Yu v Minister for Immigration & Anor [2009] FMCA 1161

Mr Yu was born in November 1989, and came to Australia in February 2007 as the holder of a student visa, subclass 571 (school sector). The visa expired on 23 July 2007, and was renewed by the issue of another visa of the same subclass on that day.
During 2007 he was enrolled in studies at Global College Pty Ltd ("Global College"). In circumstances that are obscure on the evidence before me, he ceased to attend his classes on a regular basis at some point during 2007. Later, in September 2008, he said that he "at first attended some classes, then truanted and moved addresses constantly and school unable to contact me". On 19 November 2007, Global College certified, pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) ("the ESOS Act"), that he had not achieved satisfactory course attendance. Information provided by Global College to the Department of Immigration at that time said: "Mr Yu's course commenced 26/02/2007 and his last study date was 13/07/2007" (see page 13 of the Court Book).
The exact date upon which Mr Yu ceased to be enrolled in his course at Global College is not clearly identified in the evidence before me. Nor, so far as I can detect, was it clearly shown in the evidence which was before the delegate and the Tribunal when they made the decisions which I am reviewing. It was, however, uncontested that Mr Yu had ceased to be formally enrolled in his course at Global College before the end of 2007, and that this probably occurred prior to the issue by Global College of the s.20 certificate.
As a result of Mr Yu failing to respond to the s.20 notice, his visa was regarded in the records of the Department as having been cancelled by operation of law under s.137J of the Migration Act 1958 (Cth). It is unclear how Mr Yu discovered this fact, however he did so no later than September 2008, when he was taken into custody by the New South Wales Police. He then attempted to improve his immigration status.
On 10 September 2008, he completed a form seeking revocation of the automatic cancellation of his student visa on the ground: "I have an outstanding matter with NSW Police". This was considered by an officer in the Department of Immigration. The officer appears not to have been moved by either the ground presented by Mr Yu nor any other circumstance attending Mr Yu's failure to complete his course at Global College. However, he took the view that there had not been a legally effective automatic cancellation. He therefore made a decision purporting to revoke the automatic cancellation on 4 November 2008.
At around the same time, the immigration officer decided to commence alternative procedures for cancelling Mr Yu's student visa pursuant to s.116 of the Migration Act, not based upon his failure to achieve satisfactory course attendance and the negative certificate issued by Global College, but upon the undisputed fact that by November 2008 Mr Yu was not enrolled in any course of studies with any registered education provider in Australia. Correspondence putting this contention was sent to Mr Yu's last known address, and did not receive a response, because he no longer lived there and had not given the Department any alternative address for correspondence.
A decision to cancel the visa was made on 1 December 2008. In the delegate's statement of reasons, it is clear that the delegate addressed the state of Mr Yu's enrolment at the time of decision, and based the decision upon a conclusion that: "there is no evidence before this Department to indicate you are currently enrolled in a registered course of study".
It is uncontested that Mr Yu's subclass 571 visa was at all relevant times subject to a condition, among other conditions, under condition 8202(2)(a) of Sch.8 of the Migration Regulations 1994 (Cth):
- 8202
  - ...
  - (2) A holder meets the requirements of this subclause if:
    - (a) the holder is enrolled in a registered course; or...
It is also uncontroversial in the present proceedings that the provisions of s.116(1) and (3) made cancellation of Mr Yu's visa mandatory for breach of this condition, subject to one exemption. This was found in the provisions of reg.2.43(2)(b):
- 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:
      - (i) ...; or
      - (ii) that the Minister is satisfied that:
        
        (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.
In the absence of any assertion by Mr Yu that his failure to be enrolled in a registered course in late 2008 was "due to exceptional circumstances beyond the visa holder's control", the delegate was not satisfied that the sole ground of excuse had been made out.
The notification of the cancellation decision was sent to Mr Yu's last known address, but appears not to have reached him there. However, it did reach him within a day or two of the decision, since he had been taken into Immigration detention on 2 December 2008. While held in Immigration detention he employed a migration agent to lodge an appeal to the Migration Review Tribunal against the cancellation of his student visa. He attended a hearing of the Tribunal, and his agent presented a written submission in response to an invitation to comment.
