Cui v Minister for Immigration

[2006] FMCA 1266

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1266

MIGRATION – Application to review decision of Migration Review Tribunal – cancellation of student visa on the basis of failure to achieve academic result certified by education provider to be satisfactory – whether Tribunal failed to comply with s.359A of the Migration Act 1958 in failing to put information from education provider to the applicant – whether Tribunal and delegate lacked jurisdiction on the basis that there was inadequate notification of proposed cancellation by Department – whether Tribunal failed to take into account the basis for the education provider’s assessment of applicant’s academic result – whether Tribunal erred in finding absence of certification a basis on which to affirm the cancellation – whether Tribunal had to consider exceptional circumstances – whether condition 8202(3)(b) in Schedule 8 to the Migration Regulation ultra vires.

Migration Act 1958 (Cth), ss.116, 119, 137, 359A
Education Services for Overseas Students Act 2000 (Cth), s.20
Acts Interpretation Act 1901 (Cth), s.15AA
Migration Amendment Regulations 2005

Bao v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 270
Cann’s Pty Ltd v The Commonwealth & Anor (1945) 71 CLR 211
Carbines v Powell (1925) 36 CLR 88, Shanahan v Scott (1957) 96 CLR 245
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Craig v South Australia (1995) 184 CLR 163
Debnath v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1030
Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139
Gerhard vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495
Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35
King Gee Clothing Co Pty Ltd & Ors v The Commonwealth & Anor (1945) 71 CLR 184
Mills v Meeking (1990) 169 CLR 214
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v Yu (2004) 141 FCR 448
Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96
Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402
Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85
Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
R v Young (1999) 46 NSWLR 681
Re Minister for Immigration & Multicultural & Indigenous Affairs & Another; Ex parte Applicants S134/2002 (2003) 195 ALR 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Twist v Randwick Municipal Council (1976) 136 ALR 106
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Zubair v Minister for Immigration& Multicultural & Indigenous Affairs [2003] FMCA 440
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561

Applicant: HAN CHEN CUI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG525 of 2005

Judgment of: Barnes FM

Hearing date: 2 August 2006

Delivered at: Sydney

Delivered on: 2 November 2006

REPRESENTATION

Counsel for the Applicant: Mr R. Nair

Solicitors for the Applicant: Lloyd Truman Sadiq

Counsel for the Respondents: Ms L. Clegg

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG525 of 2005

HAN CHEN CUI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 2 February 2005 affirming a decision of a delegate of the first respondent to cancel the applicant’s Student (Temporary) (Class TU) visa. 

2. The applicant is a national of China who was born on 26 October 1985.  He first entered Australia on 3 November 2003 as the holder of a Student (Temporary) (Class TU) visa Subclass 571 (Schools Sector) visa which was valid to 15 March 2006.  At the time of cancellation of his visa the applicant was enrolled in the first year of a year 11 to 12 high school course at the Meridian International School. 

3. The applicant was due to complete the course on 23 December 2005. However on 13 July 2004 the school sent him a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) informing him that he had breached a condition of his student visa relating to attendance in the course. The particulars of the breach were described as follows “Mr Cui’s attendance for Term II (28 April – 2 July 2004) is 64 per cent.  He has not made academic progress due to his attendance average.” 

4. The notice advised the applicant that his student visa would cease after 28 days unless he reported to the Department of Immigration as specified, that if he did report the automatic cancellation of his visa would not proceed but that a decision would be made on whether or not to cancel his visa and that it would not be cancelled if he could show that no breach had occurred. 

5. On 10 August 2004 the applicant attended an interview with a Departmental officer. He was issued with a notice from the Department of an intention to consider cancellation under s.116 of the Migration Act 1958 (Cth) (the Act). Under the heading “Possible Grounds for Cancellation” the notice stated:

   Breach 8202 – Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.

6. The applicant was invited to comment on 25 August 2004.  In the meantime, on 12 August 2004 the Department sent a facsimile form letter to the Meridian International School seeking information on the applicant’s attendance and academic performance.  The completed form dated 12 August 2004 was returned to the Department. 

   
   

   In response to questions about the applicant’s attendance the school advised that no medical certificates had been provided, that the applicant’s attendance for Term 2 2004 (which was the only term in which he was shown to have attended) was 64%, that he had first attended on 26/4/04 for “High School” and that his attendance was “current”.  

7. In response to a question as to whether or not the applicant had achieved an academic result considered to be at least satisfactory for each term of his course, the school responded “no” in relation to Term 2 2004.  It indicated that a warning notice had been issued.  Under the heading “further comments” it was stated that a list of students under 80% “goes up on the notice board every week”. 

8. The school also provided the Department with copies of a number of documents.  A document described as The Meridian International School Year 11 Half Yearly Report 2004 for the applicant set out his  results for Term 2 of 2004 in six subjects together with his rank (although there was no indication of the total number of students undertaking each subject) and also his attendance in each subject. 

   
   

   The report stated that the applicant’s results ranged from 4% in Physics to 50% in Chinese Background Speakers and that his attendance ranged from 50% in Economics to 88% in Fundamentals of English. 

   
   

   A copy of what is apparently an internal facsimile letter dated 3 June 2003 from the school provided a list of students whose attendance had fallen below 80% for Term 2 and asked the recipient to contact the students and inform their parents that if their attendance had not improved by the end of term they would be reported to the Department.  That facsimile stated that as at 3 June 2004 (before the term had ended) the applicant’s attendance was 64%. 

9. A letter from the school to the applicant dated 3 June 2004 advised him that his attendance over the prior five weeks was “sitting on 64%” and reminded him that there was a Departmental requirement of a minimum of 80% attendance.  It advised him that he needed to ensure he attended all classes to improve his overall attendance record and that if his overall attendance fell below 80% this information would be forwarded to the Department.  It also advised the applicant that if he was ill to ask his doctor for a medical certificate.  A subsequent internal email dated 12 July 2004 stated that the attendance for the applicant for Term 2 2004 was 64% and that the school would be reporting the student to the Department of Immigration for non-compliance. 

   
   

   There is no explanation in the material before the Court as to how the applicant’s attendance was calculated as 64% at both 3 June 2004 and 12 July 2004. 

10. On 25 August 2004 the applicant attended an interview with the Department.  He provided medical certificates in relation to certain of his absences from the school.  A facsimile from the school to the Department dated 25 August 2004 confirmed that if the applicant’s medical certificates had been taken into account his attendance would have been calculated as 89 per cent. 

11. On 25 August 2004 the applicant’s visa was cancelled by the Department.  In the record of decision as to whether to cancel the visa the Departmental delegate recorded that the applicant’s attendance with medical certificates was 89 per cent “…but still unsatisfactory academic result, Year 11 Half Yearly Report 2004”.  The record of decision stated that the delegate was satisfied that the applicant had breached condition 8202 in that he had failed to maintain satisfactory academic progress.  Hence the delegate found grounds to cancel the visa. 

12. On 3 September 2004 the applicant applied to the Tribunal for review of the delegate’s decision. On 3 November 2004 the Tribunal wrote to the applicant care of his adviser under ss.359 and 359A of the Migration Act inviting him to comment in writing on the information that “The Meridian International School advised on 12 August 2004 that you did not achieve an academic result at least satisfactory in Term 2 2004”.  This information was said to be relevant because the Tribunal may find that the applicant was in breach of visa condition 8202 which required that he must meet course requirements, in particular achieve an academic result certified by the education provider to be at least satisfactory.  The Tribunal informed the applicant that if it found that he was in breach of condition 8202 it would have no choice but to affirm the Department’s decision to cancel his student visa. 

13. The Tribunal also invited the applicant to give additional information as follows:

    If you do not agree with your education provider’s certification that you did not achieve result that is at least a satisfactory in Term 2 of 2004, you are invited to provide a certification by your education provider that you did in fact achieve an academic result that is at least satisfactory in Term 2 2004. 

14. On 17 November 2004 the applicant’s adviser wrote to the Tribunal taking issue with the manner in which the delegate had proceeded to cancel the applicant’s visa, submitting that the applicant had at all material times been a genuine, diligent and conscientious student who had been faced with great difficulty assimilating into the Australian culture and education system and had difficulty with the English language and submitting that he had taken steps to alleviate the situation by taking additional tuition.  It was claimed that the applicant had suffered a series of viral respiratory infections which had prevented him from attending the college, thereby triggering the breach of condition and which prevented him from performing to his academic ability, but that he was motivated to complete his course.  It was pointed out that when the applicant’s medical certificates were taken into account his attendance was in excess of 80 per cent.  It was claimed that cancellation of the visa would cause hardship to the applicant and his family.  It was contended that his circumstances were exceptional, such that it was fair and reasonable for the student visa to be reinstated.  It was also claimed that in addition to absences covered by medical certificates, the applicant was ill with similar symptoms on other occasions but that he did not seek medical treatment because he was not aware of the seriousness of his illness and that it was only after the illness persisted that he visited a medical practitioner and obtained medical certificates.  It was submitted that there was no breach of condition 8202 because the absences from college had been adequately “supported”, that the applicant’s circumstances (“illness affecting attendance and academic performance”) constituted exceptional circumstances and also that his attendance and academic achievement had improved markedly since he had recovered from his illness. 

    
    

    The adviser provided copies of medical certificates covering 11 days during Term 2 2004. 

