Minister for Immigration & Citizenship v Brar

Federal Court of Australia (Full Court)|2009-05-13|Before: Besanko JJ, Stone J

introduction 1 On 13 September 2007 a delegate of the Minister cancelled the first respondent's subclass 572 student visa pursuant to s 116(3) of the Migration Act 1958 (Cth). The Migration Review Tribunal confirmed the delegate's decision on 6 March 2008 however, on 8 August 2008, the Tribunal's decision was set aside by order of a Federal Magistrate. His Honour ordered the Tribunal to redetermine the first respondent's application for review; Brar v Minister for Immigration & Anor [2008] FMCA 1026. This is an appeal from his Honour's decision. The facts underlying the appeal, and which are set out below, are not in dispute. As the Tribunal, the second respondent, has entered a submitting appearance. I will refer to the first respondent simply as the respondent.

The facts 2 On 29 January 2007 the respondent, a national of India, was granted a subclass 572 student visa which was subject to condition 8202 of Sch 8 of the Migration Regulations 1994 (Cth). He enrolled in a course leading to a Diploma of Commercial Cookery at the Carrick Institute of Education. The second term of the respondent's course commenced on 10 April 2007 and ended on 15June 2007. During the second term the respondent attended only 11% of the contact hours prescribed for his course 3 On 26 June 2007 the Carrick Institute of Education issued the respondent with a notice pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) stating that because he had attended only 11% of the scheduled hours he had failed to comply with condition 8202(3)(a) of his student visa. The notice invited the student to provide his comments at an interview to be held on 12 September 2007 and advised him that if he did not attend his visa would be automatically cancelled pursuant to s 137J of the Migration Act. 4 The respondent attended the interview with an officer of the Department on 12 September during which he was given an opportunity to make submissions as to why his visa should not be cancelled. He said that he had returned to India on 4 April 2007 during the term because his mother was unwell. He said that on 8 April 2007, while in India, he got married so that his partner would be able to care for his mother. He explained that, for cultural reasons, unless they were married his partner would not be able to care for his mother. The respondent submitted medical documents dating back to 2005 to support his claims of his mother's illness. 5 The Minister's delegate did not accept that the reasons given were sufficient to establish that the respondent's failure to attend classes was due to exceptional circumstances beyond his control and on 13 September 2007 cancelled his visa pursuant to s 116(3) of the Migration Act 1958 (Cth) and reg 2.43(2)(b) of the Migration Regulations. Together these provisions require the Minister to cancel a student visa if he or she is satisfied that the visa holder has not complied with condition 8202 and the non compliance was not due to "exceptional circumstances beyond the visa holder's control". On review of the delegate's decision, the Tribunal held that as the respondent had not attended 80% of the scheduled contact hours he was in breach of the condition. The Tribunal was also unconvinced that the respondent's explanation of the reasons for his non-attendance amounted to exceptional circumstances beyond his control; see [16] of the Federal Magistrate's reasons. 6 The issues arising under condition 8202 are complicated by the fact that subcl (3) of the condition as it existed prior to 1 July 2007 was substantially amended by Sch 3 to the Migration Amendment Regulations 2007 (No. 5) (Cth). It is necessary for the purposes of this appeal to consider both condition 8202 as it existed prior to 1 July 2007 and the transitional provisions governing the application of the amended subcl (3). For reasons given below it is not necessary to consider the amended form of subcl (3).

Condition 8202 prior to 1 July 2007 7 Prior to 1 July 2007 condition 8202 was in the following terms: (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 561 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full-time course of study or training. (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 or 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. (4) In the case of the holder of a Subclause 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training.

