Patel v Minister for Immigration and Citizenship
[2011] FMCA 112
•2 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 112 |
| MIGRATION – Cancellation of Higher Education Visa – notification of unsatisfactory attendance given to applicant pursuant to s.20 ESOS Act – failure to appeal to education provider – decision to cancel visa based upon certificate by education provider – that decision stands alone for review by appropriate body – status of certificate – issued by officer without appropriate delegation – does not bear upon Minister unless defect apparent on its face. |
| Education Services for Overseas Students Act 2000 (Cth) ss.9(2)(d), 19, 19(1)(d), 19(2), 20, 33, 33(1), 34, 40, 44, 83 Griffith University Act 1998 (Qld) ss.7, 9(2)(b), 62, 64 Judicial Review Act1991 (Qld) s.4 Migration Act 1958 (Cth) ss.13, 14, 31(1), 31(3), 41(1), 116, 116(1)(b), 116(1)(v), 116(3), 189, 196, 198, 476, 499 Migration Regulations1994 (Cth), rr.2.01, 2.05(1), 2.43, 2.43(2)(b), 2.43(2)(b)(ii), 8202, 8202(3)(a), 8202(3)(b) |
| National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, Standards 10, 11, 11.6, 11.9 |
| Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 Minister for Immigration and Multicultural Affairs v ZHOU (2006) 152 FCR 115 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 |
| Applicant: | CHANDRAKANT BHAGABHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 827 of 2008 |
| Judgment of: | Burnett FM |
| Hearing dates: | 17 June 2009; 18 June 2009; 3 August 2009; 12 October 2009 |
| Date of Last Submission: | 12 October 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 2 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A.J. Torbey & Associates |
| Counsel for the first Respondent: | Mr Lloyd SC and Mr P. Bickford |
| Solicitors for the first Respondent: | Clayton Utz |
| Counsel for the second Respondent: | Mr Lloyd SC and Mr P. Bickford |
| Solicitors for the second Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Subject to any other application being made within seven (7) days of these orders, order the applicant pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 827 of 2008
| CHANDRAKANT BHAGABHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
By decision dated 22 October 2008 the Migration Review Tribunal affirmed the decision of the Minister’s delegate to cancel the applicant’s Sub Class 573 Higher Education Sector visa. The applicant has made application for relief pursuant to s.476 of the Migration Act 1958 (the Act) seeking certiorari to quash that decision, prohibition directed to the Minister to restrain him from giving effect to that decision and mandamus requiring the Tribunal to reconsider its decision according to law.
Background Facts
The applicant is an Indian national born 29 January 1982. He arrived in Australia on a Class TU, Sub Class 573 Student visa on 13 July 2007 and was granted a further Sub Class 573 visa on 13 September 2007. At the time of his arrival in Australia he held a Second Class Bachelor of Science degree in Mathematics from the Gujarat University and had been offered a place in a Masters Degree course in Information Technology – Advanced at Griffith University Queensland beginning on 3 March 2008. He had been enrolled in an English Language Intensive Course for Overseas Students (“ELICOS”) program with Griffith English Language Institute (“GELI”) from 27 August 2007 to 15 February 2008. He subsequently met his English language requirements for his masters program at Griffith University by “language of instruction” and cancelled his ELICOS at GELI finishing on 14 December 2007. However his attendance at the course throughout that period had been unsatisfactory.
By letters dated 24 October 2007, 9 November 2007, 29 November 2007 and 12 December 2007 GELI had written to the applicant warning him that his attendance for the course was unsatisfactory it having fallen below the level of 80% required by the standards provided for by the National Code of Practices for Registration authorities and Providers of Education and Training to Overseas Students 2007 (the National Code)[1] and that this could lead to immediate cancellation of his visa.
[1] The National Code was promulgated by the Minister for Education Services and Training pursuant to s.33(1) of the Education Services for Overseas Students Act 2000. Its purpose was to provide nationally consistent standards for the conduct of registered providers and the registration of their courses (clauses 1.1) and applied to all providers registered under the ESOS Act (clause 5.1). It was in part directed to visa integrity as the ESOS Act provided registered providers are required to notify both students and the Australian Government when students have breached their student visa conditions as a result of having failed to maintain satisfactory course program or attendance (clause 10.1).
On the Departmental file is an undated letter from the applicant in response to one of the letters from GELI to him. In that letter he stated that on arriving in Australia he had been ill because of a change of climate and workload. He attached three medical certificates together with a certificate from a registered nurse stating that he had been unfit to attend lectures and he sought concessions in respect of those periods. Those certificates related to four of the days in question.
On 21 December 2007 the applicant was advised by Griffith University of an intention to report him to the Department of Immigration and Citizenship (the Department) for unsatisfactory attendance. On 5 February 2008 Griffith University issued the applicant with a notice of non-compliance pursuant to s.20 of the Education Services for Overseas Students Act 2000 (the ESOS Act) (section 20 notice) accompanied by a certificate for the purposes of Condition 8202(3) of the Migration Regulations1994 to the effect that the applicant had not achieved satisfactory course attendance for the purposes of s.19 of ESOS Act and Standard 11 of the National Code. The notice contained a direction requiring him to attend the Department to make submissions about the breach and circumstances that led to the breach. The notice informed the applicant that if he attended the Department as required his visa would not automatically be cancelled and if he failed to report it would be automatically cancelled. The letter of 5 February from the University to the applicant was followed by a notice to him from the Department dated 12 February 2008. It confirmed the Department had received a certificate from Griffith University certifying that he had not achieved satisfactory course attendance.
In response to the Department’s notice of 12 February 2008 the applicant’s advisor sent a submission to the Department on 14 February 2008. In summary that submission contended there was no breach regarding Condition 8202(3)(a) because the applicant had been awarded a certificate for the ELICOS course on 14 December 2007 and further that insofar as any breach of that condition was alleged after credit was allowed for medical absences, absences relevant to the organisation of the program and his change of enrolment the applicant then met the minimum 80% requirement. It was further submitted that in the event the applicant did not meet the 80% requirement then the Minister’s delegate ought not cancel his visa on compassionate grounds they being particularly:
a)that he held an undergraduate degree and was about to commence an advanced masters degree;
b)the sunk costs associated with his education to date in Australia;
c)his having passed his ELICOS program five weeks ahead of schedule;
d)transportation difficulties experienced whilst in Australia; and
e)instances of explicable absence without leave.
He attached a number of documents to his submission in support of it.
Despite the applicant’s submissions to the Department the matters contended were addressed by the University upon the Department’s request of the University by its email of 20 February 2008.[2] Having considered all relevant matters the Department notified the applicant by email on 20 June 2008 of its decision to cancel the applicant’s visa.
[2] Respondent’s bundle page 166.
The applicant’s visa was cancelled on the basis of a failure to comply with the conditions of the visa. Relevantly s.116 of the Act provides:
“(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa;
…
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”
Section 116 is supplemented by regulation 2.43 of the Migration Regulations which 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) …
(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.”
The relevant Condition, that is Condition 8202, has been subject to considerable amendment as is discussed below. However for present purposes the relevant terms of subclause 8202 of Schedule 8 of the Regulations which applied were 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).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course’ or
(b) …
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) …
(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.”
So far as Condition 8202 applies to the applicant s.19(1)(d) ESOS Act required the registered provider (in this case GELI) to give notice following “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”. In this instance the certificate of non-compliance warranting notice of termination was based on non-compliance with Condition 8202 and particularly the failure to achieve satisfactory course attendance as required by the standards set in the National Code.
