Kweon v Minister for Immigration
[2007] FMCA 1221
•1 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KWEON & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1221 |
| MIGRATION – Migration Review Tribunal – student visa – cancellation – condition 8202 – attendance – meaning of semester and term. |
| Education Services for Overseas Students Act 2000, s.20 Migration Act 1958, sub-ss.116(1), 116(3) Migration Regulations 1994, r.2.43, clause 8202 schedule 8 |
| First Applicant: | MI HA KWEON |
| Second Applicant: | HYUN JAE LEE |
| Third Applicant: | SEUNG JAE LEE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1638 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 18 June 2007 |
| Date of last submission: | 18 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 1 August 2007 |
REPRESENTATION
| Counsel for the Applicants: | Sharon Moore |
| Solicitors for the Applicants: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Warren S. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 22 December 2006 be dismissed.
The applicants pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1638 of 2006
| MI HWA KWEON |
First Applicant
| HYUN JAE LEE |
Second Applicant
| SEUNG JAE LEE |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
In this matter, the applicants filed an application on 22 December 2006 seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 23 November 2006 which affirmed the cancellation of their visas. The first applicant is a 38 year old female citizen of South Korea. The second and third applicants are her children. They make no claims of their own.
On 6 April 2005, the first applicant was granted a student visa valid until 23 December 2005. She enrolled at UMEE Limited trading as Hawthorn-Melbourne, which is an approved provider for the purposes of s.20 of the Education Services for Overseas Student Act 2000 (“the ESOS Act”). The courses undertaken by the applicant during the currency of that visa were as follows:
a)
Pre Intermediate General English Language Course from
16 May 2005 to 17 June 2005 (5 weeks) with CRICOS course code 045023K;
b)Intermediate General English Language Course from 20 June 2005 to 22 July 2005 (5 weeks) again with CRICOS course code 045023K;
c)Upper Intermediate English for Academic Purposes Course from 1 August 2005 to 7 October 2005 (10 weeks) with CRICOS course code 045027F;
d)
Advanced English for Academic Purposes Course from
17 October 2005 to 18 November 2005 (5 weeks) again with CRICOS course code 045027F; and
e)
International English Language Testing System Preparation Program from 21 November 2005 to 22 December 2005
(5 weeks) with CRICOS course code 045022M.
The first two courses undertaken by the first applicant were General English Language courses that were two components of a course that could run from between five and 45 weeks, depending on how many of the components the student chose to undertake. The components all had the same CRICOS course code. Initially, the first applicant completed two components of five weeks each, making a total of 10 weeks.
On 9 November 2005, the first applicant received a conditional offer of enrolment to undertake a Masters of Education at Monash University. The offer was conditional upon the first applicant obtaining an International English Language Test System band score of at least 6.5, with a minimum of 6.0 or above in each individual band. As a result, the first applicant enrolled in an additional component of the General English Language course at Hawthorn-Melbourne for the five weeks from 9 January 2006 to 10 February 2006. That five week course was another component of the course with the CRICOS course code 045023K.
On 23 December 2005, the first applicant was granted a further student visa which was valid until 10 March 2006. The visa was subject to condition 8202 set out in Schedule 8 of the Migration Regulations 1994 (“the Regulations”), which, among other things, required the first applicant to attend at least 80% of the scheduled contact hours for the course, if it ran for a semester or less, or for each term and semester of the course, if it ran for more than a semester. The first applicant was absent from the course for several days in January while she and her family had a holiday in Tasmania.
On 31 January 2006, Hawthorn-Melbourne sent the first applicant a notice under s.20 of the ESOS Act. The letter stated, among other things, that:
This notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 because UMEE Limited (trading as Hawthorn-Melbourne) has determined that you have breached condition 8202 of your student visa. Particulars of the breach are as follows:
8202(3)(a) in the case of a holder whose education provided keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled.
