Liang v Minister for Immigration
[2005] FMCA 1106
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIANG v MINISTER FOR IMMIGRATION | [2005] FMCA 1106 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of student (Temporary) (Class TU)) visa – no reviewable error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116(1)(b), 116(3)
Migration Regulations 1994 (Cth), reg 2.43(2)(b), Sch 8 Condition 8202
Education Services for Overseas Students Act 2000 (Cth), s.20
Gu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 555
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561
HR Products Pty Ltd v Collector of Customs (1990) 20 ALD 340
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Hope v Bathurst City Council (1980) 144 CLR 1
Northern Land Council v Aboriginal Land Commissioner (1992) 105 ALR 539
Fabre v Ley (1972) ALR 885
Sekiguchi v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FMCA 166
Stead v State Government Insurance Commission (1986) 161 CLR 141
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
| Applicant: | MING HAO LIANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2164 of 2004 |
| Delivered on: | 12 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Ren Zhou Lawyers |
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2164 of 2004
| MING HAO LIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 July 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 16 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 3 November 2003 to cancel the applicant’s student visa under s.116(1)(b) and s.116(3) of the Migration Act 1958 (Cth) (“the Act”) and reg 2.43(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”) for breach of Condition 8202.
Background
The applicant, Mr Ming Hao Liang, a national of the People’s Republic of China born on 3 September 1986, first entered Australia on
1 September 2002 as a holder of a Subclass 571 (Schools Sector) (Student)) visa granted on 20 August 2002. A further Subclass 571 visa was granted on 8 November 2002. This visa was granted on the basis that the applicant continue his enrolment in English language study at the Sydney International College of Business until 7 March 2003 and then Senior Secondary Studies at Uniworld Business College (“Uniworld”). Attached to this visa was Condition 8202 (“Enrolment and course requirements”) and the visa was due to cease on 15 March 2005. The visa was cancelled on 3 November 2003 for failure to meet the course requirements. On 3 October 2003 the applicant was issued with a Notice from Uniworld by way of s.20 of the Education Services for Overseas Students Act 2000 (Cth). This informed him that he was in breach of a condition of his visa relating to attendance and that if he failed to attend an office of the Department within 28 days then his visa would be automatically cancelled. The Notice stated that the particulars of the breach were the applicant’s non attendance at class and average attendance of 38.67% from 28 July 2003 (Court Book p.49) (“CB”).
On 23 October 2003 the applicant attended a Departmental interview as required and was issued with a Notice of Intention to Consider Cancellation (NOITC). This Notice stated that a breach of Condition 8202 may have occurred in relation to the failure to maintain 80% attendance and/or to make satisfactory academic progress. An interview was then scheduled for a later date (CB p.49).
The applicant was enrolled in the Sydney International College from September 2002 to June 2003. Supporting documentation recorded that his attendance for the period stood consistently above 80% (CB pp.10, 37, 41). The applicant then attended Uniworld from 28 July 2003 (CB p.8). There was no indication in the Court Book as to the duration of the applicant’s course at that institution. Uniworld divides its academic year into ten terms. In a fax from Uniworld to the Department it recorded that the applicant’s attendance for Terms 8-10 inclusive was 48%, 61% and 7% respectively, being a total attendance for the three terms of 39% (CB p.8). The applicant stated that his poor record was caused by gastritis and that he presented medical certificates as evidence of his condition (CB pp.15-17).
The applicant’s student visa was cancelled for a breach of conditions in Schedule 8, Item 8202 of the Regulations (Condition 8202). The Tribunal found that there was a failure by the applicant to meet the conditions imposed by Items 8202(3)(a) and (b) of the Regulations. Firstly, the Tribunal was satisfied that the applicant failed to attend the course that he had undertaken at Uniworld for at least 80% of the contact hours scheduled in each term of that course (8202(3)(a)) (CB pp.52.6-52.8). Secondly, the Tribunal was satisfied that the applicant’s education provider, Uniworld, had not certified that the applicant had achieved an academic result that was at least satisfactory for each term he had attended that course (8202(3)(b)) (CB p.52.9).
The applicant’s complaint was that the Tribunal misconstrued and misapplied the meaning of the word “term” in Condition 8202, in that the Tribunal failed to ask whether the word “term” was used in an ordinary or technical sense.
Application for review of the Tribunal’s decision
On 13 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 14 July 2005 the applicant filed an amended application setting out the following grounds:
1.The Tribunal failed to ask itself the correct question in considering the meaning of the word, “term” in Schedule 8 item 8202 of the Migration Regulations 1994.
