Yang v Minister for Immigration & Anor [2007] FMCA 38

The visa applicant appears to be enrolled in 2 registered courses at the same time and therefore, must satisfy condition 8202 in relation to both.

Ground 1 of the application to this Court challenges the correctness of the Tribunal's legal opinion that the applicant was obliged to comply with condition 8202 requirements in relation to both courses. Other grounds were also presented, including challenges to the Tribunal's procedures under s.359A of the Migration Act. However, I found it convenient first to hear argument going to Ground 1, and have not found it necessary to hear or consider the parties' submissions on the other grounds.

The factual background can be narrated shortly. According to the facts narrated by the Tribunal, but which are not documented in the Court Book:

16. The review applicant first entered Australia as a student on 28 September 2003 on a Subclass 571 Student (Temporary) (Class TU) visa, granted on 18 September 2003 and which was due to expire on 15 March 2006. The review applicant appears to have studied an English Preparation for High School (Beginner to advanced 5 to 50 Weeks) course from 29 September 2003 to 9 April 2004 and 28 June 2004 to 16 July 2004. On 25 October 2004 the review applicant was granted a further Subclass 571 visa which was valid until 15 March 2006. Attached to this visa was condition 8202 (meet course requirements). The visa was cancelled on 20 February 2006 for failure to meet course requirements.

17. The Subclass 571 visa was granted on the basis of the review applicant's continued enrolment in the NSW Department of Education & Training (Schools) Secondary Years 7-12 course which he studied at Turramurra High School commencing on 25 August 2004 and finishing on 21 December 2005.

The applicant did enrol during 2005 at Turramurra High School in year 11 studies for the Higher School Certificate, and remained enrolled throughout the first three terms, until he withdrew his enrolment during the fourth term, on 23 September 2005.

During 2005, he also attempted a course in which he enrolled at the start of that year seeking to obtain information technology qualifications. He ultimately presented to the Tribunal certificates from the provider of that course, Pacific College of Technology, given "to assist the Government Departments in relation to the visa requirements regarding the student nominated below". A certificate of attendance stated that he was enrolled in the course with a start date on 14 February 2005 and an end date on 1 December 2005, and that his attendance was 85% throughout that course. A certificate of successful completion of the course, and an academic transcript stated that his results were "competent" for each of 19 units which he completed throughout the period of the course.

On this material, the Tribunal appears to have assumed that it was open to the applicant to argue that he had evidence that an education provider had records showing attendance for at least 80% of the contact hours scheduled for his 2005 course at Pacific College, and that the provider had certified that his academic results were at least satisfactory for each term or semester of the course. The Minister did not contend before me that findings that the applicant met the requirements of condition 8202 in relation to this course throughout 2005 would not have been open to the Tribunal.

However, unfortunately, the applicant's attendances and results for his Higher School Certificate studies were less successful. In August 2005 the New South Wales Department of Education and Training served on the applicant a notice under s.20 of the Education Services for Overseas Students Act ("the ESOS Act") which required him to attend for interview at the Department of Immigration ("the Department") to explain why "in the term running from 19/07/2005 to 08/08/2005, you attended 67% of the contact hours scheduled". The notice suggested that this was a failure to comply with condition 8202(3)(a) of his student visa.

If the applicant had not attended at the Department, he would have faced automatic cancellation of his visa. However, he did attend, and was interviewed several times. Initially, a delegate decided at the end of November 2005 not to cancel his visa, but to reconsider his compliance with his visa condition at an interview which was held in January 2006. On 20 February 2006, the delegate decided that the applicant's continuing visa should be cancelled, and made the decision which was the subject of the proceedings before the Tribunal.

The delegate acted upon information that the applicant's attendances during the second and third terms of 2005 were less than 80% of the contact hours scheduled at the school. According to a "recalculated attendance" forwarded to the Department of Immigration by the NSW Department of Education and Training on 2 February 2006, after correlating a number of medical certificates that accounted for some of the applicant's absences, his attendance at the high school was 79.7% in term 1, 71.25% in term 2, and 78% in term 3.

