Mo v MIAC
[2009] FMCA 1026
•23 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MO v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1026 |
| MIGRATION – Review of MRT decision – where applicant’s student visa was automatically cancelled after she did not respond to a s.20 notice – where student had not achieved satisfactory course progress as required by condition 8202 – whether condition 8202 is a “prescribed condition” for the purpose of s.20 of the Education Services for Overseas Students Act 2000 – where applicant alleged that education provider had not followed procedures for monitoring and reporting student progress set out in the National Code – effect of non-compliance considered. |
| Education Services for Overseas Students Act 2000 (Cth), ss.4A, 19, 20, 40 Education Services For Overseas Students Regulations 2001 |
| Pearce v Cocchiaro (1977) 14 ALR 440 Mills v Meeking (1990) 169 CLR 214 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 Geaghan v D’Aubert [2002] NSWCA 260 Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 Hossain v Minister for Immigration & Anor [2009] FMCA 1008 Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 |
| Applicant: | ZHIMIN MO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1239 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 October 2009 |
| Date of Last Submission: | 8 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr M Jones |
| Counsel for the First Respondents: | Mr S Lloyd SC and Ms A Mitchelmore |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1239 of 2009
| ZHIMIN MO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ms Mo is an overseas student from the Peoples Republic of China who was granted a student visa (sub class 573) in August 2005. She first travelled to Australia on 8 October 2005. On 12 November 2005 she was granted a further student visa valid until 21 August 2008. That visa was subject to condition 8202. It was granted on the basis of Ms Mo’s enrolment in a Bachelor of Commerce course at the University of Wollongong. Ms Mo may have been a diligent student, but she was not a successful one. Her academic transcript [CB 71] reveals that in the academic year 2006 she passed two subjects, received one concessionary pass and failed six subjects. In the academic year commencing 2007 she passed one subject and failed six. Ms Mo’s progress at the university was monitored from the time of her enrolment in the autumn session of 2006 (20 February 2006). On 3 July 2006 she was first placed on referral for not satisfying post graduate course progress rules [CB 52]. On 22 December 2006 she was placed on probation for again not meeting satisfactory course progress. On 5 December 2007 she was excluded from the university for failing to satisfy the minimum academic progress requirements of the university.
Also on 5 December 2007 Ms Mo was sent a letter by the University of Wollongong [CB 54]. The letter advised her that she had been excluded from studying any course at the university for a year and then stated:
“You have the opportunity to appeal this decision, seeking re-enrolment. Your appeal must be made in writing with any relevant supporting documentation and the attached form completed. Appeals must be submitted to student central by 7 January 2008. Late appeals can only be considered if you can demonstrate that you are unable to submit your appeal due to exceptional circumstances.” [emphasis in original].
If you are an international student, being excluded means that you have failed to make satisfactory academic progress. This is a breach of your student visa conditions and may lead to your student visa being automatically cancelled. DIAC will be advised of your visa breach if you remain excluded at the conclusion of the appeal process. If your appeal is successful and your enrolment is reinstated, DIAC will not be notified of this matter.”
Ms Mo did not respond to this letter (she was in China at the time). She did not appeal and her exclusion remained valid. On 11 February 2008 the University of Wollongong created a certificate [CB 1]:
“Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994
University of Wollongong (UoW) [00102E] (trading as University of Wollongong) on 11 February 2008 certifies Ms Zhimin MO, for course Bachelor 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).
Dr David Christie
Principal Executive Officer (Principal Executive Officer)
University of Wollongong (UoW) [00102E] (trading as University of Wollongong)
Northfields Avenue
WOLLONGONG NSW 2522 Australia
11 February 2008”Also on 11 February 2008 a letter was written to Ms Mo [CB 2]:
“11 February 2008
Dear Ms Zhimin MO,
This letter is part of a Notice, known as a Section 20 Notice, from University of Wollongong (UoW) (trading as University of Wollongong). It is important that you read the whole Notice carefully as it deals with matters that affect whether you, members of your family unit and other people may become subject to visa cancellation, detention and removal from Australia.
University of Wollongong (UoW) has certified certain matters relating to course progress and/or course attendance which gives rise to a breach of a prescribed condition of your student visa. Please refer to the section of this Notice entitled ‘Particulars of the breach’ for details.
Your student visa will be automatically cancelled at the end of the 28th day after the date of this Notice 11 February 2008 unless you have taken one of the two options described in this Notice. Taking either Option 1 or Option 2 means that your visa will not be automatically cancelled as a result of the breach described in this Notice, but it might still be cancelled later.
