Li v Minister for Immigration

Case •

[2007] FMCA 952

•

22 June 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 952
MIGRATION – Student visa – Condition 8202 – Regulation 1.03 of Migration Regulations 1994 – Migration Review Tribunal – calculation of contact hours – whether jurisdictional error in failing to take into account relevant matter namely examination hours attended.
Education Services for Overseas Students Act 2000, s.20
Migration Act 1958, ss.116, 359A
Applicant M190/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 215 ALR 719
Re Refugee Review Tribunal; Ex Parte Aala (2000) 205 CLR 82
Wang v Minister for Immigration [2006] FMCA 1034
Yakubu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 57
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Htun v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] 144 FCR 1
Attorney General (NSW) v Quin (1990) 170 CLR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Ahmed v Minister for Immigration [2004] FMCA 127
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58
Applicant: SI JIA LI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File number: MLG 26 of 2006
Judgment of: McInnis FM
Hearing date: 24 November 2006
Delivered at: Melbourne
Delivered on: 22 June 2007

REPRESENTATION

Counsel for the Applicant: Mr A. Krohn
Solicitors for the Applicant: Chua Tan & Associates
Counsel for the First Respondent: Ms E. Latif
Solicitors for the First Respondent: Clayton Utz

ORDERS

  1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 1 December 2005.

  2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

  3. The First Respondent shall pay the Applicant’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 26 of 2006

SI JIA LI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The Applicant relies upon an Amended Application filed 20 November 2006 seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 1 December 2005.

  2. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to cancel the student (temporary) (class TU) visa (the visa) held by the Applicant.

  3. The Applicant is a 25 year old citizen of the People’s Republic of China.  He entered Australia on 26 September 2003 on a temporary student visa.  He was granted further visas of a similar kind.

  4. The visa had conditions attached, which include Condition 8202 which relevantly provides:

    “8202(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.”

  5. The significant requirement in the present case arises from Condition 8202(3)(a) which requires the Minister to be satisfied that the Applicant has attended at least 80% of the contact hours scheduled for his course.

  6. On 2 February 2004 the Applicant enrolled in a Bachelor of Business Studies at Charles Sturt University.  On 21 July 2004 the Applicant enrolled in an Advanced Diploma of Accounting at Holmesglen Institute of TAFE (Holmesglen).

  7. It appears however, that the Applicant was only attending classes at Holmesglen.  The matter was explained to the Tribunal and appears in the following paragraph from the Tribunal decision:

    “39.The review applicant told the Tribunal that during semester 1 of 2004 he was enrolled in an Advanced Diploma of Accounting at Holmesglen and that semester 1 of 2004 ran from 2 February 2004 to 30 June 2004. The Tribunal asked the review applicant if he had enrolled in a Bachelor of Business Studies at Charles Sturt University. He responded that he had not enrolled in this course. The Tribunal observed that the confirmation of enrolment dated 21 May 2004 from Holmesglen, which his representative had provided to the Tribunal in response to the section 359A letter from the Tribunal, specifically stated that the review applicant was enrolled in a Bachelor of Business at Charles Sturt University from July 2004. The review applicant examined this document at the hearing and confirmed that the contents were correct. He explained that in his earlier response to the Tribunal he had thought the Tribunal was referring to his first year of study. The review applicant informed the Tribunal that the Advanced Diploma of Accounting course at Holmesglen was a pre-requisite to the commencement of the Bachelor of Business Studies at Charles Sturt University. The Tribunal asked the review applicant if Holmesglen delivered the Advanced Diploma of Accounting course on behalf of Charles Sturt University. The review applicant responded that his representative had told him that these two education providers were not meant to be linked and that to his knowledge there is no direct connection between the two institutions.”

    (Court Book p.174)

  8. It is common ground that on 23 July 2004 Charles Sturt University issued a notice of non-compliance under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (the s.20 notice) (Court Book pp.93-94). The s.20 notice provides under the heading “Particulars of Breach” the following:

    “Your attendance during semester 1 2004 was 43%.  You were counselled at the International Centre regarding non-attendance.  Also, possible breach of Condition 8202.  You appear to have failed all modules during S1/04.  The academic progress review process is underway.  You met with us on 23/4/04 to sign an attendance contract.  You advised you had had financial problems due to a car accident in your friend’s car but that you had now paid your debt and would attend 100% to recover your attendance.  You have failed to even reach 80% attendance in each fortnight since that meeting.  You’ve now advised that you have some medical certificates and that you have no reason for your absences, just that you’ve lost interest.  You should now make an appointment to meet with a DIMIA officer to discuss your situation so that they may make a decision regarding your visa.

    Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time.  The day count begins on the first day after the date of this notice and ends on the 28th day thereafter.

