Luo v Minister for Immigration

[2011] FMCA 160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUO v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 160

MIGRATION – Cancellation of student visa – whether Migration Review Tribunal erred by failing to inquire into certification by education provider – whether Tribunal failed to take relevant considerations into account or asked itself the wrong question – whether condition 8202 in Schedule 8 to the Migration Regulations is invalid – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), ss.19, 20, 40
Education Services for Overseas Students Regulations (Cth), reg.3.03A
Migration Act 1958 (Cth), ss.116, 137J, 357A, 499
Migration Amendment Regulations (2007) (No.5) (Cth), reg.5
Migration Regulations 1994 (Cth), reg.2.43

Bellaiche and Another v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356; [1998] FCA 478
Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257; [2005] FCA 229
Hatcher v Cohn and Others (2004) 139 FCR 425; [2004] FCA 1548
Hossain v Minister for Immigration and Citizenship and Another (2010) 183 FCR 157; [2010] FCA 161
Khant v Minister for Immigration and Citizenship and Another (2009) 112 ALD 241; [2009] FCA 1247
Luu and Another v Renevier (1989) 91 ALR 39; [1989] FCA 518
Maan v Minister for Immigration and Citizenship and Another (2009) 179 FCR 581; [2009] FCAFC 150
Mazumder v Minister for Immigration & Anor [2010] FMCA 76
Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; [2007] FCA 1318
Minister for Immigration and Citizenship v MZYCE and Others (2010) 116 ALD 156; [2010] FCA 767
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Mo v Minister for Immigration and Citizenship [2010] FCA 162
Mo v Minister for Immigration and Citizenship and Another (2009) 112 ALD 329; [2009] FMCA 1026
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47
Singh v Minister for Immigration & Anor [2009] FMCA 1261
Minister for Immigration and Citizenship v SZGUR (2011) 85 ALJR 327; [2011] HCA 1
SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
SZNBX and Another v Minister for Immigration and Citizenship and Another (2009) 112 ALD 475; [2009] FCA 1403
SZOER v Minister for Immigration and Citizenship [2010] FCA 1100
Tickner v Bropho (1993) 40 FCR 183; [1993] FCA 208

Applicant: JIE LUO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1503 of 2010

Judgment of: Barnes FM

Hearing date: 3 February 2011

Delivered at: Sydney

Delivered on: 16 March 2011

REPRESENTATION

Solicitors for the Applicant: Paul Guan & Associates

Counsel for the Respondents: Mr G Johnson SC

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1503 of 2010

JIE LUO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) dated 9 June 2010 affirming a decision of a delegate of the first respondent to cancel the applicant’s Subclass 573 Higher Education Sector Visa.

2. Mr Luo entered Australia on 7 November 2006 as the holder of a Subclass 573 Student (Temporary) Class TU visa.  A further student visa of the same subclass was granted to him on 28 November 2006.  It was valid until 3 March 2010.  He commenced a Diploma of Commerce course at Curtin University of Technology (Curtin) in 2008. 

3. On 11 January 2010 Curtin issued what was described as a “Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994” in the following terms:

   Curtin University of Technology [02637B] on 11 January 2010 certifies Mr Jie LUO, for course Diploma of Commerce, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). 

4. Curtin wrote to Mr Luo by letter of the same date pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) advising him that the certification gave rise to a breach of a prescribed condition of his visa and setting out his options. The letter included particulars of the breach described by reference to the requirements of subcl.8202(3)(a) of condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) and the fact that Curtin had certified him as “not achieving satisfactory course progress in relation to [the] Diploma of Commerce” course. 

5. On 5 February 2010 the Department issued a notice of intention to consider cancellation under s.116 of the Migration Act 1958 (Cth) (the Act) to Mr Luo. Mr Luo was invited to and attended an interview with the Department on 3 March 2010.

6. Mr Luo wrote to the Department on 5 February 2010 and 11 February 2010 about his personal circumstances (as discussed further below). 

7. On 3 March 2010 the Department of Immigration cancelled Mr Luo’s visa on the basis that he had not complied with condition 8202 to which his visa was subject and that his non-compliance was not due to exceptional circumstances beyond his control.

8. Mr Luo sought review of the delegate’s decision by the Tribunal.  He attended a Tribunal hearing.  He provided evidence of his work and results in the Certificate III in Printing and Graphic Arts course he started in February 2010. 

The Law

1. As the first respondent contended, the Tribunal decision turned upon s.116(1)(b) and s.116(3) of the Migration Act, reg.2.43 of the Regulations and the form of Condition 8202 in Schedule 8 to the Regulations applicable as at 1 July 2007.

2. The applicant’s visa was cancelled under s.116 of the Act which, relevantly, is as follows:

   (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; or

   …

   (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.

3. Regulation 2.43 of the Regulations sets out prescribed circumstances for the purposes of s.116(3) and relevantly 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:

   (i)that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or

   (ii)that the Minister is satisfied that:

   (A)    the visa holder has not complied with condition 8202; and

   (B)    the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

4. In this case the breach of condition 8202 relied upon was said to have occurred on or after 1 July 2007.  The Tribunal correctly found that the relevant version of condition 8202 was that in force as at 1 July 2007 (See reg.5 of the Migration Amendment Regulations 2007 (No.5) (Cth) and Maan v Minister for Immigration and Citizenship and Another (2009) 179 FCR 581; [2009] FCAFC 150 in which a similar approach was taken). Such condition is relevantly as follows:

   (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).