Transitional provision 8 The transitional provision in relation to the amendments made to subcl (3) of condition 8202 by reg 5 of the Migration Amendment Regulations 2007 (No. 5) was as follows: (1) Schedule 3 amends the Migration Regulations 1994. (2) The amendment made by Schedule 3 applies in relation to an application for a visa: (a) made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 July 2007; or (b) made on or after 1 July 2007. (3) the amendment made by Schedule 3 also applies in relation to a visa granted before 1 July 2007, but only in relation to a breach of a visa condition that occurred on or after 1 July 2007. 9 The Federal Magistrate held that the Tribunal's decision should be set aside because the form of condition 8202 applied by the Tribunal was found to be invalid in its entirety. In so holding his Honour accepted the respondent's submission that this conclusion was dictated by the decision of the Full Federal Court in Dai v Minister for Immigration & Citizenship & Anor (2007) 65 FCR 458. In this appeal the appellant submits that this is an incorrect understanding of the Full Court's decision in Dai because in Dai: (a) North J did not make any finding of invalidity; and (b) Gyles J's finding of invalidity was limited to subcl 8202(3)(b). The appellant further contends that to the extent that Gyles J considered that any part of the condition was invalid his Honour was in error. 10 The appellant in Dai had had her visa revoked for failure to comply with condition 8202(3)(b). The appellant, who was enrolled at the International College of Tourism and Hotel Management in 2003, had failed to maintain a satisfactory academic performance in the September 2003 term. She was placed on academic probation and at the end of the following term, on 30 April 2004, the College notified her in May 2004 that her enrolment had been cancelled as a result of unsatisfactory academic progress. The College advised the Department of this situation and on 21 July 2004 her visa was cancelled. The Full Court upheld the appellant's claim that the appellant's visa had been wrongly cancelled. At [19] and [20] of his reasons North J expressed his view thus: There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal. Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the appellant's visa under s 116(3) was not engaged. 11 His Honour did not go so far as to say that the condition, or any part of it, was invalid This was, however, the view of Gyles J who said, at [34]: I do not agree that the consequences of the argument end there. The validity of condition 8202 is affected by the conclusion I have reached. … Subclause (1) obliges the visa holder to meet the requirements of subcl (3)(b) in those cases to which it is applicable. In my opinion, the form of condition 8202 that was in force at the time relevant to this case was ultra vires the legislation, at least in circumstances where subcl (3)(b) came into play. On pain of cancellation of the visa, it compelled compliance by the visa holder with requirements that were not practicable or certain. 12 His Honour concluded that as the condition was both uncertain and unreasonable it was not authorised by the legislation. Edmonds J at [43] referred to the "alleged invalidity of reg 8202(3)(b)" and disagreed that the condition was not capable of compliance by the visa holder. His Honour held at [47] that a visa holder's "achievement of an academic result that is satisfactory will carry with it mandatory certification to that effect". 13 It is clear from the above that Gyles J was the only member of the Full Court to reach any conclusion of invalidity. His Honour's opening comment at [34] (quoted above) indicates that he did not view North J as having reached any such conclusion. Although invalidity might well be seen as the logical conclusion to be drawn from the position North J reached, his Honour did not take that final step. He appeared content to conclude that as it was not possible for the Minister to be satisfied that the visa holder had failed to comply with the condition, the Minister's power to cancel the appellant's visa under s 116(3) was not engaged. North J clearly regarded this finding as sufficient to resolve the controversy before him although he did not make any finding of invalidity. Dai is therefore not authority for the proposition put by the respondent. Moreover it is equally clear that although Gyles J referred generally to the invalidity of "condition 8202" his remarks were directed only to situations in which subcl (3)(b) "came into play". In the circumstances before the Full Court no question of the invalidity of condition 8202(3)(a) was raised nor was it necessary for his Honour or for other members of the Full Court to consider the issue of severability. 14 The Minister claimed that Gyles J was in error in considering that any part of condition 8202 was invalid for uncertainty and unreasonableness. The Minister's written submissions argued: His Honour's analysis considered that the form of at least condition 8202(3)(b) was not reasonably clear and was therefore not empowered by the Act. It seems that the Court's attention was not drawn to the fact that a materially identical form of condition 8202 was originally enacted by statute and then copied into the regulations: Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). The statute form of condition 8202 could not have been invalid for unreasonableness or uncertainty and the same should follow when that form (or something materially identical) is subsequently inserted into regulations. 15 With respect, the Minister's conclusion does not follow from the premise stated. Accepting that the premise is correct, the conclusion that the same standard applies to a regulation in the same terms as the statutory form is not made out by mere assertion. In any event, on the view I take of the Full Court's decision in Dai, it is not necessary to determine this issue. 