    You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office:”

    (Court Book p.93)

  9. On 19 August 2004 the Applicant attended the office of the First Respondent. When he attended the Applicant was provided with a notice to consider cancelling the visa pursuant to s.116 of the Migration Act 1958 (the Migration Act) for a possible breach of Condition 8202(3)(a). In the s.116 notice the following appears as “possible grounds for cancellation”:

    “Charles Sturt University

    reported you to DIMIA on

    23/7/04 for unsatisfactory

    attendance at classes

    in semester 1 2004 (Feb 04 -

    June 04)

    Your attendance was 43%

    Possible breach of

    8202(3)(a) condition -

    refer attached”

  10. Attached to the s.116 notice are copies of the relevant section and regulations, including Condition 8202. The Applicant was invited to provide reasons why his visa should not be cancelled at an interview to be held at the First Respondent’s Department office on 6 September 2004.

  11. According to the Tribunal’s decision the Applicant attended the scheduled interview on 6 September 2004 where he stated (in part) that he was “to do the Bachelor of Business course but was not ready and he is currently studying an Advanced Diploma of Accounting at Holmesglen TAFE”.  The Tribunal’s decision records the “delegates notes of the interview also state ‘[the] client concedes Holmesglen’s report to DIMIA as to unsatisfactory attendance relates to semester 1, 2004 for the course, Advanced Diploma of Accounting…” (Court Book p.168).

  12. The Tribunal decision records that on 8 September and 15 September 2004 Holmesglen sent to the Department attendance records relating to the Applicant stating that he had attended 143 contact hours out of 336 hours (43%).

  13. I have not been able to locate the document dated 8 September 2004 in the Court Book.

  14. The Tribunal then relevantly states,

    16.Further documents were also sent to the Department from Holmesglen.  Relevantly, a Confirmation of Enrolment for the Advanced Diploma of Business (Accounting) states that the review applicant was enrolled in six modules and had 360 (nominal) contact hours between 9 February and 18 June 2004.  A Confirmation of Enrolment for a Language Support Tutorial Program (between 2 February 2004 and 10 December 2004) shows that the review applicant had 68 (nominal) contact hours.  An appointment slip dated 31 July 2004 from a Holmesglen staff member states that the review applicant was told to come on Saturday for ‘RA class’ but that the staff member advised the review applicant that he did not have to come.  The staff member’s note also states that the review applicant requests confirmation [presumably by another staff member] of this.

    17.On 22 September 2004 the review applicant attended a second interview with the Departmental delegate.  The review applicant stated, in part, that he did not believe the attendance figure provided by Holmesglen was correct.  His representative stated (on his behalf) that the review applicant attended 234 hours, was excused from 75 hours (equalling 309 hours), and was not excused from 37 hours of classes.  This equalled 346 hours in total and an attendance rate of 90%.  The representative stated that the ‘excused’ contact hours were because of the review applicant’s car accident.  The representative also submitted that the review applicant’s name was omitted from the tutorial attendance lists for three subjects (Economics, Management Accounting and Financial Management) and the review applicant’s attendance at these classes was not recorded.  Also, the review applicant did not attend ‘Research Applications – Language and Study Skills’ because he was told not to, nut regardless of this he was marked absent for the duration of semester 1 of 2004.”

    (Court Book pp.168-169)

  15. On 1 November 2004 the Applicant applied to the Tribunal for review of the delegate’s decision referred to by the Tribunal whereby the delegate had cancelled the Applicant’s visa on 27 October 2004.

  16. It is noted that pursuant to s.359A of the Migration Act the Tribunal by letter dated 10 March 2005 sought information concerning Holmesglen’s mode of calculating the Applicant’s attendance. That letter was forwarded to a compliance officer of Holmesglen. In response to that request the Tribunal received a letter dated 7 April 2005 from Holmesglen (Court Book p.55). Holmesglen in its letter stated that the dates for Semester 1 of 2004 for the Applicant’s study at Holmesglen were 02 February until 18 June 2004 and that he was required to attend “336 contact hours”. The author also stated that “the total number of hours for examinations and testing are factored into the overall number of contact hours the student is required to attend classes”. Reference was also made to the delivered hours in Semester 1 of 2004 and the author states, “the total number of delivered hours include all study sessions, tutorials and supervised study sessions that Mr Li was required to attend.” A table was provided in the letter resulting in the conclusion that the student’s percentage attendance was “43%”.

  17. It is noted that attached to the Holmesglen letter of 7 April 2005 was a document setting out the delivered hours in Semester 1 of 2004 together with a further copy of what is described as the “original attendance document” purporting to support the calculations leading to the conclusion of a total of “43% attendance”.

  18. In a letter dated 14 April 2005 (Court Book p.110) the Tribunal invited the Applicant’s lawyers to comment on information pursuant to s.359A of the Migration Act. The Tribunal provided the Applicant with a copy of the response it had received from Holmesglen and invited comments. The Applicant was given until 3 May 2005 to respond. An extension was sought and granted and a response then provided by the Applicant by way of written submissions dated 16 May 2005 (Court Book p.117-139). The written submissions were very detailed. Essentially the Applicant claimed to have attended 80% of the contact hours for the Holmesglen course.

