Luan v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The Migration Act 1958 (Cth) ('the Act') and the Migration Regulations 1994 ('the Regulations') establish a class of visa called Student (Temporary) (Class TU) visa. A subclass of that visa class is subclass 573 - Higher Education Sector. 2 The applicant is a national of the Peoples' Republic of China. He was the holder of a visa referred to as a subclass 573 (Higher Education Sector) visa issued on 10 March 2003 and valid, unless cancelled in the meantime, until 15 March 2007. That visa was subject to various conditions including condition 8202. That condition provided, relevantly, that the holder must meet the requirements of subclause (3). Subclause (3) provides that the holder meets the requirements of the subclause if, relevantly, the holder achieves an academic result that is certified by the education provider to be at least satisfactory for each term or semester of the course. 3 The 'Education Provider' in the case of the applicant was either the Australian National University, or Anutech Education Centre where the applicant studied Foundation Studies from 3 March 2003 - 30 June 2003. That was his first semester. A transcript of the applicant's results for that period issued under the name of Anutech Education Centre is as follows: 'Subject % Grade Academic English 10 Fail Computing Fundamentals 14 Fail Foundation Algebra 58 Pass Introduction to Accounting 20 Fail

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Application to Study Unsatisfactory Progress Unsatisfactory Attendance Satisfactory

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Recommendation: Discontinue studies' 4 The applicant's results for the first semester were not certified to be satisfactory. The transcript to which I have referred indicates that Anutech did not regard the results as satisfactory. On 2 July 2003 an officer of the Australian National University forwarded the applicant a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) informing him that he had breached the condition of his student visa relating to satisfactory academic performance in the course in which he was enrolled at that institution. The particulars of breach given in the notice were as follows: '[The] Student failed to achieve satisfactory results in his first semester and has been excluded from further enrolment in the course.' 5 The precise relationship between the Australian National University and Anutech does not appear from the evidence, although it appears likely that the Australian National University provides the Foundation Studies course through Anutech Pty Ltd. Counsel for the applicant abjured reliance on this aspect of the matter and conceded that any difference in legal personality between the University and Anutech was not material to the resolution of the present proceedings. 6 The Minister may cancel a visa pursuant to s 116(1)(b) of the Act if satisfied that the holder has not complied with a condition of the visa. The effect of s 116(3) of the Act, and of Regulation 2.43(2)(b)(ii) of the Regulations, is that the Minister must cancel a Student (Temporary) (Class TU) visa if satisfied that the visa holder has not complied with condition 8202. 7 The Minister may delegate his powers under s 116 of the Act pursuant to s 496 of the Act to 'a person', but the delegate is, in the exercise of the delegated power, subject to the direction of the Minister (s 499). 8 On 3 July 2003 a document styled 'Notice of Intention to Consider Cancellation under Section 116 of the Migration Act' was given to the applicant. The document bears a notation: 'All parts to be completed by a Departmental Officer'. The Departmental Officer who completed and signed the form was Dave Ryan, the occupant of position number 757. In the body of the document it was stated that 'it has come to the Department's attention that there may be grounds for a cancellation of [the applicant's] visa under s 116 of [the Act]'. Reasons for the cancellation were given, and factors which 'the delegate' could take into consideration in making 'their' decision whether to cancel the visa were listed. The applicant was invited to provide his comments at an interview, and it was noted on the form that if the applicant chose not to comment, the 'Immigration Officer' could make his/her decision based on the information available to them. 9 This notice was apparently given in obedience to the provisions of s 119 of the Act which relevantly provides that if the Minister is considering cancelling a visa under s 116, the Minister must notify the holder that there appear to be grounds for cancelling it, give particulars of the grounds, and invite the holder to show within a specified time that the grounds do not exist, or that there is reason why the visa should not be cancelled. The decision of Katz J in Erinfolami v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 151 establishes that the lawfulness of a cancellation decision under s 116 of the Act depends on it having been preceded by the giving of an effective notification under s 119 of the Act. In order to effective, the notification required under s 119(1) of the Act must be given when either the Minister, or a delegate of the Minister who is capable of proceeding to cancellation under s 116 of the Act, is considering whether to so proceed. 10 Having regard to the provisions of s 497(2) of the Act, a Notice of Intention to Consider Cancellation under s 116 of the Act could probably be given by a Departmental Officer other than the delegate, but even if that be so, any such notification would be ineffective unless when the notice was given either the Minister, or a delegate of the Minister who was capable of proceeding to cancellation under s 116 was considering whether to so proceed. It was not submitted in the present case that the Notice of Intention of Consider Cancellation given on 3 July 2003 was in any way ineffective. 