The relevant standards, they being Standards 10 and 11 of the National Code concerned monitoring course progress and attendance respectively. For present purposes the outcomes expressed in the Code adequately inform of their purpose. For Standard 10 the outcome is expressed to ensure:
“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 Education Services for Overseas Students Act 2000 (the ESOS Act), who have breached the course progress requirements”.
For Standard 11 the outcome is to provide:
“Registered providers systematically monitor students’ compliance with visa conditions relating to attendance. Registered providers are proactive in notifying and counselling students who are at risk of failing to meet attendance requirements. Registered providers report students, under s.19 of the ESOS Act, who have breached the attendance requirements”.
In this instance Griffith University which conducts the GELI had issued a certificate stating the applicant had not achieved satisfactory course attendance for s.19 of the ESOS Act and Standard 11. In his notification of cancellation under s.116 of the Migration Act 1958 the Minister’s delegate stated that he had decided that there was ground for cancellation of the applicant’s visa:
“…because on 05 February 2008 Griffith University certified to the Department that (the applicant) did not achieve satisfactory course attendance in relation to English language programs (beginner to advanced) (1-50 weeks). Griffith University has certificated (the applicant’s) unsatisfactory attendance and therefore I find that (the applicant) has breached Condition 8202 of his visa.
I have therefore decided to cancel the visa. (The applicant’s) visa was cancelled on 20/06/2008. The reasons for cancelling his visa were not considered sufficient to outweigh the existence of the ground for cancellation because (the applicant) was unable to demonstrate that the breach of Condition 8202 was due to exceptional circumstances beyond his control”.
The delegate’s decision was affirmed by the Tribunal.
The applicant advanced four grounds for review. The grounds contained varying degrees of particularity. They were as follows:
1.The Tribunal failed to properly interpret Condition 8202 in Schedule 8 of the Migration Regulations 1994 and s.116 of the Migration Act 1958 and hence its decision was an error of jurisdiction.
2.The Tribunal failed to make proper findings on the material before it and therefore made the errors of the type identified in SZLGP v Minster for Immigration & Citizenship [2008] FCA 1198 (2.0.08) and WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568, (per Lee & Moore JJ). As a result the Tribunal made a decision which was an error of jurisdiction.
3.The certification by the Griffith University under Condition 8202 was not valid. Hence there was an absence of a jurisdictional fact thus disabling the delegate of the Minister from making a valid decision to cancel the applicant’s student visa. It follows that the delegate had no jurisdiction to make that decision. The Tribunal standing in the shoes of the delegate ought to have appreciated that it did not have the jurisdiction to confirm the cancellation of the applicant’s student visa. Its decision therefore was an error of jurisdiction.
4.The Tribunal committed an error of jurisdiction by not making the correct or preferable decision.
During the course of submissions the applicant’s grounds for review were amplified. Although the respondents by their submissions contended these matters ought to be the subject of an amended application I am satisfied they fall within the general ambit of the matters raised. In particular the applicant’s written submissions ameliorate the absence of better particularisation in the body of the application. The respondents were clearly on notice as to the particulars now advanced by the applicant which matters were addressed by them in both written and oral submissions.
Ground 1 – Failure to properly interpret Condition 8202
The applicant contends that the Tribunal failed to properly interpret Condition 8202 in Schedule 8 of the Regulations and s.116 of the Act and hence the exercise of its discretion was in error of jurisdiction.
In his first outline, Counsel for the applicant noted that the Tribunal in its reasons for decision correctly set out the mechanical requirements of Condition 8202 and the related visa cancellation provision. The respondents noted in their submission that the applicant had not elaborated upon this ground in its initial submission. Further the respondents contended that the Tribunal did appear to deal with the proper construction of s.116(1)(b), Regulation 2.43 and Condition 8202 in its reasons and that no error in the approach by the Tribunal to its construction was apparent. To that point I think the respondents’ submissions were correct.
In the applicant’s second outline under the heading “interpreting Condition 8202” the applicant submitted more particularly that the Tribunal appeared to be unaware of the terms of Standard 11 and in particular clause 11.6 of the Conditions[3] which gives a student the right to appeal a decision to consider reporting the student for failing to meet the satisfactory attendance requirements. It was contended this omission constituted jurisdictional error by the Tribunal’s failure to deal with the case presented to it: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [87] per Kirby J.
[3] Applicant’s submissions 24 August 2009 paragraphs 1-4; 29-41.
Further the applicant contended the Tribunal miscarried in its treatment of the 70% attendance requirement in clause 11.9 of the Code.[4] At paragraph [42] he contended:
[4] Paragraphs 5-9; 42-54 of applicant’s submissions filed 24 August 2009.
“The MRT picked this up in its reasons but simply dismissed it without genuine consideration”.
Its complaint was also directed to a failure by the Tribunal to examine clause 11.9 of the Code. The applicant contended that by not understanding clause 11.9 referred in turn to Condition 8202 the Tribunal constructively denied itself jurisdiction.
Neither of these submissions did in fact address the interpretation of Condition 8202. They addressed the matters identified by the applicant in ground 3 of the application in that they addressed a challenge to the manner in which the Tribunal addressed questions before it. I deal with these matters under the heading ‘the condition 8202 issue’.
The matter contended under the heading “Jurisdictional Facts” pertained to the matters addressed in ground 2 and are addressed there.
In summary the applicant does not advance any substantive arguments in support of its complaint contained in ground one and that ground is dismissed.
Ground 2 and 3 – Failure to make proper findings and invalid certificate
Ground 2 of the application complains that the Tribunal “failed to make proper findings on the material before it and therefore made errors of the type identified in SZLGP v MIAC (supra) and WAIJ v MIMIA (supra)”. Those authorities highlight the need for a Tribunal to act judicially and the limitations that duty entails. Specifically, the requirement to make determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically and be articulated properly.[5]
[5] SZLPG supra at [25].
The applicant’s application did not particularise this matter beyond the complaint that the Tribunal’s conclusions contained in its decision “constituted an error of jurisdiction”.
The respondents do not take issue with the principals annunciated in WAIJ and SZLGP but note that the applicant offered no basis for relying upon this ground in its initial submissions and that there appeared to be nothing on the face of the Tribunal’s reasons suggesting any irrational or illogical fact finding by the Tribunal. To that point I accept the respondent’s submissions.
Despite the expressed grounds of the application, the submissions and oral argument advanced by the applicant and to which the respondents responded departed from a strict adherence to the terms of the application. The grounds largely overlapped and from the argument the following emerged as the principal issues for determination.
a)The Tribunal failed to make a determination on whether it had been open to the education provider not to issue a certificate in respect of the applicant because his non attendance had fallen into the range of 70-80% referred to in Standard 11.9 of the Code (the certificate issue);
b)The Tribunal ignored submissions “specially raised” by the applicant that he had lodged an appeal against the decision to consider reporting him for failing to meet satisfactory attendance requirements (the appeal issue); and
c)The existence of a valid certificate was a precondition for a breach of condition 8202 (the condition 8202 issue).
These matters are closely inter-related because the right of appeal provided by the education provider bears upon whether a certificate might issue following a student’s breach of a prescribed condition of a student visa.
The certificate issue
The evidence before the Tribunal was that the applicant’s course finished on 14 December. He then received a letter from the education provider, GELI dated 21 December advising it intended to report him to the Department because of unsatisfactory attendance. He was aware he had twenty days in which to appeal the report. He said that he rang the university administration and spoke with the manager and then met with them. That included writing to the GELI. Despite this he received a s.20 notice on 5 February 2009.
The applicant’s complaint was that the Tribunal failed to properly deal with this matter. In particular the applicant complained that the Tribunal appeared to be unaware of the terms of Standard 11 of the Code, particularly clause 11.6 of the Code, which afforded a student the right to appeal a decision. This failure was contended to be an error of the type identified in Dranichnikov (supra).
