V04/06457 [2005] MRTA 802 (19 July 2005)

On 10/04/2003 the applicant enrolled in the Diploma of Business Management at Kelley International commencing on 05/05/2003 and due to conclude on 05/05/2005. A visa s/c 572 was granted to the applicant on 09/05/2003, valid for stay until 05/06/2005 for the purpose of this enrolment. On 20/08/2003 Kelley International informed of the applicant's cessation of studies in this course.

The applicant enrolled in the Bachelor of Computing at Deakin University on 01/07/2003. The applicant commenced in this course on 21/07/2003 and was scheduled for completion on 31/07/2005. The applicant remained in this course until the completion of 2003.

On completion of Semester 2 of 2003 the applicant sought enrolment in a Bachelor of Business at Central Queensland University (CQU). The course commenced on 12/03/2004 and was scheduled for completion on 31/12/2006.

1. On 5 August 2004, Central Queensland University (CQU) (trading as CQU Melbourne International Campus), the relevant education provider, issued to the review applicant a written notice (a "Non-Compliance Notice" (NCN)) under Section 20 of the Education Services for Overseas Students Act 2000, stating that (D1, ff.8-9):

Student commenced study March 2004 and was placed on student monitoring program due to poor results from previous studies. Was required to sign a contract and maintain attendance and submit all work. Student only submitted 1 assignment for 1 course and had a poor attendance record and subsequently failed all 3 courses in their first term. Did not meet requirements of contract and has not met academic requirements for the term. Program was therefore cancelled.

1. The review applicant failed to respond to the notification within the prescribed period. The review applicant's visa was therefore automatically cancelled pursuant to section 137J of the Act on 3 September 2004, the 28th day after the date of the NCN.
2. On 17 September 2004 the review applicant's representative wrote to the Minister seeking revocation of the automatic cancellation of his student visa (D1, ff.45-49). A further written submission was made by the representative on 14 October 2004 asserting that the review applicant had submitted 5 assignments rather than one as alleged in the particulars in the NCN (D1, ff.62-89). The delegate made further inquiries at CQU.CQU advised the Department on 14 October 2004 that (D1, f.91):

The student actually submitted 5 out of the 11 assignments required for the courses in which he was enrolled. However, the student did not pass any of the assignments and failed all of his courses. With the knowledge that the student submitted 5 assignments (not 1), the University would still have reported him for not meeting course requirements due to having failed his courses and for not meeting the requirements of the student monitoring program.

1. The delegate decided not to revoke the cancellation under s137L because the review applicant was found to have breached condition 8202 of his student visa whilst a student at CQU. The delegate considered that the breach was not due to circumstances beyond the review applicant's control and that there were no other matters prescribed in the regulations that would result in the reversal of the cancellation. The review applicant was notified of this decision in a letter dated 18 October 2004 (D1, ff.97-96).
2. When lodging the application for review, the review applicant stated that he thought the delegate's decision was incorrect in view of the following (T1, f.3):

- If there was a breach, it was due to exceptional circumstances beyond my control

- Other grounds to be advanced at the hearing of my case.

- Lack of particulars on my s.20 Notice. Denial of Natural justice - Did not get an opportunity to respond to additional material.

1. On 10 December 2004 the review applicant's agent lodged the following submission with the Tribunal (being a copy of the submission lodged with the Department on 17 September 2004) :

APPLICATION FOR REVOCATION OF CANCELLATION OF STUDENT VISA.

Section 20 - Notice from Central Queensland University (CQU)

Mr Chusno -received a section 20 notice from the Central Queensland University dated 5 of August 2004.

Mr Chusno began a Bachelor of Business (Information Systems) from the Central Queensland University in March 2004. This was a three year degree course. Prior to undertaking this course Mr Chusno had undertaken a Bachelor of Computing (Computer science/Software Development) at Deakin University. This course began in July 2003, however the applicant only completed the first semester of this course after which he transferred to CQU undertaking the Bachelor of Business.

When I began my course in March 2004 I was immediately placed on a student monitoring program due to my results from my previous studies at Deakin University.

Even though I had completed a Diploma of Information Technology previously, I was not suited to the Bachelor of Computing course and studies at Deakin University and had difficulties with many of the subjects.

I was required by CQU to sign a contract as part of the student monitoring program. A copy of that contract is enclosed herewith (Attachment 1).

The section 20 notice alleges that I only submitted one assignment for one course and had a poor attendance record and that I failed all three subjects in the first term. I dispute this for the following reasons:

1. My first assignment was due on or about the 2nd of April 2004 for the subject "Contemporary Communication Skill" (COMM11009). A copy of that assignment is enclosed herewith (Attachment 2). I received a mark of 11 out of 15 for the assignment.
2. I also handed in an assignment for my marketing subject. I will submit a copy of that assignment to the Department in due course to verify that I handed in my assignment for the subject "Marketing". The assignment was handed in on time. I recall that I handed in the marketing assignment in May of this year. I recall receiving a receipt after I handed in the assignment at the front counter. I consequently deny that I did not submit any assignment for my marketing subject.

