Nong v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Migration Review Tribunal ("the MRT"). That decision, which was made on 6 January 2000, affirmed a decision made by a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively) to cancel a student visa held by Mr Manh Chien Nong, a Vietnamese national. 2 A power to cancel visas like that held by Mr Nong is conferred on the Minister by subs 116(1) of the Migration Act 1958 (Cth) ("the Act"). That subsection provides relevantly that, subject to subs 116(3) of the Act, the Minister may cancel a visa if satisfied of any one of a number of matters. However, subs 116(3) of the Act provides that if the Minister may cancel a visa under subs 116(1) of the Act, then the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. 3 Among the matters which enliven the Minister's power under subs 116(1) of the Act are: satisfaction that any circumstances which permitted the grant of the visa no longer exist (see par 116(1)(a) of the Act); and satisfaction that the visa's holder has not complied with a condition of it (see par 116(1)(b) of the Act). 4 Two conditions of visas which it is convenient to mention immediately, both of which are applicable to student visas, are conditions 8202 and 8105. 5 As a result of an amendment to Sch 8 to the Migration Regulations 1994 (Cth) ("the Regulations") by reg 3 of, and item 33 of Sch 1 to, the Migration Amendment Regulations 1998 (No. 10) (Cth), ("the amending Regulations"), condition 8202 provided: "8202 The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." The version of condition 8202 which I have just set out replaced, as of 1 December 1998 (see reg 2 of the amending Regulations), an earlier version of that condition and has itself since been replaced. The earlier version of that condition had simply provided: "The holder must satisfy course requirements". It is not necessary for present purposes to set out the terms of the version of the condition which replaced the one that commenced on 1 December 1998, the existence of which later version I will ignore for the purpose of these reasons. 6 Condition 8105 in Sch 8 to the Regulations has at all relevant times provided: "The holder must not engage in work in Australia (other than in relation to the holder's course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session." 7 It will be recalled that subs 116(3) of the Act provides that if the Minister may cancel a visa under subs 116(1) of the Act, then the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Paragraph 2.43(2)(b) of the Regulations provides that, for subs 116(3) of the Act, the circumstances in which the Minister must cancel a student visa are that the Minister is satisfied that the holder has not complied with condition 8202. Paragraph 2.43(2)(b) was inserted into the Regulations by reg 3 of, and item 2 of Sch 1 to, the amending Regulations. Like the version of condition 8202 which commenced on 1 December 1998, which version I have set out above, par 2.43(2)(b) also commenced on 1 December 1998: see reg 2 of the amending Regulations. 8 No prescription for the purpose of subs 116(3) of the Act equivalent to that which has existed since 1 December 1998 in relation to condition 8202 exists in relation to condition 8105, so that if satisfied that the holder of a student visa has not complied with the latter condition, the Minister has a discretion, but not a duty, to cancel that visa. 9 Having set out the above matters concerning the relevant legislative framework, I turn now to expanding the background which I have already given regarding the present proceeding. 10 Mr Nong arrived in Australia in November 1997 as the holder of a student visa. On or about 3 February 1999, while he remained in Australia, a visa label was affixed to his passport. According to that visa label, Mr Nong had been granted a student visa on 3 February 1999 and was permitted to remain in Australia until 15 March 2000. The visa was expressed to be subject to a number of conditions, including 8202 and 8105. 11 On 30 March 1999, less than two months after the affixing of that visa label, Mr Nong's visa was cancelled by the delegate. 12 In the bundle of relevant documents before the Court, one finds a form numbered 1099 dated 30 March 1999, which form is headed "Cancellation of a temporary visa under section 116 of the Migration Act 1958". 13 In Part C of that form, headed "Record of decision to cancel visa", the delegate recorded that he considered that there were grounds for cancellation of Mr Nong's visa under both pars 116(1)(a) and (b) the Act. As to the evidence of and reasons why those grounds for cancellation existed, the delegate recorded, "Mr Nong admitted that he has not studied for 6 weeks and has worked full time at Australian Gift Manufacturers". The delegate also recorded the reasons for his decision to cancel Mr Nong's visa as follows: "Mr Nong has abandoned his studies at a new college shortly after enrolling. Mr Nong has worked full time for last 6 weeks. Mr Nong has stated he needs to work full time to afford a ticket to visit his sick father, however he has not purchased a ticket despite having $1700." 