Zou v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a national of the Peoples' Republic of China. He applied on 9 March 2001 for a student (temporary) (Class TU) visa. Before making the application he had, since 9 December 1999, held a Subclass 560 student visa ("the previous visa"). The previous visa had been valid until 9 March 2001. He had held earlier student visas from the time he entered Australia, on 30 August 1998. 2 His March 2001 application was refused. He applied to the Migration Review Tribunal ("the Tribunal") to review that decision. The Tribunal affirmed the decision and Mr Zou has applied to the Court for relief under s 39B of the Judiciary Act 1903 (Cth) which, subject to the provisions of s 474 of the Migration Act 1958 (Cth) ("the Act"), applies to the present decision. By force of s 474 the present decision is a "privative clause decision" as defined. At the time of hearing the question of the meaning of that section in the context of the Act was the subject of a number of appeals argued before a full Court of this Court. By agreement with the parties, the effect of s 474 was thus not the subject of argument before me. It was rather agreed that I should decide whether the circumstances of the present case were such as to found relief under s 39B of the Judiciary Act. If they were not, then it was agreed that the application should be dismissed. If they were, then it was agreed that I would defer consideration of the effect of s 474 pending the decision of the full Court rather than add to the then proliferation of first instance decisions. The judgment of the full Court in the appeals before it has now been given: see NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. 3 For the applicant to succeed in the review it was necessary that the Tribunal be satisfied that the application had substantially complied with the conditions attached to the previous visa. Those conditions included condition 8202 set out in Sch 8 of the Migration Regulations 1994 (Cth). That condition in force at the time the previous visa was granted read as follows: "8202. The holder: (a) must: (i) in the case of an occupational trainee - satisfy the requirements of the course of occupational training approved by the Minister under subclause 442.222(1); or (ii) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student - be enrolled in a full-time course of study; or (iii) in any other case - be enrolled in a registered course; and (b) must (if the holder is not an occupational trainee): (i) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the educational provider; or (ii) if attendance cannot be evidenced, achieve an academic result that is certified by the education provided to be at least satisfactory; and (c) must (if the holder is not an occupational trainee) comply with any requirement of the education provider in relation to payment of fees for the course." 4 The Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) ("the 2000 Act") replaced condition 8202 with a new condition. As so replaced condition 8202 read as follows: "8202 - The condition is that: (a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student - the holder is enrolled in a full-time course of study; and (b) in any other case - the holder is enrolled in a registered course; and (c) 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 (d) 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." 5 An issue which arises for decision before me is whether, as the Tribunal thought, the amendment made by the 2000 Act applied retrospectively, notwithstanding that the legislation itself only took effect on 21 December 2000 or whether it did not, as the applicant contends. 6 The facts as found by the Tribunal may be shortly summarised. The applicant enrolled in the Sydney Institute for Business and Technology ("the Sydney Institute") and commenced his study there on 28 February 2000. He had previously attended a one year program at the Insearch Centre in Intensive Language. Details of that earlier program were not the subject of consideration by the Tribunal. Attendance records of the Sydney Institute for the period 28 February to 9 June 2000 indicated that the applicant had an overall attendance record of 78.46% at that Institute with a record of 79.23% if medical and approved absences were eliminated. 7 In September 2000, the applicant commenced study with the Information Technology Training Institute (ITTI) where he studied for a diploma of Information Technology. He had an attendance record at that institute of 84%. 8 The applicant claimed that his attendance record at the Sydney Institute had been affected by his emotional condition in the year 2000. He said that he had been going through a stressful and emotional period in this time, as a result of the serious illness of his maternal grandfather in China who was diagnosed with cancer on March 2000. There was evidence that the grandfather had been diagnosed with stomach cancer and had undergone an operation for removal of a tumour on 15 June in an unspecified year (inferentially 2000) and that he had received chemotherapy. 9 In June and July 2000 the applicant returned to China for almost two months during the critical time of his grandfather's recovery from illness. He departed Australia on 10 June 2000 and returned on 27 June 2000 and departed again on 18 July 2000, returning on 1 August 2000. Evidence from a psychologist indicated that the applicant had been feeling severely depressed and anxious in June 2000 and further that in April 2001 he had, for some six or seven months, felt anxious and depressed. 