Ding v Minister for Immigration
[2012] FMCA 844
•14 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DING v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 844 |
| MIGRATION – Migration Review Tribunal – cancellation of Higher Education Visa – certification of unsatisfactory course progress – decision to cancel visa based upon certificate by education provider – status of certificate – whether visa holder accepted student for the purposes of the Education Services for Overseas Students Act2000 – whether visa holder had to be an accepted student for the purposes of the Education Services for Overseas Students Act2000 at the time of certification of unsatisfactory course progress. |
| Education Services for Overseas Students Act 2000, ss.5, 19, 19(1), 19(2), 20, Migration Act 1958, ss.116(3), 474 Migration Regulations 1994, cl.8202, 8202(3), 8202(3)(a) |
| Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Hassan v Minister for Immigration & Anor [2012] FMCA 155 Hope v Bathurst City Council (1980) 144 CLR 1 Karki v Minister for Immigration & Anor [2011] FMCA 369 Kim v Minister for Immigration & Anor [2011] FMCA 780 Liu v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 146 FCR 228 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 Mo v Minister for Immigration [2009] FMCA 1026 Patel v Minister for Immigration [2011] FMCA 112 Patel v Minister for Immigration and Citizenship [2012] FCA 958 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SHIJUN DING |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1021 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 14 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steele |
| Solicitors for the Applicant: | Sciacca’s Lawyers |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Amended Application filed on 2 March, 2012 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1021 of 2011
| SHIJUN DING |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Ding seeks that I quash a decision of a migration review tribunal that affirmed a decision of the first respondent’s delegate to cancel his student visa. He asks me to remit his application for review of the first respondents’ decision to a migration review tribunal to be dealt with according to law.
In this proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error. That is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The issue identified in this application by grounds of the application and the parties’ submissions is whether an education provider can certify a student visa holder as not making satisfactory academic performance for the purposes of clause 8202(3)(a) of the Migration Regulations 1994 after the education provider has excluded the student from further enrolment. The issue calls upon the Court to consider the importance and proper interpretation of the term accepted student that appears in s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act).
Background facts
This application arises against the following facts, none of which are controversial:
a)The applicant is a citizen of China.
b)On 6 November, 2008 he was granted a subclass 573 student visa. The visa was subject to criterion 8208 found in item 8202 to Schedule 8 to the Migration Regulations 1994.
c)The applicant was enrolled in a Diploma of Hotel Management at the Queensland Institute of Business and Technology Pty Ltd (QIBT).
d)Semester 2 of the applicant’s course for 2010 ended on 12 June, 2010.
e)On 1 July, 2010 the applicant was excluded by QIBT from further studies from Semester 2, 2010.
f)The applicant had been the subject of a number of approaches from QIBT to him about his academic performance and his attendance record. His exclusion from Semester 2 2010 was a culmination of those approaches.
g)On 13 July, 2010 the applicant submitted an appeal against the decision to exclude him.
h)His appeal was unsuccessful and on 29 July, 2010 the Appeals and Grievances Committee at QIBT agreed to uphold the decision to report and exclude Mr Ding on the basis of his poor academic performance.
i)On 10 August, 2010 a number of things occurred, namely:
i)QIBT issued a certification in the following terms;
“Certification for the purposes of sub clause 8202(3) of Schedule 8 of the Migration Regulations 1994
Queensland Institute of Business and Technology Pty Ltd [01737F] (trading as QIBT) on 10 August 2010 certifies Mr Shijun Ding, for course Diploma of Hotel Management, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students (National Code 2007).”
ii)QIBT wrote to Mr Ding enclosing a notice given to him purportedly pursuant to s.20 of the ESOS Act and enclosing a copy of the certification made by QIBT.
iii)QIBT sent a copy of the certification, purportedly pursuant to s.19 of the ESOS Act to the first respondent.
j)On 4 February, 2011 the first respondent’s delegate cancelled Mr Ding’s visa pursuant to s.116 of the Migration Act 1954 and he was given notification of that decision.
k)On 24 February, 2011 Mr Ding applied to a Migration Review Tribunal for review of the first respondent’s delegate’s decision.
l)On 2 August, 2011 information was sought from QIBT by the Tribunal about certain matters.
m)On 3 August, 2011 the applicant was invited to appear before the Tribunal on 21 September, 2011 which was subsequently postponed.
n)On 17 September, 2011 the Tribunal received written submissions from the applicant’s representatives in support of his case.
o)On 3 October, 2011 the Tribunal conducted a hearing.
p)On 24 October, 2011 the Tribunal made the decision under review in this matter, affirming the delegate’s decision of 4 February, 2011.
