Yoshua v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 Until December 2004 the applicant, who is a national of Indonesia studying in Perth, was the holder of a student visa. She was a student at the Alexander Institute of Technology. On 15 December 2004 her visa was cancelled because of her failure to comply with a condition of her visa by attending at least 80% of the scheduled contact hours in the course for which she was enrolled. She sought review of that decision in the Migration Review Tribunal (the Tribunal). The decision was affirmed. She now seeks judicial review of the Tribunal's decision. 2 Review is sought on the ground that the Tribunal wrongly treated the cancellation of her visa as mandatory upon non-compliance with a condition relating to course attendance. It is also said that mandatory cancellation only arises where there is a conjunction of circumstances including the circumstance that the visa holder is directly or indirectly a risk to Australian national security. Neither of the propositions advanced is tenable. Both fly in the face of recent Full Court authority - Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238. For the reasons that follow the application will be dismissed with costs. Factual and Procedural History 3 Verly Montolalu Yoshua is a national of Indonesia. She was born on 27 March 1985. Since 2001 Ms Yoshua has undertaken post secondary studies in Australia. She undertook a 29 week Intensive English Course at Phoenix English Language Academy in 2001 which she completed in February 2002. She also undertook a Tertiary Preparation Course at Notre Dame International which is part of the University of Notre Dame Australia located in Fremantle. That course was also completed in February 2002. 4 In June 2003, Ms Yoshua enrolled at the Alexander Institute of Technology. She completed a Certificate IV in Information Technology and then commenced studies towards an Advanced Diploma in Business. While her attendance up until the trimester commencing 11 October 2004 was satisfactory, she experienced symptoms of anxiety, depression and related physical illness which affected her ability to attend thereafter. During her time in Australia Ms Yoshua has had a series of student visas. On 26 March 2004 she was granted a Student (Temporary) (Class TU) visa, subclass 573 which was valid until 15 March 2006. 5 On 29 October 2004, Ms Yoshua attended at the Belmont Counselling Clinic and consulted a psychologist, Ms Ashley Frew. Ms Frew observed that she presented initially with high levels of anxiety and stress. Her stress manifested in a number of somatic symptoms including headaches, stomach aches and lethargy. Her emotional and physical state at the time was seen by Ms Frew as impeding her ability to attend to her college work. Ms Yoshua agreed to see Ms Frew weekly to learn stress management skills. In a report dated 10 December 2004 Ms Frew indicated that Ms Yoshua had shown improvement and that she was well enough and able to do all activities including her studies. She had shown a genuine commitment to change within therapy sessions. It appears, however, that during the period from 14 October 2004 to 26 November 2004 Ms Yoshua had been absent from a significant number of contact classes. 6 On 30 November 2004, the Alexander Education Group, which operates the Alexander Institute of Technology, sent Ms Yoshua a notice pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) asserting that she had breached a condition of her student visa relating to attendance in the course in which she had been enrolled at the Alexander Institute. The particulars of breach were stated thus: 'Unsatisfactory attendance for tri-mester 11/10/2004-04/02/2005. 68% not including MC's and Excused absences and 77% including MC's and Excused absences.' The term 'MC' stands for Medical Certificate. The notice read: '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.' The notice also advised that under s 137K of the Migration Act 1958 (Cth) (the Act) a non-citizen whose visa had been cancelled under s 137J could apply once in writing to the Minister for revocation of the cancellation. 7 On 13 December 2004 Ms Yoshua attended on an officer of DIMIA who gave her a Notice of Intention to Consider Cancellation under s 116 of the Act. The ground of the proposed cancellation was stated thus: 'Your education provider (Alexander College) has notified DIMIA that they do not certify your attendance as at least satisfactory for the trimester 11/10/2004 to 04/02/05. Attendance 68% not including medical certificates and excused leave - 77% including Medical Certificates and excused leave…' The statement went on to note that the Department had been advised that she would not be able to achieve 80% attendance in the current trimester. 8 Ms Yoshua was interviewed by a delegate of the Minister on 15 December 2004, who decided to cancel her visa. The reason stated in a pro forma document entitled 'Notification of Decision to Cancel Visa under Section 116 of the Migration Act 1958' was: 'Does not have attendance of at least 80% which is a breach of visa condition 8202 for the period 11/10/04 to 4/2/05.' 9 On 22 December 2004, Ms Yoshua applied to the Tribunal to review the cancellation decision. Pending the outcome of that process she applied for, and was granted, a bridging visa E. On 7 June 2005, the Tribunal affirmed the decision to cancel her visa. 10 On 5 July 2005, Ms Yoshua filed an application in this Court under s 39B of the Judiciary Act 1903 (Cth) seeking orders quashing the decision of the Tribunal and remitting the matter to the Tribunal to be determined in accordance with law. The Statutory Framework 11 The Education Services for Overseas Students Act provides, inter alia, for the registration of approved providers of courses of education or training for overseas students. An approved provider for a course for a State is defined in s 5 of the Act as a 'provider approved by the designated authority for the State to provide that course in that State to overseas students…'. A 'registered provider' for a course for a State refers to an approved provider that is entered on the Commonwealth Register of Institutions and Courses for Overseas Students kept under s 10 of the Act. 12 Among the obligations on registered providers is that imposed by s 20 which provides, inter alia: '(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. (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.' 13 Section 137J of the Act provides: '(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services of 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: (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 makes provision for a non-citizen whose visa has been cancelled under s 137J to apply in writing to the Minister for revocation of the cancellation (137K(1)). This applies only to the case in which there has been automatic cancellation by force of s 137J. That is not the present case. 15 Section 116 of the Act provides, inter alia: '(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; … (g) a prescribed ground for cancelling a visa applies to the holder. (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.' 