The applicant’s claim

  1. As indicated the Applicant has argued that he attended at least 80% of the contact hours.  The detailed written submissions clearly challenge Holmesglen’s records.  The Tribunal set out the details of the challenge in its decision.  An accurate summary of the challenges appears in the Respondent’s contentions as follows:

    “aHolmesglen’s attendance calculations were based on semester 1 of 2004 commencing on 2 February 2004 and concluding on 30 June 2004.  In fact, classes did not commence until 9 February 2004 and ceased on 18 June 2004: CB 119‑120.

    bHolmesglen did not keep attendance records for the period 2‑6 February and 21‑30 June, this should not adversely affect the applicant: CB 120.

    cHolmesglen’s attendance calculations were inconsistent with the applicant’s timetable: CB 120‑121.

    dThe applicant was scheduled to attend 336.5 hours and not the 360 hours that appeared on his confirmation of enrolment: CB 120.

    eThe applicant had been exempted from attending certain classes and had medical certificates explaining his absence from others, this should be factored into the calculation of attendance.  The applicant explained that his grandfather died on 10 March 2004, the applicant became extremely upset and wished to return to China for the funeral.  He made enquiries about deferring his studies, but was unable to do so because he could not provide a death certificate in support of his application: CB 123‑125. 

    fThe applicant made specific claims concerning attendance for each of the subjects he was enrolled in.  This included a claim that he had been incorrectly marked as absent in one subject because he did not appear on the class list, a problem which was later rectified.  Further, he claimed he was incorrectly marked absent for classes he was late to attend due to a timetable clash with another subject.  Further, there were inconsistencies between Holmesglen’s attendance records and his timetable.  Refer CB 122‑125.  The applicant’s representative later amended the calculation of the applicant’s putative attendance: CB 153‑159.”

  2. It is noted that the Applicant also filed additional material in support of his claim that his grandfather had died and the impact this had upon him (Court Book pp.135-138).  Evidence was received by the Tribunal from three witnesses who had attended courses at Holmesglen.  That evidence is again accurately summarised in the First Respondent’s contentions as follows:-

    “aMr Wang gave evidence corroborating the applicant’s claim that his grandfather had died and this had left him very upset and that Holmesglen did not have very good attendance records.  This notwithstanding, Mr Wang’s evidence was that he had never been recorded as having breached condition 8202 of his student visa: CB 177, par 50.

    bMr Li gave evidence corroborating the applicant’s claims concerning his grandfather’s death and its impact on him and that Holmesglen “was not very good at recording attendance”.  Mr Li was informed by Holmesglen that his attendance was recorded at being 56% of his scheduled contact hours, this was never reported to the department and Mr Li transferred to another education provider: CB 177, par 51. 

    cMr Yang gave evidence corroborating the applicant’s claim to have attended at least 80% of scheduled contact hours, that the applicant’s grandfather had died and that this had affected him.  Mr Yang’s evidence was that he had not experienced any problems at Holmesglen concerning his attendance records.”

The amended application - grounds

  1. The Applicant relies upon an Amended Application filed 20 November 2006.

  2. There are two grounds and each of the grounds raise the question of whether the Tribunal in the process of calculating the Applicant’s attendance has made an error of a kind which would constitute jurisdictional error.

  3. For convenience it is appropriate to set out the grounds relied upon in the Amended Application which I have re-numbered as follows:

    “Ground 1

    The Migration Review Tribunal made an error at law amounting to a jurisdictional error ion failing to find that the applicant complied with condition 8202 of the student visa held by the applicant.

PARTICULARS

The Tribunal said:

‘Consequently, even when the submissions that have been made by the review applicant’s representative are accepted by the Tribunal and taken into account, whilst the review applicant’s percentage of contact hours attended increases from 40.7`% to 76.7%, this is still below the required 80%’ (CB 1904.)

but the Tribunal’s calculations, in breach of Regulation 1.03 and condition 8202, did not take account of the applicant’s attendance at scheduled examinations in semester 1 of 2004, although the Tribunal accepted that there were 14 hours of examinations scheduled in the semester (CB 188-190), and although there was no finding by the Tribunal that the applicant had not attended his examinations, and the Tribunal refers to no evidence to this effect.

Had the Tribunal taken account of these 14 hours of examinations in assessing the applicant’s attendance ‘when the submissions that have been made by the review applicant’s representative are accepted by the Tribunal and taken into account’, the calculation would have been (260 class hours attended +14 examination hours = 274 contact hours) divided by 339 total hours scheduled, = 80.826% and thus the applicant would not have been in breach of condition 8202.

Ground 2

The decision was affected by jurisdictional error in that the Tribunal failed to have regard to a relevant consideration.

PARTICULARS

The Tribunal said:

‘Consequently, even when the submissions that have been made by the review applicant’s representative are accepted by the Tribunal and taken into account, whilst the review applicant’s percentage of contact hours attended increases from 40.71% to 76.7%, this is still below the required 80%’ (CB 190.4)

but the Tribunal’s calculations, in breach of Regulation 1.03 and condition 8202, did not take account of the applicant’s attendance at scheduled examinations in semester 1 of 2004, although the Tribunal accepted that there were 14 hours of examinations scheduled in the semester (CB 188-190), and although there was no finding by the Tribunal that the applicant had not attended his examinations, and the Tribunal refers to no evidence to this effect.

