Brar v Minister for Immigration

[2008] FMCA 1026

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRAR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1026

MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – Tribunal applied version of condition 8202 found invalid by the Full Federal Court – whether the condition is invalid in its entirety considered – whether the class attendance requirement in the condition is invalid in any event considered – whether the Tribunal applied the superseded version of the condition in error considered – condition 8202(3) in the form applicable prior to 1 July 2007 is invalid in its entirety.

Education Services for Overseas Student Act 2000 (Cth), ss.19, 20
Migration Act 1958 (Cth), ss.116, 137J, 137K, 359A
Migration Regulations 1994 (Cth)
Migration (Amendment) Regulations 2007 (No 5)

Chen v Minister for Immigration [2005] FCA 229
Dai v Minister for Immigration [2007] FCAFC 199
Qui v Minister for Immigration & Anor [2008] FMCA 787
Tongburin v Minister for Immigration & Anor [2008] FMCA 644

Applicant: SANDEEP SINGH BRAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 791 of 2008

Judgment of: Driver FM

Hearing date: 22 July 2008

Delivered at: Sydney

Delivered on: 8 August 2008

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Michael Jones, Solicitor

Counsel for the Respondents: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal handed down on 6 March 2008.

2. A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 791 of 2008

SANDEEP SINGH BRAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This case concerns the validity of condition 8202 attaching to student visas in relation to requirements for course attendance in the form that the condition appeared prior to 1 July 2007.  The case also concerns the operation of a transitional provision introduced to prescribe the application of a new version of the condition on and from 1 July 2007. 

2. The relevant decision of the Migration Review Tribunal (“the Tribunal”) was handed down on 6 March 2008.  The Tribunal affirmed a decision of a delegate of the Minister cancelling the applicant’s sub class 572 vocational (education and training sector) visa.  The following statement of additional background is taken from the Minister’s outline of submissions filed on 11 July 2008.

3. The applicant, a national of India, was granted a subclass 572 student visa on 29 January 2007. The applicant’s visa was subject to condition 8202 of Schedule 8 of the Migration Regulations 1994[1] (the Regulations).

   [1]     The version of condition 8202 that was in force at the relevant time was the pre 1 July 2007 version, i.e. the version considered by the Full Federal Court in Dai v Minister for Immigration [2007] FCAFC 199.

4. On 26 June 2007, the applicant was purportedly issued with a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“Education Services for Overseas Students Act”) by his education provider, the Carrick Institute of Education. That notice relevantly provided[2] that:

   Catherine Carrick has determined that in the term running from 26 April 2007 to 15 June 2007, you attended 11.00% of the contact hours scheduled.  As a result, you have failed to comply with condition 8202(3)(a) of your student visa.

   [2]     Relevant Documents [RD] 1.

5. On 5 July 2007, the applicant attended an office of the Department and was issued with a “Notice of Intention to Consider Cancellation”[3]. The Notice invited the applicant to attend an interview with the Department on 12 September 2007, at which time he would be required to provide comments as to why he believed grounds for cancellation of his visa did not exist.

   [3]     RD 3-6.

6. On 12 September 2007, the applicant attended a Departmental interview[4]. During the interview, the applicant stated that he returned to India on 4 April 2007 during the term because his mother was unwell. Then, on 8 April 2007, he got married. The applicant was asked by the delegate whether his travel to India was the for the purpose of caring for his mother or to get married. The applicant claimed that for cultural reasons the applicant’s mother could only be cared for by his partner if they were legally married and that therefore his marriage plans were expedited. The applicant submitted medical documents dating back to 2005, in support of his claims that his mother was ill[5].

   [4]     RD 7-12.

   [5]     RD 13-29.

7. The delegate was satisfied that a breach of condition 8202(3)(a) had occurred. The delegate found that, given the applicant’s mother had documented health problems since 2005, there would have been numerous opportunities for the applicant to make arrangements for her care in his absence before he left India to study in Australia. The delegate concluded that a link between the applicant’s mother’s ill health and the applicant’s inability to attend class was not established[6].

