Shang v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal against an order of a Federal Magistrate made on 31 July 2006 dismissing the appellant's application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) given on 24 October 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to cancel the appellant's Student (Temporary) (Class TU) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act) because of a breach by the appellant of condition 8202 which attached to that visa. 2 The appellant is a citizen of the People's Republic of China who was born on 21 December 1981 and who entered Australia on 25 April 2002 when he was the holder of a Subclass 573 (Higher Education Sector) visa which was valid until 22 August 2006. 3 On 13 March 2004 the appellant was granted a further Subclass 573 visa to which condition 8202 (meet course requirements) and other conditions, not relevant, attached. The visa was valid until 22 August 2006. 4 On 23 March 2005 the Macquarie University gave notice to the appellant under s 20 of the Education Services for Overseas Students Act 2000 (the ESOS Act) advising that he had breached a condition of his Student visa relating to satisfactory academic performance in the course in which he had been enrolled at Sydney Institute of Business and Technology (SIBT) at Macquarie University. The notice gave particulars of his attendance and academic progress. 5 The notice advised the appellant he had to report personally to a Compliance Officer at the Department or his visa would be cancelled on the 28th day after the date of the notice. 6 On 19 April 2005 the appellant attended at the Department and was issued with a notice of intention to consider cancellation pursuant to s 116 of the Act. The notice stated that a breach of condition 8202 may have occurred for failing to achieve satisfactory academic progress in 2004/2005. 7 The appellant was interviewed on 31 May 2005. On the same day the delegate decided to cancel the appellant's visa. The reasons given were: 'I am satisfied that Mr Shiang (sic) has breached visa condition 8202 by failing to meet course requirements with unsatisfactory academic progress during 2004/3. Therefore, student visa has been cancelled s116(1)(b) and s116(3) and reg 2.43(2). Mandatory cancellation applies.' 8 The appellant applied to the Tribunal on 6 June 2005 for a review of that decision. 9 On 11 May 2005 the appellant wrote a letter in support of his application. In that letter he said that he had encountered many difficulties in his study mainly because he had never encountered economic issues in his home country and therefore could not quite understand the basic concepts in economics. He said some of his teachers had problems in their teaching approach. He also said the design of the syllabus was a problem. He said that he did not sit for his final exam last time because he suffered from nerve pain in his ankle, kneecap and hip, such that he was unable to walk. He said he had received three conditional warnings that his failure rate should not be more than 50 per cent. His exams fell on Chinese New Year's Eve. He developed food poisoning and was unable to attend the examination. He sought a deferred examination which was granted but the notice of intention to cancel his visa was received in the meantime and he was excluded from enrolment. 10 The Tribunal wrote to the SIBT at which the appellant was enrolled as part of his Bachelor of Commerce-Accounting course. It asked SIBT to complete a form relating to the appellant's academic results for Semester 3, 2004. SIBT responded advising that the appellant had not maintained at least satisfactory academic results for that semester. 11 On 18 August 2005 the Tribunal sent a copy of SIBT's response to the appellant for comment in accordance with s 359A of the Act. He was invited to comment on the following information: 'On 16 August 2005, the Tribunal contacted your education provider, SIBT in relation to your academic results for Semester 3, 2004. As a result, SIBT certified that you did not achieve at least satisfactory academic results for Semester 3, 2004.' 12 He was further advised: 'This information is relevant to the review because it is a requirement of your visa that you comply with condition 8202. Condition 8202 requires that you achieve an academic result that is considered to be at least satisfactory by your education provider in each term or semester and that you attain an attendance record of at least 80% for the course or the term or semester if your course is structured in such a way. Failure to comply with condition 8202 shall lead to mandatory cancellation of your visa. If the Tribunal finds that you have not complied with condition 8202, it may have no option other than to affirm the cancellation of your visa.' 13 He was invited to reply within five working days and if he failed to comply the Tribunal might proceed in accordance with s 359C of the Act without taking any further action to obtain his comments. He did not respond. 