FANG v Minister for Immigration - [2004] FMCA 280

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FANG v MINISTER FOR IMMIGRATION

[2004] FMCA 280

MIGRATION – Review of Migration Review Tribunal decision – Student (Temporary) visa.

Migration Act 1958, s.116(1)(b), 119

Judiciary Act 1903, s.39B

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

Craig v State of South Australia (1995) 184 CLR 163
Abebe v Commonwealth (1999) 197 CLR 510
Shrestha v Minister for Immigration and Multicultural Affairs (2002) 64 ALD 669

Minister for Immigration and Multicultural Affairs v Shrestha No N455 of 2001

Minister for Immigration and Multicultural Affairs v Nguyen (2002) FCA 460

Patsanza v Minister for Immigration and Multicultural Affairs (2001) FCA 734 Akter v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1504
Peng v Minister for Immigration and Multicultural Affairs (2000) FCA 1672
Ariyagama v Minister for Immigration and Multicultural Affairs (2001) FCA 1407
Minister for Immigration and Multicultural Affairs v Hou (2002) FCA 574
Iftikhar v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1123
Zhao v Minister for Immigration and Multicultural Affairs (2000) FCA 1235
Attorney-General (Hong Kong) v Ng Yuen Shiu (1983) 2 AC 629
Waltons Store (Interstate) Ltd v Maher (1988) 164 CLR 387
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Re Hospital Benefit Fund of WA Inc v Department of Health, Housing and Community Services (No 1) (1992) ALD 29-30
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Wyong Shire Council v Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114

Rubrico v Minister for Immigration and Ethnic Affairs (1989) 23 FCR 208
Roberts v Repatriation Commission (1992) 39 FCR 420
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98
Formosa v Secretary Department of Social Security (1988) 46 FCR 117

Applicant:

BIN FANG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ26 of 2003

Delivered on:

6 May 2004

Delivered at:

Perth

Hearing date:

25 June 2003

Date of Last Submission:

2 July 2003

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr A.O. Karstaedt

Solicitors for the Applicant:

Summers Partners Lawyers

Solicitor for the Respondent:

Mr J.D. Allanson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application as amended filed 18 June 2003 be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ26 of 2003