Before the Tribunal, Mr Yu did not take any factual or legal challenge to the delegate's focusing upon his enrolment status in November 2008, and did not challenge that he did not comply at that time with the relevant enrolment condition in condition 8202. His case to the Tribunal sought to excuse that situation. His agent submitted:
- 3. Mr Yu claims that his breach of condition 8202 was due to exceptional circumstances. His enrolment status at Global College was terminated due to the poor management and the subsequent closure of that school and this is beyond the applicant's control. After Global College was closed, he had difficulty getting enrolled at a new school because he could not obtain his academic transcript from Global and could not get a refund of his tuition fee from Global or from ESOS Fund.
- 4. Mr Yu claims that he is not the only one whose study has been affected by Global's collapse. He knows at least two other classmates who are still waiting for refund from Global or from ESOS Fund and at the same time looking for a new education provider.
- 5. Mr Yu has now obtained a Letter of Offer from the Cambridge College International. He will study 20-week Cambridge English Language Course at this school A copy of the offer letter is enclosed.
So far as I can detect, the evidence before the Tribunal was unclear as to exactly when Global College was closed. However, it was suggested from the bar table that it was common knowledge that its colleges closed and it went into liquidation in early 2008.
The Tribunal made a decision on 22 January 2009, affirming the delegate's decision to cancel Mr Yu's subclass 571 school sector visa. The Tribunal assumed that it was open to it to address whether Mr Yu did not comply with his visa condition 8202(2)(a) as at the date of the Department's cancellation decision, that is, in December 2008. It found that there was non-compliance at that time. It said:
- 37. The applicant's visa was cancelled on the basis of a failure to comply with a condition of the visa: s.116(1)(b). The delegate found that the applicant had not complied with condition 8202 because the applicant was not enrolled in a registered course. For the following reasons, the Tribunal is satisfied that the applicant has not complied with a condition of the visa.
- 38. Condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. There is no evidence before the Tribunal to establish that the applicant was enrolled in a registered course at the date of the Department's cancellation decision, 1 December 2008. The applicant gave evidence relating to why he had not been able to continue his course at Global College, where he had been enrolled in a language course in 2007. He also gave evidence regarding the difficulties in finding a new education provider, but confirmed he had no evidence that he was enrolled in a registered course at the date of the Department's cancellation decision. The applicant has provided evidence of a letter of offer from Cambridge College International to undertake a course commencing on 2 February 2009. The Tribunal finds this does not establish he was enrolled in a registered course at the time of the Department's cancellation decision.
- 39. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, it finds that the applicant has not complied with condition 8202(a).
The Tribunal then addressed Mr Yu's case for satisfying the "exceptional circumstances beyond his control" ground for avoiding cancellation. It noted his history in his dealings with the Department during 2008, and his claims concerning the closure of Global College. However, it concluded:
- 46. On the applicant's own evidence, the circumstances at Global College that resulted in the termination of his enrolment there occurred in late 2007. Given the period when this occurred, the Tribunal does not accept that the applicant's failure to be enrolled in a registered course at 1 December 2008 was due to the circumstances of the termination of the applicant's enrolment at Global College, or its closure. While these circumstances may have necessitated action to identify and enrol in another course, the Tribunal does not accept that they prevented the applicant from enrolling in another registered course. The Tribunal also does not accept that the applicant would have been prevented in enrolling in another registered course by the other problems he experienced such as obtaining records and a refund of fees. The Tribunal thus does not accept that the applicant's failure to be enrolled in a registered course at 1 December 2008 was due to the circumstances related to Global College.
A copy of the Tribunal's decision was sent by fax to Mr Yu's agent and authorised recipient on the day it was delivered. There is no evidence that it was not promptly brought to his attention by his agent. He was at that time still in Immigration detention. The letter drew his attention to a time limit for seeking judicial review:
- If you disagree with the Tribunal's decision, you may have a limited right to seek judicial review in the Courts. There are strict time limits in which an application for judicial review must be lodged. You should obtain independent legal advice immediately if you wish to seek judicial review.