15. On 23 December 2004 the applicant’s adviser provided the Tribunal with a copy of a three page statement from the applicant dated

    
    

    6 December 2004 in which he elaborated on his difficulties and illness in Australia and the effect on his study.  The applicant attended a Tribunal hearing on 11 January 2005. 

Tribunal decision

1. In its reasons for decision the Tribunal observed that the delegate of the Minister had cancelled the applicant’s visa pursuant to ss.116(1)(b) and (3) of the Migration Act and Regulation 2.43(2)(b) because of the finding that the applicant had not complied with condition 8202 to which his visa was subject. It considered the version of condition 8202 applicable at the time the applicant’s visa was granted which, relevantly, provided that a visa holder met the requirements of

   
   

   sub-clause 8202(3) if the Minister “is satisfied that the holder attends for at least 80% of the contact hours scheduled … for each term of the course” and “the holder achieves an academic result that is certified by the education provider to be at least satisfactory … for each term … of the course”. 

2. The Tribunal noted that the education provider had confirmed to the Department that when the applicant’s medical certificates were taken into account his attendance rate would be 89 per cent, but that his visa had been cancelled on the ground that he was in breach of condition 8202 as he failed to make satisfactory “academic progress”. 

   
   

   It recorded the evidence provided by the applicant at the Tribunal hearing as follows:  “The review applicant stated that he studied hard and described how often he studied.  He was often sick and so could not attend his course.” 

3. The Tribunal considered whether the applicant had complied with condition 8202.  It found that he was enrolled in a registered course studying Years 11 and 12 at the Meridian International School Pty Ltd, that he commenced the course on 29 April 2004 and was due to complete it on 23 December 2005.  The Tribunal considered whether the applicant had achieved an academic result that was certified by the education provider to be at least satisfactory for each term of the course.  The Tribunal stated:

   The Meridian International School informed the Department on 12 August 2004 that the review applicant had not achieved an academic result considered to be at least satisfactory for Term 2 of 2004.

   The school included a copy of the review applicant’s Year 11 Half Yearly Report for 2004 for the period 27 April to 1 July 2004.  This showed that the review applicant had achieved less than 50% for five subjects and had achieved 50% for one subject.  The report appears to support the education provider’s certification.

   The school has not certified that the review applicant achieved an academic result that is at least satisfactory for Term 2 of 2004.  The review applicant was invited by the Tribunal to provide a certification by the education provider that he did in fact achieve an academic result that was at least satisfactory in Term 2 of 2004.  However, no certification was provided.

   The school has not certified that the review applicant achieved an academic result that is at least satisfactory for each term of his course.  For this reason, the review applicant breached condition 8202 of his visa. 

4. The Tribunal found that the applicant had not complied with condition 8202, that his visa “may” be cancelled pursuant to paragraph 116(1)(b) of the Act, but that as the applicant’s failure to comply with condition 8202 was a prescribed circumstance within sub-paragraph 2.43(2)(b) of the Migration Regulations, sub-s.116(3) of the Act directed that the applicant’s visa must be cancelled.  Accordingly the Tribunal affirmed the decision to cancel the applicant’s visa. 

Relevant legislation

1. Section 116 of the Migration Act relevantly provides:

   (1)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; or

   …

   (3)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.

   Regulation 2.43 of the Migration Regulations relevantly provided: 

   …

   (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, that the Minister is satisfied that the visa holder has not complied with:

   (i)      condition 8104 or 8105 (if the condition applies to the visa); or

   (ii)     condition 8202.

2. The applicant’s visa was subject to a number of conditions including condition 8202.  As at 8 October 2003 (the date on which the applicant’s visa was granted) the applicable form of condition 8202 was, relevantly, as follows:

   8202 (1)     The holder (other than the holder of a Subclass 571 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa must meet the requirement of subclauses (2) and (3).

   …

   (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.

This application

1. The applicant sought review of the Tribunal decision by application filed in this Court on 1 March 2005.  He filed an amended application in Court on 2 August 2006 and also a further amended application which added a ground.  He also sought review of the delegate’s decision, seeking a declaration that the purported decision of the first respondent’s delegate was made without jurisdiction. 

Section 359A

1. The first ground relied on by the applicant is that the Tribunal failed to act in accordance with s.359A of the Migration Act 1958.  It was contended that the applicant’s school had provided the Department with a copy of his year 11 half yearly report for 2004 for the period

   
   

   27 April to 1 July 2004 (which showed that the applicant had achieved less than 50% for five subjects and 50% for one subject), that this information was the reason or part of the reason for the Tribunal affirming the decision under review, that it was not information the applicant gave to the Tribunal for the purposes of the application but that the Tribunal did not, pursuant to s.359A, give the applicant particulars of this information or ensure, so far as reasonably practicable, that he understood why the information was relevant or invite him to comment on the information by one of the methods specified in s.379A of the Act.

1. It was submitted for the applicant that it was clear, or could be inferred from reading the Tribunal’s decision as a whole, that part of the reason for the Tribunal affirming the decision under review was the information in relation to the results of the applicant in particular subjects as set out in the half yearly school report for 2004 for the period 27 April to 1 July 2004. 

2. It was acknowledged that because condition 8202 was expressed in terms that stated that it would be met, relevantly, if the visa holder achieved an academic result that was certified by the education provider to be at least satisfactory, if the applicant had provided a certificate from the school that was positive the decision-maker could do no more than accept that. However it was contended that the corollary was not true and did not logically follow and that if the school did not provide such a certificate (or even if the school was understood to have provided certification that an applicant’s progress was unsatisfactory) it did not follow that the decision-maker could simply rely on that fact. This was said to be so because the decision-maker him or herself was required by the Migration Act to be satisfied or not satisfied that condition 8202 was breached.

3. In other words whilst satisfaction that the condition had been met could be met by a positive certificate, it was submitted that the decision-maker could not be said to be not satisfied merely because there was a negative certificate.  It was submitted that the decision-maker had to look not just at the certification but also at the totality of the evidence and that in this case, in considering whether it was satisfied as to whether condition 8202 had been met the Tribunal had relied on the information about the applicant’s results in Term 2 subjects (from the half yearly report).  It was said that it could be inferred that the Tribunal relied on this subject information in such a way that it formed part of the reason or even the reason for the affirmation of the delegate’s decision. 

4. Counsel for the first respondent contended that the reason for the Tribunal affirming the decision under review was the absence of a certificate by the education provider as to satisfactory academic progress. It was submitted that the Tribunal had information consisting of the negative certification of 12 August 2004 from the school which was sufficient for it to make that finding and that in those circumstances the reason for making the decision was not the results of the applicant in particular subjects but rather the fact that when asked whether the applicant had performed satisfactorily for each term of the course the education provider had responded “no” in relation to Term 2 2004. It was said that there was no requirement under s.359A(1) for the Tribunal to give particulars of information beyond this fact. It was also contended that the fact that under s.359A particulars of the information must be given in a way that the Tribunal considered appropriate in the circumstances indicated that the Tribunal could take into account the content and not just the method of providing the information, as the wording of s.359A(1) gave the Tribunal some discretion not only as to how but also as to what it told the applicant.

5. Hence it was submitted for the first respondent that the applicant had been sufficiently put on notice by the particulars that were provided in the s.359A letter of 3 November 2004 and that the Tribunal was not required to set out the results that he had achieved for Term 2 of 2004. Further, it was contended that while the Tribunal did not provide the applicant with an actual copy of the negative certification it had received from the school in its letter of 3 November 2004, it disclosed particulars of the information, the date on which the information had been received and the substance of the information that would be the reason or part of the reason for affirming the decision under review as well as the reason why the information was important (being the consequences of a breach of visa condition 8202). It was pointed out that the Tribunal had gone on to invite the applicant, if he did not agree with the education provider’s certification that he had not achieved a result that was at least satisfactory, to provide a certification by his education provider that he did in fact achieve an academic result that was at least satisfactory. This was said to have made it clear that the applicant was put on notice as to what would be the reason for affirming the decision under review. On this basis it was contended that the failure to give the applicant the academic transcript or particulars of the results therein did not mean that s.359A(1) had not been complied with by the Tribunal.

Reasoning

1. Section 359A(1) of the Act requires the Tribunal to put to an applicant for comment particulars of information that the Tribunal “considers would be the reason, or a part of the reason, for affirming the decision that is under review”.

2. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [215] Allsop J (with whom Weinberg J agreed) expressed the view in relation to s.424A(1) (which relevantly is in the same terms as s.359A(1)) that in light of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 :

   “The question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision”. 

3. However as his Honour went on to state at [216]: 

   “… one always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion… [in that case for the Tribunal’s lack of satisfaction as to the existence of protection obligations].  Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision.  The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be prior to making the decision, the reason or a part of the reason).  Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s.424A without any additional requirement … that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s.424A.  The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.” 

4. While these views were expressed in relation to s.424A (which applies to reviews by the Refugee Review Tribunal of applications for protection visas), the principles to be applied in determining whether information is a part of the reason for affirming the decision, in particular the requirement to analyse and interpret Tribunal reasons to understand the reason for the ultimate conclusion are also relevant to a consideration of s.359A(1). However what differs in the context of s.359A(1) is that the nature of the ultimate reason for the Tribunal decision will differ depending on the statutory provision in issue.

