Liu v Minister for Immigration & Multicultural & Indigenous Affairs

the decision of the MRT 7 The MRT found that the applicant did not enrol in the May 2002 semester at Bond University, and was not at the time of cancellation of his visa enrolled in a registered course. The MRT determined that such conduct constituted a breach of condition 8202, it being a failure to maintain an enrolment in a registered course as required by par (b) of the condition. Breach of the condition constituting a prescribed circumstance for the purpose of s 116(3) of the Act, required that the visa be cancelled and the MRT accordingly affirmed the decision of the delegate to cancel the visa. 8 The MRT in its reasons stated that it: '... accepts that the review applicant was intending to change course and so did not pursue the show cause notice he received from Bond and that he was not studying at the time of cancellation and was not enrolled in a registered course as he was waiting to change to his new provider.' 9 The evidence of the applicant to the MRT was that he received a notice from Bond University dated 6 June 2002, issued under s 20 of the Education Services for Overseas Students Act 2000 (Cth), which stated that he had breached a condition relating to the attendance of the course he was enrolled in at the University. The particulars of breach were that: 'You are not enrolled for May 2002 Semester as you have not shown cause why your GPA for January 2002 Semester was below satisfactory.' The applicant did not reply to the notice from Bond University. 10 The applicant stated that he had applied to enrol in courses at Griffith University and Central Queensland University and that on 10 July 2002 he had accepted an offer of Central Queensland University dated 2 July 2002 of a place in the Bachelor of Business (Management) course.

