enrolment by the education provider, but also by evidence of withdrawal from a course or discontinuance by a student communicated to the education provider. Consistent with this view, s 19(1)(d) of the [Education Services for Overseas Students Act 2000 (Cth)] imposes an obligation on an education provider to give to the Secretary of DEST information about "any termination of an accepted student's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed" within 14 days of this occurring. (Emphasis added.)
40 The Tribunal was concerned with the question of whether Ms Liew had complied substantially with the requirement of cl 2 of condition 8202 that she be enrolled in a registered course. Ms Liew was not enrolled in a registered course for two periods: the first began when her enrolment was cancelled by the College on 17 July 2010 for disciplinary reasons; and the second began when her enrolment was cancelled on 19 February 2011 for non-commencement of studies. The Tribunal's finding that she was not enrolled in these periods was plainly correct. Ms Liew's failure to be enrolled in the course for any part of the period of the visa was a breach of cl 2 of condition 8202: see Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170 at [19]-[20] (Cooper J), Wang v Minister for Immigration and Citizenship [2007] FCA 1188 at [20] (Weinberg J).
41 Once the Tribunal decided that Ms Liew had not been enrolled in a registered course for part of the period for which her visa was in force, the question of why she was not enrolled was a relevant circumstance to consider in deciding whether there was substantial compliance with the condition: see Kim v Witton (1995) 59 FCR 258 at 271 (Sackville J), Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 (Katz J). The Tribunal distinguished between Ms Liew's explanation for why she was unable to attend classes and why she was not enrolled. In my opinion, the Tribunal was correct to make that distinction.
42 Ms Liew's emails of 1 and 8 September 2011 simply corroborated the explanations she gave to the Tribunal as to why she was unable to attend classes. The emails might have been relevant to the credibility of Ms Liew's evidence as to why she was unable to attend, but the Tribunal's adverse findings upon Ms Liew's credit did not ultimately affect its decision.
43 Ms Liew's emails did not deal with the question of why she was not enrolled. The emails could not have affected the Tribunal's consideration of the issue on which its decision turned, namely whether Ms Liew had complied substantially with the condition that she be enrolled in a registered course. The emails were not cogent evidence in support of her case, nor were they centrally relevant to her case.
44 The primary judge was correct to find that the Tribunal had not committed jurisdictional error by failing to consider Ms Liew's emails of 1 and 8 September 2011.
45 The appeal is dismissed with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.