Zhang v Minister for Immigration - [2005] FMCA 1132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION

[2005] FMCA 1132

MIGRATION – Application to review decision of Migration Review Tribunal – cancellation of Student visa for failure to attend 80% of classes – condition 8202 – whether reasons for non-attendance relevant – whether substantial compliance sufficient.

Migration Act 1958, ss.116, 116(4)(b), 137J, 137L, 359A
Education Services for Overseas Students Act 2000, s.20

Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1484
Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669
Kan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 923
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574
Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170
Zhou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1078
Minister for Immigration & Multicultural & Indigenous Affairsv Yu [2004] FCAFC 333
Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561
Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 229
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant:

BO ZHANG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2060 of 2003

Judgment of:

Barnes FM

Hearing dates:

19 April 2005 and 13 May 2005

Date for Last Submission:

15 July 2005

Delivered at:

Sydney

Delivered on:

16 August 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Tees Solicitors & Attorneys

Counsel for the Respondent:

Mr J. Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Migration Review Tribunal is joined as a respondent to the proceedings.
That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2060 of 2003

BO ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

The applicant seeks review of a decision of the Migration Review Tribunal (the Tribunal) made on 8 September 2003 affirming a decision of a delegate of the respondent made on 20 May 2003 to cancel the applicant's Student (Temporary) (Class TU) visa. Consistent with the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the Tribunal should be joined as a respondent to these proceedings.
The applicant is a citizen of the People's Republic of China. He first entered Australia as the holder of a Subclass 560 (Student) visa granted on 5 September 2000. On 5 November 2002 the applicant was granted a Subclass 572 (Vocational Education and Training Sector) (Student) visa. That visa was subject to condition 8202, which, among other things, relevantly required (in sub-paragraph 8202(3)(a)(ii)) the Minister be satisfied that the holder attended for at least 80% of the contact hours scheduled for each semester of the course.
The Tribunal's reasons for decision record that the visa granted on 5 November 2002 was on the basis of the applicant's ongoing enrolment in a Diploma of Information Technology course at the Academy of Information Technology (AIT).
On 10 April 2003 AIT issued the applicant with a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (C’th) informing him that he had breached a condition of his visa relating to attendance in the course in which he had enrolled. The particulars of the breach were that he had not maintained satisfactory attendance and that his attendance was 56 per cent.
On 8 May 2003 the applicant attended an interview with the Department of Immigration and Multicultural and Indigenous Affairs. He was issued with a notice of intention to consider cancellation under s.116 of the Migration Act 1958 (the Act) by the Department. The notice stated that the possible grounds for cancellation were:
Academy of Information Technology has advised that your attendance is 56 per cent. It appears that you have breached condition 8202 on your visa because you have not maintained at least 80 per cent attendance and/or maintained satisfactory academic progress in each term/semester of your course.
On 9 May 2003 the Department wrote to AIT seeking information about the applicant's attendance and academic record. The letter asked for actual attendance as well as attendance once medical certificates had been considered. Copies of any medical certificates submitted were requested.
On 14 May 2003 AIT wrote to the Department with details of the attendance history and academic record of the applicant. It stated that for Semester 1 (4 November 2002 to 27 February 2003) the applicant’s average attendance (without medical certificates) was 56 per cent and with medical certificates was 81 per cent and that he had failed all five subjects undertaken. The letter continued that Mr Zhang was undertaking a second semester of studies which was still in progress and that his average attendance (with or without medical certificates) to date in the semester that commenced 24 March 2003 was 80 per cent. The academic director stated that in recent times he had observed the applicant making significant improvements in his academic efforts.