The applicant’s appeal letter is at page 192 of the respondent’s bundle of relevant documents (the bundle). The applicant complains that despite this the Tribunal “did not consider the failure of (the GELI) to take up the appeal anywhere in its decision (either as a positive or negative finding)”.[6] The applicant’s complaint is that the absence of discussion in the judgment means it was not addressed. Accordingly consistent with the expression of the High Court in Dranichnikov he contended there had been a constructive failure by the Tribunal to exercise its jurisdiction in deciding this point which failure constitutes jurisdictional error.
[6] Applicant’s submissions 24 August 2009 paragraph 31.
In response the respondents contend the matter is not one which had to be considered by the Tribunal and it follows that a failure by the Tribunal to address it could not give rise to error. The respondent says the validity of a decision to cancel does not turn on the validity of the certificate issued by an education provider such as GELI. As such the court has no role in determining the validity of the certificate issued by an education provider such as GELI in the course of judicial review of the Tribunal’s decision and it was entitled to accept it on its face. The applicant had appeal rights in respect of the certificate. However they were not engaged in this instance. For reasons which follow I consider that irrespective of the merits the Tribunal needn’t have been concerned with the appeal because ultimately a certificate under s.19 ESOS Act was given to the Secretary and the Minister was entitled to accept it without more.
To appreciate the argument it is necessary to closely examine the regulatory structure in place.
A non-citizen in Australia who does not hold a visa is an unlawful non-citizen and liable to be detained and removed (ss.13, 14, 189, 196 and 198 of the Migration Act 1958 (Cth)). The Act empowers the prescription of classes of visas and the prescription of criteria for eligibility for the grant of such visas (ss.31(1) and (3)). Regulations may provide that visas of a specified class may be subject to specified Conditions (s.41(1)).
One class of visa that was prescribed under s.31(1) is entitled “Student (temporary) (Class TU)” (reg.2.01 and item 1222 of Schedule 1 to the Migration Regulations 1994 (Cth)). That class of visa contained 8 subclasses including subclass 573 Higher Education Sector Visas (Item 1222(4) to Schedule 1). The criteria prescribed for that subclass also contains in Schedule 2 to the Regulations the conditions to which that subclass visa was subject (reg 2.05(1)). Relevantly item 573.611(1)(a) provided that all visas in that subclass are subject to Condition 8202.
The form of Condition 8202 that applied in relation to breaches since 1 July 2007 is:
“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) The holder meets requirements of this subclause if:
(a) the holder is enrolled in a registered course…
(3) The holder meets 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; or
(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 of Overseas Students Act 2000; and
(ii) Standard 11 of the National Code of Practice registration authorities and providers of education and training to overseas students 2007; and
(4) In the case of a 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 studying or training.”
The Minister has a power to cancel a visa if he is satisfied that the visa holder has not complied with a condition of the visa (s.116(1)(v)). The Minister is required to cancel a visa if there exists proscribed circumstances in which the visa must be cancelled (s.116(3)).
In the case of a class TU visa, the circumstances in which the Minister must cancel a visa include that the Minister is satisfied that the visa holder has not complied with Condition 8202 and noncompliance was not due to exceptional circumstances beyond the visa holder’s control (reg 2.43(2)(b)). The effect of this is that if there has been a noncompliance with Condition 8202 but due to circumstances beyond the visa holder’s control there is a power but not an obligation to cancel the visa.
A substantive part of Condition 8202 is referenced to the National Code. The National Code is made under the auspices of and pursuant to subsection 33(1) of the ESOS Act. In particular, Standard 10 of the National Code provides an obligation upon the registered provider to monitor record and assess the course progress of each student. The outcome for Standard 10 seeks to ensure:
“Registered providers systematically monitor students’ course progress. Registered providers are (to be) proactive in notifying and counselling students who are at risk of failing to meet the course progress requirements. Registered providers (are to) report students, under s.19 of the ESOS Act, who have breached the course progress requirements”.
Standard 11 concerns monitoring attendance. Again it imposes an obligation upon the registered provider to record the attendance of each student for the scheduled course contact hours for each registered course in which the student is enrolled. The outcome seeks to ensure:
“Registered providers systematically monitor students’ compliance with student visa conditions relating to attendance. Registered providers are (to be) proactive in notifying and counselling students who are at risk of failing to meet the attendance requirements. Registered providers (are to) report students, under s.19 of the ESOS Act, who have breached the attendance requirements”.
While the Code expresses intended outcomes it does not prescribe the manner in which the course providers regulate those matters. That is consistent with the observations contained in the preamble to the Code which notes that the Code:
“provides a nationally consistent standard for the conduct of registered providers and the registration of the course. The standards set out specifications and procedures to ensure the registered providers of educational training courses can clearly understand and comply with their obligation under the National Code”.[7]
Further, the Code specifically noted in the provision dealing with structure that Part D of the Code provided standards that would set out the obligations on and procedures for registered providers of education and training to overseas students. This is in contrast to those obligations described in Part B of the Code which dealt with the roles and responsibilities of the Australian government and State and Territory governments in administering the ESOS regulatory framework and Part C which outlined the Commonwealth register of institutions and courses for overseas students (CRICOS) registration requirements.[8]
[7] Clause 1.1.
[8] Part A, Clause 4.1.
In summary, as was submitted by the respondents, the effect of the introduction of the National Code in 2007 was to impose upon education providers obligations under the National Code relating to:
a)setting performance and attendance standards;
b)monitoring performance and attendance standards;
c)provide an appeal structure for determining whether those standards had been breached; and
d)oblige education providers to report breaches of those standards to the Department of Education and to students.
To this end the system was designed to interface with the student visa regime under the Migration Act through Condition 8202.
Critically the new scheme no longer required the Minister for Immigration to form views on attendance or academic progress at all. This it was submitted was now to be done by education providers. It was upon this point that the case really turned. That is, what was a visa holder’s remedy in the event that person was unhappy about a decision made in respect of the application of a Standard under the National Code? Was such an applicant’s remedy judicial review against the Minister under the Migration Act or was a decision made in respect of a Standard under the National Code only amenable to review processes available as provided by an education provider or other direct legal remedy against it?
It is the issuing of a certificate for the purposes of the relevant Standards of the National Code that gives rise to the breach of Condition 8202. The issue here was whether the Tribunal had jurisdiction to review the education provider’s decision to issue such a certificate.
As was detailed in the respondent’s submissions the objects of the ESOS Act include the protection and enhancement of Australia’s reputation for quality education and training services and for this to be done in a way that compliments Australia’s migration laws by ensuring education providers collect and report information relevant to the administration of law relating to student visas. This is achieved in part by the registration of approved education providers, the imposition of obligations on those providers and the provision of the obligations imposed by the National Code.
Subsection 19(2) of the ESOS Act obliges the registered education providers to give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after a breach occurs. Condition 8202 is a prescribed condition. Relevantly a breach occurs when unsatisfactory attendance or progress is certified for the purposes of Standards 10 and 11 of the National Code.
The purpose of the National Code promulgated pursuant to s.33 of the ESOS Act was to provide nationally consistent standards for the registration and conduct of the registered providers and the conduct of the persons who deliver educational services on behalf of registered providers (s.34). Specifically s.40 provides that:
“The only legal effects of the national code are the effects that this Act expressly provides for”.
The only legal effects given by the Act to the National Code are:
a)s.9(2)(d) dealing with current and projected compliance with the National Code as preconditions for registration as an approved provider;
b)standards for the imposition of disciplinary action on education providers available to the Minister pursuant to s.83; and
c)the provision of regulations making it an offence to breach prescribed provisions of the National Code.