Option 1 requires that you attend the Department of Immigration and Citizenship (DIAC) office that is specified under Option 1 of this notice, under the heading ‘Avoiding automatic visa cancellation under section 137J of the Act’. Under Option 2, you can attend any DIAC office in Australia. You must present photographic identification if you attend the DIAC office specified in this Notice and are requested to do so if you attend another DIAC office.
By attending a DIAC office and speaking to an officer you will have an opportunity to make any submissions about the breach and the circumstances that led to the breach described in this Notice.
This Notice also sets out how you may apply to the Minister of Immigration and Citizenship to have an automatic visa cancellation revoked, if automatic cancellation occurs. If automatic visa cancellation of your student visa is revoked, your visa will be taken never to have been cancelled. In other words, the visa will again be in effect, unless the visa would have ceased to be in effect for some other reason. In certain circumstances, it is possible for a decision by the Minister not to revoke an automatic cancellation to be reviewed by the Migration Review Tribunal.
The consequences of your failing to take Option 1 or Option 2 are very serious. A person without a visa in effect is an unlawful non-citizen and is subject to detention and removal from Australia. It is important that you read through this Notice carefully. If you have any questions regarding this Notice please call DIAC on 131 881 for further information.”
It will be seen that the letter explains the purpose and effect of the notice. The notice itself was attached [CB 3-7]. The notice states that it is sent to the applicant pursuant to s.20 of the Education Services for Overseas Students 2000 (“ESOS Act”). The applicant did not take up either of the options referred to in the fourth paragraph of the letter and, as a result, her visa was automatically cancelled under s.137J Migration Act 1958 (Cth) (the “Migration Act”). On 27 March 2008 the applicant applied for revocation of the automatic cancellation. A delegate of the Minister decided not to revoke the visa cancellation on 1 May 2008. On 9 May 2008 Ms Mo applied for review of the delegate’s decision from the Migration Review Tribunal. On 5 November 2008 the Tribunal affirmed the decision not to revoke the cancellation of the visa. On 5 March 2009 this Court set aside the Tribunal’s decision and remitted it to the Tribunal to be determined according to law. A new Tribunal was constituted. That Tribunal wrote to the applicant on 25 March 2009 a letter pursuant to s.359A of the Migration Act inviting her to provide comments on information that it considered to be part of the reason for affirming the decision under review in writing. The Tribunal required the response to be provided by 1 April 2009. No response was received by that date although a response was received on 2 April 2009. The Tribunal determined that s.359C applied and pursuant to s.360(3) the applicant was not entitled to appear before the Tribunal. The Tribunal proceeded to make its decision without a hearing but it did take into account the matters referred to in her response and other matters which had been before the previous Tribunal. On 17 April 2009 the second Tribunal determined to affirm the decision not to revoke the automatic cancellation of the sub-class 573 higher education sector visa.
On 22 May 2009 Ms Mo filed an application with this Court seeking review of the Tribunal’s decision. She claimed that the Tribunal erred in law by not setting aside the Minister’s decision and gave three particulars of that error. These particulars effectively constitute independent grounds and are set out below:
“Particulars
The Tribunal wrongly believed that the decision under review arose from a cancellation of the Applicant’s visa under section 137J of the Migration Act 1958. That section did not apply because no valid notice had been sent to the Applicant under section 20 of the Education Services for Overseas Students Act 2000 (the ESOS Act), for any or all of the following reasons:
a) Section 20 of the ESOS Act requires a notice to be sent where a student has breached a prescribed condition of a student visa. There are no visa conditions prescribed for the purposes of s.20 either in the ESOS Act or the ESOS regulations. Section 137J can only operate if a notice is validly sent under s.20 of the ESOS Act.
b) The notice must contain particulars of the breach (ESOS Act s.20(4)(a)). The purported notice in this case did not contain particulars of the breach.
c) If the claimed breach was dependant on a certification that the Applicant had not achieved satisfactory course progress for section 19 of the ESOS Act and Standard 10 of the National Code 2007, the education provider was not entitled to make such a certification because it had not followed the procedures required by the National Code 2007 before such a certification could be made.”
I shall refer to particular (a) as ground 1, particular (a) as ground 2 and particular (c) as ground 3.