Had the Tribunal taken account of the applicant’s attendance at these 14 hours of examinations in assessing the applicant’s attendance ‘when the submissions that have been made by the review applicant’s representative are accepted by the Tribunal and taken into account’, the calculation would have been (260 class hours attended +14 examination hours = 274 contact hours) divided by 339 total hours scheduled, = 80.26%, and thus the applicant would not have been in breach of condition 8202.”

The Tribunal decision

  1. In its decision the Tribunal referred to a number of authorities.  It then analysed the submissions of the Applicant and the information provided by Holmesglen.  The Tribunal was satisfied that the Applicant had been provided with sufficient information to adequately understand and respond to the notice of intention to consider cancellation.  When considering whether the Applicant complied with Condition 8202 in relation to his attendance the Tribunal decided the Applicant had attended 40.71% contact hours for Semester 1 of 2004.  In reaching its decision it considered the submissions of the Applicant and relevantly stated,

    “86.The Tribunal has taken into account the various submissions that have been made on behalf of the review applicant.  Before turning to the specific submissions that have been made in relation to the different subjects in which the review applicant was enrolled, the Tribunal observes that there are a number of discrepancies and/or errors contained in the representative’s analysis of the review applicant’s class attendance during semester 1 of 2004.

    87.Firstly, the review applicant gave evidence at the Tribunal hearing that classes commenced on 9 February 2004 and ceased on 18 June 2004.  The class rolls for attendance in each of the subjects in which the review applicant was enrolled indicates this to be the case.  However, the review applicant’s representative, in calculating the review applicant’s attendance, has included the review applicant as having attended classes in each of his enrolled subjects for the week 2-6 February 2004, during which time in fact no classes were held in any of the units in which the review applicant was enrolled.  This amounts to approximately 23 hours.  Secondly, the representative has included the review applicant as having attended classes after the date on which the delivery of classes for each individual unit of study ceased to be delivered.  This amounts to approximately 36 hours.  As a result the representative’s final calculation in relation to the review applicant’s attendance rate includes 59 contact hours that in fact were neither scheduled nor delivered by Holmesglen during semester 1 of 2004.  Thirdly, the representative claims that the review applicant was present at his Language & Study Skills class on 10 and 24 March 2004 when the review applicant was clearly marked as being absent from class on these dates.  Fourthly, the representative submitted that the review applicant was absent from his Financial Management Principles class on 2 and 23 April 2004 and that his absences should be excused when, in fact, the review applicant was marked as present on the class rolls on those dates.  Fifthly, the representative has submitted that in relation to the absences marked on the class roll for Internal Control Principles the review applicant missed two out of the three hours scheduled.  Although the absence on 22 March 2004 was said to be exempt on the basis of a medical certificate for this date, there is little in the most recent submission provided to the Tribunal to explain why the Tribunal should accept that the review applicant attended one out of the three contact hours scheduled for this particular unit when the review applicant was marked as absent on the class roll.  Given that the representative submitted on 19 October 2005 that the review applicant’s attendance rate was 80.1%, the Tribunal observes that there is a very fine margin for error in this case.”

    (Court Book pp.184-185)

  2. I otherwise accept the summary of the Tribunal’s other critical findings set out in the First Respondent’s contentions as follows:-

    “athe applicant’s claim that Holmesglen had failed to enrol him in his classes for certain subjects were somewhat exaggerated.  The Tribunal accordingly gave these claims less weight in its assessment of the applicant’s attendance;

    bthe Tribunal, accepted, with some hesitation, that the applicant may have been misled into not attending certain classes;

    cthe applicant’s claim to have been marked absent on occasions when he was late (due to a timetable clash) could not be excluded;

    dthe applicant’s claim to have missed certain classes due to last minute timetable changes by Holmesglen should be afforded “limited” weight.”

  3. It is noteworthy however that after making its finding that the Applicant attended 40.71% of contact hours scheduled for Semester 1 of 2004 the Tribunal then relevantly goes on to state,

    “96.The Tribunal has also calculated the results taking into account all the submissions that have been made by the review applicant’s representative to give the review applicant the benefit of the doubt.  In doing so, for the reasons previously set out above, the Tribunal has excluded those dates at the beginning of the semester when classes were not held and those dates after classes ceased to be delivered in each of the subjects in which the review applicant was enrolled during semester 1 of 2004.  The Tribunal observes that the submission by the representative in relation to those dates where the review applicant was marked absent from class in Internal Control Principles he attended one out of the three hours scheduled further complicates matters. …”

    (Court Book p.189)

  4. The Tribunal then produced a table which it argued reflects the position arrived at by the submissions made on behalf of the Applicant.  It relevantly then states:-

    “97.Consequently, even when the submissions that have been made by the review applicant’s representative are accepted by the Tribunal and taken into account, whilst the review applicant’s percentage of contact hours attended increases from 40.71% to 76.7%, this is still below the required 80%.

