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[2002] FCA 460
appellant. The Tribunal’s decision was set aside and the matter remitted for further consideration according to law; no costs order was made except that the respondent must pay the applicant’s costs thrown...
2 cited instruments linked from this judgment.
The Court held that the Tribunal could not treat cancellation of Nguyen's student visa as optional after finding that she had failed to meet the relevant attendance condition. Under the legislation and regulation then applicable, that failure was a prescribed circumstance requiring cancellation. The Tribunal's contrary interpretation was an error of law, so its decision was set aside and sent back for reconsideration.
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2,073 words · generated 01/10/2026
Thi Mo Nguyen entered Australia on 30 September 1999 on a subclass 560 student visa. She later held another subclass 560 visa granted on 27 July 2000, which was due to expire on 24 June 2002. That visa was subject to condition 8202. The judgment explains that, following the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), Item 4 of Schedule 4 substituted a specified attendance condition for the condition otherwise set out in the regulations. The relevant requirement was that the Minister be satisfied the visa holder attended at least 80 per cent of scheduled contact hours for each relevant term and semester [3]–[5].
The Department requested information from Nguyen's college on 17 May 2001. The college's letter of 18 June 2001 recorded attendance of 66 per cent and 64 per cent in terms 3 and 4 of 2000. It also recorded attendance of 82.5 per cent and 88 per cent for terms 1 and 2 of 2001 [6]. The delegate cancelled the visa on 7 June 2001 because of the attendance figures for terms 3 and 4 of 2000 [6].
The Tribunal set aside the cancellation decision. Its reasoning, as described by Emmett J, was that it should consider whether the circumstances giving rise to the breach might not found a cancellation, and that cancellation remained discretionary even where the 80 per cent attendance condition was breached [8]. The Tribunal relied on Shrestha v Minister for Immigration & Multicultural Affairs [2000] FCA 359.
The Minister applied to the Federal Court for review. Emmett J held that the Tribunal had misconstrued the statutory scheme. The Court set aside the Tribunal's decision and remitted the matter for further consideration according to law [12]. There is a date discrepancy in the judgment: paragraph 2 states the Tribunal decision was made on 17 September 2001, while the formal orders and paragraph 12 state 7 September 2001. The source does not resolve that inconsistency.
The judgment also contains differing captions reflecting the parties' roles in the two proceedings. The Minister was the applicant in the Federal Court judicial review and Nguyen was the respondent; in the Tribunal review, Nguyen had been the applicant and the Minister the respondent.
The reasoning turns on the interaction between the general cancellation power, the mandatory cancellation provision, the regulation prescribing circumstances, and the amended student visa condition.
Section 116(1)(b) provided that the Minister may cancel a visa if satisfied that its holder had not complied with a visa condition. In contrast, s 116(3) provided that the Minister must cancel a visa if prescribed circumstances existed [7]. Regulation 2.43(2)(b) identified non-compliance with condition 8202 as a circumstance requiring cancellation [7]. The distinction between “may” and “must” was decisive for Emmett J.
The applicable version of condition 8202 came from Item 4 of Schedule 4 to the Overseas Student Act. Item 4 applied to student visas in effect when it commenced and provided that condition 8202 was to be taken, for all purposes, to have the terms set out in the item [3]–[5]. The relevant terms required the Minister to be satisfied that the student attended at least 80 per cent of the scheduled contact hours for the relevant course periods [4]. The Court noted there was no suggestion that Nguyen's visa was not properly subject to condition 8202 [5].
The Tribunal had found that Nguyen had not satisfied the condition, but treated cancellation as discretionary. Emmett J considered that approach incompatible with s 116(3). He said that the provision was “clearly mandatory in using the word ‘must’” and that there could be no discretion to cancel or not cancel where s 116(3) applied [11]. As the Tribunal found non-compliance with the condition imposed by Item 4, cancellation was required under the statutory scheme as described in the reasons [11].
The Court also addressed the Tribunal's reliance on Shrestha. That matter concerned an earlier cancellation decision made before the Overseas Student Act commenced. The first-instance decision in Shrestha had been set aside by consent orders, and the orders recorded that the Tribunal on remitter would not be bound by the first-instance reasoning about the previous construction or validity of condition 8202 [9]. Emmett J concluded that Shrestha had no relevance to the matter before him, both because of those consent orders and because the relevant statutory setting had changed [10].
The error was characterised as an incorrect interpretation of s 116(3), Item 4 and r 2.43(2)(b). That established the ground in s 476(1)(e) of the Migration Act [12]. The consequence was not a final determination by the Court of every issue concerning the visa. Rather, the Tribunal's decision was set aside and the matter was remitted for further consideration according to law.