5. In this case the Tribunal affirmed a decision to cancel the applicant’s visa under paragraph 116(1)(b) of the Act on the basis that the applicant had “not complied with a condition of the visa” being condition 8202. The Tribunal was satisfied that cancellation was mandatory under s.116(3) because there existed “prescribed circumstances” under Regulation 2.43(2)(b), namely “that the Minister is satisfied that the visa holder has not complied with … condition 8202.”

6. Hence what was in issue for the Tribunal was whether it was satisfied that the applicant had not complied with condition 8202.  The part of condition 8202 of relevance was sub-clause 3.  That sub-clause sets out the circumstances in which a visa holder meets its requirements. 

   
   

   It contains two differently expressed but cumulative requirements.  The first limb (in para (a)) relates to attendance and is expressed in terms of “the Minister being satisfied that the holder attends 80% of the contact hours scheduled” for a relevant period.  The second limb (in para (b)) applies in every case.  It is that “the holder achieves an academic result that is certified by the education provider to be at least satisfactory” for a specified period (relevantly in this case, as the course ran for at least a semester, for each term of the course). 

7. It is notable that paragraph (b) of condition 8202(3) is not expressed in terms of the Minister (or Tribunal) being satisfied that the visa holder has achieved a satisfactory result – rather the decision-maker must be satisfied that the visa holder achieves a result that is “certified” by the education provider to be at least satisfactory.  As Ryan J stated in Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495 at [13]:

   Accordingly, for the mandatory obligation to cancel the applicant’s visa to arise, the Minister, or his Delegate (or the MRT standing in the shoes of the Minister) had to be satisfied that the applicant had not complied with condition 8202.  The matters stipulated in condition 8202(2) and 8202(3) are cumulative as are the twofold requirements imposed by condition 8202(3).  In other words, for an applicant to comply with condition 8202(3), the Minister must be satisfied that the eighty percent threshold for attendance has been satisfied and the holder must have achieved an academic result that has been certified by the education provider to be at least satisfactory. The Minister can only be satisfied of non-compliance with the latter sub-condition if there is no acceptable evidence of certification by the education provider of at least satisfactory results. It is not open to the Minister to question, or go behind, such a certificate if one exists.  

8. In Gerhard there was an absence of any evidence of certification. 

   
   

   It was in those circumstances that Ryan J found that the Tribunal was “almost compelled” to infer from the information before it that no such certificate had been or would be issued by the education provider. 

9. However, as Allsop J (with whom Tamberlin J agreed) stated in Minister for Immigration & Multicultural & Indigenous Affairs v Yu (2004) 141 FCR 448 at [38], the language of condition 8202(3)(b) “contemplates an act of certifying that is positive”.  In this case, as in Yu, there was evidence before the Tribunal that the education provider (the Meridian International School) had responded to the Department’s request for specification of “yes” or “no” as to whether the applicant had achieved an academic result considered to be at least satisfactory for each term of his course.  The school had responded “no” in relation to Term 2 of 2004, thus addressing the issue of whether there was the positive “certification by the education provider” relevant under condition 8202(3)(b).  In similar circumstances in Yu, Allsop J (with whom Tamberlin J agreed), found at [28] – [30] that there was no obligation on the Tribunal to enquire of the education provider about the answer “no” in response to the question on a form such as the one completed by the school in this case, as to whether the student had achieved an academic result that was at least satisfactory (despite other information before the Tribunal about the student’s performance).

   
   

   In other words the negative certification was sufficient for the Tribunal to determine whether the student met condition 8202(3)(b).  As his Honour stated at [30]:

   The proper task before the Tribunal was to consider whether the [student] had met the requirement of condition 8202(3)(b) that he achieved in the term in question an academic result that was certified by the College as satisfactory.  It had a certificate, which stated that the [student’s] academic progress was unsatisfactory.  It was not obliged by s.116, s.119, Reg 2.43(2), condition 8202 or otherwise to seek to go behind the communication from the College.  It was certainly not entitled to assay the task of assessing the progress of the [student] for itself.

10. Given the manner in which condition 8202(3)(b) is expressed, all that was in issue for the Tribunal in this instance was whether there was a certification by the education provider that the applicant had achieved a satisfactory academic result.  In circumstances where there was, as here, a negative certification, it is clear (reading the Tribunal reasons for decision as a whole), that the information that was the reason or part of the reason for affirming the decision of the delegate was the negative certification by the education provider which indicated the absence of a positive certification in response to the request.  This was the information relied on by the Tribunal in finding that the school had not certified that the applicant achieved an academic result that was at least satisfactory for Term 2 of 2004. 

11. This is consistent with the fact that in the reasons for decision the Tribunal stated that it had invited the applicant to provide a certification that “he did in fact” (that is, contrary to the negative certification) achieve an academic result that was at least satisfactory in Term 2 of 2004, but that no certification was provided. While “fairness” is no longer a guide to the interpretation of s.359A, it is notable that this invitation gave the applicant (who had a solicitor/migration agent) an opportunity to put to the education provider any arguments about performance in light of his claimed illness and to seek a positive certification of his academic performance on that basis. There is no suggestion that he sought a positive certification from the education provider. Rather the response to the s.359A letter addressed matters which might be seen as providing a justification or explanation for the applicant’s performance, despite the fact that under condition 8202(3)(b) it is not for the Tribunal itself to assess an applicant’s academic performance.

12. The necessary particulars of the information provided by the education provider were put to the applicant in the s.359A letter in the statement that the school had advised that the applicant did not achieve an academic result that was at least satisfactory in Term 2 2004. The fact that there was other material before the Tribunal and that the Tribunal observed in its reasons for decision (see Yu at [215] per Allsop J) that the half yearly report provided to the Department “appeared” to support the education provider’s negative assessment does not “conclude the question” of whether such report or its contents constituted the reason or part of the reason for affirming the decision. This was not a case in which the Tribunal had to infer on the basis of information about the applicant’s results that no positive certification had been or would be issued by the education provider. The decision was based on the finding that there was an absence of a certification by the education provider that the applicant had achieved an academic result that was at least satisfactory. The Department had sought positive certification. It had not simply not been forthcoming – rather the school had specified that the applicant had not achieved an academic result considered to be at least satisfactory for Term 2 2004. In these circumstances information referred to in the decision that was merely supportive of a conclusion clearly reached on some other basis is not “the reason or part of the reason” for affirming the decision to cancel the visa in s.359A(1). It was not for the Tribunal to seek to “go behind” the negative certification or in these circumstances to have regard to other material about the applicant’s academic performance in addressing the question of whether there was a positive certification by the school as required by condition 8202(3)(b).

13. That the reason for the decision was the absence of positive certification as demonstrated by the negative certification is consistent with the Tribunal’s emphasis in the following statements:  

    27.The school has not certified that the review applicant achieved an academic result that is at least satisfactory for Term 2 of 2004.  The review applicant was invited by the Tribunal to provide a certification by the education provider that he did in fact achieve an academic result that was at least satisfactory in Term 2 of 2004.  However, no certification was provided. 

    28.The school has not certified the review applicant achieved an academic result that is at least satisfactory for each term of his course.  For this reason, the review applicant breached condition 8202 of his visa.

14. Hence the particulars of the results in each subject in the half yearly report did not have to be put to the applicant for comment under s.359A of the Act. No failure to comply with s.359A has been established.

Whether the Tribunal and the delegate lacked jurisdiction on the basis that there was a failure by the delegate to comply with s.119 of the Migration Act

1. Ground two of the amended application is that the Tribunal (and also the Minister’s delegate) lacked jurisdiction to cancel the visa “because of failure to notify the applicant of the grounds of the proposed cancellation as required under s.119 of the Migration Act 1958.”

2. Section 119 of the Migration Act requires the Minister to notify a visa holder of a proposed cancellation, to give particulars of the apparent grounds for cancellation and of the information (not being non-disclosable information) because of which the grounds appear to exist.

3. It was contended for the applicant that the purported ground for cancellation specified in the notice of intention to cancel that was provided to the applicant dated 10 August 2004 was not a ground provided for in the migration legislation.  As set out above, the notice of intention to consider cancellation referred under the heading “Possible grounds for cancellation” to a breach of 8202 as follows: “Your education provider has advised that you have failed to maintain at least 80 per cent attendance and/or make satisfactory academic progress for each term/semester of your course.”  According to the notification of decision the ground on which the delegate cancelled the visa was that the applicant “failed to maintain a satisfactory academic progress”.  However the ground provided for in condition 8202(3)(b) was satisfaction that the visa holder had not achieved an academic result certified by the education provider to be at least satisfactory. 

4. Counsel for the applicant took issue with the terminology used to describe the possible grounds for cancellation in the notice of cancellation, in particular the failure to refer to an absence of achievement of an academic result “certified by the education provider to be at least satisfactory” (as distinct from a failure to “make satisfactory academic progress”). It was contended that failure to use the words provided for in the legislation was sufficient to constitute a jurisdictional error. It was submitted that the need for there to be a proper disclosure in the notice of cancellation was reinforced by the fact that in this case the notice that had been sent to the applicant by the education provider under s.20 of the Education Services for Overseas Students Act 2000 referred to only one ground, that being that the applicant’s attendance was 64 per cent and that consequently he had not made academic progress due to his attendance average. That notice did not refer to a distinct ground relating to academic progress. It was also said that as a warning notice addressed to the applicant from the school referred only to his rate of attendance it could not be said that the applicant was on notice that anything other than his attendance was a matter of concern or as to what the phrase “did not make academic progress” meant. It was contended that s.119 was a mandatory requirement that had not been complied with by the delegate.

