Liu v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT BACKGROUND 1 The applicant first entered Australia on 2 September 1995 as the holder of a student (temporary) class TU visa subclass 560. His visa was subsequently renewed on a number of occasions, the last of which was 4 April 2001. Attached to his visa was a condition 8202 which included a requirement that the applicant achieve an academic result that is certified by the education provider to be at least satisfactory. 2 The Queensland University of Technology ('QUT') is, and at all material times was, a registered provider under the Education Services for Overseas Students Act 2000 (Cth) ('ESOS Act'). 3 In 2001 the applicant became a registered student of QUT undertaking a Bachelor of Business degree. The registered start date for his course was 9 February 2001 and the anticipated end date was 31 December 2003. The applicant was excluded from his course on 2 January 2002 because of his failure to make satisfactory progress. He appealed against his exclusion and his appeal was rejected by QUT on 18 February 2002. 4 On 25 February 2002 the applicant commenced study as a student undertaking a Bachelor of International Business course at Griffith University. 5 On 30 July 2002 QUT sent to the applicant a notice pursuant to s 20 of the ESOS Act, and at the same time sent to the Secretary of the Department of Education, Science and Training ('the Secretary') a notice pursuant to s 19 of the same Act. At the expiration of 28 days from 30 July 2002, the applicant, not having complied with the notice by reporting to a compliance officer of the Department of Immigration Multicultural and Indigenous Affairs ('DIMIA'), his existing visa was treated by DIMIA as having been automatically cancelled pursuant to s 137J of the Migration Act 1958 (Cth) on 28 August 2002. The applicant was subsequently contacted by DIMIA and advised that his student visa had been cancelled for failure to comply with the notice issued by QUT under s 20 of the ESOS Act. 6 On 21 November 2002 the applicant applied, pursuant to s 137K of the Migration Act, for revocation of the cancellation effected by the operation of s 137J of that Act. On 28 November 2002 the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') determined not to revoke the automatic cancellation of the applicant's visa. The applicant applied to the Migration Review Tribunal ('MRT') under the provisions of the Migration Act for review of the decision of the delegate. On 12 November 2003 the MRT determined to affirm the decision of the delegate not to revoke the cancellation of the applicant's visa. 7 The applicant applied to this Court on 5 December 2003 for an Order of Review of the decision of the MRT. The grounds relied upon were: 'The Migration Review Tribunal (MRT) made a jurisdictional error in the exercise of its discretion in that: 1. The applicant ceased his studies at the QUT in January 2002 and commenced his studies at Griffith University on 25 February 2002; therefore the only education provider that could have issued the applicant with a Notice under Section 20 of the Education Services for Overseas Students Act 2000 in July 2002 was Griffith University and not QUT. 2. By ignoring the fact that during the time of applicant's (sic) study with QUT he never received a Notice under Section 20 of the Education Services for Overseas Students Act 2000 (NCN letter) of any intention that his visa may be cancelled. 3. The Migration Review Tribunal erred in its finding that on 20 July 2003 (sic), the date of the Notice under Section 20 of the Education Services for Overseas Students Act 2000, ("the act") issued by the applicants (sic) previous education provider, the previous education provider, QUT was the relevant education provider that could issue such a notice. 4. The MRT erred, in view of Section 20(1) of the act which states "A registered provider must send an accepted student of the provider a written notice if the student has breach a student visa condition relating to attendance or satisfactory academic performance." in its finding that on 20 July 2002 (sic) the applicant was "an accepted student of the provider" in spite of the fact that the applicant has not been studying (sic) at QUT when the notice was issued. 5. The MRT made a jurisdictional error by ignoring the definition of an "accepted student" which reads as follows: accepted student of a registered provider means a student (a) who is accepted for enrolment, or enrolled in a course provided by the provider… and by accepting that QUT was entitled to give a student who studies at another education provider a Notice under Section 20 of the Education Services for Overseas Students Act 2000. 6. The MRT made a jurisdictional error by finding that QUT was the relevant education provider in July 2002 and as such by necessary implication be entitled to send the applicant a Section 20 Notice to the address held by QUT when he left QUT in January 2002 and not TO the address held by the applicants (sic) present education provider, Griffiths (sic) University, in July 2002.' (Original emphasis) THE LEGISLATIVE SCHEME 8 Section 20 of the ESOS Act provides: '20 Sending students notice of visa breaches (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. Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104. Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108. (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 purposes 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. Unincorporated registered providers (5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.' (Original emphasis) 9 An 'accepted student' is defined by s 5 of the ESOS Act as: '5. In this Act, unless the contrary intention appears: accepted student of a registered provider means a student (whether within or outside Australia): (a) who is accepted for enrolment, or enrolled, in a course provided by the provider; and (b) who is, or will be, required to hold a student visa to undertake or continue the course.' 10 Section 137J of the Migration Act provides as follows: '137J Non-complying students may have their visas automatically cancelled (1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach. (2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day: (a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either: (i) in Australia; or (ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette; makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.' (Original emphasis) 11 A non-citizen whose visa has been cancelled under s 137J may apply in writing to the Minister for revocation of the cancellation: see s 137K of the Migration Act. The powers of the Minister in dealing with an application made under s 137K are provided for in s 137L of the Migration Act, which relevantly provides: '137L Dealing with the application (1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister: (a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or (b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or (c) of any other matter prescribed in the regulations. (2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J. (3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.' (Original emphasis) 12 For the sake of completeness it is noted that the Minister may revoke the cancellation on his or her own initiative if the Minister thinks that it is in the public interest to do so: see s 137N of the Migration Act. THE MRT DECISION 13 The applicant contended before the delegate of the Minister that in February 2002 he had ceased to reside at the address registered with QUT as his residential address. He had not advised QUT of his change of address because he was no longer a student with that institution. He further claimed that in consequence of his leaving his old registered address, the notification under s 20 of the ESOS Act never came to his attention. Accordingly, he was unaware of the contents of the notification, of his obligation to contact DIMIA within 28 days of the date of issue of the notification and that his visa would be automatically cancelled if he failed to comply with the notice. He further submitted to the delegate of the Minister that the breach of his visa condition was due to exceptional circumstances beyond his control, namely the ill health of family members overseas and the effect that that was having on his ability to satisfactorily perform his studies. 14 The delegate determined that, by virtue of s 137L(2), the fact that the notice under s 20 of the ESOS Act had not been received by the applicant could be relied upon as a ground for revocation. The delegate was also of the view that the circumstances relied upon by the applicant were not such as to make out the claim that the breach of condition had occurred as a result of exceptional circumstances beyond his control. The applicant sought review of this decision by the MRT. 15 The reasons of the MRT, so far as presently relevant, are set out in pars 27, 29, 30, 32, 33, 34 and 35 of its written reasons for decision: '27. The Tribunal must consider whether, at the time of the refusal to revoke the automatic cancellation, the delegate made the correct and preferable decision concerning non-compliance with condition 8202, within the limited discretion it can exercise under section 137L. … 29. The review applicant has claimed that he was not informed of the decision to cancel his student visa until a department compliance officer had contacted him and thus he was unable to respond in the given time. He maintains he was unable to respond because he had changed his residential address. In his statement dated 12 February 2002 the review applicant admitted that he did not notify QUT of his change of address yet he provided this information to GU (the education provider to which he wished to change to). In the submission the agent argues that the delay in providing the review applicant was caused as a direct result of confusion referred to by QUT. Irrespective of this confusion, given that QUT was not notified of the change of address, it cannot be assumed that had QUT not confused another student with the review applicant, the review applicant would have received the Notice. In any case having regard to section 137L(2) of the Act, the Tribunal considers this can not be a reason to revoke the decision to cancel his visa. 30. In the matter under review, the Tribunal finds that the visa applicant did in fact breach condition 8202 (failing to achieve a satisfactory academic result) to which his visa is subject. Having had regard to all the evidence before it the Tribunal is not satisfied that the visa applicant's situation is such as that the breach was due to exceptional circumstances beyond his control. MSI 354, which relates specifically to automatic cancellations of student visas, provides little guidance in respect to the meaning of "exceptional circumstances" beyond the applicant's control. It suggests however that examples may include hospitalisation, where the student can prove that his/her education provider mistook his/her identity and cancelled that student's visa in error, and, where the student is able to produce credible evidence to show that he/she was unable to meet a condition of the visa. … 32. The term "exceptional" is not defined in the legislation. The Macquarie Dictionary (3rd Ed, 1999) defines "exceptional" as "forming an exception or unusual instance; unusual; extraordinary." The Tribunal has considered the extent of the non-compliance, the circumstances in which the breach arose and other relevant matters in this matter. 