Tian v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-03-12|Before: Mansfield J

INTRODUCTION 1 This application was instituted on 28 April 2003. The applicant seeks prerogative orders in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 2 April 2003, in essence to quash a decision of the Tribunal affirming the cancellation of her visa. The applicant accepts that she is entitled to the orders sought only if she establishes jurisdictional error of the part of the Tribunal in the making of its decision: Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. 2 The applicant is a citizen of China. She entered Australia on 17 May 2001 pursuant to a Student (Temporary) (Class TU) Visa Subclass 560 issued on 11 April 2001. That visa was valid to 15 March 2002. The visa was extended to 15 March 2004. However, on 7 November 2002 the visa was cancelled by a decision of a Delegate of the respondent. The Tribunal's decision of 2 April 2003 affirmed the decision of the Delegate of the respondent to cancel the Student Visa held by the applicant. 3 Under cl 560.611(1)(a)(i) of Sch 2 to the Migration Regulations 1994 (Cth) it was a condition of the visa that the applicant satisfy Condition 8202. At the relevant time Condition 8202 in Sch 8 to the Migration Regulations provided: '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' 4 Section 116(1)(b) of the Migration Act 1958 (Cth) (the Act) empowers the respondent, subject to subss (2) and (3), to cancel a visa if satisfied that its holder has not complied with a condition of the visa. Section 116(3) obliges the respondent to cancel a visa under subs (1) if there exists prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2)(b) of the Migration Regulations prescribes, in the case of the visa, the circumstances in which the Minister must cancel the visa as being if the respondent is satisfied that the visa holder has not complied with Condition 8202.

the decision of the tribunal 5 The delegate of the respondent determined to cancel the visa, and was obliged to cancel the visa, because the delegate was not satisfied that the applicant satisfied Condition 8202(3)(a), namely the attendance requirement. Upon review, the Tribunal did not agree with that conclusion. However, the Tribunal was of the view that the applicant did not meet the requirements of Condition 8202(3)(b) because she had not achieved an academic result that was certified by the education provider to be at least satisfactory for each term or semester (whichever is the shorter) of the course being undertaken by the applicant. It therefore affirmed the decision of the delegate. 6 It is common ground that the relevant course is a year 11 secondary school course undertaken by the applicant during 2002 at Danebank Anglican School for Girls ('the school'). It is further common ground that the course is divided into semesters, and that each semester is divided into two terms. The course therefore comprised two semesters and four terms. To satisfy Condition 8202(3)(b), it was necessary that the applicant achieve an academic result that is certified by the education provider, the school, to be at least satisfactory for each term of the course. The cancellation of the visa took place during term four of the school year. The focus was therefore on terms one, two and three of the school year, that is of the course. 7 The Tribunal concluded: 'Considering all of the available evidence, it is the Tribunal's view that the review applicant has not achieved an academic result that is certified as satisfactory by Danebank Anglican School for Girls. While the school has indicated that they would consider readmitting the review applicant if her visa were not cancelled, this does not indicate that her performance to the point of the issue of the section 20 Notice was satisfactory for each term of her course of study. The advice from the provider indicates that her performance to that point was not satisfactory.' 8 Hence it reached the view that the applicant's student visa must be cancelled under s 116(1)(3) having regard to the terms of reg 2.43(2)(b) of the Migration Regulations. It did not have a discretion by reason of the operation of s 116(3) of the Act. It was not satisfied that the applicant had attained an academic result that was certified by the school to be at least satisfactory for each term of the course during 2002. 9 The reference to 'the section 20 Notice' in the paragraph of the Tribunal's reasons referred to above is a reference to a notice sent to the applicant by the school under s 20 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) dated 2 September 2002. Section 20 is found in the part of the ESOS Act prescribing obligations on registered providers of educational services for overseas students. Relevantly, it obliges the school to send the student a written notice if the student has breached a student visa condition relating to attendance or to satisfactory academic performance. A notice is required to contain particulars of the breach, and to set out the effect of ss 137J and 137K of the Act. Section 137J provides that a notice given under s 20 of the ESOS Act leads to the automatic cancellation of the student visa 28 days after the date specified in the notice unless the student in the meantime takes certain action. It is not presently necessary to refer to s 137K. 10 The notice identified the particulars of breach of condition in the following terms: 'Student has not applied herself satisfactorily to course work. Frequent absences and lateness's have added to this. Despite warnings, the student has failed to meet course requirements.' 11 It is not necessary to address whether that form of notice complied with s 20. It did not lead to the automatic cancellation of the applicant's visa. However, it led to the respondent considering the cancellation of the applicant's visa under s 116(1) of the Act, and in view of the decision of the delegate of the respondent as to the breach of condition 8202, it led to the delegate being obliged by s 116(3) to cancel that visa. 12 The Tribunal's reasons indicate that it did not act on the basis of the s 20 notice alone. It also referred to the evidence, including oral evidence at a hearing on 26 February 2003, and a letter from the school to the Department of the respondent of 17 September 2002 and enclosures. Relevantly, the respondent wrote to the school by facsimile on 17 September 2002 asking, inter alia, for details as to: 'whether or not the subject is making "satisfactory academic progress" (i.e. whether they complete the course within the normal timeframe)' The facsimile had sections to be completed by the school. Under the heading Academic Performance the question was asked: 'Please specify whether or not the student made academic progress for each term of their course by placing a "yes" or "no" in each box.'

