Li Li Lin v Minister for Immigration
[2006] FMCA 514
•28 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI LI LIN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 514 |
| MIGRATION – Student school sector visa – invalidity of s.20 notice under the Education Services for Overseas Students Act 2000 – whether any defect in the delegate’s decision – consequent effect on Tribunal’s jurisdiction – no error in the delegate’s or the Tribunal’s decision – education provider certified applicant’s academic results as not meeting the “at least satisfactory” test – breach of Condition 8202 – visa cancellation affirmed – application dismissed. |
| Migration Act 1958, ss.116, 116(1)(b), 116(2)(b), 116(3), 116(3)(b), 137J, 137L(1)(b), 359 Migration Regulations 1994, Regulations 2.43, 2.43(2)(b), Conditions 8202, 8202(2)(a), 8202(3)(a)(2), 8202(3)(b)(2) Education Services for Overseas Students Act 2000, s.20 |
| Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 Gurung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 772 Zou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1126 Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1826 Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35 Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 Tian vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 Minister for Immigration and Multicultural and Indigenous Affairsv Ahmed [2005] FCAFC 58 Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 |
| Applicant: | LI LI LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2221 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 December 2005 |
| Date of Last Submission: | 13 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms. W. Q. Chen |
| Solicitors for the Applicant: | Oliveri Solicitors |
| Counsel for the Respondent: | Mr. G. Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Migration Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2221 of 2004
| LI LI LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed in this Court on 15 July 2004 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 25 June 2004 to affirm the decision of a delegate of the respondent Minister made on 25 November 2003 to cancel the applicant’s Subclass 571 (School Sector) visa (a student visa). The Tribunal is joined as the second respondent in these proceedings.
The background to this case is that the applicant (Ms. Li Li Lin) is a national of the People's Republic of China who arrived in Australia as a student on 8 July 2002, (with her sister who is also an applicant before me – see SYG 2220 of 2004). She was subsequently issued, on
24 September 2002, with a Subclass 571 (Schools Sector) visa which was due to expire on 15 March 2006. Attached to this visa was a condition that the visa holder meet course requirements (Condition 8202 – See Schedule 8 of the schedules to the Migration Regulations 1994 (“the Regulations”)). Relevantly, this required the applicant to be enrolled in a registered (education related) course (Condition 8202(2)(a)), and to attend for at least 80% of the contact hours scheduled for each term and semester of the course (Condition 8202(3)(a)(ii)), and achieve an academic result that was certified by the education provider to be “at least satisfactory” for each term or semester of the course (Condition 8202(3)(b)(ii)).It appears, and it is not a matter in dispute between the parties, that this visa was granted in relation to the applicant's enrolment at a college managed under the auspices of the Catholic Education Commission, namely St. Scholastica’s college. On 23 October 2003 the applicant was sent a notice from the Catholic Education Commission pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) informing her that she was in breach of a condition of her visa, relating to attendance in the course in which she had enrolled, and that if she failed to attend an office of the Department of Immigration & Multicultural & Indigenous Affairs (the first respondent’s Department) within 28 days then her visa would cease (be “automatically cancelled”) pursuant to s.137J of the Migration Act 1958 (“the Act”) (see Court Book (“CB”) 9 to CB 10).
On 12 November 2003 the applicant attended at the first respondent's Department and was issued with a Notice of Intention to Consider Cancellation (NOITC) of her visa (CB 11 to CB 12). The relevant possible grounds for cancellation were notified as:
“Breach 8202 – your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.”
The notice advised the applicant that the visa may be cancelled pursuant to ss.116(1)(b) and 116(3) of the Act, and Regulation 2.43(2)(b) of the Regulations with reference, relevantly, to Condition 8202 attaching to her visa.
Section 116(1)(b) states:
“116 (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b) its holder has not complied with a condition of the visa.
(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.”
These circumstances were prescribed by Regulation 2.43(2)(b) which relevantly reads:
“(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:
(ii) condition 8202.”
By communication transmitted by facsimile on 13 November 2003, and subsequently on 25 November 2003, St. Scholastica’s college (the education provider) provided a number of relevant documents to the first respondent's Department (CB 15 to CB 33). This documentation, amongst other things, showed that for the year 2003 the applicant’s attendance rates were (see particularly CB 33):
“Term 1: 95%, Term 2: 77%, Term 3: 88%, Term 4: did not return to school and had to waste our time chasing them [the applicant and her sister] to find out what they were doing in terms of their continuing studies.”