Subsequently, the Tribunal was informed by the principal of the high school that the applicant's attendances were 79.7% for term 1, 58.8% for term 2, 49.8% for term 3, and 98.1% for his attendances for term 4 prior to his withdrawal. The Tribunal did not attempt to reconcile the differences in the information before it, but appears to have accepted the more recent statements of the principal. On any view of the evidence, the applicant did not achieve 80% attendance during two of his terms at the high school, but he does appear to have actually attempted for most of 2005 to undertake his Higher School Certificate studies as well as his information technology course.

In relation to his academic results, the delegate had before her an opinion given by the principal of the high school on 22 November 2005 that the applicant "has made unsatisfactory academic progress in his Year 11 studies due to lack of attendance and effort". The evidence does not indicate the extent to which the applicant was informed that he was risking such an opinion from the headmaster prior to it being given to the Department of Immigration.

Once the matter reached the Tribunal, the principal gave the Tribunal an opinion on 14 May 2006 that the applicant's academic results during all four terms of his enrolment at the high school during 2005 were not satisfactory, except in the subject of Chinese.

There was therefore before the Tribunal evidence covering the same periods of time during 2005 showing that the applicant was enrolled in one course in which attendances and results were recorded or certified by its provider as being satisfactory, and was enrolled in another course for which this was not recorded or certified.

As I have indicated above, the Tribunal thought that there was power to cancel the applicant's visa if the applicant failed to satisfy the requirements of the visa condition in relation to one of his courses, upon an opinion that he "must satisfy condition 8202 in relation to both" registered courses in which he was enrolled at the same time. It therefore regarded as irrelevant that the applicant may have satisfied condition 8202 in relation to only one of his courses. It did not discuss the issues of legal interpretation upon which this opinion must have been based.

Ground 1 of the application to the Court raises the correctness of the Tribunal's legal opinion. This requires me to address the effect of condition 8202 in a situation where no previous authority of which I am aware sheds direct light. This is surprising, considering the volume of cases concerning condition 8202 in its various forms.

The power of cancellation which was addressed by the delegate and, on review, by the Tribunal was correctly and sufficiently identified by the Tribunal:

7. Section 116(1)(b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa and is relevantly set out below.

(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 ...

(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.

8. Regulation 2.43 sets out the prescribed circumstances referred to in section 116(3) and are relevantly set out below for Student visas which were in force on or after 8 October 2005.

Regulation 2.43. Grounds for cancellation of visa (Act, s.116)

(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are ...

(b) in the case of a Student (Temporary) (Class TU) visa ...

(A) the visa holder has not complied with condition 8202; and

(B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.

9. The effect of section 116 and regulation 2.43(2)(b)(ii) is that, if the Tribunal is satisfied that the visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the visa holder's control, it must cancel the visa.

It was common ground before me that the Tribunal also properly identified the relevant version of condition 8202 which attached to the applicant's visa. Its terms were:

VISA CONDITIONS

CONDITION 8202 -

12. The version of condition 8202 which applied on 25 October 2004, being 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.

In Uddin v Minister for Immigration & Anor [2006] FMCA 1041 ("Uddin"), I rejected an argument that this condition imposes requirements of enrolment, attendance and results on a holder of a student visa only in relation to the first course which he undertakes while holding his visa. In that case, I held that a consideration of substantial compliance with the condition during the life of the visa allowed a Tribunal to examine whether a student met 8202 requirements in relation to a second course in which the applicant enrolled subsequent to his first course. My essential reason for this conclusion was that condition 8202 is intended to regulate the student's conduct through the currency of the whole period of his visa. I considered that it required that throughout that period he should be undertaking studies by being enrolled in one or more courses in relation to which he could show satisfaction of the requirements in condition 8202(3) as to attendance and performance.

I was not required to decide in Uddin, and did not decide, that a student who enrolled in concurrent courses was required by condition 8202 to satisfy its requirements in relation to each course over the same period. I do not consider that the language of my judgment should be read to suggest that I was of that opinion, as is submitted by counsel for the Minister. Upon the facts of that case, and the matters argued before me, I addressed only the question whether a student was obliged to comply with condition 8202 in relation to courses consecutively enrolled in over the life of his visa. I remain of the opinion given in Uddin that condition 8202 should be construed as intending to impose a continuing obligation on a student holder over the whole period of his visa as to enrolment, attendance and results in one or more registered course.