11 On 9 July 2003 a decision was taken by Dave Ryan to cancel the applicant's visa. In par 4 of the Decision Record Mr Ryan recorded that 'I consider' that there are grounds for cancellation of the visa holder's visa under s 116(1)(b) and s 116(3) and Reg 2.43(2)(b). The reasons given by Mr Ryan in the Decision Record for cancellation were: '[The] subject failed to achieve satisfactory academic results in first semester thus breaching the specific condition 8202 - meet course requirements. Failure in academic results excluded subject from enrolling in 2nd semester. Breaching specific visa condition 8202 - meet course requirements.' In par 6 of the Decision Record Mr Ryan was referred to as 'the delegate' but in par 8 he was referred to as 'the Departmental Officer', and his name and position number were given once again. 12 Also on 9 July 2003 a document styled 'Notification of Decision' was given to the applicant. That document referred to 'the Department's' intention to consider the cancellation of the visa, to 'the Department's' Decision Record and to Dave Ryan as a Departmental Officer whose name and position number were given once again. 13 Application was made to the Migration Review Tribunal ('the MRT') for a review of that decision. The applicant's case before the MRT was that the head of Anutech and the teachers at Anutech were prejudiced against him, and that other teachers could have given him a pass mark. The MRT rejected that case and affirmed the decision under review to cancel the applicant's visa. 14 The MRT's reasons included the following: 'Notification Procedures 32. In this case, the delegate followed the procedure set out in subdivision E of the Act for the cancelling of visas under section 116 (General power to cancel). Grounds for cancellation Compliance with condition 8202 33. The Tribunal must consider whether, at the time of the cancellation, the visa applicant had complied with condition 8202. The Tribunal must particularly consider whether the review applicant had achieved an academic result that is certified by the education provider as being at least satisfactory. 34. Anutech stated in the Notice under s 20 issued on 2 July 2003 that the review applicant had failed to achieve satisfactory results in his first semester and has been excluded from further enrolment in the course. This evidence, of itself, must satisfy the Tribunal that the review applicant did not achieve academic results that are certified to be at least satisfactory by the education provider unless the review applicant can establish that in some manner or other his results were satisfactory and that they were certified so to be by Anutech. Anutech also provided evidence that the visa applicant failed 3 subjects in his first semester. 35. The review applicant's evidence, in summary, is that the head of Anutech, and the teachers at Anutech were prejudiced against him, and that another teacher would have given him a pass mark. He was a victim of misconduct by the teachers and head of Anutech. Mr Wang gave the same evidence. 36. The Tribunal is very concerned that such serious allegations have been made against Anutech. However, it is not within the jurisdiction of the Tribunal to consider whether or not there was misconduct at Anutech. This is a matter for the Department to investigate. 37. Nor is it possible for the Tribunal to assess the results obtained by the review applicant. The Tribunal must rely upon the evidence provided by the education provider. In this case the education provider has provided clear evidence that the review applicant failed 3 subjects and did not achieve academic results that are at least satisfactory. 38. Nor is it relevant that another person may have given the review applicant a pass mark. The Tribunal must rely upon the evidence provided by the education provider. In this case the education provider has provided clear evidence that the review applicant failed 3 subjects and did not achieve academic results that are at least satisfactory. 39. The Tribunal is therefore satisfied that the evidence provided by Anutech establishes that the review applicant did not achieve academic results for his first semester that are certified by Anutech to be at least satisfactory. The Tribunal therefore finds that the review applicant breached condition 8202. 40. The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202 (Nguyen). Once non-compliance with the condition is established the Tribunal is bound, by the operation of s 116(3), to affirm the visa cancellation. It follows that, in this case, the Tribunal must affirm the decision of the delegate to cancel the visa.' 15 Earlier in its reasons (par 1) the MRT described the proceedings before it as being an application for review of a decision made by a delegate of the Minister on 9 July 2003 to cancel the applicant's visa. 16 On 28 October 2003 application was made to this Court for a declaration that the MRT's decision is null and void on the grounds that the MRT failed, or constructively failed, to attain or exercise jurisdiction in finding that 'in this case the delegate followed the procedure set out in subdivision E of the Act for the cancellation of visas' from the MRT when the purported cancellation was made by an officer of the Department and not by a delegate of the Minister. 17 Thus, the sole ground of the application is that the MRT should have found that the cancellation decision was invalid because it was made by an officer of the Department, and not by a delegate of the Minister. This is not a contention which was ever put by the applicant to the MRT. 18 No evidence was filed by the applicant in support of its contention that Mr Ryan was not a delegate of the Minister. On 15 January 2004 the respondent provided the applicant with an affidavit annexing a copy of the relevant instrument of delegation of the Minister. That instrument reveals that Mr Ryan, the holder of position 757, was at all relevant times a delegate of the Minister in relation to s 116 of the Migration Act. The written submissions filed on behalf of the applicant accept that this is so. The letter of 15 January 2004 (Exhibit 'A') also gave notice that if the matter proceeded to a hearing and the applicant was ultimately unsuccessful, the respondent would seek appropriate orders for costs including an order that costs be paid on an indemnity basis. 