The judgment's comparison is limited to the statutory change affecting condition 8202 and the earlier circumstances of Shrestha. It does not provide a comprehensive account of student visa law before or after the Overseas Student Act.
Before the relevant amendment commenced, the condition 8202 wording arose from regulations made for the purposes of s 41 of the Migration Act. In describing Shrestha, the Court noted that it concerned the position before the Overseas Student Act commenced and referred to the earlier version of condition 8202 [9]–[10]. The appeal in Shrestha was resolved by consent orders, which set aside the first-instance judgment and stated that the Tribunal on remitter would not be bound by the first-instance reasoning about the earlier condition and regulation [9].
For the relevant existing visas after Item 4 commenced, condition 8202 was taken to have the terms stated in Item 4 rather than the regulatory terms [4]. The judgment describes the relevant attendance threshold as 80 per cent of scheduled contact hours for each term and semester of a qualifying course [4]. It then applies s 116(3) and r 2.43(2)(b) to hold that non-compliance with condition 8202 fell within a prescribed circumstance requiring cancellation [7], [11].
The central point in the case is therefore not simply that a student attendance requirement existed. It is that the applicable condition and the cancellation provisions operated together: Item 4 defined the relevant condition, while s 116(3) and r 2.43(2)(b) made cancellation mandatory once the prescribed circumstance was found. The judgment does not state what later amendments may have changed this framework.
At [4], the Court describes Item 4(3) as requiring that the Minister be satisfied the visa holder attended “at least eighty per cent of the contact hours scheduled for each term and semester” for the relevant course. In plain English, the attendance condition applied by the Court was measured against scheduled contact hours in each relevant teaching period.
At [7], the Court sets out the difference between s 116(1)(b) and s 116(3). The former says the Minister “may” cancel where a condition has not been complied with; the latter says the Minister “must” cancel if prescribed circumstances exist. The regulation identified breach of condition 8202 as one of those prescribed circumstances. The Court treated the mandatory provision as governing once its requirements were met.
At [10], Emmett J says Shrestha had no present relevance. The practical significance is narrow: the Tribunal could not use the earlier case as authority for treating cancellation as discretionary in this post-amendment matter. The Court did not undertake a broad reconsideration of Shrestha; it explained why that decision did not govern the case before it.
At [11], the Court states: “There can be no discretion for the Minister, or the decision maker making a decision as the Minister's delegate, as to the cancellation of a visa where s 116(3) applies.” Put simply, the Court read “must” as requiring the prescribed outcome, not permitting a decision-maker to weigh whether cancellation was appropriate after finding the prescribed circumstance.
At [12], the Court identifies the error as an incorrect interpretation of s 116(3), Item 4 and r 2.43(2)(b), and finds the ground under s 476(1)(e) established. This explains why the result was judicial review relief: the Tribunal had applied the wrong legal understanding, so its decision was set aside and returned for reconsideration.
The reasoning is most directly engaged where a student visa was subject to condition 8202 as modified by Item 4, the relevant attendance requirement was not met, and the decision-maker was applying s 116(3) together with r 2.43(2)(b). In that setting, the case says that the prescribed circumstance leads to a mandatory cancellation requirement, rather than a discretionary choice under s 116(1).
The decision is also relevant where a tribunal treats cancellation as discretionary despite finding breach of the applicable condition. The specific error identified was not simply an adverse view about attendance. It was the Tribunal's interpretation that the circumstances of the breach might not found cancellation and that discretion remained, notwithstanding the mandatory statutory provision [8], [11].
A comparison with Shrestha may be relevant where a party relies on that case for the proposition that student visa cancellation was discretionary. Nguyen emphasises that Shrestha concerned the pre-Overseas Student Act position and had been disposed of on appeal by consent orders [9]–[10]. The decision does not establish that every issue considered in Shrestha is irrelevant in all later matters. Its conclusion concerns the statutory setting and issue before Emmett J.
The judgment does not determine how the mandatory scheme would operate where the relevant facts, condition, regulation, or prescribed circumstance differ. Nor does it address possible disputes about how attendance is calculated, whether the condition applies to a particular visa, or the legal effect of exceptions not discussed in the reasons. Those questions cannot be answered from this judgment alone.
The supplied judgment contains no later decisions discussing Minister for Immigration & Multicultural Affairs v Nguyen. It therefore provides no basis for describing subsequent judicial treatment, whether by adoption, limitation, distinction, or criticism.