14 (It is apparent from Part B of the form that the "new college" being referred to in the passage which I have just quoted was named Kookaburra College. Other documents in the bundle of relevant documents before the Court establish that Mr Nong had enrolled at that college on 11 January 1999 in a certificate course in small business enterprise management. Those documents also establish that the "system" of the Department of Immigration & Multicultural Affairs ("the Department") had recorded that that course was a two year course. I note that the delegate said nothing in his decision record of what the cost was of a return airline ticket to Vietnam.) 15 So far as the delegate's decision to cancel Mr Nong's visa was based on par 116(1)(b) of the Act, the delegate did not identify by number in his decision record any visa condition(s) which he was satisfied that Mr Nong had not complied with, although it seems plain that the delegate was satisfied that Mr Nong had not complied with condition 8105. At the same time, it seems unlikely that the delegate was satisfied that Mr Nong had not complied with condition 8202, because, among other reasons, the delegate made no reference in his decision record either to par 2.43(2)(b) of the Regulations or to the duty which he had under that paragraph to cancel Mr Nong's visa if satisfied that Mr Nong had not complied with that condition. 16 I turn now to the MRT's review of the delegate's decision. 17 In reaching its decision in the matter, the MRT summarised the delegate's decision as having been made "on the basis that the applicant [had] breached conditions 8105 and 8202 of his visa" ([2000] MRTA 55, [14]). That was an inaccurate summary of the delegate's decision record: first, because the delegate had relied in it on par 116(1)(a) of the Act, as well as on par 116(1)(b) of the Act; and, secondly, because the delegate had not identified in it any condition(s) which he was satisfied Mr Nong had not complied with and, in any event, seems unlikely, for reasons which I have given in the next preceding paragraph, to have been satisfied that Mr Nong had not complied with condition 8202. 18 The MRT then concluded in effect that, as of 30 March 1999, the date on which the delegate had cancelled Mr Nong's visa, Mr Nong had not complied with condition 8202 and that, since he had not complied with that condition at that time, cancellation of his visa by the delegate had been mandatory. In so concluding, the MRT necessarily proceeded on the basis that par 2.43(2)(b) of the Regulations had been applicable to Mr Nong on 30 March 1999. Taking that view, it also inevitably took the view that the version of condition 8202 which had been applicable to Mr Nong on 30 March 1999 was that which had commenced on 1 December 1998, at the same time as par 2.43(2)(b) of the Regulations had commenced. 19 So far as Mr Nong's non-compliance as of 30 March 1999 with condition 8202 was concerned, the evidence to which the MRT referred in its statement of findings and reasons included two letters from Mr Nong's education provider, one dated 5 August 1999 and one dated 29 November 1999. The earlier of those two letters had stated that Mr Nong's attendance before 12 April 1999 had been "unsatisfactory" (but "satisfactory … at 83.09%" since). The later of those two letters stated that Mr Nong's attendance before 12 April 1999 had been nil (but "92%" since and his "overall performance" had been "good"). 20 (It is, incidentally, not easy to reconcile the statement in the later of those two letters from Mr Nong's education provider about his attendance before 12 April 1999 with a letter from it to the Department dated 31 March 1999, which letter is in the bundle of relevant documents before the Court. According to that letter, to which the MRT did not refer in its statement of findings and reasons, Mr Nong had "[e]nrolled on 11 January 1999[,] with [a] 52% attendance record up to mid February 1999. The student has not been seen since". Perhaps the reconciliation may be found in the fact that the letter of 29 November 1999 was responding to a request for information which is not before the Court. It may be that that request had been for information about Mr Nong's attendance, not from 11 January 1999, but from some date no earlier than mid-February 1999.) 