16 The consequence of non-compliance with condition 8202(3)(a) was considered by the Federal Magistrates Court in Tongburin v Minister for Immmigration & Citizenship (2008) 218 FLR 93 and Qui v Minister for Immmigration & Citizenship [2008] FMCA 787. In Tongburin the Tribunal whose decision was under review had found that the visa holder had breached only subcl (3)(a). Barnes FM held that the reasoning in Dai does not apply to subcl (3)(a) and that, whatever was said in relation to subcl 3(b), the case is not authority for the proposition that the subcl 3(a) is invalid. There was no suggestion in Tongburin that subcl (3)(a) could not be severed and her Honour upheld the Tribunal's finding that the visa holder was in breach of the subclause. A similar approach was adopted in Qui. 17 For present purposes it is not necessary to express an opinion on the validity or otherwise of 8202(3)(b). It does not arise in this appeal. It is sufficient to note that, should the now superseded subcl (3)(b) be invalid, I do not accept that this would affect subcl (3)(a). The requirements of subcl (3) are important and cumulative. The sense of subcl (3)(a) would not be affected by striking out subcl 3(b) and it would not operate differently on visa holders falling under it: Bank of New South Wales v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1 at 371 per Dixon J; Acts Interpretation Act 1901 (Cth) s 13. It is not reasonable to assume that Parliament would have preferred both elements of the condition imposed on a visa holder to fail if one element were to be invalidated. To the extent necessary I regard subcl (3)(a) as severable from subcl (3)(b). 18 It follows that the first question in this appeal is which version of condition 8202(3) applies in the present circumstances. The answer depends on whether the breach occurred before or after 1 July 2007. Under the transitional provision the later version applies if the breach occurred "on or after 1 July 2007". In the present case the Tribunal, without any discussion of the issue, applied the condition as it existed prior to 1 July 2007 - presumably on the basis that the breach occurred before that date. 19 The Federal Magistrate stated that while it was not strictly necessary for him to consider this issue, the Tribunal should have applied the amended version of the condition. His Honour reasoned, at [44], that there could be no breach arising from the appellant's failure to attend for the requisite number of contact hours until, according to the terms of condition 8202(3)(a), "the Minister directed his mind to the issue of attendance". In other words, his Honour found that the Minister's satisfaction referred to in subcl 3(a) is a required element for compliance with the condition. Presumably the Minister's delegate determined that he was unable to reach the required state of satisfaction sometime between 12 September 2007 (the date on which the s 20 interview took place) and 13 September 2007 (the date on which the respondent's visa was cancelled). Consequently, his Honour concluded that breach of the condition had not occurred until after 1 July 2007. 20 The Federal Magistrate recognised that, if correct, this conclusion would create various difficulties in the statutory scheme for granting and cancelling student visas. Of particular concern to his Honour was that until the Minister directed his mind to the issue of attendance, and was not satisfied as to attendance, there would be no breach and hence no valid notice could be issued under s 20 of the Education Services for Overseas Students Act 2000 (Cth). 21 At the relevant time s 20 required a registered education provider to send a written notice to a student who "has breached a student visa condition relating to attendance or satisfactory academic performance". The notice must give particulars of the breach and state that the student is required to attend an interview with an officer of the Department within 28 days of the date specified in the notice. The notice must inform the student that failure to attend the interview will result in the automatic cancellation of the visa pursuant to s 137J of the Migration Act. Attendance at the interview does not, however, protect the student from cancellation of his or her visa pursuant to s 116 of the Migration Act operating in conjunction with reg 2.43 of the Migration Regulations 1994 (Cth). Lander J summarised the position in Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257 at [58]: In summary, therefore, where a student is given notice under s 20 of the [Education Services for Overseas Students Act 2000], and does not comply with that notice, the student's visa will be automatically cancelled pursuant to the provisions of s 137J of the Migration Act. On the other hand, where a person has been given notice and complies with that notice, that person's visa will still be cancelled if that person has breached Condition 8202 of the visa. 22 In Chen it was necessary for Lander J to determine the effect of a notice which did not contain adequate particulars or where the particulars provided were incorrect. His Honour rejected the submission that such a notice was invalid and of no effect. His Honour held that the purpose of the notice, in relation to the student, is to bring the education provider's opinion that the student has breached a condition of his or her visa to the attention of the student and provide an opportunity for the student to attend an interview for the purpose of explaining the breach alleged in the notice. At [87]-[88] of his reasons his Honour clearly made the point that the notice contains an allegation by the education provider: The allegation has no effect if the student responds to the notice and establishes the absence of a breach. The allegation itself has no effect even if the student does not respond to the notice because it is not the allegation which triggers the operation of s 137J of the Migration Act but the notice itself. Moreover, a student's visa will be cancelled even if the student does not receive a s 20 notice: s 137J. The Minister is not entitled to revoke the cancellation on the ground that the non-citizen was unaware of the notice or the effect of s 137J: s 137L(2). In those circumstances, it is difficult to say that a s 20 notice, which is under particularised, should be held to be invalid and of no effect in relation to the student. 