Gu v Minister for Immigration
[2004] FMCA 555
•3 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GU v MINISTER FOR IMMIGRATION | [2004] FMCA 555 |
| MIGRATION – Migration Review Tribunal – student visa – visa cancelled for unsatisfactory attendance and academic result – condition of visa that attendance and academic result is satisfactory for term and semester – course divided into trimesters – whether trimester a term – meaning of term and semester. |
Judiciary Act 1908 (Cth), s.39B
Migration Act 1958 (Cth), s.65,116
Acts Interpretation Act 1901 (Cth), s.15AA
Migration Regulations 1994 r.2.43, Sch 8 condition 8202
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 35
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460
| Applicant: | DAI LIANG GU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1038 of 2003 |
| Delivered on: | 3 September 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 31 August 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Gil. Boffa & Associates |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Blake Dawson & Waldron |
ORDERS
That the application is dismissed.
That the applicant pay the respondent’s costs fixed at $6,000.00.
That there be a stay of execution on costs of 30 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1038 of 2003
| DAI LIANG GU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for relief pursuant to s.39B of the Judiciary Act 1908 in relation to a decision of the Migration Review Tribunal.
The applicant is a citizen of China. He entered Australia on 19 February 2000 on a Student (Temporary) (Class TEU) visa, subclass 560 which expired on 15 March, 2002. The applicant was granted a subclass 573 Student visa on 26th February 2002 valid until 31 August 2005. The visa was cancelled on 21 November 2002.
Attached to the visa was condition 8202 (set out in Schedule 8 of the Migration Regulations (1994). Condition 8202 required the applicant to attend 80% of the contact hours scheduled for each term and semester of the applicant’s course and required him to achieve, for each term or semester of his course (whichever is the shorter), "an academic result that is certified by the education provider to be at least satisfactory".
The visa period in question is from 26 February 2002 to 21 November 2002. Within this period, the applicant studied at Monash International College, part of Monash University. His results and attendance were recorded as follows:
Trimester 1, 2002 (4 March 2002 to 2 June 2002)
Results: Enrolled in 5 subjects. Failed: 5 subjects.
Attendance: 63%
Trimester 2, 2002 (1 July to 27 September 2002)
Results: Enrolled in 5 subjects. Failed: 5 subjects.
Attendance: 67%
At the time of grant of the visa condition, 8202 provided:
(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student – the holder is enrolled in a full-time course of study or training.
(3) A holder meets the requirements of this subclause if:
(a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i) for a course that runs for less than a semester – for the course; or
(ii) for a course that runs for at least a semester – for each term and semester of the course; and
(b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i) for a course that runs for less than a semester – for the course; or
(ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.
The effect of s.116(3) of the Migration Act 1958 and r.2.43(2)(b) of the Migration Regulations is that the Minister must cancel a visa if the Minister is satisfied that the visa holder has not complied with condition 8202. Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 at [7, 11], Emmet J. There is no discretion for the Minister, or the decision maker making a decision as the Minister's delegate, as to the cancellation of a visa where s.116 (3) applies.
Submissions
Only one ground of error was argued on behalf of the applicant. The Monash International College academic year is divided into trimesters. That is the description the College uses. Mr Gibson, who appeared for the applicant, argued that condition 8202 applies only to a course that consists of semesters or terms or a combination of semesters and terms. He argued that a trimester is not a term, and that condition 8202 applies only when the education provider divides its courses into terms or semesters or both. Condition 8202 does not apply when it divides a course into trimesters.
Mr Gibson referred to the Shorter Oxford Dictionary definitions of semester, term and trimester. The relevant definitions are:
term: Each of the periods (usu. three or four in the year) appointed for the sitting of courts of law, or for instruction and study in a university or school
semester: A period or term of six months; spec. a half-year course or term, esp. in German and US universities and colleges
trimester: A period or term of three months; spec. (a) MEDICINE one third of the length of human pregnancy; (b) North Amer. a three-month university or school term
Mr Gibson submitted that each word has a different meaning.
A trimester is specifically a period of three months. It is not the same as "term" which may have varying periods. He submitted that a trimester is not included in "term" in condition 8202.
Mr Gibson referred to Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 where McHugh, Gummow, Kirby and Hayne JJ.said at [71],
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". [Citations omitted]
Mr Gibson argued that if "term" is interpreted as meaning a period appointed for study so that it includes a trimester, it must also be able to include a semester. If that is the case, "semester" in condition 8202 is superfluous. "Semester" can "be made useful and pertinent", as the High Court says it should be, by adopting a different interpretation. Mr Gibson submitted that condition 8202 only applies when the education provider describes its periods of study as "semester" or "term". If the education provider uses a different expression then condition 8202 does not apply. Condition 8202, he submitted, looks at the practice of the education provider. This interpretation means that neither "term" nor "semester" is superfluous.