The Tribunal hearing
The Tribunal considered that there were two questions for consideration, namely whether Mr Ding failed to comply with condition 8202 and if so whether he had demonstrated that the non-compliance was due to exceptional circumstances beyond his control such that his visa ought not to have been cancelled.
Relevantly for this application, before the Tribunal the applicant submitted that there was no valid notification for the purposes of s.19 of the ESOS Act because at the time the certification was issued on 10 August, 2010 the applicant was not an accepted student of QIBT for the purposes of the ESOS Act.
However, the Tribunal found that the applicant had not complied with criteria 8202 and that by reason of s.116(3) of the Migration Act 1954 the Tribunal was required to affirm the delegate’s decision to cancel his visa.
The Tribunal found that the reason for Mr Ding’s non-compliance with cl.8202(3)(a) was that his education provider had certified him as not achieving satisfactory course progress for s.19 of the ESOS Act.
The Tribunal found that “the validity of the certification is not an issue that the Tribunal has power to consider.” The Tribunal, however, went on to consider the question of the validity of the certificate in the event that it was wrong. At paragraph 56 of the Tribunal’s reasons for decision it said:
“In the present case, the Tribunal considers that the applicant continued to be enrolled (and for that matter, an “accepted student”) in respect of the Diploma of Hotel Management at QIBT until 10 August 2010 when the appeal process in relation to the applicant’s enrolment in that course was finally determined by the education provider and the exclusion was processed and the certification was made. In any event, if the Tribunal is wrong. The Tribunal is satisfied that the certification issued by the provider on 10 August 2010, was in respect of the applicant’s progress in relation to the Diploma of Hotel Management in which the applicant was enrolled as a student.”
The Applicant’s contentions
Shorn of the particulars, the sole ground of review pursued by Mr Ding in his Amended Application filed on 2 March, 2012 is:
1. The second respondent applied the incorrect test in determining whether the applicant complied with criterion 8202 of his visa because:
(a) the second respondent wrongly determined that the education provider had for the purposes of criterion 8202(3) certified the applicant as not achieving satisfactory course progress for s.l9 of the Education Services for Overseas Students Act 2000; and
(b) the second respondent applied the wrong test in relation to the meaning of “accepted student” within the meaning of s.5 of the Education Services for Overseas Students Act 2000.
The applicant contended that the Tribunal’s decision was in error in two respects, namely:
a)In finding that there was no reason to consider the validity of the purported s.19 notice; and
b)Having in any event considered the s.19 notice, finding that it was valid.
The applicant’s Counsel was at pains to point out that the applicant did not contend that the Tribunal was required to “look behind” the certificate issued on 10 August, 2010 in the sense of determining whether the education provider had properly taken into account the matters that it was required to take into account. The applicant did not contend that it was the Tribunal’s role to undertake a merits review of the certification process. Plainly, such an approach is not open: Kim v Minister for Immigration & Anor [2011] FMCA 780, Hassan v Minister for Immigration & Anor [2012] FMCA 155 and Patel v Minister for Immigration and Citizenship [2012] FCA 958.
The applicant accepts, and contends, that the relevant question in such a case is to “determine that a certificate, on its face, is of a kind that engages condition 8202(3)”: Mo v Minister for Immigration [2009] FMCA 1026, Patel v Minister for Immigration [2011] FMCA 112, Kim (above) and Hassan (above).
The applicant contends that the certificate was not validly made on its face because an essential precondition for its issue did not exist. In particular, it is argued that because Mr Ding was not an accepted student at the time the s.19 notification was given to the Department, that notification was not a certificate which, on its face, was of a kind that engaged condition 8202(3). His argument proceeds thus:
a)A notice under s.19 can only be given in respect of an accepted student;
b)The person the subject of the notice must be an accepted student at the time when the breach of the student visa condition occurred: Liu v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 146 FCR 228;
c)Having regard to Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581, the time when a “breach” of condition 8202(3)(b) occurs is when the education provider certifies for the purposes of that condition;
d)The certification by QIBT occurred when Mr Ding was not an accepted student because he had been excluded from his course of study and his appeal against his exclusion rejected;
e)Therefore the giving of the notice pursuant to s.19 of the ESOS Act had no utility and was not properly seen as a notice pursuant to that section;
f)Therefore, the certificate relied upon by the first respondent’s delegate was not a certificate which, on its face, engaged condition 8202(3).
Consideration
Accepted student is defined in s. 5 of the ESOS Act as follows:
5 Definitions
In this Act, unless the contrary intention appears:
…
accepted student of a registered provider means a student (whether within or outside Australia):
(a) who is accepted for enrolment, or enrolled, in a course provided by the provider; and
(b) who is, or will be, required to hold a student visa to undertake or continue the course.