33. The review applicant did not dispute that his academic performance was unsatisfactory, albeit he claims this was due to exceptional circumstances. The Tribunal has noted the review applicant's reasons, expressed through the agent's submission, as well as in person statements and at the hearing, as to why he believes he is not in breach of a condition of his visa. The Tribunal is sympathetic to the review applicant's personal problems he has encountered, some of which indeed may have result from matters beyond his control. However the Tribunal does not accept his explanations that his concern for his family's welfare, preventing him from achieving a satisfactory academic performance, amounted to exceptional circumstances. Given that the review applicant was excluded from his study course on 2 January 2002 (for failing to achieve a satisfactory academic performance up to that time) and subsequently appealed this exclusion (the appeal was rejected on 18 February 2002) the Tribunal has given little weight to the letter provided by a Medical Practitioner, who states the review applicant has been seeking counselling since the beginning of 2002. For similar reasons the Tribunal has given little weight to the Social Worker's report and the letter from the International Student Councillor at GU, whom the review applicant first consulted in Semester 2, 2002. 34. Having considered the evidence before it, the Tribunal finds the review applicant has breached condition 8202 of his subclass 560 visa. The Tribunal does not consider the circumstances of the breach of condition 8202 to have been beyond the control of the visa applicant. It would appear from the information provided that some of the review applicant's family problems had been ongoing. The Tribunal considers it was not beyond the review applicant to seek assistance in overcoming the problems he believed he encountered with his academic performance whilst studying at QUT. Little evidence has been presented to the Tribunal to demonstrate that the review applicant sought assistance with his studies from any of the avenues open to him whilst he was at QUT. 35. For the reasons outlined above the Tribunal finds that decision made by the delegate not to revoke the automatic cancellation of the subclass 560 visa is the correct or preferable one. The Tribunal has no alternative but to affirm the decision under review.' PROCEEDINGS IN THIS COURT 16 The decision of the MRT under review is a privative clause decision as defined in s 474(2) of the Migration Act. As such, it is subject to the provisions of s 474(1) of the Act, which provide: '(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.' 17 In order to avoid the consequence of s 474 of the Migration Act, it is necessary for the present applicant to make out jurisdictional error on the part of the MRT in order to establish that there has been no relevant decision made by the MRT to which s 474 of the Migration Act can apply: see Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476; Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134 of 2002 (2003) 211 CLR 441. ISSUES FOR CONSIDERATION 18 The applicant contended before this Court: (a) that a valid notice under s 20 of the ESOS Act is an inviolable statutory limit or condition upon a power which as a matter of construction must be observed for the effective exercise of the power; (b) no such notice was given by QUT at any time while the applicant was an accepted student as defined in s 5 of the ESOS Act, and could not be given at any time after the applicant ceased to be an accepted student of QUT; (c) the failure of QUT to send the notice under s 20 of the ESOS Act until 30 July 2002 meant that the notice was not sent 'as soon as practicable after the breach' as required by s 20(2). Accordingly, the notice was not a valid or effective notice for the purposes of either s 20 of the ESOS Act or s 137J of the Migration Act; (d) the matters set out in pars (a), (b) and (c) above constituted a failure to comply with an inviolable limitation or restraint which was a jurisdictional error sufficient for the purposes of denying an operation to s 474 of the Migration Act: see Plaintiff S157 of 2002 at par 76; Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 at 632; R v Metal Trades and Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248; and (e) additionally, the delay in serving the notice amounted to a lack of procedural fairness being extended to the applicant, such procedural fairness itself constituting a jurisdictional error: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. 