Particulars of the breach – failure to meet 80% of attendance
UMEE Limited (trading as Hawthorn-Melbourne) has determined that in the course running from 09/01/2006 o 10/02/2006, you attended 66% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa.
On 24 February 2006, the first applicant attended the Department in response to the s.20 notice. She was given a written notice of intention to consider cancellation of her student visa under s.116 of the Migration Act 1958 (“the Act”). The notice invited the first applicant to attend an interview on 7 March 2006.
At the interview on 7 March 2006, the first applicant said that she had thought that attendance was calculated on the whole period of her course at Hawthorn-Melbourne, from April 2005 to February 2006. She said that she did not go to class on 14 January 2006 as it was the day she took the IETLS test and she had studied in the library instead. Further, she did not attend classes between 16 January 2006 and
21 January 2006 as she went on a holiday with her family. When asked by the delegate if she had sought permission to be absent from her school, the first applicant said that she had told her teacher she was going to be absent, but had not sought permission from the school. At the conclusion of the interview, a delegate of the first respondent cancelled the applicants’ visas.
On 10 March 2006, the applicants applied to the Tribunal for review of the decision of the delegate. The first applicant attended a hearing before the Tribunal on 9 November 2006. She told the Tribunal that she did not dispute that she had attended only 66% of the scheduled contact hours for the period 5 January to 10 February 2006. She also said that she had been on holiday in Tasmania for five days and had been preparing for and sitting a test for two or three days.
The Tribunal determined that for the period 5 January to 10 February 2006, the first applicant attended 83 out of 125 scheduled contact hours, making an attendance rate of 66.40%. The Tribunal found that the first applicant’s absences were not due to exceptional circumstances beyond her control. The Tribunal, accordingly, on 23 November 2006, affirmed the delegate’s cancellation decision.
Cancellation provisions
Section 116 of the Act relevantly provides that:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g) a prescribed ground for cancelling a visa applies to the holder.
…
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Regulations relevantly provides that:
(2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b) in the case of a Student (Temporary) (Class TU) visa:
…
(ii) that the Minister is satisfied that:
(A)the visa holder has not complied with condition 8202; and
(B)the non‑compliance was not due to exceptional circumstances beyond the visa holder's control.
Condition 8202 is set out in Schedule 8 of the Regulations and relevantly states that:
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; …
(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 …
Ground 1
In the application filed with the court on 22 December 2006, the first ground of review is as follows:
The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal failed to ask itself the correct question or to properly construe the terms of the Act and the Migration Regulations 1994;
PARTICULARS
The Tribunal failed to address the correct statutory question when considering whether it was satisfied that condition 8202 was breached in the applicant’s case. The Tribunal failed to consider whether the applicant attended for at least 80% of the contact hours scheduled for the “registered course” General English (Beginner to Advanced) 5 Levels (5-45 weeks) (CRICOS registered course 045023K appearing in the Commonwealth Register of Institutions and Courses for Overseas Students kept under section 10 of the Education Services for Overseas Students Act 2000). The Tribunal failed to identify the correct length of the “registered course” and thereby failed to turn its mind to the applicant’s attendance rate for the contact hours scheduled for the “registered course” as required by the Act and the Regulations.
The applicants’ written submissions on this ground were as follows:
[46] The applicant’s first ground of review is that the Tribunal committed an error because it failed to ask itself the correct or real question to be decided or asked or decided the wrong issue and failed properly to construe the terms of the Act and the Regulations. Such an error is jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339 and 351–352).
[47] The applicant submits that the Tribunal erred in law because when considering whether the applicant had breached condition 8202(3)(a) it did not properly construe the meaning of 8202. In particular it did not properly construe the meaning of “course” as used in that condition. As a consequence of incorrectly construing the meaning of “course” the Tribunal considered the wrong length of time for the course when calculating the applicant’s attendance rate and determination of whether or not she complied with condition 8202.
