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[2002] FCA 1607
Federal Court of Australia
2002-12-20
Hill J
Original judgment source is linked above.
The Applicant's Submissions 27 For the applicant it was submitted that as at the date of cancellation of the visa, namely 14 February 2000, the visa could only be validly cancelled if the applicant had not achieved the 80% attendance rate for the course as contemplated by condition 8202. However, to determine whether the 80% attendance rate was satisfied it would be necessary to know matters such as the distribution of hours of attendance of the course throughout the whole period of the course. However, the Tribunal made no findings such as would enable it to conclude, consistently with the decision of Katz J in Nong whether the applicant had breached condition 8202(b). In particular, it was submitted, that merely to know the percentage figure of class attendance up to the date of cancellation of the visa without more, told nothing as to whether the 80% attendance condition was or was not satisfied. Further, it was submitted, that despite the provisions of s 474 of the Act, the Court was not precluded from determining the matter under s 39B of the Judiciary Act either because the application to the Tribunal had been remitted to it by the full Court (no explanation why this was so was given) or because the Tribunal's decision was based on an incorrect answer to the legal issue posed by s 116 of the Act or because that section imposed inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal which were transgressed by the Tribunal in reaching its decision.
The Respondent's Submissions 28 On behalf of the Minister it was submitted that the Tribunal's findings of fact were adequate to permit it to conclude that the applicant was in breach of the 80% attendance condition. Further it was submitted that this Court was precluded by s 474 of the Act from exercising the jurisdiction under s 39B of the Judiciary Act and, whether or not an error had been made by the Tribunal, this Court had no jurisdiction.
Whether the Tribunal made a Jurisdictional or other Error 29 As noted, the applicant relied upon the decision of Katz J in Nong as the starting point for his submission. That case involved condition 8202 in its form prior to the enactment of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) when it was in substantially the same form as that applicable to the present case. Katz J held that the 80% attendance requirement in the condition could only, in the circumstances of that case, be determined at the conclusion of the relevant course, because, unless and until the course was completed, it would not be possible to know whether a student had attended or could be regarded as essentially having attended at least 80% of the classes. His Honour left open the question whether a failure to attend 80% of the classes for a course could possibly be calculated in other circumstances before the course had been completed, especially, if at the time the calculation was required to be made, a point had been reached where it was no longer possible for the visa holder to achieve an 80% attendance rate for the course. It was unnecessary for his Honour to express an opinion other than with respect to the circumstances before him and his Honour did not do so. 30 The Minister appealed from the decision of Katz J to a full Court of this Court. The appeal was however discontinued. 31 In Zou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1126I followed the decision of Katz J in Nong, although the substantial matter for decision in that case was whether the subsequent form of condition 8202 which had been introduced in 2000 to overcome the decision in Nong, applied with retrospective affect in the circumstances of that case. That is not a matter at issue in the present case. 32 With respect to Katz J, the point made by his Honour in Nong is an obvious one. Generally, it will be impossible to know whether the holder of a visa had attended at least 80% of the classes and tutorials scheduled for a course when the calculation is made part of the way through the course and the course has not yet been completed. Depending on the factual circumstances an applicant might have completed only a small percentage of classes in one proportion of the course but still, in the remainder of the period until the course is completed, be able to attend sufficient classes so that overall the 80% attendance condition will be satisfied. However, it is likewise the case, particularly where the matter has to be tested near the end of the course, that the attendance up to the time the matter is tested may be so poor that there would be no possibility that the applicant could satisfy the 80% attendance rate test. It would seem to me absurd if an interpretation were given to condition 8202 that in every case the matter could only be tested at the end of the course. This is particularly the case where the visa is likely to extend only until the end of the course or some few days thereafter as will usually be the case where the visa has been granted to enable the student to complete the course. I am of the view that condition 8202 should be interpreted so that, if at the time the decision to cancel the visas is made, it would be impossible for the student in the time remaining until the course is completed to satisfy the overall 80% attendance rate, then the condition will not be satisfied. 