Section 19 of the ESOS Act is in the following terms:
19 Giving information about accepted students
(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed;
(e) any change in the identity or duration of an accepted student's course;
(f) any other prescribed matter relating to accepted students.
(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.
(5) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code
Mr Ding relies upon Liu v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 146 FCR 228 to support his proposition that a notice under s.19 of the ESOS Act can only be given in respect of an accepted student – that is to say a student who is accepted for enrolment, or enrolled, in a course.
In Liu, the applicant was excluded from his course of study by his education provider for poor academic performance. He appealed his exclusion but was unsuccessful in the appeal. About five months later, his education provider sent him a notice pursuant to s.20 of the ESOS Act and a notice pursuant to s.19 of that Act to the relevant Department.
Mr Liu argued that when the s.20 notice was given to him he was no longer an accepted student, and by the terms of s.20 of the ESOS Act, such a notice can only be given to, or in respect of, an accepted student.
Of that argument, the primary judge concluded:
26. The ESOS Act, in s 19 and s 20, does not require that the student remain an accepted student at all times after the obligation on QUT to give the requisite notice arose in order that any notice given by QUT is, for the purpose of s 19 and s 20 an effective notice. The object of s 19 and s 20 is to initiate processes to ensure that the future status of the student visa is addressed under the Migration Act, having regard to the breach of visa condition. Whether or not there remains a relationship of registered provider and accepted student for the purposes of the ESOS Act is entirely irrelevant to the matters which are put in progress by the giving of a notice under s 20 of the ESOS Act. Accordingly, the application fails on this ground.
The Full Court endorsed the primary judge’s reasoning (at [18]). The Full Court went on:
19 Whether a person is an ‘accepted student’ of the registered provider falls to be determined when the breach of the student visa condition occurs. In the present case, that was on 2 January 2002, when the appellant was excluded from his course because of his failure to make satisfactory progress. The appellant was, at the time of the breach, an ‘accepted student’ of QUT, and QUT came under an obligation to notify both the Secretary and the appellant of the breach. That obligation continued until it was discharged by performance. As the primary judge said (in the passage from his Honour’s judgment quoted above), the object of the ss 19 and 20 notices is to initiate processes to ensure that the future status of the student visa is addressed under the Migration Act, having regard to the breach of the visa condition. Whether or not there remains a relationship of registered provider and accepted student for the purposes of the ESOS Act is entirely irrelevant to the matters which are put in progress by the giving of a notice under s 20 of the ESOS Act. Accordingly, the appeal on this ground fails.
(my emphasis)
In Maan (above) the Full Court of the Federal Court of Australia said:
41 The ordinary meaning of Visa Condition 8202(3) is that the holder of a relevant visa will be in breach of the visa following certification by the educational institution as to a visa holder’s non-attendance, and provision of that certification to the Department by the institution. As has already been noted, Visa Condition 8202(3) clearly imposes responsibility on the educational institution to develop attendance policies in light of the requirements of s 19 of the ESOS Act and Standard 11 of the Code.
42 Section 19(2) of the ESOS Act requires the educational institution to provide the Department with particulars of any breach by a student of a prescribed condition of a student visa. …
...
44 It follows from an ordinary reading of Sch 8, cl 8202(3) of the Migration Regulations that the Tribunal was correct in finding that the VIT certification constituted non-compliance by the appellant with his visa conditions. In so finding, the Tribunal (and the Federal Magistrate) correctly applied Sch 8, cl 8202(3) of the Migration Regulations.
45 The fact that it is the certification by the educational institution as to breach of its attendance policies which constitutes the breach by the student of the visa clearly imposes substantial responsibilities on the educational institutions. These responsibilities are reinforced by the criminal liability imposed on individuals for providing false or misleading information in relation to visa holders pursuant to ss 19 and 20 of the ESOS Act: s 108 of the ESOS Act.
The approach taken in Maan appears inconsistent with the approach taken in Liu. In Liu the “breach” was determined to take place at the time the student visa holder was excluded from studies for poor academic performance. In Maan the “breach” was said to occur when the relevant certification was made, or perhaps when it was made and notified to the Secretary of the relevant Department. Liu was not referred to in Maan.
Maan appears to recognise that what is required for the purposes of condition 8202(3) is at least certification to the relevant effect by the education provider. Section 19 of the ESOS Act deals with the notification of certain matters, including a breach of a prescribed condition of a student visa by an accepted student. If it is certification alone which constitutes the non-compliance with condition 8202(3), then reading Lui and Maan together, the certification must be in respect of a person who is an accepted student at the time of the certification. If it is certification and notification pursuant to s.19 of the ESOS Act that together constitute the non-compliance, as Maan might suggest, then reading Lui and Maan together, the certification and notification must be in respect of a person who is an accepted student at the time of the notification, which must necessarily occur either at the same time as, or after, the relevant certification.
