Ma v Minister for Immigration and Citizenship

LANDER J : 2 This is an appeal against a judgment of a Federal Magistrate delivered on 3 November 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal ('the Tribunal') dated 17 October 2005. The Tribunal had affirmed a decision of a delegate ('the delegate') of the Minister for Immigration and Multicultural Affairs (as the Minister was then styled) made on 18 May 2005 to cancel the appellant's Student (Temporary) (Class TU) visa. 3 The appellant is a citizen of the People's Republic of China who arrived in Australia on 25 November 2000 as the holder of a Student (Temporary) (Class TU) (Subclass 560) visa which was granted on 7 November 2000. Since his arrival in Australia the appellant has held several visas and on 29 January 2003 was granted a Subclass 573 visa to which Condition 8202 was attached. It was this visa which was cancelled by the delegate on 18 May 2005. She decided to cancel the visa because the appellant had failed to comply with Condition 8202. The appellant currently holds a Bridging visa pending the disposal of these proceedings. 4 The appellant was studying for the degree of Bachelor of Commerce at the University of New South Wales. On 22 February 2005 the appellant received notification pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) ('ESOS Act') that he was in breach of Condition 8202 of his student visa relating to satisfactory academic performance. 5 The notice identified the breach: 'Student has failed to maintain satisfactory academic performance and is no longer permitted to continue in the Bachelor of Commerce. The student has not achieved an academic result that is at least satisfactory for Session 2, 2004 of his program. Student has therefore been suspended for a period of one year beginning Session 1 2005. PLEASE NOTE the student will have automatic right of readmission in Session 1, 2006.' 6 Condition 8202(3) relevantly provides: '8202 (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.' 7 The appellant responded to that notice by approaching the Department. On 21 March 2005 the Department gave him a notice of intention to consider cancellation. The notice stated that it was possible the appellant had breached Condition 8202. An interview was arranged for 5 April 2005 but it was postponed until 18 May 2005. When the interview took place the appellant provided a number of documents to the Department which indicated that the appellant had attended a traditional Chinese medical hospital on two occasions in 2001 and on one occasion in 2004. He also provided the Department with a letter from a medical practitioner dated 16 May 2005 which showed that he had attended that practitioner's practice on two occasions; once in April 2003 for a sore throat and on another occasion in June 2004 for 'palpitations during exam'. 8 On 18 May 2005 the delegate decided to cancel the visa for breaching Condition 8202 'by failing to maintain satisfactory academic progress of 50%'. 9 Cancellation was mandatory if the delegate was satisfied that there had been a breach of Condition 8202: see s 116(1)(b) and s 116(3) of the Migration Act 1958 (Cth) ('the Act') and reg 2.43(2)(b) of the Migration Regulations 1994 (Cth). When the matter was before the delegate reg 2.43(2)(b) provided: '(2) For subsection 116(3) of the Act, the circumstances in which the Minister must consider 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 (ii) condition 8202.' 10 On 23 May 2005 the appellant applied to the Tribunal for a review of the delegate's decision. On 4 July 2005 the Tribunal wrote to the appellant bringing to the appellant's attention s 359A of the Act. He was invited to comment in writing on the notice which had been given under s 20 of the ESOS Act and the particulars which were given in that notice. In its reasons the Tribunal said: '39. The review applicant was also invited by the Tribunal in the letter dated 4 July 2005 to give to the Tribunal additional information, being a letter from his education provider, the University of New South Wales, certifying that he had achieved an academic result that is at least satisfactory for Session 2, 2004 in the Bachelor of Commerce course at the University of New South Wales. The review applicant did not provide such a letter. Although the review applicant has a heart condition, he did not attend a medical practitioner during session 2, 2004 and did not provide medical certificates to his education provider for session 2, 2004. The medical certificates provided to the Department do not cover the period of session 2, 2004 according to the evidence of the review applicant.' 11 It concluded: '40. The Tribunal finds that the review applicant does not meet the requirements of Condition 8202 as he did not achieve an academic result (for session 2, 2004) that is certified by the education provider (University of New South Wales) to be at least satisfactory for a course that runs for at least a semester, for each term or semester (whichever is shorter) of the course.' 12 In affirming the delegate's decision to cancel the visa, the Tribunal held that it did not have any discretion to set aside the visa cancellation where a breach of Condition 8202 had been established. 13 In the Federal Magistrates Court the appellant claimed that the Tribunal had failed to provide adequate particulars of the alleged breach pursuant to s 359A of the Act and that there had been a misapplication of Condition 8202 by both the Tribunal and the delegate. 