Cheng v Minister for Immigration - [2007] FMCA 1107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHENG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1107

MIGRATION – Migration Review Tribunal – student visa – whether jurisdictional error –whether academic result or results relevant – Condition 8202.

Education Services for Overseas Students Act 2000, s.20
Migration Act 1958, ss.116, 359

Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96
Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313
Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Wang v Minister for Immigration & Anor [2006] FMCA 1034
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

Applicant:

WEI CHENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1559 of 2005

Judgment of:

McInnis FM

Hearing date:

16 February 2007

Delivered at:

Melbourne

Delivered on:

12 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr N.B. Batten

Solicitors for the Applicant:

Jonathan Wong Lawyers

Counsel for the First Respondent:

Mr W.S. Mosley

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.000

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1559 of 2005

WEI CHENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant relies upon amended grounds of application dated 23 August 2006 seeking judicial review of a decision of the Second Respondent dated 2 November 2005. In its decision, the Migration Review Tribunal (the Tribunal) affirmed a decision under review to cancel the student (temporary) (class TU) visa held by the Applicant. The Applicant is a citizen of the People's Republic of China (PRC).
The Applicant had entered Australia on 9 March 2002 on a student (temporary) (class TU) visa subclass 571. The Applicant was granted a further visa valid until 15 March 2005 ("the visa") on 11 April 2003. The visa was subject to a number of conditions including condition 8202, that is, "enrolment and course requirements". The Applicant enrolled at Holmesglen Institute of TAFE ("Holmesglen"). The Applicant studied general English at Holmesglen between 28 January 2003 and 6 June 2003. From 9 June 2003 he continued his enrolment in a Victorian Certificate of Education (VCE) year 11 due to conclude on 31 December 2003.
Significantly for the present purposes, it is noted that on 16 July 2003, Holmesglen sent a non-compliance notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 ("the ESOS Act") (Court Book pp.5-6). In the s.20 notice, Holmesglen relevantly states:
“Particulars of Breach:
Attendance in first term averaged 20-30%. Warnings, frequent counselling offered. Arrogant attitude towards compliance. Department could not justify his re-enrolment. Has already studied 30+ weeks of English with levels still inadequate for further studies. Very little improvement in attendance and academic progress noted in first semester.”
It is common ground that s.20 of the ESOS Act provides for a notice to be sent or given to a student who is in breach of a visa condition relating to attendance or satisfactory academic performance.
On 29 July 2003 the First Respondent's Department forwarded to the Applicant a Notice of Intention to Consider Cancellation ("NOICC") pursuant to s.116 of the Migration Act 1958 ("the Migration Act") (Court Book pp.23-24). The Applicant was invited to attend an interview with a delegate of the First Respondent on 14 August 2003.
In the letter dated 29 July 2003 which invited the Applicant to attend the hearing, the following appears:
“Information received by the department indicates that you have not complied with condition 8202 because Holmesglen College of TAFE has advised that your attendance in the first term averaged 20-30%. And has not been satisfactory and that your academic progress to date has not been satisfactory and not met with the course requirements.
If this is the case, your visa must be cancelled.”
(Court Book p.23)
By letter dated 25 July 2005 (Court Book p.7), the Applicant's then solicitors forwarded a psychological report from Dr Simon Forbes in relation to the Applicant. The psychological report is dated 18 July 2003 (Court Book pp.10-22). It is a lengthy report analysing both the Applicant and also referring to general information. It concludes as follows:
“Cheng meets the criteria for the following:
·300.02 Generalised Anxiety Disorder
·Dysthymic Disorder, Early onset
·Learning Disorder Not Otherwise Specified (due to cultural differences)”
(Court Book p.22)
The Applicant attended the First Respondent's Department on 14 August 2003 and produced a document dated 27 June 2003 from Holmesglen entitled "RECORD OF ACHIEVEMENT" (Court Book p.4). Upon attending the First Respondent's Department on 14 August 2003 and after producing the record of achievement document, the Applicant was not interviewed as the delegate of the First Respondent determined to seek further information from Holmesglen.
By email dated 25 August 2003, the Department sought further information concerning the Applicant from Holmesglen (Court Book p.31). In that email the author states, after reciting the paragraph set out earlier in this judgment which forms part of the s.20 notice, the following:
“Mr Cheng provided a statement (genuine?) titled Record Of Achievement in Cert II, Spoken and Written English which states that Mr Cheng's attendance for the period 03/02/03 - 27/06/03 was 60-70%.
My question is, is the document relating to another subject or course that he has undertaken?
If not, I need to clearly identify what Mr Cheng's attendance figure is and for what period did the breach occur.”