[48] The applicant submits that the use of the word “course” in condition 8202(3) must be a reference to the registered course in which the applicant is enrolled at the relevant time and for which the s20 notice is issued.
[49] In the applicant’s case, although she had enrolled in 3 different courses during her time of study (see paragraphs 14, 16 and 17 above) during the relevant period of 9 January 2006 to
10 February 2006 she was enrolled in the course called General English (Beginner to Advanced) 5 Levels (5-45 weeks). This was a registered course for the purposes of the Regulations and the ESOS Act. It had a singular CRICOS course code (045023K) which was a different code to each of the other two courses.
[50] Therefore, it is submitted that the period of the course that should have been used by the Tribunal for calculating the applicant’s attendance was the General English (Beginner to Advanced) 5 Levels (5-45 weeks). The applicant had already attended 10 weeks of this course during the period 16 May 2005 and 22 July 2005. She then continued or “extended” the course for a 5 week period between 9 January 2006 and 10 February 2006. At all times she was attending the same course. Thus, the total period of time of the course was 15 weeks not 5 weeks.
[51] As the course being attended by the applicant was a course that ran for less than a semester she was thus required by condition 8202(3)(a) to attend for at least 80% of the contact hours scheduled for that course. That is, the 15 week course.
[52] When determining whether or not the applicant had complied with condition 8202(3)(a), the Tribunal should have asked itself (and calculated) whether the applicant had attended at least 80% of the contact hours scheduled for the 15 week General English (Beginner to Advanced) 5 Levels (5-45 weeks) course. It did not (sic) so. Instead, it incorrectly asked itself (and calculated) whether the applicant had attended at least 80% of the contact hours scheduled for the 5 week period. In doing so, the Tribunal incorrectly calculated the applicant’s attendance rate as 66.40%. In doing so the Tribunal fell into error and such error was jurisdictional.
The first respondent’s written submissions on this ground were as follows:
[20] The applicant’s first enrolment at Hawthorn-Melbourne was from 16 May 2005 to 23 December 2005, when her visa expired. During that time, the applicant undertook a number of courses completing 30 weeks of study (CB 6). The applicant undertook General English (Beginner to Advanced) 5 levels (5-45 weeks), completing the Pre-Intermediate General English Language Course, from 16 May 2005, to 17 June 2005, and the Intermediate General English Language Course, from 20 June 2005 to 22 July 2005. The applicant then completed the Upper Intermediate English for Academic Purposes (EAP) Course from 1 August 2005, to 7 October 2005 and the Advanced English for Academic Purposes (EAP) Course from 17 October 2005, to 18 November 2005. The applicant finally completed International English Language Testing System (IELTS) Preparation Program, from
21 November 2005 to 22 December 2005.
[21] The applicant then re-enrolled at Hawthorn-Melbourne for the period 9 January 2006 to 10 February 2006 (CB 1, 15, 38). At that time she was the holder of the visa. The re-enrolment was for the course in General English (Beginner to Advanced) 5 levels (5-45 weeks). This re-enrolment was to assist the applicant to obtain the required IELTS band score to enable her to take up the offer from Monash (refer paras 4 & 6 hereof).
[22] The applicant contends that the use of the word ‘course’ in condition 8202(3) is a reference to the registered course in which the applicant is enrolled at the relevant time, and for which the s20 notice is issued. The applicant contends that she should be assessed against General English (Beginner to Advanced) 5 levels (5-45 weeks) (Cricos Code: 045023K). The applicant did not attend at least 80% of the contact hours scheduled for that course for the period from 9 January 2006 to 10 February 2006. The applicant did not attend for at least 80% of the contact hours scheduled for that period (CB 1, 9). Accordingly, the applicant breached 8202(3)(a), as the Tribunal found.