Further considerations when construing condition 8202 arise from the context in which a decision as to compliance is made. Under previous versions of condition 8202, which imposed requirements of attendance and results for "the course", rather than for segments of a course, it was held that a determination of non-compliance could only be made after the completion of the course. Only after that date, could it be determined in retrospect whether attendance and results met the prescribed standards (see Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 ("Ahmed") at [49]-[51]). Although amendments to condition 8202 subsequently defined its attendance and results requirements by reference to "each term or semester (whichever is shorter)" of a course lasting more than a semester, in my opinion, the point made in Ahmed continues to be relevant, with the qualification that "the time for compliance with the condition" (see Ahmed at [51]) may arise at the conclusion of each semester or term of a course, as well as at the conclusion of the course.

The point I wish to make at this stage of my discussion is that the present condition 8202 is framed so that a determination of whether a student meets its requirements may be made at any point of time during its currency or subsequently, but must have reference to a defined past period of time within the currency of the visa, being a lesser period than the period of visa, and possibly a lesser period than the period of any course or courses in which the applicant has enrolled in from time to time during the visa. The issue of compliance posed by condition 8202 is whether, in retrospect, a period within the life of the visa can be identified when the applicant can be found to have failed to "meet" its requirements.

Other authorities have addressed the position of the Tribunal on review of a cancellation decision under s.116 of a student visa by reference to condition 8202. They held that this requires the Tribunal to consider whether non-compliance by the student is shown to have occurred so as to justify cancellation as at the same date that the delegate made his or her decision (see the authorities referred to in Ahmed at [45], in particular Weinberg J in Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513 at [61]-[63]). For both decision-makers, a decision on cancellation is made in retrospect, but the Tribunal may have the benefit of additional evidence showing the situation over the period of the visa in which the non-compliance is alleged to have occurred.

From these operative aspects of condition 8202, I turn to consider its legislative context shown by definitional provisions. The search is for clues whether the condition intends a student to show compliance throughout the period of the visa in relation to every course concurrently enrolled in, or only with at least one of them at every point in time.

The term "registered course" is defined in reg.1.03 of the Migration Regulations as "a course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students".

27.

"Education provider" is defined "for a registered course in a State or Territory, means each institution, body or person that is a registered provider of the course in that State or Territory, for the Education Services for Overseas Students Act 2000".

Under the Education Services for Overseas Students Act 2000 (Cth) "course" is defined as "a course of education or training" and "registered" is defined as "registered under Part 2". "Registered provider" is defined as "for a course for a State means an approved provider that is entered on the Register as a provider for the course for the State".

In Part 2, providing for registration of approved providers, s.8 makes it an offence to provide a course to an overseas student without being registered "to provide that particular course for that particular State".

Under s.9 the Secretary is obliged to register a provider for a course if the provider is recommended for registration by a designated authority "to provide a specified course in that State to overseas students". The designated authorities are identified in the laws of the State as "the person responsible under the law of the State for approving providers".

The duties on a registered provider include the following under s.19:

Giving information about accepted students

(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:

(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;

(b) for each person who becomes an accepted student-the name, starting day and expected duration of the course for which the student is accepted;

(c) the prescribed information about an accepted student who does not begin his or her course when expected;

(d) any termination of studies by an accepted student before the student's course is completed;

(e) any change in the identity or duration of an accepted student's course;

(f) any other prescribed matter relating to accepted students.

(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.

It is thus apparent that the scheme within which condition 8202 operates anticipates that the Secretary will be given notice of every course enrolled in by a student holding a visa at the time of that enrolment. Multiple enrolments, whether consecutive or concurrent, are therefore a matter which one would expect the decision-makers in relation to compliance decisions to be aware of and to be able to take into account. I consider that this consideration is important to the present question of construction. It does not answer the question as to whether a student who embarks on concurrent enrolments is obliged to satisfy attendance and results requirements in relation to all courses concurrently enrolled in or only one of them, but it suggests that it is administratively practicable for a delegate under s.116 to be able to address condition 8202 under both constructions argued before me.

A further context in which the language of condition 8202 might be considered is provided by the complex criteria under which student visas of the various subclasses, of which the present applicant's subclass 571 is but one, may be granted. However, neither counsel took me to any of the criteria as elucidating the present issue of construction. This is probably because the task of distilling a relevant and uniform policy from these complex regulations is impossible. This suggests that the requirements of condition 8202 were drafted to provide a self-explanatory scheme which is able to condition the holding, after grant, of a multitude of student visas with different qualifications.