Particulars
(a)Failure to ask whether the word, “term” is used in the legislation in the ordinary, sense or in a technical sense.
2.The Tribunal misconstrued and misinterpreted the meaning of the word, “term” as used in Schedule 8 item 8202 of the Migration Regulations 1994.
Regulations
Essentially, the power to cancel a visa exists if the holder of the visa has not complied with a condition thereof (s.116(1)(b) of the Act). Section 116(3) requires the Minister to cancel a visa if there are “prescribed circumstances” for doing so. The “prescribed circumstances” are those in reg.2.43. These include, in the case of a student visa, a breach of Condition 8202 (see reg.2.43(2)(b)(ii)). Condition 8202 states:
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 a secondary 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.
Reasons
Mr L Karp of Counsel, appearing for the applicant, argued that the Tribunal erred by failing to consider and apply the correct meaning of the word “term” in the context of Condition 8202. The applicant contended that the Tribunal accepted the evidence of the education provider, did not question the curious use of the word “term” and affirmed the decision under review. Further, the word “term” in Condition 8202 was used in the context of education and has a meaning that is governed by that context. Mr Karp submitted that it is a specialised or technical meaning and thus its meaning is a question of law. It was submitted that the Tribunal misconstrued and misapplied the meaning of the word “term” in Condition 8202 and the error in this case was not without consequence. Mr Liang may have been able to make up deficiencies in attendance had he been given the opportunity. Whether this would have been possible is, of course, unknown because the length of his course of study and any terms, properly understood, was unknown. Thus, it was submitted, it could not be said that the Tribunal’s error could not have had an effect on the result of its deliberations.
Mr Karp in his written submissions referred to the decision in Gu v Minister for Immigration & Multicultural & Indigenous Affairs (“Gu”) per Phipps FM at [21]:
“Neither ‘term’ nor ‘trimester’ have absolute definitions … the Macquarie Dictionary definition of ‘trimester’ which is “a teaching term of approximately three months in some educational institutions which provide teaching over three terms in the year but accept two such terms as a full year’s work”. In this definition a ‘semester’ is a type of ‘term’.”
Mr Karp submitted that in the context of education, a “term” is a period differentiated from other periods, and divided from them by a gap in time, as in school terms. In the 1960’s and 1970’s the New South Wales school year was divided into three terms. Now it is four terms. It was submitted that it cannot have been intentional for Parliament to permit an education provider to define the word “term” in any way it pleased. As an extreme example, Mr Karp stated, if this was so, every day could be a new term and the student who missed half a day due to accident or illness, or emergency, would be liable to compulsory cancellation of his or her visa.
Mr A McInerney of Counsel, appearing for the respondent, in his written submissions correctly pointed out that the expressions “term” and “semester” are not defined in the Regulations. In the context of academic institutions, they refer to the periods into which an institution divides its academic year. The word, “semester” usually refers to one or two divisions of an academic year, and is derived from the Latin “semenstris” that is, six monthly (the Macquarie Dictionary – Federation Edition 2001). Counsel submitted that the word “term” has a number of meanings, depending on the context in which the word is used and referred the Court to the Macquarie Dictionary for the purpose of this argument.
“…3. The time or period through which something lasts. 4. A period of time to which limits have been set: elected for a term of 4 years. 5. Each of certain stated periods of the year into which instruction is regularly organised for students or pupils in universities, colleges, and schools. 6. An appointed or set time or date, as for the payment of rent, interest, wages etc. …”
Mr McInerney argued that, simply put, a “term” is a certain stated period of time into which instruction is regularly organised “by the education provider” which is usually a stated period of less than six months. This approach is wholly consistent with what was stated by Phipps FM in Gu.
Mr Karp, during his oral submissions, tendered a photocopy from the New Oxford Dictionary of English, Clarendon Press, Oxford 1998 for the definition of “term”:
“3 each of the periods in the year, alternating with holiday or vacation, during which instruction is given in a school, college, or university, or during which a law court holds sessions: the summer / term starts tomorrow.”