23 Commenting on Lander J's analysis of s 20, the Federal Magistrate accepted that his Honour declined to find that an under-particularised notice was invalid but added, at [44]: However, I do not understand his Honour to be saying in that case that a notice could validly or effectively be issued pursuant to s 20 without the condition precedent to its issue having been met. The condition precedent is a breach of a condition. This comment does not take account of Lander J's statement in which his Honour emphasised that a notice under s 20 contains "an allegation" by the educational provider. The allegation may be correct or it may be incorrect. It is not the purpose of the notice to determine this point. Moreover, if a valid notice could not be issued pursuant to s 20 until the Minister had determined that the visa holder had not attended his or her course for the requisite number of contact hours, there would be little utility in the interview required under s 20 which, in turn, would make it difficult to understand why there should be automatic cancellation under s 137J for failure to attend the interview. 24 It cannot be doubted that the drafting of the regulations including the transitional provision leaves something to be desired. Nevertheless, despite the difficulties in interpretation, when considered in the context of the Migration Act and the Migration Regulations as well as the Education Services for Overseas Students Act, the purpose of the statutory scheme in relation to condition 8202(3)(a) is tolerably clear. Subclause (1) provides that it is a condition of the visa that the holder meet the requirements of subcl (3)(a). If a student fails attend at least 80% of the scheduled contact hours for the course in which he or she is enrolled the student's visa must be cancelled unless the failure is due to "exceptional circumstances beyond the visa holder's control". The visa is cancelled either pursuant to s 137J, for failure to attend an interview as required by the s 20 notice; or it is cancelled pursuant to the combined effect of s 116(3) of the Migration Act and reg 2.43(2)(b)(ii). Cancellation for failure to attend the interview need no longer concern us as it does not depend on breach of the condition; see the comments of Lander J quoted at [22] above. 25 Cancellation pursuant to s 116(3) is predicated on there having been non-compliance with the condition. Once it is no longer possible for a student to attend 80% of the scheduled contact hours for a course, that is once the student has failed to attend more than 20% of the scheduled contact hours, it is abundantly clear that compliance with condition 8202(3)(a) is not possible. At that point the holder is in breach of subcl (1) of condition 8202. 26 Subclause (3)(a) describes a situation that meets the requirements of the subclause. In my view, this is an inclusive statement and does not exclude other situations in which a visa holder might also meet the requirements of the clause. That this must be so can be seen by considering the position of a visa holder who attends 100% of the contact hours scheduled for the course in which he or she is enrolled, who therefore never receives a s 20 notice and never comes to the attention of the Minister. It would be absurd to claim that such a student is in breach of the condition until the Minister's attention is directed to it and the Minister is satisfied that the holder has attended for at least 80% of the contact hours scheduled. Given the scheme is directed to the consequences of non-attendance - that is, cancellation of the visa - it is, perhaps, not surprising that the condition contains a positive description of a situation in which its requirements have clearly been fulfilled and where cancellation is not in issue. 27 The respondent breached condition 8202(3)(a) at the earliest when he had missed more than 20% of the scheduled contact hours for the course in which he was enrolled. At the latest his breach occurred at the end of the semester which was on 15June 2007. This is consistent with the views expressed in a number of decisions of this Court; see for example Ariyagama v Minister for Immigration and Multicultural Affairs [2001] FCA 1407 and Shrestha v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1607. It follows that the Tribunal was right to apply condition 8202(3)(a) as it existed prior to 1 July 2007. It also follows that condition 8202 is not inconsistent with s 20 of the Education Services for Overseas Students Act 2000 (Cth). No issue has been taken in regard to the Tribunal's rejection of the respondent's reasons for failing to attend the required percentage of his classes. 28 For the above reasons, the appeal should be allowed and the orders made by the Federal Magistrate on 8 August 2008 should be set aside. In lieu of those orders the application to the Federal Magistrates Court should be dismissed and the respondent ordered to pay the appellant's costs of the proceedings in the Federal Magistrates Court and of this appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREENWOOD J 29 I have had the benefit of reading the reasons for judgment of Justice Stone in draft. I generally agree with the conclusions her Honour has reached for the reasons given but wish to add these additional observations. 30 The respondent on 29 January 2007 was granted a "Student (Temporary) (Class TU) Visa in the subclass 572 applicable to the "Vocational Education and Training Sector" for the purposes of ss 30 and 31 of the Migration Act 1958 (Cth) ("the Migration Act") and the Migration Regulations 1994 (Cth) (see: Regulations 2.01 and 2.02, Part 2 of Schedule 1 and Schedule 2 to the Regulations). Regulation 2.05 and Part 2 of Schedule 1 establish conditions applicable to a subclass 572 Visa for the purposes of s 41 of the Migration Act. One such condition is condition 8202 of Schedule 8 which prior to 1 July 2007 was in these terms: (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full-time course of study or training. (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. (4) In the case of the holder of a Subclause 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training. 