None of the relevant provisions relied upon by the applicant in this proceeding have been prescribed for the purposes of s.44. Insofar as any conduct by the GELI is concerned, the respondents contend that if such conduct did constitute a failure to comply with the National Code it would not go to the validity of any Act or step taken by it. It is submitted that the position was clearly explained by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 where at pages 388 and 390 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] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. 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”.”
The respondents contended that the question to be asked was, would noncompliance with some aspect of the Code relevant to the issue of the certificate discern a legislative purpose to invalidate any act by the Minister premised upon that certificate. The respondent contended that in the context of s.40 it was plain that a failure to comply with a National Code was not intended to go to the validity of any Act or step taken by an education provider. Accordingly the question in this instance would be answered in the negative. The respondent contended that the National Code created a regime of obligations the breach of which had disciplinary consequences only (save for certain limited offences) and that critically the National Code did not create any binding legal rights or duties as between education providers and students. Further it submitted that the National Code did not provide a basis for holding any act or thing to be invalid and that accordingly the extent to which the applicant’s grounds turned upon the breach of or noncompliance with the National Code as a reason for invalidity as such must be rejected.
The applicant did not answer this submission. Rather the applicant’s response was directed to the significance of the overseas student sector to the Australian economy and the anomaly which was presented by the particular circumstances of this case because the applicant after having enrolled to undertake an ELICOS was able to demonstrate English language proficiency by reason of his undergraduate studies.
Respectfully however hard cases do not make for good law. The argument presented by the respondent focuses upon the decision in issue. In particular the fact that once the certificate issues the Minister’s hands are tied and critically that the Minister has no role in the decision making process relevant to the issue of the certificate. As the respondents noted in their submission the power to cancel a visa for breach of Condition 8202 arises when the Minister is satisfied that there has been certification by an education provider that has been made for the purposes of Standards 10 or 11 of the National Code and s.19 of the ESOS Act. That is, the constraint on the power to cancel is not whether a certificate exists as a jurisdictional fact but whether the Minister is satisfied that it exists. In other words, whether or not a valid certificate exists in relation to a visa holder, the power to cancel arises where the Minister is satisfied that there exists a certificate made for the purposes of Standards 10 or 11 of the National Code and s.19 of the ESOS Act.
As the respondents submitted, a certificate does not cease to be efficacious if the education provider failed to comply with some aspect of the National Code. One consequence for breach of the National Code is a disciplinary one for the education provider. It does not avail the student a basis for determining that a breach has not occurred. Undoubtedly noncompliance may provide a consideration for the Minister of grounds giving rise to exceptional circumstances beyond the control of the visa holder: see clause 4 of direction 38 under s.499 of the Migration Act; but this does not go to the existence of any breach. If noncompliance is accepted it could provide a basis to remove the obligation to cancel the visa; see Regulation 2.43(2)(b)(ii).
An argument advanced by the applicant was that the respondents’ approach denied the applicant any right of review. However I do not think that is so. The 2007 reforms operated to make the education providers the principal decision makers as to whether attendance and progress was satisfactory. These were to be measured against the particular rules and policies of the individual education provider concerned. They were required to meet basic standards imposed by the National Code. It was then left to the education providers to deal with any appeals within their own mechanisms remembering that the National Code provided that education providers were required to have such mechanisms in place. The overall effect of the system was to ensure the Minister was entitled to act upon a certificate issued to a certain effect. Once the Minister was satisfied that the certificate was to the effect stated in Condition 8202, there was a power to cancel. It is not the role of the Minister (or indeed the Tribunal) to go behind any certificate. The scheme was designed so that the Minister could simply rely upon the fact of the certificate and that a student wishing to prevent the issue of a certificate had available internal appeal systems. It follows that any relief sought in relation to a certificate lay against the education provider and not the Minister.
It follows, in my view, that certificates issued by an education provider are not an exercise of power under a statute but a step taken by that entity under its own auspices albeit to meet its obligations under the non enforceable requirements of the National Code. The only task that the Minister has to determine is that there exists, on its face, a certificate of a kind that engages Condition 8202(3); Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 at 373.
It follows in my view that in answer to the rhetorical question posed upon the Project Blue Sky (supra) principle is that there is no discernable legislative purpose to invalidate any act by the Minister premised upon a certificate issued under the ESOS Act.
The applicant contended however that this case is comparable to the decision of the Full Court in Minister for Immigration v Seligman (1999) 85 FCR 115 and the various principles flowing from that decision ought bind the outcome in this case.
Specifically the applicant contended that Seligman (supra) was authority for the proposition that the court was entitled to examine the validity of the certification by Griffith University in a judicial review for cancellation of a student visa. A similar issue had been alive before the court in Seligman at first instance where the court had taken the view that the delegate’s decision, based upon a medical opinion then before him, permitted judicial review as a proper vehicle for review of the medical officer’s opinion.
As the court noted he did so on the basis he considered the medical officer’s decision fell into a category of judicially reviewable decisions under s.475(1)(c) of the Act. That section (since repealed) provided:
“Subject to subsection 2, the following decisions are judicially reviewable decisions:
…
(c) other decisions made under this Act, or the Regulations, relating to visas.”
Significantly the court proceeded:
“[66] It is not necessary for the purposes of this case to characterise consideration of the medical officer’s opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion”.
At this point it is necessary to explain the context of those comments. The relevant power under which the medical officer’s opinion had been procured had earlier been the subject of a detailed consideration by the Full Court. It had determined the purported power in the relevant regulation requiring a medical officer in that context to form an opinion, other than on an element of or a matter relevant to the criterion, was beyond the power conferred by the Act. The Full Court concluded that the relevant regulation went beyond the Act’s legislative authority and was internally inconsistent because it required the medical officer to do something inconsistent with the language of the criterion which it imported. It was beyond the power conferred under the Act because of the limitation it imposed upon the medical opinion meant that it did not address the relevant criterion.[9]
[9] MIMA v Seligman at paragraph 56 – 58.
Against that background the court continued at [66]:
“The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which section 476 of the Act provides.
[67] It is not necessary for present purposes to decide whether his Honour was correct in characterising the opinion as a judicially reviewable decision. …”
Respectfully the applicant has omitted to address the point of whether the decision was extra jurisdictional in the sense that it was beyond the power. For reasons later advanced I do not think it is. Secondly the Full Court’s decision does not assist the applicant in determining the question of whether a court has power to review a Tribunal’s decision on the certificate beyond the matter of whether or not a certificate existed. That is to say, review the examination of the merits of the certificate decision. The only matter properly open for review is whether or not the delegate had before him, on its face, a valid certificate. The Full Court expressly avoided consideration of the ambit of the powers of judicial review in the context.
Accordingly in the absence of clear authority I consider the better view to be that a reviewing court has no such power and is limited to a review of decisions as provided for under the Act as it stands. Although arguably the approach by his Honour at first instance in Seligman might bind me, the case is clearly distinguishable. In Seligman at first instance the medical officer was accepted to be a delegate of the Minister whose decision was directly reviewable by the court pursuant to s.475(1)(c) then extant. That section has now been repealed and a radically different regime has been substituted with the enactment of Part 9 of the Act which severely impacts the jurisdiction of this court to review the Migration Review Tribunal’s decisions. More significantly however is the fact that the decision being one made under the ESOS Act is not a Migration Review Tribunal reviewable decision as provided for in the Migration Act.
The fundamental question to be addressed is whether or not the certificate decision was one within the power of the Minister’s delegate. For reasons which need not be rehearsed in this judgment the Full Court in Seligman following a close examination of the statutory and regulatory regime concluded that the opinion called for in that instance was in terms inconsistent with the relevant criterion.
