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.