   [6]     RD 34-35.

8. On 13 September 2007, the delegate cancelled the applicant's subclass 572 visa pursuant to s.116(3) of the Migration Act 1958 (Cth) (“the Migration Act”) and regulation 2.43(2)(b) of the Regulations[7].

   [7]    RD 30-32.

9. On 18 September 2007, the applicant lodged an application for review in the Tribunal[8].

   [8]     RD 39-46.

10. On 31 October 2007, the Tribunal sent an email to the education provider requesting the actual start and finish dates for the first and second terms of 2007, the actual contact hours, and a copy of the institution’s "late policy". On 14 November 2007, the Tribunal received a response by email, including the institution’s student attendance policy[9].

    [9]     RD 51-56.

11. By way of letter dated 20 November 2007, the Tribunal invited the applicant to comment on/respond to information that the Tribunal considered would be the reason or a part of the reason of affirming the delegate’s decision, pursuant to s.359A(1) of the Migration Act[10]. 

    [10]    RD 58-59.

12. On 27 December 2007, the Tribunal received from the applicant's agent a written submission and various affidavits and documents[11].

    [11]    RD 63-74.

13. On 30 January 2008, the applicant attended a hearing before the Tribunal and gave oral evidence in support of his case.  The applicant submitted, inter alia, a declaration signed by nine of his friends to the effect that the applicant suffered from depression as a result of his mothers illness and requested that the Tribunal consider the applicant’s case on compassionate grounds[12]. 

Tribunal Decision

[12]    RD 85.

1. On 6 March 2008 the Tribunal handed down its decision, affirming the decision under review[13].

   [13]    RD 98-107.

2. Based on the information provided by the applicant’s education provider that the applicant had not attended at least 80 per cent of the scheduled contact hours from 10 April 2007 to 17 June 2007, the Tribunal found that the applicant had failed to comply with condition 8202(3)(a), and therefore a ground for cancellation existed under s.116(1)(b) of the Migration Act.

3. The Tribunal then proceeded to consider whether there were exceptional circumstances that existed beyond the applicant’s control that resulted in the applicant’s non-compliance.  The Tribunal found that the applicant’s failure to attend at least 80 per cent of his scheduled contact hours was not due to exceptional circumstances beyond his control for the following reasons:

   ·The Tribunal harboured reservations about the probative value of the evidence provided in support of the applicant’s claim that his mother suffered from a serious illness during the period in question which directly affected his ability to attend class.  Accordingly, the Tribunal did not accept that the applicant had to leave Australia immediately because of his mother’s deteriorating medical condition.

   ·Apart from the applicant’s oral evidence and statement from his friends, there was no evidence of his claimed depression.

The application

1. These proceedings began with a show cause application filed on 3 April 2008.  The applicant now relies on an amended application filed in court by leave on 22 July 2008.  The grounds in that application are:

   1. The Tribunal’s decision was affected by jurisdictional error of law.

   Particulars

   The Tribunal found that the Applicant was in breach of condition 8202 in Schedule 8 of the Migration Regulations 1994, by failing to comply with the paragraph 8202(3)(a). As a matter of law, the condition is either invalid or it is not possible for a visa holder to fail to comply with it.

   2.The Tribunal’s decision involved jurisdictional error of law in that it upheld a decision of the First Respondent’s delegate which was based on a repealed regulation.

   Particulars

   Even if the relevant piece of legislation was valid in relation to alleged breaches of visa conditions up to 30 June 2007, the delegate erred by applying it on 13 September 2007 and the Tribunal therefore erred in upholding that decision.

2. The only evidence before me is contained in the book of relevant documents filed on 21 May 2008.

Submissions

1. The applicant submits that the Tribunal erred in applying condition 8202 in the form which was found to be invalid by the Full Federal Court in Dai v Minister for Immigration [2007] FCAFC 199. The applicant submits that the effect of that decision is that condition 8202 is invalid in its entirety.