“Term”, is an English word which has various meanings, all arising from its etymology (Lat. Terminus) and the idea of limiting or defining. Historically the word “terms” in the sense of a limiting and curtailing period of time during which the Law Courts are open, was used in relation to the English Superior Courts. They were originally the leisure seasons of the year which were not occupied by great feasts or fasts of the Church or by agriculture. Their origin can be traced back to the legislation of the early Christian emperors, the principle being adopted in England through the influence of ecclesiastical judges. Terms were regulated by many Acts of Parliament, the effect of which was to confine to a comparatively short period the time during which the Courts could sit in banco. There were four terms: Hilary, Easter, Trinity and Michaelmas, with the average duration of each being approximately three weeks. All legislation on the subject prior to 1873 is now merely of historical interest, for by s.26 of Supreme Court of the Judicature Act 1873 (UK) (36 & 37 Vict., c.66) terms were abolished, insofar as relating to the administration of justice, and the expression “sittings” was substituted. The old terms had their duration fixed by statute with the duration being precise. The Hilary term began on
11 January and ended on 31 January, Easter term began on 15 April and ended on 8 May, Trinity term began on 22 May and ended on
12 June and Michaelmas term began on 2 November and ended on
25 November. The rest of the year was called vacation. When used in that context the word had specific meaning and had a technical meaning: Encyclopaedia Britannica 11th Edition.
In universities and schools, the word “term” is used for the period during which instruction is given to students or pupils. University and school terms differ from law terms and from each other in period and duration. For example, the University of Cambridge’s academic year is divided into three terms: Michaelmas, Lent and Easter. While at the University of Oxford there are four terms in the year: Michaelmas, Hilary, Easter and Trinity. School terms generally consisted of three terms divided by Christmas, Easter and summer holidays. With the expansion of academic institutions, a wider range of nomenclature was used to describe the divisions of the academic year coupled with the gradual change in number and duration of these divisions. In some institutions the so-called semester system was adopted with the year being divided into two terms, whilst other educational systems, such as the New South Wales primary and secondary educational systems have been divided into four terms.
Counsel for the respondent submitted that the applicant propounded no evidence to support any submission that the word “term” has a technical meaning, and yet, it is permissible to consult a specialist dictionary for the purpose of ascertaining the meaning of a technical term: Kirkpatrick v Commonwealth of Australia per Davies, Beaumont and Burchett JJ at 538:
“In any case, it is not to be doubted that the Tribunal was entitled to consult a standard medical dictionary in order better to understand medical evidence in which technical words were employed by the witnesses.”
Further, a word that has a clearly understood technical meaning in a particular area of activity will be treated as if being used in that technical sense if the legislation is concerned with that area of activity: Marine Power Australia Pty Ltd v Controller-General of Customs at 572; HR Products Pty Ltd v Controller-General of Customs at 354.
The applicant’s complaint was that the Tribunal misconstrued and misapplied the meaning of the word “term” in Condition 8202 in that the Tribunal failed to ask whether the word “term” was used in an ordinary or technical sense. Mr Karp referred to the following two authorities that address the approach to this question:
a)In Collector of Customs v Pozzolanic Enterprises Pty Ltd at 287-8, the Full Court of the Federal Court said:
“Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases:
(1)The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
(2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
(3)The meaning of a technical legal term is a question of law.
(4)The effect or construction of a term whose meaning or interpretation is established is a question of law.
(5)The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. “ (Citations omitted)
b)In Hope v Bathurst City Council, Mason CJ stated at 8:
“The judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v FC of T (1956) 94 CLR 509 is illuminating. Kitto J observed that the question whether certain operations answered the description “mining operations upon a mining property” within the meaning of s 122 of the Income Tax Assessment Act 1936 as amended was a mixed question of law and fact (p 511). He went on to explain why this was so: “First it is necessary to decide as a matter of law whether the Act uses the expressions ‘mining operations’ and ‘mining property’ in any other sense than that which they have in ordinary speech.” Having answered this question in the negative, he noted that the “common understanding of the words has … to be determined” as “a question of fact”. He continued (at 512): “The next question must be whether the material before the court reasonably admits of different conclusions as to whether the appellant’s operations fall within the ordinary meaning of the words as so determined; and that is a question of law: ibid; see also per Isaacs and Rich JJ in Australian State Quarries Ltd v FC of T (1923) 33 CLR 416 at 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in the Broken Hill South case (1941) 65 CLR at 160.”
In statutory interpretation, Courts are concerned with describing the meaning of technical words which fall into two different categories; those that are legal, technical words and others that are non-legal words that have a technical meaning. The word “term” has not been defined in the Act or the Regulations nor does it appear in most legal dictionaries in the context that it is used to describe an educational program which is divided into periods of teaching and non teaching. Merely because words are used by practitioners in a particular discipline does not mean it should be assumed that the legislation is using those words in a technical sense: Northern Land Council v Aboriginal Land Commissioner. However, a word that is not a technical word may have acquired a particular usage in a particular context. In those circumstances, Courts may have been prepared to take into account the acquired meaning even though it might depart from the more widely used meaning of the word. In some circumstances, the use of the word may be technically inaccurate but may be accepted if it has, by long customary usage, become to have an established meaning: Fabre v Ley.
