Rajbhandari v The Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 Remitted from the High Court to this Court is an application for an order nisi for the issue of constitutional writs, certiorari and an injunction in relation to a decision of the Migration Review Tribunal dated 18 February 2003. 2 The application was not filed in the High Court until 7 April 2003 and thus was beyond the 35 day period fixed by s 486A of the Migration Act 1958 (Cth). This failure to observe the mandatory time limit will be fatal unless the applicant can establish that the decision of the Tribunal was not merely wrong but involved jurisdictional error. The Minister has filed a notice of objection to competency. 3 The applicant, a national of Nepal born in 1955, entered Australia in 1997. He was granted a student (temporary)(class TU) visa, subclass 560, valid until 9 December 1999. He was then granted a further visa which was due to expire on 15 March 2002. That visa was subject to condition 8202 which relevantly for present purposes provides as a condition of the visa that: "(a) … (b) … the holder is enrolled in a registered course; and (c) 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) … (ii) for a course that runs for at least a semester - for each term and semester of the course; and (d) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) … (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course." 4 The applicant studied for a Diploma of Business (International Trade) at the Victorian Business College until November 2001. By the end of that year he had on his own evidence passed four subjects and failed 34. Certificates from the College which were before the Tribunal indicated that for the periods 21 February to 1 July 2000 and 18 July to 25 November 2000 the applicant's attendance was satisfactory (above 80 per cent) but that for the periods 19 February to 14 July 2001 and 30 July to 4 December 2001 his attendance was less than satisfactory (less than 80 per cent). 5 On 6 December 2001 the College sent a notice to the applicant under s 20 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) asserting that he had breached a condition of his visa relating to attendance at the college. The particulars of the breach given were "very poor attendance and academic performance". 6 Section 137J of the Migration Act is in Pt 2 Div 3 Subdiv GB headed "Automatic cancellation of student visas". The effect of s 137J is that the visa is cancelled by force of the section at the end of the 28th day after a notice under s 20 of the ESOS Act unless in that period the holder complies with the notice or explains the breach. However, under s 137J the visa holder can apply for revocation of the cancellation. Under s 137L the Minister can revoke the cancellation if he or she is satisfied that the visa holder did not in fact breach the condition or that the breach was due to exceptional circumstances beyond the holder's control. 7 A delegate decided not to revoke the cancellation and that decision was affirmed by the Tribunal in the decision which is the subject of the present application. 8 Section 20(1) of the ESOS Act required the College to send to the applicant as an "accepted student" a written notice if he had breached a student visa condition relating to attendance or satisfactory academic performance. By subs (2) the College had to send the notice "as soon as practicable after the breach". By subs (4)(a) the notice must "contain particulars of the breach". 9 On the hearing of the application counsel for the applicant did not press some of the grounds stated in his written contentions of fact and law. He relied only on grounds relating to the s 20 notice (grounds which had not been put to the delegate or the Tribunal). First, he said the notice was invalid because as of its date the applicant was not "enrolled in a registered course" within the meaning of condition 8202, and was not an "accepted student" within the meaning of s 20(1) of the ESOS Act because the course had finished on the previous day, 5 December. Secondly, the notice had not been sent as soon as practicable. 10 As to the first ground, condition 8202 continues to apply for the term of the visa. The ordinary meaning of "enrolled" in this context connotes a relationship between student and education provider in relation to a particular course. The student does not cease to be "enrolled" merely because the particular series of lectures might have concluded. Usually an education provider will not be able to certify that academic result was satisfactory or otherwise, thereby discharging its own obligations, until the completion of some examination or other assessment. Of necessity, this will normally take place after lectures have concluded. 11 As to the second ground, since assessment is likely to be made at the conclusion of a course it does not seem to me that the delay between the conclusion of lectures on 5 December and the sending of the notice on 6 December failed to meet a requirement that it be sent "as soon as practicable". 12 In any event, the alleged defects plainly would not amount to jurisdictional error. On his own account, the applicant had failed to pass the great bulk of his subjects and thus had not achieved an academic result that was certified to be at least satisfactory: see Tian v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 238 at [55]. The Tribunal did not err in its jurisdictional finding that condition 8202 had been breached. 13 The objection to competency will be upheld and the application for an order nisi will be refused with costs.