14 The Tribunal concluded that the appellant had not complied with condition 8202. It said: '27. The review applicant's education provider, SIBT, has advised that the review applicant did not achieve an academic result which it considered to be at least satisfactory for Semester 3 of 2004. The review applicant has provided reasons as to why he achieved poor results whilst at SIBT. However, in relation to a cancellation pursuant to section 116 and regulation 2.43, the Tribunal's role is limited to determining whether there has been a breach of the condition. The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non-compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation (MIMA v Hou [2002] FCA 574; MIMA v Nguyen [2002] FCA 460). 28. The Tribunal finds that the review applicant breached condition 8202 in relation to academic results in Semester 3 of 2004. Given the finding of a relevant breach, the combined operation of subsection 116(3) and regulation 2.43 requires that the visa held by the review applicant be cancelled. The delegate's decision to this effect should be affirmed.' 15 The appellant applied to the Federal Magistrates Court for a review of that decision. The grounds of the application were: '1. In the matter of Wong v Minister for Immigration and Multicultural Affairs (2002) FMCA 127, Driver SM (sic) found that the Tribunal would be in error if it found that the principles in Shrestha could be applied so as to result in a residual discretion not to cancel a visa where the evidence was that condition 8202 had not been complied with. Although not central to the outcome in Wong v Minister for Immigration and Multicultural Affairs, the reasoning of Driver FM applies the decision of Minister for Immigration and Multicultural Affairs v Shang. 2. Submissions were made to Emmett J in Minister for Immigration and Multicultural Affairs v Nguyen in relation to the impact of the provisions of section 137L and the new automatic cancellation provision in Subdivision GB, these submissions should be given judicial support such that they could be applied by the Tribunal. 3. The mandatory nature of the cancellation power under section 116, as now confirmed by the Federal Court of Australia, when read in conjunction with the provisions of section 137L should lead to more favourable legislative provisions being available to those who do not report to the Department of Immigration and Multicultural and Indigenous Affairs in accordance with a notice issued under the Education Services for Overseas Student Act 2000 than those who do report to the Department of Immigration and Multicultural and Indigenous Affairs. 4. In light of judicial consideration of this issue, it is the applicant's view that the reasoning of Madgwick J in Shrestha's case should be applied to this application for review. 5. In the paragraph 25 of Findings and Reasons of the MRT decision, the Tribunal Member found that the applicant had a poor attendance rate in relation to his review and this poor attendance was a breach of visa condition 8202. As a matter of fact, attendance rate was not an issue in the review. The Tribunal has made an error in this finding and reached a decision which otherwise would not have been reached. 6. In the same paragraph, the Tribunal has made a finding that the applicant was doing Bachelor of Information Technology when his visa was cancelled. This finding is incorrect as the applicant was not a student of information technology. The Tribunal has made an error in this finding and reached a decision which would not otherwise been (sic) reached.' 16 The Federal Magistrate addressed the rather discursive grounds before him which he said did not identify any jurisdictional error on the part of the Tribunal. Scarlett FM dismissed the application. 17 The notice of appeal to this Court was in the following form: '1. The decision contains errors of law. 2. Grounds for argument have been identified and will submit to court in due course. 3. Legal representations are sought and will step in in due course.' 18 Shortly before the hearing, the appellant retained counsel who immediately before the hearing provided the Court with an outline of argument. The matter was adjourned for a short time to allow the respondent to consider the appellant's contentions and the matter then proceeded. 19 Before addressing the appellant's argument, it would be useful to set out the relevant legislation and subordinate legislation. At the relevant time, s 116 provided: 'Section 116. Power to cancel (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.' 20 It was argued by the appellant that s 116(3) of the Act was only enlivened if the Minister were satisfied that there had been a breach of condition 8202. 21 The grounds for cancellation of the visa are prescribed by reg 2.43 which also at the relevant time provided: 'Regulation 2.43. Grounds for cancellation of visa (Act, s.116) … (2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a 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: (i) condition 8104 or 8105 (if the condition applies to the visa); or (ii) condition 8202.' 