2. Alternatively, the applicant submits that the Court should find that subclause (3)(a) of condition 8202 is invalid on the basis that it is not severable from subclause (3)(b) or suffers from the same defect as was found by the Full Federal Court in Dai in relation to subclause (3)(b). 

3. Lastly, the applicant submits that the effect of the transitional provision is that the condition in the form applied on and from 1 July 2007 was the applicable form of the condition because there could be no breach of condition 8202(3)(a) in the form applicable prior to 1 July 2007 until the Minister is satisfied that the visa holder had not attended at least 80 per cent of scheduled contact hours.

4. The Minister submits that the Full Federal Court in Dai did not find condition 8202(3)(a) invalid but only found condition 8202(3)(b) was invalid.  The Minister submits that this has been confirmed in this Court in two cases[14].  Alternatively, the Minister submits that, if the effect of the Full Federal Court decision in Dai is that condition 8202(3)(a) is invalid then the decision is wrong and should not be followed.  That is, of course, a formal submission as the Court is bound by the judgment of the Full Federal Court. 

   [14] Tongburin v Minister for Immigration & Anor [2008] FMCA 644 and Qui v Minister for Immigration & Anor [2008] FMCA 787

5. The Minister submits that the Court should follow its earlier interpretation of subclause (3)(a) in Tongburin and Qui.

6. In relation to the second ground, the Minister submits that the Tribunal was correct in applying the condition in the form applicable prior to 1 July 2007 on the basis that the transitional provision bears on the time of commission of a breach of the condition, not upon the time of a decision as to a breach.  In the present case, the Minister submits that the breach relates to the period from 10 April 2007 to 15 June 2007, irrespective of when the delegate reached a state of satisfaction as to the existence of the breach. 

Reasoning

1. Condition 8202 in the form applicable prior to 1 July 2007 was in the following terms:

   (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.

   (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.

2. Condition 8202 was substantially amended by Schedule 3 to the Migration (Amendment) Regulations 2007 (No 5).  The new form of the condition is as follows:

   [1]    Schedule 8, subclause 8202 (3)

   substitute

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)    section 19 of the Education Services for Overseas Students Act 2000 ; and

   (ii)   standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 ;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)    section 19 of the Education Services for Overseas Students Act 2000 ; and

   (ii)     standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 .

3. The transitional provision in relation to the amendment is in the following terms:

   (1) Schedule 3 amends the Migration Regulations 1994.

   (2)The amendment made by Schedule 3 applies in relation to an application for a visa:

   (a)made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 1 July 2007; or

   (b)made on or after 1 July 2007.

   (3)The amendment made by Schedule 3 also applies in relation to a visa granted before 1 July 2007, but only in relation to a breach of a visa condition that occurred on or after 1 July 2007.

4. In Dai, Gyles and North JJ found the former condition 8202 to be invalid.  At [34] His Honour Gyles J said:

   … The validity of condition 8202 is affected by the conclusion I have reached. The disconformity between s 116(1)(b) (and reg 2.43(2)(b)), on the one hand, and condition 8202 subclause (3)(b), on the other, is also reflected within condition 8202 itself. Subclause (1) obliges the visa holder to meet the requirements of subclause (3)(b) in those cases to which it is applicable. In my opinion, the form of condition 8202 that was in force at the time relevant to this case was ultra vires the legislation, at least in circumstances where subclause (3)(b) came into play. On pain of cancellation of the visa, it compelled compliance by the visa holder with requirements that were not practicable or certain.

5. At [37] His Honour said:

   In my opinion, condition 8202 as it stood in 2004 was both uncertain and unreasonable in the sense explained in the authorities and so was not authorised by the legislation.

6. North J said at [19]-[20]:

   There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal.

   Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the appellant’s visa under s 116(3) was not engaged.

7. Only subclause (3)(b) of condition 8202 was specifically in issue in Dai.  In Tongburin Barnes FM distinguished the case before her from Dai at [23], [31]-[32] and [39]:

   … While expressed generally, it is apparent from the whole of North J’s judgment that the only aspect of condition 8202 in issue was condition 8202(3)(b). This is the only part of the condition which requires certification. It was the basis for cancellation of the student visa in issue and the Tribunal decision.

