YIJIN Zhou v Minister for Immigration and CITIZENSHIP - [2012] FMCA 62

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YIJIN ZHOU v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] FMCA 62

MIGRATION – Review of decision of the Migration Review Tribunal – whether Tribunal’s decision affected by jurisdictional error – whether the Tribunal erred in finding that a cancellation of a student visa was lawful upon the issue of a certificate pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) in circumstances where the National Code of Practice for Registration Authorities and Providers of Education an Training to Overseas Students 2007 provided for an external appeal of a decision following an unfavourable internal review – whether exceptional circumstances existed because the education provider failed to comply with internal policies – whether the Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1), 116(1)(b); 137(J), Pt.8
Migration Regulations 1994 (Cth), reg.2.43
Education Services for Overseas Students Act 2000 (Cth)
National Code of Practice for Registration Authorities and Providers of Education an Training to Overseas Students 2007

Maan v Minister for Immigration [2009] FCAFC 150; (2009) 179 FCR 581
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Applicant:

YIJIN ZHOU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2156 of 2011

Judgment of:

Emmett FM

Hearing date:

2 February 2012

Date of Last Submission:

2 February 2012

Delivered at:

Sydney

Delivered on:

8 February 2012

REPRESENTATION

Counsel for the Applicant:

Leonard Karp

Solicitors for the Applicant:

Ren Zhou (Ren Zhou Lawyers)

Counsel for the Respondent:

Reg Graycar

Solicitors for the Respondent:

Katherine Hooper (DLA Piper)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2156 of 2011

YIJIN ZHOU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Migration Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 26 August 2011 and handed down on 29 August 2011.
The issue in this case is whether the Tribunal erred in finding that the cancellation of the applicant’s student visa was lawful upon the issuing of a certificate pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the s.20 Certificate”) in circumstances where the National Code of Practice for Registration Authorities and Providers of Education an Training to Overseas Students 2007 (“the National Code”) provided for an external appeal in respect of an unfavourable internal review decision by the Sydney Institute of Business and Technology (“SIBT”). The SIBT’s internal grievance policy provided for a period of ten days to lodge an external appeal from the date of the unfavourable internal review. In this case, the s.20 Certificate was issued only two days after the unfavourable internal review. The reason for the issuing of the s.20 Certificate was the certification by the SIBT that the applicant had not achieved satisfactory course progress for the purposes of s.19 of the Education Services for Overseas Students Act 2000 (Cth)(“the ESOS Act”) and therefore failed to comply with condition 8202 of his visa.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the relevant legislation, and a summary of the Tribunal’s review and decision.

Background

The applicant arrived in Australia in March 2007 having departed legally from China on a passport issued in his own name and a Subclass 573 Higher Education Sector visa issued on 7 March 2007.
In February 2009, the applicant enrolled in a Diploma of Commerce at the SIBT. Between July 2009 and 16 April 2010, the applicant was provided with warnings from the SIBT in respect of his poor attendance and poor course progress.
On 18 June 2010, the SIBT sent the applicant a notice under s.19 of the ESOS Act informing him that it intended to exclude him from his course for a period of 12 months. The letter informed him that exclusion may result in the cancellation of his visa and further notified the applicant of the availability of an internal appeals process and, in the event that was not successful, an external appeals process.
On 14 July 2010, the applicant sought an internal review of the decision.
On 10 August 2010, the applicant was informed that his review had been resolved unfavourably. On that date, the applicant signed an acknowledgment indicating that he had been advised about the SIBT’s external appeal process.
On 12 August 2010, the SIBT again advised the applicant that his internal appeal had been unsuccessful. The letter attached the s.20 Certificate advising the applicant that his visa would be automatically cancelled under s.137(J) of the Migration Act after 28 days unless he pursued one of the options set out in the letter. Particulars of the applicant’s breach of condition 8202 were set out in the letter.
On 31 August 2010, the Department issued the applicant with a “Notice of Intention to Consider Cancellation” pursuant to s.116 of the Act.
In November 2010, the applicant made submissions to the Department identifying alleged exceptional circumstances.
On 16 December 2010, a delegate of the Minister notified the applicant of the decision to cancel the applicant’s visa by reason of the SIBT’s certification of the applicant’s failure to achieve satisfactory course progress and his consequent failure to comply with condition 8202 of his visa.
On 23 December 2010, the applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 26 August 2011, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa.
On 23 September 2011, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 116 of the Migration Act states, relevantly, that:
“Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b) its holder has not complied with a condition of the visa; or
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”
Regulation 2.43 of the Migration Regulations 1994 (Cth) (“the Regulations”) sets out the prescribed circumstances referred to in s.116(3). Regulation 2.43(2), relevantly provides:
“(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applied to the visa); or
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.”
In broad terms, the questions that arise for consideration under reg.2.43(2)(b)(ii) are: (a) whether the applicant failed to comply with condition 8202; and if so (b) whether the non-compliance was due to exceptional circumstances beyond the applicant’s control.
Section 137K of the Migration Act permits an application to the Minister for revocation of the cancellation of a visa. However, s.137K(2) reiterates that the Minister must cancel the visa if the Minister is satisfied that the visa holder has not complied with condition 8202 and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Section 19 of the ESOS Act provides that a registered provider, in this case the SIBT, must give the Secretary of the Department particulars of any breach by a student of a prescribed condition of a student visa, including condition 8202, as soon as practicable after the breach occurs. The breach by the registered provider of s.19 of the ESOS Act is an offence pursuant to s.104 of the ESOS Act.
Section 20 of the ESOS Act requires the registered provider, in this case the SIBT, to give a student written notice of the breach of a prescribed condition, in this case condition 8202.
Condition 8202 is listed in Sch.8 of the Regulations. Condition 8202 states, relevantly:
“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 Student Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education an 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.”