21 One does not find in the MRT's statement of findings and reasons any discussion of which paragraph(s) of condition 8202 it considered Mr Nong had not complied with as of 30 March 1999. Instead, one finds the MRT identifying, as "[t]he only issue for the review", "whether or not the applicant satisfied course requirements" ([2000] MRTA 55, [22]). (In so saying, the MRT was, of course, using the terminology of the pre-1 December 1998 version of condition 8202, in spite of its proceeding on the basis that it was the post-1 December 1998 version of condition 8202 which had been applicable to Mr Nong on 30 March 1999. However, nothing appears to me to turn for present purposes on its use of that confusing terminology.) Then, having identified what it considered to be "[t]he only issue for the review", the MRT continued, "[23] With this question in mind it is worth noting some … remarks of the relevant Procedures Advice Manual [issued by the Department] dealing with condition 8202. 12.3.4 As a general rule: (a) while a student retains student status they are considered to be complying with this condition unless there is clear evidence to the contrary; (b) a student who has withdrawn from their original course and transferred to another course may be regarded as having continued to satisfy course requirements if they were up to date with their studies at time of withdrawal; (c) students completing a course that finishes at the end of the standard academic year (i.e. a course approximately 40 weeks in duration) and who have been accepted into a course commencing at the beginning of the following academic year (i.e. approximately three months after the previous course finishes) are considered to be complying with this condition; (d) students completing a course that finishes during the standard academic year may be considered to be complying with this condition provided no more than one month elapses before they begin another course; (e) students completing their course ahead of schedule ('accelerated course completion') are subject to the one month provision described in (d) above. Officers assessing such cases should note, however, that under policy students who have accelerated course completion up to one month ahead of the course's scheduled completion date at the end of the academic year should be considered as complying with this condition. 12.3.5 Any student whom DIMA officers suspect is not complying with this condition should be interviewed and the following considered: The student's reason(s) for not abiding by the standards or conditions of the education provider. Failure to pass a course does not in itself mean that the student is not complying with this condition. However, reasons for failure should be investigated as failure may be an indication that the student's attendance record has not been satisfactory; Whether the circumstances were reasonably beyond the student's control (e.g. absence or failure due to illness or non-elective surgery); Whether the student is able to provide evidence in support of these circumstances (e.g. medical certificates); and Whether the student has decided to leave Australia or has enrolled with another education provider or for another course and would meet legislative requirements to be granted a visa 560. [24] I have found no evidence which suggests that the delegate has not properly followed the PAM detailed above or that the PAM is irrelevant to the applicant. The applicant agreed at hearing that he did not attend his course prior to 12 April 1999…. I find that the applicant breached condition[ ] 8202. The Tribunal no longer has discretion in this matter. The applicant's visa was appropriately cancelled." 22 Before me, Mr Nong challenged the MRT's decision on a number of grounds. 23 The first ground was that the MRT had proceeded on the basis that par 2.43(2)(b) of the Regulations and the post-1 December 1998 version of condition 8202 were applicable to Mr Nong on 30 March 1999, when all that had been applicable to him on that date had been the pre-1 December 1998 version of condition 8202, which condition, if not complied with by him, gave rise to a discretion, rather than a duty, to cancel his visa. 24 The foundation of that ground of challenge was that the visa label affixed to Mr Nong's passport on or about 3 February 1999 did not evidence the granting to Mr Nong of a new visa on 3 February 1999, but rather evidenced the extending of a visa which had been granted to him earlier, before 1 December 1998. That being the case, neither par 2.43(2)(b) of the Regulations nor the post-1 December 1998 version of condition 8202 could be applicable to him on 30 March 1999. In support of his submission that neither par 2.43(2)(b) of the Regulations nor the post-1 December 1998 version of condition 8202 could be applicable on 30 March 1999 to someone whose visa had been granted before 1 December 1998, Mr Nong relied on Pradhan v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 91 (Gyles J). 