Mr Yu has not presented any affidavit or any sworn evidence to the Court explaining his subsequent failure to commence judicial review proceedings challenging the Migration Review Tribunal's decision until the present proceeding was commenced on 4 August 2009. However, his counsel today sought to persuade me to draw inferences as to his possible explanations, including by referring me to subsequent proceedings which are recorded in the evidence before me, in which Mr Yu pursued a protection visa. His visa application for this was lodged by a different migration agent on 11 February 2009, after Mr Yu requested legal assistance under the IAAAS scheme. This was pursued with the assistance of the new agent into the Refugee Review Tribunal, which gave a decision adverse to Mr Yu on 12 May 2009. He then commenced an application for judicial review in this Court, remaining all that time in Immigration detention. Ultimately, a notice of discontinuance was filed by him on 4 August 2009. On the same day, he filed his application in the present matter, seeking to revive his entitlement to a student visa by way of setting aside the previous cancellation decisions. Mr Yu's present counsel referred me to the fact that the notice of discontinuance was filed after Mr Yu received free legal advice from that counsel, and that the new application was prepared with that counsel's assistance.
I am ready to accept that Mr Yu's actions in August 2009 were the result of legal advice given at that time and not earlier. However, I am not prepared to assume that he was unable to obtain appropriate legal advice earlier in relation to judicial review proceedings concerning the MRT decision. In the absence of sworn evidence from Mr Yu explaining his actions, and his preference for pursuing a protection visa rather than his rights of judicial review in relation to his student visa, I consider that his material failure to observe the time limit on applications such as the present has not been satisfactorily explained.
That delay gives rise to an objection to competency taken by the Minister based upon the effect of s.477(1) of the Migration Act, as amended by the Migration Legislation Amendment Act (No. 1) 2009 (Cth). A 35 day time limit arises from the date of the decision which is challenged. Under transitional provisions concerning decisions made prior to the date of commencement on 15 March 2009, the 35 day period is deemed to expire around 21 April 2009 (see SZLUC v Minister for Immigration & Anor [2009] FMCA 378 at [10], and Rinka v Minister for Immigration & Citizenship [2009] FCA 465 at [5]- [6]). Mr Yu, therefore, needs to obtain, and has applied for, an order of the Court extending time from that date, pursuant to s.477(2). This can only be granted if "the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order".
Contrary to the Minister's submission that I should address this power by reference to the period since January 2008, I consider that only the shorter period should be addressed, commencing at the end of the period fixed under the transitional provision. This view of the effect of the transitional provisions appears to have been taken by Crennan J in MZXLD v Minister for Immigration & Citizenship & Anor [2009] HCATrans 282. The period of relevant delay is, therefore, in the region of three months. This is not an exorbitant length of time, but one which would normally call for some satisfactory explanation. However, absent sufficient explanation, other considerations pointing to extending time might arise from my assessment of the merits of the grounds taken in the application, and I shall address those issues first before returning to the question of extension of time.
In my opinion, one point is raised in the grounds of the application, although it formulates it in alternative ways:
- Grounds of Application
- The decision of the Tribunal was affected by jurisdictional error because the Tribunal constructively failed to exercise its jurisdiction in that, in determining whether the applicant's non compliance with visa condition 8202(2)(a) of Schedule 8 Migration Regulations 1994 (concerning continuing enrolment in a registered course) was due to exceptional circumstances beyond his control pursuant to reg 2.43(2)(b)(ii)(B), the Tribunal asked itself the wrong questions and failed to take into account relevant considerations.
  - 1. Wrong Questions
- The Tribunal asked itself the wrong questions about the time or occasion of non compliance with visa condition 8202(2)(a).
- Particulars
  - a. The Tribunal regarded the relevant time or occasion of non compliance as being as at the date of the Department's cancellation decision, rather than from the time of the grant of the visa. Therefore the Tribunal asked itself whether the applicant was enrolled in a registered course at the time of the cancellation decision.
  - b. The correct question to ask was: from the time of the grant of the visa, when did the applicant first cease to be enrolled in registered course.
  - c. The Tribunal also wrongly asked itself when considering circumstances which resulted in the termination of the applicant's enrolment whether these circumstances prevented the applicant from enrolling in another course.
  - d. The correct question to ask was whether these circumstances which resulted in the termination in the applicant's enrolment were exceptional and beyond the visa holders control.
- 2. Fail to Take Into Account Relevant Considerations

The MRT made a finding of fact that the applicant did not maintain enrolment in a registered course. It was for this reason satisfied that the applicant had not complied with the condition (b) in condition 8202, and that reg 2.43 and s 116(3) of the Act required that the applicant's visa be cancelled. In so doing, it made no error of law.
I do not accept Mr Yu's submission that Cooper J's judgment provides authority for the proposition that the time of non-compliance with the 'is enrolled' condition is to be addressed at, and only at, the time when the student first ceases to be enrolled. This does not emerge from the fact of Liu, since the opinion of the Tribunal which was upheld was that the ground of cancellation had occurred at the date of the cancellation decision, at the end of a period of non-enrolment occurring before that date. The case might therefore appear to support the converse of the proposition now relied upon by Mr Yu.
It was submitted that the contrary should be discerned from his Honour's statement in [20] that: "the requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course". However, that statement does not say anything about whether a non-compliance with this condition of 8202 occurs only at one point of time, being the first date of ceasing to be enrolled, or at a later time proximate to the date of cancellation, or repeatedly over any period of non-enrolment.
In my opinion, Cooper J did not intend to suggest that a non-compliance occurred only at the commencement of a period of non-enrolment. This is because at [19] his Honour said: "in the context of condition 8202, enrolment in a course is a continuing requirement". To characterise the condition in those terms suggests to me that his Honour's opinion was that it was a condition requiring continuous compliance on every day during the currency of the visa.
I have arrived, independently of Liu's case, at a similar opinion in several cases. My opinion was based upon a consideration of the purposes of the condition on the student visa. In Yang v Minister for Immigration & Anor (2007) 207 FLR 106, [2007] FMCA 38, I said:
- 20. 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.
- 21. 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.
An interpretation of the 8202 visa conditions as continuously applicable throughout its currency has also received the support of other judges, including Weinberg J, in Wang v Minister for Immigration & Citizenship [2007] FCA 1188. His Honour said:
- 20 The legislation which relevantly governs the issues raised in this appeal is tolerably clear in its effect. Section 116(1)(b) provides that the Minister may cancel a visa if satisfied that its holder "has not complied with a condition of the visa". Section 116(3) provides that in such circumstances the Minister must cancel the visa if there exist prescribed circumstances in which a visa must be cancelled. Clause 2.43(2)(b) of the Regulations relevantly provided, prior to 8 October 2005, that for the proposes of s 116(3) the Minister must cancel a Student (Temporary) Class TU visa if satisfied that the visa holder has not complied with condition 8202. Condition 8202(1) requires the visa holder to comply with sub-clause (2). In order to meet the requirements of sub-clause (2) the visa holder must be enrolled in a registered course: see condition 8202(2)(a). That requirement, as with the other requirements in condition 8202, concerns a continuing state of affairs. In effect, the visa holder is not permitted to cease to be enrolled in such a course: Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 at [19]-[20].
- 21 There is an inexorable and somewhat remorseless logic to this sequence of statutory requirements. The Minister has no discretion in the matter. The Regulations as they stood prior to 8 October 2005 plainly had the potential to operate unfairly. That was subsequently recognised, and clause 2.43 was amended.
  - (emphasis in original)
Counsel for Mr Yu relied on Weinberg J's statements in the above paragraphs in support of his argument in the present case. However, as with Liu, I can find no support for his argument in Weinberg J's description of the requirements of the condition as concerning "a continuing state of affairs", nor in his Honour's statement: "the visa holder is not permitted to cease to be enrolled in such a course". In context, the reference to "not permitted to cease" implies that the holder is not permitted to become unenrolled in a course and to continue in that unenrolled state. There is nothing in these statements which suggest that an act of non-compliance does not occur, or cannot be identified in a cancellation decision, after the date on which the student first ceased to be enrolled.
The draconic effects of the legislation had not been ameliorated in the matter before Weinberg J, nor in another similar matter to which I was referred, Singh v Minister for Immigration [2005] FMCA 1159. The consequence was that as Barnes FM said in Singh at [18]: "cancellation was mandatory", and "any reasons for non-compliance with s.8202 were not relevant". However, I was unable to understand counsel's submission based upon these statements, that the recognition of these consequences allowed the Court to find a limitation on the present power of cancellation, confining a decision-maker to the first act of non-compliance when a student first ceased to be enrolled. Nor was I able to find in any other policy consideration a proper reason for overlooking the evident objective of the condition, which is to provide ongoing obligations on a student to become enrolled and stay enrolled in a registered course, whether with the same or a different education provider, during the currency of a student visa.