The Tribunal’s review and decision

On 23 December 2010, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The applicant provided further documents in support of his review application.
On 2 June 2011, the Tribunal wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it.
On 9 June 2011, the applicant responded to the Tribunal’s letter dated 2 June 2011 alleging that the SIBT had failed to give the applicant the right to access an external appeals process as required under Standard 8 of the National Code. The letter stated that the applicant received his s.20 Certificate two days after notification of the unsuccessful internal appeal. Relevantly, Standard 8 of the National Code is as follows:
“8.2 The registered provider must have arrangements in place for a person or body independent of and external to the registered provider to hear complaints or appeals arising from the registered provider’s internal complaints and appeals process or refer students to an existing body where that body is appropriate for the complaint or appeal.
8.4 If the student chooses to access the registered provider’s complaints and appeals processes as per this standard, the registered provider must maintain the student’s enrolment while the complaints and appeals process is ongoing.”
The applicant’s letter dated 8 September 2011 also referred to the SIBT’s Student Academic Grievance Policy which stated that a student may appeal through the SIBT’s independent grievance handling/dispute resolution process within ten days of the adverse internal decision. The letter went on to state that the applicant had ten working days to lodge an external appeal after notification of the unsuccessful outcome of his internal appeal on 10 August 2010.
On 6 July 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 5 August 2011 to give oral evidence and present arguments.
On 5 August 2011, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
Relevantly, the Tribunal did not accept that the s.20 Certificate sent by the SIBT within two days of its decision disallowing his internal appeal was an exceptional circumstance. This was so even though the Tribunal conceded that the SIBT’s internal grievance policy allowed ten days to apply for external appeals. The Tribunal’s reasoning for this finding was expressed to be because the SIBT’s failure to comply with its internal policy is not a breach of the National Code. The Tribunal referred to Standard 8 (complaints and appeals) of the National Code. The Tribunal found that “in the applicant’s case the SIBT has acted consistently with the National Code and it was under no obligation under the National Code to wait for ten days before certifying the applicant”.
The Tribunal noted references provided by the applicant’s representative of cases where the Migration Review Tribunal, differently constituted, had found such administrative failure to be an exceptional circumstance. The Tribunal noted that it was not bound by the decision of another Migration Review Tribunal and it had decided not to have regard to other decisions by the Migration Review Tribunal.
Ultimately, the Tribunal found that the applicant’s non-compliance with condition 8202(3)(a) was not due to exceptional circumstances beyond his control within the meaning of reg.2.43(2)(b)(ii)(B) of the Regulations. Accordingly, the Tribunal found that a ground for cancellation existed pursuant to s.116(1)(b) of the Migration Act and that, pursuant to s.116(3) of the Migration Act the applicant’s visa must be cancelled.
The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