31 The respondent was enrolled at the Carrick Institute of Education in a course of study leading to a Diploma of Commercial Cookery. Term 2 of the course commenced on 10 April 2007 and ended on 17 June 2007. The term consisted of 186 contact hours. On 4 April 2007, the respondent returned to India in order to attend his sick mother and to marry. He returned to Australia on 21 April 2007. He was thus absent from Australia for approximately 18 days, 12 of which were within the period of Term 2. It was common ground that between 10 April 2007 and 17 June 2007, the respondent attended only 11% of the contact hours for Term 2 of his course of study. 32 On 26 June 2007, the Carrick Institute of Education sent a notice to the respondent under s 20 of the Education Services for Overseas Students Act 2000 (Cth) ("the Education Services Act") putting the respondent on notice that the Carrick Institute: … has determined that in the term running from 26 April 2007 to 15 June 2007, you attended 11.00% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa. 33 At p 7 of its reasons, the Tribunal noted that although Term 2 of the course was described by the Carrick Institute as commencing on 26 April 2007 and ending on 15 June 2007, the Institute confirmed to the Tribunal that Term 2 in fact commenced on 10 April 2007 and ended on 17 June 2007. To that extent, one aspect of the particulars of the breach contained in the notice is inaccurate. 34 Section 20 of the Education Services Act is in these terms: 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 prescribed condition of a student visa. (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 subject 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 making any submissions about the breach and the circumstances that led to 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. [emphasis added] 35 The notice called upon the respondent to attend an interview with an officer of the Minister's department on 12 September 2007 for the purpose of making any submissions about the breach and the circumstances that led to the breach. That interview took place. On 13 September 2007, the delegate cancelled the respondent's visa. The s 20 notice makes reference to ss 137J and 137K of the Migration Act. Section 137J provides for cancellation by operation of the section (s 137J(2)) in the event of a failure by the visa holder to comply with a notice under s 20 of the Education Services Act, notably by failing to attend an interview with a departmental officer on the nominated date. Section 137K provides for an application for revocation of cancellation of a visa effected by operation of s 137J. 36 The Tribunal determined that the respondent's manifest failure to attend at least 80% of the contact hours scheduled for Term 2 of the course of study enlivened a ground of cancellation of the visa under s 116(1)(b) of the Migration Act which provides that: (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) … (b) its holder has not complied with a condition of the visa; 37 The Tribunal also noted that s 116(3) compels the Minister to cancel a visa if the discretion under s 116(1) is enlivened and "prescribed circumstances" exist "in which a visa must be cancelled". Regulation 2.43 of the Migration Regulations provides that in the case of a Student (Temporary) (Class TU) visa, the Minister must cancel the visa if satisfied that the visa holder has not complied with condition 8202 and non‑compliance was not due to exceptional circumstances beyond the visa holder's control. The Tribunal determined that the discretion under s 116(1) was enlivened by the visa holder's breach of condition 8202(3)(a) and that non‑compliance with the condition was not due to exceptional circumstances beyond the respondent's control. 38 In seeking review before the Federal Magistrates Court of Australia, the respondent contended that condition 8202(3)(a) was invalid; as a matter of construction the respondent was not in breach of the condition, if valid; and, by reason of a transitional provision, Regulation 5(3) contained in the Migration Amendment Regulations 2007 (No. 5) ("the Amendment Regulation (No. 5)"), a substituted condition 8202(3) applied to the respondent's visa rather than the version of condition 8202(3)(a) applicable at 1 July 2007. That result was said to arise because on 13 September 2007 the delegate of the Minister determined that the delegate was not satisfied that the respondent had attended at least 80% of the contact hours for the course and since that state of satisfaction was only reached on that day, the visa holder fell into breach on that day triggering the application of the substituted version of condition 8202(3). Schedule 3 to the Amendment Regulation (No. 5) sets out the new condition 8202. Regulations 5 is in these terms: (1) Schedule 3 amends the Migration Regulations 1994. (2) The amendment made by Schedule 3 applies in relation to an application for a visa: (a) made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 July 2007; or (b) made on or after 1 July 2007. (3) The amendment made by Schedule 3 also applies in relation to a visa granted before 1 July 2007, but only in relation to a breach of a visa condition that occurred on or after 1 July 2007. [emphasis added] 39 Accordingly, if an event occurring after 1 July 2007 is said to be a breach of a visa condition, the relevant condition will be that set out in Schedule 3 to the Amendment Regulation (No. 5). 