Before considering each of these grounds in turn, it is well to make reference to the legislative background. Towards the end of 2006 there was introduced into the Parliament amending legislation that would produce a significant change in the manner in which the academic progress of overseas students would be overseen. The legislation changed the wording of the standard condition 8202, amended ss.19 and 20 of the ESOS Act and s.137J of the Migration Act. There was also introduced a National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students. The National Code and the amendments to the legislation and visa conditions came into effect on 1 July 2007. The respondent tells the Court that the purpose of this activity was to shift the obligation to monitor academic progress away from the Department of Immigration & Citizenship and to place responsibility on the academic providers, at the same time raising the standards of oversight and providing fairness to students through, in particular, standards 8 (Complaints and Appeals) and 10 (Monitoring Course Progress).
Prior to the amendments, s.19(2) of the ESOS Act was in the following form:
“A registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.”
And s.20(1) stated:
“A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.”
Consequent upon the amendments, s.19 read as follows:
“Giving information about accepted students
(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed;
(e) any change in the identity or duration of an accepted student's course;
(f) any other prescribed matter relating to accepted students.
(2) 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.
(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.”
And s.20 is in the following form:
“Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958 ) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.”
The Explanatory Memorandum to the ESOS Legislation Amendment (2006 Measures No 2) Bill explained the changes in respect of ss.19 and 20 as follows:
“Item 2 amends subsections 19(2) and 20(1) by deleting the words ‘student visa condition relating to attendance or satisfactory academic performance’ and substituting with the words ‘prescribed condition of a student visa’.
Currently sections 19 and 20 require the provider to report a student when the student has breached a student visa condition relating to attendance or satisfactory academic performance. The amendment will now provide for regulations made under the Act to identify student visa conditions to which the reporting requirements relate.
The purpose of this amendment is to ensure that the Department of Education, Science and Training has the necessary flexibility to amend the regulations made under the Act to ensure consistency between these regulations and the regulations made under the Migration Act 1958. It is also necessary to ensure that the ESOS legislative framework accurately captures the visa condition(s) determined by the Department of Immigration and Multicultural Affairs, which is set out in the regulations made under the Migration act 1958.
To remove any doubt, the amendments will not incorporate a range of new conditions in the regulations made under the Act that registered providers must report on nor will the amendments to the Act change what constitutes an offence by the registered provider if they fail to report on the prescribed conditions. The intention is to ensure that the ESOS legislative framework is consistent with the Migration legislative framework as it applies to student visa conditions relating to educational requirements.”
In his helpful written submissions, Mr Lloyd SC for the Minister says:
“The Minister contends that the legislative history of ss.19(2) and 20(1) together with the mirror functions they perform indicate that the reference to “a prescribed condition” in both sections should be construed as being a reference to the same condition. On this construction, a condition or conditions prescribed under s.19(2) would be picked up as a condition or conditions by s.20(1).”
For the purposes of this application, the relevant part of s.19 is s.19(2). The Education Services for Overseas Students Regulation 2001 were amended in 2007 to introduce regulation 3.03A:
“Breach by an accepted student of a student visa condition
For subsection 19 (2) of the Act, a registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition in the following table:
Item
Student visa condition
1
8202
Note See Schedule 8 to the Migration Regulations 1994 .”
Condition 8202 is in the following form:
“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 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 .
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full‑time course of study or training.”
The relevant provision of s.20 for the purposes of these proceedings is s.20(1). It is accepted that there is no similar provision of the ESOS Regulations in regards to s.20 as there is in regard to s.19(2).
The relevant provisions of ss.137J, 137K and 137L are the following:
“137J Non-complying students may have their visas automatically cancelled
(1) This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).
Note: Under that section, a registered education provider must send a notice to a non‑citizen who breaches a condition of the non‑citizen's visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non‑citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.
(2) The non‑citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non‑citizen complies with the notice; or
(b) the non‑citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette ;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.
137K Applying for revocation of cancellation
(1) A non‑citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation. …
137L Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non‑citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non‑citizen's control; or
(c) of any other matter prescribed in the regulations.
…”
Ground 1
Ms Mo’s position was simply and elegantly put by her advocate. She says that s.137J did not apply to her because she could not receive a valid notice under s.20. That section required a notice to be sent to her for breach of a prescribed condition and no condition has been prescribed under s.20. The respondent argues that whilst there has been no prescription of conditon 8202 in a regulation similar to Regulation 3.03A, a purposive reading of the legislation would clearly identify the prescribed condition for the purposes of s.20 as the condition prescribed for the purposes of s.19(2).