    98.For the above reasons, the Tribunal is satisfied that the review applicant did not attend for at least 80% of the contract hours scheduled for semester 1 of 2004.  Consequently, the Tribunal finds that the review applicant breached subclause 8202(3)(a) of his subclass 573 visa.”

    (Court Book p.190)

Applicant’s submissions

  1. Reference was made to Regulation 1.03 and Regulation 2.43 to be read in conjunction with Condition 8202 set out earlier in this judgment.

  2. Regulation 1.03 provides:-

    “’contact hours’, for a course for a period, means the total number of hours in the period for which students enrolled in the course are scheduled to attend classes for teaching purposes, course-related information sessions, supervised study sessions and examinations.”

  3. Regulation 2.43 provides:-

    “(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.”

  4. The Applicant submitted the Tribunal should give the Applicant the benefit of the doubt in making its calculations.  It was conceded the Tribunal made a correct reference to Regulation 1.03 when defining “contact hours”.  It failed however to take into account in its calculations of the Applicant’s attendance rate 14 hours for examinations.

  5. The Applicant specifically submitted as follows:-

    “28.In the Tribunal’s first set of calculations, the correct result would be (138 class hours +14 examination hours = 152 total hours attended) divided by 339 hours scheduled = 44.838%, rather than 138 divided by 339 = 40.708% as calculated by the Tribunal.  This difference may not have been critical, but in the Tribunal’s second calculations, done in order ‘to give the review applicant the benefit of the doubt’ the difference was critical indeed.  Taking the 14 hours of examination into account, the calculation becomes (260 class hours attended +14 examination hours = 274 contact hours) divided by 339 total hours scheduled, = 80.826%.

    29.The matter of the applicant’s hours of attendance at examinations is a relevant consideration, made relevant by Regulation 1.03.  Failure to take account of a relevant consideration is a jurisdictional error. (Yusuf)”

  6. Reference was made during the course of submissions to Regulation 1.03 set out earlier in this judgment with particular emphasis placed upon the definition of ‘contact hours’ to include ‘and examinations’.  It was noted the Tribunal was required to have regard to that regulation which makes examinations relevant to the Tribunal’s decision.  It was noted the Tribunal undertook two calculations with the first resulting in the finding that the Applicant attended 40.71% of contact hours and with the second resulting in a finding of 76.7%.

  7. The table relied upon by the Tribunal (Court Book pp.189-190) lists under the heading “Duration Semester Exam (hours)” a total of 14 hours.  In arriving at the total contact hours it is noted the Tribunal in the table when dealing with each subject, for example “Internal Control Principles” records 42 scheduled hours in classes and adds to that 2 exam hours leading to a total number of contact hours for that subject of 44 for Semester 1 of 2004.  The same process appears to be followed for all other subjects where the exam hours are added to the scheduled hours in class.

  8. It was further noted in [96] of the Tribunal’s decision set out earlier in this judgment the Tribunal excluded “those dates at the beginning of the semester when classes were not held and those dates after classes ceased to be delivered in each of the subjects in which the review applicant was enrolled during semester 1 of 2004”.  This the Tribunal stated was to give the Applicant “the benefit of the doubt”.

  9. It was noted that there was some evidence that exam time was to be “subsumed into the total hours of classes”.  Reference was made to the letter from Holmesglen dated 7 April 2005 referred to earlier in this judgment where as indicated earlier the Tribunal made a statement that, “the total number of hours for examinations and testing are factored into the overall number of contact hours the student is required to attend classes”.  It appeared to be common ground during the submissions that there was no documentation to support that assertion and in any event on the analysis by the Tribunal it would appear the Tribunal did not accept the examination hours were subsumed into the number of contact hours but rather added to them in the manner described earlier.

  10. The Tribunal it was noted from the paragraphs set out above reveals the conflict between the evidence from the different material provided by Holmesglen compared to material provided by the Applicant.

  11. In any event it was submitted the Tribunal made two calculations both of which accepted there were 14 hours of examinations which the Applicant attended.  It was argued that what it failed to do, however, is to include the 14 hours in its calculations of the totals.  Reference was made to the table produced by the Tribunal (Court Book p.190) where the “total scheduled contact hours attended is stated to be “260”.  The “total contact hours scheduled” is noted to be “339”.  It was argued that the “total scheduled contact hours attended is arrived at by totalling those figures inserted by the Tribunal under the heading in the table “no of hours attended during semester” resulting in the total of 260 hours.  The total of 14 hours of exams attended should be added to then make a total of 274 hours.  Two hundred and seventy four hours as a percentage of 339 hours it was submitted would therefore get the Applicant “over the brink” as that would be 80.82595%.

  12. It was submitted that that was a critical matter and the failure in the course of the calculations to take into account the total of the examination hours being a total the Tribunal had already allowed for constitutes jurisdictional error.  Regulation 1.03 requires examinations to be part of the scheduled contact hours and the Tribunal is therefore obliged to take that into account when undertaking its calculations.  The Tribunal by not adding to the figure 260 the total examination hours of 14 has therefore omitted something which it was submitted is made mandatory by Regulation 1.03.