In Patel (above) the Full Court (constituted by a single Justice) said of the regime established by the Migration Regs, and ss.19 and 20 of the ESOS Act:
51 Properly interpreted, the regime thus created does not require the Minister (or his or her delegate) to form a view on whether the visa holder has complied with attendance or academic requirements. The Minister is required to cancel a student visa if he or she is satisfied that visa holder has not complied with visa condition 8202.
52 It is clearly for the education provider to form a view as to whether the visa holder has complied with attendance or academic requirements, and notify the Secretary of the Department of Education, Employment and Workplace Relations in relevant circumstances. The act of notification pursuant to Standards 10 and 11 of the National Code and s 19 of the ESOS Act to notify the Secretary constitutes a certification, which itself constitutes the breach of condition 8202 by the holder of the visa. As the Minister properly submits, this is because the visa holder is required by condition 8202(1) to meet the requirements of condition 8202(3), which requires (in summary) that a visa holder not be subject to a certificate of this type.
(bold markings original emphasis, underlining my emphasis)
Thus, according to Patel the certification for the purposes of condition 8202(3) and the notification for the purposes of s.19 of the ESOS Act might be constituted by the same act. But I do not read that passage as suggesting that will always be so. All that the above passage suggests is that the single act of notification might constitute “a” certification which could constitute a breach, not “the” certification. Indeed, it has been held that a notification for the purposes of s.19 of the ESOS Act is not necessarily the certification required by condition 8202(3). The certification and the notification can exist separately: Karki v Minister for Immigration & Anor [2011] FMCA 369 at [23], [25]; Kim v Minister for Immigration & Anor [2011] FMCA 780 at [32], [35]. Patel did not refer to Lui, Maan or Karki.
To the extent that Maan is inconsistent with Liu I am bound to follow Maan because, for no other reason, Maan was dealing with condition 8202(3) in the form which is relevant to the application before me. The form of condition 8202(3) in Lui was different to that which applies to Mr Ding’s visa.
Condition 8202(3) does not apply to visas held only by visa holders who are an accepted student. It applies to all holders of the relevant visa type. The obligations that arise under ss.19 and 20 of the ESOS Act arise only in respect of an accepted student, that is, someone who is accepted for enrolment, or enrolled, in a course provided by the relevant education provider and who is, or will be, required to hold a student visa to undertake or continue the course.
Certification (even for the purposes of s.19 of the ESOS Act and standard 10 of the National Code) is a separate and distinct concept to the notification that is required for the purposes of s.19 of the ESOS Act, although as Patel suggests, it may be constituted by the same act in an appropriate case.
Speaking of a certification in much the same form as that in this case (set out at CB1), Cameron FM pointed out in Karki (above) at [27]:
27. However, it is not necessary to make any findings on whether that document attempted to or did satisfy the requirements of s.19 of the ESOS Act because the continuation or cancellation of the applicant’s visa did not depend on advice given to the Secretary of DEEWR pursuant to s.19 of the ESOS Act, whatever it contained and however it was made. Rather, it depended on the operation of the relevant provisions of the Migration Act and the Migration Regulations and, in particular, visa condition 8202(3) and its legislative source, cl.8202(3) of sch.8 to the Migration Regulations. The fate of the applicant’s visa turned on the certification that he had failed to comply with the relevant visa condition and not on the detail of that non-compliance. This conclusion follows from an ordinary reading of cl.8202(3) of sch.8 to the Migration Regulations: Maan v Minister for Immigration & Citizenship (2009)
179 FCR 581 at 590 [44]. …28. The certification having been given, it was plainly open to the Tribunal to find, for the purposes of reg.2.43, that the applicant had not complied with condition 8202. …
So too in this case. The certification having been given, it was plainly open to the Tribunal to find, for the purposes of reg.2.43, that the applicant had not complied with condition 8202. There is nothing in cl.8202(3) that suggests that the certification must be given in respect of a visa holder at a time, or the time, when the holder was an accepted student.
The first respondent accepted that if the Full Court’s decision in Liu is applied to the current version of 8202, there is an argument that at the date of the breach of condition 8202, the visa holder must be an accepted student. For the reasons I have attempted to set out above, however, Liu now needs to be read in light of Maan. The breach which was focussed on in Liu was the student’s poor academic performance. Maan instructs that the breach of the relevant visa condition is the certification that might occur for the purposes of cl.8202(3)(b), which will necessarily occur after a conclusion has been formed about a student’s academic performance. The decision in Liu that the visa holder had to be an accepted student at the time of the breach (the exclusion for poor academic performance) needs to be seen in light of the focus of the Court on identifying the relevant breach.
