Shek v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant was born in Hong Kong and is the holder of a United Kingdom passport. On 29 October 2003, the applicant was granted a Student (Temporary) Subclass 572 visa ('the student visa'). Prior to that date the applicant held a Student (Temporary) Subclass 573 visa. On 8 January 2004, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the delegate') cancelled the applicant's student visa under s 116 of the Migration Act 1958 (Cth) ('the Act') on the grounds that the applicant had breached a condition of his visa. 2 The delegate found that the applicant breached Condition 8202 which had been incorporated as a condition into his student visa. The condition prescribed a minimum level of attendance at classes in his course of study. Condition 8202(3)(a)(ii) of Sched 8 of the Migration Regulations 1994 ('the Regulations') sets out the circumstances in which a student visa holder in the applicant's position meets the requirements of that condition. 3 The applicant applied to the Migration Review Tribunal ('the Tribunal') to review the delegate's decision. On 1 November 2004, the Tribunal affirmed the decision of the delegate to cancel the applicant's student visa. The applicant now seeks judicial review of the decision of the Tribunal. 4 For the reasons which I set out below the application for review should be dismissed. 5 In accordance with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, I join the Migration Review Tribunal as the second respondent. Statutory background 6 Section 116 of the Act provides: '(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; (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. (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.' 7 Regulation 2.43(2)(b) of the Regulations prescribes a breach of Condition 8202 as a prescribed circumstance for the purpose of s 116(3) of the Act. Condition 8202 provides as follows: '8202 (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.' Factual background 8 In 2003, the applicant was initially enrolled in a Diploma of Business course at the Curtin International College, which was referred to as the IBC ('the IBC'), in Perth. However, later in that year, during a mid semester break, the IBC closed down and the applicant was required to transfer to the Alexander Education Group ('the College') to complete his course. At the College the applicant enrolled in a Diploma of Business course with the College's School of Business for the second term of semester 2 of 2003. The term commenced on 7 October 2003. According to the applicant's academic record from the College, the applicant was enrolled in the following five subjects at the College during the second term of semester 2 of 2003: 'Unit Unit Title IACC1 Accounting 1 IBLW1 Business Law IBLW2 Company Law ICOM1 Computing 1 IECO Economics' 9 The evidence shows that the Economics unit referred to above is also known as Economics and Project 2. 10 On 9 December 2003, the College issued the applicant with a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) ('the s 20 Notice') advising that he had breached a condition of his student visa relating to attendance in the course in which he was enrolled. The notice gave particulars of the breach as: 'Unsatisfactory attendance of 46% between 07/10/2003 and 28/11/2003.' 11 The s 20 Notice also stated that the applicant's student visa would be cancelled on the 28th day after the date of the notice unless he attended at the office of the Department of Immigration & Multicultural & Indigenous Affairs ('the Department') in Perth to explain the breach of the condition. 12 On 15 December 2003, the College issued a Certificate of Attendance certifying that the applicant's attendance between 7 October 2003 and 28 November 2003 was 52 per cent and was characterised as 'unsatisfactory'. 13 The applicant reported to the Department's office in Perth on 5 January 2004 and he was given a Notice of Intention to Consider Cancellation of his student visa. The notice identified the possible grounds for cancellation as: 'Student reported by educational provider for unsatisfactory attendance. 46% - between 7/10/03‑28/11/03. Breached condition 8202.' 14 The notice also stated that the applicant was invited to provide his comments at an interview to be held on 8 January 2004. 15 The applicant attended the interview on 8 January 2004 and immediately following the interview, the delegate cancelled the applicant's student visa for the following reason: 'Breached condition 8202 - unsatisfactory attendance.' Proceedings before the Tribunal 16 The applicant lodged his application for review of the delegate's decision with the Tribunal on 19 January 2004. 17 The Tribunal sent the applicant a letter dated 23 April 2004 seeking the applicant's comment on the Certificate of Attendance from the College dated 15 December 2004 which certified the applicant's attendance record of 52 per cent between 7 October 2003 and 28 November 2003 as unsatisfactory. The applicant responded to this invitation by a letter dated 28 April 2004. The letter stated materially: '…The sole reason that I was transferred to Alexander College was because IBC was forced to close down due to some unclarified circumstances. …I did not mind being transferred to Alexander College to continue my studies, however, I have taken the effort to make an appointment with the student counsellor at the new academic institution to check on the course structure that I will be enrolled to in order to make sure that my academic life is on the right track. During my consultation with the counsellor, I was told that I will be enrolled to its' Diploma of Business Studies course, which was the same course I was undertaking in IBC. However, due to IBC being closed during my course's mid‑semester period, I was told by the counsellor that initially I would be undertaking a "continuation course" instead of the academic institution's standard course. This 'continuation course', as explained by the counsellor, is actually a half semester course, which will continue on the course as set by IBC. …the counsellor has told me that I am able to drop the units that I have passed during my terms with IBC during the "continuation course" period if I like. However, I was not informed on how to drop these units officially. Therefore I have not been attending academic activities in relation to these units by taking that the counsellor had make [sic] the necessary arrangement in assisting me in dropping these units. The units that I have dropped are Accounting, Project 2 and Computing units of the "continuation course". In between 7th of October and 28th of November 2003, I am required to have an attendance level of 47 lessons, which according [to] the structure of the "continuation course" consists of 39 lessons of 4 hours long and 8 lessons of 1 hour long. According [to] the Certificate of Attendance as presented to me by authorities of Alexander College, during my "continuation course" period I have only achieved 52% of the required attendance level. However by taking in the units that I have dropped into account, 41.48% of absence level was recorded was due to the units that I have dropped. This is because Accounting is consists of a 4 hours long lesson, Project 2 is consists of an hour long lesson and Computing is consists of a 4 hour long lesson. During the "continuation course", I was not aware that these units are not officially dropped and were still taken into account for my attendance level. …'