   The cancellation in issue in Dai was based on a finding of a failure to comply with condition 8202(3)(b). In contrast the cancellation in this instance was based only on condition 8202(3)(a). Subclause 3(a) is not analogous to paragraph 3(b) of condition 8202. Rather, as counsel for the first respondent submitted, a precondition to the application of condition 8202(3)(a) is that the visa holder’s education provider keeps attendance records. In other words the condition imposed in condition 8202(3)(a) would not arise if the education provider did not keep attendance records. However once this precondition is met, the focus of condition 8202(3)(a) is on the Tribunal’s satisfaction as to the visa holder’s attendance, not on any certification by an education provider.

   Compliance with condition 8202(3)(a) is not dependent on the act of the education provider. The requirement imposed on the visa holder is attendance for at least 80 per cent of the contact hours scheduled for the relevant period. There is a way that the visa holder can comply with condition 8202. Thus it is possible for the Minister (or Tribunal) to be satisfied that the visa holder has not complied with that part of condition 8202, within s.116 and reg 2.43(2).

   Hence it has not been established that the Tribunal fell into jurisdictional error in interpreting condition 8202. It was not required to interpret or apply subclause 8202(3)(b). “Certification” in the sense required by subclause 8202(3)(b) was not in issue under subclause (3)(a). As discussed below, it was open to the Tribunal to be satisfied on the basis of the material provided to the Department by Bridge Business College that the visa holder’s education provider kept attendance records. Hence the pre-requisite to the operation of subclause (3)(a) was met. Thereafter the requirements of that condition – as to attendance for at least 80 per cent of the contact hours scheduled – were capable of being met by a visa holder. The reasoning in Dai does not compel a conclusion that the whole of condition 8202, including subclause (3)(a), is invalid and ultra vires so that the cancellation under s.116 was invalid.

8. Scarlett FM reached essentially the same conclusion in Qui at [67]-[69].

9. With respect, I disagree with the view that the decision of the Full Federal Court in Dai does not stand for the proposition that either the whole of condition 8202 as it stood at the relevant time or subclause (3)(a) is invalid.  In my view, it necessarily follows from the decision in Dai that subclause (3)(a) is invalid along with subclause (3)(b) because the two paragraphs are not severable from one another.  Subclause (1) provides that in order to satisfy condition 8202 the visa holder must meet the requirements of subclauses (2) and (3).  Subclause (3) provides that a holder meets the requirements of that subclause if the visa holder satisfies both the attendance requirement in paragraph (a) and the academic progress requirement in paragraph (b).  Satisfaction of paragraph (a) is not sufficient to meet the requirements of subclause (3).  This is established both from the word “and” between paragraphs (a) and (b) and the words “in any case” at the commencement of paragraph (b).  There is no doubt that the Full Federal Court in Dai found that condition 8202 was invalid (or inapplicable) where subclause (3)(b) was applicable.  There is no case where that subclause is not applicable because compliance with it is a necessary component of compliance with subclause (3) which in turn is a necessary component of compliance with the condition as a whole.  In other words, a visa holder cannot comply with condition 8202 as it formerly stood without complying with subclause (3)(b).

1. In addition, subclause (3)(a) only applies in cases where an education provider keeps attendance records.  Where there are no attendance records the visa holder is still required to meet the requirements of subclause (3)(b).  In my view, a necessary consequence of the decision of the Full Federal Court in Dai is that the entirety of subclause (3) of condition 8202 in the form applicable prior to 1 July 2007 is invalid.

2. Further, I respectfully disagree with the reasoning of Barnes FM and Scarlett FM in Tongburin and Qui in their interpretation of subclause (3)(a). Compliance with subclause (3)(a) is dependent upon three things:

   a)the keeping of attendance records by the education provider;

   b)the provision of those attendance records to the Minister; and

   c)the Minister’s satisfaction as to attendance based upon whatever records are provided.