In relation to academic performance, the school reported (see copy at CB 17):
“Academic performance
Please specify whether or not the student made satisfactory academic progress for each term of their course by placing a ‘yes’ or ‘no’ in each box.
Year
Term 1
Term 2
Term 3
Term 4
2003
No
No
No
-
The documentation also provided details to support this summary of the applicant’s academic performance.
The Minister’s delegate’s decision record, in regard to the issue of cancellation of the visa, is set out at CB 34 to CB 37. It reveals that while the delegate considered the issue of unsatisfactory attendance, the delegate’s decision made on 25 November 2003 to cancel the visa ultimately turned on what the delegate noted and considered the unsatisfactory academic performance. The delegate’s reasons are at CB 36:
“I am satisfied that the visa holder had breached condition 8202 of her student visa as she did not maintain satisfactory academic performance in terms 1, 2 and 3 of 2003. Cancellation is mandatory pursuant to s.116(1)(b) and s.116(3) and reg 2.43(2)(b).”
The applicant applied for review with the Tribunal on 4 December 2003. She was assisted before the Tribunal by Oliveri Attorneys who are also the solicitors on the record for the applicant now. A number of documents were submitted with the application which are reproduced at CB 41 to CB 67.
The Tribunal had before it a range of evidence which it set out in its decision record at CB 96.2 to CB 100.7. The Tribunal found:
1)That the Minister's delegate made a decision to cancel the applicant's visa pursuant to ss.116(2)(b) and 116(3) of the Act and Regulation 2.43(2)(b) because of the finding that the review applicant had not complied with Condition 8202 of her visa, and specifically because she had not maintained satisfactory academic performance in Terms 1, 2 and 3 of 2003 (CB 100.8).
2)The Tribunal saw that the issue that it needed to consider was whether at the time of cancellation it was possible to make a decision concerning non-compliance with Condition 8202 (CB 100.9).
3)That the relevant education provider gave advice to the [first respondent’s] Department, and certified that the applicant's academic performance for terms 1, 2 and 3 of 2003 was “unsatisfactory” (CB 101.2).
4)That the Minister’s delegate relied on this information to find that the applicant lacked satisfactory academic results as required by the relevant visa condition and that on the face of it the visa was liable for cancellation pursuant to ss.116(1)(b) and 116(3) of the Act (CB 101.3).
5)The Tribunal considered the explanations put forward by the applicant. In particular it:
i)Accepted that the applicant encountered difficulties principally due to her “inadequate English”.
ii)Found that while there were deficiencies in her attendance this ground was not relied upon by the delegate.
iii)Found that the applicant sought to “lay responsibility” on both the (St. Scholastica’s) college for “pushing” her to a level beyond her capability, and on her education agent.
iv)Accepted that it was possible that had she returned to (St. Scholastica’s) college and resumed studies at an appropriate level she would not have been reported “via a Section 20 Notice”.
6)But in spite of the above it ultimately found that she had failed to show that the relevant service provider college had certified that her academic results were satisfactory in light of the particular circumstances of her case (CB 101.5).
7)The Tribunal gave the applicant an opportunity to obtain a further certificate regarding her academic results, and found that the letter from the college issued on 2 June 2004 (CB 89) confirmed that the applicant's academic results were not considered to be satisfactory (CB 101.7):
“Although her attendance and academic progress were not considered to be satisfactory, [with reference to 2003] when she was at school she was a well behaved and well mannered young lady.”
8)With reference to relevant Full Federal Court authority (Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 (“Khan”)) the Tribunal found that the applicant had not complied with Condition 8202(3)(b) as her relevant education provider had not certified that her academic results were “at least satisfactory” for each term or semester of her course (CB 101.8).
9)The Tribunal further found (CB 101.9) that it did not have any discretion to set aside a visa cancellation where there had:
“… been a substantiated breach of condition 8202. Once non-compliance with the condition is established the Tribunal is bound, by the operation of subsection 116(3), to affirm the visa cancellation.”
The applicant's application to this Court, filed on 15 July 2004, puts forward one ground:
“The grounds of the application are that the Tribunal exceeded jurisdiction in making the decision to affirm the Respondent’s decision to cancel the Applicant’s visa.
Particulars
The Tribunal erred in its application of Condition 8202 to the circumstances of the case. The Applicant was granted a Student visa for the purposes of her enrolment in Year 10 however the Tribunal’s finding of a breach of Condition 8202 related to her enrolment in Year 11.”