the grounds for review 11 The applicant relied upon the following grounds to obtain the relief sought: (a) the MRT erred in interpreting paragraph (3)(b) of condition 8202 of the applicant's visa as requiring that the applicant must maintain enrolment in a registered course at all times during the currency of the visa; (b) the MRT erred in failing to interpret paragraph (3)(b) of condition 8202 of the applicant's visa as not prohibiting short gaps in enrolment in a registered course in certain circumstances; and (c) the MRT erred in failing to interpret s 116(1) of the Act and reg 2.43(2)(b) of the Migration Regulations 1994 ('the Regulations') in such a way that those provisions will not necessarily be breached where there is a short and temporary gap in a student's enrolment in a registered course. 12 Counsel for the applicant submitted that condition 8202(b) which required that 'the holder is enrolled in a registered course' should not be construed in such a way that a temporary gap in enrolment meant that the condition was breached. To do otherwise, it was submitted, would lead to harsh results where students wished to change courses or institutions in circumstances where they were allowed to do so. Further, it was submitted, that, in the absence of the words 'at any time' in s 116(1) or reg 2.43 a short, temporary or minor failure to comply with a condition did not mean that the visa was liable to be cancelled for breach of a condition. Finally, it was submitted that a literal construction could not be given to the condition because such a construction would be inconsistent with the purpose of student visas. Unless the regulation was given a purposive construction rather than a literary construction, it was submitted, it would be invalid as being beyond power. These final submissions were based on the observations of Madgwick J in Shrestha v Minister for Immigration and Multicultural Affairs (No 1) [2001] FCA 359 at [18] - [22], [27]. 13 The power to cancel a visa requires satisfaction of the applicable provisions of s 116 of the Act. That requires that the Minister (or his or her delegate) be satisfied of one of the circumstances specified in s 116(1). For present purposes that involves satisfaction that the 'holder has not complied with a condition of a visa'. The ordinary meaning of the words in the context does not mean that the Minister be satisfied that there be substantial non-compliance. It requires simply that the requirements of the condition of the visa be ascertained as a matter of the proper construction of the visa condition and, that having been done, it be determined whether the factual circumstances as found by the Minister satisfy him or her that the holder of the visa has not complied with the condition. If the Minister is so satisfied, he or she has a discretionary power to cancel the visa. The discretionary power in s 116(1) to cancel a visa is subject to the provisions in s 116(2) and s 116(3). Section (3) requires that if the Minister has discretionary grounds under s 116(1) to cancel a visa, the Minister must do so if prescribed circumstances exist. The scheme of s 116 therefore is to provide for both discretionary and mandatory powers to cancel a visa. The section provides that the circumstances which will lead to mandatory cancellation will be provided for by the Regulations. 14 Regulation 2.43(2) is to give effect to s 116(3) of the Act. As a matter of construction, reg 2.43 re-states the statutory test in s 116, namely that the Minister is to be satisfied that the visa holder has not complied with a condition of the visa, and in the case of a Student (Temporary) (Class TU) visa, identifies the condition as 8202. The regulation does not, as a matter of construction, import a requirement of substantial non-compliance. It is, as with s 116(1)(b) of the Act, the requirement of the regulation that the requirements of condition 8202 be determined on a proper construction of the condition and that the Minister be satisfied upon the facts as he or she may determine them whether the visa holder has or has not complied with the requirements of condition 8202. 15 If the Minister is satisfied that the requirements of condition 8202 have not been complied with, he or she is required to cancel the visa: see above. 16 In the present case, the issue for the decision maker and the MRT on review, was to determine what the requirements in condition 8202 consisted of, and whether, on the facts as found, the decision maker was or was not satisfied that the applicant had complied with those conditions. 17 The legislative objective of the provision of student visas for overseas students is for the purpose of study in Australia as a student. Condition 8202, in the terms which are relevant to the present application, was applied as a special condition on certain student visas by Item 4 of Sch 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). Condition 8202 therefore falls to be construed in that context. 18 There are three requirements in condition 8202 and they are cumulative. The first is that the student holder is either enrolled in a full time course of study (par (a)), or is enrolled in a registered course (par (b)). The second is satisfactory attendance by the student holder where the education provider keeps attendance records (par (c)). The third is that the student holder achieves satisfactory academic results (par(d)). 19 Proof of satisfaction of each of the conditions by the student holder is: (a) and (b): proof of enrolment; (c): proof of attendance records showing attendance by the student holder for at least eighty per cent of contact hours; (d): production of certification by the education provider of satisfactory academic achievement. Each of the requirements of condition 8202 relates to a continuing state of affairs, which are directly referrable to the purpose for which the visa was granted, namely, satisfactory progress to and towards completion of a full time course of study or a registered course. Failure to satisfactorily pursue such a course by reference to the criteria contained in condition 8202 is a failure to comply with the condition. In the context of condition 8202, enrolment in a course is a continuing requirement. It is a precondition to the later requirements of satisfactory attendance and academic achievement. Whether or not the holder of a student visa is enrolled in a full time course of study or is enrolled in a registered course, is a question of fact in each case. 20 Such a construction renders no hardship on a student visa holder who wishes to discontinue a course or enrol in another registered course different from that in which the holder was enrolled at the time of the grant of the visa. It requires simply that the visa holder take such steps as are necessary under the Act to ensure that he or she has or obtains an appropriate visa to enable the holder to discontinue a course or enrol in another registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course. Nor is such a construction inconsistent with the statutory purpose of the grant of student visas; nor inconsistent with the terms of s 116(1) and s 116(3) of the Act. 21 As this condition operates in respect of the applicant's student visa by operation of substantive provision of an enactment and not by regulation, no question of the extent of the regulation making power arises as it did in Shrestha (No 1). Like Emmett J in Minister for Immigration and Multicultural Affairs v Nguyen and for the reasons his Honour states, I do not consider the Shrestha (No 1) case as having any relevance to the matter before me. 22 The MRT made a finding of fact that the applicant did not maintain enrolment in a registered course. It was for this reason satisfied that the applicant had not complied with the condition (b) in condition 8202, and that reg 2.43 and s 116(3) of the Act required that the applicant's visa be cancelled. In so doing, it made no error of law. 23 The absence of an error of law amounting to jurisdictional error means that the decision is, and remains, a privative clause decision, to which s 474 of the Act applies: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 24 The applicant has failed to demonstrate an error of a kind which would entitle him to relief under s 39B of the Judiciary Act 1903 (Cth). 25 The application will be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Counsel for the Applicant: D Rangiah Solicitor for the Applicant: Hartnett Lawyers

Counsel for the Respondent: P Bickford Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 25 July 2003 Date of Judgment: 24 October 2003