1. It was further contended that the Tribunal was similarly bound and that this was not a case in which any defect in the decision of the delegate could be cured by the Tribunal decision.  It was said that while a failure to give adequate time to an applicant to respond to a particular issue could be “cured” by a de novo merits review, in this case it was not a question of time but rather a question of the applicant being provided with appropriate details of possible grounds for cancellation.  Moreover it was said the Tribunal did not put the applicant on notice as to the actual ground of cancellation.  On this basis it was said that the defect was not cured by the Tribunal review.  Counsel for the applicant was not able to provide any authority in support of this proposition.  

   
   

   He acknowledged that there were cases in which it had been held that an error was cured by Tribunal review, but suggested that the present situation could be distinguished from such authorities. 

2. Counsel for the respondent contended that even if there was a defect in the notice or an absence of procedural fairness on the part of the delegate, such conduct could be remedied by the later merits review by the Tribunal, consistent with the authority of Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561 (also see Twist v Randwick Municipal Council (1976) 136 ALR 106 at 116). It was in any event contended that there had been no denial of procedural fairness by the delegate or defect in the s.119 notice, as the notice had adequately informed the applicant in “either/or” terms of possible reasons for cancellation.

Reasoning

1. First, any alleged defects in the notice from the school to the applicant under s.20 of the Education Services for Overseas Students Act 2000 are not material to the resolution of this issue.  As pointed out by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96 at [39] this is because the decision under review is a decision of the Tribunal to affirm a cancellation decision under s.116 of the Migration Act and not a challenge to an automatic cancellation pursuant to s.137 of the Migration Act based on a s.20 notice. As the Court (Ryan, Nicholson and Lander JJ) stated in Zhou at [40]:

   it is not apparent how any invalidity in the s.20 notice could have had any invalidating effect on the s.119 procedure.

2. Moreover in Humayan v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35 at [30] – [31] per Wilcox J with whom Conti J agreed (and see Minister for Immigration & Multicultural & Indigenous Affairs v Yu (2004) 141 FCR 448), the argument that there is a legal interaction between subdivision GB of Division 3 of Part 2 of the Migration Act (which deals with automatic cancellation of visas after a notice under s.20 of the ESOS Act) and Subdivision D of Division 3 of Part 2 of the Migration Act (which contains ss.116 and 119) was rejected.

3. Secondly, the particulars of possible grounds of cancellation referred not simply to a failure to make academic progress but to the fact that the applicant’s education provider “had advised … that [he had] failed to maintain at least 80% attendance and/or make satisfactory academic progress …”  In other words reference was made (albeit not in those terms) to the negative certification, which was information that indicated that there was an absence of a positive certification. 

4. In any event, even if there was a defect in the s.119 notice arising from the manner in which the possible grounds for cancellation were described, such a defect would nonetheless be a defect of a kind that could be and was cured by de novo merits review by the Tribunal.

   
   

   In Zubair v Minister for Immigration& Multicultural & Indigenous Affairs [2003] FMCA 440 Federal Magistrate Raphael found that a failure by a delegate to provide particulars of grounds required by s.119(1)(a) was a failure to comply with a mandatory requirement.

   
   

   His Honour found that the delegate’s decision was invalid, but that the proper conduct of a review by the Tribunal could overcome such invalidity. The Full Court of the Federal Court dismissed an appeal (see (2004) 211 ALR 261). It was accepted that the delegate’s decision was invalid because it did not follow the mandatory requirements of ss.119(1)(a) and (121)(2). However the Full Court held that merits review by the Tribunal could be undertaken in relation to such an invalid decision (at [21] – [32]) (also see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561).

5. Hence it cannot be said that the Tribunal lacked jurisdiction to review the decision.  As was stated in Zubair at [38]:

   The identification of what is the MRT-receivable decision by the delegate is not determined by a conclusion that s.119 was not complied with … the fact of a lack of compliance with s.119 neither destroys the power under s.116(1)(b), or governs identification of the context of the decision.

   As their Honours continued at [41] “under s.349 of the Act the Tribunal accords to the powers and discretions conferred on the Minster or delegate not the procedures which bind them.”  Thus, the Tribunal decision “cured” any such defect in the delegate’s decision (Zubair at [32]) provided no jurisdictional error was established in the Tribunal’s decision. 

6. This principle was expressed generally in Zubair in relation to a failure to follow the mandatory procedural requirements of ss.119 – 121 of the Act. It was not confined to a lack of procedural fairness (at [28]) or to a failure to allow a visa holder time to respond. (Also see Twist at 116 and Bao v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 270 at [14]). Similarly in this case any failure by the delegate to comply with the procedural requirements of s.119 (such as was suggested for the applicant) was cured by the Tribunal review, given that for the reasons set out herein, no jurisdictional error has been established on the part of the Tribunal. In that respect I note that there is no evidentiary basis for the contention that the Tribunal did not put the applicant on notice as to the actual ground of cancellation.

   
   

   Not only is this suggestion contrary to the s.359 and s.359A letter, but also there is no evidence before the Court as to what occurred in the Tribunal hearing (other than the Tribunal reasons for decision).

Whether the Tribunal failed to take into account a relevant consideration or ignored relevant material

1. The third ground relied on in the amended application is that the Tribunal failed to take into account a relevant consideration and/or ignored relevant material.  It was submitted that the Tribunal failed to take into account the fact that when the education provider gave information to the Department about the applicant’s attendance and about whether or not his academic result was at least satisfactory, it could be inferred that the answer to this latter question was predicated on the education provider’s assessment at that time that the applicant’s attendance was less than 80 per cent. 

2. It was contended that this was clear from the absence of any mention by the Tribunal of the email from the school of 25 August 2004 stating that with medical certificates the applicant’s attendance would be 89% and the fact that the Tribunal did not refer in any way to any statement by the education provider that it continued to maintain its assessment of the academic result not being satisfactory notwithstanding its upwardly revised assessment of attendance.  These matters were said to support the clear inference that the Tribunal did not have regard to the fact that the school’s response of 12 August 2004 to the question about a satisfactory academic result was predicated on the applicant’s attendance being assessed as unsatisfactory at that time. 

3. It was submitted for the applicant that such consideration was a relevant consideration, arising from the legislation itself which, it was said, required (in condition 8202) achievement of an academic result that was at least “satisfactory”.  This requirement was said to be a requirement for satisfying expectations in the context of all the relevant circumstances.  It was suggested that this argument had been accepted by the respondent given the Tribunal’s acceptance that the requirement of at least 80 per cent attendance was to be calculated taking into account (in favour of the applicant) non-attendance arising from illness.  It was said that a failure to consider a relevant consideration constituted jurisdictional error within the principles considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.

4. Equally it was contended for the applicant that the Tribunal ignored relevant material, being documents and the content of documents consisting of the internal correspondence relating to the applicant’s attendance provided by the school and the warning letter addressing the applicant’s attendance provided by the school. It was said that it could be inferred that the Tribunal ignored these documents in that they were evidence of the education provider’s assessment being predicated on a less than 80 per cent attendance. It was also contended that the Tribunal ignored the content of the s.20 notice and the response to the questionnaire in relation to the same issue and that ignoring relevant material was a jurisdictional error within the principles considered in Craig v South Australia (1995) 184 CLR 163.

5. In essence it was suggested that once the applicant’s attendance had been revised to 89 per cent the Tribunal should have taken into consideration the possibility (and what was said to be the probability) that the academic provider would, if asked, certify that the applicant’s academic result was satisfactory, as its initial assessment of whether the academic result was satisfactory was merely to tick a box “no” or “yes” and to base this, it was said, on the attendance of the applicant. 

6. Counsel for the respondent contended first that, contrary to the submissions for the applicant, the applicant’s revised 89 per cent attendance was in fact referred to by the Tribunal.  I agree.  In its reasons for decision the Tribunal observed that the applicant had provided medical certificates covering specified dates and that an email from the education provider to the Department of 25 August 2004 confirmed that if the medical certificates were taken into account the applicant’s attendance rate would be 89 per cent. 

7. As to the argument that the Tribunal was required to take into account the possibility that the failure of the applicant to be assessed as achieving satisfactory academic results or that the assessment that he had made unsatisfactory progress was or could have been predicated on the attendance results, it was contended for the respondent that while the Tribunal did not address that issue in its decision, it was not required to do so because of the provisions of condition 8202. 

8. Under condition 8202(3) there are two separate criteria.  The failure to satisfy either one of them will result in the applicant not meeting the requirements of condition 8202.  The first criterion is the requirement that the Minister be satisfied that the visa holder attend for at least 80 per cent of the contact hours scheduled for the course or each term.  The second, quite separate requirement is that the holder achieve an academic result certified by the education provider to be at least satisfactory, relevantly for each term of the course as specified in condition 8202(3)(b).  It was pointed out that the two limbs of condition 8202(3) are not dependent on each other and that the fact that one limb was met would not mean the other would not be breached. 

   
   

   It was submitted that what was before the Tribunal was a lack of certification of a satisfactory academic result from the education provider and contended that on that basis it followed that the applicant did not satisfy the condition in condition 8202(3)(b) whatever his attendance rate. 