BIN FANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision by the Migration Review Tribunal (MRT) on 11 October 2002. In its decision the MRT had affirmed a decision then under review that the Student (Temporary) (class TU) visa held by the review applicant be cancelled. The student visa had been cancelled pursuant to s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant was granted leave to rely upon a minute of further amended grounds of application filed on 18 June 2003.
By way of background it is noted that the applicant had applied for a Student (Temporary) visa by an application dated 11 June 2001. The applicant was granted a sub class 560 (Student) visa on 10 August 2001. That visa was granted to the applicant upon conditions including condition 8202 which provides as follows:
“8202
(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student of the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(3)    A holder meets the requirements of this subclause if:
(a)     the holder is enrolled in a registered course; or
(b)     in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student – the holder is enrolled in a full time course of study or training.
(4)    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.
(5)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.”
It is common ground that the applicant attended ‘Notre Dame International’ at the University of Notre Dame (Notre Dame). On 12 December 2001 the applicant was notified by letter from Notre Dame that his enrolment would be terminated. The letter provides the following:
“At the recent Board of Examiners meeting your results were reviewed. The end of the semester results are comprised of your in class work, assignments and exams. Your enrolment has been placed on a conditional basis for poor attendance and academic performance.
It was decided by the Board that based on the reasons outlined above, that your enrolment in the Notre Dame International Foundation Program be terminated. Please be advised that we are required to inform the Department of Immigration that you are no longer studying with Notre Dame International.”
Attached to the termination letter were copies of the applicant's results. For the enrolment period July-December 2001 a statement of results dated 14 December 2001 demonstrates that of the six subjects studied by the applicant he had failed two. An attached interim report for the end of week 10 dated 29 September 2001 shows that of the five subjects being studied by the applicant he had failed one. A further interim report for the end of week 20, dated 14 December 2001, shows that of the five subjects studied the applicant had failed all five.
The applicant was given notice of intention to consider cancelling his visa on 22 January 2002. That notice specified that the visa may be cancelled under s.116(1)(b) of the Act which provides as follows:
“Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)…
(b)its holder has not complied with a condition of the visa;
…”
The delegate cancelled the applicant's visa on 22 January 2002 purportedly pursuant to s.116(3) of the Act and Regulation 2.43(2)(b) of the Migration Regulations ("the Regulations"). On the same day of the cancellation the applicant applied to the MRT to review the decision of the delegate. In a notice dated 3 July 2002 the MRT invited comment pursuant to s.359A of the Act on the information in the notice. Specifically the letter provides the following:
“You are invited to comment, in writing, on the following information:
· Condition 8202 attached to your subclass 560 (Student) visa required you to maintain satisfactory academic results. As you failed four out of six subjects at the University of Notre Dame in 2001, you have not met your course requirements and are therefore in breach of condition 8202. You are invited to submit any reasons why you did not comply with condition 8202.”
It is conceded by the respondent that the notice contained an error in that it refers to a failure of the applicant in four out of six subjects when in fact it is conceded that the notice should have referred to two out of six subjects. It is noted that the applicant relied upon a statutory declaration dated 30 August 2002 where the error in relation to the number of subjects allegedly failed has been corrected.
Apart from correcting that record the applicant, in his detailed statutory declaration, otherwise refers to what has been submitted on his behalf as an essential difficulty in the present case, namely that he had an objective to enrol in a computer course and indeed managed to successfully enrol in that course at Curtin International College after receiving an offer from that College on 28 November 2001. It is convenient to set out extracts from the applicant's statutory declaration which provides some insight into the applicant's grievance and concerns relating to the cancellation of his visa. In his statutory declaration the applicant states the following:
“10..In mid November 2001 we were required to select courses for university studies for the next year at Notre Dame. The staff of Notre Dame only then confirmed with me that they were unable to offer me a place in Computer Science at Notre Dame in 2002. I was quite upset as when I made my initial enquiries with Notre Dame at the beginning of 2001 requesting the possibility of computer science study they did not give me any clear answer. They only told me that they would check it out for me to see whether that course would be offered to me in the future. I stayed on in the foundation course with the hope that I would be able to study computer science with Notre Dame from 2002.
11.After I learned that I could not study computer science at Notre Dame I approached a few other universities and colleges and I found that Curtin International College was able to offer me a course in Bachelor of Computer Science. I was given a letter of offer of Diploma of Information Technology leading to Bachelor of Computer Science from Curtin International College on 28 November 2001 ... after my contacting them the day before.
12.Before I went to contact any of the other universities I went to DIMIA to check whether I could apply for any other schools as a PQI Student visa holder. After I received Curtin University's offer I went to DIMIA again on 28 November 2001 and saw a lady called 'Nilar' who assured me that I did not need to change my visa or to make a fresh application to enable me to study at Curtin International College. I was told that I could change to Curtin International without notifying Notre Dame. If Notre Dame later were to send me a letter with the intention of cancelling my visa all I had to do was to go to DIMIA and explain what was happening that that would be OK.. Nilar did not tell me that I needed to continue my last two weeks of study for the Certificate IV at Notre Dame. I thought that everything was completed with my transfer, therefore I just stayed at home and studied from home and the library to prepare for my course with Curtin International College since 29 November 2002.
....
15.Even though I did not attend my final exams for the Certificate IV course I still managed to pass four out of six of my subjects ..... If I had attended the final exams I should have passed the two subjects that I had failed.