The only earlier case expressly discussed is Shrestha. Emmett J considered it and held it irrelevant to the issue before him, given the earlier statutory setting and the consent orders made on appeal [9]–[10]. That is Nguyen's treatment of Shrestha, not later treatment of Nguyen.
The decision's express holding should be kept at the level of the statutory provisions it construed. It states that, under s 116(3) and r 2.43(2)(b), breach of condition 8202 in the relevant setting required cancellation. The judgment does not itself establish whether later legislation amended those provisions, or how later courts have interpreted them.
The reasons leave several matters outside the decision. First, the Court remitted the matter rather than resolving every issue relating to the visa. Its formal order required further consideration according to law [12]. The judgment therefore determines the legal error in the Tribunal's approach but does not record the result of any later Tribunal proceeding.
Second, the decision does not resolve the discrepancy in the date of the Tribunal decision. Paragraph 2 records 17 September 2001, while the formal orders and paragraph 12 use 7 September 2001. The date inconsistency is apparent on the face of the supplied judgment and should not be silently harmonised.
Third, the Court does not discuss how attendance should be assessed where a course, term, semester, or scheduled contact hours are disputed. It records the college's attendance figures and the statutory threshold, but no contest about calculation methods appears in the reasons [4], [6]. Likewise, it does not address whether any particular explanation for non-attendance could affect the statutory requirement once a breach was found. The Tribunal's consideration of whether the circumstances might not found cancellation was rejected because the cancellation provision was mandatory, but the judgment does not canvass other potential statutory issues.
Fourth, the decision does not provide a general ruling on every visa-cancellation power using “may” or “must”. Its holding concerns the specific interaction of s 116(1)(b), s 116(3), r 2.43(2)(b), and the Item 4 version of condition 8202. Applying the reasoning in a different statutory setting would require checking whether the same provisions and prescribed circumstances apply.
Finally, this source does not set out later amendments or subsequent case law. Any current-law analysis would require legal sources beyond this judgment. This is general legal information, not legal advice. Zoe can make mistakes, and before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
REASONS FOR JUDGMENT 1 The applicant entered Australia on 30 September 1999 on a subclass 560 (Student) visa, which expired on 17 April 2000. On 2 June 2000, the applicant was granted a further subclass 560 (Student) visa, which expired on 27 July 2000. 2 On 27 July 2000, the applicant was granted a third subclass 560 (Student) visa that was due to expire on 24 June 2002. However, that visa was cancelled on 7 June 2001. On 14 June 2001, the applicant lodged an application for review by the Migration Review Tribunal ("the Tribunal") of the decision to cancel the visa. On 17 September 2001, the Tribunal set aside the decision to cancel the visa. By application for an order of review filed on 27 September 2001, the respondent, the Minister for Immigration & Multicultural Affairs ("the Minister"), seeks a review of the Tribunal's decision of 17 September 2001. 3 Section 3 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) ("the Overseas Student Act") provides that the items in the schedules to that Act have effect according to their terms. Item 4 in Schedule 4 to the Act, dealing with special conditions on certain student visas, applies to all student visas that were in effect when that item commenced. Under s 2 of the Overseas Student Act, Item 4 commenced either on 21 December 2000, when the Act received the Royal Assent or on the first day after the end of the period of six months beginning on the day on which the Act received the Royal Assent. 4 Under Item 4(2), condition 8202 of each visa to which Item 4 applies is to be taken for all purposes to be set out in Item 4(3), instead of as set out in the regulations made for the purposes of s 41 of the Migration Act 1958 (Cth) ("the Act"). Under Item 4(3) the condition is, relevantly, that the Minister is satisfied that the holder of a student visa attends for at least eighty per cent of the contact hours scheduled for each term and semester for any course that runs for at least a semester. 5 The visa granted to the applicant on 27 July 2000 was subject to condition 8202, together with other conditions not presently relevant. No suggestion has been made that the visa was not properly subject to condition 8202. It follows from the operation of s 3 of the Overseas Student Act that the visa granted to the applicant on 27 July 2000 was subject to a condition that the Minister be satisfied that she attends for at least eighty per cent of the contact hours scheduled for each term and semester of the course for which she was enrolled. 