9. Moreover it was pointed out that the applicant was not only put on notice by the s.359A letter of 3 November 2004 that there had been negative advice from the education provider about his academic results, but that he was also invited under s.359 (if he did not agree with the certification) to provide a certification from the school that he did in fact achieve an academic result that was at least satisfactory in term two of 2004. In these circumstances it was contended for the respondent that no issue could be taken with the Tribunal conclusion that, absent certification, it followed that there had been a failure by the applicant to comply with condition 8202, as there was no discretion left to the Tribunal as to whether the condition was met. It was acknowledged that this effectively put an onus on the applicant to acquire a satisfactory certification (when faced with an unsatisfactory certification) but contended that there was no difficulty with this when the applicant was (as in this case) put on notice that this was what he had to do for the Tribunal to be satisfied that a failure to comply with condition 8202 had not occurred.

Reasoning

1. It is possible that the applicant’s education provider may have had regard to the applicant’s attendance rate in specifying on 12 August 2004 that he had not achieved an academic result considered to be at least satisfactory.  One simply does not know what factors were or could have been taken into account by the education provider in considering whether or not to certify that the academic result for the applicant for a period (in this case a term) was “at least satisfactory”.  There is nothing before the Court to indicate whether education providers adopt a common approach to the assessment of whether an academic result is at least satisfactory or what factors are taken into account.  (See Humayan at [19] per Wilcox J). However the form of para 8202(3)(b) gives the education provider what has been described as “a measure of discretion” (see Humayan v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35 at [19] per Wilcox J and at [36] per Stone J) apparently on the basis that the education provider is seen as best placed to assess the academic performance of its students. The Tribunal has no power to go behind a positive assessment and in the absence of a positive certification it cannot be satisfied that condition 8202(3)(b) is met. In particular the Tribunal has no power to assess the academic performance of a visa holder itself (in contrast to the need for it to be satisfied that the applicant’s attendance meets the requirements of condition 8202(3)(a)).

2. What was in issue for the Tribunal in this instance was whether there was a positive certification by the education provider.  This was the requirement of condition 8202(3)(b) – a condition that the visa holder had to meet.  The applicant was informed by the Tribunal of the absence of a positive certification by his education provider and invited to provide such a certification by his education provider.  The applicant had the assistance of solicitors in connection with his review application.  There can be no suggestion that the letter of 3 November 2004 did not put the applicant on notice of the need for a positive certification. 

3. As Allsop J (with whom Tamberlin J agreed) found in Yu (at [30]) there was no obligation on the Tribunal to enquire of the education provider about the negative certification or “otherwise to seek to go behind the communication from the school”.  The Act itself does not require the Tribunal to obtain a certification from the education provider. 

   
   

   The possibility that the education provider might “change its mind” about whether an academic result was at least satisfactory (given subsequent provision of medical certificates by an applicant) was sufficiently addressed by the Tribunal in this case by its invitation to the applicant to obtain a positive certification and its finding that no such certification was provided.  While the Tribunal has the power to request clarification of a negative assessment from an education provider or to ask whether a positive assessment could be made, it is under no obligation to do so in such circumstances. 

4. It was not open to the Tribunal to engage in its own assessment of the applicant’s academic results based on the fact that some of his non-attendance arose from illness.  Condition 8202 does not require satisfaction on the part of the Tribunal that the applicant achieved an academic result that was at least satisfactory, but rather satisfaction on the part of the Tribunal that the applicant had achieved a result that was certified by his education provider to be at least satisfactory.  In this context the Tribunal was not obliged to assess documents relating to the applicant’s attendance and the possible impact on his academic results or to determine for itself what the education provider’s assessment would be if it had considered the changed circumstances, at least where the education provider was itself aware (as in this case) of the medical certificates and had itself recalculated the applicant’s rate of attendance and where the applicant was given the opportunity to seek a positive certification.  

5. In fact counsel for the applicant did not contend that the Tribunal was obliged to put matters such as the relevance of the re-calculated attendance and the medical certificates to the education provider, but rather appeared to contend that the Tribunal should itself take such matters into account for the purposes of determining whether the applicant’s academic performance was satisfactory.  However as set out above this is not the task of the Tribunal.  In such circumstances it cannot be said that the Tribunal failed to take into account a relevant consideration and/or ignored relevant material. 

6. Nor has it been established that the internal correspondence and warning letter from the school constituted relevant material which the Tribunal was obliged to take into account.  The Tribunal was not entitled for the purposes of condition 8202 to determine whether the academic progress of the applicant was satisfactory.  No jurisdictional error is established in the manner contended for by the applicant.

7. While there may be circumstances in which an applicant could be at a disadvantage in not understanding that he or she had to seek a positive certification from the education provider if what was before the Tribunal was a negative certification, this is not such a case and hence it is not necessary to determine whether in such a case there would be any jurisdictional error on the part of the Tribunal.  The Tribunal informed the applicant (through his solicitor) of the requirements of condition 8202 and of the negative information it had received from the school and invited him to provide a positive certification. 

   
   

   The applicant had the assistance of a solicitor.  No further certification was provided.  Indeed there is no suggestion that the applicant sought a fresh certification from the school taking into account his absences due to illness. 

Whether the Tribunal erred in holding that it was bound to affirm the cancellation

1. Ground four in the amended application is that the Tribunal “erred in law in holding that it was bound to affirm the cancellation of the student visa in the absence of a certificate of satisfactory academic progress from the education provider, and that error went to the Tribunal’s jurisdiction”. 

2. In support of this ground it was acknowledged for the applicant that condition 8202(3)(b) provides that the holder meets that requirement if the holder achieves an academic result that is certified by the education provider to be at least satisfactory.  However it was argued that while the Tribunal needed no more than a certification to that effect to be satisfied that the condition has been complied with, it did not follow that the Tribunal was bound to affirm the cancellation in the absence of a certificate of satisfactory academic progress.  It was contended that such an approach would be a misconstruction of the legislation.  Hence it was submitted that the Tribunal erred in affirming the delegate’s decision on the basis that it was bound to affirm the cancellation if the school had not certified that the applicant had achieved an academic result that was at least satisfactory.  In support of this ground it was said to be clear that this was the basis for the Tribunal affirming the delegate’s decision, given its emphasis in two paragraphs of its decision that the school had not certified that the review applicant achieved an academic result that was at least satisfactory for Term 2 of 2004 or for each term of his course.  It was contended that the Tribunal erred in finding it sufficient without more for cancellation that there was no certification and in finding the absence of certification sufficient to take into account in reaching its state of satisfaction about the failure to comply with condition 8202. 

1. It was contended that s.116 of the Migration Act made it clear that the decision-maker’s satisfaction that a visa holder had not complied with a condition was itself a condition precedent to the cancellation of the visa and submitted that if the decision-maker misconstrued the condition then he or she could not be said to have been satisfied or not satisfied that the condition was breached. Such failure was said to constitute jurisdictional error (see Re Minister for Immigration & Multicultural & Indigenous Affairs and Another; Ex parte Applicants S134/2002 (2003) 195 ALR 1 per Kirby and Gaudron JJ at [73] – [76]).

2. Counsel for the first respondent contended that no such error was established for the reasons put forward in relation to ground three and that, moreover, the Tribunal was not required to express itself in terms of a lack of satisfaction. It was contended that the Tribunal had correctly identified the fact that as a result of the material that was before it, it in effect followed that condition 8202(3)(b) was not met and that as a result under s.116 of the Act and Regulation 2.43 the applicant’s visa must be cancelled. It was said to be clear that the Tribunal reached the view that it was not satisfied that a breach had not occurred. It was accepted that there was no doubt that the Tribunal was saying that it really had no choice but to arrive at the decision that it came to but contended that there was no difficulty with that in light of the manner in which the condition and legislation was drafted. Reference was made to the decision of the Full Court of the Federal Court in Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35.

3. This ground misconceives the requirements of condition 8202(3)(b).  As set out above the Tribunal is concerned not to assess the applicant’s academic results itself.  It is concerned with whether there is a positive certification from the education provider.  If such a certification is not provided the Tribunal cannot be satisfied that the holder has met the requirements of condition 8202(3)(b).  It is clear from the decision of the Full Court of the Federal Court in Humayan that faced with a clear indication from the education provider that the applicant’s academic results are not at least satisfactory, the Tribunal did not err in concluding that the visa holder had not complied with condition 8202 (see Wilcox J at [29] and Stone J at [37]). 

Whether the Tribunal was obliged to consider whether there were exceptional circumstances

1. Ground five in the amended application is that “The Tribunal had to consider whether there were ‘exceptional circumstances’ such as circumstances beyond the applicant’s control which would explain the failure to comply, and failed to consider them”.

2. It was acknowledged that Regulation 2.43, as it applied at the time of cancellation, merely stated that the circumstances in which the Minister must cancel the visa in the case of a student visa were that the Minister was satisfied that the visa holder had not complied with condition 8202. However it was contended that even in that form the Regulation should be construed to promote the purpose and object underlying the Migration Act and hence as requiring the Minister to be satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the visa holder’s control. Counsel for the applicant submitted that it was relevant to have regard to s.15AA of the Acts Interpretation Act 1901 (Cth) which provides:

   (1)  In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would promote that purpose or object. 