16.I really regret my stupid mistake of missing my last two weeks of study at Notre Dame. I have been a very good student in China before I came to Australia. My attendance at Notre Dame prior to 27 November 2001 was well above 90% and for the last 10 weeks it was about 99% (between 30.09.01 to 26.11.01). I missed one week of classes and one week of final exams. I did not miss my last two week's study at Notre Dame deliberately. I was under the wrong impression that there was no need for me to continue my studies at Notre Dame as I had a letter from Curtin University (I thought I had been accepted by Curtin International College) because in China when I was admitted by Yantai University all I needed to do was get their letter of offer and this is sufficient for me to be enrolled in that university. If I began my studies with Curtin International College straight away on 28 November 2002 I would not have had my visa cancelled.
17. I felt very surprised when my visa was cancelled by DIMIA officer after I went to DIMIA to explain as Nilar told me to do so in relation to the termination from Notre Dame that I had transferred my study to Curtin International College. It was only then I realised that I should attend the last two weeks classes in Notre Dame because the course at Curtin International College had yet to begin. I have always been a good student. If I understood that it was very important for me to finish my last two weeks study at Notre Dame and attend all the final exams I would have done so. I believe DIMIA owed me a duty to warn me that I must continue with my classes at Notre Dame if I was not starting my studies with Curtin International College straight away.”
In its reasons for decision the MRT sets out the grounds for the cancellation and relevantly recites the statutory provision and makes reference to regulation 2.43(2)(b) of the Regulations which prescribe circumstance in which the Minister must cancel the visa. That regulation provides as follows:-
“(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.”
The MRT noted that the regulation includes a reference to non compliance with condition 8202 to which I have already referred. The Tribunal then stated that its task was as follows:-
“32.The Tribunal is required to consider if the review applicant has satisfied condition 8202 of his visa by meeting the following requirements:
·the applicant be enrolled in a registered course;
·that the applicant attain an attendance record of at least 80% for the course or the term or semester of the course if the course is structured in such a way; and
·that the applicant achieves an academic result that is certified by the education provider as being at least satisfactory.”
The MRT then had to consider the period of time over which the attendance of academic performance was to be measured and noted that condition 8202 distinguishes between courses that "run for less than a semester" and a course that "runs for at least a semester". The MRT accepted the applicant's evidence that his course ran for the whole year which for the purpose of condition 8202 is "for at least a semester". The duration of the course was relevant in determining that that the MRT looks at the end of year results or the term results.
The MRT then referred to the "Migration's hearing instruction: MSI 316 'Visa Cancellation' under sections 109, 116, 128 and 140" which provides as follows:-
“7.11.12 The new condition 8202 is similar to the condition 8202 that was amended on 1 November 2000. The effect of that amendment was to remove the ambiguity surrounding the requirement that the visa holder attend at least 80% of classes and tutorials. The amended condition made it clear that this requirement applies during each term and semester of the course and not simply at the end of the course. Non-payment of fees was also removed as a ground for cancellation. The new condition 8202, however, differs from the former version in the following respects:
.........
·it provides that for a course that runs for at least a semester (ie for at least half the standard academic year), a satisfactory academic result must be achieved for each term or semester whichever is the shorter. This means that where a particular course is divided into both terms and semesters it is the shorter administrative period which dictates when certification of academic performance should occur.”
After reciting the requirements of condition 8202 and the MSI-316 the MRT then stated that its task was to "determine firstly if the review applicant achieved 'an academic result that is certified by the education provider to be at least satisfactory' ...... for each term or semester."
After noting the submission by the review applicant that he had met academic requirements at Notre Dame and his overall academic results were at least satisfactory and that these were looked at on a semester basis rather than relying on the interim reports the MRT noted further that the interim reports were provided for the student's information and reflected progress to date. It further noted the suggestion that the offer of a place by Curtin to the applicant indicated the Review’s Applicant’s strong academic ability. The MRT then stated:
“37.However the wording of subparagraph 8202(3)(b)(ii) makes it clear that in this application the Tribunal is required to look at the review applicant's term results, rather than the semester results, as the term is the shorter administrative period. This interpretation of condition 8202 is also supported by the policy set out in MSI-316 above.”
The MRT goes on to state the following:-
“38.In relation to the review applicant's academic results for the term, the Tribunal notes that his Interim Report for the end of week 20 showed that he failed all 5 units. However, due to the review applicant's previous good results he was still able to pass 4 of the 6 units between July and December 2001 without sitting the final exams.”
It should be noted that there is no dispute in the present case that the applicant is a conscientious and intelligent student. Indeed much is confirmed by the MRT in its own finding where it states:
“40.Although it is obvious that the review applicant is an intelligent and capable student the Tribunal is required to apply the relevant legislation. In this case this means deciding whether or not the review applicant achieved an academic result that was satisfied by NDI as being at least satisfactory in the term ending week 20, 2001. In the view of the Tribunal condition 8202 set out above, does not import any discretion to consider the reasons for poor academic performance or any circumstances beyond the review applicant's control.”
Ultimately the MRT then concludes that a failure to meet one of the three requirements of condition 8202 is sufficient to be in breach of a whole condition and accordingly the MRT did not then consider the remaining two requirements of condition 8202. Having established non compliance with condition 8202 the MRT then concluded it is bound by the operation of s.116(3) of the Act to affirm the visa cancellation.