This application was filed with the assistance of a barrister (acting on a direct access basis for the applicant) who, on 20 July 2005, filed a Notice of Withdrawing to Act for the applicant.
Subsequently, on 1 November 2005 Oliveri Attorneys filed a Notice of Appearance. At the hearing before me, Ms. Chen, a solicitor employed by this firm, appeared for the applicant. I note that this firm represented the applicant before the Tribunal. Mr. Kennett appeared for the respondents.
The applicant has filed in this Court:
1)An affidavit affirmed by the applicant on 2 July 2004 annexing a copy of the Tribunal's decision which the applicant asserts is the subject of these proceedings.
2)An affidavit sworn by the applicant on 7 November 2005 asserting matters relating to the applicant's education history in Australia and attaching a number of annexures relating to these issues, but including material from educational institutions other than St. Scholastica’s college and which refer to periods outside the relevant period which was the subject of the review by the Tribunal.
3)An affidavit sworn by the applicant on 1 December 2005 annexing a letter dated 28 June 2005 from her current teacher and referring to the applicant’s (and her sister’s) academic performance for two semesters leading up to 28 June 2005. (A period which is well after the relevant period before the Tribunal).
4)Written submissions filed on 1 December 2005 drafted with the assistance of the applicant’s current solicitors.
In relation to the affidavits filed by the applicant, Ms. Chen:
1)Submitted that the applicant did not intend to rely on the affidavit of 2 July 2004.
2)Sought leave to read into evidence the applicant’s affidavit of
7 November 2005. Mr. Kennett objected to the affidavit on the basis of its relevance, and in particular objected to paragraph 5 where the first sentence expresses a conclusion and attributes an intention to another person who is not specified. I proceeded with the hearing on the basis that I would give leeway to Ms. Chen to seek to establish relevance.3)Also sought to rely on the affidavit of 1 December 2005, but after being unable to show the relevance of this affidavit and its annexure which was dated 28 June 2005, (well after the Tribunal decision and asserted matters after the relevant period dealt with by the Tribunal) submitted that she did not seek to press this affidavit or the annexure into evidence.
Prior to hearing oral submissions from Ms. Chen I advised that the written submissions filed on 1 December 2005 did not appear to relate to the sole ground in the application filed on 15 July 2004. I raised with Ms. Chen whether she would be seeking to put on an amended application. She then submitted that further written submissions had been prepared and that the issue was addressed in those further submissions which she sought to then tender. Mr. Kennett advised that he had only been provided with these submissions a few minutes before the hearing commenced, but on his quick perusal expected to be in a position to deal with the matters raised. However, he reserved his position to seek further time subsequent to the hearing to put in additional written submissions if necessary. Ms. Chen’s oral submissions at that point were:
1)That there was some defect with the s.20 notice.
2)That there was an absence of any certificate by the academic provider that the academic records were “at least satisfactory”, and in circumstances where the education provider was not prepared to give such a certificate, that this deems “the student’s compliance to their visa conditions”, that is, that the student met the visa condition.
3)There was a complaint about the delegate’s decision, being that the delegate should have inquired into the reasons attached to the particulars of the breach stated in the s.20 notice, before proceeding to cancel the applicant's student visa.
4)The applicant did not have proper legal advice and should not have reported to the Department, and that this was a “mistaken option” taken by the applicant.
I noted with Ms. Chen that neither her written, nor further written nor oral submissions on that point, contained any reference to any relevant authorities particularly in relation to the issue of the s.20 notice and how any possible defect could have affected the delegate’s decision, but most importantly, and ultimately, the Tribunal's decision. Mr. Kennett suggested that the matter be adjourned until the afternoon of the same day when Ms. Chen and he were due to represent respective parties, in Ms. Chen's case, being the sister of the applicant before me and for Mr. Kennett the Minister and the Tribunal, where the facts in that case were similar, and the law traversed the same areas and arguments. Ms. Chen sought a longer adjournment so that “she could check to see the other authorities”. I refused any longer adjournment on the basis that the applicant made her application to this Court with the assistance of Counsel some five months prior to the hearing of this matter. More importantly Ms. Chen’s firm of solicitors had filed their appearance in this matter some six weeks earlier (and indeed in so far as their preparation would have related to the facts of the matter I have already noted that this firm had represented the applicant before the Tribunal). This in my view was more than sufficient time for the applicant's legal representatives to have prepared for the hearing by way of researching relevant authorities. This matter resumed on the afternoon of 13 December 2005 and was heard at the same time as the matter involving the applicant's sister.
