Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 | Case summary

Judgment (11 paragraphs)

[1]

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.

ALLSOP J: 8 This is an appeal by the Minister from orders made by a Federal Magistrate setting aside a decision of the Migration Review Tribunal (the "Tribunal") affirming a decision of a delegate of the appellant Minister to cancel the visa held by the respondent. 9 The respondent held a student visa - subclass TU 571. One of the conditions of that visa was condition 8202: cl 571.611(1)(a). 10 Condition 8202 was relevantly in the following terms: (1) The holder … must meet the requirements of subclauses (2) and (3). … (3) A holder meets the requirements of this subclause if: (b) 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 that 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 (c) 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. 11 The appeal was argued orally on the basis of relevance of the powers granted by s 116 of the Migration Act 1958 (Cth) (the "Migration Act") as available to the Minister to invoke. The issue thus debated was whether the Tribunal, in reviewing such an exercise of power, properly undertook and discharged its task in the light of the terms of condition 8202. The matter will be likewise approached initially. 12 Section 116(1)(b) provided as follows: (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (b) its holder has not complied with a condition of the visa;… 13 Subsection (2) is irrelevant for present purposes. Subsection (3) is not. It was in the following terms: (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. 14 Regulation 2.43(2)(b)(ii) was in the following terms: Reg 2.43(2)(b)(ii) (2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel 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: … (ii) condition 8202. 15 Section 119 of the Migration Act provides for notice of proposed cancellation to be given to someone in the position of the respondent; s 120 deals with the information, which must be given to the visa holder, s 121 deals with the invitation to give comments; and s 124 provides for the timing of the cancellation of the visa. 16 The facts are in short compass. The respondent was granted a temporary student visa class TU 571. On 29 April 2002 he commenced a course at Sydney West International College (the "College") called "Senior Secondary English Preparation". The respondent attended the College from April 2002 until mid-February 2003. At this latter time he withdrew and enrolled at another college. (It is unnecessary to understand whether any other conditions were breached by this change of course.) 17 Prior to June 2003, in circumstances, which it is unnecessary to identify, the Department considered the question as to whether the respondent's visa should be cancelled for non-compliance with condition 8202 of his visa. On 2 June 2003, an officer of the Department wrote to the College asking certain questions. On 10 June handwritten answers were given and the document was returned (completed) by facsimile to the Department. Certain documents were enclosed with the facsimile. 18 The document as completed was in the following terms (the italicised portions being the handwritten answers): … Did this person begin studying with you? Initially he commenced our program on 29 April 2002 and withdrew from the course on 14 Feb 03. If this person is no longer enrolled with you please advise the circumstances surrounding their departure? He withdrew from the course and went to other Institution - Global College. The Leave request was approved on 14/2/03. He said that the course was too difficult for him. Mr Shi Bo YU bn: 18.2.64 ECOE 58C9522 & 5DF8A39 Please specify whether the student has achieved an academic result that is at least satisfactory for each term and/or semester of their course by placing a 'yes' or 'no' in each box. Year Term 1 Term 2 Term 3 Term 4 10/6/02-25/10 28/10/02-21/2/03 2002 Satisfactory (yes) Unsatisfactory (No) 2003