The applicant relied upon an amended outline of submissions filed 16 May 2003 and counsel otherwise relied upon oral submissions.
It is noted that in the amended application whilst adding a new paragraph "7B" counsel for the applicant did not pursue in that document grounds 5 and 7. It should also be noted that an additional sentence was sought to be added to the particulars subjoined to Ground 7B. That sentence is now the last sentence in the particulars which I include in this judgment. It is relevant to set out those grounds now relied upon as follows:
“1.The Migration Review Tribunal (‘the Tribunal’) committed reviewable error by incorrectly interpreting s.116(3) of the Migration Act 1958 (‘the Act’) read with paragraph 2.43(2)(b) of the Migration Regulations and Condition 8202 to permit or require cancellation of a visa in respect of alleged non-compliance with Condition 8202(3) in relation to:
(a)a course for which the visa holder is no longer enrolled at the time the Minister and/or the Tribunal is considering cancellation of the visa;
(b)alternatively, a course for which the visa holder was no longer enrolled at the time the assessment or certification by the education provider in relation to the attendance and performance requirements of subclause (3)(a) and (b) occurred or were to have occurred.
(c)Further alternatively, a semester or term of a course which is not current at the time the Minister and/or the Tribunal is considering cancellation of the visa.
2.Further or in the alternative, the Tribunal erred in considering that grounds existed for the cancellation of the Applicant’s visa, having regard to:
(a)The provisions of paragraph 41.3 of the Procedures Advice Manual 3 (’PAM3’) produced by the Department of Immigration and Multicultural and Indigenous Affairs;
(b)The fact that the Applicant had withdrawn from his original course at Notre Dame and had lawfully transferred to another course at Curtin International College (‘Curtin’) as at 29 November 2001 or thereabouts;
(c)The fact that as at the date the Applicant transferred to the course at Curtin he was up to date with his studies and his attendance was satisfactory at the time of withdrawal from Notre Dame.
2B.Further or in the alternative, the Tribunal committed reviewable jurisdictional error in that:
(a)Whether as at 29 November 2001 or thereabouts the Applicant had withdrawn from the course at Notre Dame International and/or had transferred to or been accepted into a course at Curtin were material questions of fact;
(b)In terms of s 368 of the Act the Tribunal was required to set out its findings on any material questions of fact;
(c)The Tribunal’s written statement did not set out any findings on the material questions of fact referred to in (a);
(d)It is to be inferred that the matters referred to in (a) were not considered by the Tribunal to be material;
(e)The Tribunal thereby committed reviewable jurisdictional error or a reviewable failure to exercise jurisdiction.
2C.Further or in the alternative, the Tribunal committed reviewable jurisdictional error by ignoring or not taking into account relevant material, namely that pertaining to the issue of the Applicant as at 29 November 2001 or thereabouts withdrawing from the course at Notre Dame International and/or transferring to or being accepted into a course at Curtin.
3.Further or in the alternative, the Tribunal committed reviewable error:
(a)in considering that it did not have a discretion to set aside a visa cancellation where there was a substantiated breach of a visa condition, and in interpreting the law as requiring mandatory cancellation of the Applicant’s visa;
(b)in not considering that it had a discretion to set aside the cancellation of the Applicant’s visa even if there was a breach of a visa condition;
(c)in not considering that in all the circumstances the cancellation of the Applicant’s visa should be set aside.
4.Further or in the alternative, the Tribunal committed reviewable error in not setting aside the Respondent’s decision to cancel the Applicant’s visa in circumstances where the Respondent failed, contrary to s 119 of the Act, to give the Applicant particulars, alternatively, proper particulars of the grounds for cancelling his visa.
Particulars
The particulars of the possible grounds for cancellation provided to the Applicant related to the Applicant’s performance in relation to the course, alternatively, the semester, whereas they should have related to the term, having regard to the provisions of Condition 8202(3).
5.…
6.Further or in the alternative, the Tribunal committed reviewable error in not setting aside the Respondent’s decision to cancel the Applicant’s visa where the Respondent’s decision was based on grounds other than those in respect of which the Applicant was given notice under s 119 of the Act.
7.…
7B.Further or in the alternative, the Tribunal committed reviewable error in that, contrary to s 359A of the Act, the Tribunal did not give to the Applicant particulars of information that would be the reason or part of the reason for affirming the decision under review.
Particulars
The information provided to the Applicant (appearing at CB 49 related to the course at Notre Dame as a whole, whereas the reasons for affirming the decision under review would need to relate to the term, having regard to the provisions of Condition 8202(3). Further the information provided incorrectly stated that the Applicant had failed four out of six subjects at the University of Notre Dame in 2001.
8.Further or in the alternative, the Tribunal’s decision to affirm the Respondent’s decision to cancel the Applicant’s visa, and the Respondent’s decision to cancel the Applicant’s visa, falls to be set aside on the basis that:
(a)The Respondent and/or the Tribunal ought to be estopped from asserting an entitlement or obligation to cancel the Applicant’s visa, or from asserting that there is a requirement that the Applicant’s visa be cancelled, having regard to all the circumstances, and in particular the advice given by the officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) to the Applicant in November 2001 and the representations by words and/or conduct made by the said officer to the Applicant to the effect that the Applicant was not required to continue with the last two weeks of the course at the University of Notre Dame; and/or
(b)The cancellation of the Applicant’s visa is contrary to the legitimate expectations of the Applicant which arose by reason of the advice and representations of the officer of DIMIA referred to in (a) above; and/or
(c)The cancellation of the Applicant’s visa is contrary to the principle of substantive fairness having regard to all the circumstances, and in particular the matters referred to in (a) above.
9.Further or in the alternative, the issue of the cancellation of the Applicant’s visa falls to be reconsidered by the Tribunal in light of the matters referred to in Ground 8 above.
10.Further or in the alternative, the Tribunal committed reviewable error in considering that prescribed circumstances existed in which it was mandatory for the Applicant’s visa to be cancelled, in that each of the circumstances referred to in Regulation 2.43(2)(a) and (b) are required to exist before the Minister must cancel a visa.”