   …

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)     section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)    standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)     section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

5. In this case the part of condition 8202 in issue was 8202(3)(a) which relates to certification of the visa holder as not achieving satisfactory course progress. 

The Tribunal Decision

1. In its reasons for decision the Tribunal referred to the applicable law and to the events leading up to the cancellation of Mr Luo’s visa.  In particular, the Tribunal referred to the applicant’s written submission to the Department in relation to his circumstances as well as to his evidence at the Tribunal hearing. 

2. The Tribunal noted that for the purposes of condition 8202(3): “it is the certification by the education provider as to breach of its course progress or attendance policies that constitutes the breach of condition, and not the unsatisfactory progress or attendance itself”.  It referred in this respect to the decision of the Full Court of the Federal Court in Maan and observed that its task was to determine whether the “certificate, on its face, is of a kind that engages condition 8202(3)”.  It cited authority in support of the proposition that it was not required to inquire into the validity of the certificate (see Singh v Minister for Immigration & Anor [2009] FMCA 1261 at [7] and [9] and Mazumder v Minister for Immigration & Anor [2010] FMCA 76 at [26]).

3. With respect to the element in reg.2.43(2)(b)(ii)(B) that the Minister be satisfied that “the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”, the Tribunal stated that a “positive state of mind [was required] on the part of the decision maker that there are no relevant exceptional circumstances” and referred to Khant v Minister for Immigration and Citizenship and Another (2009) 112 ALD 241; [2009] FCA 1247 at [70]). The Tribunal also referred to authority as to what “exceptional circumstances” may be, including Maan at [51], Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 at [49] – [50] and Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257; [2005] FCA 229 at [111].

4. The Tribunal had regard to the requirements (which it described) of Direction No 38 given by the Minister under s.499 of the Act.  It noted that the considerations in the Direction were “not intended to be exhaustive” and that it was “required to consider ‘all of the facts of a case in total’ and come to its own view as to whether it [was] satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control”. 

5. For the following reasons, the Tribunal was satisfied that the applicant had not complied with a condition of his visa:

   Condition 8202(3)(a), as in force from 1 July 2007, specifies that the holder will meet the course progress requirements unless the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress to s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code). For the following reasons, the Tribunal finds that the applicant has not complied with condition 8202(3)(a). Curtin University of Technology on 11 January 2010 had certified the applicant as not achieving satisfactory course progress for a course Diploma of Commerce. Accordingly, the Tribunal finds the education provider has certified that the applicant has not achieved satisfactory course progress for s.19 of the ESOS Act, and standard 10 of the National Code, and therefore that the applicant has not complied with condition 8202(3)(a).

6. The Tribunal then addressed the question of whether it was satisfied that the non-compliance was due to exceptional circumstances beyond the applicant’s control.  It considered Mr Luo’s claim that his poor academic progress was due to “poor relationships with students and teachers at Curtin University” which led to him being isolated and in turn depressed.  It referred to his evidence that he had approached a teacher who “advised [him] to speak more English”, that he “also sought advice from family friends in China” between January and March 2009 and that while he “believe[d] that he was depressed [he had] not sought any professional diagnosis or treatment”.

7. The Tribunal accepted Mr Luo’s claim that he “experienced problems in communicating with students and teachers” at Curtin, but found “no evidence that this led to any major problems which would affect his academic performance”.  It had regard to the fact that, apart from the single contact with one teacher and discussions with family friends, the applicant did not seek any assistance and that while he believed he was depressed there was “no evidence of this”.  The Tribunal found that the “applicant was able to continue to function socially” on his own evidence and had “continued to work”.

8. The Tribunal was “not satisfied that the applicant’s unsatisfactory academic performance was due to exceptional circumstances beyond his control”.  It found that although “he had some problems with students and teachers”, there was “no indication that this had any adverse impact on him”.

9. Being “satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control” and that the ground for cancellation in s.116(1)(b) of the Act existed, the Tribunal found that these were “prescribed circumstances in which the visa must be cancelled” under s.116(3) of the Act. It affirmed the decision of the delegate.

10. The applicant sought review by application filed in this court on 8 July 2010.  He relies on four grounds of review. 

Failure to Inquire

1. The first ground in the application is that the Tribunal “failed to exercise its jurisdiction in that in determining whether the appellant (sic) was in breach of visa condition 8202(3)(a), it failed to enquire (sic) into the validity of the certification of breach as issued by the education provider”.

2. The particulars to this ground are as follows:

   a.    The Applicant had supplied evidence of his isolation and possible depression at Curtin University, and it was clear that there was a failure on the part of Curtin University to support and assist the Applicant in his study and life in Australia.

   b.    It was in evidence that Curtin University might have breached Standard 6 of the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students 2007 (The National Code).

   c.     The Applicant also gave evidence of his trying hard to cope with his studies indicating he was a genuine student.  He had sought transfer of his course of study to Curtin University’s other campus which however was rejected by Curtin.

   d.The Tribunal has failed to enquire (sic) into the likelihood of rectification of such circumstances by Curtin University or whether such rectification could have improved the Applicant’s course progress.

   e.The Tribunal incorrectly held that it was not required to enquire (sic) into the validity of the certification issued by Curtin University as to the Applicant’s course progress.

3. In written submissions the applicant conceded that a breach of condition 8202(3) was “established by a certification issued by the education provider” and that the mere fact that a student visa holder did not achieve satisfactory course progress could not of itself constitute breach of the condition (See Maan at [44] – [45]). However, it was submitted for the applicant by the solicitor for the applicant that Curtin had breached s.19 of the ESOS Act and also Standard 10 of the National Code (the provisions to which certification had to relate), although the particulars to ground one refer only to there being evidence that Curtin “might have breached” Standard 6. 