16 Regulation 2.43 sets out grounds for the cancellation of visas under s 116. Regulation 2.43 (as it applied at the time of the cancellation of Ms Yoshua's visa) provided, inter alia: '(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are: (a) that the Foreign Minister has personally determined that the holder of the visa is a person whose presence in Australia: (i) is, or would be, prejudicial to relations between Australia and a foreign country; or (ii) may be directly or indirectly associated with the proliferation of weapons of mass destruction; (b) that the holder of the visa has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security; … (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.' 17 Condition 8202 set out in Schedule 8 of the Migration Regulations provides: '(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 a secondary 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.' The Tribunal's Reasons for Decision 18 After reviewing the factual background of the case the Tribunal referred to the procedures set out under the Act for cancelling visas. It held that the procedure followed by the delegate complied with the provisions of the Act. The delegate's notice of intention to cancel the visa clearly set out the nature of the alleged breach and the relevant semester. Ms Yoshua was not interviewed immediately upon receipt of the notice and so had time to consider the notice and prepare her response. 19 The Tribunal then referred to s 116, reg 2.43(2)(b) and condition 8202. It observed that following the decisions of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 it had no discretion to set aside a visa cancellation where there had been a substantiated breach of condition 8202. Once non-compliance with the condition was established the Tribunal was bound, by the operation of s 116(3), to affirm the visa cancellation. 20 The Tribunal identified, as the issue for review, whether there was a breach of condition 8202(3)(a) by Ms Yoshua during trimester 3 of 2004. It noted her admission that even if absences covered by medical certificates were included in her attendance figures, her attendance during the period in question would be 77% and therefore would not meet the 80% minimum level required by condition 8202. 21 The Tribunal then said (at [27]): 'Having carefully considered all of the evidence, including the contents of the NCN [Non-compliance Notice] and the NOICC [Notice of Intention to Consider Cancellation] and the admissions and submissions of the review applicant, the Tribunal finds that the review applicant failed to attend at least 80% of scheduled contact hours during trimester 3 of 2004. The Tribunal therefore finds that the review applicant breached condition 8202(3)(a) of her subclass 573 student visa during that period.' Grounds of the Application 22 The grounds of the application were stated as follows: '1. The Tribunal has made a jurisdictional error, being an error of law in determining what the Minister may take into account in reaching satisfaction, for the purposes of Migration Regulation 2.43 that the visa holder has not complied with condition 8202 in Schedule 8 of the Migration Regulations. Particulars (a) The Tribunal erred in law in concluding that the Minister and the Tribunal had no discretion but to cancel the Applicant's visa. (b) The Minister had a discretion as to whether or not he was satisfied that the visa holder had complied with condition 8202. (c) The Minister and the Tribunal erred in law in failing to conclude that it was open to the Minister and the Tribunal to take into account the Procedure Advice Manual 3: Generic Guidelines G - Student Visas and Migration Series Instruction 382: 'Visa Cancellation under sections 109, 116, 128 and 140 in exercising that discretion.' (sic) Migration Series Instruction 23 In the course of argument an extract from the Migration Series Instruction entitled 'MSI 368: VISA CANCELLATION UNDER SECTIONS 109, 116, 138 AND 140' was handed up to the Court. The MSI is evidently a temporary departmental manual. According to its terms MSI 368 is intended for ultimate incorporation into PAN 3. 24 Paragraph 17.2 of the MSI referred to primary considerations in relation to the cancellation of temporary visas under s 116. The Instruction addressed the exercise of discretions to cancel temporary visas. There was no specific reference in this context to condition 8202. In the event the MSI has no bearing on the outcome of this case. The Question of Discretion 25 In connection with the first ground of the application it was submitted for Ms Yoshua that the delegate had a discretion as to whether or not he or she was satisfied for the purposes of reg 2.43(2)(b), that she had not complied with condition 8202. However there can be no question of the exercise of a discretion when the delegate is required simply to form a state of satisfaction as to compliance with a visa condition. Condition 8202 itself imports a state of satisfaction that the visa holder has attended for at least 80% of the contact hours scheduled for the course. Both states of satisfaction go to the underlying issue of fact which has to do with the number of hours of course attended. No evaluative judgment is required and certainly no discretionary judgment. Whether Cumulative Breaches are Necessary 26 The principal argument advanced in support of Ms Yoshua suggested, more than a little improbably, that the criteria for mandatory cancellation pursuant to reg 2.43(2) are conjunctive. This would require not only that the visa holder had failed to attend a minimum of 80% of the scheduled contact hours but also that the Foreign Minister had determined that she was a person prejudicial to relations between Australia and a foreign country, or directly or indirectly associated with the proliferation of weapons of mass destruction (reg 2.43(1)(a)). In addition it would be necessary that the holder of the visa had been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security (reg 2.43(1)(b)). 27 The proposition has only to be stated to be exposed as absurd. Regulation 2.43(2) sets out, in the alternative, circumstances upon which the Minister is required to cancel a visa. The use of the word 'and' at the end of reg 2.43(2)(a) merely connects two classes of different circumstances each of which can give rise to a mandatory cancellation. 28 The point is made clear by the observation of the Full Court in Tian (at [66]): 'Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.' 29 The last sentence of that passage negates the submission put on behalf of Ms Yoshua. The first part of the passage negates the first proposition advanced on her behalf. This application was doomed from the outset. It should never have been brought. The application will be dismissed. The applicant will be required to pay the first respondent's costs of the application. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.