  13. It was submitted that this goes beyond a mere error of fact.

  14. Reference was made to the decision of Finkelstein J in Applicant M190/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 (M190) where the Court relevantly states:-

    “13 In light of these principles, if an important fact is, without reason, overlooked by the tribunal it is guilty of failing to take a relevant consideration into account. Perhaps it may also be said that the tribunal did not give proper general and realistic consideration to the merits of the case before it (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291) or that there was an improper exercise of power (Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 363, 373). Nothing said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 requires a different conclusion.”

  15. The Court was referred to [83] of the Tribunal decision where the Tribunal states –

    “83.  It has been alleged that the total number of scheduled contact hours calculated by Holmesglen in respect of the review applicant for semester 1 of 2004 is incorrect.  The Tribunal observes that in February 2004 Holmesglen stated that there were 360 nominal hours for semester 1 of 2004 in the review applicant’s course, but in April 2005 Holmesglen stated that the review applicant was required to attend 336 contact hours, including all study sessions, tutorials, examinations and supervised study sessions.  Secondly, the Tribunal observes that according to the class timetable, in relation to the Financial Management Principles unit, from weeks 7-12 there were no lectures held, but one three-hour tutorial held each week on a Tuesday.  The timetable states that then in weeks 13-14 and 17-25 there was a one hour lecture on Tuesday mornings and a two hour tutorial on Friday afternoons.  The class roll sets out the class time for this unit as ‘9-12’ on a Tuesday, but there is a line through this and the class time is then noted as ‘1-3’ on a Friday.  In addition, the class roll indicates student attendance entries for weeks 1-17 rather than for weeks 7-12, 13-14 and 17-25 as set out in the class timetable.  Following a close examination of the timetable the Tribunal finds that there were three hours of class time scheduled for this unit from weeks 1-17 of semester 1 of 2004.  The Tribunal observes that the review applicant also gave evidence that there were three hours per week in this subject.  As a result, the Tribunal notes that in determining the total number of contact hours scheduled for the semester it is not merely a question of totalling the number of hours per unit the review applicant was enrolled per week by and then multiplying this by the number of weeks in the semester.”

  16. It was argued in the present case that the process involves an implicit reference in Regulation 1.03 whereas in the case of M190 the Court was dealing with a matter where the Tribunal raised a hypothesis which made the particular fact relevant.

  17. Reference was made to the second calculation and it was submitted that in fact the Tribunal embarked upon that process for the reasons it gave in [96] of its decision set out earlier in this judgment not to suggest that the application was “doomed to fail anyway” but rather as explicitly stated by the Tribunal “to give the review applicant the benefit of the doubt.”

  18. The Tribunal’s conclusion in [97] set out earlier that the Applicant is still below the “required 80%” was submitted to be important as it was an integral matter and not simply incidental to the Tribunal’s decision making.

  19. It was also noted that in [98] of the Tribunal’s decision also set out earlier it relevantly states “for the above reasons”.  Counsel agreed that that would refer to the conclusions drawn by the Tribunal in [96] and [97] where the options were considered.  It was submitted that this is part of the Tribunal’s reasoning.

First respondent’s submissions

  1. It was submitted by the First Respondent that the significant finding of the Tribunal was the finding that the Applicant attended 40.71% of the contact hours scheduled for semester 1 of 2004.  This was based upon a consideration of evidence, submissions and other material before it and that finding it was submitted is not sought to be challenged.

  2. It was argued that even if the error claimed was made relief should be denied in the exercise of the Court’s discretion.

  3. Reference was made to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 215 ALR 719 at [80] where the Court relevantly states,

    “80 The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary.59 Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.60 Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”

  4. The First Respondent also referred the Court to Re Refugee Review Tribunal; Ex Parte Aala (2000) 205 CLR 82 at 109 [58] where the Court states:-

    “58 It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, ``[t]he court does not act in vain'’. For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse.114 Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor.115 Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission,116 where the remedy refused was certiorari, indicates that prohibition will not lie.”

  5. The First Repondent also referred to a decision of this Court in Wang v Minister for Immigration [2006] FMCA 1034 where the Court states:-

    “40.I am satisfied applying the authority of McHugh J in SAAP that there is a discretion to be exercised by the court when considering the issuing of writs under s.75(v) of the Constitution, and s.39B of the Judiciary Act. In the exercise of that discretion, which clearly must be exercised judicially, I am satisfied that in this instance it is clear that as a result of the apparent poor academic performance of the Applicant that the circumstances clearly dictate a mandatory outcome whereby the poor academic performance leads to a breach of condition 8202 in cancellation of the student visa.”

  1. It was further argued that in the present case the second calculation undertaken by the Tribunal is irrelevant for the purpose of judicial review.

  2. It was submitted that unlike the Refugee ReviewTribunal, the Migration Review Tribunal is not required to apply what sometimes might be described as the “What if I am wong test?”.  It was submitted that the second finding was not a finding the Tribunal was required to make in the exercise of its statutory function and that accordingly any error concerning that decision could not be regarded as jurisidctional.