In this case close examination of the statutory and regulatory scheme does not produce a like result.
The applicant submits the conclusion encapsulated in the s.19 ESOS Act certificate was unlawful. He contended the University did not properly apply the law in making that certification.[10] He contended Condition 8202 required that the certification had to be in conformity with Standard 11 and in this case he contended it was not. His submission proceeded:
“31. It does not appear to (be) anything in any of the material which indicates that there has been any consideration to clause 11.9 by either the MRT or the primary decision maker.
32. For there to be a valid certification by Griffith University there must be proper consideration of the 70% attendance threshold in clause 11.9. The fact that Mr Patel was no longer required by Griffith University to complete the ELICOS course in order to proceed to his masters is in itself a compelling circumstance that Griffith University ought to have taken into account. In the absence of any consideration of clause 11.9 by the Griffith University then there can be no valid certification under Condition 8202 by Griffith University. It appears Griffith University was prepared to accept that he had completed 70% attendance”.
[10] Applicant’s submissions 7 May 2009 paragraph 7.
Respectfully the applicant’s submissions ignore the underlying obligation upon the Minister’s delegate. The obligation which arose under the ESOS Act operated to impose upon education providers obligations under the National Code relating to setting performance and attendance standards; monitoring performance and attendance; providing an appeal structure for determining whether those standards have been breached; and obliging education providers to report breaches of those standards to the Department of Education and to students. Under the legislation there was no role for the Minister to form views on attendance or academic progress at all, that being a matter left to the education providers to perform in a manner consistent with the National Code. The delegate’s involvement with those matters arose only if the education provider certified for “not achieving satisfactory course progress” – Condition 8202(3)(a) or “not achieving satisfactory course attendance” – Condition 8202(3)(b) – the course attendance referred to in the condition being for s.19 ESOS Act and Standard 11 of the Code. However as the condition, the ESOS Act and Standard 11 of the National Code provide, these matters are to be left to the education provider, in this case Griffith University. They are not matters for determination by the Minister or his delegate. It follows this case is one where the certificate founding the delegate’s decision was not one premised upon the Act in that it’s source of power was founded in the Migration Act. The certificate was sourced in the ESOS Act with its existence enlivening the delegate’s powers to act, given it appeared valid on its face. Accordingly the decision to issue the certificate was not reviewable by the Minister or the tribunal.
The appeal issue
For reasons which follow under the heading ‘credit finding’ I am not satisfied that the applicant properly lodged an appeal against Griffith University’s notice to him of its intention to advise the Minister of his unsatisfactory attendance. It is evident that the Griffith University did not process and determine his appeal.
However if I am wrong in my finding the applicant contends he has a right to relief in the event his appeal was lodged in time. Concerning that matter the applicant says the following arises:
a)The failure went to the jurisdiction of the Griffith University to the issue of the certificate and accordingly its validity; and
b)The failure by Griffith University to internally address his appeal and the consequent outcome was a matter which ought to have been considered by the Tribunal but was not. It was contended this omission revealed jurisdictional error by the Tribunal.
For reasons I have provided above I consider the validity of the certificate has no bearing upon the Minister’s decision unless on the certificate’s face it ought to have been apparent to and alerted the Minister to the prospect that it was not a valid certificate under the ESOS Act. There was nothing on the evidence in this instance to suggest that was the case here. Further for reasons which I have addressed above I consider any failure by the Griffith University to process an appeal is an internal matter which would not concern the Minister. If the applicant did lodge an appeal he had review rights against the Griffith University which he ought to have pursued once he became aware that the s.20 certificate issued following the Griffith University’s failure to consider his appeal.
Likewise the same reasoning applies to the second complainant being that the Minister was under no obligation to consider the internal appeal processes of the Griffith University. He was entitled to rely upon the certificate which on its face appeared valid. The Tribunal in reviewing the Minister’s decision considered the matters placed before the Minister and in turn before it. Its findings were open to it upon the material provided and it can only be reversed upon a reconsideration of the merits. It is well settled that in this context merits review is impermissible before this court.
The condition 8202 issue
The applicant contended that the existence of a valid certificate was a precondition for a breach of condition 8202. The principal attack upon the certificate was that the person who had purported to issue the certificate did not have an appropriate delegation to issue it and that in doing so the purported delegate did not bring any proper consideration to bear upon its issue.
The applicant contended that one or more of the decision makers from Griffith University lacked the relevant authority to make a decision in concerning the issue of the s.20 certificate as a result of a lack of proper delegations. The applicant’s contentions were there are two distinct and separate decisions that must be made before a student can breach clause 11 of the National Code:
a)The first is a decision to notify the student that attendance has not been satisfactory as required by clause 11.6. It was contended that the persons who made these decisions that lacked the requisite authority;
b)The second decision is the “final certification issued under s.20 of the ESOS Act”. It was contended:
i)There was no valid delegation to make any decisions under the National Code;
ii)The person who issued the certificate under s.20 did not give proper consideration to the issues;
iii)That person did not have a delegation to make a decision to issue a certificate; and
iv)There can be no lawful sub-delegation of the powers of Council or Vice Chancellor.
In addressing these issues it is essential to understand the legislative regime provided for the conduct of the University and the interface between the University and the obligations arising under the ESOS Act. The Griffith University is established as a body corporate by s.4 of the Griffith University Act 1998 (the GU Act). Section 7 of the GU Act provides for the establishment of a Council. The Council’s powers as provided by the GU Act include doing anything necessary or convenient to be done for or in connection with its functions. Its powers include power to manage and control the University’s affairs; s.9(2)(b). Its function includes the provision of education. The Council has powers to delegate its powers to appropriately qualified members of the University staff. Likewise the Vice Chancellor has similar powers. It may create statutes and rules which have the status of subordinate legislation; ss.62 and 64.
The registration of Griffith University as a registered provider is provided for by s.9 of the ESOS Act. The requirements for registration include a requirement that the provider comply with the National Code. The National Code is promulgated by the Minister and is a legislative instrument; s.33 ESOS Act. Its purpose is to provide nationally consistent standards for the registration and conduct of registered providers and the conduct of persons who deliver educational services on behalf of registered providers; s.34 ESOS Act. The National Code is required to contain standards and procedures required for registered providers in providing courses for overseas students. It only has the legal effect provided for by the ESOS Act; s.40 ESOS Act.
Concerning the first point I accept that the delegations that were put in place were not properly employed. Those who purported to exercise power under delegation did not in fact possess delegated power. However for reasons which follow this did not disqualify the Minister or the Tribunal from relying upon the invalid certificates as in each case reliance was placed upon a certificate which on its face was valid.
The applicant’s counsel contended that the effect of the legislative scheme is that the decision to issue the s.20 ESOS Act certificate was a decision of either the Council or the Vice Chancellor and that the power to delegate that decision could only be done in writing and itself not be subject to sub-delegation.
A copy of the relevant delegation was exhibited to the affidavit of Andrew Peter Yuile filed 18 August 2009. It provided that “for the purpose of compliance with s.20 of the ESOS Act the [Pro Vice Chancellor (International)] or Director are authorised on behalf of Griffith University to sign all notices to be given under that section”.
The evidence was that the person who signed the s.20 notice was Ms Meenu Issa. At the time she was relevantly employed in the office of the Pro Vice Chancellor (International) as the International Admissions Supervisor. In her capacity as that office holder she said that she signed the s.20 notice. In her affidavit she stated that although she had no specific recall of signing the s.20 notice concerning the applicant, the usual practice was to receive a briefing from the relevant officer concerning the matters in support of the s.20 notice. She said that she would be informed that a s.20 notice was required to be signed and given a reason why the notice was required. Brief grounds would be stated to her following a process within the administration that the relevant officer had taken all necessary steps and due diligence was satisfied. As she believed she was the delegate for the Pro Vice Chancellor in that capacity she would then sign the certificates. Her evidence was that it was her practice to place reliance upon what she was told by relevant officers in the GELI.