Grounds 1 and 2

It is submitted by the applicant that before the minister may cancel a visa pursuant to s.116 of the Act he has to be satisfied the visa holder has not complied with a condition of the visa. It is further submitted that pursuant to s.116(3) read together with regulation 2.43 before the minister must cancel a visa he must be satisfied that the visa holder has not complied with condition 8202.
According to the applicant's submissions, in determining whether there has been compliance with condition 8202 it is necessary to examine the wording of that condition. Subclause 8202(1) states that the holder must meet the requirements of subclause (2) and (3). Subclause (2) provides that a holder meets the requirements of that subclause if "the holder is enrolled in a registered course". It was submitted that this is expressed to be in the present tense and that it is not a requirement that the holder has at all times previously been enrolled in a registered clause.
Subclause 3(a) provides that a holder meets the requirements of the subclause if , “the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled ... for a course that runs for at least a semester - for each term and semester of the course.”
It was submitted that the course referred to in this subclause is the course for which "the holder is enrolled" for the purpose of subclause (2). It was submitted that in respect of that course that is the course for which the holder is currently enrolled the minister's satisfaction referred to in subclause (3)(a) relates. In relation to that course the minister in terms of subclause (3)(a) has to be currently satisfied the holder "attends". According to the applicant's submissions, it is not stated to be required in the compliance that the minister is satisfied that the holder has at all times in the past "attended". "Attendance" being in the present tense refers to current attendance, in respect of the course for which the holder "is enrolled and the Minister is considering the question of possible cancellation".
Subclause (3)(b) provides that the holder meets the requirements of a subclause if “the holder achieves an academic result that is certified by the education provider to be at least satisfactory ... for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course.”
Again it is submitted that the "course" is a reference back to the course in which the holder "is enrolled for the purposes of subclause (2)". It is required that the holder "achieves an academic result". The requirement is not that the holder has at all times in the past, in respect of a course for which he is not currently registered, achieved such an academic result.
By reason of the matters raised it was submitted that a student cannot be said to have not complied with condition 8202(3) unless there has been a failure to comply with the condition in the respects referred to in relation to the course for which the student is currently enrolled at the time the minister is considering cancellation of the visa.
Section 116(3) of the Act, when read with paragraph 2.43(2)(b) of the Migration Regulations and condition 8202, does not permit or require cancellation of a visa in respect of any unsatisfactory attendance or performance in a course for which the visa holder is no longer enrolled for the cancellation of the visa.
It is further submitted on behalf of the applicant that s.116(3) of the Act read with paragraph 2.43(2)(b) of the regulations and condition 8202 does not permit or require cancellation of a visa in respect of alleged unsatisfactory attendance or performance in relation to a semester or term of a course which is not current at the time cancellation of a visa is being considered.
The interpretation of the relevant provisions advanced for and on behalf of the applicant is claimed to be supported by the following considerations set out in the applicant's written submissions filed 16 May 2003 as follows:
“(a)Firstly, it accords with the plain and ordinary meaning of the relevant legislative provisions.
(b)Because the operation of 116 adversely affects the existing rights of visa holders and because of the potentially far‑reaching effects of the relevant provisions, the provisions fall to be restrictively interpreted in the case of any ambiguity
(c)This interpretation avoids the absurd and draconian consequences of a contrary interpretation which allows cancellation of a visa for unsatisfactory attendance or performance in a previous course for which the visa holder is no longer enrolled at the time of consideration of cancellation of his visa, or in respect of a term or semester which is not current at the time of such consideration. Example: A visa holder does not perform satisfactorily in term 2 of a course that runs for a semester. However, he thereafter passes the course with distinction. He then enrols for another course in which he also performs satisfactorily. If one adopts an interpretation contrary to the one contended for, the Minister could cancel the visa because of the unsatisfactory performance in one term, and could do so even after the student has finished and passed the course. Further, if the provisions are interpreted as requiring mandatory cancellation in such a situation. The consequences of such interpretation may be regarded as even more unjust and extreme. An intention to give rise to such consequences should not be lightly attributed to the legislature.”
It was submitted in the alternative that the relevant legislation does not permit or require the Minister to cancel the applicant's visa in relation to a course, namely the course at Notre Dame, for which the applicant was no longer enrolled or for which he had withdrawn at the time of the assessment or certification by Notre Dame in relation to the attendance and performance requirements of subclause (3)(a) and (b) of condition 8202 occurred or were to have occurred. In this regard the applicant transferred to Curtin International College on or about 28 November 2001 when he was accepted into the course at Curtin.
It was submitted in the present case the Minister gave notice to the applicant on 22 January 2002 of an intention to consider cancelling his visa (court book page 32). At that time the applicant was no longer enrolled in Notre Dame and had been accepted into a course at Curtin International College. In these circumstances on a proper interpretation of the relevant legislative provisions it was submitted that it was not open to the minister to cancel the applicant's visa on the basis of any alleged unsatisfactory attendance or performance at Notre Dame and that the MRT was in error in affirming the cancellation on grounds related to the applicant's performance in the course at Notre Dame.
In relation to ground 2, the applicant submitted that he had withdrawn from the course at Notre Dame on or about 28 November 2001. He withdrew from the course at the time. He was accepted into the course at Curtin alternatively when he advised Notre Dame that he was transferring to Curtin and would not be completing the course at Notre Dame. The applicant submitted that at that stage he was up to date with his studies at Notre Dame and his attendance was satisfactory. It was submitted that the Procedures Advice Manual 3 (PAM 3) produced by the Department of Immigration and Multicultural and Indigenous Affairs provides in these circumstances the applicant may be regarded as having continued to satisfy course requirements. In any event, it was noted by the applicant that the minister did not purport to cancel the applicant's visa for any alleged non compliance with course requirements at Curtin.
In support of ground 1, and later also in support of ground 2, it was further submitted by the applicant that in terms of s.368 of the Act the MRT was required to set out its findings on any material question of fact. Whether as at the end of November 2001 the applicant had withdrawn from the course at Notre Dame and had transferred to or been accepted into a course at Curtin were material questions of fact, according to the applicant's submissions. The MRT did not make findings on these matters. Reliance was placed on the Minister for Immigration and Multicultural Affairs v Yusuf (Yusuf) (2001) 180 ALR 1 at paragraphs [35] [37] [38] and [69]. This constitutes reviewable jurisdictional error or a failure to exercise jurisdiction. Further reference was made to Craig v State of South Australia (Craig) (1995) 184 CLR 163 at 177-179. It may also be regarded as giving rise to procedural unfairness and therefore jurisdictional error.
The respondent submitted that the interpretation contended for by the applicant is not based on a text of the Act. Section 116(1)(b) provides that the Minister may cancel a visa if he is satisfied that “its holder has not complied with a condition of the visa.”
The reference by the applicant to the terms of condition 8202 being expressed in the present tense so the condition speaks of a course in which the student is then enrolled, according to the respondent's submissions, is a "strained interpretation of the condition". In any event, it is submitted it asks the wrong question. The governing provision is s.116(1)(b) under which the relevant question is whether the visa holder "has not complied" with a condition of the visa. The section does not require that the visa holder then be in a continuing breach.
It was further submitted by the respondent that to confine the operation of s.116 and condition 8202 in the manner suggested by the applicant to a continuing breach in a course in which a student is currently enrolled at the time of Act under s.116 would be to deny it any operation where the student has failed to achieve a satisfactory academic result for a course. This would deny paragraphs (a)(i) and (b)(i) of their intended operation or any operation, according to the respondent's submissions.
Whilst it was submitted that it is not necessary for the court to make specific findings, it was noted that the applicant's factual claims to have been enrolled in Curtin at any relevant time are not supported by the evidence which was put forward to the MRT. There was no evidence before the MRT that the applicant had withdrawn from his course at Notre Dame. The affidavit evidence of Scott Jones sworn 23 April 2003 - the applicant was required to sign the form and pay tuition fees before his enrolment was complete and this was not done.
The respondent submitted that in relation to the applicant's claims in support of ground 2 that prior to his withdrawal from the course at Notre Dame he was "up to date with his studies" and his attendance was satisfactory are not relevant to the present application. It was submitted that condition 8202 requires the minister to be satisfied about attendance, but even there imposes the objective measure of 80% of contact hours based on the provided attendance records. In relation to enrolment and satisfactory progress the condition is entirely objective - the visa holder must be enrolled in a registered course and his academic result must be certified by the education provider to be at least satisfactory.
There is no question, according to the respondent's submission or judgment by the respondent, whether the applicant has at any time satisfied course requirements - the criterion is the certification by the education provider. The applicant's academic result was not certified to be satisfactory and this enrolment was terminated. The MRT, therefore, correctly upheld the decision on this basis (see court book page 228, paragraphs 41 and 42) where the MRT states:
“41In this application, NDI has not provided any certification indicating the review applicant's results are satisfactory for the term ending week 20, 2001. In fact NDI has provided the review applicant with a letter of termination of his enrolment.
42The Tribunal has considered the totality of the review applicant's circumstances and finds that the review applicant has not complied with visa condition 8202 by not completing any of his subjects in the term ending on week 20, 2001, and thereby he did not achieve a result that could be certified by NDI to be at least satisfactory for that term. As a result, section 116(1)(b) of the Act applies and the visa may be cancelled.”
The respondent relied on the reference to the applicant transferring from Notre Dame to Curtin and submitted that is not a material fact before the MRT. The only question before the MRT was whether the applicant had not complied with a condition of his visa. It was submitted that the "withdrawal" from the course at Notre Dame and the letter from Curtin that the applicant would be accepted there for enrolment were not material to that question. A matter does not become material simply because it is asserted.
The respondent relied upon Abebe v Commonwealth (1999) 197 CLR 510 where Gummow and Hayne JJ said at page 579 the following:
“There appears much to be said ... for the view that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than for the particular facts of the case the decision-maker is called on to consider.”
The respondent also relied on Yusuf, and in particular drew the court's attention to the joint judgment of McHugh, Gummow and Hayne JJ at page 19. It was submitted there was nothing in the provisions governing the decision to be made in the present case that made it necessary for the MRT or the original decision-maker to consider the issues of the applicant's alleged withdrawal from the course at Notre Dame and transfer or acceptance to the course at Curtin.