  3. Reference was made to Yakubu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 57 at [20] where the Court relevantly stated,

    “20 In relation to Mr Yakubu's claims of his detention and subsequent escape, the Tribunal said (at 13 - 14):

    ‘Applicant's account of detention and escape: The Tribunal is unable to accept this account as credible. According to the Applicant, this was a relatively recent event and yet he was unable to give consistent and sensible answers to very basic questions. He changed his mind about the place from which he was taken. He gave inconsistent answers on the people whom he alleges were taken with him. His inability to know where he was held is implausible as his own evidence was that it was a mere thirty minutes from his own village and yet he did not know what place it was. The Applicant has stated that he lived in Monrovia from 1988 to 1994, but he gave his village address from 1971 to 1996 as being that of Tiehupo. While this is acceptable in that having a village base and a city address would be normal, the Tribunal finds it unconvincing that he would not know all those places with[in] half to an hour's distance from the place where he lived for most of his life. He must have travelled often from Monrovia to his village; it simply is implausible that he would not know all the roads leading out from his village.

    The Tribunal also shares the positive state of disbelief of the Minister's delegate that he should have been questioned about the whereabouts of Roosevelt Johnson at a time when it was well-known the latter was in Accra, and even making broadcasts on Ghana radio. It would be perverse indeed to ask him questions to which the answer was already known.

    The Tribunal found his description of his escape to be entirely implausible. It gained the impression at his hearing that he was making up details as he went along. The account of having a door left open through which only he went, the lack of any guards, the ability for two men to find him in the dark, and his failure to discuss with them the location of his prison and how they had come to find him undermine the veracity of the account. The Tribunal is unable to accept that somehow his uncle bribed the guards sufficiently to let him, and only him, escape. The Tribunal has compared his halting account with information submitted by his adviser on the escapes from prisons and military camps in Liberia. The contrast is that these were camps from which prisoners (plural) escaped, apparently when the prisons were abandoned by their guards. Such information does not overcome the Applicant's inability to give a consistent and credible account. The Applicant's claim to have studied at a university does not sit well with his ignorance of the most serious incident he allegedly would have experienced in his life.’”

  4. In the present case it was submitted the structure of the Tribunal’s reasons are critical to the assessment of whether the decision is tainted by jurisdictional error.  The Tribunal when making a finding that is dispositive of the review then any further finding is merely additional and does not form a basis for the prerogative relief sought in the application (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [54]).

  5. It was argued that in determining whether any jurisdictional error has occurred it is appropriate for the Court to determine whether the Tribunal had failed to consider an essential integer of the claim (see Htun v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] 144 FCR 1). It was argued the Court is required to identify the Applicant’s claim and the critical elements of that claim and then determine whether the Tribunal properly addressed the claim. The claim in this instance was whether the Applicant attended 80% of the scheduled contact hours for semester 1 of 2004 and whether accordingly the visa should not therefore be cancelled on the basis of a failure to comply with the condition. In considering the critical elements of the claim which the Tribunal is bound to take into account the Court is required to consider factors or integers which the Tribunal has failed to take into account and not merely “pieces of evidence”. The Tribunal in the present case had calculated the contact hours and the actual attendance but these it was submitted amounted to “pieces of evidence in support of the claim”. It was argued therefore that any mistake or error concerning examination of that material was not amenable to judicial review (see Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36).

  6. It was argued the Tribunal had addressed the claim and that the Court should not draw an inference too readily that it had failed to do so (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]).

  7. The Tribunal in the present case calculated contact hours according to material provided by the Applicant and having regard to the submissions made concerning attendance and in fact added the examination attendance.  It was argued that any inference the Tribunal did not factor examination attendance into calculations would be inappropriate given the Tribunal’s express findings as to the contact hours which “factored examination hours into the equation” and its computations which expressly included a column devoted to examinations together with the manner in which attendance calculations were advanced by the Applicant.  It was noted the examination hours were included in general attendance.

  8. In the alternative, it was argued that by making the second finding the Tribunal was not required to undertake that finding given it had made the first finding which is dispositive.  Any error, according to the First Respondent’s submissions, arising out of the second finding would not therefore amount to jurisdictional error.  The attendance at scheduled examinations in addition was evidence and not an integer or element going to jurisdiction.  Any evidence concerning that matter was a mistake of fact and would not provide a basis for the relief sought in the application.

  9. In the written submissions the First Respondent noted that the Tribunal had referred to a decision of the Federal Magistrates Court in Ahmed v Minister for Immigration [2004] FMCA 127. It was noted that the passage referred to by the Tribunal was reversed by a Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58. It was submitted however that there was no jurisdictional error arising because ultimately the Tribunal identified and applied the correct legal principle. It did that in the following passage:

    “59.However, in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 whilst the Full Federal Court did not disagree with the approach taken by Driver FM in Ahmed, it held that the Tribunal is able to review a decision of a delegate who has not followed the procedure notwithstanding the fact that the decision may not be a valid one.  It stated:

    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.”