Ill. I was also required to submit an assignment for my third subject, being the subject "Communication and Critical Thinking". I enclose herewith an assignment which I completed for this subject dealing the topic "Dishonesty" (Attachment 3). Unfortunately I filled in the assignment cover sheet incorrectly. The assignment cover sheet should have referred to the subject "Communication and Critical Thinking" (COMM11.008), however in error it referred to the subject "Contemporary Communication Skills -- COMM11009". A copy of that assignment is also enclosed.

1. I will provide the Department with further details providing all of my assignments which were due and attended to on my behalf. I was required to complete two assignments for each of the three subjects I attended.

The section 20 notice alleges that I had a poor attendance but it does not particularise the allegation made against me. The section 20 notice does not give me any indication whatsoever of the allegation. It clearly lacks the particulars required in such an allegation, as I believe that I had more than 80% attendance at CQU. I will provide further submissions to the Department in relation to the lack of particulars in the section 20 notice as it relates to the allegation of poor attendance record.

I decided to leave CQU and undertake a Bachelor of Business (Business Administration/Management). The course that I undertook at CQU was a Bachelor of Business (Information Systems) and as I have previously indicated, although I have a Diploma in Information Technology, I did not enjoy this course and I was not suited to these subjects. I believe that I am well suited to Business Management as ultimately I wish to manage my own business or work in this field. I also believe that I was not given the level of support that I expected from CQU.

5. Compliance with Student Monitoring Program Contract with CQU

The section 20 notice alleges that I did not fulfil my obligations under the contract I entered into with CQU. I refute this allegation. There was no deliberate action on my part to avoid my obligation and I did not deliberately breach the student monitoring program contract I entered into with CQU. I will provide the Department with further details and particulars regarding this allegation in due course.

6. Enrolment in the Bachelor of Business (Business Administration/ Management) at Holmes Institute

On the 12 August 2004 I began a Bachelor of Business (Business Administration/Management) at the Holmes Commercial Colleges, Melbourne. A copy of a letter of reference dated 7 September 2004 is enclosed herewith (Attachment 4). As the Department will note, I am settling into my new course provider very well and I am enjoying my broader studies in Business Management/Administration. I believe that I am well suited to this course rather than the Information Systems course that I had previously undertaken at CQU.

I am actively participating as part of an academic mentoring program which Holmes Institute has implemented for its overseas students. I did not have access to such a program at CQU despite entering into a student monitoring program contract with CQU:- I was not suited to the program or course at CQU and I also had a number of personality difficulties with some of the CQU staff.

My academic mentor at Holmes Institute is Mr Gunesh and I work closely with him on a constant basis. He provides me with appropriate support, counselling and guidance regarding my study habits, and my performance as part of my Bachelor of Business.

I am confident of completing my course and being successful in my studies. I am eager to complete my course at Holmes Institute and look forward to graduating from my course and being employed in a career related to business administration and business management.

7. Further Submissions to be advanced to DIMIA regarding application for revocation

I intend to provide the Department with further documents and further submissions regarding my application for revocation of the decision to cancel my visa. I wish to have the opportunity of consulting a lawyer and I have appointed the firm of Ryan Carlisle Thomas Lawyers to act on my behalf and to assist me in preparing further submissions regarding my application for revocation.

I refer the Department to Attachment 4. I began my Bachelor of Business at Holmes Institute on the 12 August, 2004, before my visa was cancelled. I have already paid the amount of $5000.00 to Holmes and wish to continue with my studies until a final decision is made about my status in Australia. I am a genuine student with a strong desire to complete my studies. I have already completed a Diploma of Information technology whilst in Australia and I am well suited to my current studies and enjoy attending my current education provider. I respectfully request that the Department grant me limited study rights, eg. up to three months, to allow me to continue to attend classes.

1. On 3 June 2005 the Tribunal posted a Notice of Hearing to the review applicant inviting him to attend a hearing before the Tribunal at 9.30 am on 30 June 2005. The notice was posted to him care of his agent who was indicated in his application for review of 4 November 2004 as the address for correspondence from the Tribunal.
2. On 29 June 2005 the review applicant's agent advised the Tribunal in writing that he no longer acted on behalf of the review applicant.
3. The review applicant failed to appear at 9.30 am on 30 June 2005. At 9.45a.m on 30 June 2005 a Tribunal officer contacted the review applicant by telephone who indicated that he was aware that the hearing had been scheduled but queried the officer as to whether he was obliged to attend. The Tribunal advised the review applicant that it would adjourn the hearing until 10.30am. The review applicant failed to appear at 10.30am. Nor did he contact the Tribunal to request a further adjournment.
4. Given the review applicant's failure to appear in response to an invitation to appear at a hearing before the Tribunal, the Tribunal makes a decision on the review pursuant to section 362B of the Act.

1. The review applicant's visa was automatically cancelled under section 137J of the Act, which states:

Section 137J. Non-complying students may have their visas automatically cancelled

(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).