25 If I accepted that Mr Nong's submission were correct that the visa label affixed to Mr Nong's passport on or about 3 February 1999 did not evidence the granting to him of a new visa on 3 February 1999, but rather evidenced the extending of a visa granted to him earlier, before 1 December 1998, then I would also accept his submission, based on Pradhan, that neither par 2.43(2)(b) of the Regulations nor the post-1 December 1998 version of condition 8202 were applicable to him on 30 March 1999. However, I do not accept the first of those submissions. It is inconsistent with the provisions of the Act. 26 The Act provides for the grant of visas either to travel to and enter Australia or to remain in Australia or both (subs 29(1) of the Act). Visas to remain in Australia (whether also visas to travel to and enter Australia) may be visas to remain until a specified date (par 30(2)(a) and s 28 of the Act). Such visas cease to be in effect on the specified date (subs 82(7) of the Act). The period beginning when a visa is granted and ending when the visa ceases to be in effect is called the "visa period" (subs 5(1) of the Act, definition of "visa period"). Subsection 68(3) of the Act provides that "[a] visa can only be in effect during the visa period for the visa" (my emphasis). No provision is made generally in the Act for the extension of the visa period of a visa to remain in Australia. The only exception to that omission is in the case of that class of visas called temporary safe haven visas. Uniquely in the case of that class of visa, subs 37A(2) of the Act provides, "The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice". 27 Given the provisions of the Act to which I have just referred, I reject Mr Nong's submission that, on 30 March 1999, he did not hold a visa granted on 3 February 1999, but rather held one which had been granted earlier, before 1 December 1998, and then extended on 3 February 1999. That being the case, I hold that the MRT was correct to proceed on the basis that par 2.43(2)(b) of the Regulations and the post-1 December 1998 version of condition 8202 were applicable to Mr Nong on 30 March 1999. 28 Against the prospect that I might hold as I have just done, Mr Nong made an alternative submission based on the application to him after 1 December 1998 of par 2.43(2)(b) of the Regulations and the post-1 December 1998 version of condition 8202. 29 As I understood the submission, at least in the form in which it appeared in Mr Nong's written outline of submissions filed in advance of the hearing before me, it was that the MRT had erred in not concluding that, on 6 January 2000, the date of its decision, Mr Nong was in compliance with condition 8202. 30 That submission may be dealt with quite briefly. 31 The MRT was not concerned, in making its decision, with the issue whether Mr Nong was or was not in compliance with condition 8202 on 6 January 2000, the date of its own decision. Rather, it was concerned with the issue whether Mr Nong had or had not been in compliance with condition 8202 on 30 March 1999, the date of the delegate's decision: see, for example, the discussion of the nature of the review function of the MRT's predecessor in Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 (Weinberg J) at 524-26, [61]-[63]. 32 However, on the basis that the issue for the MRT was whether Mr Nong had been in non-compliance with condition 8202 on 30 March 1999, the date of the delegate's decision, I raised with the parties during the hearing before me a question as to the manner in which the MRT had dealt with that issue. 33 It is convenient, for the purpose of discussing that question, to set out again the terms of the post 1-December 1998 version of condition 8202: "8202 The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." 34 I have already set out the totality of the MRT's reasoning on the issue of Mr Nong's non-compliance with condition 8202 on 30 March 1999 (see, in particular, its [24], set out in [21] above). I am myself comfortably satisfied that the MRT was itself not satisfied that, on 30 March 1999, Mr Nong had not been in compliance either with the requirement that he be enrolled in a registered course or with the requirement that he comply with any requirement of the education provider in relation to payment of fees for the course (see pars (a) and (d) respectively of condition 8202). At the hearing before me, the Minister accepted that that was a correct analysis of the MRT's statement of findings and reasons. 35 At the same time, I am myself comfortably satisfied that the MRT was itself satisfied that, on 30 March 1999, Mr Nong had not been in compliance with the requirement that he "attend at least 80% of the classes and tutorials scheduled for the course" (see par (b) of condition 8202). Again, at the hearing before me, the Minister accepted that that was a correct analysis of the MRT's statement of findings and reasons. 