14 The Federal Magistrate rejected the appellant's claim that the information provided by the Tribunal to the appellant was inadequate and in breach of s 359A of the Act. His Honour held that the Tribunal's letter of 4 July 2005 informed the appellant of the certification of unsatisfactory academic results and that if he could not provide a letter from his education provider certifying that his academic results for Session 2 in 2004 were at least satisfactory, the Tribunal may find a breach of Condition 8202 and would have no alternative but to affirm the cancellation. The Federal Magistrate found that there had been compliance with s 359A and that there was no jurisdictional error arising from the provision of this information. 15 The Federal Magistrate also considered whether the Tribunal had misapplied Condition 8202 by substituting its own interpretation of that Condition. In rejecting the appellant's contention, his Honour examined the Tribunal's reasons as to whether there was a breach of Condition 8202 and concluded that the Tribunal had applied the correct test. In particular, the Federal Magistrate relied upon paragraph 31 of the Tribunal's reasons: '31. 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. This requires that the applicant be enrolled in a registered course; that the applicant attend for at least 80% of contact hours scheduled for the course, or the term or semester of the course if the course is structured in such a way; and that the applicant achieve an academic result that is certified by the education provider as being at least satisfactory. Consequently, the main question for the Tribunal is whether condition 8202 was breached. If there was non-compliance with this provision, cancellation is mandatory.' 16 In dismissing the application, the Federal Magistrate held that the Tribunal had no alternative but to affirm the cancellation of the visa once there had been a certified breach of Condition 8202. In reaching this conclusion, his Honour relied upon the decision of the Full Court of the Federal Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 where Ryan, Jacobson and I stated at [55]: 'There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).' 17 When this appeal was called on, the appellant appeared on his own behalf. He advised the Court that he had not understood that the appeal was to be heard on that date and sought an adjournment. I adjourned the matter for a few days and, on the resumption, the appellant was represented by counsel who on that occasion sought leave to amend the appellant's notice of appeal. 18 The notice of appeal in its original form asserted that the Federal Magistrate had erred in failing to find that the Tribunal had breached s 359A by not providing adequate particulars of the alleged breach of Condition 8202, and that Condition 8202 was misapplied by the Tribunal having substituted its own interpretation of that Condition. The appellant's notice of appeal raised the same questions which were considered by the Federal Magistrate. 19 The appellant sought to, and was given leave to, amend the notice of appeal to include paragraphs 3 and 4 in the following terms: '3. His Honour erred in failing to find that the decision of the Minister's delegate to cancel the Appellant's visa was: (a) Infected by jurisdictional error in that the Minister's delegate failed to properly apply condition 8202 of Schedule 8 to the Migration Regulations 1994 by substituting her own interpretation of that condition; and (b) Due to ground 3(a), above, a nullity, invalid and/or of no effect. 4. His Honour erred in failing to find that the Tribunal breached regulation 2.43(2)(b) of the Migration Regulations 1994 as it stood at the time of the Tribunal's decision. Particulars (a) The Tribunal failed to consider whether the Appellant's non-compliance with condition 8202 was due to exceptional circumstances beyond the Appellant's control.' 20 The thrust of the new grounds of appeal was that Condition 8202 was amended after the delegate had made the delegate's decision and the Tribunal had erred in failing to have regard to the amended Condition 8202 when reviewing the delegate's decision. 21 On 6 October 2005 the Migration Amendment Regulations 2005 (No 8) (the Amending Regulations) were promulgated. Paragraph 2.43(2)(b) of the Regulations was amended by Schedule 5 of the Amending Regulations to introduce for the first time the requirement that the Minister not only be satisfied that the visa holder has not complied with Condition 8202 but also that the Minister be satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder's control. Regulation 2.43(2)(b) of the Regulations now provides: '(2) For subsection 116(3) of the Act, the circumstances in which the Minister must convert a visa are: … (b) in the case of a Student (Temporary) (Class TU) visa: (i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or (ii) that the Minister is satisfied that: (A) the visa holder has not complied with condition 8202; and (B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.' 22 The Amending Regulations provided for transitional provisions and reg 7 provides: 'The amendment made by Schedule 5 applies in relation to all Student (Temporary) (Class TU) visas in force on or after the day on which Schedule 5 commences, whether or not a breach of condition 8202 occurred before the day on which Schedule 5 commences.' 23 Schedule 5 came into force on 7 October 2005. 24 The appellant's contention that the amended reg 2.43(2)(b) applied when the Tribunal undertook its review therefore depends upon a finding that the visa, which had been cancelled by the delegate on 18 May 2005 was 'in force on or after 7 October 2005'. 25 The appellant contended that as the delegate's decision was made in excess of jurisdiction it is of no effect and must be regarded as no decision at all. In Bhardwaj v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 209 CLR 597 ('Bhardwaj'), Gaudron and Gummow JJ (McHugh J agreeing) said in talking of administrative decisions involving jurisdictional error (at [51]): 'A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.' (Footnote omitted.) 