It appears from the record of the decision of the delegate for the respondent as to whether to cancel the applicant's visa that the applicant admitted that he presented bogus or “fake” medical certificates (which he claimed to have bought from a friend for $400 each) to justify his poor attendance in the first semester of the course. Copies of four medical certificates from the Departmental file appear in the Court Book (at 1 – 4). It is not disputed that these are the “bogus” medical certificates. Each is on a printed form in the name of a doctor (referred to as Dr “L” as there is no suggestion that he was implicated in providing the “fake” certificates). Two of the certificates address periods of time within the first semester (being dated 9 December 2002 and 24 February 2003) and state that the applicant was suffering from “fever” over two five-day periods. The other two, dated 3 March 2003 and 10 March 2003 refer to “flu, fever” and address periods between the first and second semesters.
The applicant’s visa was cancelled for the following reasons:
Mr Zhang has used fraudulently acquired medical certificates to excuse and justify his poor attendance at school. His attendance for semester one (4/11/02-27/2/03) was 56%. As such this is a breach of condition 8202 that constitutes (sic) mandatory cancellation.
On 26 May 2003 the applicant sought review by the Tribunal of the decision to cancel his visa. On 2 July 2003 the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act 1958 inviting him to comment on information that might form the reason or part of the reason for affirming the delegate’s decision – being information from AIT stating that in Semester 1 2002 (sic) he attended only 56% of required classes; the fact that the medical certificates he provided to AIT (bringing his attendance for the semester to 81%) were found to be bogus and that he told the Department that he paid $1600 to obtain these bogus certificates; and that there was only limited evidence before the Tribunal to explain his poor attendance in Semester 1, 2002.
The applicant's migration agent responded to the Tribunal (after an extension of time to respond was granted) by letter received by the Tribunal on 18 July 2003. This letter emphasised the applicant's contrition and remorse for his actions and claimed that it could be “shown through medical opinion … that the applicant was suffering from a bout of anxiety and depression syndrome, brought on by circumstances out of his control.” It was contended that the Tribunal had discretionary powers and the applicant should be given a “second chance” and “fair go”. It was contended further that the applicant “has a hereditary problem with a severe incapacitating neurological condition, which is hard to diagnose” and that his mother suffered from the same anxiety condition. Documents and statements were attached relating to his family’s financial problems in Hong Kong that were said to have affected his “character” because of the worry he had about his mother's plight. The applicant claimed to have been studying in Australia since 2000 successfully. It was also pointed out that he had endured a period of incarceration in a detention centre before being granted a bridging visa.
Included in the supporting documentary material attached to this submission was a facsimile from Dr Ben Wong of Hurstville City Medical Centre dated 11 June 2003 stating that the applicant had attended on 12 March 2003 for insomnia for which medication was prescribed and that on 24 April 2003 a certificate of attendance was issued.
Also provided were copies of two medical certificates for the applicant dated 25 February 2003 and 6 May 2003 from Dr L in the same format as the medical certificates which the applicant had admitted were bogus, but bearing a stamp of a medical centre and referring to a “respiratory tract infection” from 24 February 2003 to 26 February 2003 and gastroenteritis from 5 May 2003 to 6 May 2003.
A further statement of attendance from AIT dated 18 July 2003 stated that the applicant’s average attendance in Semester 2 was 80 per cent and that he had not completed the course. The semester was described as “semester incomplete” despite the fact that it was also described as having finished on 19 May 2003. The end date for Semester 1 (28/02/03) and the commencement date for Semester 2 (03/03/03) referred to in this letter are not the same as the dates provided in the earlier statements of attendance dated 14 May 2003 but it has not been suggested that anything turns on whether the first semester ended on 27 or 28 February 2003 or on the dates for the second semester.
On 21 July 2003 the Tribunal wrote to the applicant inviting him to attend a hearing on 18 August 2003. On 16 August 2003 the Tribunal received a copy of a letter from Dr Y C Wong dated 12 August 2003 stating that he had seen the applicant three times since 3 July 2003 for medical and psychological assessment and treatment. The letter described the applicant’s history (suggesting that his problems began in February 2003) and suggested that while the applicant had suffered from a viral infection as evidenced by medical certificates from Dr L “patient and doctor were not aware of” the psychiatric aspect of the illness at that time. This letter suggested that the applicant's poor attendance was explained by the lack of treatment of the core psychological trouble from which he was suffering which was said to be “Asthenia from Anxiety and Secondary Depression”. Further written submissions were also provided by the adviser. The applicant attended the Tribunal hearing.