[23] The applicant contends however that for the purposes of condition 8202, she should be assessed over a total of 15 weeks, being the 5 week period from 16 May 2005, to 17 June 2005, and the 5 week period from 20 June 2005 to 22 July 2005, together with the further 5 week period from 9 January 2006 to
10 February 2006. That is, she seeks to accumulate the later enrolment period with the periods from her earlier enrolment However, in June to July 2005 she was not the holder of the visa. The relevant visa is the visa referred to in paragraph 5 hereof. Accordingly, the only relevant period is the period from 9 January 2006 to 10 February 2006.
[24] Even if the visa had been granted prior to 16 May 2005, which it was not, condition 8202(3)(a)(ii) requires a decision-maker to be satisfied that for a course that runs for at least a semester, an applicant attends for at least 80% of the contact hours scheduled, ‘for each term and semester of the course’. On the applicant’s contention, the course General English (Beginner to Advanced) 5 levels (5-45 weeks) (Cricos Code: 045023K), ran for at least a semester. Accordingly, the applicant would not have complied with the requirement to attend for at least 80% of the contact hours scheduled, ‘for each term and semester of the course’.
The applicants emphasised in oral submissions that the three components of the English Language course undertaken by the first applicant totalled 15 weeks, which was well short of a semester, being, it was argued, a half year course or term. The applicants argued that a semester was not a particular part of the academic year, such as from January to June, but a period of 26 weeks. In the present case, the first applicant did the first component of the English Language Course in May and June 2005, the second component in June and July 2005 and the third component in January and February 2006. The applicants argued that all of these components were undertaken in one semester, because the first applicant had undertaken the course for a total of 15 weeks, which is much less than half a year.
The first respondent argued in oral submissions that the first applicant undertook the different components of the course in different terms and semesters. The first respondent argued that a semester is a particular part of the academic year, rather than a particular duration. The first respondent also argued that the course undertaken by the first applicant in January and February 2006 was undertaken pursuant to a new visa and, for that reason, the earlier components of the course could not be included in the calculation of the duration of the course.
Consideration of ground 1
The English Language Course undertaken by the first applicant in this case is unusual, in that there is one course code for a course that has several discrete components, not all of which need to be undertaken to satisfactorily complete the other components of the course, and which can, apparently, be undertaken many months apart. The course can take between five and 45 weeks, depending on how many of the components are selected. Additionally, it appears that Hawthorn-Melbourne does not operate in the usual terms and semesters, but gives students a week’s break after each 10 weeks of study: see the email dated 2 October 2006 from the principal of Hawthorn-Melbourne to the Tribunal.
In my view, the word “semester” in condition 8202 is not a period of, or periods totalling, 26 weeks but a particular period specified by the relevant academic institution in its calendar as a semester, or, in the absence of any such specification, either the first or second half of the year. In my view, a term at Hawthorn-Melbourne is best understood as consisting of the 10 week periods between breaks.
The “course” referred to in condition 8202, in my view, is the registered course with a particular CRICOS course code in which the relevant visa holder is enrolled The English Language Course undertaken by the first applicant ran for 45 weeks. The fact that the first applicant chose to do only two components of the course does not alter the fact that the course itself ran for 45 weeks. Accordingly, the English Language Course ran for more than a semester and the first applicant needed to satisfy the attendance requirements for each term and semester of the course.
Alternatively, the course actually undertaken by the first applicant ran from May 2005 to February 2006. That is more than a semester, so, again, the first applicant needed to satisfy the attendance requirements for each term and semester of the course.
The component undertaken by the first applicant in January and February 2006 was undertaken in a different term and semester from the components undertaken in 2005. Accordingly, the first applicant was required to attend at least 80% of the contact hours scheduled during January and February 2006. The Tribunal was correct in reaching this conclusion.
With the permission of Hawthorn-Melbourne, the first applicant undertook only two components of the course in 2005. She was able to meet the attendance requirements for the 45 week course because her contact hours were limited to the contact hours scheduled for those two components.