Reasoning

In my view the submissions of the respondent in relation to grounds 1 and 2 are correct. I do not accept as submitted by the applicant that the operation of s.116 in Condition 8202 can be confined in the manner suggested. I do not accept that there is a requirement for a continuing breach in a course in which the student is currently enrolled at the time. To impose that condition would clearly be against the intended operation or indeed arguably any operation at all of paragraphs (a)(i) and (b) (i) of s.116.
Whilst one might have some sympathy for the reality now asserted to be the case in terms of the academic performance and attendance of the applicant, I further accept that it is not for this Court to effectively look behind what is an objective test set out in the relevant legislation and regulations.
It is correct as asserted by the respondent that condition 8202 does require the Minister to be satisfied about attendance and there is imposed an objective measure of 80% of contact hours based on provided attendance records. The academic result has to be certified by the education provider to be at least satisfactory. In this case the applicant’s academic result was not so certified and the enrolment was terminated.
In my view the MRT in its reasons for decision particularly in paragraphs 41 and 42 referred to earlier in this judgment do not reveal any error.
I further agree that in the present case there is no need for the MRT to consider the issue of the applicant’s alleged withdrawal from the course at Notre Dame and the transfer to the course at Curtin. Whilst logically that may appear to be a relevant matter and provide a realistic insight into the conduct of the applicant, it regrettably does not provide a basis upon which this Court should permit judicial review of the MRT decision.
Accordingly Grounds 1 and 2 should fail.

Grounds 2B and C

The applicant made submissions in relation to these grounds by way of alternative as I understood and argued that even if the Court was not satisfied that the MRT should necessarily have accepted the applicant’s version that he was no longer enrolled at Notre Dame from about 28 November and that he had withdrawn from that course that these became material questions of fact relevant to condition 8202. The issue of whether the student is enrolled must be it was argued a material question of fact in this matter.
The respondent submitted that grounds 2B and 2C are both directed to the relevance or materiality of the withdrawal of the applicant from his course at Notre Dame and acceptance into the course at Curtin. Reference had been made in the MRT decision to the evidence of what occurred and it found that there was no discretion to consider the reasons for the applicant’s unsatisfactory academic performance (see paragraph 40 of the MRT decision) and that Notre Dame had not certified the applicant to have satisfactory performance (paragraph 41 of the MRT decision). It was submitted that as the MRT was correct in its application of the Act the facts now said to be material or relevant were not matters going to the exercise of the discretion of the MRT and there was no error.

Reasoning

In my view there is clearly no error and nor are the “material facts” now said to be material matters which could in my view be relevant in the exercise of the discretion of the MRT. As indicated earlier the MRT has applied the appropriate test which in all the circumstances might appear to be somewhat narrow and lacking in broad discretion but nevertheless governed by the appropriate statute and regulations. Accordingly I do not accept that grounds 2B and 2C can be upheld.

Ground 3

The applicant submitted that s.116(3) of the Act did not require mandatory cancellation of a visa in all circumstances where there was non-compliance with condition 8202 (see Shrestha v Minister for Immigration and Multicultural Affairs (2002) 64 ALD 669 per Madgwick J). In that case it was held that mandatory cancellation was not required in the case of a genuine student. It was submitted that in that case his Honour also held that it was relevant to ask whether the breach of condition 8202 was "reasonably beyond the student's control". The decision of Madgwick J in Shrestha has not been overruled.
The Full Court in Minister for Immigration and Multicultural Affairs v Shrestha, number N 455 of 2001, did not disapprove of the reasoning of Madgwick J and did not hold the decision to be wrong. It was noted that in certain single judge decisions the reasons of Madgwick J in Shrestha has not been followed. In other cases the reasoning has been accepted. Reference was made to the Butterworth publication of Australian Migration Law Volume 1 where it is claimed that the learned authors still regard Shrestha as good authority (see paragraph 60,155 and 62,030).
It was submitted by the applicant that the reasoning of Madgwick J in Shrestha is correct and should be followed in the present case and that the MRT erred in considering it had no discretion to set aside the cancellation of the applicant's visa if there was a breach of a visa condition. It was submitted the discretion should have been exercised in the applicant's favour having regard to the following:
“(a)the fact that it is clear that he has at all times been a genuine student;
(b)the fact that at all times he acted in good faith and on the basis of advice that he received both from the Department of Immigration and Multicultural and Indigenous Affairs and from Curtin;
(c)any breach of condition 8202 may be properly regarded as having been reasonably beyond the applicant's control.”
It was submitted by the respondent that the use of the word "must" in s.116(3) is inconsistent with the existence of any discretion once a breach is found. In Minister for Immigration and Multicultural Affairs v Nguyen (2002) FCA 460 Emmett J outlined the role of the tribunal. He set out the relevant provisions at paragraph 7 and continued to state the following at paragraph 8:
“For the purposes of review of the decision of the Minister's delegate, the Tribunal exercised the power of the Minister. Accordingly, if the Tribunal was satisfied that the applicant had not complied with condition 8202, s 116(3) required that the visa be cancelled.”

It was submitted by the respondent that the question of whether these provisions leave room for any discretion has been considered by the Federal Court in a series of cases and that it has consistently held that the provisions now in force leave no discretion. For example, see Patsanza v Minister for Immigration and Multicultural Affairs (2001) FCA 734 where Mansfield J at paragraph 16 referred to the tribunal as being "obliged" to affirm the cancellation once breach was found as a matter of fact, and see further Akter v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1504, at paragraph 21 where Moore J referred to the provision as mandatory. Other cases referred to included Peng v Minister for Immigration and Multicultural Affairs (2000) FCA 1672 at paragraphs 16-18, Ariyagama v Minister for Immigration and Multicultural Affairs (2001) FCA 1407, Minister for Immigration and Multicultural Affairs v Hou (2002) FCA 574, Iftikhar v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1123.
It was submitted that the Act also leaves no room for any notion of "substantial compliance" (see Minister for Immigration and Multicultural Affairs v Huo). In the present case any concept of substantial breach or substantial compliance must be based on the text of the act. In the present case that text does not support the construction which would assist the applicant.
It was submitted that there is therefore no error shown.

Reasoning

I am satisfied that in the present application the submissions by the respondent are correct. I accept that the word “must” in s.116(3) is inconsistent with the existence of any discretion once the breach is found. I otherwise note and apply the authorities to which reference has been made by the respondent. I do not accept that in a matter of this kind there is any discretion available to the Tribunal and as stated by Emmett J in the Nguyen case to which reference has been made, once the MRT is satisfied the applicant had not complied with condition 8202 then s.116(3) requires that the visa be cancelled.
There is nothing in the interpretation of the Act in my view which would permit the introduction of the concept of “substantial compliance”.
Accordingly it follows that Ground 3 must fail. I should add for the sake of completeness that even if it was relevant to ask whether the breach of condition 8202 was “reasonably beyond the student’s control” as suggested in the submissions by the applicant relying upon the decision of Madgwick J in the Shrestha decision then without necessarily accepting that to be the law, I do not find in the present application that there is any error in any event based on the material before this Court which would lead to a conclusion that the breach of the condition was reasonably beyond the student’s control.