Tribunal decision

On 8 September 2003 the Tribunal affirmed the decision under review to cancel the applicant's Student's (Temporary) (Class TU) visa. In the introduction to the reasons for decision the Tribunal incorrectly referred to a subclass 560 (Student) visa. Thereafter it referred to and dealt with subclass 572, which was in fact the class of visa held by the applicant at the relevant time.
The Tribunal recorded the background to the cancellation of the applicant’s student visa under s.116(1)(b) of the Migration Act 1958 arising from breach of condition 8202. In its outline of evidence the Tribunal referred to the submissions to the Tribunal including the medical certificate from Dr Ben Wong and those of 25/2/03 and 6/5/03 from Dr L. It also referred to the certificate which it was said “purports to be from Dr Y. C. Wong dated 12 August 2003”.
The Tribunal stated:
The review applicant is enrolled in a registered course. The attendance records for the review applicant states (sic) that without medical certificates, his attendance in Semester 1, 2002 (sic) was 56%. The education provider accepted medical certificates from the review applicant and when these were included, attendance for the period was 81%. However, these certificates were found to be bogus, a fact admitted to by the review applicant during a Departmental interview and confirmed at the hearing. The Tribunal is satisfied that the review applicant's level of attendance in semester 1, which went from 4 November 2002 until 28 February 2003, was 56%. Thus, the Tribunal is satisfied that condition 8202 was breached. There was power to cancel the review applicant's visa under section 116(1)(b), cancellation is mandatory under section 116(3) and cancellation has taken place. These findings determine the outcome of the review application.
The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non-compliance of the condition is established the Tribunal is bound, by the operation of s 116(3), to affirm the visa cancellation.
The Tribunal concluded that the applicant's level of attendance in semester 1 (4 November 2002 to 28 February 2003) at AIT was 56%, that he did not comply with condition 8202, that there was power to cancel his visa under s.116(1)(b) and that the delegate was under a statutory duty to cancel the visa pursuant to s.116(3) when read in conjunction with regulation 2.43(2)(b)(ii) of the Migration Regulations 1994. It affirmed the decision under review.

This application

An application for review of the Tribunal decision was filed in this Court on 3 October 2003. It relied on seven unparticularised and somewhat formulaic grounds. However on 31 May 2004 the applicant filed an amended application and accompanying affidavit. The amended application recited the dates of events and contended first that in making the cancellation decision the Tribunal's finding of a number of jurisdictional facts was not reasonable. It was also contended that the decision involved an error of law, that the Tribunal ignored relevant considerations, that it denied the applicant natural justice or procedural fairness and that it was, or appeared to be, biased. Particulars of each of these grounds were included in the amended application as discussed below.
The matter was listed for final hearing on 19 April 2005. At the commencement of the hearing the applicant, who was self-represented, clarified his concerns in relation to the Tribunal's alleged failure to take into account medical evidence that he had submitted to it. It emerged that the applicant had not served the respondent's solicitor with a copy of his amended application. Each party was given the opportunity to file supplementary written submissions to address matters raised for the first time at the hearing on 19 April 2005. The hearing was adjourned to 13 May 2005. The applicant also filed two affidavits. On 13 May 2005 the applicant was represented by a solicitor, Mr Hu. After the hearing time was allowed for the respondent to endeavour to obtain the hearing tapes and for further submissions.

Relevant legislation

Section 116 of the Migration Act 1958 (C’th) is as follows:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)its holder has not complied with a condition of the visa; or
(c)another person required to comply with a condition of the visa has not complied with that condition; or
(d)if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e)the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f)the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa)in the case of a student visa:
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g)a prescribed ground for cancelling a visa applies to the holder.
(1A)The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(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.
It is not disputed that the applicable form of condition 8202 is, relevantly, as follows:
(1)The holder ... 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 sub clause if:
a)in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80 per cent of the contact hours scheduled:
(i) for a course that runs for less than a semester - for the course; or
(ii)for a course that runs for at least a semester - for each term and semester of the course; and
b)in any case that the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs less than a semester - for the course; or
(ii)for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course.
...
Regulation 2.43(2) of the Migration Regulations 1994 provides:
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)each of the circumstances comprising the grounds set out in paragraphs (1) (a) and (b) ; and
(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
(i)condition 8104 or 8105 (if the condition applies to the visa); or
(ii) condition 8202.

Construction of condition 8202

Several of the grounds in the amended application raise the issue of the relevance of the claimed medical condition of the applicant to the issue of whether or not there was compliance with condition 8202, in particular subparagraph 8202(3)(a)(ii) of condition 8202. It is helpful to consider first the relevance of evidence of any reasons for non-attendance before addressing the particular grounds of review relied on by the applicant. The applicant provided medical certificates and documentation (other than the documents admitted to be “bogus”) to the Tribunal, in particular the record of consultations from Dr Ben Wong, the two certificates from Dr L which were not amongst those admitted to be bogus and the letter from Dr Y. C. Wong about the applicant’s condition. In the findings and reasons part of the Tribunal's decision it made no reference to this documentation, but merely recorded that without medical certificates the applicant's attendance in the relevant semester was 56 per cent, that the education provider had accepted medical certificates and that when these were included the attendance was 81 per cent but that “these” certificates were found to be bogus as was admitted by the applicant to the Department and confirmed at the Tribunal hearing. On this basis the Tribunal found that it was satisfied that the applicant's level of attendance in the relevant semester was 56 per cent, that condition 8202 was breached and that cancellation was mandatory.