I have briefly surveyed the alternative criteria in, for example, item 571.211 of Sch.2 of the Migration Regulations for qualifying for the grant of a subclass 571 visa. I was unable to find in those provisions any suggestion that condition 8202 is assumed to apply to require a student to meet its requirements in relation to each and every course in which a student enrols over the period of his visa, in particular during periods when he has concurrent enrolments in registered courses.

Nor could I find in the criteria for granting student visas any support for the suggestion in the Minister's submissions, which reflected a submission which counsel for the applicant had made in Uddin and which I did not find it necessary to decide in Uddin, that condition 8202 should be interpreted by reference to the first course embarked upon by an applicant, or by reference to the course which the applicant put forward as his intended course when applying for his student visa.

As presently informed, I do not consider that condition 8202 can so be construed. Rather, I consider that the condition must be construed according to its own language in the general context that it is a condition intended to govern all student visas, being visas which can be generally described as being granted to people for the purposes of allowing them to embark upon unspecified studies in Australia, so long as those studies are studies provided by a registered education provider in relation to the courses studied.

Turning to the language of the condition, its simple construction, in my opinion, suggests that a student may "meet the requirements of subclauses (2) and (3)" (see subcl.(1)) if the student can point to any one course in which he is enrolled over any period of time within the life of his visa which is "a registered course", and if, in relation to that course over that period, its "education provider" keeping attendance records has records showing either subcl.(3)(a)(i) or (ii) and certifies as to results in terms of subcl.(3)(b)(i) or (ii). I cannot find in the simple language of the condition a requirement that every education provider for every course in which the applicant is enrolled at any one period of time must so certify and keep records before the applicant can be found to "meet the requirements of subclauses (2) and (3)".

Counsel for the Minister attempted to achieve such a requirement in the language by use of s.23 of the Acts Interpretation Act 1901 (Cth) which allows that "words in the singular number include the plural" unless the contrary intention appears. She argued that, using this provision, condition 8202(2)(a) should be read as addressing two separate circumstances at any one period of a student visa: where a student enrolled in one registered course, or where a student enrolled in multiple courses. She argued that in the second circumstance, when references in condition 8202(3) to "whose education provider" and "the course" are also read in the plural, compliance is required by such a student in relation to every such course.

I am ready to accept that s.23 may assist the construction of condition 8202 in some situations. However, I do not consider that it assists the present question of construction. I cannot read condition 8202(2) as intending to place more onerous obligations on a student with concurrent enrolments than it would place on a student enrolled in only one course from time to time. I consider that it is a condition intended to operate equally on all student visas, so that every student is required to show in relation to any period of his visa that he is enrolled in at least one registered course whose provider has records and will certify in terms of condition 8202(3)(a) and (b). The simple language is open to such a construction, and this appears clearly preferable.

On this reading, the singular reference in condition 8202(2) to "is enrolled in a registered course" is significant, and has the meaning of "is enrolled in at least one registered course", thereby allowing for the possibility of multiple enrolments. Reading condition 8202(3) as a consecutive provision, its reference to "whose education provider" and "the course" readily read as a reference to the provider and course for any one such course. If the student so "meets" the requirements in relation to one such course, it is irrelevant that he may not "meet" them in relation to another course in relation to the same period.

I have considered whether the context, operation and intent of the condition would support the construction adopted by the Tribunal in this case and supported by the Minister, but I do not consider that it does. In my opinion, the simple language produces the simple and easiest construction, both in terms of a student attempting to satisfy his visa conditions and an administrator addressing from time to time whether there is non-compliance (c.f. Islam v Minister for Immigration & Anor [2006] FMCA 1229 at [23]).

Considering fairness to a student visa holder (c.f. Katz J in Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575; (2000) 106 FCR 257at [42]), it is fair to allow in my opinion a student to attempt more than one registered course over any one period, and not to lose his visa because his attempt fails in relation to one course but not another. The condition is intended to allow the student to attempt studies in relation to registered courses generally, and I cannot see that the objects of the condition are harmed by a student showing satisfactory enrolment, attendance and results in relation to only one registered course from time to time over the life of his visa.