(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:

(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:

(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.

1. This section applies where a notice is issued to a student pursuant to section 20 of the ESOS Act. Section 20 provides, so far as is relevant:

(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.

(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.

(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.

1. The review applicant submits that the NCN was defective because it wrongly asserted that he had only submitted one assignment and failed to particularise the allegation of poor attendance. He asserted that he was only required to submit 6 assignments (2 per subject). The education provider responded that:

The student actually submitted 5 out of the 11 assignments required for the courses in which he was enrolled. However, the student did not pass any of the assignments and failed all of his courses. With the knowledge that the student submitted 5 assignments (not 1), the University would still have reported him for not meeting course requirements due to having failed his courses and for not meeting the requirements of the student monitoring program.

1. The education provider's response implicitly concedes that the NCN did not provide particulars of the number of assignments submitted. The Tribunal notes, however, that irrespective of the number of assignments submitted, the salient and unchallenged allegation, that he failed all 3 subjects, is indicated as the basis for the finding that the review applicant failed to meet the academic requirements for the term. It is not, in any event, necessary for the Tribunal to make finding on whether the NCN properly particularised the breach. Automatic cancellation pursuant to section 137 of the Act is not dependent upon service of an NCN containing full particulars of the alleged breach.
2. In Liu v MIMIA [2004] FCA 1058 Cooper J stated at paragraph 29:

The object of the notice under s 20 of the ESOS Act is to initiate a process to bring about a review by the Minister of the breach of a visa condition leading to possible cancellation under s 116 of the Migration Act; or in default of such a review, to automatic cancellation of the visa in question with the possibility of a revocation of the cancellation by ministerial review on an application made under s 137K of the Migration Act; or action otherwise initiated by the Minister personally under s 137N of the Migration Act. Receipt or knowledge of the contents or effect of a notice under s 20 of the ESOS Act by the student is unnecessary for the attainment of the statutory objects of the Migration Act insofar as they relate to student visas: see s 137J(1) of the Migration Act. It is the existence of the notice under s 20 of the ESOS Act itself which is the important circumstance because it is the mere giving of the notice which initiates the operation of s 137J process for the purposes of the Migration Act. (emphasis added)

1. In Zhou v MIMIA [2004] FCA 1078 Cooper J confirmed that the sole grounds for revocation of the cancellation of a student's visa were those specified in s137L of the Act. This section states that those grounds are:

(a) that the student did not, in fact, breach the relevant visa condition or conditions; or

(b) that the breach was due to exceptional circumstances beyond the student's control.

1. Consequently, the Tribunal's role is firstly to consider whether the review applicant breached the relevant visa condition (in this case condition 8202) and, if so, whether the breach was due to exceptional circumstances beyond his control.

1. The review applicant was sent the NCN for a breach of condition 8202, failure to meet course requirements. The version of condition 8202 which applied on the date that the review applicant's visa was granted is found at Item 8202 in Schedule 8 to the Regulations and reads 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 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.

1. In deciding whether the review applicant has breached condition 8202 the Tribunal must consider whether he achieved an academic result that was certified by the education provider to be at least satisfactory for the relevant term or semester of the course.
2. The visa was granted on 14 April 2003 and was cancelled on 3 September 2004. The relevant term or semester of the course was the term commencing on 8 March 2004 and concluding on 22 June 2004.
3. As indicated the education provider advised the review applicant on 5 August 2004 that he had failed all 3 subjects undertaken in the term and had not met academic requirements for the term commencing on 8 March 2004. This was confirmed by the education provider on 14 October 2004. On this basis the Tribunal finds that the review applicant breached condition 8202 (3)(b) of his visa by failing to achieve results that were certified by his education provider as satisfactory.
4. The Tribunal must now determine whether the breach was due to exceptional circumstances beyond the control of the review applicant.

Was the breach "due to exceptional circumstances beyond the non-citizen's control"?

1. If there has been a breach of condition it is necessary to consider the circumstances surrounding the breach. MSI-382 gives a number of examples of exceptional circumstances:

Exceptional circumstances beyond the non-citizen's control

7.3.4 Under policy this is restricted to serious illness, hospitalisation, bereavement of close family members (of either the visa holder or their spouse) or major political upheaval or natural disaster in the home country requiring their emergency travel.

7.3.7 It is not the intention that 'exceptional circumstances beyond control' encompasses such things as difficulties in adjusting to living in Australia or academic life, relationship problems, financial difficulties or generally feeling "depressed" about circumstances ie where the depression is not clinically diagnosed by a qualified professional.

1. The review applicant has also stated, in the alternative that, if he did breach the condition, it was due to exceptional circumstances beyond his control. No evidence has been submitted to either the Department or the Tribunal in support of that assertion.

• The breach was not due to exceptional circumstances beyond the non-citizen's control.

• The Tribunal affirms the decision under review not to revoke the automatic cancellation of the Student (Temporary) (Class TU) visa held by the review applicant.