General comments (Motivation/Attitude): Shi Bo has had many absences throughout this course. This has affected his progress in all areas. However, his English has shown a little improvement in some aspects of his studies. Shi Bo is often very tired in class. He does not always complete class activities or participate fully in his work. If he is to succeed in his study pursuits, a much more positive approach to all aspects of his studies is required. 23 On 10 July 2003, the College gave the Tribunal some further explanation of levels in a facsimile of that date in the following terms: Re: Shi Bo Yu, explanation of levels of English competence. Dear Lin As per your request, please find the attached. Please note that students need to reach High Intermediate level in minimum three components for Senior Secondary Studies. 24 The "attached" was an explanation of levels of English language competence, in the terms of the document annexed to these reasons. 25 The above material was provided to the respondent who, with the assistance of a migration agent, submitted material to the Tribunal in answer to this material from the College, including a report from the College and submissions as to the satisfactory progress that the respondent had made. 26 The Tribunal's reasoning was shortly expressed and was contained in [35] of its reasons. The Tribunal is satisfied that the review applicant's education provider, SWIC, has not certified his academic performance in Term 4 of 2002 was satisfactory. This in itself amounts to a breach of condition 8202. It is unnecessary for the Tribunal to make a finding in relation to the review applicant's level of attendance or in relation to whether he was engaged in activities not contemplated by the grant of the Student visa or whether or not he was a genuine Student. The Tribunal is satisfied that the review applicant has not complied with condition 8202. 27 The Federal Magistrate posited what he saw to be the issue before him in [8] of his reasons: The issue to be resolved in this case is whether or not the Tribunal was entitled to accept the unsatisfactory finding contained in the response to the facsimile of 2 June 2003 on its face or whether it should have made more enquires as to the accuracy of this assessment. 28 The Federal Magistrate discerned jurisdictional error in the following way. He said that the response to the 2 June 2003 enquiry contained an "unsatisfactory finding". The finding was a reference to the answer "no" to the question concerning academic progress and it was "unsatisfactory" apparently because of the other information about the respondent's performance. He then concluded that there was a legal obligation upon the Tribunal, in order to complete its jurisdictional task of review, to make enquiries of the College to clarify what was, it was said, ex facie, an unsatisfactory answer. Reference was made to Kan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 923; Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68; SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80. 29 The Federal Magistrate also concluded that because the Tribunal did not refer specifically to the representations made by and on behalf of the respondent in answer to the College's material it had not dealt with a part of the respondent's claim. 30 I am of the view that the Federal Magistrate erred in a number of respects. First, there was no obligation upon the Tribunal to enquire of the College about the answer. No statutory obligation arose to do so: WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277. The proper task before the Tribunal was to consider whether the respondent had met the requirement of condition 8202(3)(b) that he achieved in the term in question an academic result that was certified by the College as satisfactory. It had a certificate, which stated that the respondent's academic progress was unsatisfactory. It was not obliged by s 116, s 119, Reg 2.43(2), condition 8202 or otherwise to seek to go behind the communication from the College. It was certainly not entitled to assay the task of assessing the progress of the respondent for itself. 31 Secondly, even if one posited an obligation on the Tribunal to enquire about the College's communication if, ex facie, it appeared unsatisfactory, there was no basis to do so here. A reasonable and rational view of the material provided by the College was that, whatever the satisfactory or other nature of the previous term's results, the College required progression, by term 4, to the level of at least three subjects at high intermediate. Also, there is nothing in the regulations to mean that the subjective comments as to the respondent's attitude and application to this studies could not be taken into account by the College in assessing an appropriate answer to the enquiry of 2 June 2003. 32 On this basis there is nothing surprising in the Tribunal not taking time to deal with the respondent's submissions. It was not a failure to deal with the respondent's claim. On the construction of the regulation taken by the Tribunal (correctly) the view of the respondent as to his own progress and the progress of others was irrelevant. There was no meeting of condition 8202(3) because on the material before the Tribunal the Tribunal was bound to conclude that the respondent had not achieved for term 4 an academic result that was certified by the College as satisfactory. 33 After the hearing of the appeal the Court sought further submissions from the parties on the following issue: Whether the Education Services for Overseas Students Act 2000 (Cth) when read with the Migration Act 1958 (Cth) and the regulations made therunder limits the circumstances in which a failure to comply with Condition 8202 of Schedule 8 of the Migration Regulations 1994 can be used to cancel a student visa under the Migration Act 1958 (Cth). 34 The Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) provides, amongst other things, for obligations upon registered providers of education services in Part 3 of the ESOS Act. 35 One of the obligations upon registered providers is contained in s 20 of the ESOS Act, which is in the following terms: s 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. (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 purpose 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. 36 The regime under the ESOS Act was to a degree mirrored in amendments made to the Migration Act by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) No 168 of 2000. By this legislation subdivision GB of the Migration Act was introduced providing for the automatic cancellation of student visas in certain circumstances. Section 137J of the Migration Act provides for notices being sent to a non-citizen under s 20 of the ESOS Act in relation to a visa held by the non-citizen. Under s 137J(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 the non-citizen complies with the notice or the non-citizen while attending in person at an office of the Department makes himself or herself available to an officer for the stated purpose of explaining the breach. Section 137K provides for a non-citizen to apply for revocation of any cancellation under s 137J. Section 137L deals with how an application under s 137K is to be dealt with. 37 It was submitted on behalf of the respondent that the scheme provided for under subdivision GB of the Migration Act was effectively a code for the use of powers to cancel a visa of a student under s 116 of the Migration Act. Thus, it was said that failure to comply with condition 8202 could lead to visa cancellation only in a circumstance in which a student's education provider has issued a notice under s 20 of the ESOS Act. 38 Whilst there is a coherent body of regulation under subdivision GB of the Migration Act when examined in the light of the terms of the ESOS Act, I do not see any express or implied statutory limitation on the circumstances in which s 116 of the Migration Act can be invoked. Subdivision GB comes into operation if a notice is sent to a non-citizen under s 20. Section 116 of the Migration Act is not so limited. 39 Nor do I see condition 8202 as limited by reference to certification expressly under s 20. Condition 8202 (3) is couched in terms of meeting the requirements of the condition by, amongst other ways, the visa holder achieving a result that is certified as satisfactory. This contemplates an act of certifying that is positive. Section 20 of the ESOS Act only contemplates the opposite: a notice of breach, that is certification of a result that is unsatisfactory. 40 In my view, the ESOS Act does not limit the circumstances under which s 116 might operate where there has been a failure to comply with condition 8202; nor does it confine the operation of condition 8202. If a breach of condition 8202, or some part of it, was only intended to arise upon giving of a notice under s 20 of the ESOS Act that would have been simple enough to say. 41 Pursuant to the Court calling for further submissions on this limited issue the respondent's solicitor filed an affidavit dealing with factual material that was not before the Tribunal. No leave was given for this. This should not have happened. In my view the material is irrelevant and it should not have been filed. 42 The orders that I would make are: 1. The appeal be allowed. 2. The orders of the Federal Magistrates Court made on 25 March 2004 be set aside, in lieu thereof it be ordered that the application be dismissed with costs. 3. The respondent pay the appellant's costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Minister for Immigration and Multicultural and Indigenous Affairs v Yu

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