The word “term” in Condition 8202 is used in the context of education and has a meaning that is governed by that context. If it has a specialised or technical meaning, then its meaning is a question of law. The use of the word “term” is a certain stated period of a year into which instruction is regularly organised “by the education provider” which is usually a stated period of less than six months. However, the period of a “term” is not defined in specific periods of time nor a fixed number of periods and is subject to many variations. The English Oxbridge academic years are different for Oxford and Cambridge. The Australian academic year for universities, schools and colleges also differ in number and duration.
Counsel for the respondent submitted that this approach was wholly consistent with that stated by Phipps FM in Gu. Mr McInerney further submitted that what amounts to a “term” in respect of duration, frequency and format, was a question of fact for the Tribunal and referred to the decision of Raphael FM in Sekiguchi v Minister for Immigration & Multicultural & Indigenous Affairs (“Sekiguchi”) at [10]-[12].
The applicant submitted the word “term” in the context of education is not a question for determination by each individual education provider. Rather, it was argued that the word “term” in its application to the applicant, should be defined as a fixed period of time separated from other periods by a break or a holiday. With the length of the applicant’s course of study being unknown, it was contended that the Uniworld term was a period longer than the period during which the applicant undertook his course at Uniworld and failed to meet the minimum requirements of attendance and satisfactory academic performance. If the regulations contained a precise definition of “term” which contained the element of duration, or if “term” still had the meaning used in English statute which specified the English legal terms prior to the enactment of the Supreme Court of Judicature Act (UK) 1873 (36 & 37 Vict., C.66) the applicant’s argument may carry some weight. Further, on the Oxbridge academic years which commenced and ended on significant ecclesiastic dates of the Julian calendar, the applicant’s argument would be successful. However, in a technical sense, the expressions “term” and “semester” refer to a period differentiated from other periods and divided from them by a gap in time as in school terms or, alternatively, the periods into which an academic institution divides its academic year. I reject the applicant’s submissions and find that the duration, distribution and structure of the expression “term” is variable and is at the discretion of the education provider. What amounts to the variable elements of the expression, “term” is a question of fact for the Tribunal: Sekiguchi per Raphael FM at [10]-[12].
Mr McInerney suggested that the judgment of Phipps FM in Gu is highly persuasive, and as a matter of comity, should be followed. In that case, Phipps FM observed at [20]:
“A semester is a six-month period or term. Condition 8202 has different requirements for a course that runs for less than a semester period, a six-month period or term, and a course that runs for at least a semester period. When the course runs for less than a semester period, the requirements for attendance and satisfactory performance have to be satisfied for the course. Where the course runs for at least a semester period, the requirements of attendance and satisfactory performance have to be satisfied for each term and semester. “Term” and “semester”, in a particular case, might refer to the same period, but in the operation of Condition 8202 they have different functions to perform. In most cases, as in this case, they will refer to different periods of time as well as having different functions in the operation of Condition 8202.”
Then at [22] Phipps FM held:
“… a trimester of the course in which the applicant was enrolled at Monash International College is a ‘term’ within the meaning of Condition 8202. It is the ordinary meaning of the word and it promotes the purpose of the Regulation.”
In this case the three terms, in respect to which the Tribunal found the applicant’s attendance and academic performance did not meet the minimum standards were:
a)Term 8 – 21.7.03 to 15.8.03 4 weeks (20 days) attendance 48%
b)Term 9 – 18.8.03 to 12.9.03 4 weeks (20 days) attendance 61%
c)Term 10 – 15.9.03 to 10.10.03 4 weeks (20 days) attendance 7%
The applicant last attended the course he was undertaking at Uniworld on 17 September 2003 (CB p.52.6). The applicant enrolled in a new course at Global College on 11 November 2003 and had attended the course conducted by that College through until 20 February 2004
(CB p.52.2).
Uniworld provided the Tribunal with additional material on 28 October 2003 which indicated that the attendance percentages in paragraph 26 above had been adjusted to take into account the applicant’s illness which was supported by medical certificates. The Tribunal noted:
“Total attendance for the above periods was 39% and that medical certificates were taken into account in this period. Without medical certificates, attendance in this period was 23%. Absences between 22 August and 26 August and between
1 September and 8 September were covered by certificates.
He did not achieve an academic result that was deemed to be satisfactory in Terms 8, 9 or 10.