40 Section 20 of the Education Services Act imposed an obligation on the Carrick Institute to send a notice to the respondent as soon as practicable after a breach of a prescribed condition of the visa occurred. The obligation is predicated upon breach. The registered provider might either by mistake of fact or law issue a notice to a visa holder. The provider might misconceive the content of the condition said to be breached or mistakenly apply, for example, spreadsheet data relating to non‑compliant visa holder A as data applicable to compliant visa holder B and send visa holder B a notice. In any event, s 137J of the Migration Act makes it plain that automatic cancellation might be effected by non‑compliance with the notice, valid or invalid, right or wrong, subject to an application for revocation under s 137K. In this appeal, there is no question alive as to cancellation based on non‑compliance with the notice issued by the Carrick Institute. In that sense, the s 20 notice is largely irrelevant. However, s 20 of the Education Services Act which has an inter‑relationship with "prescribed conditions" applied to a visa by reason of the Migration Act and Migration Regulations, contemplates obligations cast on an education provider once a breach has occurred. In that sense, it seems to me that the notice is something more than merely an allegation on the part of the education provider as it is predicated on breach (cf., Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257). 41 Condition 8202(1) imposed an obligation on the visa holder to meet the requirements of subclause (3)(a). A holder satisfies the requirements of subclause (3)(a), in circumstances where the education provider keeps attendance records for the relevant course, if the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled for the relevant course. Subclause 3(a) on the face of the language adopted in the subclause operates upon the state of the Minister's satisfaction at a moment in time. The state of the Minister's satisfaction is a criterion not uncommon to the Migration Act as an event determining an entitlement (s 36(2), protection visas). Presumably, subclause (3)(a) in selecting the state of the Minister's satisfaction as to the visa holder's attendance for at least 80% of the contact hours, meant those words to have a role to play in determining compliance with what is described as a condition of the visa. 42 The difficulty is that the visa holder's compliance with subclause 3(a) is expressed to be dependent upon the Minister reaching a state of satisfaction as to the visa holder's threshold of attendance at course contact hours with the result, taken literally, that unless and until the Minister affirmatively reaches that state of satisfaction, the visa holder has failed to meet the requirement of condition 8202(1) as he or she has failed to meet the requirement of subclause (3)(a). On that construction, no holder of a student visa incorporating condition 8202(3)(a) would satisfy the obligation to meet the requirements of the condition until the Minister or his or her delegate turns a mind to the question of the visa holder's level of attendance for contact hours of the course and reaches a state of satisfaction as to the visa holder's compliance with the required threshold. Some students, perhaps many, holding a student temporary visa may never come to the attention of the Minister or his or her delegate on the question of their level of attendance for course hours in their course of study due to their compliant engagement in and, no doubt, commitment to their course of study in Australia. It would be an odd result if each of those students systemically failed to comply with a condition of their visa because the Minister had not affirmatively reached a state of satisfaction about the stipulated matter. 43 The respondent says that the correct approach to determining the content of the obligation, apart from questions of invalidity and other matters addressed by Justice Stone, is this. The visa holder must, as a condition of the visa, attend at least 80% of the contact hours for the relevant course. At a point in time, generally in consequence of a notice under s 20 of the Education Services Act although not solely by operation of such a notice, the Minister might form a view that a visa holder has failed to comply with the condition. Until the Minister forms such a view, the visa holder is taken to meet the requirements of the condition. At the moment in time when the Minister is satisfied otherwise, the visa holder falls into breach which gives rise to an entitlement in the Minister to cancel the visa in reliance upon s 116(1)(b) of the Migration Act subject to the mandatory requirements of s 116(3) of that Act taken in conjunction with Regulation 2.43. 44 The awkwardness with that construction is that it relies upon the Minister reaching a state of satisfaction as to non‑compliance with the condition so as to determine an event of breach which then calls upon the Minister to reach a further state of satisfaction under the Migration Act or, alternatively, if open, rely upon the earlier state of satisfaction as to breach, as a basis for a potential exercise of the discretion arising under s 116(1)(b) as to cancellation, subject to the Minister reaching a further state of satisfaction that non‑compliance was not due to exceptional circumstances beyond the visa holder's control. 45 The preferred construction of the visa holder's obligation arising under condition 8202(3)(a) as applied to a subclass 572 student temporary visa by the Migration Act and the Migration Regulations and the intersection of that obligation with the operation of s 20 of the Education Services Act, is this. A visa holder must, as a prescribed condition, engage with the education provider by attending for at least 80% of the contact hours scheduled in the course of study in which the visa holder is enrolled as an "accepted student" for the purposes of the Education Services Act. That course of study contemplates points along a continuum defined by reference to the term of the course. In this case, the term extended from 10 April 2007 to 17 June 2007 which involved 186 contact hours. A point along that continuum might be reached at which a visa holder falls into breach of the condition. That point is one at which it is no longer possible for a visa holder to satisfy a requirement of attending for at least 80% of the contact hours in the course of study. A visa holder might, for example, not attend any contact hours. In such a case, the point at which non‑compliance would arise, would be reached rapidly. Alternatively, a visa holder might episodically