36 On what basis was the MRT so satisfied? The answer can only be that the MRT construed the requirement to "attend at least 80% of the classes and tutorials scheduled for the course" as a requirement that, at any point in time during the currency of one's course, the student must have attended at least eighty percent of the classes and tutorials thus far held in it. Yet again, at the hearing before me, the Minister accepted that that was a correct analysis of the MRT's statement of findings and reasons. 37 The question which I raised with the parties during the hearing before me as to the manner in which the MRT had dealt with the issue whether Mr Nong had been in non-compliance with condition 8202 on 30 March 1999, the date of the delegate's decision, was whether the construction of par (b) of condition 8202 on which the MRT had obviously proceeded had been correct. 38 The first thing to be said in that respect is that a construction of par (b) of condition 8202 which contemplates an examination of the student's attendance in the registered course in which he or she is enrolled only when that course has concluded appears to me to give effect to the ordinary meaning of the words of the paragraph, particularly to the requirement that a student attend a certain percentage of the classes and tutorials scheduled "for the course". (One may contrast in that respect condition 8105, which, by its language, requires a week by week examination of the student's conduct so far as engaging in work is concerned.) 39 The next thing to be said in that respect is that the giving to par (b) of condition 8202 of a construction which accords with what I consider to be its ordinary meaning appears to me to be supported by par (c) of condition 8202. Satisfaction by a student of par (c) of condition 8202 is plainly intended as an alternative to satisfaction by the student of par (b) of condition 8202. Paragraph (c) of condition 8202 is satisfied if the student has achieved an academic result "for the course" which is at least satisfactory. As the achievement of such an academic result for the course usually will not be known until the course has concluded, it will not be available to the student in the usual case as an alternative to the attending of at least 80% of the classes and tutorials scheduled for the course unless such attendance is also not considered until the course has concluded. 40 To the possible construction of par (b) of condition 8202 to which I have referred above, the Minister has put a number of matters in opposition. Before, however, turning to those, I mention that one matter which the Minister did not put in opposition to that construction was that the ordinary meaning of the words of par (b) of condition 8202 was different from that to which I have referred above. Instead, the Minister relied primarily on a submission that if par (b) of condition 8202 were to be given the construction to which I have referred above, that would deprive par (b) of condition 8202 of all utility, since non-compliance with it could not found the cancellation of a student visa during a student's course. The Minister also submitted that par (c) of condition 8202 should not be used for the purpose of construing par (b) of condition 8202 in the manner to which I have referred above, again since that would deprive par (b) of condition 8202 of all utility. Instead, par (b) of condition 8202 should be interpreted as the MRT had plainly done in the present case, that is, as a requirement that, at any point in time during the currency of one's course, the student must have attended at least eighty percent of the classes and tutorials thus far held in it. 41 I agree that, if the construction of par (b) of condition 8202 which I favour would deprive it of all utility, that would obviously be an almost insuperable obstacle to my construing it in accordance with its ordinary meaning. However, I do not accept that the construction of par (b) of condition 8202 which I favour would deprive it of all utility. Even if non-compliance with it would not found the cancellation of a student visa during a student's course, non-compliance with it could nevertheless provide a justification for refusing to grant to the visa holder any subsequent student visa for which the holder applied: see cl 560.213 of Sch 2 to the Regulations. I add that I find nothing startling in the notion that non-compliance with par (b) of condition 8202 will not found the cancellation of a student visa during a student's course, since it appears to me that non-compliance with par (c) of condition 8202 will not do so in the usual case either. (On the other hand, non-compliance with pars (a) and (d) of condition 8202 will found the cancellation of a student visa during a student's course, thus ensuring that par 2.43(2)(b) of the Regulations has some work to do). 