There was then a series of boxes for a response from the school relevantly for terms 1, 2 and 3 of 2002. The school filled in the boxes respectively 'some', 'no' and 'no'. The school sent that form back in that manner. The response had a section headed 'further comments' in which the school referred to the attached report. The attached report from the school had a section dealing with academic progress. It is dated 18 September 2002 and included the following:

'Sarah's academic progress has also been poor. Absences have, no doubt, contributed to this. See attached latest report (attachment 4).' 13 The earlier attachments related to the attendance records of the applicant. It is not necessary to refer to them. Attachment 4 is a report on the progress of the applicant for semester one of 2002. She undertook six subjects. In respect of each of the subjects, there are sections identifying particular features of the course according to the syllabus, and the teacher's response in one of four boxes: experiencing difficulty, satisfactory, proficient, or outstanding. It also includes in respect of each of the subjects an internal assessment result and a teacher's comment. The subject reports are detailed, but they do not in terms certify in respect of any one subject (or the course) that the applicant's academic result is at least satisfactory. Although certain features of the subject requirements are recorded as satisfactory, the overall impression is that the applicant was progressing poorly in each of her subjects. 14 The Tribunal received, and noted, material explaining the applicant's relatively poor academic performance. It concerns personal health issues, concerns about her mother's health including following a vehicular accident which occurred during term 3 of 2002, and the impediment to her progress due to language difficulties.

the contentions of the hearing 15 Counsel for the applicant contended in written submissions that the Tribunal erred in rejecting the contention that the applicant did not meet the attendance record requirement in condition 8202(3)(a). The respondent has given no notice of contention seeking to revisit that part of the Tribunal's reasons. It is hard to see why that allegation was made on behalf of the applicant in the application in the first place. The Tribunal did not accept the delegate's views as to the application of condition 8202(3)(a) or its finding on that topic. It did not find that the attendance record requirement of the applicant was not met. The contention is misconceived. It is not necessary to address it. 16 The principal argument presented at the hearing, notwithstanding that it is not specified in the amended application, is that the Tribunal erred in law in its understanding of condition 8202(3)(b) by failing to appreciate that the use of the words 'at least' in the requirement that the school must certify the academic result 'to be at least satisfactory'. The level of satisfaction was said to have been misunderstood. Such an error was argued to amount to jurisdictional error. 17 I do not accept that the use of the words 'at least' were misunderstood by the Tribunal. Counsel for the applicant argued that they meant 'at the lowest level of satisfactoriness' and that the Tribunal had not appreciated that. The error is not said to be apparent from the Tribunal's express words, but by its conclusion having regard to the material before it from the school, in particular a letter from the school offering the applicant placement during 2003 in year 11. 18 Condition 8202(3)(b) requires the holder of the visa to achieve a certain type of academic result. The adjectival clause 'that is certified by the education provider to be at least satisfactory' is the descriptor of the type of academic result which is required to be achieved. It is not an academic result in absolute terms, but an academic result that is certified by the school in certain terms. The terms are that the academic result be at least satisfactory. In context, the words, 'at least' do not express something less than satisfactory. They indicate that the school's certificate of satisfactoriness need not be for an academic result to a standard more than satisfactory, but that it be to an academic result which is nothing less than satisfactory. 19 The alleged error of law on the part of the Tribunal is not made out. On the basis the application was argued, in my judgment no jurisdictional error has been established. The application will be dismissed.