19 The applicant's principal argument relies upon a definition of an accepted student for the purposes of the ESOS Act. 20 The applicant submits that s 20, on its proper construction, requires that at the time the registered provider sends the notice the student must be a student who satisfies the definition in s 5 of the ESOS Act. That is, in the instant case, it required that the applicant be accepted for enrolment or be enrolled in a course at QUT at the time QUT purported to give a notice under s 20 of the ESOS Act. The applicant submits that because he had been excluded since January 2002 and had enrolled and commenced as a student at Griffith University, he no longer satisfied the definition of an accepted student of QUT on 30 July 2002 and thus it was beyond the power of QUT to give to him any effective notice for the purpose of s 20 of the ESOS Act. 21 The object of the ESOS Act was to provide for the registration and control of the providers of education services for overseas students in Australia. An overseas student for the purposes of the ESOS Act was a student who held or was required to hold a student visa to undertake or to continue to undertake an educational course provided by such a registered provider: see s 5 and s 8 of the ESOS Act. 22 Part 2 of the ESOS Act deals with 'registration of approved providers'. Part 3 deals with 'obligations on registered providers'. Division 1 of Part 3 deals with general obligations, which include obligations to give information to the Secretary about accepted students, including particulars of any breach of a student visa condition relating to attendance or satisfactory academic progress: s 19(2). That Division also contains an obligation to send to an accepted student notice of breach of a visa condition relating to attendance and satisfactory academic performance: s 20(1). The registered provider is also obliged to keep records of each accepted student, including the student's current residential address as supplied by the student (s 21(1) and s 21(2)), and to retain those records for two years after the person ceases to be an accepted student. 23 The breach of a visa condition which enlivens the obligation to give notice to the Secretary under s 19(2) of the ESOS Act also enlivens the obligation of the registered provider to give notice to the accepted student of such breach under s 20(1) of that Act. In both cases the obligation is to be performed as soon as practicable after the breach. 24 The obligation of the registered provider to give notice under s 20 of the ESOS Act arises at the point at which the registered provider becomes aware that a breach of a visa condition relating to attendance and satisfactory academic performance has occurred in relation to the course for which the student is enrolled and in respect of which information as to the student and the course previously has been notified pursuant to s 19(1)(b) of the ESOS Act. The relationship between the registered provider and the visa holder as an accepted student (as defined) in respect of the notified course continues to exist until such time as the course of studies is terminated by an accepted student (which is of itself a notifiable circumstance under s 19(1)(d)), or the registered provider of the course lawfully terminates the enrolment of the accepted student because the student has failed to fulfil a condition of the enrolment as, for example, the payment of course fees on a periodic basis as and when the fees are due, or to make satisfactory academic progress at each stage of the course. 25 In the instant case the relationship of registered provider to the applicant as accepted student continued to exist until it was determined by QUT to reject his appeal against his exclusion from the course he was undertaking. The rejection of his appeal took place on 18 February 2002. He was effectively, therefore, excluded from QUT as and from 2 January 2002. The ground upon which he was excluded from QUT was a failure to make satisfactory academic progress in the previous semester. A breach of visa condition 8202 occurred because QUT had not certified satisfactory academic achievement for the previous semester and had determined to exclude the applicant as a student from the course in which he was enrolled at QUT. QUT was obliged by s 19 and s 20 of the ESOS Act to give the requisite notice of that fact to the Secretary under s 19, and to the applicant under s 20. The obligation to give the notices arose no later than 18 February 2002 when the applicant's appeal against exclusion was rejected. 26 The ESOS Act, in s 19 and s 20, does not require that the student remain an accepted student at all times after the obligation on QUT to give the requisite notice arose in order that any notice given by QUT is, for the purpose of s 19 and s 20, an effective notice. The object of s 19 and s 20 is to initiate processes to ensure that the future status of the student visa is addressed under the Migration Act, having regard to the breach of visa condition. Whether or not there remains a relationship of registered provider and accepted student for the purposes of the ESOS Act is entirely irrelevant to the matters which are put in progress by the giving of a notice under s 20 of the ESOS Act. Accordingly, the application fails on this ground. 27 The only other basis on which the applicant contends that the notice was an invalid notice is that it was not given as soon as was practicable after the breach of the visa condition. This ground was not raised before the delegate of the Minister on the applicant's application under s 137K of the Migration Act for revocation of the automatic cancellation. Nor was it raised before the MRT on the application for review of the delegate's decision. There is no direct finding by either the delegate or the MRT as to whether or not the dispatch of the notice on 30 July 2002 was as soon as was practicable in all of the circumstances after discovery that the notice had been erroneously sent to another student with a similar name at the time of the rejection of the applicant's appeal against exclusion in February 2002. Rather, it was accepted before the delegate and the MRT that the notice, although 'belatedly given', was an effective notice sufficient to bring about the cancellation of the applicant's student visa. The application for revocation under s 137K is predicated on the basis that the notice dated 30 July 2002 was effective for that purpose. 