engage with the education provider by intermittently attending course contact hours with the education provider in which event, it may remain possible until late in the course for the visa holder to ensure attendance for at least 80% of the contact hours overall. It may not. 46 Nevertheless, a visa holder has the capacity to determine whether he or she meets the obligation of attendance for at least 80% of the contact hours. A failure to do so will crystallise a breach, as s 20 of the Education Services Act recognises, at the moment the visa holder renders compliance not possible. Section 20 of the Education Services Act contemplates that a visa holder might engage in such a breach. The form of notice required by s 20(3) of the Education Services Act approved by the Secretary of the Minister's Department contemplates a breach (or at least a contention of breach (Chen)), based on a failure to attend for at least 80% of the contact hours of the course. The notice must be given as soon as practicable after the breach, that is, after the point of non‑compliance is reached which involves a progressive and continuous assessment by the education provider of attendance by the student for contact hours of the particular course. The obligation on the part of the education provider to issue a notice for breach is not expressed to be dependent upon any state of satisfaction of the Minister. If the true content of the obligation prescribed by the condition is for the student to attend for at least 80% of the contact hours for his or her course of study, a breach will arise independently of any state of satisfaction of the Minister. The visa holder may however be able to satisfy the Minister or his or her delegate that no breach of subclause (3)(a) has arisen either because the education provider has erred in law or fact or for some other reason at which point the Minister might be satisfied that the visa holder has attended for at least 80% of the contact hours for the course. In such a case, circumstances which suggested a breach of the condition on the part of the visa holder may result in compliance with subclause (3)(a) and thus compliance with subclause (1). Alternatively, the visa holder may be able to satisfy the Minister that exceptional circumstances beyond his or her control gave rise to the breach. If the Minister is satisfied as to breach but not satisfied as to exceptional circumstances beyond the visa holder's control, the Minister is required by s 116(3) of the Migration Act and Regulation 2.43 of the Migration Regulations to cancel the visa. 47 In the present circumstances, the respondent failed to comply with condition 8202(3)(a) as he only attended for 11% of the contact hours in the period 10 April 2007 to 17 June 2007 which gave rise to a breach at the point at which it was no longer possible for the respondent to attend for at least 80% of the course contact hours. That point arose prior to 1 July 2007. Thus, the form of condition 8202(3)(a) as it stood prior to 1 July 2007 is the relevant condition applicable to the respondent's visa. 48 Apart from these observations, I agree with Justice Stone in respect of the conclusions her Honour has reached and the orders she proposes, for the reasons identified by her Honour. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1359 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT BESANKO J 49 I have had the advantage of reading the reasons of Stone J. I agree with her Honour's principal conclusions and with her reasons for those conclusions. I wish to add some brief observations of my own on one of the arguments put to the Court by the respondent, and in the course of that, to address what I think is the central issue on the appeal. 50 Before it was amended on 1 July 2007, condition 8202, as found in Schedule 8 of the Migration Regulations 1994 (Cth) ("the Regulations"), was in the following terms: (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full-time course of study or training. (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. (4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training. 51 The respondent submitted that in the decision of this Court in Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458 ("Dai"), it was held that both subcl (3)(a) and subcl (3)(b) were invalid. In the alternative, it was held that subcl (3)(b) was invalid and it is not possible to sever subcl (3)(b) from subcl (3)(a). It was submitted that the decision in Dai was not clearly wrong and this Court should follow it. Those submissions are dealt with in the reasons for judgment of Stone J and there is nothing I wish to add to what her Honour has said. 52 In the alternative, the respondent submitted that subcl (3)(a) suffered from the same deficiencies as subcl (3)(b) and that it was invalid on the same grounds. Those deficiencies were identified by North J and Gyles J in Dai in the context of subcl (3)(b). They were that no act of the visa holder could satisfy the requirements in subcl (3)(b) and that, no matter what the visa holder did or did not do, the absence of a certificate would be fatal (North J at 463 [19]), or that the requirements in the subclause were uncertain and unreasonable and therefore not authorised by the legislation (Gyles J at 467 [34], 468 [37]). 53 The federal magistrate accepted the respondent's submission that subcl (3)(a) suffered from the same deficiencies as subcl (3)(b). He said that compliance with subcl (3)(a) was dependent on three things, which he identified as follows: a) the keeping of attendance records by the education provider; b) the provision of those attendance records to the Minister; and c) the Minister's satisfaction as to attendance based on whatever records are provided. The federal magistrate then said: An education provider may keep attendance records but fail to provide them to the Minister. The Minister may not be satisfied with whatever records are provided. There is nothing a visa holder can do to either compel the provision of records or affect the quality of them. In my view, subclause (3)(a) suffers from the same vice as subclause (3)(b).