4. Section 19(2) of the ESOS Act provides that “a registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs”.  Regulation 3.03A of the Education Services for Overseas Students Regulations (Cth) provides that a prescribed condition in this context “is visa condition 8202, set out in Schedule 8 to the Migration Regulations 1994”.

5. The suggestion for the applicant that Curtin had breached the ESOS Act appears to be based on the fact that Curtin’s certification did not specify a time period in which it alleged a breach of condition 8202, and the fact that notwithstanding that the applicant had attended Curtin for three terms since June 2008 and had failed some subjects in each term, the certification was not issued until 11 January 2010.

6. In addition, reference was made in submissions to Standard 10 of the National Code which relates to “Monitoring Course Progress”.  It provides what were submitted by the applicant to be seven “sub-standards for the education provider to abide by”, including in relation to monitoring, recording and assessing course progress, documented progress policies and procedures, intervention strategies and procedures and (relevantly) an obligation on the registered provider to “implement the intervention strategy for any student who is at risk of not meeting satisfactory course progress requirements.  At a minimum, the intervention strategy must be activated where the student has failed or is deemed not yet competent in 50 per cent or more of the units attempted in any study period” (Standard 10.5). 

7. The solicitor for the applicant submitted that it was apparent that on the evidence before the court that Mr Luo had studied at Curtin for three terms since June 2008 and that in each term he had failed some subjects.  The first warning he received from Curtin was said to be an academic status notification of 12 November 2009. It was contended that it could be said that Mr Luo had been a student “at risk” for quite some time and thus that Curtin had also breached Standard 10 of the National Code by failing to use an intervention strategy to assist him in a timely manner (although, again, there is no such contention in the particulars to ground one). 

8. It was also suggested that Curtin had failed to comply with Standard 6 of the National Code which provides that a registered provider must assist students to adjust to study and life in Australia.

9. The applicant contended that in these circumstances the validity of the certification purporting to be under condition 8202 issued by Curtin “must be looked into with great care”, but that “the Tribunal [had] failed to do so”. 

10. Insofar as the Tribunal relied on Singh and Mazumder in finding that it was not required to enquire into the validity of the certificate, the applicant submitted that while these cases had followed the reasoning of Raphael FM in Mo v Minister for Immigration and Citizenship and Another (2009) 112 ALD 329; [2009] FMCA 1026, in which his Honour found that “[t]o suggest that the Minister should “go behind” a 8202(3) certificate is counter-productive” at [24], this decision had been challenged with success in the Full Court of the Federal Court in Mo v Minister for Immigration and Citizenship [2010] FCA 162. Despite the fact that the ground the applicant described as “validity enquiry” was not contested in the Full Court, it was submitted that the Full Court in Mo had looked at the effectiveness of a s.20 notice and had found it invalid (also see Hossain v Minister for Immigration and Citizenship and Another (2010) 183 FCR 157; [2010] FCA 161).

1. In support of this ground, reliance was placed on the fact that the preamble to the National Code (in cl.6) makes the point that, in contrast to domestic students, overseas students are “subject to migration controls and [have] different needs for consumer protection”.  The preamble recognises that students from overseas must comply with conditions on their student visas, “usually cannot evaluate the quality of a course before purchase” and “may not be able to remain in Australia to pursue the consumer protection remedies provided through Australian courts”. 

2. It was submitted that the concerns expressed by Raphael FM in Mo should not outweigh considerations of procedural fairness to overseas students who were said to need special protection and whose rights would be seriously affected by visa cancellation.  On this basis it was contended that “[u]tmost care should be afforded” and “if it was found that an education provider ha[d] not been fulfilling its compulsory duties towards an overseas student properly, each level of decision makers (sic) [including the Tribunal] should be required to exercise the duty” to inquire, lest the overseas student visa scheme be “adversely impacted”. 

3. More generally, reference was made to the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 in which French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ had held at [24] – [25]:

   It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law …

   It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

4. It was contended that the High Court in SZIAI was “open” to the idea of a failure to inquire “manifesting itself as some other type of jurisdictional error” and “did not rule out a duty to enquire (sic) based on Wednesbury unreasonableness or what it described as a failure to review”. 

5. The applicant submitted that SZIAI had not eroded the principle enunciated by Kenny J in Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; [2007] FCA 1318 at [63] as follows:

   The concept of vitiating unreasonableness has been extended to the manner in which a decision was made.  Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would [have] proceeded to make the decision without making the enquiry.

6. It was contended that there was no decision that directly or indirectly doubted the validity of Le (although see SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 and SZNBX and Another v Minister for Immigration and Citizenship and Another (2009) 112 ALD 475; [2009] FCA 1403). It was submitted that this court was bound by Le “in the aspect of establishing a duty” on a decision-maker to make “reasonable enquiries”, in this case into the validity of issuing a s.20 notice.

7. As the Tribunal recognised in its reasons for decision, condition 8202(3) relates to course progress and attendance.  It is the certification by the educational institution that constitutes the breach by the student of condition 8202 and not unsatisfactory progress or attendance of itself. 

8. Insofar as it was contended for the applicant that the Tribunal was obliged to look at the correctness of or question the validity of the certification by the education provider, as the first respondent submitted, consistent with Maan at [44], Singh and Mazumder, the Tribunal’s task was (as it observed) to determine whether the certification on its face was of a kind that engaged condition 8202(3).  It was not required to inquire into the validity of the certificate.  Insofar as the applicant’s submissions in this respect may be taken to assert that Singh and Mazumder were wrongly decided and should not be followed, it has not been established that those decisions were clearly wrong. 

