Pradhan v Minister for Immigration & Multicultural Affairs

INTRODUCTION 1 The applicant is a citizen of Nepal. He arrived in Australia on 10 March 1995 having been granted a Student (Temporary) (Class TU) Subclass 560 visa until 20 March 1997. He enrolled in, and satisfactorily completed, a diploma course in Business Studies at Insearch Institute of Commerce, University of Technology, Sydney. He then enrolled at the University of Western Sydney, Nepean, undertaking a Bachelor of Commerce - Human Resource Management and Industrial Relations course. He started this course in July 1997 but changed the course in the first week of studies to a Bachelor of Commerce - Computing and Information Systems course. The applicant is a full fee paying student. A further visa of the same type was granted to the applicant on 15 April 1997, effective until 30 July 2000. 2 On 3 March 1999 the Department of Immigration and Multicultural Affairs ("the Department") advised the applicant of its intention to cancel his student visa. The applicant was interviewed by officers of the Department on 17 March 1999 and his visa was cancelled on that day. The applicant then applied to the Immigration Review Tribunal ("the IRT"), as it was then called, to review the decision of the Minister's delegate. The IRT decided, on 26 May 1999, to affirm the decision under review. The applicant then made an application to this Court to review the decision of the IRT.

ISSUES 3 The delegate based her decision to cancel the applicant's visa on the applicant's failure to comply with condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) ("the Regulations"). Prior to 1 December 1998, and at the time the applicant was granted a student visa, condition 8202 read as follows: "8202 The holder must satisfy course requirements." On 1 December 1998 a new form of condition 8202 was substituted to read as follows: "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." 4 At all material times, s 116 of the Migration Act 1958 (Cth) ("the Act") included the following provisions: "116 (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (b) its holder has not complied with a condition of the visa; or … (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled." 5 In the same instrument as substituted the new form of condition 8202, a new subreg 2.43(2) was substituted in the Regulations so as to read: "For subsection 116(3) of the Act, the circumstances in which the Minister must cancel are visa are: … (b) in the case of a Student (Temporary) (Class TU) visa - that the Minister is satisfied that the visa holder has not complied with condition 8202." 6 The notice of intention to cancel a visa which the Department sent to the applicant referred to cancellation under either paragraph 116(1)(a) or (b) of the Act, and the record of decision makes it clear that the delegate proceeded on the basis of the new form of condition 8202. Interestingly, however, a departmental document which forms part of the evidence, and sets out visa conditions, assumes that the earlier form of 8202 applies to visas applied for before 1 December 1998 and that the later form only applies to visas applied for on or after that date. 7 The decision of the IRT, however, proceeded upon the footing that the old form of condition 8202 was applicable, but that the new subreg 2.43(2)(b) was applicable. The IRT also made a puzzling reference to s 116(1)(g) which is undoubtedly an error in construing the legislation but which does not seem to have any real consequence. 8 The applicant attacks the IRT's application of subreg 2.43(2)(b), and the respondent attacks the application of the old form of condition 8202.