This is a difficult issue to determine. Clearly, the ESOS Regulations could have included a regulation similar to 3.03A which prescribed visa condition 8202 specifically for the purposes of s.20(1) if that was intended. Equally, it would have been possible to draft Regulation 3.03A so as to include a reference to s.20(1). However, the simple fact that this was not done does not necessarily indicate that condition 8202 was not intended to be a “prescribed condition” for the purposes of s.20(1). This is not a case where the provisions on their face offer only one construction. There are two possible constructions, one of which would render ss.20(1) and 137J ineffectual. Such a finding should not be reached lightly; Pearce v Cocchiaro (1977) 14 ALR 440 at [445] per Gibbs J.
In accordance with s.15AA of the Acts Interpretation Act 1901 (Cth) the Court must consider the purpose of the relevant sections. Section 15AA provides:
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
In Mills v Meeking (1990) 169 CLR 214, Dawson J offered the following explanation of the effect of s.35(a) of the Interpretation of Legislation Act 1984 (Vic) and, by implication, s.15AA:
“[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open.”
Section 20(1) is not a stand-alone provision. As the applicant points out, the operation of s.137J of the Migration Act relies on a s.20 notice being issued under the ESOS Act. If no notice can be issued under s.20(1) because no condition has been prescribed for that purpose, s.137J becomes ineffectual. In considering the nature of s.20(1) and s.137J in the event that no visa condition has been prescribed, the applicant submits that the provisions exist simply as tools which are not currently intended for use. Yet there is little to support this analysis.
Why would the Parliament, which has legislated a policy to make the education providers more responsible for the administration of student performance, provide only for notification to the executive and not to the affected person? Given the history of the operation of the sections, one would expect such a dramatic change in intended use to be discussed in the explanatory memorandum. Instead that document makes it clear that no substantive change was intended. Relevantly, it states;
“[t]o remove any doubt, the amendments will not incorporate a range of new conditions in the regulations made under the Act that registered providers must report on… The intention is to ensure that the ESOS legislative framework is consistent with the Migration legislative framework as it applies to student visa conditions relating to educational requirements.”
The implication of this is that the legislature did not intend to add or remove any condition which had been the subject of the notice requirements before the changes.
Given that no substantive change was intended, it is necessary to consider the form of ss.19(2) and 20(1) prior to the 2006 amendment (extracted at [8] of these reasons). Although the sections required notice to be sent to two different parties, namely, the Secretary under s.19(2) and the student under s.20(1), the trigger event was identical in both, that is, a breach of a “student visa condition relating to attendance or satisfactory academic performance”. It is accepted that prior statutory provisions dealing with the same subject matter may be used as an aid to interpreting current law; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490. In Geaghan v D’Aubert [2002] NSWCA 260 at [22]-[24], Stein JA noted:
“It is not unusual for courts to examine a prior statutory provision dealing with the same subject matter to enable them to construe a current statute. The reason is plain. The history of the legislative scheme may assist in ascertaining the legislative intent.
Pearce and Geddes (Statutory Interpretation in Australia (5th Edition)) have commented on the good sense of this approach. The learned authors say [at p 73]:
If one views the whole scheme of the legislation, it is possible to see the way in which the legislature is dealing with the subject matter: whether it is extending or contracting benefits; whether it is increasing penalties and so on. Such information must be of use to a court in its endeavour to understand the legislature's wishes.”
It is clear that, prior to the 2006 amendment, the same breaches obliged a registered provider to send written notice to both the Secretary and the student involved. Although it could be argued that, upon amendment, the legislature intended to distinguish between when notice should be sent to the Secretary and when it should be sent to the student, we have already seen that th ere is no indication of this in the explanatory memorandum and indeed, it is counter to the legislative history of the provisions.
Another consideration is the expectation that words and phrases in a legislative instrument will be used with precision and consistency. This was expressed by Hodges J in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450:
“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that applies especially to an Act of Parliament, and with especial force to words contained in the same section of the Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”
Although the words presently being considered do not appear within the same section, they do appear in sequential provisions. Had the legislature intended that different conditions be prescribed for ss.19(2) and 20(1), a more apt description for the “prescribed condition” would have been a “condition prescribed for the purposes of this section”. The fact that the phrase has not been limited in this way suggests that a condition prescribed for the purposes of either section would constitute a “prescribed condition” within the meaning of both sections. This conclusion seems even more likely when you consider that the phrase “prescribed condition” does not appear in any other sections of the Act and so what is prescribed under reg.3.03A could not be taken to apply to a clearly unrelated provision.