3. Reference was made to the fact that, effective from 8 October 2005, Regulation 2.43 was amended, so that it now provides:

   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:

   (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.

4. Despite the fact that the amendments to Regulation 2.43 were made after the cancellation and the Tribunal decision in issue, it was contended for the applicant that the Tribunal was nonetheless required to have regard to exceptional circumstances. This was said to be so despite the absence of any reference to exceptional circumstances in Regulation 2.43 as it stood at the relevant time. This approach was said to be consistent with the amendments to the Migration Act introduced on 21 June 2001 which inserted subdivision GB of Division 3 of Part 2 dealing with the consequences for students who had received a notice from their educational institution pursuant to s.20 of the Education Services for Overseas Students Act 2000. Those provisions had the effect that if a student did not comply with a s.20 notice (which required attendance upon an officer of the Department) his or her visa would automatically be cancelled by operation of s.137J of the Act. However the student could apply to the Minister to revoke the cancellation pursuant to s.137K of the Act. In addressing such an application the Minister was required by s.137L(1) to have regard not only to whether the student did in fact breach the relevant condition or conditions but also to whether any such breach or breaches was or were due to “exceptional circumstances beyond the student’s control”.

5. It was pointed out that in moving the second reading speech in relation to the Education Services for Overseas Students Bill and the consequential amendments to the Migration Act, Senator Patterson had informed Parliament on 30 November 2000 that a student whose visas had been cancelled would be able to “explain his or her failure to attend classes or to achieve a satisfactory performance”.

6. Counsel for the applicant also referred to the Explanatory Memorandum in relation to the amendment to Regulation 2.43 introduced in 2005 which stated:

   This amendment ensures that the students who comply with the law and attend a DIMIA office within 28 days from the date of a s.20 notice will receive a similar treatment to students who apply for revocation after their visa has been cancelled under s.137J of the Act.

7. On the basis of this material it was submitted that, given that when students sought revocation of automatic cancellation, exceptional circumstances beyond their control could be taken into account. Similarly (although the amendment to Regulation 2.43 was not introduced until 2005) the Migration Act and Regulations as they stood at the time of the applicant’s visa cancellation should be interpreted to require the Minister to be satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the visa holder’s control, despite the absence of express reference to exceptional circumstances in Regulation 2.43.

8. It was suggested that the 2005 amendments were merely intended to “ensure” that the regulation was correctly read as intended to require that exceptional circumstances should be taken into account, consistent with what was the position in relation to revocation of automatic cancellation under the 2000 legislation.  In other words it was suggested that it was never the intention of Parliament that someone who behaved lawfully (by reporting to DIMIA) would receive less favourable treatment than someone who did not. 

9. General reference was made in written submissions for the applicant to the dissenting judgment of McHugh J in Mills v Meeking (1990) 169 CLR 214 at 242 – 243 where his Honour pointed out (at 242) that there is authority to the effect that a court “cannot depart from the literal meaning of a statutory provision because that meaning produces anomalies or injustices if no real doubt as to the intention of Parliament arises”.  His Honour went on to suggest that “…when the literal meaning of a provision gives rise to an absurdity, injustice or anomaly, a real doubt will frequently arise as to whether Parliament intended the literal meaning to prevail”. 

10. Counsel for the applicant did however also bring to the Court’s attention a recent decision of Federal Magistrate Driver which was contrary to his argument in this respect (Debnath v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1030). In that case his Honour found that the applicant failed before the Tribunal (as he had done before the delegate) because of the strict application of condition 8202 as it stood at the relevant time, insofar as it required that the applicant be enrolled in a registered course.

    
    

    The applicant had ceased to be enrolled in a registered course and sought to rely on extenuating circumstances which gave rise to that position.  The Tribunal found that it had no option but to affirm the delegate’s decision cancelling the visa (see Debnath at [4]). Driver FM found that the Tribunal was correct in finding that it had no discretion and was not entitled to take into account exceptional circumstances.

11. His Honour observed (at [8]) that in recent years there had been little if any room for the exercise of discretion in relation to the cancellation of student visas by decision-makers.  He noted that the situation had been addressed in Schedule 5 of the Migration Amendment Regulations 2005 (No.8) by the amendment to Regulation 2.43 so that decision-makers “are henceforth permitted to consider whether the non-compliance with condition 8202 was or was not due to exceptional circumstances beyond the visa holder’s control”.  However, as his Honour pointed out, the regulations contain transitional provisions and, as confirmed by the explanatory statement accompanying the amendment, Regulation 7 in the transitional provisions provides that: “The amendment made by Schedule 5 applies in relation to all Student (Temporary) (Class TU) visas in force on or after the day on which Schedule 5 commences, whether or not a breach of condition 8202 occurred before the day on which Schedule 5 commences”.  Schedule 5 commenced on 8 October 2005. 

12. In Debnath (as in this case) the student visa held by the applicant was not in force at the time the 2005 regulations commenced, having been cancelled before that time.  Hence the amendment to Regulation 2.43 did not apply.  However it was contended for the applicant that “Debnath” was “clearly wrong” and that it should not be followed. 

13. Counsel for the first respondent contended first that the question of construction need not be addressed, because the applicant’s circumstances did not amount to exceptional circumstances as an inability to attend school on a number of days owing to a viral infection was not an exceptional circumstance that would explain the applicant’s lack of satisfactory academic progress and as there was no adequate explanation by the applicant for what was said to be his “utterly dismal” failure in all but one subject in Term 2 of 2004. 

14. In the alternative it was submitted that the Court should reject the argument that amendments to the regulations made on 8 October 2005 should impact upon the interpretation of the earlier form of Regulation 2.43 as it applied to this decision.  Rather it was suggested that the fact of the later amendments to Regulation 2.43 supported the Minister’s position that there was no legislative intention that exceptional circumstances be considered in cases where the earlier form of the regulation applied, such as in the case before the Court.  It was said that in effect the applicant was asking the Court to construe Regulation 2.43 as if the subsequent amendment had already been effected and applied to the decision of the delegate and the Tribunal.  This was said to be contrary to the fundamental rule of statutory construction that a statute is to be construed as it stood at the operative date.  

    
    

    The operative date in this instance was the date of the Tribunal decision (2 February 2005) at which time Regulation 2.43 was in the terms set out in the decision.  It was pointed out that the relevant amendments upon which the applicant relied commenced in October 2005, several months after the Tribunal decision and that in an application for judicial review the applicant was required to point to jurisdictional error on the part of the Tribunal at the time of the decision.  It was said that there could be no jurisdictional error on the part of the Tribunal if it followed the law as it stood at the time of its decision.  It was submitted that the regulations at that time could not on any view be interpreted to require the Minister to consider exceptional circumstances, that the effect of the statute was unambiguous and that there was no room for any discretion for the Minister to consider exceptional circumstances.  Indeed it was suggested that this was undoubtedly one of the reasons for the subsequent amendment.  It was contended that the result in this case was not absurd or unjust or an irrational or anomalous result in the manner considered by McHugh J in Mills v Meeking (1990) 169 CLR 214.

Reasoning

1. First, contrary to the contention for the first respondent, it is not for the court to consider whether the applicant’s circumstances did in fact amount to exceptional circumstances. 

2. Secondly, I am not persuaded that the decision of Debnath is clearly wrong.  While the transitional provisions in the 2005 amendments are intended to give some retrospective operation to the amendment, I agree with Driver FM that it is clear that the amendment to Regulation 2.43 applies only in relation to visas in force on or after the day on which the regulations containing such amendment commenced.  Indeed it was not disputed by counsel for the applicant that the amended form of Regulation 2.43 did not apply.  Rather it is suggested that the pre-existing version of the regulation should be read as requiring a consideration of exceptional circumstances because such consideration was required in the context of revocation of automatic cancellation. 

3. However I am not persuaded by this argument.  Not only is it contrary to the approach in Debnath, it is also contrary to the approach of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96. The Full Court confirmed that until the 2005 amendments to Regulation 2.43(2)(b) came into effect, exceptional circumstances were not to be taken into account before cancellation of a visa for breach of condition 8202. This is made clear by the fact that the Court stated at [44] that the effect of the 2005 amendment was “to place the procedure under s.20 of the Overseas Students Act and s.116 of the Migration Act on a similar footing with respect to consideration of exceptional circumstances”.  The Court found that as this amendment came into effect on 8 October 2005 it could not assist the applicant whose visa was cancelled before that time. 

4. Moreover the cases cited for the applicant do not assist.  This is not a case in which a real doubt arises as to whether Parliament intended the literal meaning of the then applicable form of Migration Regulation 2.43 to prevail.  It is notable that, as McHugh J made clear in Mills v Meeking, it is ultimately a question of whether the operation of legislation on a literal reading does or does not conform to the legislative intent or purpose as ascertained from the statute as a whole.  His Honour referred to and relied on what was said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ, but as Spigelman CJ stated in R v Young (1999) 46 NSWLR 681 (a case also referred to in the applicant’s written submissions) at 689, Cooper Brookes is not authority for “reading words into a statute” as is proposed in this instance, but rather a case where words of general application were read down.  Moreover Spigelman CJ also went on in R v Young (at 690) to express the view that it is not appropriate “to take an expression of intention from extrinsic materials to supply the omission by a draftsperson, when the result cannot reasonably be deduced from the words actually used by a recognised technique of construction”.  (Also see Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 at 113 per McHugh J).