Mr Gibson submitted that in paragraph (3)(a) and (3)(b) of condition 8202 "term" must have the same meaning. He pointed out that in (3)(a)(ii) the expression is "for each term and semester of the course", whereas in (3)(b)(ii) the expression is "for each term or semester (whichever is shorter) of the course". The latter phrase contemplates the possibility of a "term" being longer than a "semester" which is not the general interpretation of "term". It is an indication, Mr Gibson submitted, that condition 8202 looks to the practice of the education provider and not a general interpretation of "term".
Mr Fairfield, who appeared for the respondent, submitted that "term" must be given its ordinary natural meaning. In the context of condition 8202 it is a period of study of which there are usually three or four in the year. The course which the applicant was doing consisted of three periods of study of three months each. Mr Fairfield submitted that within the meaning of condition 8202 that was three terms of three months each.
So far as the time requirement in paragraph (3)(a) is concerned, Mr Fairfield submitted that the meaning of "term" and "semester" had to be looked at in context. The requirement is that "the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled". The relevant dictionary definition of " schedule" is "a timetable" (Mr Fairfield referred to the Third Edition of the Macquarie Dictionary). The purpose of the requirement, Mr Fairfield submitted, is that the visa holder must attend 80% of the timetabled contact hours of the education provider.
Mr Fairfield submitted that to interpret "term" in the manner put forward on behalf of the applicant was absurd. It would not promote the purpose of the regulations as required by s.15AA of the Acts Interpretation Act 1901 (Cth)
A further absurd result, Mr Fairfield submitted, would be that a visa holder enrolled with an education provider that did not use "term" or "semester" to describe its periods of study would never be able to satisfy paragraph (3)(b). The education provider would not be able to certify that the visa holder achieved an academic result, at least satisfactory for the "term" or "semester". In this case, Monash International College could only certify for a satisfactory result for a trimester. On the applicant’s argument, Mr Fairfield submitted, that would not satisfy the requirements of paragraph (3) (b).
Findings
Paragraph (1) of condition 8202 provides that the holder of a subclass 560 (Student) visa "must meet the requirements of subclauses (2) and (3)". The applicant's argument is that in his particular situation he does not have to meet the requirements of paragraph (3). Properly analysed, the argument is not that he does not have too meet those requirements, but he cannot meet those requirements. He cannot meet those requirements because, if the argument is correct, he could never attend for at least 80% of the contact hours scheduled for a "semester" or "term". He could only ever attend for at least 80% of the contact hours scheduled for a trimester.
As Mr Fairfield argued, if the applicant's argument is correct, his education provider could never certify that he achieved an academic result at least satisfactory for a "semester" or "term". The education provider could only give the certification for a trimester.
It would be an absurd result if the correct interpretation of condition 8202 means that a visa holder who attended a registered course of an education provider which did not use the expressions "term" or "semester" could never satisfy the visa conditions.
It is not necessary to resort to avoidance of absurd result as an aid to an interpretation. In the context of this case, the ordinary and natural meaning of "term" as used in condition 8202 includes a trimester of the course in which the applicant was enrolled at Monash International College. This interpretation does not mean that "semester" is superfluous. A semester is a six-month period or term. Condition 8202 has different requirements for a course that runs for less than a semester period, a six-month period or term, and a course that runs for at least a semester period. When the course runs for less than a semester period, the requirements for attendance and satisfactory performance have to be satisfied for the course. Where the course runs for at least a semester period, the requirements of attendance and satisfactory performance have to be satisfied for each term and semester. "Term" and "semester", in a particular case, might refer to the same period, but in the operation of condition 8202 they have different functions to perform. In most cases, as in this case, they will refer to different periods of time as well as having different functions in the operation of condition 8202.
Neither "term" nor "trimester" have absolute definitions. Mr Fairfield referred to the Macquarie Dictionary definition of "trimester" which is "a teaching term of approximately three months in some educational institutions which provide teaching over three terms in the year but accept two such terms as a full year's work". In this definition, a "semester" is a type of "term".
I consider that a trimester of the course in which the applicant was enrolled at Monash International College is a "term" within the meaning of condition 8202. It is the ordinary natural meaning of the word and it promotes the purpose of the regulation. The meaning contended for on behalf of the applicant would produce an absurd result.
It is not necessary to decide whether the error alleged on behalf of the applicant is a jurisdictional error. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Gummow and Hayne JJ. said that a decision-maker’s satisfaction or lack of satisfaction in determining whether to grant or refuse a visa, as required by s.65 of Migration Act 1958 is a jurisdictional fact. Mr Gibson submitted that the same considerations applied to s.116(3). It requires that the Minister must cancel a visa if the prescribed circumstances exist. That may be correct. It is not necessary to decide in this case.
The application is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 3rd September 2004
0
4
0