Tian v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a judge of this Court dismissing an application by the appellant for the issue of the constitutional writs in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 2 April 2003. 2 The appellant was born on 3 November 1983 and is a citizen of China where her parents live. The appellant first entered Australia on 17 May 2001 on a Student (Temporary) (Class TU) Visa, Subclass 560, which had been granted on 11 April 2001. The visa was current until 15 March 2002. She became a student at the Danebank Anglican School for Girls (Danebank) in Sydney. 3 The appellant next applied for a Subclass 571 visa which issued on 17 April 2002 and had effect, subject to cancellation, until 15 March 2003. A Subclass 571 visa is also a Student visa. Attached to that visa was Condition 8202. 4 At the time the visa issued on 17 April 2002, Condition 8202 was in the following form: '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 meed 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 an 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.' 5 Section 116 of the Migration Act 1958 (Cth) (the Act) obliges a visa holder to comply with all conditions attaching to that person's visa. It relevantly provides: '116 (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.' 6 Regulation 2.43(2) of the Migration Regulations 1994 (Cth) provides for the circumstances in which the Minister must cancel a visa under subsection 116(3) of the Act. It provides: '(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: (a) each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and (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.' 7 It was the respondent's contention that, if the Minister was satisfied that the appellant had not complied with Condition 8202, the Minister was obliged to cancel the appellant's Student visa. 8 The Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) is a Commonwealth Act regulating education services for overseas students. It does so by providing a system of registration for approved providers who, when registered, become registered providers. It regulates the conduct of those registered providers. Part 3 of the ESOS Act provides for obligations with which a registered provider must comply. Section 19(2) of the ESOS Act provides: '(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.' 9 Danebank is a registered provider and, therefore, liable to action by the Minister if Danebank does not comply with s 19(2). 10 The powers given to the Minister include the power to impose sanctions or conditions on the registered provider: ss 83, 86 of the ESOS Act. 11 On 23 August 2002 the Department of Education, Science and Training (DEST) wrote to Danebank and all other education and training providers registered under the ESOS Act for overseas students reminding them of their obligations under s 19(2) of the ESOS Act and pointing out the consequences if those obligations were not complied with. 12 Section 20 of the ESOS Act provides: '20 (1)A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance. Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104. Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108. (2)The registered provider must send the notice as soon as practicable after the breach. (3)The notice must be in a form approved by the Secretary of the Immigration Minister's Department. (4)The notice must: (a) contain particulars of the breach; and (b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and (c) state that the student must present photographic identification when so attending; and (d) set out the effect of sections 137J and 137K of that Act. Unincorporated registered providers (5)If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.' 13 Section 137J of the Act provides: '137J (1)This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach. (2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day: (a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either: (i) in Australia; or (ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette; makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.' 14 Section 137K applies if the non-citizen's visa is cancelled by operation of s 137J. It provides a right to the non-citizen whose visa has been cancelled by operation of s 137J to obtain a revocation of that cancellation. 15 Clearly enough, the legislative scheme in this regard is that the ESOS Act and the Act operate together so that the Act gives effect to a failure of a non-citizen to comply with a notice under s 20 of the ESOS Act. The non-citizen's visa is automatically cancelled unless the non-citizen takes either of the steps in s 137J(2). 16 On 2 September 2002 Danebank issued a notice, pursuant to s 20 of the ESOS Act, informing the appellant that she was in breach of a condition of her visa relating to attendance and academic performance. She was advised: 'The Notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 as you have breached a condition of your student visa relating to satisfactory academic performance in the course in which you have been enrolled at this institution. Particulars of breach: Student has not applied herself satisfactorily to course work. Frequent absences and latenesses [sic] have added to this. Despite warnings, the student has failed to meet course requirements. Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter.' 17 Further information relating to reporting, not relevant to this appeal, was provided. 18 The notice was given pursuant to s 20 of the ESOS Act. A failure to comply with the notice has the consequence provided for in s 137J of the Act. 19 The opening paragraph of the notice refers to 'satisfactory academic' performance. They are the words used in s 20 of the ESOS Act. The notice is in accordance with the form approved by the Secretary: s 20(3) ESOS Act. 20 On 3 September 2002 the appellant sent a handwritten letter of apology to her teachers. The letter demonstrates that the appellant appreciated her predicament. She expressed regret for her breach of the school rules, her failure to do her schoolwork and the anxiety she had caused her teachers. She said she would reform and sought another chance. 21 On 5 September 2002 a delegate of the respondent Minister (the Minister) advised the appellant, in writing, that her visa may be cancelled: 'POSSIBLE 8202 BREACH. Provider has advised student has failed to meet course requirements and has frequent absences'. 22 She was further advised that she would have the opportunity to respond to the notice issued under s 20 of the ESOS Act at an interview which was scheduled for 21 October 2002. 23 On 17 September 2002, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) wrote to the appellant's school requesting further information: 'Please advise the details of the following student. Please note that this information is required ASAP. It would be appreciated if you would provide the following details: 1. attendance for each term or semester for the length of the current course as well as the total cumulative attendance, 2. whether or not the subject is making "satisfactory academic progress (i.e. will they complete the course within the normal timeframe?). If this person is no longer enrolled with you, please advise the circumstances surrounding their departure. Ms TIAN Zeng Xia Born: 03/11/1983 Attendance (please attach further papers if your college has a different term structure) Year Term1 Term2 Term3 Term4 TOTAL 2000 2001 2002 92% 84% 55% 77%