9. In Singh it had been argued that the Tribunal was obliged to look behind a certification by an education provider because the visa applicant had made it clear to the Tribunal that he did not believe that the education provider had properly complied with its obligations to keep attendance records and that one could not be sure he had failed to comply with requirements.  Such a contention was rejected by Raphael FM who referred to his remark in Mo at [9] that to suggest that the decision-maker should go behind a certification was “counterproductive” and reiterated that the only task of the decision-maker was to determine that a certificate on its face was of a kind that engaged condition 8202 (see Bellaiche and Another v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356; [1998] FCA 478). Such remarks were made in Mo in circumstances where it had been alleged that the education provider had not followed procedures in the National Code for monitoring and reporting student progress and that the certification and s.20 notice were invalid. His Honour did not see it as appropriate to resile from that view in Singh. 

10. In Mazumder it was claimed that the education provider had failed to comply with Standard 8 of the National Code.  Cameron FM agreed with the remarks of Raphael FM in Mo and found that even if the education provider had not observed the National Code this would not invalidate the decision of the delegate affirmed by the Tribunal to cancel the applicant’s visa (at [25] – [27]). 

11. On appeal in Mo (heard together with Hossain) what was in issue was whether a notice sent to Ms Mo which was intended to be in accordance with s.20 of the ESOS Act was effective (not whether there was an obligation to inquire into the validity of the certification by an education provider). A similar issue arose in Hossain. Buchanan J concluded that reg.3.03A of the ESOS Regulations (in the terms that it then was) did not operate to supplement the provisions of s.20 of the ESOS Act so that the s.20 notice was not legally effective and the visas of the respective visa holders were not automatically cancelled when they failed to take the steps referred to in s.137J of the Migration Act (see Mo at [3] and [15] and Hossain at [7] – [8], [17] – [20] and [25] – [26]).

12. The remarks of Raphael FM in relation to whether the decision-maker should go behind an 8202(3) certification were not considered by the Federal Court.  The fact that the decision in Mo was challenged with success on some other ground in the Federal Court is not such as to undermine the Tribunal’s reliance on the judgments of this court in Singh and Mazumder (or indeed on Mo) in support of the proposition that the Tribunal is not required to inquire into the validity of a certification by an education provider. 

13. There is nothing to suggest in this case that the applicant raised any concerns about Curtin’s compliance with s.19 of the ESOS Act or with any of the Standards in the National Code with the Tribunal. As Cameron FM stated in Mazumder, even if the education provider had not observed the National Code this would not invalidate the Tribunal’s decision. The same may be said about any failure to comply with s.19(2) (which is not, in any event, apparent on the material before the court).

14. Insofar as the applicant’s contentions were based on a submission that the particulars in the certification were incomplete, while the certification is expressed briefly and does not refer to the specific details of the applicant’s failure to achieve satisfactory course progress, a similarly generally worded certification (in relation to course attendance) was before the Full Court of the Federal Court in Maan. In that case, while the Court acknowledged that the particulars of such certification provided to the applicant could have been more informative and have referred to the period of non-attendance and the education provider’s attendance policies in greater detail (at [43]), their Honours went on to find (at [46]) that the absence of reference to a specific period of time in the certification did not impact on the validity of the certification.

15. The same may be said in this case. The certificate was given for s.19 of the ESOS Act and Standard 10 of the National Code of Practice and there was no obligation on Curtin to specify in the certificate any more than it did for the certificate to be valid. I note that some further particulars of the breach by reference to the requirements of condition 8202(3)(a) were provided to Mr Luo in Curtin’s s.20 notice which, contrary to any such suggestion by the applicant, is not rendered invalid by the form of certification.

16. As submitted for the first respondent, while s.19(2) of the ESOS Act imposes an obligation on the education provider to give the Secretary particulars of any breach of a prescribed condition of a student visa “as soon as practicable after the breach occurs”, the obligation to act “as soon as practicable” is not expressed to be (and has not been shown to be) a condition of the validity of the certification provided. Indeed there is no requirement imposed by s.19(2) to state in the certification when the breach occurred.

17. The certification in this case is comparable to that considered by the Federal Court in Maan at [41] – [44]. The absence of reference to a specific time or to further detail does not impact on the validity of the certification. Nor does the fact that the applicant failed some courses in semesters prior to the issue of the certificate render it invalid. It was issued after Curtin had given notice to the applicant in November 2009 that based on his academic performance his academic status was terminated and the applicant had not exercised his right of appeal.

18. More generally, contrary to what appears to be assumed in the applicant’s written and oral submissions, there was no obligation on the Tribunal to itself examine compliance by the education provider with standards contained in the National Code (see Mazumder at [27]). Nothing was pointed to by the solicitor for the applicant to support such a contention and, indeed, s.40 of the ESOS Act (which provides that the only effects of the National Code are the effects that the ESOS Act provides for) would appear to be to the contrary. The Tribunal’s obligations arise under the Migration Act and no breach by it of any provision governing its procedure has been established. It was not obliged to consider whether there was assistance to Mr Luo from Curtin of the kind referred to in Standards 6 and 10 or whether such assistance may have improved Mr Luo’s course progress.