the subsequent written contentions 20 In subsequent written submissions, counsel for the applicant raised two further grounds of alleged jurisdictional error. 21 First, it was contended that the school had not provided a certificate as to whether the applicant's academic results were satisfactory because the school had been misled by the Department about the issue to which its certification should be directed. 22 The question put by the Department is set out in [12] above. The question, if it is intended to elicit a response in terms relevant to condition 8202(3)(b), is misleading. It is misleading in two respects. It introduces the notion of satisfactory academic progress, compared to satisfactory academic results. The two notions may exist together, but they are not necessarily the same. It also explains what is meant by satisfactory academic progress. If that is a reference to satisfactory academic results, the explanation imposes a limitation upon the notion of satisfactory academic results which condition 8202(3)(b) does not necessarily carry. In certain circumstances, academic results may be satisfactory even though the course has not been completed in the normal timeframe. There is a danger in substituting for statutorily expressed terms some other form of words which is thought to do the same work: see per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-573. 23 However, it does not follow that the Tribunal misdirected itself in law when it considered whether to affirm the cancellation of the applicant's visa. It is necessary to consider how the Tribunal went about its task of review. As noted, it looked at the material referred to in [12] and [13] above, to reach the conclusion quoted in [7] above. That passage from its reasons indicates that the Tribunal did not itself fall into the error of looking to academic progress rather than academic results, or to completion of the course in the normal timeframe rather than academic results. It considered properly whether the school had provided a certificate that the applicant's academic results were at least satisfactory. 24 In my judgment, on the material available to it, the Tribunal's finding was open to it. 25 There is an obligation imposed upon education providers under the ESOS Act to inform students under a student visa of unsatisfactory attendance or unsatisfactory academic performance. Section 20 of the ESOS Act so provides. Its operation is described briefly in [9] above. Moreover, s 19 of the ESOS Act obliges the education provider to give to the Secretary of the Department of Education Science and Training certain information about such students. The s 20 notice in this matter appears to have been prompted by a letter from the Department dated 23 August 2003. It was a letter sent to all education and training providers registered under the ESOS Act. It was to remind the providers of their obligations under s 19(2). It specifically quoted s 19(2) of the ESOS Act: '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.' The letter reminded the school that a failure to report a breach as required would expose the school to administrative sanctions, including the imposition of conditions, suspension or cancellation of registration as an education provider. 26 The relevant terms of the 'certification' in the s 20 notice are set out in [10] above. It is not in terms which correlate directly to condition 8202(3)(b). It is expressed more in terms of commitment than achievement. However, the obligation under condition 8202(3)(b) is one requiring positive or affirmative certification by the school. The s 20 notice does not do so. The school's subsequent letter of 18 September 2002, although not expressed in the precise words of condition 8202(3)(b), clearly enough focuses upon academic performance. The applicant's academic progress is described as 'poor'. The markings in the boxes on the response to, or copy of, the respondent's facsimile letter of 17 September 2002 also respond to the question about academic progress in terms which do not indicate satisfactory academic progress. 27 If the requirement of condition 8202(3)(b) were to certify that the student's academic result was unsatisfactory, there may be some doubt that the information provided by the school referred to above would fall within that description. The reason why the s 20 notice would not do so is clear: as noted, it refers to commitment rather than academic results. The reason why the response on the letter of 17 September 2002 may not do so is that it refers to academic progress rather than academic results. That is the matter to which the school was asked to respond. A student may not progress well, but may nevertheless attain satisfactory results. A further reason why that response and the letter of 18 September 2002 may not do so is that the response must be seen in the light of the question to which it is responsive. The completion of a course within the normal timeframe may be an indicator of a satisfactory academic result, but it is not the same as a satisfactory academic result. 28 Those observations do not, however, assist the applicant. Condition 8202(3)(b) imposes a requirement for certification in positive terms. None of the communications from the school about the applicant's academic results during 2002 meet its terms. 29 Counsel for the applicant referred to the letter offering the applicant placement or enrolment in year 11 again at the school during 2003, sent at an unspecified date but apparently some time in October 2002. He contended that letter amounted to certification in terms of condition 8202(3)(b). I do not agree. It is an offer of enrolment in year 11 in 2003. It does not contain any certification about the quality of the applicant's academic performance during 2002. 