On resumption Ms. Chen indicated that she was “not really” ready to proceed, but then submitted that she understood that the relevant authorities mentioned that morning were “against her client”, but still emphasised that her client had made the “wrong choice” (that is, both clients) and because they made the “wrong choice” they had been denied natural justice (I took this to be a reference to their taking up the option of going to the Minister’s Department where subsequently notices of intention to cancel their visas were given to them). Ms. Chen also indicated that she was not intending to rely on the ground raised in the application and sought leave to amend the application “because it's done by the applicant's previous barrister”. Ms. Chen, in a submission which in the circumstances was unsatisfactory, stated that the representation in this case was “supposed” to be done by her principal, but he was “currently overseas” and that therefore she had to take up that role. Nonetheless, I granted leave for Ms. Chen to put to me the amended grounds that she now wished to pursue.
Ms. Chen enumerated the complaints the applicant sought to rely on as follows:
1)Denial of natural justice. This was explained as the applicant having made the “wrong choice”.
2)That the delegate “misdirected himself” by making the decision without looking into the education provider’s submissions as to academic performance.
3)That the Tribunal exceeded its power by reviewing the delegate’s decision which was “wrong”.
The applicant’s written submissions, drafted with the assistance of her current legal adviser filed on 1 December 2005, assert that the decision affirming the delegate’s decision was made by the Tribunal, and that the Court therefore has jurisdiction to hear this matter. However, the submissions, extensive as they are, do not appear to argue for jurisdictional error directly on the part of the Tribunal as such, but seek to attack the delegate’s decision, and to argue for jurisdictional error in that decision.
I did not find Ms. Chen’s oral submissions helpful in ascertaining the exact nature of the applicant’s arguments, and relied on the written submissions as perhaps being of greater assistance.
The written submissions of 1 December 2005 argue:
1)A failure on the part of the Minister's delegate to exercise jurisdiction under the Migration Act.
2)That Condition 8202(3)(b) states that a holder of the visa meets the relevant requirement if the holder of the relevant visa achieves academic results that are certified by the education provider to be “at least satisfactory”.
3)That the issue turns on whether the applicant failed to achieve an academic result that is certified by the education provider to be “at least satisfactory”. The applicant makes reference to a number of school reports for 2003, in particular semester one and semester two, which it is said show that the applicant achieved marks below 50% for five subjects in semester one and for semester two achieved marks below 50% for all seven subjects.
4)That notwithstanding the reports mentioned at 21.3 above the principal [of St. Scholastica’s] reported:
“A satisfactory report but Li Li’s results could improve with more application.” And further; “A disappointing result for ‘Vivian’ who has much potential. I hope next year her grades will improve.”
These comments therefore amounted to “a satisfactory report”.
5)That there is no definition of the phrase “‘at least satisfactory” and that discretion to make a decision on what is satisfactory performance is vested in the education provider.
6)That there were defects in the s.20 notice issued by the education service provider pursuant to the ESOS Act. Further that the delegate “misdirected” himself on the relevant evidence, as to whether the applicant had achieved academic results that in the applicant's view had already been certified by the relevant school (the school reports) to be at least satisfactory.
7)That the defect appears to be that the s.20 notice makes reference to a failure to attend class as the reason for not meeting the course requirements, and that the reason the college “reported” the applicant was not the reason subsequently relied on by the delegate to cancel the visa. Further, that the delegate in making the decision to cancel the applicant’s visa relied on the school reports, rather than a certificate from the college.
8)That she was mistaken in her belief as to the choice available to her in responding to the s.20 notice. It is submitted that without proper legal advice the applicant chose to report to the first respondent's Department as a result of the wording of the s.20 notice which thereby led to the issuing of the notice of intention to cancel her visa pursuant to s.116 of the Act. The applicant claims to have been misled to the extent that she thought by reporting in such a fashion that the ministerial delegate would consider her individual circumstances before a decision was made as to whether to cancel her visa or not, and that she therefore lost the opportunity to present the case on its merits because of “exceptional circumstances” beyond her own control.