6 On 17 May 2001, an officer of the Department of Immigration and Multicultural Affairs ("the Department") requested information from the Australian College of Technology, where the applicant was enrolled, with respect to her performance and attendance in her course. By letter of 18 June 2001, the Australian College of Technology certified that the applicant had been enrolled in a two-year course with Australian College of Technology from 22 May 2000. Her attendance in terms 3 and 4 for the year 2000 was sixty-six per cent and sixty-four per cent respectively. Her attendance in terms one and two for the year 2001 was eighty-two-and-a-half per cent and eighty-eight per cent respectively. The decision of the Minister's delegate to cancel the applicant's visa on 7 June 2001 was made on the ground that there had been a breach of condition 8202 in respect of terms 3 and 4 of 2000. 7 Section 116(1)(b) of the Act relevantly provides that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. Under s 116(3), if the Minister may cancel a visa under s 116(1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2)(b) relevantly provides that, for s 116(3) of the Act, the circumstances in which the Minister must cancel a visa are that the Minister is satisfied that the visa holder has not complied with condition 8202. 8 For the purposes of review of the decision of the Minister's delegate, the Tribunal exercised the power of the Minister. Accordingly, if the Tribunal was satisfied that the applicant had not complied with condition 8202, s 116(3) required that the visa be cancelled. The Tribunal, in its reasons, recorded that the circumstances of the cancellation of the applicant's visa fell within the ambit of s 116(3) and r 2.43. Nevertheless, the Tribunal held that it was required to consider whether the circumstances giving rise to the breach of condition 8202 were such that they "may not found a cancellation". The Tribunal also considered that the cancellation power was a discretionary power and not mandatory "even in respect of the breach of the 80 per cent attendance record of the 8202 condition". The Tribunal based those observations on the decision of this Court in Shrestha v Minister for Immigration & Multicultural Affairs [2000] FCA 359 ("Shrestha's Case"). 9 Shrestha's Case concerned a decision by a delegate of the Minister on 14 February 2000 to cancel a student visa. The relevant decision of the Tribunal affirming the delegate's decision was made on 14 August 2000, before the Overseas Student Act commenced. In Shrestha's Case, the Court at first instance set aside the Tribunal's decision and ordered that the matter be remitted to the Tribunal to be determined according to law. However, the Minister appealed from those orders. That appeal was resolved by consent orders as follows: "THE COURT ORDERS, by consent, that: 1. The judgment of Madgwick J on 3 April 2001 be set aside, save as to costs; 2. The decision of the Migration Review Tribunal dated 14 August 2000 be set aside; 3. The matter be remitted to the Tribunal to decide afresh the application for review of the delegate's cancellation decision dated 14 February 2000; 4. The Appellant pay the Respondent's costs of the Appeal as agreed or taxed. THE COURT NOTES that: 1. The parties agree that upon the matter being remitted to the Tribunal under Order (3) above, the Tribunal will not be bound by the reasoning of the Honourable Justice Madgwick in relation to the construction and/or validity of Condition 8202 of Schedule 8 (as it stood at the date of cancellation being 14 February 2000) as affected by Regulation 2.43 (2)(b) of the Migration Regulations 1994 (as was then in force): 2. The Appellant agrees to obtain and supply to the Tribunal on remitter a transcript of today's proceedings." 10 Having regard to the orders made by consent in the Full Court and having regard to the fact that Shrestha's Case concerned the position prior to the commencement of the Overseas Student Act, I do not consider that Shrestha's Case presently has any relevance to the matter before me. 11 I consider that the Tribunal based its decision on a misapprehension. The matter was not governed by the decision in Shrestha's Case. Section 116(3) is clearly mandatory in using the word "must". Section 116(1), on the other hand, uses the word "may". There can be no discretion for the Minister, or the decision maker making a decision as the Minister's delegate, as to the cancellation of a visa where s 116(3) applies. The Tribunal found that the applicant had not satisfied condition 8202, as that condition was imposed by Item 4 of the schedule to the Overseas Student Act. Accordingly, the Tribunal was bound to cancel the visa. 12 The Tribunal's decision clearly involved an error involving an incorrect interpretation of s 116(3), Item 4 of the Overseas Student Act and r 2.43(2)(b). Accordingly, the ground in s 476(1)(e) of the Act has been established. It follows that the decision of the Tribunal of 17 September 2001 should be set aside and that the matter should be remitted to the Tribunal for further consideration according to law. However, the Minister does not ask for an order for costs and, accordingly, I will not make any order as to the costs of the application, save for the order already made on 25 March 2002 that the respondent pay the applicant's costs thrown away by the adjournment of the hearing on that day. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: There was no appearance for the respondent
Minister for Immigration & Multicultural Affairs
Nguyen
The Tribunal’s decision was set aside and the matter remitted for further consideration according to law; no costs order was made except that the respondent must pay the applicant’s costs thrown away by the adjournment.