30 What is apparent is that the school provided information which either under s 20 of the ESOS Act or in response to the letter of 17 September 2002 amounted to a form of certification by the school as to the academic progress of the applicant. At least in respect of terms 2 and 3 of the course during 2002, the school indicated that the applicant made no academic progress. Upon that basis, in my view, its response does not amount to a certificate that her academic results were at least satisfactory. Consequently, I consider that the Tribunal's conclusion that condition 8202(3)(b) was not met at least in respect of terms 2 and 3 of the course was open to it. The Tribunal did not err in a way which affects its jurisdiction in determining that it was obliged to affirm the cancellation of the applicant's visa. There was a breach of the condition, and s 116(3) for the reasons explained above led to the Tribunal having no jurisdiction or no power other than to affirm the cancellation of the visa. 31 The second post-hearing submission was that the Tribunal erred by regarding s 116(1)(b) and (3), together with reg 2.43(2)(b) of the Regulations, as requiring strict compliance with condition 8202(3)(b). It was submitted that substantial compliance with condition 8202(3)(b) is sufficient, and that the material before the Tribunal demonstrated substantial compliance with the condition. Reliance was placed upon the decision in Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669;[2001] FCA 359 (Strestha). 32 In Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574, Conti J decided that s 116(1)(b) and s 116(3) are clear, and do not admit of any substantial compliance test. His Honour regarded s 116(1)(fa) as providing no reason for qualifying the plain meaning of those provisions. Section 116(1)(fa) empowers the respondent to cancel a student visa, inter alia, if the holder is not or is not likely to be a genuine student. It appears to be directed to circumstances different from those to which s 116(1)(b) refers, and it does not fall within the reach of the circumstances prescribed under s 116(3). It was not in force at the time of the cancellation of the student visa addressed in Strestha, but was introduced into the Act effective from 21 December 2000: Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (Act 168 of 2000), s 3 and cl 1 of Sch 4. Strestha also addressed an earlier version of condition 8202. Conti J in Hou at [32] explained that s 116(1)(fa) is directed to circumstances where a student visa holder has complied with the visa conditions but has behaved in a way which indicates the visa holder is not a genuine student, and may be occupying a place which could well be occupied by a genuine student. Act 168 of 2000 also introduced s 116(1A) providing for the Regulations to prescribe matters to be considered when considering cancellation under s 116(1)(fa). It is, in my view, clear enough that those amendments were to be complementary to s 116(1)(b) and s 116(3) rather than to cut across or to qualify those provisions. 33 Act 168 of 2000 by s 3 and Sch 1 also introduced subdiv GB of the Act, including s 137J. That subdivision ties to the procedure imposed upon an education provider under s 20 of the ESOS Act. Failure to comply with a notice under s 20 of the ESOS Act leads to automatic cancellation of the student visa: s 137J, but the student may apply for the cancellation to be revoked: s 137K. The respondent is empowered under s 137L to revoke the cancellation if the respondent is satisfied the relevant condition was not breached, or if 'the breach was due to exceptional circumstances beyond' the student's control, or if a prescribed circumstance applies. Compliance with a s 20 notice requires the student to attend in person before an officer of the respondent's Department to explain the breach. If the officer were satisfied the relevant condition was not breached, then the powers available to cancel the visa under s 116(1) of the Act would not be enlivened. If the officer were satisfied the relevant condition was breached, because the condition must relate to attendance or satisfactory performance (as s 20 of the ESOS is limited to those conditions, the officer of the respondent by reason of s 116(1)(b) and s 116(3) would have no direction but to cancel the visa. Unlike s 137L(1)(b), the officer cannot address exceptional circumstances beyond the non-citizen's control. 34 It appears ironical that the failure to respond to a notice under s 20 of the ESOS Act which leads to automatic cancellation of a student visa may ultimately enable the student to have the cancellation revoked for exceptional circumstances, but responding to such a notice leaves no scope for the consideration of exceptional circumstances. The submission was made, but rejected, in Hou that the apparent irony was avoided if s 116(1)(b) and s 116(3) required substantial compliance only with condition 8202. 35 I respectfully agree with the reasons of Conti J in Hou at [33] that there is no room for an implication into s 116(1)(b) and s 116(3) of a requirement only of substantial compliance with those provisions. Their words are clear, in particular s 116(3). I do not think the reading down of those provisions is reasonably open. The uncompromising operation of those provisions and condition 8202 is also reflected in the decisions of the Court concerning the attendance requirement in Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1285; Patsanza v Minister for Immigration & Multicultural Affairs [2001] FCA 734; and Ariyagama v Minister for Immigration & Multicultural Affairs [2001] FCA 1407. However, the apparent irony noted in [33] above may merit the respondent's attention. 36 For the reasons given, the application must be dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 11 March 2004 Counsel for the Applicant: M W Clisby

Regulations Migration Act 1958(Cth)ss 116, 137J, 137K, 137L

Migration Legislation Amendment (Overseas Students) Act 2000(Cth)

Migration Regulations 1994(Cth)reg 2.43, Sch

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