33 I do not understand Counsel for the applicant to submit otherwise. The submission made for the applicant is a different one. In essence, it is submitted that where the decision is made part way through a course, the Tribunal on review of the decision must find the facts necessary to enable it to conclude that, irrespective of attendance by the applicant for the balance of the course, the 80% attendance requirement could not be satisfied. In the present case it is said that the Tribunal would need to find the total number of hours of classes and tutorials for the course and the number of hours of classes and tutorials which had been conducted up to the point at which the calculation was sought to be made. It was said that without that information, a percentage figure for class attendance could not be arrived at. 34 By way of an example, it was said that if a number of hours in a course was ten hours per week for the first six months and fifty hours per week for the next six months, a finding that the student had attended only 40% for the first six months would not prevent the student achieving 80% attendance overall so long as the student attended 90% of the classes and tutorials for the next six months. 35 However, it was submitted that the Tribunal did not make the necessary findings here, notwithstanding that it was aware, if only because of the debate before the full Court of this Court in the transcript which was tendered to it, that it was to be submitted that there was no evidence on which the Tribunal could have concluded with certainty that the applicant could not have attended 80% of the classes for the overall course. 36 The Minister accepts the hypothetical example given above and the need, where the decision is to be made part way through a course, that it be possible with certainty to conclude that, irrespective of subsequent potential attendances, the applicant could not satisfy the 80% attendance requirement. However, it is submitted on behalf of the Minister that the Tribunal had found that the Kent Institute had cancelled the applicant's enrolment as at 10 December 1999. Alternatively, it was submitted that this was the case having regard to a letter from the Kent Institute to the Tribunal reproduced in the Court papers which stated that the applicant's enrolment in the course had been cancelled on 10 December 1999. That is the significance of the date 10 December 1999 to which the Tribunal referred in its reasons. 37 There is no specific finding by the Tribunal in terms that the applicant's enrolment was cancelled as at 10 December 1999. It certainly is true that the Tribunal does refer to that date without explanation or discussion. It seems likely that the failure of the Tribunal to explain the relevance of the date 10 December 1999 was inadvertent. There is no explanation for that date other than that it must be relevant to the Tribunal's calculations. So, for example, the Tribunal accepted that the attendance between 2 August 1999 and 10 December 1999 was 9.5% and that this was a relevant figure in showing attendance to be under the 80% mark. Likewise the finding that the overall attendance for the course was 46% in the period from 23 June 1997 until 10 December 1999 (again a percentage under 80%), could only be predicated upon the finding that the course had terminated by 10 December 1999. That this in fact is the case is made clear only when one takes into account the letter from the Kent Institute reproduced in the Court book, which shows that it was received by the Tribunal on 7 March 2002. 38 The Court should not approach a decision of the Tribunal with a mind attuned to error. Further decisions of the Tribunal should be given, where possible, a benevolent construction. Error should not be assumed. 39 I am, on the other hand concerned whether I should take into account material reproduced in the Court book but not directly referred to in the Tribunal's reasons unless there is agreement of the parties that I do so. However, not without some doubt, the present is a case where it is, in my view, appropriate to read the Tribunal's judgment having regard to the material which clearly was before it and which has been reproduced in the papers presented to the Court, particularly where the document in question bears the Tribunal's date stamp, that being a date before the hearing by the Tribunal and where it is that other material in the letter has been referred to by the Tribunal. 40 It follows in my view that the applicant's submission should not be accepted and in consequence that the applicant has not demonstrated an error of a kind which would entitle him to relief under s 39B of the Judiciary Act. 41 The question whether the Court is entitled to grant relief under s 39B of the Judiciary Act having regard to the provisions of s 474(1) of the Act accordingly does not arise. I will therefore dismiss the application with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.
Associate: Dated: 20 December 2002 Counsel for the Applicant: J Young
Shrestha
Minister for Immigration & Multicultural & Indigenous Affairs
The Background Facts and Previous Proceedings 2 The applicant is a citizen of Nepal who first entered Australia as a student on a Student (Temporary) (Class TU), subclass 560 visa granted to him on 28 May 1997 and which expired on 9 July 1999 upon the grant to him of a further subclass 560 visa while he was in Australia. That further visa was due to expire on 2 September 2000. The visa was subject to condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) ("Migration Regulations") which at the relevant time provided 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." 3 The initial visa granted to the applicant was based upon his enrolment in a Diploma in Information Technology course at the Kent Institute of Business and Technology. That course commenced on 23 June 1997 and ended on 21 June 1999. 4 The applicant was unable to complete all the subjects for the diploma and was required to re-enrol in the course on 8 July 1999 but with advanced standing. His re-enrolment was for the course which commenced on 2 August 1999 and was scheduled to be completed on 2 August 2000. The second student visa issued to him was issued for the purpose of enabling him to pursue his re-enrolment. 