28 Assuming that it is the fact that the notice was not given by QUT 'as soon as practicable after the breach of visa condition', the question is whether that circumstance rendered invalid the notice given on 30 July 2002 as the notice required to be given under s 20 of the ESOS Act. Put another way, the question is whether the late notice, in breach of the requirement in s 20(2), is invalid for all purposes. That question is answered by having regard to 'the language of the relevant provision and the scope and object of the whole statute' to determine if it was a purpose of the legislature that a notice given outside the time period provided in s 20(2) of the ESOS Act is invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [par 93]. In my view, having due regard to such considerations, that question should be answered in the negative. 29 The object of the notice under s 20 of the ESOS Act is to initiate a process to bring about a review by the Minister of the breach of a visa condition leading to possible cancellation under s 116 of the Migration Act; or in default of such a review, to automatic cancellation of the visa in question with the possibility of a revocation of the cancellation by ministerial review on an application made under s 137K of the Migration Act; or action otherwise initiated by the Minister personally under s 137N of the Migration Act. Receipt or knowledge of the contents or effect of a notice under s 20 of the ESOS Act by the student is unnecessary for the attainment of the statutory objects of the Migration Act insofar as they relate to student visas: see s 137J(1) of the Migration Act. It is the existence of the notice under s 20 of the ESOS Act itself which is the important circumstance because it is the mere giving of the notice which initiates the operation of s 137J process for the purposes of the Migration Act. Once that process is commenced the visa is liable to be cancelled by the effluxion of time in default of conduct on the part of the visa holder complying with s 137J(2). If the visa holder complies with s 137J(2) the visa remains liable to be cancelled by the Minister exercising the power of cancellation under s 116 of the Migration Act for breach of condition. Although knowledge of the existence of the notice, and the breach of condition alleged, is a practical requirement for the visa holder initiating the termination of the process by satisfying the requirements of s 137J(2) by appearing before a migration officer, the visa holder's right to be heard on the issue as to whether or not he or she did in fact breach the relevant visa condition is not lost to him or her by being unaware of the giving of the s 20 notice, or of its contents. This is because the right to be heard is specifically preserved as a ground of revocation of cancellation in s 137L(1) of the Migration Act. 30 Section 20 of the ESOS Act operates to create obligations on the registered provider. Failure to give the notice constitutes a criminal offence on the part of the registered provider: s 104 of the ESOS Act. No statutory object under the ESOS Act is achieved by the student for the purposes of the ESOS Act receiving the notice or having notice of its contents or its consequences of the issue of the notice for the purposes of the Migration Act. Nor is any right of the student under the ESOS Act prejudiced by the failure of the registered provider to give the notice within the time specified in s 20(2). 31 Accordingly, in my view, the notice given under s 20(1) of the ESOS Act on 30 July 2002, even if not given within the time provided for in s 20(2), was not invalid. This is because it was not the purpose of the legislature that a notice given in breach of s 20(2) would be invalid. The notice given on 30 July 2002 was a valid notice for the purposes of s 20 of the ESOS Act and was thereby a valid notice for the purposes of s 137J of the Migration Act. 32 Nothing which occurred after 18 February 2002, when the applicant's appeal against exclusion from his course at QUT was rejected by the university, prejudiced his right to be heard on the question of whether or not he had breached the visa condition 8202 in failing to obtain certification from QUT that he had attained satisfactory academic progress in his course during semester 2, 2001 as a ground for cancellation of his student visa. He exercised that right when he sought revocation by the Minister under s 137K of the Migration Act on 21 November 2002 and again on the review by the MRT of the delegate's decision refusing revocation. 33 In my view the applicant fails to make out any circumstance in which he was entitled to procedural fairness which was denied to him so as to constitute on that account jurisdictional error. CONCLUSION 34 The applicant fails to make out jurisdictional error on any of the grounds contended for on this application. In those circumstances, s 474 of the Migration Act operates to render the decision of the MRT, as privative clause decision, final and conclusive and beyond challenge. The consequence is that the application will be dismissed. As in the ordinary course, costs should follow the event. 35 The Court orders that: