Zhou v Minister for Immigration & Multicultural & Indigenous Affairs

The applicant's submissions 18 The applicant submitted that, as a matter of construction, the purpose of s 20 of the ESOS Act and s 137J of the Act was to give a student the opportunity to explain why he or she had not complied with condition 8202. That meant, in the present case, to give the applicant the opportunity to explain to an officer of DIMIA why he had not achieved satisfactory academic performance. 19 The applicant submitted that the explanation was intended to have some operative statutory effect with respect to the consequence of non-compliance with condition 8202 and that such effect was to be found in giving an ambulatory effect to the words 'has not been complied with' in reg 2.43(2)(b) of the Migration Regulations by adding the words 'without reasonable explanation' or simply by giving the words a less restrictive operation than one requiring strict compliance with the requirement of condition 8202. 20 The applicant submitted that, to fail to give some statutory effect to the words in s 20 of the ESOS Act, the notice given under s 20, or s 137J that it was a requirement 'to attend before an officer for the purpose of explaining the breach', is to treat the direction as a statutory sham because the breach of condition will render cancellation mandatory whether or not the student attends before an officer of DIMIA for that purpose. The applicant further submitted that s 137L indicates that if, notwithstanding a breach of condition 8202, the explanation given is that the breach was due to exceptional circumstances beyond the student's control and that explanation is accepted, the Minister has a discretion not to cancel the visa for breach of condition. Otherwise, the applicant submitted, the student would be better off not attending as required by the notice under s 20 of the ESOS Act because automatic cancellation under s 137J of the Act would give to the student a ground to avoid cancellation which would not otherwise be available to him or her if the Minister were precluded on an exercise of the power under s 116 of the Act to have a discretion whether or not to cancel the visa for breach of condition 8202. 21 The applicant submitted that the MRT failed to consider the explanation given by the applicant and whether or not that explanation constituted reasonable grounds for the breach or the circumstances showed that the breach was due to exceptional circumstances beyond the applicant's control. By holding that the issue was whether or not there had been strict compliance with condition 8202 in regard to satisfactory academic performance, the MRT had allegedly denied the applicant his statutory right to have his explanation considered and, if found acceptable, to receive a favourable exercise of discretion against cancellation. It was further alleged that, in holding that there was no discretion available to it, the MRT failed to exercise the statutory power properly available to it. The applicant contended that both of these circumstances, together or individually, constituted jurisdictional error thus precluding the MRT decision being a privative clause decision for the purposes of s 474 of the Act and thereby not justiciable in these proceedings: Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 and 511. 22 It was submitted in the alternative that, if reg 2.43(2)(b) was not to be given an ambulatory effect, it was inconsistent with s 20 of the ESOS Act and s 137J of the Act and therefore invalid and of no effect as being beyond the regulation making power contained in s 504 of the Act. 23 Finally, the applicant submitted that there was no decision of this Court which required the MRT to come to the conclusion which it did.