Looked at from the perspective of the administrator, as I have pointed out above the broad scheme of student visas and the ESOS Act anticipates that the Minister and Secretary for the purposes of the ESOS Act will have available information allowing delegates to have knowledge of all courses in which a student is enrolled, so as to be able to assess or obtain information as to attendance and performance in every course. A delegate, and on review a Tribunal, should readily be able to determine whether at a particular point in time in relation to a past period of time a student has met the requirements of condition 8202 in relation to his enrolment in one registered course.

It is also appropriate, in my opinion, to take into account the strict consequences of a breach of condition 8202. These were, in the past, draconic (c.f. Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [66], and Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333 at [30]). They have been somewhat mitigated by amendments which now allow a decision-maker to take into account whether a non-compliance was "due to exceptional circumstances beyond the visa holder's control" (see Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96 at [44]).

However, that amelioration would not remove the potential harshness of the construction suggested by the Minister for a student endeavouring to complete two courses at once. As is illustrated in the reasoning of the present Tribunal, if such a student failed in his attempt in relation to one course because of the demands of the other course, he would have difficultly establishing that this was an exceptional circumstance beyond his control. Yet in my opinion, his conduct would have been consistent with the objects of his student visa.

For all the above reasons, I do not accept the construction of condition 8202 which is supported by the Minister.

This construction was adopted by the Tribunal, but without any examination of alternative constructions. Its critical reasoning in relation to compliance with condition 8202 during 2005 by this applicant was:

Grounds for cancellation

Compliance with condition 8202

43. The delegate made a decision to cancel the review applicant's visa pursuant to paragraph 116(1)(b) and subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations because of her finding that the review applicant had not complied with condition 8202 because the review applicant's attendance of scheduled contact hours for his course was below the required 80% for terms 1 to 3, 2005 and his academic results for those terms was not certified by his education provider as being at least satisfactory. On 14 May 2006 Turramurra High School informed the Tribunal that the review applicant's attendance for course contact hours was for: Term 1, 2005 79.7%; Term 2, 2005 58.8%; and Term 3, 2005 49.8% and that for all subjects except Chinese the review applicant's academic progress was not at least satisfactory for terms 1 to 4, 2005. Therefore, on the evidence the Tribunal finds that the review applicant has not attended his course for at least 80 percent of the contact hours scheduled for Terms 2 or 3 of 2005 for that course and the review applicant has not achieved an academic result that is certified by the education provider to be at least satisfactory for each of the Term 1, 2, 3 or 4 of 2005. The Tribunal also finds that the review applicant has breached condition 8202 of his last held Subclass 571 visa.

44. The review applicant provided evidence that while he was a student at Turramurra High School in 2005 he was also a student at Pacific College of Technology. The visa applicant appears to be enrolled in 2 registered courses at the same time and therefore, must satisfy condition 8202 in relation to both.

It is apparent from the conclusion at the end of this reasoning that the Tribunal adopted the construction which I have rejected, that is that a student with concurrent enrolments in registered courses at the same time "must satisfy condition 8202 in relation to both".

It was not contested by counsel for the Minister that if I rejected that construction, the Tribunal should be found to have made a jurisdictional error by reason of a serious misinterpretation of the regulations. She also accepted that the applicant would be entitled to relief by way of a writ of certiorari to quash the Tribunal's decision and a writ of mandamus to require it to reconsider the matter.

In its reconsideration, it will be necessary for the Tribunal to address afresh the questions raised by condition 8202 in relation to the applicant's enrolment in the Pacific College of Technology course during 2005.

I note that I was not invited by counsel for the applicant, and would not have been able on the material before me, to make a finding that only one outcome was open in the matter before the Tribunal, so as to avoid the need to remit the matter. For the same reason, I would not have granted relief quashing the delegate's decision to cancel, as well as the Tribunal's decision. In that situation, I therefore do not need to consider whether I would have had power to give relief directed at the delegate's decision under the Court's ancillary jurisdiction in s.18 of the Federal Magistrates Act 1999 (Cth), notwithstanding the exclusion of this Court's jurisdiction in relation to primary decisions which is found in s.476(2)(a) of the Migration Act.

It is accepted that costs should follow the event, but the amount which should be awarded is unclear since the applicant's present legal representatives may have been instructed quite recently. If the amount cannot be agreed, I consider that in the special circumstances of this case the costs should be taxed under the Federal Court rules.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Smith FM