Holmesglen replied to the request for information by email dated 16 September 2003 (Court Book p.69) in the following terms:
“The document Mr Cheng provided to you advising 60-70% attendance during his English program was incorrect though genuine. The department have checked attendance rolls thoroughly and advise that Mr Cheng's attendance was as follows:
Term 1 2003 (10/2 - 11/4/03): 37%
Term 2 2003 (22/4 - 27/6/03): 53%
Therefore his attendance for semester 1 2003 (10/2 - 27/6/03) was 45%.”
On 9 October 2003 the Applicant attended the Department and was handed an NOICC (see Court Book pp.32-35). The NOICC relevantly stated:
“You were reported by Holmesglen
Institute of TAFE 16/07/03
for failing to meet course
requirements and failing
to attend at least 80% of
course contact hours in
semester 1 2003. Possible
breach of condition 8202.”
At the interview on 9 October 2003 with a delegate of the First Respondent, the Applicant gave reasons as to why he considered his visa should not be cancelled. At the end of the interview the delegate cancelled the visa on the ground that the Applicant had failed to meet course requirements and had failed to attend at least 80% of the contact hours in semester 1 of 2003. After receiving notification of that decision, the Applicant sought review of the delegate's decision before the Tribunal. A Tribunal conducted a hearing at which the Applicant and witnesses gave evidence and further submissions were made after the hearing. On 23 March 2004 the first Tribunal affirmed the delegate's decision. The Applicant sought review of that decision and it was subsequently set aside and remitted to a differently constituted Tribunal for further consideration.
On 5 July 2005 a differently constituted Tribunal namely, the Tribunal whose decision is now currently under review, requested further information from Holmesglen concerning the Applicant's academic results and attendances (Court Book pp.84-88). Information was sought in relation to academic results and attendance. By facsimile transmission dated 2 August 2005 (Court Book pp.89-98), Holmesglen provided the information to the reconstituted Tribunal as requested. In the response, Holmesglen advised as follows:
“Holmesglen Institute does not consider Mr. Cheng's academic progress during semester 1, 2003 to be at least satisfactory.”
(Court Book p.93)
On 11 August 2005 the Tribunal forwarded to the Applicant's then migration agent a letter pursuant to s.359A of the Migration Act. The Tribunal refers to orders made by the Federal Magistrates Court on 23 March 2005, which were apparently attached to the letter though not reproduced in the Court Book, and then relevantly invites the Applicant to comment in writing on the following information:
“•information received from Holmesglen ... which indicates that you may have breached condition 8202 ... of your visa.
Based on the statistics referred to above your attendance appears to be 49% for semester 1 of 2003 which is less than 80% of the contact hours scheduled for this term.
Based on the evidence referred to above your academic results in semester 1 of 2003 were not certified by Holmesglen as at least satisfactory.”
(Court Book pp.101-102)
According to a file note of a Departmental Officer dated 25 October 2005 (Court Book p.103), the Applicant's then agent contacted the Departmental Officer. The file note relevantly states:
“he representative rang to enquire re the status of the application for review.
He stated that he was aware that the matter would be decided on the papers if he did not provide comment to S359A letter. He added that his client had not replied as he had no comments to make.
I advised him that he would probably be advised of a handing down shortly.
As indicated earlier, the Tribunal in its decision dated 2 November 2005 affirmed the delegate's decision to cancel the student visa of the Applicant.

Relevant Legislation

The relevant legislation is set out in the following extract from the First Respondent's contentions:
“17.Section 116(1) of the Act provides, insofar as is relevant, that:
‘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;’
18.    Section 116(3) provides, insofar as is relevant, that:
‘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.’
19.Section 119(1) provides, insofar as relevant, that the Minister when considering cancelling a visa under s116:
‘… must notify the holder that there appear to be grounds for cancelling it and:
(a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b)     invite the holder to show within a specified time that:
(i)     those grounds do not exist; or
(ii)     there is a reason why it should not be cancelled.’
20.Regulation 2.43(2) of the Migration Regulations 1994 (‘the regulations’), prescribes the circumstances in which the Minister must cancel a visa for the purposes of s116(3). The regulation provides, insofar as is relevant, that:
‘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, that the Minister is satisfied that the visa holder has not complied with:
…
(ii)     condition 8202.’
21.At the time of grant of the applicant’s visa, condition 8202 of Schedule 8 of the regulations provided, insofar as is relevant, that:
‘(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.’”
In addition, it is appropriate to set out s.359A of the Migration Act which relevantly provides:
“Applicant must be given certain information
(1) Subject to subsection (2), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.”