The proceeding before this Court

The Applicant was represented before this Court by Mr Karp, of counsel. The Minister was represented by Ms Graycar, of counsel.
Leave was granted to the applicant to file in Court and rely upon an amended application which stated the following grounds:
“1. The Tribunal failed to consider and apply Migration Regulation 2.43(2)(b) according to law.
Particulars
(a) The Tribunal erred in its construction of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code), in that it erroneously construed Standard 8 thereof as not requiring an aggrieved student to be given access to an external appeals process.
(b) Such misconstruction diverted the Tribunal from asking itself, as was required by Migration Regulation 2.43(2)(b)(ii)(B),
(i) Whether the education provider’s certification of the applicant’s academic performance pursuant to Condition 8202(3)(a) (which constituted the applicant’s non-compliance with Condition 8202) in circumstances where it breached the National Code was an exceptional circumstance, and if so,
(ii) Whether the certification was beyond the applicant’s control.
2. Alternatively, the Tribunal took an irrelevant consideration into account, and misconstrued and misapplied Migration Regulation 2.43(2)(b)(ii), in considering whether the applicant’s failure to comply with Condition 8202(3)(a) was due to exceptional circumstances beyond his control.
Particulars
(a) The Tribunal found that the applicant’s education provider’s failure to comply with its own policies to permit an applicant to external appeal against a decision to certify him as not meeting Condition 8202 was not an “exceptional circumstance” because (so the Tribunal found) external review was not a part of the National Code established under the Education Services for Overseas Students Act, 2000.
(b) Whether or not the education provider’s internal policies were a part of the National Code was irrelevant to the issue posed by Migration Regulation 2.43(2)(b)(ii).
(c) On the Tribunal’s findings, those issues were:
(i) Whether the SIBT’s failure to follow its own procedures was an exceptional circumstance which led to the certification which constituted the non compliance, and,
(ii) Whether that was beyond the applicant’s control.”
Mr Karp conceded that the SIBT had in place arrangements for an external appeal as required by Standard 8.2 of the National Code.
However, Mr Karp submitted that at the heart of ground 1 was a submission that no practical access to an external appeal process had been given to the applicant in circumstances where the SIBT gave the applicant the s.20 Certificate within two days of its decision disallowing his internal appeal.
Mr Karp submitted that Standard 8.2 of the National Code carried the implication that a reasonable time to access the external appeal process was to be afforded to the applicant. As stated above, the SIBT’s internal grievance policy gave an aggrieved student ten working days to access an external appeal after being advised of an unsuccessful outcome to an internal review.
Mr Karp conceded that s.40 of the ESOS Act provided that no relevant legal effect flowed by reason of a breach of the National Code. However, Mr Karp submitted that the SIBT’s breach of the National Code was relevant to the question posed by reg.2.43(2)(b)(ii)(B) of the Regulations as to whether or not the applicant had complied with condition 8202 and whether any non-compliance was not due to exceptional circumstances beyond his control.
It is common ground that it is the certification by the education provider that constitutes a student’s non-compliance with his visa conditions (see Maan v Minister for Immigration [2009] FCAFC 150; (2009) 179 FCR 581 at [44]).
Mr Karp submitted that whether or not the SIBT complied with the National Code in deciding to notify non-compliance with condition 8202 is relevant to the question of whether the circumstances in which the s.20 Certificate issued were exceptional. Mr Karp further submitted that whether or not the applicant had any opportunity to access the external appeals process must be relevant as to whether those circumstances were beyond his control.
The applicant’s submissions to the Department following receipt of the s.20 Certificate did not include any complaint about the timing of the issuing of the s.20 Certificate being only two days after notification of the unfavourable internal review. Neither did the applicant make any reference to the SIBT’s internal grievance policy that provides ten days for the lodging of an external appeal. Nor was there any later complaint about either of those matters by the applicant until after the Tribunal hearing on 2 June 2011.
Moreover, there was evidence before the Tribunal that the applicant had twice before been informed of the existence of an external appeals policy, the first time on 18 June 2010 and again on 10 August 2010.
Further, I am not persuaded by Mr Karp’s submissions that there was a breach of the National Code by reason of the fact that only two days was afforded to the applicant to access the external appeal process. Standard 8.2 does not require any particular time frame to be available to a student to access the external appeal process. Further, I do not accept that there is any implication in Standard 8.2 that requires a particular time frame. The fact that the SIBT’s internal grievance policy provides for ten days does not make it a breach of the National Code if a shorter time is adopted by the SIBT.
It is clear from the Tribunal’s decision that it was aware of the SIBT’s internal policy of allowing ten days for external appeals.
In the circumstances there was no breach of the National Code by the SIBT in the receipt by the applicant of the s.20 Certificate within two days of the SIBT’s decision disallowing his internal appeal, despite the fact that the two days did not comply with SIBT’s internal policy of allowing ten days.