The applicant's further written submissions filed at the hearing traverse the same ground:
1)That the delegate’s decision and the Tribunal's decision were infected by jurisdictional error in that essentially there were “defects” relating to the s.20 notice. The applicant argues that there was “absence of a certificate by the education provider that the academic result is at least satisfactory”, and that the absence of any such certification before the delegate meant that the delegate was not empowered to proceed in the way that he did. The applicant further relies on a claim that the “principal’s comments” in relation to the applicant’s school report for semester one, and semesters two and three of 2003 do not amount to any statement as to an unsatisfactory academic result. The semester one report is reproduced at CB 21 to CB 25, and the semester two report is at CB 26 to CB 30. The semester one report is also provided to the Court as annexure “C” to the affidavit of the applicant of 7 November 2005. The applicant has not provided reports for semester two and three of 2003.
2)That had the applicant had proper legal advice not to report to the first respondent’s Department following the advice in the s.20 notice, the applicant would have been entitled to relief, in that subsequent action would not have occurred pursuant to s.137J of the Act (visa cancelled automatically), and that it would have been possible for the Minister to have accepted the applicant's explanation of “exceptional circumstances” had the matter proceeded pursuant to s.137L(1)(b) of the Act. The applicant argues that the applicant's “mistake” in taking the “option” as directed did not reflect her real intention, and is now seeking to “rectify” this situation. The submissions liken the situation to being able to amend a pleading, which as Ms. Chen submitted “is allowed in all Courts in New South Wales”.
3)That the amended version of Condition 8202, (amended as from 8 October 2005), provides for a situation that “gives the visa holder the same right as to the alleged breach of condition no matter what option he/she takes”. The applicant makes reference to Gurung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 772 where Tamberlin J., held that the amended version of Condition 8282 was designed to ensure that the condition was uniform in relation to all student visas and should be applied retrospectively. The latter point was also confirmed by Hill J., Zou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1126.
Subsequent to the hearing the respondent’s solicitors properly drew my attention to a decision of McInnis FM handed down after the hearing of this matter (Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1826 (“Zhou”)). The respondent’s solicitors submitted that the decision may have application to the proceedings before me and advised that an appeal had been lodged with the Federal Court and was expected to be heard in February or March 2006. They sought that I await the outcome of the Full Federal Court decision in Zhou before determining the outcome of the proceedings before me. Given that this involved the issue of the effect of any defect in the s.20 notice I agreed to this request, particularly as subsequently the Federal Court had agreed to the Minister's application for expedition in the hearing of the appeal. However, by way of submissions on 27 March 2006, the respondent’s solicitors referred to a recent decision of the Full Federal Court (constituted by Wilcox, Stone and Conti JJ.) handed down in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 (“Humayun”), which amongst other things dealt with the issue raised in the matter of Zhou. In light of this the respondents sought that I finalise my Judgement. I agreed with this submission and proceeded to make a decision.
Therefore the issues that arise in this case are:
1)Whether any invalidity of the s.20 notice under the ESOS Act, and any “misleading” aspect flowing from this notice, results in any consequent invalidity of the delegate’s decision made under s.116 of the Act.
2)Whether any such invalidity, including any “misleading” aspect, has any consequent invalidity of the Tribunal's subsequent affirmation of the decision under s.116 of the Act.
3)Whether the combined affect of s.116(3) and Regulation 2.43 and the wording of Condition 8202 resulted in a mandatory cancellation of the visa.
4)The affect of the applicant having taken her application for review to the Tribunal in circumstances where there may have been some defect in the delegate’s decision and whether this affected the jurisdiction of the Tribunal. The specific issue here refers to the applicant’s submission relating to being “forced” to take the one “option” that led to “automatic cancellation”.
5)The retrospective affect of the “new” version of Condition 8202 as amended on 8 October 2005.
In light of relevant authorities it is not necessary to decide whether the s.20 notice in the case before me was defective in that it contained an error, or was misleading to the applicant in its nature such that it was incapable of giving rise to an “automatic cancellation” under provisions of s.137J of the Act (see further below).
The applicant argues that in particular the “misleading nature” of what was contained in the s.20 notice resulted in the consequential invalidity of the delegate’s decision under s.116 of the Act. It is clear however that this point was decided against the applicant by a number of relevant Federal Court authorities and by the majority in the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 (“Yu”) per Allsop and Tamberlin JJ. at [37] – [40]:
“[37] It was submitted on behalf of the respondent that the scheme provided for under subdivision GB of the Migration Act was effectively a code for the use of powers to cancel a visa of a student under s 116 of the MigrationAct. Thus, it was said that failure to comply with condition 8202 could lead to visa cancellation only in a circumstance in which a student’s education provider has issued a notice under s 20 of the ESOS Act.