Alternatively, the first respondent argues that the Tribunal made a finding that Mr Ding was an accepted student at the time of certification on 10 August, 2010. That finding, the first respondent argues, is a question of fact and even if wrong, should not be interfered with on this application. That finding, it is said, otherwise disposes of the application.
In response, Mr Ding argues that the Tribunal’s finding on that matter is in fact a question of law that this Court can inquire into and if necessary, correct.
The High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 set out with approval five general propositions approved by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 in relation to whether a question of construction was a question of law or of fact:
a)Whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law;
b)The ordinary meaning of a word or its non-legal technical meaning is a question of fact;
c)The meaning of a technical legal term is a question of law;
d)The effect or construction of a term whose meaning is established is a question of law;
e)The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.
In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact.
In Hope v Bathurst City Council (1980) 144 CLR 1 Mason J with whom the other members of the court agreed said, after citing authorities for the proposition that “whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law”:
“However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts found fall within these words. Brutus v Cozens [1973] AC 854 was just such a case. The only question raised was whether the appellant’s behaviour was ‘insulting’. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.”
I accept that the phrase accepted student is a technical legal term by dint of it being defined in s.5 of the ESOS Act. The question of whether the facts fully found fall within the definition of accepted student, properly construed, is a question of law.
The finding by the Tribunal that Mr Ding was an accepted student at the relevant time must be a finding of mixed fact and law – findings in relation to the relevant facts and then a finding as to law when it determined that Mr Ding was, having regard to those facts, an accepted student at the relevant time.
The Tribunal’s findings that led to the relevant conclusion were set out in paragraph 56 of the reasons for decision:
56. To the extent that the Tribunal may be permitted to consider the issue, and if the approach taken by the Department in Poonia were accepted, there is a further reason why it does not assist the applicant in this case. In the present case, the Tribunal considers that the applicant continued to be enrolled (and for that matter, an 'accepted student') in respect of the Diploma of Hotel Management at QIBT until 10 August 2010 when the appeal process in relation to the applicant's enrolment in that course was finally determined by the education provider and the exclusion was processed and the certification as made. In any event, if the Tribunal is wrong, the Tribunal is satisfied that the certification issued by the provider on 10 August 2010, was in respect of the applicant's progress in relation to the Diploma of Hotel Management in which the applicant was enrolled as a student. On that basis, the Tribunal finds that the certificate related to a course undertaken by him and, as such, was properly made (see the obiter remarks of Driver FM in Kumar at [43]).
(my emphasis)
The finding that Mr Ding continued to be enrolled in respect of the Diploma of Hotel Management until 10 August, 2010 was a finding of fact. For the purposes of determining if Mr Ding was an accepted student that was a critical finding of fact, having regard to the statutory definition of accepted student.
Mr Ding’s written submissions in reply and the oral submissions made on his behalf were directed toward demonstrating that the Tribunal’s finding about Mr Ding’s enrolment was erroneous, but to demonstrate that is not to the point. The Tribunal’s finding that Mr Ding continued to be enrolled in respect of the Diploma of Hotel Management until 10 August, 2010 was purely a question of fact and once the Tribunal made that finding a conclusion that he was an accepted student at the relevant time was inevitable. It was not submitted that there was no evidence upon which the Tribunal could conclude that Mr Ding continued to be enrolled. Rather, Mr Ding submitted that having regard to the evidence before it, the Tribunal should not have made that finding. As the submissions for the first respondent demonstrated there was some evidence upon which the Tribunal could have reached that finding.
Nonetheless, even if I was persuaded that the Tribunal’s finding as to Mr Ding’s enrolment was erroneous, or perhaps even perverse, it would have no bearing upon the outcome of this application. Findings of fact are for the Tribunal alone.
Conclusion
For the reasons given above, I conclude that:
a)The Tribunal did not apply an incorrect test in determining whether Mr Ding complied with criterion 8202 of his visa;
b)The Tribunal did not wrongly determine that Mr Ding’s education provider had for the purposes of criterion 8202(3) certified him as not achieving satisfactory course progress for s.l9 of the Education Services for Overseas Students Act 2000; and
c)The Tribunal did not apply the wrong test in relation to the meaning of accepted student within the meaning of s.5 of the Education Services for Overseas Students Act 2000.
The amended application must be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 14 September 2012
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