5. While such a result may be seen as unsatisfactory in that an applicant whose visa ceased to be in effect before the 2005 amendment to Regulation 2.43 came into effect did not have the opportunity to have exceptional circumstances taken into account, as would have been the case had he or she been the subject of an automatic cancellation, that unsatisfactory aspect of the former legislation does not establish error on the part of the Tribunal.  I note in that respect that while it may be open to an applicant to seek that the Minister substitute a more favourable decision for the Tribunal decision under s.351 of the Act, that is a matter for the Minister, not for the Court.  This ground of review is not made out. 

Whether condition 8202(3)(b) is ultra vires because it is so vague and ill-defined that the result of its exercise is uncertain

1. Ground six in the amended application is that condition 8202(3)(b) in Schedule 8 to the Migration Regulations is ultra vires because it is so vague and ill-defined that the result of its exercise is uncertain. 

   
   

   The particulars of this ground are that “It is not possible to determine what might be considered ‘satisfactory academic progress’ as it is not defined, nor are its parameters, nor are criteria set out to determine how it is satisfied”. 

2. It was contended that s.41 of the Migration Act provides the power under which visas may be made subject to “specified conditions” by the regulations and that the term “specified” made it clear that the conditions are to be in terms that are express and definite. It was clarified that the applicant did not submit that condition 8202(3)(b) was ultra vires merely because there may be doubts or ambiguities about its construction. Rather it was said to be in terms such that it was not possible to determine what might be considered satisfactory progress, as it was not defined nor were its parameters and nor were criteria set out to determine how it was satisfied. On this basis it was contended that while the power under which the condition was made required certainty of expression as a condition of its valid exercise, the purported condition was vague and ill-defined and therefore ultra vires the power enabling it to be made.  It was said that the meaning of condition 8202(3) was unascertainable to the extent that it failed to prescribe effectively rights and obligations and that it could not be construed to impose liabilities and thus could not impose a liability on the applicant on the basis that he failed to meet some “unascertainable” notion of satisfactory progress. 

3. It was also contended that the application of the condition was uncertain in its result as it involved discretionary elements and judgment and did not rely on an objective standard against which a determination of “at least satisfactory academic progress” could be made.  Hence the terms of the condition were said to be such that its application was arbitrary.  It was submitted that the result arrived at from its application would depend, among other things, on who applied it and when it was applied.  On this basis it was submitted that the condition was outside the power under which it purported to be made.  (See King Gee Clothing Co Pty Ltd & Ors v The Commonwealth & Anor (1945) 71 CLR 184 and Cann’s Pty Ltd v The Commonwealth & Anor (1945) 71 CLR 211).

4. Counsel for the respondent contended that condition 8202(3)(b) was a specified condition for the purposes of s.41 of the Act and was neither vague nor ill-defined. Rather it was said that the condition was easily understood and that its meaning was plain on its face. It was contended that the fact that there may be discretion vested in the education provider did not make the condition ultra vires and nor did the fact that what was satisfactory may vary from circumstance to circumstance, as that did not take condition 8202(3)(b) outside the power under which it was made. It was noted that condition 8202 had been considered by the Federal Court in numerous cases and that there was no suggestion in any of those cases that the discretion vested in the education provider led to the result that the condition was ultra vires.  Reference was made to Humayun per Wilcox J at [19] and Stone J at [36] and Gerhard vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495 in which Ryan J stated (at [13]):

   The Minister can only be satisfied with non-compliance with [condition 8202(3)(b)] if there is no acceptable evidence of certification by the education provider of at least satisfactory result.  It is not open to the Minister to question, or go behind, such certificate if one exists.

Reasoning

1. The validity of condition 8202 is challenged as ultra vires because the result of its exercise is uncertain.  The applicant relied on King Gee Clothing Co Pty Ltd v The Commonwealth and Cann’s Pty Ltd v The Commonwealth.  These cases were concerned with price regulation orders made under National Security (Prices) Regulations which purported to fix the maximum prices at which particular goods might be sold by manufacturers.  In each case particular orders (or parts thereof) were found not to be a valid exercise of the power conferred to fix and declare the maximum price at which goods may be sold, essentially because in each case the orders in question incorporated matters or methods involving elements of estimation, approximation or discretion. 

2. However in King Gee Dixon J at 194 rejected the view that delegated legislation had to satisfy an independent test of uncertainty to be valid, suggesting that regulations stood on the “same ground” as an Act of Parliament and were governed by the same rules of construction.

   
   

   In King Gee a proviso to the order in question set out a method of calculating price by reference to a number of factors of such a nature that different views could be adopted as to how they could be ascertained.  Hence no “standard” for determination of the prices was fixed by the order.  In these circumstances such a proviso was ultra vires, not for uncertainty but rather because it did not amount to a true exercise of the particular power to make regulations “fixing” maximum prices by reference to a “standard”.  It was in those circumstances that it was held that the standard “must not be such that any element therein can be ascertained only by the exercise of discretion”.  (See Cann’s at 217 per Latham CJ). In other words, as Dixon J put it in Cann’s at 228, what took the particular prices regulation order outside the power to make regulations fixing prices “is not uncertainty as to what it means, but the adoption by the order of a criterion or standard of price that is uncertain in the result that its application produces.  The method of finding the maximum price must not involve discretionary elements”. 

3. Insofar as the contention that condition 8202(3)(b) is vague and ill-defined raises a claim of a doubt about its construction that does not of itself affect its validity.  As conceded by counsel for the applicant, uncertainty as to meaning (what Dixon J referred to in Cann’s at 227 to as “doubts and misgivings as to what the instrument intends”) will not invalidate a regulation or provision such as condition 8202(3)(b) of Schedule 8 to the Migration Regulations, although it will be otherwise if there is uncertainty as to the conduct which is prohibited after the meaning of the regulation is ascertained, so that it can be said that the regulation is not a valid exercise of the regulation-making power (see Dixon J at 227 – 228 in Cann’s). 

4. Further, s.41 of the Migration Act does not import a requirement of certainty of expression in conditions in the manner contended for by the applicant.

5. Section 41(1) of the Migration Act is as follows:

   The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

6. Subsection (3) is as follows:

   In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.

7. The general regulation making power is to be found in s.504 of the Act.  It commences by providing that “The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act  …”

8. Neither party addressed Regulation 2.05 which clarifies what are the conditions to which a visa is subject or that may be imposed on a visa. It is apparent from a consideration of s.41 as a whole and Regulation 2.05 that “specified conditions” are those that are “set out in, or referred to in, the Part of Schedule 2 [to the Regulations] that relates to visas of the subclass in which the visa is included”.  In this context condition 8202 was “specified” by being referred to in Part 571 (the subclass of student visa that was held by the applicant) as one of the conditions that would apply “in all cases” to such a visa (see paragraph 571.611(1)(a)). The term “specified” in s.41(1) is clearly a reference to such specification – it does not import a requirement that the terms of conditions be certain in the sense of express and definite as a condition of the valid exercise of the power to make regulations identifying particular conditions to be imposed on visas.

9. Moreover it cannot be said that the meaning of condition 8202(3)(b) is unascertainable and hence that it fails to prescribe effectively rights or liabilities.  This is not a case in which “no particular act or thing can be brought within the scope of what is expressed unintelligibly” (Dixon CJ in Cann’s at 227).

10. In fact, the meaning of condition 8202(3)(b) is clear.  The basis for a finding of a failure to comply with condition 8202(3)(b) is not a lack of satisfaction on the part of the decision-maker (the delegate of the Department or the Tribunal) that the applicant has made satisfactory academic progress, but rather a lack of satisfaction on the part of the decision-maker that there has been “an academic result that is certified by the education provider to be at least satisfactory”.  Thus the presence or absence of certification is the essential issue. 

    
    

    No unintelligibility, or indeed discretion or judgment, is involved in the assessment of whether or not there is such a certification.  It is not for the decision-maker to determine whether the visa holder’s academic performance is satisfactory.  In this respect condition 8202(3)(b) is clear.  The fact that the education provider has a discretion as to whether or not to certify the academic result to be at least satisfactory and that there is no definition or criteria for what constitutes satisfactory academic progress does not in these circumstances lead to the result that condition 8202(3)(b) is ultra vires. This is not a case in which the regulation-making power (see s.504) imports a requirement that compliance with conditions be determined by reference to a “standard” akin to that considered in the cases relied on by the applicant.

11. It has not been established that condition 8202(3)(b) is so vague and ill-defined that the result of its exercise is uncertain is outside regulation-making power in the Migration Act. Ground 6 is not established.

Whether condition 8202(3)(b) is ultra vires in that it invests a third party with decision-making power when the enabling legislation does not provide for such delegation 

1. Ground seven in the amended application is that condition 8202(3)(b) in Schedule 8 to the Migration Regulations is ultra vires in that it invests a third party with decision-making power when the legislation does not provide for such delegation. It was contended that condition 8202(3)(b) purported to invest the education provider with the power to certify whether the applicant had achieved an academic result that was at least satisfactory. It was pointed out that Regulation 2.43 provided that the Minister must cancel a visa if the Minister was satisfied that the visa holder had not complied with condition 8202, but contended that condition 8202(3)(b) purported to provide that the visa holder only met the requirements of the condition if a third party (the education provider) certified that the visa holder had achieved an academic result that was at least satisfactory. This was said to be a question of fact and degree. Condition 8202(3)(b) was said to have the effect of removing a question of subjective fact and degree from the delegated decision-maker and also of immunising such question of subjective fact and degree from the merits review system created by the Migration Act and placing it in the hands of a non-Commonwealth third party.