The Tribunal Decision

The Tribunal considered the material relied upon by the Applicant and under the heading "Findings" relevantly concluded as follows:
“59.In the matter currently before it, there is no evidence before the Tribunal to indicate that Holmesglen has given a statement to the effect that the review applicant had achieved an academic result it considered to be satisfactory in relation to semester 1 of 2003. In fact the reverse is true.
60.Accordingly, the Tribunal finds that the review applicant has not achieved an academic result that was certified by Holmesglen as the education provider to be at least satisfactory in semester 1 of 2003. The Tribunal therefore finds that the review applicant breached subclause 8202(3)(b) of his subclass 571 visa whilst he was enrolled at Holmesglen in semester 1 of 2003.
61.As a result of this finding, the Tribunal is satisfied that the review applicant has breached condition 8202(3)(b) in semester 1 of 2003.
62.In light of these findings the Tribunal does not need to consider whether the review applicant has breached condition 8202(3)(a). However the Tribunal observes that there is evidence before it that the review applicant has also breached that condition. In relation to condition 8202(3)(a) the Tribunal must consider whether he attended for at least 80% of the contact hours scheduled for each term or semester of the course. The Court in Quan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 764 found that, when making a finding as to whether a visa holder attended the required number of classes during the relevant term or semester, the Tribunal was required to have regard to the total number of hours in the semester for which the applicant, as an enrolled student, was scheduled to attend.
63.‘Contact hours’ is defined in regulation 1.03 as follows:
Contact hours, for a course for a period, means the total number of hours in the period for which students enrolled in the course are scheduled to attend classes for teaching purposes, course-related information sessions, supervised study sessions and examinations.
64.The Tribunal has calculated the review applicant’s attendance based on the evidence from Holmesglen. In relation to semester 1 of 2003 the Tribunal notes that the review applicant had medical certificates for 6 days in April 2003. Despite this he attended class for 3 of those 6 days. The Tribunal has calculated from these records that allowing for all absences covered by all the medical certificates the review applicant was present in classes for 194 hours out of a total of 368 hours.
65.Based on the evidence available to the Tribunal, the Tribunal has calculated that the review applicant’s attendance for semester 1 of 2003 was 53%. However the Tribunal does not need to make a finding on whether the review applicant’s attendance was less than 80%, as the Tribunal has already found that the review applicant has breached condition 8202(3)(b) of his subclass 571 visa in semester 1 of 2003. Consequently the Tribunal is satisfied that the grounds for cancellation of the review applicant’s visa exist. In light of this finding, section 116(3) of the Act and regulation 2.43(2)(b) requires that the review applicant’s visa must be cancelled. On the basis of the reasoning in Nguyen and Hou, the Tribunal does not have any discretion to set aside the cancellation.”
(Court Book pp.116-117)
It will be noted from that extract that although the Tribunal in fact made a finding that the Applicant may also have been in breach of condition 8202(3)(a), it stated clearly that it did not need to make that finding in relation to the Applicant's attendance given it had already found that the Applicant had breached condition 8202(3)(b) namely, that the Applicant had not achieved an academic result certified by the education provider to be at least satisfactory.