[38] Whilst there is a coherent body of regulation under subdivision GB of the Migration Act when examined in the light of the terms of the ESOS Act, I do not see any express or implied statutory limitation on the circumstances in which s 116 of the Migration Act can be invoked. Subdivision GB comes into operation if a notice is sent to a non-citizen under s 20. Section 116 of the Migration Act is not so limited.
[39] Nor do I see condition 8202 as limited by reference to certification expressly under s 20. Condition 8202 (3) is couched in terms of meeting the requirements of the condition by, amongst other ways, the visa holder achieving a result that is certified as satisfactory. This contemplates an act of certifying that is positive. Section 20 of the ESOS Act only contemplates the opposite: a notice of breach, that is certification of a result that is unsatisfactory.
[40] In my view, the ESOS Act does not limit the circumstances under which s 116 might operate where there has been a failure to comply with condition 8202; nor does it confine the operation of condition 8202. If a breach of condition 8202, or some part of it, was only intended to arise upon giving of a notice under s 20 of the ESOS Act that would have been simple enough to say.”
In Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 (“Tian”) the Court at [69] stated:
“However, because the Department made a further inquiry into the application of s 20 of the ESOS Act the appellant was not thereby relieved of her responsibility to comply with Condition 8202. She could only comply with Condition 8202 by producing a certificate of the kind contemplated in Condition 8202(3)(b).”
It is clear therefore that a delegate, and for that matter the Tribunal on review, has power pursuant to s.116(1) of the Act regardless of whether procedures under the ESOS Act have been followed validly, invalidly, or not at all.
Effect of s.116(3) of Act, Regulation 2.43 and Condition 8202
As to the effect of s.116(3) of the Act, Regulation 2.43 and Condition 8202, in Tian’s case the Court stated at [55], [56] and [66]:
“[55] A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
[56] On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.
…
[66] Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.”
In the case before me the applicant argues that the Minister’s delegate was not entitled to proceed to cancel the visa pursuant to s.116 of the Act because of alleged defects contained in the s.20 notice and in particular that the applicant was “misled” as to the options available to her, and that her mistaken belief in this regard was further compounded by the applicant not receiving proper legal advice. Even further, that there was nothing before the delegate to show that her academic performance in 2003 was not “at least satisfactory”. In fact, the applicant argues that the school semester reports show that there was some level of satisfaction.
I should just note that in one respect the applicant's submissions are not in accordance with the full facts before me. The applicant asserts that in making his decision the Minister’s delegate did not have regard to information before him that, notwithstanding the actual results in relation to semester one and semester two of 2003, the comments of the school principal were that the report was satisfactory. Further, while the applicant acknowledges that following the delegate’s decision the (St. Scholastica’s) college stated in a letter dated 2 June 2004 that the applicant’s academic progress was not considered to be satisfactory (CB 89), nonetheless this was provided after the delegate had made his decision.
However, there was no submission from the applicant in relation to what is reproduced at CB 16 and CB 17 (see also paragraph 7 above). This is a letter (transmitted by facsimile) and sent by the first respondent’s Department to the Catholic Education Commission (under whose auspices St. Scholastica's college operates) seeking information to be inserted in the format of the letter (as indicated) as to attendance, and relevantly, academic performance. The form was completed and returned by “Ray Phelps” on behalf of the Commission, who is described at CB 89 (in a letter on St. Scholastica's letterhead) as the “Director Overseas Student Program”. It shows clearly (particularly at CB 17) that the applicant's “academic progress” for each of terms 1, 2 and 3 of year 2003 was not satisfactory. This information was dated
13 November 2003. This was referred to in the delegate’s decision record under the heading of “Evidence” (see CB 34). The same part of the delegate’s decision record also shows:“At interview on 25/11/2003 the visa holder confirmed that her academic performance was unsatisfactory, due to her English sufficiency.”
In this regard, at least, the delegate clearly had before him advice (confirmed by the applicant) from the relevant education provider to ground the decision on the basis that the student did not maintain a satisfactory academic performance in terms 1, 2 and 3 of 2003. Far from the education provider providing a certificate that academic performance was “at least satisfactory”, the opposite appears to have occurred.