19. Insofar as the applicant’s submission was to the effect that in every case involving an overseas student, the Tribunal was in some way obliged to make further inquiries as a matter of procedural fairness (for example, as to whether or not the education provider had complied with the ESOS Act and/or the National Code or otherwise), such a contention is not made out. While the applicant appeared to maintain this contention in submissions, at the same time reliance was placed on the decisions of Le and of the High Court in SZIAI, which makes it clear that the Tribunal is not under any general duty to make inquiries or, indeed, to make out an applicant’s case (and see.s.357A of the Act). 

20. In Le Kenny J commenced her survey of the authorities by making the point that “the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her” (at [60]), before referring to the “authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223”. 

21. While acknowledging that the position in Australia may differ from that in England, her Honour observed that Wednesbury Corporation would support the proposition that an exercise of power that was unreasonable in the sense that no reasonable authority could ever have come to it, “may ground a finding of jurisdictional error” (at [62]). 

22. Kenny J then made the observation relied on by the applicant in the following context (at [63]):

    The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision-maker would [have] proceeded to make the decision without making the enquiry…In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries… (emphasis added and citations omitted)

23. In SZIAI what was in issue was whether there had been any failure by the Tribunal to obtain important information on a critical issue which the Tribunal knew, or could reasonably be taken to have known, to be readily available.  That was the ambit of the principle recognised by Kenny J in Le and the possibility left open by the High Court in SZIAI at [25] (and also see Minister for Immigration and Citizenship v SZGUR (2011) 85 ALJR 327; [2011] HCA 1 at [23]).

24. There is nothing in the material before the court in this case to establish that the Tribunal should have undertaken the limited duty to inquire recognised in cases such as Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47 as discussed by Kenny J in Le at [62] – [63].

25. Nor, insofar as reliance is placed on Le, are the circumstances relied on by the applicant otherwise such as to establish unreasonableness constituting jurisdictional error.  Importantly, as Bennett J stated in SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] “...[t]he fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error” and the circumstances in which jurisdictional error may arise in the way suggested in Le (and indeed later in SZIAI) are “rare and exceptional” (also see Khant).

26. Having regard to the nature of the applicant’s submissions, the following remarks of Gray J in Minister for Immigration and Citizenship v MZYCE and Others (2010) 116 ALD 156; [2010] FCA 767 at [35] – [36] are in point:

    As appears from the passage from SZIAI, quoted in [29] above, the tribunal is not under a general duty to make all inquiries.  While it possesses inquisitorial powers, it has no obligation to seek the truth exhaustively.  In this respect, it sits rather oddly in any legal system, being neither fully inquisitorial nor at all adversarial.  In general, it can choose whether to inquire or whether to refrain from inquiring.  It is therefore impermissible, as was said in SZIAI, to ask whether the circumstances were such as to give rise to a duty to inquire.

    The ultimate question for the court, when exercising its judicial review functions in relation to a decision of the tribunal, is whether the tribunal has discharged its statutory function.  One aspect of this may be to ask whether the tribunal could have discharged its function without making some inquiry for the purpose of ascertaining what the facts are.  As the High Court made clear in SZIAI, the circumstances in which this will have to be done are very limited.

27. While these remarks (and indeed the remarks in SZIAI) were made in the context of considering the statutory function of the Refugee Review Tribunal, the same may be said in relation to the Migration Review Tribunal. 

28. In this case no specific legislative requirement for the Tribunal to make further inquiries has been established.  Nor has the applicant shown that there was in fact some critical evidence that would have been obtained had the Tribunal made further inquiries as suggested.  As submitted for the first respondent, there is no evidence before the court of something further that was in fact available which was a critical fact of relevant to the review.  Insofar as the applicant submitted that there were failures by Curtin to comply with the National Code, those submissions went no further than suggestions (cf Prasad, Luu and Another v Renevier (1989) 91 ALR 39; [1989] FCA 518 and Tickner v Bropho (1993) 40 FCR 183; [1993] FCA 208 where there was evidence as to what further inquiry would have revealed to enable the court to decide whether such a matter was centrally relevant). Nor is there evidence of how easily, if at all, further information could have been obtained had the Tribunal proceeded in the manner now contended for by the applicant (also see SZOER v Minister for Immigration and Citizenship [2010] FCA 1100).

29. The general references to the position of overseas students as compared to domestic students in the preamble to the National Code does not establish or give rise to such a duty to make inquiries. Indeed such an issue would exist in relation to every overseas student whose visa was cancelled, as the applicable provisions in the Migration Act do not apply to domestic students. The fact that the applicant’s evidence to the Department and Tribunal was that he had been trying hard and that he had asked to transfer to Curtin’s Perth campus and had been told he had to complete his Diploma first and that he was isolated and believed he was depressed is not such as to establish that the Tribunal’s failure to inquire further of the education provider as to the likelihood of rectification of the applicant’s circumstances (as suggested by the particulars) was so unreasonable that no reasonable decision-maker would have proceeded to make the decision without making such an inquiry. Nor are these circumstances such as to establish a failure to review on the part of the Tribunal.

30. It has not been established that the Tribunal fell into jurisdictional error in the manner contended for in ground one of the application.  This ground is not made out. 