54 In my respectful opinion, the approach of the federal magistrate involves an error in the proper construction of subcl (3)(a). The keeping of attendance records by the education provider is an objective fact which engages the requirement in subcl (3)(a). The fact that the education provider does not keep attendance records does not have the consequence that the visa holder has not met the requirements of the subclause; it means that those requirements are not engaged. In a case where the education provider keeps attendance records, compliance with the requirements in subcl (3)(a) does not depend on those records being provided to the Minister. No doubt, in many cases the Minister would have regard to the attendance records kept by the education provider, but compliance with the subclause depends upon the visa holder's attendance for at least 80 per cent of the contact hours scheduled. 55 The third matter identified by the federal magistrate - the Minister's satisfaction - involves an examination of what I think is the central issue on the appeal. Are the words in subcl (3)(a) the Minister is satisfied mere surplusage or, if they have work to do, do they do no more than identify the person who is to consider the relevant requirement and are used by way of contrast with subcl (3)(b), which refers to a certification by the education provider? On either view, the visa holder fails to meet the requirements of subcl (3)(a) at the point at which it is no longer possible for the visa holder to attend for at least 80 per cent of the contact hours scheduled. 56 The alternative construction of the words in their context is that reached by the federal magistrate and advanced by the respondent on the appeal, namely, that the Minister's satisfaction is one of the elements or things upon which compliance with subcl 3(a) is dependent. On this view, compliance depends on the Minister considering the matter and deciding whether he or she is satisfied that there has been the required attendance. On this interpretation, and because subcl (3)(b) is expressed in terms of the Minister being satisfied of the required attendance, there is either non-compliance with the condition until the Minister decides otherwise, or a visa holder is taken to comply with the condition unless and until the Minister considers the matter and fails to be satisfied of the required attendance or is satisfied that there has not been the required attendance. The respondent submitted that those were two alternatives. He submitted that if the first interpretation was the correct one, then subcl (3)(a) was clearly invalid for reasons similar to those which led a majority in Dai to conclude that subcl (3)(b) was invalid or inoperative. If the second interpretation was the correct one, then clearly (submitted the respondent) the non-compliance or breach occurred after 1 July 2007 and the Tribunal had erred in applying condition 8202 in the form in which it was prior to 1 July 2007. 57 The point is not free from difficulty because one would assume that the words have some work to do. I have reached the conclusion that the construction advanced by the appellant is the correct one and that non-compliance occurs upon it becoming impossible for the visa holder to achieve the required attendance. I have reached that conclusion for two reasons. First, such an interpretation of subcl (3)(a) avoids the conclusion that the Minister is to be satisfied of his or her own satisfaction (see s 116(1)(b) of the Migration Act 1958 (Cth) ("the Act") and reg 2.43(2) of the Regulations; Minister for Immigration and Multicultural Affairs v Zhang (1999) 84 FCR 258 at 270 [54] per French and North JJ, at 271 [66] per Merkel J). Secondly, as the reasons of Stone J illustrate (at [24]-[27]), such an interpretation means that condition 8202 conforms with the statutory scheme established by the Act, the Regulations and the Education Services for Overseas Students Act 2000 (Cth). 58 I agree with the orders proposed by Stone J. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Migration Legislation Amendment (Overseas Students) Act 2000(Cth)

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Judgment (10 paragraphs)

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