5 On 10 December 1999 the Kent Institute notified the Immigration Department that the applicant had failed to meet course requirements and complete the course in which he had re-enrolled. On 7 January 2000 the applicant was sent, by the Department for Immigration and Multicultural and Indigenous Affairs, a notice advising him that it intended to cancel his visa, pursuant to s 116(1)(a) and (b) of the Act and asking him to provide written comments by 21 January 2000. 6 A migration agent replied on behalf of the applicant on 20 January 2000, claiming that the applicant's study had been affected by the sudden death of his father on 3 August 1999, and that the applicant was, in consequence, upset, could not eat properly and had insufficient sleep. In support of the claim a medical certificate was provided. The applicant's agent also submitted a letter from the Kent Institute which showed that he had attended classes at the rate of 82% for the period 23 June 1997 to 21 June 1999 and that he had successfully completed various courses as shown in a student results report also issued by the Kent Institute. 7 Notwithstanding the submissions, a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") proceeded to cancel the visa, purporting to act under s 116(1)(b) of the Act on the basis that the applicant had breached condition 8202. 8 The applicant appealed from the decision to the Tribunal which requested further information from the Kent Institute. In a letter dated 29 March 2000 the Institute stated that the applicant's attendance from 2 August 1999 to 10 December 1999 was 9.5%. The Tribunal also obtained further medical evidence about the applicant's medical condition. 9 Following a hearing the Tribunal affirmed the delegate's decision to cancel the visa on the basis that he had failed to meet the course requirements. The applicant applied to this Court for judicial review under the then provisions of the Act. The application came before Madgwick J who found that the Tribunal had erred in law in not considering whether the breach of condition 8202 was due to circumstances reasonably beyond the applicant's control. Notwithstanding that s 116(3) of the Act, when read together with Regulation 2.43(2)(b) of the Migration Regulations, suggested that breach of condition 8202 must lead without more to cancellation of a visa. His Honour was of the view that these provisions read in the light of the overall purposes of the Act and in particular s 116(1)(fa) had the consequence that mandatory cancellation was only a consequence where the visa holder was found not to be a genuine student. Where the applicant was a genuine student, the Minister, or on review, the Tribunal, had a discretion so that in deciding whether the visa holder had complied with condition 8202, the decision maker could consider whether any breach was due to misadventure or circumstances beyond the control of the former visa holder. 10 The Minister appealed to the full Court of this Court. 11 At the hearing however, Counsel for the applicant (the respondent in the appeal) indicated that he wished to file and press a notice of contention to the effect that the Tribunal had erred in that at the time the visa was cancelled the course for which the applicant was enrolled had not concluded, so that the Minister or Delegate could not have been able to determine at that time prior to completion of the course whether the applicant had or had not attended 80% of the classes for the overall course. For that contention Counsel for the applicant relied upon the decision of Katz J in Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257, [2000] FCA 1575. 12 Counsel for the Minister indicated that on the appeal the Minister wished to rely not only upon arguments that Madgwick J had misconstrued the legislation or that if he had not the requisite finding of fact which Madgwick J suggested had not been made, had in fact been made, but also that the applicant's enrolment in the course had been cancelled. Subsequent to that cancellation it seems that the applicant had commenced another course at a university which he was due to complete by the end of the academic year 2002. 13 It became obvious that these matters could not be dealt with on the appeal and that the appropriate course was that the appeal be allowed and the matter remitted to the Tribunal to decide afresh the application for review of the cancellation decision of 14 February 2000. Agreement was reached between the parties that orders to this effect be made and those orders were in fact made on 7 August 2001. In the consent, orders which were tended before me, the parties agreed that upon the matter being remitted to the Tribunal it would not be bound by the reasoning of Justice Madgwick in relation to the construction and or validity of condition 8202. Further the Minister agreed to supply to the Tribunal on remitter a transcript of the proceedings before the full Court. A copy of that transcript was likewise tended before me. The matter then came again before the Tribunal on 27 June 2002. At this re-hearing the Tribunal had no guidance from the full Court on the issue whether Justice Madgwick was correct on the question of interpretation. 14 At least potentially at the re-hearing two other issues had been foreshadowed in the transcript. The first was the question whether the circumstances of the case were such as to require the conclusion based upon the decision in Nong that the Minister was not authorised to cancel the visa on the grounds of non-compliance with condition 8202(b) ie the 80% attendance requirement but also, as contended by the Minister, that the visa could in any event be cancelled for non-compliance with condition 8202(a) that is to say, enrolment in the course on the grounds that that enrolment had been cancelled. 15 I say "potentially" in relation to these arguments because it is not clear from the Tribunal's reasons whether both these arguments were put to the Tribunal or whether the matters actually argued and dealt with by the Tribunal were confined firstly to the questions which had been raised by the decision of Justice Madgwick and secondly only to the question raised in Nong.
(2000) 106 FCR 257