Grounds 4 and 6

As noted earlier, two grounds, namely grounds 5 and 7, were not pursued. Hence, the parties made submissions in relation to grounds 4 and 6.
It was submitted on behalf of the applicant that section 119 of the Act required the minister to notify the applicant that there appeared to be grounds for cancelling the visa and to give particulars of the grounds and the information because of which grounds appeared to exist. The notice which appears at page 32 of the court book refers to -
“Notification from Notre Dame International that student not meeting course requirements and enrolment terminated.”
That is a reference to the letter from Notre Dame appearing at court book page 25. Those matters it was submitted relate to the applicant's performance in relation to the course as a whole or for the second semester. Condition 8202(b) requires a satisfactory academic result in the case of a course that runs for at least a semester "for each term or semester (whichever is the shorter) of the course". Particulars of grounds provided by the minister make no mention, it was submitted, of any failure to achieve a satisfactory result for the term.
The applicant submitted that having regard to ss.119 and 120 of the Act the minister was not permitted to cancel the visa without having first given particulars of grounds which provided a basis for cancellation. Further it was submitted the minister's decision to cancel the visa was based on grounds other than those in respect of which the applicant was given notice. The act does not permit the minister to cancel a visa on grounds in respect of which proper particulars have not been provided pursuant to s.119.
The respondent by way of reply submitted that s.119 of the Act requires the respondent, if he is considering cancelling a visa under s.116, to notify the holder that there appear to be grounds for cancelling it and to -
“(a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b)invite the holder to show within a specified time that those grounds do not exist or there is a reason why it should not be cancelled.”
It was submitted that the purpose of such particulars was described by the Full Court in Zhao v Minister for Immigration and Multicultural Affairs (2000) FCA 1235 where the court (French, Hill and Carr JJ) stated at paragraph 25 the following:
“Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve a statutory purpose. That is to say, it must be sufficient when read in conjunction with the supporting information to fairly inform the visa holder of the basis upon which the cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.”
The notice given to the applicant of intention to consider cancelling his visa specified the notification from the Notre Dame that the applicant was "not meeting course requirements and enrolment terminated". It further specified the visa could be cancelled under s.116(1)(b) and referred the applicant to s.116(3) and regulation 2.43(2)(b). The form states that the reverse (not being produced in the court book) has a statement of grounds, a statement of relevant factors and an explanation to the effect of cancellation. It was submitted the notice complies with the requirements of s.119.
In any event, it was submitted that as the MRT's decision had been reviewed any error made by the delegate is now superseded.

Reasoning

The respondent’s submissions in relation to this ground are clearly correct. There is no breach of the requirements in the present application pursuant to s.119 of the Act. I accept the Full Court’s decision in Zhao as applicable to the present application. In my view the notice in the present application was certainly sufficient when read in conjunction with supporting information to “fairly inform the visa holder the basis upon which the cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open”. The notice in my view clearly complies with the requirements of s.119 and the purpose of those particulars as set out by the Full Court in Zhao. Accordingly Grounds 4 and 6 fail.

Ground 7B

The applicant acknowledged that Ground 7B in a sense raises a technical issue though as I understand the submission this reflects the technical nature of Condition 8202. In any event the ground relied upon relates to the issue of notice and as further amended asserts that there is an error in the information provided. As I understood the submission the notice and/or the defects or errors provide a basis upon which it could be claimed that there is a denial of natural justice.
The respondent submitted that the amendment made at the hearing to the particulars of ground 7B included a claim that the notice given to the applicant under s.359A of the Act was materially inaccurate. That amendment in the submissions made orally at the hearing is that the notice breached natural justice and misapprehended the section according to the respondent's submissions.
Section 359A, according to the respondent's submissions, is the equivalent for the Migration Review Tribunal of s.424A for the Refugee Review Tribunal (the RRT). The section is to be read with ss.359B and 359C. It is not concerned with providing particulars of any allegation or grounds for administrative action. It operates only once the primary decision to cancel the applicant's visa has been made and the applicant has commenced proceedings for review of that decision. The section, it was submitted, has three requirements as follows:
“(a)to give particulars of any information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review;
(b)to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)to invite the applicant to comment on it.”
In the present case it is submitted that the applicant in commenting on the information can do any of a range of things. For example, he can point out any material inaccuracy, challenge the relevance of the information, comment on why it should be disregarded or extinguished.
In the present case the MRT, according to the respondent's submissions, did not act on the incorrect statement of how many subjects the applicant had passed but correctly stated his academic results (see court book page 220 at paragraph 38). The MRT also noted the applicant's evidence at the hearing that his course was divided into two semesters, each of which was divided into two terms of 10 weeks (court book page 217 at [24]). It was on that basis the MRT proceeded to make its decision and accordingly there was no failure to comply with the section and no breach of natural justice, according to the respondent.

Reasoning

I am satisfied in the present application that ground 7B should fail. I do not accept that there is any breach of natural justice or failure to comply with the relevant legislation. Had the MRT acted upon the incorrect statement of how many subjects the applicant had passed then the outcome may have been different. The fact is it did not act upon that incorrect information and I otherwise accept the respondent’s submission that in those circumstances there has not been a denial of natural justice. Accordingly as indicated ground 7B should fail.