In any event, the Full Court authorities in Yu, Tian (and now Humayun – see below) provide that a Ministerial delegate has the power pursuant to s.116(1) of the Act to consider the cancellation of the visa regardless of whether procedures under the ESOS Act have been followed validly, invalidly or in any way. Therefore, even if the applicant was able to show that there was some defect in the s.20 notice, this would not serve to limit the circumstances in which s.116 of the Act can be invoked. Nor does any defect in the s.20 notice similarly affect the Tribunal's capacity on review to exercise the s.116 power. As Wilcox J., said in Humayun (with whom Conti J. agreed in full, and with whom Stone J. agreed on this issue):
“[30] Mr. Catterns [Counsel for the appellant in that matter] argued the s 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (No 1) [2005] FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any view about its correctness. Counsel for the Minister contended that, even if the s 20 notice was incapable of having the consequences set out in Subdivision GB of Division 3 of the Migration Act (ss 137J – 137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate’s decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248, 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58, 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218.
[31] Both the respondents’ contentions are correct. There is nothing in this point.”
As a consequence of s.116(3) of the Act and Regulation 2.43, and the wording of Condition 8202, the decision maker, whether the delegate or the Tribunal, is bound to exercise the power to cancel unless he or she has evidence from the education provider satisfying the terms of Condition 8202(3)(b) (as in Tian's case above).
Further, in the case relied on by the Tribunal itself, and pressed by Mr. Kennett before me, the Full Federal Court in Khan said:
“[4] The scheme of the legislation is, in effect, to make the certificate of the education provider decisive. In the present case, the Tribunal found that the relevant education provider, the University of Wollongong, had not certified that the academic result achieved by the appellant was satisfactory. On the contrary, the University had certified that his academic result was unsatisfactory.
[5] The appellant has given us reasons for the unsatisfactory nature of his result. It is not for us to determine the accuracy or sufficiency of what he has said. The fact is that the education provider has not provided a certificate that the appellant’s academic result is satisfactory.”
In the case before me the Tribunal noted the evidence before the delegate, and in particular, at paragraph 23 of its decision record (CB 97.5), and paragraph 44 (CB 101.2) the matters set out at CB 16 and CB 17 (as referred to above). The Tribunal noted the delegate’s consideration of the issues, and the basis upon which the delegate made his decision. The Tribunal's decision record reveals that the Tribunal fully considered the matters put forward by the applicant in the application for review lodged with the Tribunal on 4 December 2003 (CB 98.2), and the documentation that had been provided by the applicant in support (CB 98.8). The Tribunal's decision record further reveals that on 24 February 2004 the Tribunal wrote to the applicant, pursuant to s.359A of the Act, and invited her comments in writing, on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The Tribunal noted that, essentially, this information was that which was relied upon by the delegate in the decision to cancel the visa. The Tribunal also separately contacted the relevant college to obtain the relevant term dates of 2003 and a school report for term 3 as it related to the applicant (paragraph 32 at CB 99) (see copy of letter at CB 70). The response from “Ray Phelps” is reproduced at CB 73 and confirms that the relevant information had already been sent to the respondent’s Department.
The Tribunal’s decision record reveals that it noted evidence provided by the applicant at the hearing conducted with her, (no evidence from the applicant now disputes this). Further, it invited the applicant to obtain a certificate from her college that her results for the relevant periods were satisfactory (CB 100.3). Far from being able to do so the applicant submitted to the Tribunal a further letter from Mr. Phelps dated 2 June 2004 (copy at CB 89) that, as the Tribunal noted at paragraph 41 of its decision record (CB 100.6), stated that Ms. Li Li Lin’s attendance and [relevantly and importantly] her academic progress, were not considered to be satisfactory.
The Tribunal's “Findings and Reasons” (CB 100.7 to CB 101) reveal that the Tribunal turned its mind to the relevant issue and test. This was critically whether there was a certification by the education provider asserting that the applicant had demonstrated (at least) a satisfactory academic performance. The Tribunal correctly identified this certification as being decisive. Given that the review applicant’s education provider had not certified that her academic results were at least satisfactory for each term or semester of her course, as required by the relevant legislative scheme, the Tribunal found it did not have any discretion to set aside the visa cancellation where there had been a substantiated breach of Condition 8202. The Tribunal correctly reasoned that once non-compliance with the condition is established the Tribunal was bound by the operation of s.116(3) of the Act to affirm the visa cancellation, which accordingly it did.
There is clear authority that any defects (the existence of which was argued by the applicant) did not deprive the Tribunal of its jurisdiction to review the cancellation decision, and that the Tribunal is required to draw its own conclusion on the evidence before it as to whether non-compliance with Condition 8202 was established. This is what the Tribunal before me did. The evidence before the Tribunal clearly was that the applicant’s education provider for the relevant semesters of 2003 had not certified that the review applicant's academic results were at least satisfactory for each term or semester of her course. No attack has been made on the reasoning process followed by the Tribunal when reaching that conclusion. Even if the delegate’s reasoning was flawed, as Ms. Chen has attempted to argue, (and which in my view in any event has not been established) the Tribunal’s reasoning reveals no error.