Under cross examination she agreed that prior to execution she would receive a brief following which she would then execute the relevant notice or certificate.[11] When pressed in cross examination about the execution and nature of delegation her evidence was vague. In fairness she ceased working for Griffith University over 12 months prior to being called to give evidence. Furthermore she did not have access to any documentation from which to refresh her memory. However she impressed me as a responsible person. She appreciated the need for a delegation or basis of authority to execute certificates and notices under the ESOS Act. She also appreciated that she was called upon to do so on behalf of the Pro Vice Chancellor. Her approach to this task was to request a briefing so as to be appraised of the relevant facts and it was after this appraisal and upon the advice and recommendation of the relevant officers that she then purported to exercise her delegation. Although it is in fact the case that she did not hold a proper delegation I am satisfied she was not aware of that matter and at all times acted in good faith in the belief that she was authorised to sign notices including the notice to the applicant in the manner in which she did.
[11] Transcript P 38, Line 27.
In my view the applicant is correct in his submissions that the delegation can only be exercised by the delegate and that in this case, because there is no provision in the GU Act for sub-delegation provided in either of s.11 (Council’s Delegation) or s.52 (Vice Chancellor’s Power of Delegation). The only officer of the university who could issue a certificate under the delegation was “the Pro Vice Chancellor (International) or director”. In this case neither of those officers purported to sign the certificate under s.19 or the notice under s.20.
The decision to issue the certificate is one as defined in s.4 of the Judicial Review Act (Q) (1991). The relevant decision was not one made by the Minister pursuant to his powers under the Migration Act and not a Migration Review Tribunal reviewable decision; s.338 Migration Act.
In any event, the answer to any question concerning delegations is to be found in the Minister’s powers. The Minister’s powers to cancel a visa under s.116(1)(b) arise once the Minister is satisfied that a relevant certificate as been issued by the education provider. The Minister (and the Tribunal) is not required to investigate the issue of delegation. Provided the certificate appears on its face to be valid that is sufficient for the Minister and the Tribunal to be satisfied that there has been no breach. Given the facts as I have found them I consider there would have been nothing to place the Minister on notice as to the invalidity of the certificate. Accordingly irrespective of the validity of the s.20 notice, given it was on its face valid, the notice’s invalidity would not invalidate the decision made to cancel the visa under s.116(1) of the Act; Minister for Immigration and Multicultural Affairs v ZHOU (2006) 152 FCR 115 at [39] – [42].
The applicant further contended that in any event the introduction of the National Code represented a significant change to the role of the education providers. Accordingly he submitted that such a significant change of scheme required a review of the staff and processes appropriate to the preparation for submissions for the exercise of powers to issue notices and certificates under delegation. This may be correct but ultimately the point is redundant because the relevant officer did not hold a delegation and accordingly was not empowered to exercise the delegated power. Furthermore that matter did not bear upon the Minister’s entitlement to rely upon the notice which on its face appeared to be valid. It does not assist the applicant in this application.
It follows that I consider the applicant has not made out any of the matters raised in support of grounds 2 and 3 of the application.
Ground 4 – Error in not making the correct decision
Ground 4 was a catch all ground which was addressed in the body of argument above. It was not expressly agitated in debate and is dismissed.
Finding of unsatisfactory attendance
By way of additional argument outside the expressed grounds of the application the applicant contended that he claimed before the Tribunal an entitlement to a relaxation because he had greater than 70% attendance but that the Tribunal did not make a determination on that issue and that accordingly it did not consider exercising the discretion it had not to report the applicant for unsatisfactory attendance.
The Tribunal found as a matter of fact that to 14 December 2007 the applicant’s attendance had been 73%.[12] To reach this conclusion the Tribunal had considered and taken into account medical certificates, including backdated medical certificates which had been issued in his favour. It was contended that GELI as the education provider had a discretion not to issue an adverse certificate of attendance where it fell between 70% and 80% and that by its omission to consider this matter GELI and the Tribunal disabled itself from exercising its discretion.
[12] Tribunal decision page 18 para 67.
The first matter to address is what the Standard 11 of the National Code requires as a matter of proper construction. Once its construction is settled the Tribunal’s finding must then be examined to see if its decision was at variance with that which ought to have followed after consideration of that clause.
Clause 11.3 provides:
“11.3 For the courses identified in 11.1 the registered provider must have and implement appropriate documented attendance policies and procedures for each course which must be provided to staff and students that specify the:
(a) requirements for achieving satisfactory attendance, which at a minimum, requires overseas students to attend at least 80 per cent of the scheduled course contact hours.
…”
The operation of Clause 11.3 is ameliorated by Clause 11.9 which relevantly continues:
“11.9 For the ELICOS and school courses identified in 11.1 the registered provider may only decide not to report a student for breaching the 80 per cent attendance requirement where:
(a) the student produces documentary evidence clearly demonstrating that compassionate or compelling circumstances (e.g. illness where a medical certificate states that the student is unable to attend classes) apply, and
(b) …, and
(c) the registered provider confirms that the student is attending at least 70 per cent of the scheduled course contact hours for the course in which he or she is enrolled”.
The respondent contends that as a matter of proper construction the reference to “attendance” in clause 11.3(a) in the context of “satisfactory attendance” is a reference to actual and not notional attendance or in other words actual attendance inflated to allow for special considerations such as medical certificates.
I consider this approach to the construction of clause 11.3 is consistent with the words of the clause. The language in Clause 11.3(a) which established the clause 11.3 threshold is materially similar to clause 11.9(c). That threshold is only diminished as allowed by clause 11.9. For instance it can be seen in clause 11.9(c) one of the discretionary considerations includes confirmation of the student “attending at least 70 per cent of the scheduled course contact hours”.[13] If the construction advanced by the applicant were preferred then to be consistent the reference to the word “attendance” in clause 11.9 would have to also be read as contended for by the applicant in respect of its meaning in clause 11.3(a). The effect of that contention would be to permit the education provider to consider notional attendance when considering the lower threshold, that is the 70% attendance of the scheduled course contact hours as at the date of making the decision (clause 11.9(c)). However it is plain from the introductory part of clause 11.9 that the 80% attendance requirement is ameliorated by a consideration of matters provided for cumulatively in subparagraphs (a), (b) and (c). In particular subparagraph (b) permits consideration of medical certificates in reducing the “80 per cent attendance requirement” provided “that the student is attending at least 70 per cent of the scheduled course contact hours”. It would be anomalous if when considering attendance for the purpose of assessing the exercise of the discretion the decision maker could take into account medical certificates to lower the requirement of attending at least 70% of the scheduled course contact hours by the use of medical certificates. The provision of medical certificates are clearly expressed to apply to an assessment of the failure to achieve 80% attendance (clause 11.3), not to further diminish the threshold below which there is no discretion (clause 11.9(c)).
[13] The expression in clause 11.9(c) clearly requires a consideration of that state as at the time of decision.
Likewise in Clause 11.3(a) the noun “attendance” is informed by the verb “attend” which positively directs a student “attend at least 80 per cent of the scheduled course contact hours”. It is that provision in clause 11.3(a) which is ameliorated by clause 11.9. Accordingly when clause 11.3(a) is compared with clause 11.9(c) it seems anomalous that the minima set in clause 11.9(c) could be further reduced by the production of medical certificates, particularly when the base level of attendance is “attending at least 70 per cent of the scheduled course contact hours”.