26 Hayne J reached the same conclusion at [153] when he described a decision involving jurisdictional error as having 'no relevant legal consequences'. 27 Bhardwaj, however, cannot be understood to stand for the proposition that jurisdictional error on the part of an administrative decision maker always means that the decision is no decision or a decision without legal consequences. The consequences of a decision infected by jurisdictional error will be determined by the Act which empowers the decision: Project Blue Sky Inc v Australian Broadcasting Authority (1948) 194 CLR 355 at 388-389; Jadwan v Department of Health (2003) 204 ALR 55 at [42] and [64]. 28 The appellant contended that the delegate's decision was infected by jurisdictional error. The delegate gave as the reason for cancelling the visa that the appellant has breached Condition 8202 'by failing to maintain minimum satisfactory academic progress of 50%'. The delegate also stated that the review applicant was suspended from the University of New South Wales for a year due to his unsatisfactory academic progress. Lastly, the delegate said that the appellant had failed to give acceptable medical certificates to support the appellant's unsatisfactory results. 29 None of those matters reflect the criteria in Condition 8202. Condition 8202 requires the holder to meet the attendance requirements specified in Condition 8202(3)(a) and to achieve 'an academic result that is certified by the education provider to be at least satisfactory'. There is no requirement, as the delegate found, that the visa holder maintains satisfactory academic progress of 50%. 30 The respondent accepted that the delegate had regard to irrelevant matters. However, it was contended that those matters are only matters that could have assisted the appellant. Because the condition dictated the outcome, it was said that the error was within jurisdiction and not therefore a decision which could be described as no decision: cf. Bosi v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 313. 31 It is not necessary in this case to reach any decision on the effect of the delegate's decision or whether the delegate's decision was within jurisdiction or whether the appellant can mount a collateral attack on the delegate's decision because the appellant's visa was not in force as at 7 October 2005. The visa which had been cancelled on 18 May 2005 would have expired on 31 August 2005. 32 It follows, therefore, that the amended reg 2.43(2)(b) had no application in the Tribunal's review and the amended grounds therefore must be dismissed. 33 The obligation imposed by Condition 8202(3)(b) is for the visa holder to obtain certification by the education provider that the visa holder has achieved an academic result that is at least satisfactory. No such certification was obtained. In those circumstances, it was inevitable that the Tribunal would find that there had been a breach of Condition 8202. 34 The absence of such certification was not information of the kind contemplated in s 359A of the Act: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [205]-[206] per Allsop J. However, if I am wrong about that, in fact, the Tribunal gave the appellant particulars of the information that the Tribunal did consider would be the reason for affirming the decision under review. 35 In particular, the appellant was told that: 'If you are unable to provide a letter from your education provider (University of New South Wales) certifying that your academic result for Session 2, 2004 is at least satisfactory, the Tribunal may find that you breached Condition 8202 and it will have no alternative than to affirm the cancellation.' 36 I agree with the Federal Magistrate's reasons for dismissing the claim that the Tribunal failed to comply with s 359A of the Act. 37 Whilst the delegate might have had regard to irrelevant matters, the Tribunal, on the other hand, identified the appropriate issue to be determined. I have already referred to paragraph 31 of the Tribunal's reasons. In paragraph 32 of its reasons the Tribunal also said that the education provider had 'certified that the review applicant did not achieve an academic result that was at least satisfactory in Session 2, 2004'. The Tribunal thereby, again, addressed the correct question. 38 In paragraph 37, the Tribunal again identified the question to be determined. It said: '37. The issue for review therefore is whether there is a breach of condition 8202. A visa holder meets the requirements of Condition 8202(3)(b) if the visa holder achieves an academic result that is certified by the education provider to be at least satisfactory for each term or semester (whichever is shorter) of the course that runs for at least a semester.' 39 It continued, in my opinion, to address the appropriate question later in its reasons and, in particular, in paragraphs 38, 40 and 41, the last of which I have referred to earlier. In my opinion, although the delegate did not assess the breach of Condition 8202 as against the appropriate criteria, the Tribunal did. Once there was found to be a breach of Condition 8202, the applicable form of Condition 8202 meant that the Tribunal had to dismiss the application for review and affirm the decision to cancel the visa. In those circumstances, the Federal Magistrate was right to dismiss the application for judicial review. In my opinion, the appeal must be dismissed. 40 I propose the following orders: 1. The first respondent's title be changed to Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.