22 Condition 8202 was, and is in the following form: '(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full-time course of study or training. (3) A holder meets the requirements of this subclause if: (a) 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) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term and semester of the course; and (b) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory; (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course. (4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training.' 23 It can be seen that if the Minister is satisfied that the visa holder has not complied with condition 8202 the Minister must cancel the visa holder's visa. It was contended, because of the provisions of condition 8202, that a visa holder could only comply with that condition if the visa holder complied with both paragraphs (2) and (3) of condition 8202: Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495; Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238. 24 The appellant contended that when the Minister was called upon to consider whether there had been a failure to comply with condition 8202 the Minister had to satisfy herself as to the whole of the condition. In those circumstances, the Minister had to address whether or not the appellant had complied with both paragraph (3)(a) and paragraph (3)(b) of condition 8202. It was submitted that in this case the Minister had only applied her mind to condition 8202(3)(b). Therefore, it was argued, the Minister had failed to address the right question, reg 2.43(2)(b) was not enlivened and therefore s 116(3) had no application. 25 It was conceded in argument that if the Minister had addressed paragraph (3)(a) of condition 8202, the Minister would still have found that there had been a failure to comply because of the appellant's failure to comply with condition 8202(3)(b). Nevertheless, it was submitted there was jurisdictional error because the Minister did not address each of the criteria attaching to the condition. 26 In my opinion, that argument must be rejected. It is true that to comply with condition 8202 a visa holder must comply with both conditions 8202(2) and (3). That is made clear by condition 8202(1). I also agree that the obligations imposed in condition 8202(3) are cumulative so that a visa holder must comply with both paragraphs (a) and (b). It follows, therefore, that if a visa holder does not comply with condition 8202(2) the visa holder will have failed to comply with the condition. It also follows that if the visa holder does not comply with paragraphs (a) or (b) of condition 8202(3) then, again, the visa holder, even if the visa holder has complied with condition 8202, will have failed to comply with condition 8202. 27 That does not, however, mean that before the Minister can be satisfied that there has been a failure to comply with condition 8202 the Minister must address all of the matters in condition 8202(2) and (3). It is enough if the Minister is satisfied that either condition 8202(2) has not been complied with or either of paragraphs (a) or (b) of condition 8202(3) have not been complied with. 28 If the Minister is satisfied that one of the three criteria has not been complied with, then that is enough for the Minister to be satisfied that the condition has not been complied with and therefore enliven reg 2.43(2)(b) requiring the Minister under s 116(3) to cancel the visa. 29 If the construction were as contended for by the appellant, it would mean that the Minister would need first to consider whether the holder met the requirements of subclause (2) of condition 8202. If the Minister were satisfied that the holder is not enrolled in a registered course, on the appellant's argument, the Minister would then have to consider the matters in subclause (3) of condition 8202. There would, however, be no education provider who could provide the information to the Minister in subclause (3)(a) or provide the certificate contemplated in subclause (3)(b) because the holder would not have been enrolled in a registered course. 30 That demonstrates, in my opinion, that there is no obligation of the kind contended for by the appellant resting upon the Minister. 31 Moreover, the inquiry which is being undertaken for the purpose of s 116 is not as to whether the Minister is satisfied that the visa holder has complied with any part of condition 8202 but only whether the Minister is satisfied that the visa holder has not complied with condition 8202. Because as the appellant contends all of the matters in condition 8202 are cumulative upon each other, the Minister can be satisfied that the visa holder has not complied with the condition when the Minister is satisfied that any one of the criteria has not been complied with. 32 In this case, the Tribunal satisfied itself that the appellant was in breach of condition 8202. That meant that because of the provisions of reg 2.43(2)(b), s 116(3) was enlivened. In those circumstances, the Minister was obliged to cancel the appellant's visa. 33 In this case, once the Minister was satisfied that paragraph (3)(b) of condition 8202 had not been complied with, the Minister was under statutory obligation to cancel the appellant's visa. In those circumstances, it cannot be said that the Tribunal's decision is wrong or that the Federal Magistrate erred in dismissing the application. 34 The appeal must be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.