He was sent warning letters on 19 August, 16 September,
26 September and 2 October.
The last day he attended class was 17 September 2003 and he failed to respond to telephone calls and warning letters from the College.” (CB p.50)
The applicant attended a Departmental interview as required on
3 November 2003 and provided the following documentation:
“Medical certificates, all with provider number but no name of the Doctor or Centre. These covered: 22 August – 26 August,
1 September – 8 September, 18 September – 26 September,
29 September – 1 October. A letter dated 20 October 2003, from a named Doctor (with provider number) which stated that in September 2003 the review applicant had suffered from gastritis and had visited a Chinese herbalist rather than a General Practitioner and that the Department should consider this.
Letter from Uniworld dated 16 September 2003 which states that attendance at that time was 54% and warns of the consequences of not maintaining 80% attendance.
Letter dated 26 September 2003 from Uniworld advising of
5 consecutive days of absence.
Certificate indicating that between 2 September 2002 and
14 March 2003 attendance was 98%.” (CB p.50)
The Tribunal’s decision set out the adjustments that Uniworld made to these attendance figures allowing for non attendance due to medical conditions supported by medical certificates.
Mr Karp correctly pointed out that the length of the course offered by Uniworld was unknown and that any conditions that applied to the course structure or requirements were not adequately explained in any of the documentation appearing in the Court Book. However, it does have to be acknowledged that the course is apparently registered and satisfies the Department as to its structure and content. The Department must be fully aware that the academic year is divided into ten terms as the facsimile forwarded to Uniworld requesting details of the applicant’s attendance and academic achievement is a document prepared by the Department and forwarded to Uniworld for completion. A further assumption, which I believe can validly be drawn, is that a student can enter Uniworld at the commencement of any one of the terms and then sequentially continue their study through the subsequent terms until the requisite terms making up the course are completed.
The Uniworld terms appear to be self contained modules that do not require the completion of prerequisite modules in order to undertake the course of study. Mr Karp argued that because the course structure and requirements were unknown, it was possible that the applicant may have been able to make up his deficiencies in attendance had he been given the opportunity. This would have resulted in the applicant satisfying Condition 8202 and satisfactorily completing the course. However, assuming a 100% attendance for the balance of the time required for the applicant to complete the course, that contention does not appear to be possible. Consider the following two best possible scenarios:
·Condition 8202(3)(a)(i): To achieve at least 80% of the contact hours scheduled for a course that runs for less than a semester (assuming that a semester represents half of a year or six terms of the Uniworld format) the maximum attendance possible would be 56.5%.
·Condition 8202(3)(a)(ii): To achieve at least 80% of the contact hours scheduled for a course that runs for at least a semester (assuming that the whole year is treated as a single term or semester) the maximum attendance possible would be 73.9%.
The two scenarios considered would provide the applicant with the best possible opportunities of achieving the criteria required by the Regulations, however in both cases would fail to achieve the minimum attendance record required.
Alternatively, the Uniworld structure of terms is put to one side and the expression “term” is taken to be one third of an academic year, three months or 12 weeks (equal to three Uniworld terms). On the details provided by Uniworld (modified to take into account sick leave supported by medical certificates) the applicant had an attendance record of 39%. This analysis does not boost the applicant’s argument.
The respondent submitted that the applicant failed to identify any alleged error of the Tribunal in its adoption of the interpretation of what constitutes “term” that could possibly have made a difference to the outcome: Stead v State Government Insurance Commission at 145;
Re Refugee Review Tribunal; Ex parte Aala at 88, per Gaudron and Gummow JJ 116-7:“It is sufficient that ‘the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome’.”
McHugh J at 122 noted:
“… once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because ‘[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome’.”
Kirby J at 131 noted:
“Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness ‘could have made no difference’ to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity.”
The applicant has not identified how any alleged error made by the Tribunal could possibly have made a difference to the outcome of the application before the Tribunal.
In Condition 8202(3)(b) “the visa holder is required to achieve an academic result that is certified by the education provider to be at least satisfactory”. In Uniworld’s report to the Department it indicated that the visa holder was not satisfactory in any one of the three terms reported upon by the College (CB p.52.8). No formal submissions were made in respect of this issue. The structure of subsection (3) requires the holder to meet the requirements of both (a) and (b) respectively. Putting to one side the issue of attendance, the visa holder had not satisfied the condition of his visa due to the education provider declining to grade the applicant’s performance as satisfactory at any time during his attendance at the College.
Conclusion
No jurisdictional error is disclosed in the reasons of the Tribunal or in the procedures that the Tribunal has followed in reaching its decision. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 12 August 2005
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