3. An education provider may keep attendance records but fail to provide them to the Minister.  The Minister may not be satisfied with whatever records are provided.  There is nothing a visa holder can do to either compel the provision of records or affect the quality of them.

4. In my view, subclause (3)(a) suffers from the same vice as subclause (3)(b).

5. Although it is not strictly necessary to make a finding I have considered the second ground of review. Surprisingly, there is no reference in the Tribunal decision to the transitional provision in regulation 5. There is simply a bald statement that the relevant version of the condition was the one in existence prior to 1 July 2007[15]. The transitional provision in subregulation 5(3) applies the new version of the condition to visas granted before 1 July 2007 in relation to a breach of a visa condition that occurred on or after 1 July 2007. The question the Tribunal needed to consider in order to determine which version of the condition was applicable was when the breach of the visa condition occurred.

   [15] RD100.

6. Subregulation 5(3) is difficult to interpret, if, as was submitted by the Minister, a breach of the attendance criterion is established in relation to a period rather than at a specific time. A breach will always be identified retrospectively. It could be difficult for a decision maker to determine which version of the condition applied where an apparent breach related to a period that began before 1 July 2007 and ended after 1 July 2007. In my view, the only rational interpretation of subregulation 5(3) is that, for the purposes of the subregulation, a breach of a visa condition occurs when it has been found to have occurred. In the case of the present form of the condition, that occurs when non compliance is certified by the education provider. Hypothetically, that might relate to a period prior to 1 July 2007. Nevertheless, in the case of certification of non compliance on or after 1 July 2007, it is the current form of the condition which would be applicable.

7. In the case of the condition in the terms considered by the Tribunal, the Minister did not identify any particular date prior to 1 July 2007 when the breach occurred. Rather, the Minister submits that the breach occurred in relation to a period that ended before 1 July 2007. However, that interpretation of subregulation 5(3) would require an effective redrafting to read:

   The amendment made by Schedule 3 also applies in relation to a visa granted before 1 July 2007 but only in relation to a breach of a visa condition in respect of a period that ended on or after 1 July 2007.  (emphasis added)

8. That is not what the provision says. It speaks in terms of a specific time, not a period.

9. The amendment of condition 8202 on and from 1 July 2007 brings the administration of the condition into conformity with its terms. Previously, there was a disconformity between the terms of the condition and the manner of its administration. Decision makers commonly, but not always, relied upon notification of breaches received from education providers. Section 20 of the Education Services for Overseas Student Act at the relevant time provided:

   (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.

   Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.

   Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

   (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.

   Unincorporated registered providers

   (5)If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.

10. It is significant that the section is drafted in terms of a breach having occurred before the date of the notice but, in terms of condition 8202(3)(a) it could only be a breach asserted by the education provider, not a breach established by reference to the condition. That points to a further difficulty in subclause (3)(a) in that it calls for a decision by the Minister, which would not have occurred prior to the issue of the s.20 notice, or prior to an automatic cancellation pursuant to s.137J of the Migration Act. To that extent the subclause is inconsistent with both the Migration Act and the Education Services for Overseas Students Act[16]. While the condition requires a ministerial decision in relation to attendance, and s.20 of the Education Services for Overseas Students Act relevantly requires a breach of a condition relating to attendance, the notices prescribed by s.20 require a determination by the education provider, not the Minister. Further, it is non attendance at an interview following the issuing of a s.20 notice that leads to the automatic cancellation of a visa pursuant to s.137J.