The Grounds of the Application

The Applicant relies upon amended grounds of application which relevantly provide:
“1.The letter dated 11 August 2005 sent by the Second Respondent to the applicant’s migration agent failed to comply sufficiently with the requirements of section 359A of the Migration Act 1958.
2.(a) The Second Respondent erred in concluding that the finding of a breach of condition 8202 required that the applicant’s visa be cancelled, by the reason that section 20 of the Education Services and Overseas Students Act 2000 (“ESOS Act”) and Subdivision GB of Division 3 of Part 2 of the Migration Act impliedly limit s 116 of the Act as to exclude a breach of a student visa condition relating to attendance or satisfactory academic performance (“relevant student visa condition”) from the possible range of prescribed circumstances under s 116(3); and
(b) accordingly r2.43 of the Migration Regulations is invalid or should be read down to exclude from its scope breach of a relevant student visa condition.
3.It was not open to the First Respondent or Second Respondent to be satisfied that the applicant had not complied with condition 8202 by reason that:-
(a) the terms of condition 8202, the ESOS Act and Subdivision GB impliedly make the sending of such a notice a condition of non-compliance with a relevant student visa condition; and
(b) the notice purported to be sent to the applicant under s 20 ESOS Act on 16 July 2003 was invalid on the grounds identified in Uddin v MIMIA [2005] FMCA 841.
4.Alternatively to paragraph 3, the First Respondent and the Second Respondent had no power under s 116 of the Act to cancel the Applicant’s visa on the ground of a breach of a relevant student visa condition by reason that:-
(a) s 20 of the ESOS Act and Subdivision GB implied limit s 116 of the Act by requiring as a condition of the exercise of power under s 116 to cancel for such a breach the sending of a notice under s 20; and
(b) the notice purported to be sent to the Applicant under

s 20 ESOS Act on 16 July 2003 was invalid on the grounds identified in Uddin v MIMIA [2005] FMCA 841.”

It should be noted that, though not abandoned, Counsel for the Applicant did not pursue with vigour grounds 2 to 4, having regard to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96 (Zhou). Hence those grounds will be dealt with briefly in this judgment.

Ground 1

Applicant's Submissions

The Applicant submitted that the Tribunal failed to discharge its duty under s.359A(1) of the Migration Act and in particular relied upon sub-paragraphs (a) and (b) of that sub-section.
Whilst it is conceded that a s.359A notice was provided, it was argued that it failed to give the required particulars of information. Further, it was submitted that it did not, as far as was reasonably practicable, ensure that the Applicant understood why the information was relevant.
It was noted that condition 8202(3)(b) requires that the Applicant achieve an "academic result that is certified by the education provider to be at least satisfactory". The narrow issue arising in this application was that the condition does not require that the "academic results must be certified to be satisfactory" (see Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313 per Stone J at [19], [23] and [30]; Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35 per Wilcox J at [19] and Stone J at [36]).
It was argued that a student "may fail to achieve satisfactory academic results but the education provider may be satisfied that, in all the circumstances relevant to the student, the academic result is satisfactory to the provider". It was submitted that, "The provider has a wide discretion, not reviewable by the Minister or the Court." Counsel submitted that the "academic results may be poor" but the academic result may be satisfactory to the provider. The provider in those circumstances may be willing to so certify.
The Applicant submitted that in the s.359A letter the Tribunal advised the Applicant that the absence of a certificate from the education provider that his results were satisfactory must mean that his review could not succeed. It was argued that this was incorrect and misleading and that the Tribunal failed to give the particulars required by s.359A namely, “that the Applicant had not achieved an academic result in semester 1 of 2003 that was certified by Holmesglen to be at least satisfactory".
Accordingly, it was argued, the Tribunal "did not ensure as far as was reasonably practicable that [the Applicant] understood that it was the failure of Holmesglen to certify that he had achieved an academic result that was at least satisfactory that would breach condition 8202". It was argued that in "the circumstances it was reasonably practicable for the Tribunal to explain that Holmesglen could certify that he had achieved an academic result that was at least satisfactory even if his academic results as such were not satisfactory".
The Tribunal, it was argued, did not appreciate the distinction as in its reasons it uses the expression "academic results" and "academic result" interchangeably. Reference was made to the Tribunal decision where those words appear. In its formal finding, it is argued that the Tribunal refers to the appropriate terms in paragraph 60, set out earlier in this judgment, where the Tribunal relevantly states:
“… the Tribunal finds that the review Applicant has not achieved an academic result that was certified by Holmesglen as the education provider to be at least satisfactory in semester 1 of 2003...”
Whilst it was conceded that there was an absence of certification by Holmesglen that the Applicant had achieved an academic result that was at least satisfactory, it was argued the Tribunal failed to discharge its statutory obligation to accord procedural fairness to the Applicant in the manner prescribed by the Migration Act and that failure is sufficient to constitute jurisdictional error.
During the course of oral submissions, Counsel submitted that "the question of whether the Applicant's academic results are satisfactory or not is now clearly not the issue; it simply is there is a certificate to that effect".
It was argued that whilst this may appear to be a technical complaint, the Applicant is entitled to raise a complaint of that nature when seeking to establish a breach of s.359A of the Migration Act.
When dealing with the extent and nature of the complaint of a breach of s.359A of the Migration Act, it was submitted that the court should accept the authority of Allsop J in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 where His Honour relevantly states:
“231In SAAP McHugh J referred to the discussion by Gaudron and Gummow JJ of the issue and relevant cases in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57]-[62]. From that I take the following to be in accordance with principle. First, subject to what follows, if s 424A is not complied with, the Court does not engage in an inquiry as to whether the breach was so trivial as not to warrant relief. The failure to comply with the statutorily mandated provisions leads to the conclusion that there was a lack of statutory authority to make the decision. In the operation of s 424A and the principles of procedural fairness, adherence to mandated process and procedure is vital. Secondly, as a matter of discretion, relief will be withheld for reasons going to the conduct of the applicant as discussed in Aala and SAAP. No such considerations apply here. Thirdly, if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld.”
It is not appropriate for the Court to consider whether a typographical error has occurred in the letter.
Reference was made to a decision of this court in Wang v Minister for Immigration & Anor [2006] FMCA 1034 (Wang) where the Court, whilst criticising the form of the s.359A letter, otherwise was satisfied that by referring to the adverse report concerning the academic performance of the student, it had sufficiently brought to the student's attention a possible breach of the relevant condition (see Wang, paragraphs 36 and 37). Whilst it was conceded in submissions that that decision was not helpful to the Applicant in the present argument, it was further submitted the emphasis in the appellate decision in relation to the section is that compliance must be strict and it is "not a matter of assessing whether or not it is merely good enough if it’s not the right information and it is not satisfactory".

First Respondent's Submissions

The First Respondent submitted that the s.359A notice complied with the statutory obligation on the Tribunal. Reference was made to the notice and it was submitted that it stated the basis for the information provided by Holmesglen and, specifically, that the Applicant's academic results in the relevant semester were not certified by the education provider as at least satisfactory.
The notice, it was argued, "brought the fact that Holmesglen had not certified the Applicant's academic result(s) in the relevant semester to be at least satisfactory, to his attention as a result why the decision under review may be affirmed, and explained why it was relevant to the review". Accordingly, that being the purpose of s.359A, the Tribunal had complied with its statutory obligation.
It was argued that in a matter of this kind the Court, when invited to consider the use of the word "results" instead of "result", would require an overly critical analysis of the kind considered inappropriate by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272.
Reference was made to a Full Court decision of the Federal Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 (Tian) where the court relevantly stated:
“55… The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
56On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.”

Reasoning

In my view the submissions on behalf of the Applicant in relation to this ground cannot be sustained, as the Tribunal has complied with the obligations under s.359A of the Migration Act. The extract from the relevant letter clearly refers to "results" instead of "result". However, that does not in itself, in my view, provide any basis upon which it could be argued that the letter is misleading or has otherwise failed to comply with the requirements of s.359A of the Migration Act. The Court should not look at the wording of the letter too critically.
Further, I accept and apply the authority of the Court in Tian, relied upon by the First Respondent and set out earlier in this judgment, that the “Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory”. I accept that the "condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory". Conversely, where, as in the present case, the education provider has produced a certificate for the relevant semester indicating that it did not certify the academic results of the Applicant to be "at least satisfactory", then it is clear that the appropriate certification has not been obtained and accordingly the Applicant has breached the relevant condition. That leaves the Tribunal in a position where it correctly, as a matter of law in my view, affirmed the delegate's decision when considering this matter.
It follows for the reasons given that this ground should fail.

Grounds 2 to 4

As indicated earlier in this judgment, these grounds were not pursued with any vigour by Counsel for the Applicant, appropriately in circumstances where this Court is clearly bound by the Full Court decision in Zhou. In my view the s.20 notice forwarded to the Applicant could not be found to be invalid on any of the grounds advanced for and on behalf of the Applicant in the light of the recent decision of the Full Court in Zhou.
Accordingly, in my view grounds 2 to 4 should fail.

Conclusion

It follows for the reasons given that the application should be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 12 July 2007