In a judgment handed down on 20 October 2009, Scarlett FM also considered the operation of ss.19(2) and 20(1) of the ESOS Act; Hossain v Minister for Immigration & Anor [2009] FMCA 1008. Consistently with the findings above, his Honour found that a condition prescribed for the purposes of s.19(2) applied to the s.20(1);
“In my view, sections 19 and 20 of the ESOS Act are meant to be read together, and they follow in logical order. The prescribed condition in subsection 20(1) can only be the prescribed condition in subsection 19(2). It cannot refer to anything else. It would be absurd for the breach of prescribed condition, which must be reported to the Secretary under s.19(2), was not the breach of that same condition that must be the subject of a written notice to the student under s.20(1).”
As I have indicated, I am satisfied that a purposive reading of the legislation would clearly identify the prescribed condition for the purposes of s.20 as the condition prescribed for the purposes of s.19(2). As such, ground 1 is not made out.
Grounds 2 and 3
The other grounds raised by the applicant go towards the validity of the s.20 notice. Ground 2 argues that the notice did not contain particulars of the breach. This ground was not pressed at hearing. Ground 3 argues that the notice is invalid on the basis that the education provider did not follow the procedures set out in standard 10 of the National Code. Under condition 8202(3), the holder of a student visa will not meet the conditions of their visa if the education provider has certified them as not having achieved satisfactory course progress for the purposes of s.19 of the ESOS Act and standard 10 of the National Code. Standard 10 sets out the following procedures for education providers to follow prior to issuing a certificate under condition 8202;
“Standard 10 – Monitoring course progress
Outcome of Standard 10
Registered providers systematically monitor students’ course progress. Registered providers are proactive in notifying and counselling students who are at risk of failing to meet course progress requirements. Registered providers report students, under section 19 of the ESOS Act, who have breached the course progress requirements.
10.1 The registered provider must monitor, record and assess the course progress of each student for each unit of the course for which the student is enrolled in accordance with the registered provider’s documented course progress policies and procedures.
10.2 The registered provider must have and implement appropriate documented course progress policies and procedures for each course, which must be provided to staff and students, that specify the:
a. requirements for achieving satisfactory course progress
b. process for assessing satisfactory course progress
c. procedure for intervention for students at risk of failing to achieve satisfactory course progress
d. process for determining the point at which the student has failed to meet satisfactory course progress, and
e. procedure for notifying students that they have failed to meet satisfactory course progress requirements.
10.3The registered provider must assess the course progress of the student in accordance with the registered provider’s course progress policies and procedures at the end point of every study period.
10.4 The registered provider must have a documented intervention strategy, which must be made available to staff and students, that specifies the procedures for identifying and assisting students at risk of not meeting the course progress requirements. The strategy must specify:
a. procedures for contacting and counselling identified students
b. strategies to assist identified students to achieve satisfactory course progress, and
c. the process by which the intervention strategy is activated.
10.5 The registered provider must 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% or more of the units attempted in any study period.
10.6 Where the registered provider has assessed the student as not achieving satisfactory course progress, the registered provider must notify the student in writing of its intention to report the student for not achieving satisfactory course progress. The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeals process as per Standard 8 (Complaints and appeals) and that the student has 20 working days in which to do so.
10.7 Where the student has chosen not to access the complaints and appeals processes within the 20 working day period, withdraws from the process, or the process is completed and results in a decision supporting the registered provider, the registered provider must notify the Secretary of DEST through PRISMS of the student not achieving satisfactory course progress as soon as practicable.”
Before examining the alleged non-compliance of the education provider, it is necessary to consider the effect that these breaches, if established, would have on the decision to automatically cancel the applicant’s visa under s.137J. The applicant submits that the Minister may only act under s.137J if a notice is validly sent under s.20 of the ESOS Act and a s.20 notice may only be issued if a valid certificate under condition 8202 has been made. The applicant argues that the certificate issued in this case was not valid on the basis that the education provider did not comply with the procedures set out in standard 10 of the National Code. However, this assumes that the issuing of a valid notice is an essential preliminary to the decision-making process under s.137J. Perhaps more critically, it assumes that the issuing of a certificate by an education provider which has followed the standard 10 procedures is an essential preliminary to the issuing of a s.20 notice. The respondent submits that this is incorrect.