The evidence demonstrates that in fact the applicant’s actual attendance was 66.25%. Even when allowance is made for incorporation of attendances recorded in the missing sheet as deposed to Mr Yuile in his affidavit actual attendance only reached 68.371%.
In my view the Tribunal was in error in adopting the view it did on the construction of clause 11.9. In fact the attendance was below the lower threshold thereby enlivening an obligation upon the education provider to issue the notice. No discretion properly arose.
It follows that notwithstanding the applicant’s complaint that the Tribunal failed to consider this matter as being in error, in point of fact it did not need to consider this matter because as a matter of fact the evidence demonstrates attendance fell below the rate set by clause 11.9 and accordingly the issue did not have to be considered by the Tribunal.
Failure to consider discretion in Condition 8202
A further complaint made by the applicant concerned the Tribunal’s failure to consider the Minister’s failure to consider the exercise of his discretion under condition 8202 as it invokes clause 11.9 of Standard 11. As explained above by reason of the facts in this case there was no obligation upon the Minister or the Tribunal to consider the exercise of a discretion under Clause 11.9. Irrespective of the applicant’s assertions on this matter, given the applicant’s attendance fell below 70% as a matter of fact, GELI as the course provider was required by Clause 11.6 to notify the applicant and ultimately the Secretary of DEST of the applicant’s unsatisfactory attendance as required by Clause 11.7. No discretion under Clause 11.9 arose not to report.
Hence in my view there was no breach of the provisions leading to invalidity; no reason to believe that the education provider failed to consider the clause; and no reason to believe that the Tribunal failed to consider the possibility that the education provider had failed to consider the clause.
Credit findings
Notwithstanding my findings concerning the applicant’s entitlement to review the Tribunal’s decision the applicant requires a factual determination on a number of issues relevant to establishing a jurisdictional fact in the event my conclusions on law are in error. The principal issues of fact are whether or not:
a)The applicant did in fact invoke the appeal processes provided for under the Rules;
b)Whether the decision maker was an authorised delegate to make the decisions; and
c)Whether the decision maker (under delegation) did in fact bona fide exercise his powers in making his decision to issue the s.20 ESOS Act certificate.
The applicant swore that he recalled receiving the letter from Griffith University dated 24 October 2007 in late October and also that he recalled receiving letters from the University dated 9 November 2007, 12 December 2007 and 21 December 2007 each of which addressed his attendance.[14]
[14] Transcript 17
In particular the applicant agreed he was aware that he had to appeal within 20 days of receipt of the letter of 21 December although he expressed some uncertainty as to whether the appeal would be to the deputy director or indeed who the deputy director was.
The letters of 24 October, 9 November, 29 November and 12 December 2007 appear as form letters noting the applicant’s course attendance and observing that it was “unacceptable for immigration purposes” and that if it did not improve it “may result in immediate visa cancellation”.
The letter of 21 December 2007 was headed “Re: Warning of Griffith University’s intention to report to the Department of Immigration and Citizenship for unsatisfactory attendance”. In its body it provided that the Department required visa holders to maintain satisfactory attendance being a minimum of 80% for the period of the program. It noted the applicant had been advised verbally and in writing of the risk of unsatisfactory attendance and that he had been assessed by the University as not being able to meet satisfactory attendance requirements. It continued:
“I now inform you of Griffith University’s intention to report you to the Department of Immigration and Citizenship for unsatisfactory attendance”.
The letter continued:
“If you think there are reasons why you should not be reported you may appeal against this decision in writing…
The procedure for making an appeal is available from the Griffith University website (grievance and appeal(s)) and is outlined on the attached flowchart. If you wish to make an appeal you have 20 working days from the date of this letter to make your appeal in writing to the Deputy Director, Allison McGrath at the above address [that being the address of Griffith University]. You will be advised in 10 working days of the receipt of your letter of the decision.
If your appeal is declined you may then appeal to the Pro Vice Chancellor (International) within 10 working days. Upon completion of this internal appeal, if you are still dissatisfied you may appeal to the external Ombudsman as outlined in the Griffith University website and the Ombudsman Act 2001…”
The flowchart attached to the letter is a relatively straightforward document.
The applicant acknowledged he read the flowchart and that he had read the “warning letter of 20 days time limit”.[15]
[15] Transcript 21 line 22.
The applicant says that having received the warning letter he attended the Griffith English Language Institute (GELI) in December:
“…and I have visited reception (indistinct) and asked about this letter and then they have advised me…I have (to) confirm with Mr David and I have to give this letter to him and then I have visited him…”.
Under cross examination the applicant confirmed that on 9 January 2008 (that is within the appeal time allowed under the policy) he attended with the University and someone there told him “he’d have to give his letter of appeal to David Edward”.
He stated:
“…initially I talked to reception staff and then they called to Mr David for an appointment for me and then I came into the office and I give to – I give letter and then he kept one office copy and (indistinct) send me other photocopy (indistinct) later”.[16]
[16] T21 line 40.
Unfortunately at the hearing before me the applicant appeared by telephone. Aside from exacerbating language difficulties (he ultimately required the services of an interpreter) it also meant he was unable to see the various witnesses called by the respondents. This proved to be significant particularly because none of the witnesses called by the respondent had any knowledge of the applicant’s appeal and no appeal was to be found on the file at the University. The applicant swore that he spoke with various administrative officers and officials at the University but save for “Mr David” he was unable to specifically identify them.
In evidence he agreed that on 9 January 2008 he went to GELI and spoke with someone at reception and on the same day went and saw “Mr Edwards”.[17]
[17] T23 line 11.
Mr Edwards ultimately was not called as enquiries suggested that the “Mr David” the applicant had been referring to was not Mr David Edwards, Dean at the Learning and Teaching – Science, Environment, Engineering and Technology Group but rather Mr David Eccles, Assistant Director of Studies. Once that matter of identification was resolved Mr Eccles was called.
Mr Eccles recalled the applicant. He particularly recalled meeting him in late August 2007 shortly after the applicant had commenced at the University when he and the applicant had discussed his “pathway to university”.[18] At that time Mr Eccles recognised that, based upon his letter of offer, the applicant did not need English language proficiency in order to commence his degree program. However Mr Eccles noted that the letter did not include the customary requirement to do an IOLTS test, that is an English language proficiency test. He stated the applicant was tested and the testing revealed that the applicant was at a “1+ on the ISLER scale” and for a Masters program he would ordinarily require a 3+ level. In summary Mr Eccles considered the applicant required English language training despite having an unconditional offer.[19]
[18] T85 line 25.
[19] T 86 line 35.
Accordingly, as Mr Eccles noted, the applicant did enrol in an English language intensive course for overseas student (ELICOS) which was programmed to proceed for 20 weeks. Mr Eccles stated that it was not a requirement of his enrolment that he do the program but merely that it was advisable. However the applicant was advised that while enrolled in the program he had to meet certain requirements and particularly that he must attend 80% of classes and that if he failed to meet the program requirements there could be an issue with immigration.
Mr Eccles recalled a subsequent meeting after the applicant had received the warning letter of Griffith University’s intention to report.[20] He stated that at the meeting he and the applicant discussed the implications of that letter and what he would need to do if he wished to appeal. However Mr Eccles was quite adamant that he never received from the applicant any appeal documents. He stated that had he received an appeal document he would have reviewed it in order to satisfy himself that it was satisfactory[21] and forwarded it to the Compliance Officer, Karen Morgan.
[20] Respondent’s bundle page 114.
[21] In this instance Mr Eccles reviewed the appeal document to be found at page 192 of the Tribunal book and assessed that it was adequate.