    (Court Book p.178)

  10. It was noted that although Regulation 2.43(2)(b) of the Regulations has been amended, the Applicant’s visa in this instance was cancelled on 27 October 2004 and the amendment does not apply as it only applies to those visas which were in force on or after 18 October 2005.

  11. Reference was made to the Tribunal decision and it was noted that the Tribunal demonstrated sensitivity to the issue of adding examination hours to the total contact hours which would then have the resulting effect upon the percentage of contact hours attended.  This was demonstrated in correspondence from the Tribunal to Holmesglen and the Holmesglen response according to the First Respondent’s submission.

  12. An analysis was undertaken of the way in which the submission was put by the Applicant concerning the calculation of hours.  It was specifically noted that the Tribunal addressed submissions by the Applicant in relation to attendance schedules which the Tribunal referred to in the following paragraph:

    “85.The review applicant’s representative has submitted various attendance schedules calculating the total number of hours the review applicant was scheduled to attend in classes and the total number of hours he actually attended during semester 1 of 2004.  In May 2005 the representative submitted that the review applicant’s attendance for the period 2 February 2004 to 30 June 2004 was 83.3%.  Following the Tribunal hearing in October 2005 the representative submitted that the review applicant’s attendance for the period 2 February 2004 to 30 June 2004 was 80.1%.  The difference was submitted to be due to error in relation to some of the exemption that had been claimed.”

    (Court Book p.184)

  13. During the course of submissions Counsel submitted that the Tribunal had actually included the 14 hours of examinations.  That period of time, namely the 14 hours of examination, it was argued, had been provided by the Applicant in attachments to submissions (Court Book p.157).  It was argued that the education provided the Applicant and in turn the Tribunal made no distinction in its calculation of actual attendance between class attendance and exam attendance.  Accordingly there was no need for the Tribunal to add 14 to the 260 because this had already been included by the Tribunal.

Reasoning

  1. In my view a proper reading of the Tribunal’s decision demonstrates jurisdictional error.  The error arises in the Tribunal’s failure to apply Regulation 1.03 by adding examination hours to scheduled contact hours attended.  Its failure to do so meant that in its second calculation the total hours attended should have been 274 hours which is a percentage of 339 hours of total contact hours scheduled would result in a percentage of contact hours attended in excess of 80% namely 80.8259%.

  2. I do not accept as submitted by the First Respondent that this was simply an of fact nor do I accept that by embarking upon the second sets of calculations the Tribunal has simply given the benefit of the doubt to the Applicant to reach a conclusion that in any event even accepting the Applicant’s claims the attendance hours would not have exceeded the required 80%.

  3. The Tribunal’s own decision and in particular in [98] reveals that both the first and second sets of calculations are part of the reasoning process.  The Tribunal in [98] clearly states, “for the above reasons the Tribunal is satisfied that the review applicant did not attend for at least 80% of the contact hours scheduled for semester 1 of 2004.”  It has made that statement based upon the calculations whereby it concluded the Applicant had attended 40.71% of contact hours scheduled for the semester and more importantly after it had also made a further calculation accepting submissions by the Applicant’s representative leading it to conclude the Applicant attended classes for 76.7% of the hours scheduled for the semester.

  4. Whilst submissions were made by the First Respondent that a close examination of the details provided to the Tribunal may reveal that it took into account the period of 14 hours, it is not for the Court to seek to re-examine the facts in any greater detail other than to observe that the Tribunal’s own table which it has prepared and which appears in the Court Book (p.189-190) shows the total contact hours scheduled of 339 and total scheduled contact hours attended of 260.  Whilst clearly there is a total of 14 hours of examinations attended which would raise the total scheduled contact hours attended to 274 hours.  I have not been able to determine that the 14 hours has somehow been incorporated in the 260 hour figure arrived at by the Tribunal.  It does appear to be the case that the total contact hours scheduled for each unit incorporates the examination hours but on my reading of the table provided by the Tribunal it has not taken into account the 14 examination hours actually attended by the Applicant in determining the total scheduled contact hours attended.  That is clearly important when determining the percentage of contact hours attended by the Applicant.

  5. The number of hours attended at examinations is clearly made relevant by Regulation 1.03 and the failure to take into account that relevant matter is sufficient in my view having regard to the authorities to which reference has been made by the Applicant to constitute jurisdictional error.

  6. I am not satisfied that the first calculation undertaken by the Tribunal is dispositive of the application given the sequence of the paragraphs in the reasoning process leading as I have indicated to [98] as the Tribunal introduces that paragraph with the phrase, “for the above reasons …”  I am further satisfied that the attendance at scheduled examinations could not simply be regarded as evidence but rather an integer relevant and going to the jurisdiction given that it was specified as a requirement under Regulation 1.03.

  7. It follows that the decision of the Tribunal should be set aside and appropriate orders made.  Although a declaration was sought in this matter by the Applicant in my view it is not appropriate to make a declaration in a matter of this kind but rather to simply remit the matter to be determined by a differently constituted Tribunal.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  22 June 2007

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