42 It should be noted that if the construction of par (b) of condition 8202 for which the Minister contended before me were correct, that would mean that if a student were ill for his or her very first class or tutorial in a registered course in which he or she was enrolled, which course had scheduled at least five classes or tutorials, then his or her visa would be required to be cancelled if his or her failure to attend that class or tutorial then came to the notice of the Minister (or one of his delegates with appropriate powers), even if the class or tutorial were the first of hundreds scheduled. The Minister acknowledged that consequence in his submissions before me, but submitted that "any view as to the harshness of that consequence ought not to prevent the Condition from being applied as it was by the Tribunal". Speaking for myself, I would regard that consequence as a harsh one indeed, especially since, in the usual case, the student concerned will have expended a very considerable sum of money both to travel to Australia for the purpose of studying and to enrol in a course. 43 While it is accepted that a statutory provision may be given a construction which does not accord with its ordinary meaning when to give it a construction which does accord with its ordinary meaning would lead to harsh consequences (see, generally, McHugh J (with whom Toohey J agreed) in Saraswati v The Queen (1991) 172 CLR 1 at 21-23), the present is not a case in which to give to the relevant provision a construction which accords with its ordinary meaning would lead to harsh consequences; rather, the present is a case in which to give to the relevant provision a construction which does not accord with its ordinary meaning would lead to harsh consequences. That to give to the relevant provision a construction which does not accord with its ordinary meaning would lead to harsh consequences appears to me to be a powerful reason to give to the relevant provision a construction which does accord with its ordinary meaning. 44 For the reasons which I have set out above, I consider that on balance I should give to par (b) of condition 8202 a construction which accords with what I consider to be its ordinary meaning, as opposed to the meaning contended for by the Minister. 45 (I should perhaps add here that I have examined the statement issued by the authority of the Minister at the time of the enactment of the amending Regulations, which statement was said to be explanatory of the amending Regulations. It is of no assistance on the construction of any paragraph of condition 8202, merely repeating in substance the terms of the condition.) 46 On the assumption that I might reject his submission that par (b) of condition 8202 "should be applied in a progressive fashion", the Minister submitted in the alternative, "… that condition 8202(b) can be breached when a point is reached at which it is no longer possible for the student to attend 'at least 80% of the classes and tutorials scheduled for the course….'. That may still be prior to what would otherwise be the end of the course." At the same time, however, he acknowledged that if that were the correct construction of the provision, then "it would not save the decision under review". 47 Given that construing par (b) of condition 8202 in the manner alternatively contended for by the Minister would have no impact on the outcome of the present case, I do not consider it appropriate to express a concluded view on that alternative construction. However, I should point out that I do see a difficulty with it, because it would have the effect of denying to a student in the usual case the alternative means of satisfaction of condition 8202 which is prima facie made available to the student by par (c) thereof. 48 In the result and while recognising that the matter is not free from all difficulty, I conclude that the MRT erred in the construction which it gave in Mr Nong's case to par (b) of condition 8202. I will therefore set its decision aside and refer to it for further consideration the matter of the cancellation of Mr Nong's student visa. 49 The only remaining matter with which I must deal is that of the costs of the present proceeding. On that issue, the Minister's submission was, in effect, that, because the constructional error by the MRT which I have held to have occurred was not identified in the first instance by Mr Nong, each party to the proceeding should pay his own costs. I am persuaded by that submission that I should depart from the usual rule that costs follow the event, especially since I have rejected the correctness of the other matters on which Mr Nong did rely in the first instance before me. I will therefore make no order as to the costs of the proceeding. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.