In my opinion, the amendments to the Regulations which inserted the extenuating ground that "the non-compliance was not due to exceptional circumstances beyond the visa holder's control", recognise the continuing and repeated nature of a non-compliance during a period of no enrolment. It allows a student to point to extenuating circumstances causing the non-compliances occurring over a period of non-enrolment, and allows a decision-maker to review a whole period of non-enrolment so as to consider whether during that period all the non-compliances shown were able to be excused under reg.2.43(2)(b)(ii)(B). It would be inconsistent with the legislation, to construe the condition as not having a 'continuing' operation, so as to confine its obligations on the student to the start of the period over which the student ceased to be enrolled.
In my opinion, the current structure of the regulations supports the approach taken by the delegate in this case and by the Tribunal, which addressed the circumstances attending Mr Yu's most recent time of non-compliance with the enrolment condition, and considered Mr Yu's explanations for being unenrolled at that time, including his explanations as to his preceding period of non-compliance. I therefore consider that the approach taken by the present Tribunal was consistent with the proper construction of condition 8202(2)(a) and of the power of cancellation governed by reg.2.43(2)(b).
I therefore do not accept any of the arguments presented in support of the grounds of review, all of which are based upon the adoption of a contrary construction.
It was not my understanding that counsel for Mr Yu challenged the reasons of the Tribunal for being satisfied that his failure to be enrolled in a registered course at 1 December 2008 was not due to exceptional circumstances beyond his control, if the legislation permitted it to address his circumstances at that date. However, if such a contention were made, I would not accept it. In my opinion, on the material that was before the Tribunal, it was well open to it to have concluded that, whatever the adverse effects of his experiences at Global College on Mr Yu's student's career during 2007, he subsequently had more than ample time to identify and become enrolled in another suitable course. There was, in my opinion, clearly evidence before the Tribunal which allowed it to arrive at the conclusion that the extenuating ground had not been established in relation to the period immediately leading to the date of the cancellation decision.
For the above reasons, I have not been persuaded by the arguments presented to find jurisdictional error affecting the decision of the Migration Review Tribunal made on 22 January 2009.
I must therefore return to the question whether I should dispose of the present matter by refusing an extension of time, or whether I should extend time but dismiss the application on its merits.
A consideration which I raised with counsel for the Minister, and which might have a bearing on "the interests of the administration of justice", is the effect of refusing an application for an extension of time on an applicant's rights to seek appellate review of the opinions of this Court in relation to points of construction of Migration Regulations. Under s.476A(3)(a) of the Migration Act, a right of appeal to the Federal Court is excluded absolutely if this Court refuses to extend time. Applicants in that situation are left to commence fresh proceedings in the High Court of Australia raising the same point of construction, and necessarily seeking an extension of time to bring that proceeding pursuant to the comparable provisions of s.486A. Recent cases brought in the High Court have illustrated this. They show that its justices have considered whether to extend time and then embark on a first instance interpretation of the contested regulations, or to extend time and remit the matter to this Court to allow the point to travel up the hierarchy of Commonwealth courts. Both courses involve a duplication of the consideration of the interests of the administration of justice. Although the former course might provide an efficient route to the High Court on important points, the latter course might appear to involve an inefficient use of its time.
Counsel for the Minister did not submit that a consideration of the desirability of allowing an applicant access to the Federal Court's appellate jurisdiction was not a consideration which I could address under s.477(2)(b). In my opinion, it does involve issues of "the interests of the administration of justice", and in the present case I have found these considerations to be influential. The point raised by Mr Yu's counsel has not been directly addressed in previous authorities of the Federal Court, and was reasonably arguable. If Mr Yu wishes to seek to challenge my opinions in a superior court, it appears to me to be in the interests of the administration of justice that the Federal Court should be able to address them without Mr Yu being required to invoke the Constitutional jurisdiction of the High Court.
Also taking into consideration the relatively short period for which an extension of time is required, and notwithstanding my lack of satisfaction that the delay is sufficiently explained, I have concluded that it would be appropriate, and "necessary in the interests of the administration of justice", to extend time in this case, and then to dismiss the application for the reasons explained above.
I consider that costs should follow the event, according to the relevant scale for migration matters.

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Yu v Minister for Immigration & Anor [2009] FMCA 1161 (13 November 2009)

Parties

Legislation Cited (1)

Cases Cited (2)