Minister for Immigration & Multicultural Affairs v Nguyen

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.