Relevant considerations

1. Ground two of the application is that the Tribunal “failed to exercise its jurisdiction in that in determining whether the appellant’s non-compliance with visa condition 8202(3)(a) of Schedule 8 [of the] Migration Regulations 1994 was due to circumstances beyond his control pursuant to reg.2.43(2)(b)(ii)(B) by failing to take relevant considerations into account and to make a proper finding of them”.  The particulars to this ground are as follows:

   f.     The Applicant had supplied evidence of his isolation and possible depression at Curtin University, and it was clear that there was a failure on the part of Curtin University to support and assist the Applicant in his study and life in Australia, in breach of Standard 6 of the National Code.

   g.    The Applicant also gave evidence of his trying hard to cope with his studies indicating he was a genuine student.  He had sought transfer of his course of study to Curtin University’s other campus which however was rejected by Curtin.

   h.    The Tribunal has failed to enquire into the likelihood of rectification of such circumstances by Curtin University or whether such rectification could have improved the Applicant’s course progress.

   i.     The Tribunal further failed to consider the Applicant, not as an outgoing individual and keeping most difficulties to himself, the circumstances stated above could constitute exceptional circumstances.

   j. The Tribunal also failed to consider whether these circumstances were beyond the Applicant’s control as an individual with vulnerability as stated above and caused adverse impact on his academic performance.

1. The solicitor for the applicant referred to the remarks of Lander J in Chen to the effect that exceptional circumstances beyond the visa-holder’s control were:

   Any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control” (at [111]).

2. It was submitted that the applicant had supplied evidence of his problems at Curtin both in writing and orally to the Tribunal (including evidence about his failure to seek assistance), that he “evidently ha[d] a (sic) introverted personality, who kept to himself, and who suffered without letting out his concerns often”.  It was submitted that as well as being an overseas student the applicant was “a very vulnerable person” in whom depression was a “reasonable symptom” and that the non-action of Curtin in this situation was in breach of its duties under Standard 6 and Standard 10 of the National Code. 

3. Reference was also made to the fact that the Tribunal (as well as the Minister) was required to comply with Direction 38 made under s.499 of the Act when making a decision on whether a breach of condition 8202 was due to certain circumstances. Under Direction 38, in considering cancellation of a student visa for non-compliance with condition 8202 the Tribunal “must have due regard” to, but is not limited to, specified matters in relation to whether the non-compliance was not due to exceptional circumstances beyond the applicant’s control.  Thus, where there is “written advice from the Department of Education, Employment and Workplace Relations or from an education provider that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and the reporting, including concerns in relation to monitoring of the student”, the complaints handling and appeals process and/or the certification and reporting process, the Tribunal should give due regard to (and undertake further inquiries if appropriate) to clarify if the education provider has failed to accurately monitor the student’s course progress or attendance and/or if the education provider has failed to give the student access to a complaints handling and appeals process as required under Standard 8 of the National Code.

4. The applicant submitted that the duty of the Tribunal to have due regard to such circumstances should not be enlivened only upon written notice by the Department of Education, Employment and Workplace Relations or an education provider, but also upon being presented with trustworthy evidence.  Such an approach was said to be in line with Le. 

5. It was contended that Curtin’s contravention of the National Code was “evident” and that the validity of its s.20 notice was in question and that the Tribunal had a duty to take this and all other circumstances into account and make a finding as to whether these matters constituted exceptional circumstances to the applicant as an individual with his specific vulnerability and also as to whether such circumstances were beyond his control.

6. First, insofar as there is any suggestion in the applicant’s submissions of a failure by the Tribunal to have regard to any of the matters specified in Direction 38, no failure to comply is alleged expressly and, indeed, no failure is made out on the material before the Court.  As acknowledged in the submissions for the applicant, there is no evidence and no suggestion of any written advice from the Department of Education, Employment and Workplace Relations or from an education provider as to any of the concerns referred to in such Direction.  Nor, indeed, was there evidence from any other source that Curtin had failed to accurately monitor Mr Luo’s course progress or attendance or failed to give him access to a complaints handling and appeals process.  On the contrary, there was evidence of the November 2009 notification by Curtin to Mr Luo that his academic status was terminated and of his right of appeal and evidence that he chose not to appeal. 

7. More generally, on a fair reading of the Tribunal’s decision it is apparent that the Tribunal took into account the applicant’s evidence regarding his problems with communication and relationships with other students in the course, his suspected depression and his request for transfer to the Perth campus of Curtin University (in response to which he was told he had to finish his Diploma first).  Beyond the applicant’s evidence about asking to change campuses and speaking to his tutors his evidence was that he did not seek help from a University Counsellor or professional help about such issues. 

8. The Tribunal considered the meaning of exceptional circumstances in this context and whether the applicant’s unsatisfactory academic performance was due to exceptional circumstances beyond his control.  Its finding of fact that the applicant’s circumstances were not exceptional circumstances beyond his control which resulted in his failure to achieve satisfactory course progress was a finding within jurisdiction.  Such a finding was open to the Tribunal on the basis that, notwithstanding that the Tribunal accepted that the applicant experienced communication problems, there was no evidence of any diagnosis of depression, there was evidence of the applicant’s failure to seek professional assistance and also of his ability to continue to function socially with other students outside his course and to continue to work.  In Maan the Full Court found (at [52]) that the Tribunal’s findings that it was not satisfied that the applicant remained stressed or depressed, particularly in light of his failure to seek professional assistance, were findings of fact open to the Tribunal and did not reveal jurisdictional error, notwithstanding that the Full Court of the Federal Court expressed surprise that the Tribunal would find that an 18 year old male student alone for the first time in a foreign country would naturally seek help for depression-related symptoms. The same may be said in this case. The Tribunal addressed the applicant’s circumstances. The applicant’s disagreement with its conclusions seeks merits review.