I do not accept the first respondent’s argument that, because the first applicant was granted a new visa, she necessarily started a new course. Condition 8202 refers to “the course”. It does not refer to “the course for which the visa was granted”. It is well known that students are often granted more than one visa to complete a particular course, and the new visa does not always coincide with the beginning of a new term or semester. If the first respondent’s argument prevailed, such students would need to meet attendance requirements not only for each term or semester, but also for each part of the applicable term or semester that preceded and followed the granting of the new visas. Condition 8202 cannot bear that interpretation.
Having said that, as at December 2005, the first applicant had finished the courses she had initially enrolled to do, being the two components of the English Language Course and three other separate courses. The course undertaken by the first applicant in January 2006 had the same course code as the course undertaken by her in May, June and July 2005, but it was the result of a new enrolment. This is apparent from the letter dated 15 February 2006 written by the principal of Hawthorn-Melbourne in which she refers to the “first enrolment” and the “second enrolment” and the “new enrolment”. The fact that the first applicant needed to obtain a new visa to enable her to do the further course underlines that it was a separate course outside the scope of her original plans.
As an alternative to the analysis above, in the unusual circumstances of this case, I consider that the course undertaken by the first applicant in January and February 2006 was a new course separate from the two components of the English Language Course undertaken by the first applicant in May, June and July 2005, notwithstanding that all the components of the course had the same CRICOS course code. That is because it was not necessary to do all of the components of the English Language Course to “do the course” and because the first applicant had completed the components that she had wished to do in connection with her initial enrolment and then embarked on a new component of the course with a new enrolment. The consequence was that the first applicant was required to meet the attendance requirements for the course undertaken in January and February 2006.
For these reasons, ground 1 is not made out.
Ground 2
The second ground of review is as follows:
The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that it failed to take into account a relevant consideration and/or took into account an irrelevant consideration;
PARTICULARS
The Tribunal failed to take into account whether the applicant attended for at least 80% of the contact hours scheduled for the “registered course” and erroneously took into account her attendance rate over a lesser period.
The applicants’ written submissions on this ground were as follows:
[53] The applicant’s second ground of review is that the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction because it failed to take into account a relevant consideration and/or took into account an irrelevant consideration.
[54] The applicant submits that the Tribunal failed to take into account whether the applicant attended for at least 80% of the contact hours scheduled for the registered course, Further, it took into account an irrelevant consideration by taking into account her attendance rate over a lesser period.
[55] The applicant refers and repeats her contentions of law in relation to ground 1.
The first respondent’s written submissions on this ground were as follows:
[25] The applicant contends that the Tribunal erred as it did not take into account whether the applicant attended for at least 80% of the contact hours scheduled for the registered course and erred as it took into account her attendance rate over a lesser period.
[26] As the applicant refers to and repeats her contentions under ground 1, the first respondent repeats the response thereto.
Consideration of ground 2
For the reasons given above, this ground is not made out.
Ground 3
The third ground of review is as follows:
The decision of the Tribunal was infected by an error of law affecting the exercise of power;
PARTICULARS
The Tribunal misconstrued the operation of subsections 116(1) and 116(3) and subregulation 2.43(2)(b) and condition 8202 as described above.
The applicants’ written submissions on this ground were as follows:
[56] Finally, further and in the alternative the applicant submits that because of the way the Tribunal construed condition 8202 it misconstrued its operation and the related provisions of the Act, viz s116.
[57] The applicant refers and repeats her contentions of law in relation to ground 1.
The first respondent’s written submissions on this ground were as follows:
[27] The applicant contends that because of the way the Tribunal construed condition 8202, it misconstrued its operation and the related provisions of the Act, viz s116.
[28] As the applicant refers to and repeats her contentions under ground 1, the first respondent repeats the response thereto.
Consideration of ground 3
For the reasons given above, this ground is not made out.
Conclusion
As none of the applicants’ grounds has been made out, the application must be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 1 August 2007
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