Minister for Immigration and Multicultural and Indigenous Affairs v Yu

Introduction 1 I have read the reasons for judgment of Allsop J in a draft form. It is unnecessary to repeat his Honour's account of the facts and the relevant legislation. 2 Condition 8202 must be complied with and the Minister is obliged to cancel a visa subject to that condition if satisfied that the visa holder has not complied with the condition. Subclause 3(b) of condition 8202 is expressed in a curious way. Read literally, the condition has several elements. The first is that the holder of the visa achieves an academic result having a particular characteristic. The second is that the result is at least satisfactory. However, it is not simply a satisfactory result in some abstract but objective sense. Rather, it must be a result which is certified by the education provider as at least satisfactory. On this literal reading, a visa holder may achieve a result which is at least satisfactory but unless the education provider certifies to that effect, the condition is not satisfied. The certification is an essential element of the condition. 3 There is, however, no provision in the Migration Act 1958 (Cth) ("the Act") or the Migration Regulations 1994 which would require an education provider to certify that a result is at least satisfactory. Counsel for the Minister conceded that, in practice, this generally does not occur. There is, however, an obligation under s 20 of the Education Services for Overseas Student Act 2000 (Cth) ("ESOS Act") (which took effect on 4 June 2001) for a registered education provider to provide a student with written notice of a breach of a student visa condition relating, relevantly, to satisfactory academic performance. As Allsop J has noted, the sending of such a notice puts in train a process which enables the Department to scrutinise whether the visa holder has been satisfying the conditions of the visa. I accept, as the Minister submitted, that the notice only expresses an opinion about non-compliance. It is relatively clear from s 137L of the Act that the fact of non-compliance is determined by the Minister either when considering a revocation application or considering the explanation for breach alleged in the notice if the student attends an interview as contemplated by s 137J(2). 4 Condition 8202(3), in its present form, was introduced by the Migration Amendment Regulations 2001 (No.4) which commenced on 1 July 2001. That is, it was introduced in the context of the legislative framework created by the Act and the ESOS Act for notification of non-compliance with visa conditions for student visas. The condition before 1 July 2001 provided that in the case of a visa holder whose education provider kept attendance records, the Minister must have been satisfied that the visa holder attended for at least 80 % of the scheduled contact hours of the course and in the case of a visa holder whose eduction provider did not keep attendance records, the holder must have achieved an academic result that was certified by the education provider to be at least satisfactory. Under the condition in that earlier form, satisfactory performance was only relevant if the education provider did not keep attendance records. 5 In my opinion, the legislative scheme sought to be created on and from 1 July 2001, was one in which the visa holder had to attend and perform at the requisite level on the basis that cancellation of the visa might follow a notice given under s 20 of the ESOS Act and the Department of Immigration and Multicultural and Indigenous Affairs being satisfied that either attendance or performance or both was not at the requisite level. A precondition to non-compliance with the condition was the giving of a notice. It is unlikely that the condition should, as discussed earlier, be read literally. In my opinion, condition 8202 requires a student to maintain a satisfactory result and the condition is breached if, as a matter of fact, the student has not maintained a satisfactory result and that is evidenced in writing. The obvious means by which that would be evidenced is in a notice under s 20. The legislative scheme does not, in my opinion, contemplate ad hoc informal certification by an education provider with the attendant possibility that the condition is not met. Were the condition to operate that way, any record in writing retained by the education provider of unsatisfactory performance (whether or not made by a person authorised to make it) might, without more, constitute breach of the condition. The procedure in s 20 was intended to create a fair and balanced mechanism for alerting students to possible breaches of conditions and arming the Department with the information which would enable it to review, and if necessary, cancel visas for non-compliance with the prescribed condition. 6 In the present case the procedure in s 20 was not followed. Accordingly there could not have been non-compliance with condition 8202 in any relevant sense and it was not open to the Minister to cancel the visa on the basis there had been or for the Tribunal to affirm that decision. The Tribunal fell into jurisdictional error in doing so. I agree with the orders of the Federal Magistrate remitting the matter to the Migration Review Tribunal for determination according to law and I would dismiss the appeal with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.