9. Insofar as the applicant alleges a breach by Curtin of Standard 6 of the National Code (which states that registered providers are required to support students to adjust to study and life in Australia), the applicant’s evidence was that he had spoken to his tutors who had given him advice. There was no evidence that he sought any further assistance. He told the Tribunal that he did not seek any help from a university counsellor and did not seek professional help.  Curtin’s alleged refusal to allow a transfer until the applicant completed a Diploma is not evidence of a breach of Standard 6 of the National Code. In any event, whether consisting of a failure to have regard to relevant considerations or otherwise, no jurisdictional error by the Tribunal is made out on this basis.

10. As counsel for the first respondent pointed out, whether there were exceptional circumstances or not was ultimately a matter for the Tribunal.  It has not been established that the Tribunal made any error of principle when it addressed itself as to the indicia of exceptional circumstances.

11. Insofar as the solicitor for the applicant contended in relation to this ground that the Tribunal could have inquired about various things (in particular whether there could have been “rectification” of the applicant’s circumstances by Curtin or whether there were other circumstances that could have impacted upon the applicant’s academic performance) the Tribunal’s obligation in accordance with the provisions of the Migration Act and Regulations was to consider whether it was positively satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. There is nothing to support any contention that the Tribunal failed to have regard to relevant considerations in considering this issue. Ground two is not made out.

The wrong question

1. The third ground in the application is that the Tribunal “asked itself the wrong question in determining whether the Applicant’s claimed circumstances [were] exceptional or whether they were beyond his control”.  The particulars to this ground are that:

   k.    In determining whether the Applicant’s breach of visa condition was due to exceptional circumstances beyond his control, the Tribunal’s findings indicated that the Tribunal only asked the question of “how” the Applicant was coping with the circumstances that he was in at the material time. 

   l.    The findings were that since the Applicant did not seek counselling from Curtin, nor did he seek medical assistance regarding his claimed depression, therefore he was not in exceptional circumstances, and therefore those were not beyond his control. 

   m.The Tribunal’s findings failed to ask whether the circumstances were exceptional to the Applicant as an individual, or whether such circumstances were beyond the control of that individual.

2. It was submitted that while the Tribunal asked how the applicant coped with the difficulties, it did not seek to “qualify the difficulties” and that it failed to make “determinative findings as to the applicant’s personality and his vulnerability, in the face of evidence of his failure to cope, to advance his studies, and his suffering of isolation and confusion” at Curtin. It was again submitted that irrelevant considerations “were taken into account when the Tribunal made findings [about] the applicant’s ability to deal with his studies” and that the Tribunal made an “improper finding that since [the applicant] could deal with work situations well, he could have dealt with his studies”. It was submitted that such a finding was “not acceptable because the efforts and concentration needed at work and needed at study could not be comparable”.

3. On the basis of these submissions it was contended that the Tribunal failed to ask whether these were exceptional circumstances to the applicant as an individual and whether they were they not within his own control.

4. Contrary to the applicant’s submissions, it is clear that once the Tribunal was satisfied that the applicant had not complied with condition 8202, it did ask itself the correct question, that is whether there were exceptional circumstances beyond the applicant’s control that resulted in his failure to achieve satisfactory course progress.  As the first respondent submitted, the Tribunal did not simply ask “how” the applicant was coping with the circumstances in which he found himself.  It was open to the Tribunal to take into account the applicant’s ability to function socially and to work and the steps he took (or did not take) in relation to dealing with his claimed problems in determining whether there were exceptional circumstances beyond the applicant’s control that led to his failure to achieve satisfactory course progress. 

5. The Tribunal addressed the applicant’s evidence in this respect and accepted that he had problems communicating with teachers and students at the college, but on the evidence before it did not accept that this led to “major problems which would [adversely] affect his academic performance” or that there was evidence that he was in fact “depressed” or that he was unable to function socially or at work. 

6. It has not been established that in proceeding in this manner the Tribunal asked itself the wrong question or took into account irrelevant considerations such as to give rise to a jurisdictional error or that it in any way failed to apply the correct test in reg.2.43(2)(b)(ii)(B) of the Migration Regulations.

7. The applicant appeared to contend that the relevant test was whether there were circumstances which were exceptional for the individual applicant. Although there is no definition of “exceptional circumstances” in the Regulations or Act, there is nothing in the wording of reg.2.43 or in the authorities drawn to the attention of the court to suggest that the test is other than an objective test of whether there are circumstances which are exceptional in comparison to the circumstances of other people in the applicant’s position. For example, in Hatcher v Cohn at [49] – [50] (which was referred to by the Tribunal) Kiefel J stated that:

   Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances …

8. The applicant’s submission that the Tribunal should have asked whether a particular factor could have impacted on the applicant is not the test. Had the Tribunal proceeded on that basis it would have asked the wrong question, as whether or not a non-compliance with a condition was not due to exceptional circumstances beyond the visa holder’s control is not the same question as whether it could have been due to exceptional circumstances beyond the visa holder’s control (see reg.2.43 of the Migration Regulations).

9. It is also apparent from the Tribunal’s reasons for decision that it properly understood that it needed to be positively satisfied that non-compliance was not due to exceptional circumstances beyond the visa holder’s control. There is nothing in the material before the court to establish that the Tribunal applied the wrong test or asked the wrong question or otherwise fell into jurisdictional error in the manner contended for in ground three of the application. This ground is not made out.

Invalidity issue

1. Ground four of the application is raised in the alternative to grounds one to three.  It is that “At the relevant time, and in relation to visa cancellation, the provision of condition 8202 was invalid because the certification is required by an education provider to evidence non-compliance prior to the occurrence of such non-compliance”.