19 Nonetheless, the applicant persisted in his claim that the cancellation of his visa was invalid. The written submissions put the case on the basis that 'the purported cancellation was made in the context of a decision by a Departmental Officer and not a decision by a delegate of the Minister'. In the applicant's submission, a Departmental Officer has expressly purported to exercise a power as a Departmental Officer, although such power was only available to him as delegate of the Minister. The essential foundation for that submission is that the Decision Record was signed by Mr Ryan under the designation 'Departmental Officer's details'. 20 That submission should not be accepted. It is clear that Mr Ryan was purporting to exercise the power of cancellation conferred upon the Minister by s 116 of the Act. The Notice of Intention to Consider Cancellation, the Decision Record and the Notification of Decision all refer to s 116 of the Act as the source of the power which Mr Ryan was purporting to invoke. 21 Mr Ryan could only exercise that power if he had been appointed as the Minister's delegate in relation to its exercise. He had been so appointed. His position number was stated on the three forms to which I have referred, and the Minister's delegation is in favour of persons holding that position number. The fact that the documents variously refer to 'the delegate' and to the 'Departmental Officer' is insufficient to sustain a conclusion that Mr Ryan was purporting to exercise a power which he did not have by virtue of his position as a Departmental Officer, rather than one which he did have by virtue of his position as Minister's delegate. Mr Ryan occupied both positions but he was not required to chose between powers which he possessed in one capacity and those which he possessed in the other provided that he had the relevant power. 22 Even if it were concluded that Mr Ryan mistakenly believed that he was authorised to cancel the applicant's visa in virtue of his position as a Departmental Officer, a mistake made by a person exercising a power as to its source does not affect the validity of his decision if he was otherwise authorised to make it: Brown v West (1990) 169 CLR 195, 203. In Mercantile Mutual v Australian Securities Commission (1993) 40 FCR 409, 412 a Full Court accepted that there may be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power, but those limits have no application in the circumstances of the present case. 23 The applicant submitted that Mr Ryan may have acted differently if he had appreciated that he was acting as the Minister's delegate, rather than as a Departmental Officer, as in the former case he could be expected to take into account wider considerations involving the relationship between China and Australia. There is no substance in this submission. There is no evidentiary foundation for a conclusion that Mr Ryan failed to appreciate that he was the delegate of the Minister, and that his entitlement to cancel a visa under s 116 of the Act flowed from that fact. Nor is there any foundation for the submission that as the Minister's delegate Mr Ryan could properly have taken into account wider considerations than those to which he in fact had regard. The issue which the decision-maker had to determine was whether the applicant achieved academic results for his first semester that were certified by Anutech to be at least satisfactory. On no view of the matter did he do so. Once a breach of condition 8202 was established the Minister or his delegate was under a statutory obligation to cancel the visa. 24 Even if it be assumed that the cancellation of the visa was invalid because Mr Ryan purported to act, and only to act, in his capacity as a Departmental Officer, it does not follow that the MRT's decision was null and void. On this assumption, the applicant could simply ignore the purported cancellation of his visa or he could seek a declaration as to its invalidity, but it is still an 'MRT-reviewable decision' in terms of s 338(3) of the Act. The fact that a decision may be a nullity does not deny merits review if it is otherwise available: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338. Under s 349 of the Act the MRT was entitled to exercise all of the powers and discretions conferred upon by Mr Ryan as the decision-maker, including his powers as Minister's delegate even if it be assumed that he did not himself purport to exercise those powers. 25 In the present case the MRT engaged in a merits review of Mr Ryan's position, as it was required to do, and came to the conclusion that he made the right decision. The MRT therefore affirmed that decision. The MRT was not required, or for that matter, empowered, to engage in a judicial review of that decision in order to determine whether it was infected by some form of jurisdictional error. If the MRT concluded, as it did, that Mr Ryan's decision was the right one, it was not required to set aside that decision by reason of its assumed invalidity and to substitute for it a new decision to the same effect. 26 The application should therefore be dismissed with costs. 27 The Minister seeks an order that costs should be paid on an indemnity basis, at least in relation to the period after 15 January 2004 on the ground that the applicant had no apparent basis for the allegation which he made that Mr Ryan was not the Minister's delegate, and failed to consent to appropriate orders when it was established that Mr Ryan was in fact a delegate of the Minister at the relevant time. 28 Indemnity costs may be awarded where it appears to the Court that an applicant properly advised should have known that he had no chance of success. This case is close to the line. However, ultimately I have come to the conclusion that an order for indemnity costs ought not to be made in the present case because the confused state of the respondent's forms contributed to the maintenance of these proceedings after 15 January 2004 even though the applicant's arguments ultimately failed. 29 The application is dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.