2. It was contended that s.41 of the Migration Act did not provide for relevant jurisdiction to be so vested in third parties and that while s.504 provided for the Governor-General to make Regulations not inconsistent with the Act prescribing matters which by the Act are “required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act”, it could not be said that the delegation of decision-making purported to be effected by sub-clause 8202(3)(b) was required or permitted to be prescribed or was necessary or convenient for giving effect to the Migration Act. On this basis it was contended that sub-clause 8202(3)(b) of Schedule 8 to the Migration Regulations was ultra vires. 

3. Counsel for the first respondent submitted that this contention could not withstand scrutiny. First it was submitted that the education provider was not making a decision under the Act, but merely providing a certification or making an assessment about a matter. Secondly it was argued that s.41 of the Act contains no limitation of the kind suggested by the applicant and further that third parties were routinely involved, connected with and/or ultimately responsible for many immigration outcomes. It was suggested in this respect that the legislation had made provision for such involvement in s.505 of the Act (which provides that the Minister may obtain and have regard to certain opinions or decisions of a specified person or organisation for the purpose of deciding whether an applicant satisfies a criterion). It was initially contended that this provision was fatal to the applicant’s argument that condition 8202(3)(b) was ultra vires. However counsel for the first respondent contended that even if s.505 was not determinative (as it was conceded that there was distinction between a criterion and a condition) the ground was not established. The essence of the argument for the respondent was that it was not really the assessment of the provider that was the ultimate reason for the decision but the failure of the applicant to come up with a certificate as to satisfactory academic performance for the purposes of complying with condition 8202. Hence there had not been a delegation of decision-making such as to render paragraph 8202(3)(b) ultra vires. 

Reasoning

1. First, as counsel for the applicant contended, s.505 of the Act is not conclusive in determination of the particular issue raised by this ground, as it relates to the criteria for a visa (see s.65 of the Act which provides that if the Minister is satisfied that criteria for a visa have been met the Minister is to grant the visa and if the Minister is not so satisfied then the Minister shall not grant it).  There is a distinction between criteria for the grant of a visa and conditions that apply to a visa that has been granted that must be complied with or else the visa may be cancelled, although substantial compliance with a condition to which an earlier visa was subject may be a criterion for the grant of a subsequent visa (see for example subclause 571.237 of Part 571 in Schedule 2 to the Migration Regulations). 

2. Insofar as it is contended that there has been a delegation of decision-making power under the migration legislation to a non-Commonwealth third party which renders this provision ultra vires, this has not been established.  The education provider does not make the decision as to whether there has been compliance with a condition that applies to a visa.  Condition 8202(3)(b) provides that the holder meets the requirements of that provision if he or she achieves an academic result certified by the education provider to be at least satisfactory. 

3. A determination about compliance with a condition arises first in the context of an application for a further visa that is subject to a criterion that the applicant has complied substantially with conditions which apply to the visa held by such applicant. The Minister (through her delegate) makes the decision as to whether such criterion is met. Secondly, in relation to cancellation, the decision under s.116 of the Act is a decision by the Minister (through her delegate and on review by the Tribunal) that she is satisfied that the visa holder has not complied with a condition of the visa (s.116(1)(b)). The decision-making power in relation to whether the condition has been complied with is not invested in the education provider by condition 8202(3)(b).

4. The fact that in relation to condition 8202(3)(b) the “decision” is based on whether the Minister is satisfied that the student has achieved an academic result that is certified by the education provider to be at least satisfactory does not delegate decision-making under the Act in the manner contended for by counsel for the applicant.  As submitted for the first respondent the education provider does not make a decision under the Act or Regulations but rather provides a certification or assessment. 

5. I note in this respect that a number of the conditions in Schedule 8 to the Migration Regulations require a visa holder to have “permission” from a ‘third party’, that is someone other than the Minister, her delegate or the Tribunal (see for example conditions 8108, 8109, 8110), or involve the visa holder meeting an assessment carried out by another person or entity (see conditions 8203, 8204 and 8205). Conditions 8532 and 8538 require arrangements for the visa holder’s accommodation, support and general welfare to be “approved” by the education provider for the course to which the visa relates. In each case the ‘third party’ assessment may involve a question of fact and degree – but I am not persuaded that this means that there is a delegation of “decision-making” or “jurisdiction” under the Migration Act by condition 8202(3)(b) or such other conditions.

6. No authority was cited in support of the contentions made in relation to this ground. On the material before the Court I am not satisfied that condition 8202(3)(b) is not within the regulation making power in s.504 of the Migration Act in the context of the general provision in s.41 of the Act for visas to be made subject to conditions. Section 41 is expressed in a form that needs supplementation (see Carbines v Powell (1925) 36 CLR 88, Shanahan v Scott (1957) 96 CLR 245 and Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139). It has not been established that condition 8202(3)(b) is inconsistent with the Migration Act or that it goes beyond the scope of the Act. It is apparent from the generality of the Act in this respect that the legislature has left the details of conditions to which visas are to be subject to be spelt out in regulations. This is consistent with the provision in s.504 for regulations in relation to matters “required or permitted” or “necessary or convenient” to be prescribed for carrying out or giving effect to the Migration Act. (See Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 at 410). Ground seven is not made out.

Whether the Tribunal denied the applicant natural justice or failed to act in accordance with s.353 of the Migration Act

1. Finally, in a further amended application filed in Court the applicant contended that the Tribunal decision was vitiated by jurisdictional error in that the Tribunal denied the applicant natural justice and procedural fairness and in the alternative that the Tribunal failed to act in accordance with s.353 of the Migration Act 1958.

2. The particulars of this ground are that the Tribunal received an email from the education provider that confirmed that the provider had revised the assessment of the applicant’s attendance to 89 per cent; that the Tribunal failed to enquire of the education provider whether this revised assessment affected any assessment as to whether the applicant’s academic result in Term 2 was at least satisfactory; that the Tribunal failed to accord the applicant natural justice and procedural fairness (see cases referred to by McHugh J in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 321); and that the Tribunal failed in accordance with s.353 to pursue the objective of providing a mechanism of review that was fair, just, economical, informal and quick and failed to act in accordance with substantial justice and the merits of the case.

3. In oral submissions this ground was categorised as a “Prasad ground”.  This is a reference to the decision in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 in which Wilcox J held that there was, in certain circumstances, a requirement that the Tribunal make enquiries and that failure to do so constituted procedural unfairness or denial of natural justice. It was contended that such procedural unfairness or denial of natural justice constituted jurisdictional error (see Plaintiff S157 v Commonwealth (2003) 211 CLR 476).

4. It was also contended that there was a failure by the Tribunal to comply with s.353 of the Act in its failure to make a proper enquiry of the education provider in circumstances where it was said that it should have been clear to it that any assessment of unsatisfactory academic progress was based purely on lack of attendance or largely or substantially on lack of attendance. It was submitted that in failing to make such an enquiry the Tribunal failed to meet the objectives of being fair and just and also failed to act according to the substantial justice and merits of the case. On this basis it was contended that the Tribunal failed to do what it was vested with jurisdiction to do and hence that its decision was vitiated by jurisdictional error. No authority was cited in support of the proposition that a failure to comply with s.353 was a jurisdictional error.

5. Counsel for the respondent contended generally that the principles in relation to a duty to enquire were very limited and that the approach in Prasad was very much the “high-water mark” of any duty that might arise.  In any event it was submitted that in this instance there was no duty to enquire because the decision was made in relation to the absence of a positive certification.  Further the applicant had been requested or given an opportunity to provide a positive certification by the education provider but he did not do so.  It was contended that in such circumstances there was no duty on the Tribunal to make further enquiries.  In particular the Tribunal was not required to “get to the bottom of” the reasons why the applicant had failed to provide a positive certification and/or why the education provider held the view that academic progress had not been satisfactory for the term (consistent with what Wilcox J said in Humayun when he acknowledged at [19] that there is a discretion vested in the education provider.) It was contended that the Tribunal had no authority to go behind that discretion as it was ultimately a matter for the education provider.

Reasoning

1. No jurisdictional error is established on the basis contended for by counsel for the applicant.  First, whatever the effect of s.357A of the Act (a matter not canvassed in submissions), no denial of procedural fairness is apparent.  The Tribunal was under no obligation to enquire of the education provider about the negative certification or the absence of a positive certification (see Yu at [30] and WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277). This is not a case in which the applicant was led to expect that enquiries would be made by the Tribunal. On the contrary – he was expressly invited to provide a positive certification by the education provider. There is no suggestion that he asked the Tribunal to make enquiries or that the Tribunal undertook to do so or led the applicant to believe that it would do so. In these circumstances the fact that the school had advised that if the medical certificates were taken into account the attendance would be 89% (and that the primary decision-maker was on this basis satisfied that the applicant had met condition 8202(3)(a)) did not give rise to an obligation on the Tribunal to make further enquiries of the school about its certification in relation to academic performance.

1. It has not been established that there was any failure to comply with s.353. There was no failure by the Tribunal to do what it was vested with jurisdiction to do. (See Yu). 

2. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  2 November 2006