    [16] See s.13 Legislative Instruments Act 2003

11. I do not see how there could ever be an automatic cancellation of a visa under s.137J on the basis of a “breach” of subclause 8202(3)(a) pursuant to a notice issued under s.20 of the Education Services for Overseas Students Act. More importantly, for this case, a notice could not be issued under s.20 of the Education Services for Overseas Students Act in advance of a breach of a condition relating to course attendance or academic performance. There could be no breach of subclause 8202(3)(a) until the Minister directed his mind to the issue of attendance. In Chen v Minister for Immigration [2005] FCA 229 at [86] Lander J held that a notice issued under s.20 of the Education Services for Overseas Students Act which does not contain sufficient particulars, or which contains particulars which are wrong, is not invalid and of no effect. However, I do not understand his Honour to be saying in that case that a notice could validly or effectively be issued pursuant to s.20 without the condition precedent to its issue having been met. The condition precedent is a breach of a condition. In the case of the former condition 8202(3)(a) that required the making of a Ministerial decision. Of course, in theory, and no doubt in practice, condition 8202(3)(a) could be found to have been breached by the Minister in the absence of a s.20 notice. The condition is not dependent upon such a notice having been issued. However, the issuing of a s.20 notice commences a process which may culminate in a cancellation of a visa for a breach of the condition. If the cancellation decision is in some way based on a notice that could not and should not have been issued, that may be sufficient to establish jurisdictional error.

12. On 26 June 2007 a notice was purportedly issued to the applicant pursuant to s.20 of the Education Services for Overseas Students Act asserting that a Ms Catherine Carrick had determined that the applicant had breached subclause 8202(3)(a) in respect of the term running from 26 April 2007 to 15 June 2007[17]. That notice could not be relevant in relation to the present form of the condition because it was issued prior to 1 July 2007. In her decision to cancel the visa, the delegate was satisfied that a breach of condition 8202(3)(a) was identified in that notice[18]. Accordingly, although the delegate did not reach that state of satisfaction until 13 September 2007, the breach was purportedly established as at 26 June 2007. I accept the applicant’s submission that Ministerial satisfaction is a necessary component of compliance with subclause (3)(a) in the former form of condition 8202. I am not aware of any migration decision that does not require Ministerial satisfaction of something and the drafters of the condition must have intended the words “the Minister is satisfied” to have some work to do. That state of satisfaction will necessarily have reference to a preceding time period. It was open to the Minister’s delegate to find that she was not satisfied that the visa holder attended for at least 80 per cent of the contact hours scheduled for the relevant period by reference to a specific date. That date could be the date of the notice of non compliance under the Education Services for Overseas Students Act if the notice was validly issued. However, the notice could not be issued in advance of Ministerial satisfaction for the purposes of subclause (3)(a) because before that there was no breach of the relevant condition.

    [17] RD 1.

    [18] RD 34.

13. It follows that the delegate was in error in applying the form of the condition as it stood prior to 1 July 2007 by reference to the date of the s.20 notice. The delegate was also in error in relying upon that notice as establishing the breach of the condition[19]. The Tribunal had to reach its own satisfaction as to non compliance with the condition as it stood in the shoes of the delegate. The Tribunal in its decision relied upon the s.20 notice issued by the Carrick Institute as indicating (but not establishing) non compliance. Relevantly, the Tribunal said in its reasons[20]:

    The s.20 notice issued by the Carrick Institute of Education indicates that the applicant attended 11 percent of his scheduled contact hours.  The Tribunal calculated his raw hours based on information provided by the Carrick Institute of Education and agrees with this figure.  Based on information provided by the Carrick Institute of Education the Tribunal calculates that the applicant attended 20.5 out of 186 scheduled contact hours for the course running from 10 April 2007 to 17 June 2007.

    [19] RD 34.

    [20] RD 104.

14. Like the delegate, the Tribunal was not entitled to place reliance on the s.20 notice. In relying upon the notice, the Tribunal took into account irrelevant material and thus fell into jurisdictional error. Further, the Tribunal failed to identify any particular date at which the applicant was in breach of the condition. It simply found a breach by reference to a time period. The implication is that the applicant was found to be in breach of the condition as at the date of the Tribunal decision. But if that were the case the former version of condition 8202 was inapplicable because the Tribunal decision was made after 1 July 2007. The Tribunal needed to identify a particular date at which the applicant was in breach of the condition in order to determine which version of the condition was applicable. By failing to do so the Tribunal overlooked a relevant consideration and fell into jurisdictional error.

15. The applicant is entitled to relief in the form of the constitutional writs of certiorari and mandamus.  I will so order.

16. I will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  8 August 2008