I have no reason not to accept the evidence of Mr Eccles on this point. He impressed me as an independent witness with a clear recall of these matters. Critically I accept he was never provided with any appeal document by the applicant.
The applicant’s evidence was that he had lodged an appeal against the University’s decision to issue the s.20 ESOS Act notice he had received. No one from the University was called to refute that evidence. Given the applicant’s lack of particularity, no adverse inference could be drawn against the respondent for this failure.
However notwithstanding that matter I am still satisfied the applicant did lodge with someone a form of appeal in the form of an undated handwritten document. The document bears no date. However I do accept that it is most likely that the date was to be found in the top left hand corner and the section was obliterated in the course of the copying of the document. What is compelling however is that the handwritten marking to be found in the top right hand corner of that page (and likewise in surrounding pages). In the top right hand corner is an encircled handwritten numeral. In the instance of the applicant’s appeal document it is numbered 8. However it forms part of a sequence of documents commencing 1 and concluding with the number 45 to be found from pages 161 to 197 of the Tribunal book. These documents were numbered by the first respondent and form part of a package of documents prepared by it for submission to the Tribunal. The question remains as to how that document made its way to the Tribunal if it was not passed on by the University. While the applicant says he gave the appeal to “Mr David”, whom I take to be Mr David Eccles, given my view as to his general reliability I consider he is mistaken in respect of his recollection of that matter.
The appeal document is consistent with the other documents prepared for submission to the Tribunal. For instance the grounds raised in the appeal are identical in the grounds raised in the notice of appointment of migration agent dated 14 February 2008 and the letter to the Department from the migration agent of the same date. Those documents comprise pages 22 to 28 of the department’s bundle for the Tribunal. I note in passing that it is not inconceivable that the applicant’s appeal document could have been included in documents forwarded to the department by the migration agent amongst other documents forwarded by it although the Department has not stated so. Given the issue was alive in the proceeding I would have expected evidence on this point. In the absence of evidence I am satisfied the notice of appeal was not provided to the Department by the applicant’s migration agent.
Furthermore the applicant himself presented to the Department. He did this in compliance with the direction issued to him in the non-compliance notification letter of 5 February 2008. That letter informed him that if he did not attend his visa would be automatically cancelled. Shortly after he received this letter he attended at the Department and, it would appear, he engaged a migration agent to assist him. All these events appear to have occurred at or about the time he attended upon the Department.
In the absence of any other basis to demonstrate the transmission of the applicant’s appeal notice by the University to the Department I am not prepared to find that it originated from the University and that the University did so because it had been earlier filed with it. It follows that the only way in which the appeal could have otherwise been received by the Department is if it was provided to it by the applicant, probably at the time of meeting with officers of the department in confidence with its 5 February notice to him. I am satisfied that on the balance of probabilities this is what in fact occurred. I am satisfied that the applicant is mistaken in his belief that he gave it to an officer of the University.
In summary I do not accept the applicant’s evidence that on 9 January 2008 he gave his appeal notice to an officer of Griffith University when he attended on that date to discuss these matters. I accept Ms Williamson’s evidence that he did not give a copy of the appeal notice to her and as I have earlier noted, I accept Mr Eccles evidence that he did not give it to him. I do not accept, as was urged by Counsel for the respondents, that the applicant is dishonest in his evidence on this point. Rather I consider that he is generally unreliable on points of detail. I am satisfied that it is more likely he gave the document to an unknown officer of the Department as was suggested by the respondents.
Generally I am satisfied that the applicant had prior knowledge of the appeal processes. Prior to commencing at the University the applicant was supposed to receive a booklet of the kind to be found at KLM 3 to the affidavit of Karen Lorraine Morgan filed 15 June 2009. The booklet relevantly details the attendance policy and grievance procedure applicable to the University’s English Language Programs. From their booklet he could be fully informed of the appeals process and how to engage it. The applicant maintained he had not ever received such a booklet before starting his course. He agreed he had attended at reception before starting his course and on that occasion he met a “Miss Phillipa” and was given some papers but says they did not include the booklet. He says he was given the booklet in June or July of 2008.
The respondents produced Ms Williamson who at the relevant time was the operations manager at GELI and was responsible for the course admissions process. She swore that in August 2007 the usual admissions practice for students arriving after the usual orientation (as was the case here) was for a student to be individually taken aside passport copied and matched against the list of students to start; provision of an information pack (including the booklet); have the student complete a student profile form; and, then have the student undergo an English placement test. In the course of this process the student would be taken to the GELI attendance policy. She stated it was her practice to personally provide the information pack to each new student.
The applicant’s file had a copy of his passport dated 27 August 2007. Implicit in her evidence was her belief that the applicant had been provided with the usual commencement pack because there was with GELI the material which it would retain as part of that process, that is, a copy of his passport and a completed student profile form. Furthermore, as was apparent from the evidence of Mr Eccles the applicant had undertaken an English placement test.
The evidence of the applicant and Ms Williamson are clearly irreconcilable on this point. I prefer the evidence of Ms Williamson on the matter. Although she cannot attest specifically to the provision of the document to the applicant other related matters occurred which give me confidence in concluding that events transpired as would be expected in the usual course. In particular a copy was taken of the applicant’s passport as would ordinarily occur in the course of the pre-admission process. In addition the applicant concluded a student profile form which was placed on his file. Finally the applicant underwent an English competency assessment.
In addition the applicant accepts he was given documents at this early session. He only denies receiving the booklet at this time, however he accepted that he did ultimately receive a copy although he says it was received much later, that is, in 2008. From my view of the applicant it was apparent that a lot was lost in the course of translation in particular in relation to matters that required some subtlety. He did not impress me as maintaining an entirely accurate recollection of the specific and particular matters although he did maintain a general recall. Accordingly, in the face of evidence of process by Ms Williamson, supported by objective material demonstrating the process appears to have been adhered to, I prefer that evidence to the somewhat vague contrary evidence of a general denial maintained by the applicant on this point.
Conclusion
It follows in my view that the Tribunal was correct in its determination that the applicant’s visa was cancelled on the basis of a failure to comply with a condition of the visa being Condition 8202(3)(b) based upon the s.19 certificate issued by Griffith University. The Tribunal proceeded to examine and consider and subsequently dismiss the applicant’s complaint that the applicant’s non-compliance with Condition 8202(3)(b) was not due to exceptional circumstances beyond his control. In reaching that conclusion specifically I conclude:
a)The Tribunal’s approach to its construction of clause 11.9 of Standard 11 of the National Code was not correct. Clause 11.9 requires that the minimum attendance requirement to enliven the exercise of a discretion requires attendance of at least 70% of the scheduled course contact hours meaning that medical certificates could not be considered in assessing that attendance. On the facts attendance was below 70% and the education provider was required to report the applicants’ unsatisfactory attendance.
b)The Tribunal correctly proceeded to make a determination affirming the Minister’s decision on the basis of the ESOS Act certificates issued by the education provider. The decision to issue those certificates being decisions of the education provider were not decisions pursuant to the Migration Act and accordingly not MRT reviewable decisions.
c)The invalidity of the certificates because of their issue by an officer of the university who lacked appropriate delegations did not invalidate the Minister’s decision because it was open to the Minister to rely upon the certificates issued by the education provider in circumstances where the certificates appeared valid on their face.
Orders
Application dismissed.
Subject to any other application being made within seven (7) days of these orders, order the applicant pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 2 March 2011
CORRECTION
Paragraph 29(a), line 3, delete “because of his non attendance” and insert “because his non attendance”.
Paragraph 57, line 2, delete “principal” and insert “principle”.
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