The respondent relies on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where McHugh, Gummow, Kirby and Hayne JJ said:
“[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue…
[93] A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.” [Footnotes omitted].
Relevantly, s.40 of the ESOS Act provides that “the only legal effects of the national code are the effects that this Act expressly provides for”. In his written submissions, the Minister has summarised the legal effects given by the Act to the National Code:
“a)current and project compliance are preconditions for registration as an approved provider (s 9(2)(d));
b)as standards for the imposition of disciplinary action on education providers and then only upon action taken by the Minister (s 83);
c)the regulations may make it an offence to breach prescribed provisions of the National Code (s 44). None of the provisions relied upon by the applicant in this proceeding has been prescribed.”
The respondent submits that the effect of this is that any failure to comply with the National Code is not intended to go to the validity of any act or step taken, or failed to be taken, by an education provider. The legislative scheme has been designed so that education providers are responsible for collecting and reporting information relevant to the administration of the law relating to student visas; s.4A ESOS Act. The intention is to place the responsibility for monitoring students’ compliance with visa conditions on the education providers who are in the best position to do so. To suggest that the Minister should “go behind” a 8202(3) certificate is counter-productive to this purpose. The only task of the Minister is to determine that a certificate, on its face, is of a kind that engages condition 8202(3); Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356, Sackville J at [373]. The Minister was not required to enquire into the validity of either the certificate or the s.20 notice in order to exercise his power under s.137J.
The applicant argues that even if a failure to comply with the procedures of the National Code does not render the certification, and therefore the notice and cancellation, invalid, it is at least capable of amounting to exceptional circumstances for the purposes of s.137L(1)(b) of the Migration Act. It is true that the procedures employed by an education provider may be relevant to the Minister’s consideration of whether or not to revoke cancellation of the visa under s.137K. That was the decision that was under review. Direction No. 38 requires the Tribunal, when considering whether the non-compliance with condition 8202 was or was not due to exceptional circumstances, to have due regard to;
“written advice from the Department of Education Science and Training or an education provider that it has concerns about errors or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting.”
Before the Tribunal, the applicant made claims regarding the alleged failure of the education provider to comply with the standards of the National Code. The Tribunal did not accept these submissions;
“The information provided by UoW to the Tribunal, of which the applicant was made aware through the Tribunal’s s.359A correspondence, confirms that the education provider sent various warnings to the applicant and had given her the opportunity to engage in the University appeals/complaints process. The education provider’s correspondence also informed the applicant that exclusion may indicate that the applicant may be in breach of her visa conditions. The education provider sent to the Tribunal copies of such correspondence and the Tribunal is satisfied, having regard to that evidence, that the education provider had followed the procedures required by the National Code before making the certification.”
At [58] [CB 185] the following is written:
“The Tribunal has also considered the matters set out in Direction 38… There is no written advice from DEST or the education provider as to any concerns about errors or inappropriate actions or omissions in the process leading to non-compliance and subsequent reporting. Indeed, as noted above, the information provided by UoW suggests that the education provider has accurately monitored the applicant’s course progress and had given the applicant access to a complaints handling and appeals process as required by standard 8 of the National Code.”
The applicant submits that these findings expose an incorrect understanding of the law on the Tribunal’s part. There were two matters which were raised by the applicant. First, it was submitted that the education provider excluded the applicant in breach of standard 8.4 which required the provider to maintain the student’s enrolment throughout the complaints and appeals process. However, as the respondent points out, this obligation only arises if the student chooses to access the registered provider’s internal appeals processes. That was not done in this case.
The applicant also suggested that the notice of intention to report her unsatisfactory course progress suggested to the applicant that she had less than 20 days to respond, contrary to standard 10.6. In an email which was sent to the applicant on 5 December 2007 [CB 50], she was advised that she had not met the minimum academic progress requirements for that semester. She was told that a letter would be sent to confirm that decision and a response would be required by 5 January 2008. However, allowing for Christmas and New Year, the period of 20 working days from 5 December 2007 would not have ended until 7 January 2008. In its letter of the same date [CB 54], the education provider corrected its mistake and wrote in bold type that the applicant must respond by 7 January 2008. I cannot agree with the submission that the education provider failed to ensure that the applicant had 20 working days in which to appeal. In any event, the university did not issue a certificate for the purposes of s.19 of the ESOS Act until 11 February 2008 [CB 1].
For the reasons given above, I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,865.00.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 October 2009
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