Grounds 8 and 9

The applicant submitted that prior to withdrawing from Notre Dame the applicant approached the Department and spoke to an officer named "Nilar" in November 2001. It is alleged she advised the applicant that if he changed to a course at another education provider he did not have to finish his studies at Notre Dame. It was claimed that about a week later on 28 November 2001 the applicant confirmed with Nilar that he did not need to continue with the last two weeks of study at Notre Dame now that he was accepting a position at Curtin. He did not continue with the last two weeks of study at Notre Dame because of this. He relied on the Department and in particular Nilar for the appropriate advice.
If it is the case that the applicant did not comply with condition 8202 by reason of his non-attendance at Notre Dame during the last two weeks of the term, then it was submitted that in all the circumstances the Minister should be estopped from asserting an entitlement or obligation to cancel the visa. (see Attorney-General (Hong Kong) v Ng Yuen Shiu (1983) 2 AC 629; Waltons Store (Interstate) Ltd v Maher (1988) 164 CLR 387; Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353; Re Hospital Benefit Fund of WA Inc v Department of Health, Housing and Community Services (No 1) (1992) ALD 29-30; Australian Administrative Law, Looseleaf, Butterworths PP 1822.15-1822.16; Flick, Federal Administrative Law Volume 1, paras (3147/5) and (3168/10).
It was submitted the cancellation of the applicant's visa also ought to be set aside on the basis the visa cancellation was contrary to the legitimate expectations of the applicant which arose by reason of the advice and representations of the officer of the Department. Further, it was submitted the cancellation ought to be set aside on the basis that the cancellation was contrary to the principle of substantive fairness having regard to the advice and representations of the officer of the department (see Attorney-General (Hong Kong) v Ng Yuen Shiu).
The respondent submitted that the material on which the applicant relies is not capable in law of creating the estoppel claim. The conduct of the DIMIA officer to which the applicant deposed in his affidavit of 28 April 2003, even if accepted, provides no sufficient foundation for the claim. It contains no representation of fact and no promise by the respondent that the power under s.116 of the Act would not be exercised (see Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193).
It was further submitted by the respondent that the estoppel relied upon would be substantive. Its effect would be to deprive the respondent of the power to cancel the visa when s.116(3) of the Act provides he must do so if the prescribed circumstances exist. The law, it was submitted, does not recognise an estoppel based on a representation when that would interfere with the exercise of a statutory power or the performance of a statutory duty by an executive body (see Wyong Shire Council v Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114 at 142; Rubrico v Minister for Immigration and Ethnic Affairs (1989) 23 FCR 208; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration and Ethnic Affairs v Kurtovic; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary Department of Social Security (1988) 46 FCR 117.
It was submitted that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings. (see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54 per Mason J at 74)
It was submitted that a claim based upon "substantive fairness" is not supported by the authorities cited. The decision of the Privy Council in Attorney-General (Hong Kong) v Ng Yuen Shiu is much more limited than the proposition for which the applicant cites. It was submitted by the respondent that that case supports the proposition that “when a public authority has promised to follow a certain procedure, it is in the interests of good administration that it should act fairly and implement its promise, so long as implementation does not interfere with its statutory duty” (at page 638 emphasis added)
Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6 at paragraph 33 was even more restrictive, holding the case to support the more limited proposition that "fairness may require the public authority to be held to its promise". At its widest, according to the respondent, the case does not support the creation of a substantive obligation.

Reasoning

This ground must fail in my view as even if the Court were to accept that the applicant did not comply with condition 8202 by reason of advice given by an officer of the Department that would not in my view provide the basis for estoppel of the kind suggested in the authorities upon which the applicant relies. Nor in my view could it be suggested that there is a legitimate expectation on the part of the applicant which arose as a result of the alleged advice. Whilst it may appear unfair it is not an unfairness which as a matter of law would support this ground of appeal.
The Department and its officers must act according to statutory power and I accept the authorities relied upon by the respondent in the submissions set out in paragraph 82 of this judgment.
Whilst it may appear to be an element of unfairness based upon the advice allegedly given, it is not in my view sufficient to support this ground of appeal as clearly that advice would interfere with the statutory duty of the officer and the Department. Whilst I accept as held by Gleeson CJ held in the Lam decision that in some circumstances “fairness may require the public authority to held to its promise” in the present case in my view given the clear statutory provisions to which I have referred I cannot accept that the advice in this instance is of a kind which would support this ground of appeal. Accordingly, Grounds 8 and 9 fail.

Ground 10

The applicant submitted that it may be argued on a proper interpretation of regulation 2.43 and s.116(3) of the Act, each of the circumstances referred to in regulation 2.43(2)(a) and (b) are required to exist before the minister must cancel a visa.
The respondent submitted that the submission on behalf of the applicant is not arguable. Reliance was placed upon regulation 2.43(2) which provides as follows:
(2) For subsection 116(3) of the act the circumstances in which the minister must cancel the visa are:
(a) each of the circumstances comprising the grounds set out in paragraphs 1(a) and (b); and
(b) in a 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.
It was submitted that the conjunctive between sub-reg(2)(a) and (b) does not grammatically make the requirements cumulative. To make them cumulative leads to absurdity. For example, it was submitted the construction put forward by the applicant would mean that the minister would only be required to cancel the visa of a student whose presence in Australia might be directly associated with the proliferation of weapons of mass destruction (reg 2.43(1)(a)) if that student also breached a condition applying to his visa.

Reasoning

In my view it is clear that the conjuncture between subregulation 2(a) and (b) cannot make the requirements cumulative. This would in my view lead to an absurdity as submitted by the respondent. I accept the respondent’s submissions in relation to this matter and Ground 10 must fail.

Section 474

Although the applicant relied upon the High Court authority in Plaintiff S157 and there was some discussion about the issue, it was submitted ultimately by the respondent that it is unnecessary to make detailed submissions about the availability of review as the applicant has failed to identify any error in the decision of the MRT or any basis upon which any relief would lie under s.39B of the Judiciary Act. Essentially the parties were in dispute as to whether there was any jurisdictional error demonstrated. It is not necessary to set out in detail all the authorities concerning jurisdictional error arising from Plaintiff S157 and decisions since that case given that in the circumstances I have rejected the grounds relied upon by the applicant.
It follows therefore that the application should be dismissed with costs.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 6 May 2004