2. The particulars to this ground are as follows:

   n. Condition 8202 as applying in the current matter is Item 8202 of Schedule 8 to the Migration Regulations.

   o.    Relevantly, sub-condition 8202 (1) provides that a student visa-holder must meet the requirements of 8202 (2) and (3).

   p. Relevantly, sub-condition 8202 (3)(a) provides that a student visa holder meets 8202 if the education provider has not certified the holder as not “achieving satisfactory course progress for: (i) section 19 of the Education Services for Overseas Students Act 2000; and (ii) Standard 10 of the National Code…”

   q.Relevantly, sub-section 19(2) of the Education Services for Overseas Students Act 2000 provides that “[a] registered provider must give the Secretary particulars of any breach of an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs”.

   r.Temporally, since the certification as required under 8202 shall be “for” section 19 of the Education Services for Overseas Students Act 2000, but “any breach” under s19(2) could not have occurred without certification, condition 8202 is unable to be breached.

3. This ground was addressed briefly in written submissions for the applicant who contended that condition 8202 was not a valid condition “so that no student could comply with the condition”. The applicant’s submissions referred to the fact that the breach of condition 8202 did not rely on the student’s unsatisfactory course progress itself, but rather the certification by the education provider as to the student’s unsatisfactory course progress and to the fact that condition 8202 provides that a breach occurs when the education provider certifies the student’s unsatisfactory course progress for s.19 of the ESOS Act and Standard 10 of the National Code. Regulation 3.03A of the ESOS Regulations provides that a prescribed condition of a student visa is visa condition 8202.

4. It was pointed out that the requirement in s.19(2) was to notify the Secretary of breach a after the breach occurred. It was submitted that when read together these legislative instruments established a “circuit in which certification (condition 8208) need[ed] to have happened before the certification” under s.19 of the ESOS Act when that latter certification (s.19 ESOS Act) needed to have happened first before the former certification (condition 8202).

5. The applicant submitted that temporally and logically, prior to certification no certification could have occurred.  As a result, it was said that condition 8202 was unable to be complied with because no breach could have occurred before certification occurred. 

6. As the first respondent submitted, the applicant’s contentions appear to spring from a non-purposive approach to the provisions in issue which should not be understood to defeat their intent and make them unworkable. 

7. While the act constituting the breach is the certification, contrary to what appeared to be submitted for the applicant, this cannot be viewed in complete isolation from the underlying prior conduct of the applicant that was the subject of the certification.  As submitted for the first respondent, the fact that the breach consists of an act of the education provider, not of the student, is not such as to lead to the suggested invalidity, notwithstanding that the legislation refers in condition 8202 to the visa holder meeting the requirements of subclause (3).  A visa holder meets such requirements if there has not been a certification by the education provider within the terms of that provision.  The fact that the student’s compliance or non-compliance with condition 8202 is measured or made out by reference to a certification by the education provider does not sound in any invalidity.  The provision is clear.  It has not been established that the applicable form of condition 8202 considered in combination with reg.2.43, or otherwise, offends any principle of validity of subordinate legislation. 

8. The decision of the Full Federal Court in Maan is authority for the proposition that breach of, or non-compliance, with condition 8202 occurs at the time of certification.  The breach of condition 8202 is constituted by the education provider certifying the holder as not achieving satisfactory course progress “for” s.19 of the ESOS Act and Standard 10 of the National Code.

9. There was no suggestion in Maan that there was thus any invalidity, or that condition 8202 was incapable of being breached or not complied with.  While the argument presently before the court was not before the Full Federal Court in Maan, the approach taken in that case does not support the contentions made in this respect. 

10. The fact that under s.19(2) of the ESOS Act the education provider must give the Secretary particulars of any breach of a prescribed condition “as soon as practicable after” the breach occurs does not mean that a breach cannot have occurred until after such notification of the particulars of breach has been given. Section 19 does not refer to certification but rather to the registered provider giving “particulars of any breach” to the Secretary.  This is subsequently described as “[i]nformation required under this section” (s.19(3)). 

11. Indeed, the fact that an education provider may give the Secretary particulars of the breach by advising the Secretary of a breach consisting of a certification contemporaneously with (or immediately after) such certification does not mean that the provision of particulars of a breach to the Secretary needs to have happened before the certification that the holder has not achieved satisfactory course progress for s.19 of the ESOS Act and Standard 10 of the National Code. As the note to reg.3.03A of the ESOS Regulations observes, s.19(2) and s.20(1) of the ESOS Act make provision for a registered provider to notify the Secretary and a student of a breach of a prescribed condition of a student visa (i.e. a breach of condition 8202). Such notification obligations are conceptually separate from and in addition to the act of certification, notwithstanding that in condition 8202 the certification is to be “for” s.19 of the ESOS Act as well as Standard 10 of the National Code. The obligation in s.19(2) of the ESOS Act is to give the Secretary particulars of any breach (that is, particulars of the certification in the context of the requirements of condition 8202) as soon as practicable after the breach occurs.

1. Insofar as the applicant’s contention is that while certification by the education provider comprises the breach, the certification cannot be given until after the breach has occurred, this conflates the concepts of certification by the education provider for s.19 of the ESOS Act and Standard 10 of the National Code and the obligation on the education provider under s.19(2) of the ESOS Act to give the Secretary particulars of a breach of a prescribed condition.

2. It has not been established that condition 8202 is invalid in the manner contended for by the applicant.  Ground four is not made out.

3. As none of the grounds relied on by the applicant have been established, the application must be dismissed. 

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  16 March 2011