10 The applicant's academic progress was not good. He had enrolled in three subjects in the Sydney Institute but passed only one of them. Indeed he had stopped attending classes at the end of the semester in June, immediately prior to travelling to China. In the diploma course at ITTI he had found computer science not interesting and had stopped attending that course at the end of June 2001 and did not sit the examination for the course. He noted that his grandfather had been ill and hospitalised again in May 2001 and that he had been worried about his grandfather and depressed. This had brought about a decision on his part to return to Commerce and indeed he had enrolled in a new course that was due to begin in November 2001. He produced a letter of provisional acceptance to an advanced diploma of management at the Windsor Institute of Commerce and Languages for a two year course due to finish on 21 November 2003. 11 Material obtained by the Tribunal from the diploma course at ITTI indicated that the applicant's academic failure and poor attendance had resulted in his repeating the first semester in that course in March 2001. It was noted that the applicant's attendance rate in that course had thereafter fallen to 14%. He had again failed the first semester. 12 The applicant, commenting on the adverse information responded that his attendance in the diploma course had been 84% overall from September 2000 to 6 April 2001 when the present application for visa had been made. He admitted however that his attendance had not been good after the visa had been refused and that he had left the school in July 2001 when he had enrolled in the advanced diploma in the Windsor Institute of Commerce and Languages. 13 The Tribunal found that the applicant had substantially complied with the attendance requirement for the semester at the Sydney Institute which had finished on 9 June 2000. It noted however that on the applicant's own evidence he had studied three subjects but passed only one. A certificate of attendance had shown only two subjects were studied but did not provide results. The Tribunal noted that there was no evidence before it that the Sydney Institute regarded the applicant as having received satisfactory academic results for this period. The Tribunal accordingly found that the applicant had not achieved an academic result that was certified by the Sydney Institute to be satisfactory for the first semester from 28 February 2000 to 9 June 2000. 14 The Tribunal then turned to the question whether, nevertheless, the applicant had substantially complied with condition 8202. The Tribunal noted that the failure to achieve the attendance rate was not significant, although it had affected his ability to achieve a satisfactory result. That failure to achieve a satisfactory result, in part, was because the applicant had returned to China twice in June/July 2000. This was in the Tribunal's view a more significant breach of the condition. It may be noted that condition 8202 in the form it took at the time the visa was granted only required the applicant to obtain a certificate of satisfactory performance if the education provider was unable to provide evidence of the rate of attendance. Thus the Tribunal's decision depended upon the application of condition 8202 in its amended form. 15 The Tribunal however regarded the breach of the condition, both as regards attendance and results in the diploma course at ITTI as more significant. It pointed out that his attendance had been poor in this time and that he had failed to achieve a satisfactory result for the first semester which he had failed and then repeated. It noted also that he had failed again and that his attendance rate had dropped. The Tribunal said: "44. Even if the Tribunal does not take into account the period that he was between education providers and courses and had returned to China for family reasons, the review applicant was significantly in breach of 8202 during semester one from September 2000 to the date of application. Although the review applicant may not have deliberately flouted the providers in the period under review, and did not obtain satisfactory results for the semester at either of them. 45. Taking into account all the relevant circumstances of the case and the evidence before it the Tribunal finds that the review applicant had not substantially complied with condition 8202 at the time of application. He therefore does not meet the criterion in clause 560.213." 16 The Tribunal found it unnecessary to determine whether the applicant had complied with condition 8202 as at the time of decision. One reason for not doing so was a view the Tribunal expressed that at the time of the decision the applicant had held a bridging visa which was not subject to condition 8202. In any event, failure to comply with condition 8202 at the time of the application meant that the application would necessarily have to fail, so it was not necessary to consider whether there had later been non-compliance. 17 It was submitted by counsel for the applicant that the Tribunal had erred in three respects, each of which constituted a jurisdictional error founding relief under s 39B of the Judiciary Act 1903 (Cth). The three matters relied upon were: 1. That the Tribunal wrongfully imposed upon the applicant an onus of proof, whereas in administrative proceedings of the present kind, no question of onus arose. 2. That the Tribunal erred in holding that the 2000 Act operated to change the content of condition 8202 retrospectively. 3. That the Tribunal failed to consider the applicant's case that his period in the second course was affected by his adjustment problems, emotional condition and difficulty with English and that this failure constituted a constructive failure of the Tribunal to exercise its jurisdiction. I shall consider each of these matters in turn.