I also, and further, note in particular the authority of Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 (“Zubair”) where the Court considered the Tribunal's review of a s.116 decision at [32]:
“[32] It should therefore be concluded that the Tribunal did have power to review the delegate’s decision. The Tribunal was, in consequence, able to "cure" the defect in the delegate’s decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116. Because of our conclusion it is unnecessary to enter upon the question whether a direct challenge could have been made to the delegate’s decision in judicial review proceedings in disregard of the procedure for Tribunal review: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.”
Further in Minister for Immigration and Multicultural and Indigenous Affairsv Ahmed [2005] FCAFC 58 (“Ahmed”) the Court said, in particular at [43], that:
“Thus, far from concluding that the decision in Zubair was clearly wrong, we have come to the same conclusion. That there may be different shades of reasoning involved, no doubt reflecting the different arguments advanced, is not to the point. Zubair should be followed.”
Furthermore, in Humayun, which upheld Zubair, Ahmed and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218, the Court stated at [30] that:
“… a legal deficiency in the delegate’s decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made.”
The applicant's argument now is also that if the applicant had had proper legal advice at the time of reporting to the first respondent’s Department, following receipt of the s.20 notice, then she would not have so attended, and would have chosen another course of action which would have enabled her to argue for exceptional circumstances as they related to the visa cancellation. I cannot accept that this would assist the applicant now. It remains that the applicant did adopt this course of action, and even if she did so as a result of complying with the s.20 notice, then as I have said above any such defect in this notice which would have caused her to so act does not, for all the reasons set out above, assist the applicant in showing error on the part of the Tribunal.
Ms. Chen's argument now, that the applicant should be allowed to “amend” her “mistaken option” and that this should be allowed because it is the same as “being able to amend a pleading” which is “allowed in all Courts in New South Wales”, does not assist the applicant for patently obvious reasons. The analogy between the two circumstances is clearly not made out. The capacity to amend pleadings before a Court is not the same as an applicant who asserts jurisdictional error on the part of an administrative decision maker (the Tribunal) being permitted to say that she now realises that she should not have taken a preliminary course of action (reporting to the respondent’s Department) and wants to be allowed to now choose (somehow) not to take that course of action. Amending how a case is to be presented to a Court (amending a pleading) is clearly not the same as being permitted to say that something that did happen, did not happen, or more pertinently, should not have happened, and therefore can be “waved” away. Ms. Chen’s submission in this regard is not made out.
In relation to the issue of the retrospective affect of the “new version” of Condition 8202 as amended on 8 October 2005, the respondent submitted that the two cases (as referred to by the applicant and as at paragraph 22.3 above) both involved analysis of a particular set of transitional provisions governing visas to which Condition 8202 applies. The respondent asserted that the amendments that came into effect on 8 October 2005 amended Regulation 2.43(2)(b) so as to insert consideration of “exceptional circumstances” to be taken into account. That is, at the stage of considering cancellation, the Minister is also to consider whether the breach of Condition 8202 is due to exceptional circumstances. In these circumstances, the regulation provides that the cancellation provisions apply to visas in force at the time of commencement. This is not the situation in the case before me as the transitional provision does not extend to a situation where the visa was not in force at the time of commencement.
In relation therefore to the relevant issues in the case before me:
1)Any defect in the s.20 notice would not serve to deprive the delegate from jurisdiction to consider cancellation pursuant to s.116 of the Act.
2)Any error in the delegate’s reasoning, (which has not been established) would not deprive the Tribunal of jurisdiction to review the delegate’s decision.
3)The Tribunal fully considered the delegate’s actions, the applicant's submissions and documentation and addressed the relevant test being, whether in relation to the key issue, the relevant education provider had certified that the applicant's [Ms. Lin’s] academic results were at least satisfactory for each term or semester of her course. It was clearly open to the Tribunal on the material before it to find that the education provider had not so certified, and in those circumstances clearly the Tribunal had no other option than to affirm the visa cancellation as there had clearly been a substantiated breach of Condition 8202.
I can see no error in what the Tribunal has done, let alone jurisdictional error, and the application is therefore dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 28 April 2006
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