Further, I am not satisfied that there was no practical opportunity to the applicant to instigate an external appeal during those two days. The applicant, for whatever reason, chose not to do so. In those circumstances, access to the external appeals process was not beyond his control.
The Tribunal’s finding that the SIBT acted consistently with the National Code is a finding that was open to the Tribunal on the evidence and material before it and was correct. Moreover, the Tribunal’s further finding that the SIBT was under no obligation under the National Code to wait for ten days before certifying the applicant was also open to the Tribunal on the evidence and material before it.
The Tribunal did consider whether the short time of two days was an exceptional circumstance and found that it was not because it was not a breach of the National Code. Mr Karp submitted that that was not a satisfactory reason for finding that there was no exceptional circumstance. I reject that submission. That was a reason that was open to the Tribunal for grounding its finding of no exceptional circumstances and the fact that there were other reasons also available to the Tribunal that may also have grounded that finding does not make it a jurisdictional error for the Tribunal only to have relied on the reason it expressed.
The Tribunal was not obliged to follow earlier Migration Review Tribunal decisions in relation to what may or may not have been an exceptional circumstance. The Tribunal correctly stated that it is “required to consider all of the facts of a case in total and come to its own view as to whether it is satisfied that non-compliance was not due to exceptional circumstances beyond the applicant’s control”.
Accordingly, ground 1 is not made out.
Mr Karp submitted that at the heart of ground 2 was a contention that, if there was no breach of the National Code, then the SIBT acted contrary to its internal policy of allowing ten days for an external appeal and that is an exceptional circumstance that should have been considered by the Tribunal.
Mr Karp also submitted that in considering whether the SIBT breached its own policy and whether that was an exceptional circumstance, it is not relevant whether the National Code was breached or not and the Tribunal should not have taken it into account. I am not persuaded by that submission. I accept the written submission of Ms Graycar as follows:
“46. There is also no basis for the claim that the Tribunal committed jurisdictional error by taking into account an irrelevant consideration, namely that there had been no breach of the National Code. In Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 the High Court made it clear that the ground of taking into account an irrelevant consideration can succeed only where the factors that it is permissible for a decision-maker to take into account are identified clearly in the statute (or limits on the factors that can be taken into account are evident from the subject matter, scope and purpose of the Act): see (1986) 162 CLR 24 at 40 (per Mason J). If the impugned matter is not something that it is impermissible to take into account, then the issue becomes one of the weight to be attached to it which, generally speaking, is a matter of fact and would not lead to an error of law.
47. As the case law on what constitutes ‘exceptional circumstances’ (some of which is canvassed at CB 258-260; [14] – [22]), makes clear, there is no statutory limit on the factors that may be taken into account in determining whether something qualifies as an exceptional circumstance for the purpose of Regulation 2.43.”
Regulation 2.43(2)(b)(ii) requires that the Minister must cancel a visa if the Minister is satisfied that the visa holder has not complied with condition 8202 and the non-compliance was not due to exceptional circumstances beyond the visa holders control.
For the reasons referred to above, I am not satisfied that the

non-compliance by the applicant was due to exceptional circumstances beyond his control.
The applicant had been aware since 18 June 2010 that he could access an external appeals process if his internal review was unsuccessful. There was no evidence before the Tribunal of any attempt by the applicant to access that external appeals process at any stage during the two days prior to the issue of the s.20 Certificate or any complaint by the applicant thereafter to the SIBT of a denial of any opportunity to pursue an external appeal process.
In the circumstances, the relevant finding by the Tribunal is that it was not an exceptional circumstance to issue the applicant with the s.20 Certificate within two days of the SIBT’s decision disallowing the internal review, even though it was contrary to SIBT’s internal policy of allowing ten days for external appeal. As stated above, that finding was open to the Tribunal on the evidence and material before it.
The fact that the Tribunal may have taken into account an irrelevant factor, namely whether or not it was a breach of the National Code, does not by itself demonstrate jurisdictional error on the part of the Tribunal (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24). As referred to by Ms Graycar in her written submissions in paragraph 54 above, there is no statutory limit on the factors that may be taken into account in determining what may qualify as an exceptional circumstance for the purposes of reg.2.43 of the Regulations.
Therefore, it was not a jurisdictional error for the Tribunal to have regard to the fact there had been no breach of the National Code in considering whether it was an exceptional circumstance to issue the applicant with a s.20 Certificate within two days of its decision disallowing his internal appeal, contrary to its internal policy of allowing ten days for external appeals.
Accordingly, ground 2 is not made out.

Conclusion

In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 8 February 2012