The solicitor for the applicant contended that, apart from listing the medical evidence provided to it, the Tribunal did not address this evidence or consider whether it or the other material about the applicant’s personal circumstances provided an explanation for the applicant's non-attendance in the relevant semester. It was contended that the Tribunal failed to give reasons for rejecting such documentation as a cause or explanation for the applicant’s non-attendance and in so doing fell into jurisdictional error. The solicitor for the applicant submitted that the Tribunal should have considered the medical evidence provided to it about the reasons for the applicant’s non-attendance in determining whether condition 8202 was breached and should have asked whether there was a reason why the visa should not be cancelled.
These contentions raise issues about the construction of condition 8202, whether the decision-maker has a discretion to cancel a visa for breach of condition 8202 and whether there was a failure by the Tribunal to follow proper procedures. If reasons for non-attendance were relevant to be taken into account in determining whether there was compliance with condition 8202 or if the Tribunal had a discretion in deciding whether to affirm a cancellation of a visa for non-compliance with condition 8202 then, as Bennett J observed in similar circumstances in Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1484 at [22], if the Tribunal failed to properly consider such factors or parts of the applicant’s claims in the findings and reasons part of its decision this would amount to a constructive failure to exercise jurisdiction.
Section 116 of the Migration Act 1958, which contains the relevant cancellation power, states in subsection (1) that “subject to subsections (2) and (3)” the Minister “may” cancel a visa if he is satisfied of one of a number of things including (in paragraph (b)) that the holder has not complied with a condition of the visa. Critically subsection 116(3) provides that if the Minister may cancel a visa under s.116(1) he or she “must do so if there exist prescribed circumstances in which a visa must be cancelled”. Regulation 2.43(2) prescribes the circumstances in which the Minister must cancel a visa for subsection 116(3). Regulation 2.43(b)(ii) includes, in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with condition 8202.
A purposive construction of an earlier version of condition 8202 was adopted by Madgwick J in Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669 such that it would be satisfied “if there had been substantial compliance with the condition or where the circumstances were reasonably beyond the student’s control” (Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [58] and also see Kan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 923). However, such an approach is contrary to the weight of more recent authority culminating in the decision of the Full Court of the Federal Court in Tian.
First, as Emmett J observed in Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 at [10] (and see Tian at [59]) Shrestha was decided before the enactment of the Education Services for Overseas Students Act 2000 (the ESOS Act) which, in s.20, provides for an education provider to send a notice to a student such as the one sent by AIT to the applicant on 10 April 2003 and the appeal in Shrestha was resolved by consent orders of the Full Court that noted that the parties agreed that the Tribunal would not be bound by the reasoning of Madgwick J in relation to the construction of condition 8202 as affected by Regulation 2.43(2)(b). In Nguyen, in circumstances where the applicant’s actual attendance was less than 80% of the contact hours scheduled for each of two terms during a course, Emmett J found that s.116(3) was clearly mandatory and that there could be no discretion as to cancellation if the applicant had not satisfied condition 8202.
In Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574, Conti J recognised the consequences for an applicant who had actual attendance of 75% because of documented appendicitis, but held at [33] that there was “no legitimate room for an implication of the principle as to substantial compliance in relation to the operation of Paragraph (b) of subsection 116(1)” and that the scheme of subsection 116(3) “does not envisage or allow room for the implication of a statutory alleviation or relaxation of the otherwise unqualified language of paragraph (b)”. His Honour rejected a construction of the Act that would apply a purposive approach or a test of substantial compliance. (See Tian at [60]-[62] and see Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 at [13] – [14] to the same effect).
Conti J did suggest in Hou that Subdivision GB of Division 3 of Part 2 of the Act would in future address the subject of automatic cancellation of student visas “more comprehensively” (at [33]) and in Zhou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1078 Cooper J suggested that there was nothing in the Migration Act 1958 to indicate that the legislature intended that students were to be treated differently in being at risk of ultimate cancellation of a student visa depending on whether or not they complied with a s.20 ESOS Act notice or attended on a DIMIA officer. His Honour stated at [42] that:
“The legislature made clear in s.137L that if there was no breach, or, if any breach was due to exceptional circumstances beyond the control of the student, the student was to be left in, or restored to the same position in terms of the status of the student visa as if no s.20 [ESOS Act] notice had been given”.
On this basis it was suggested that if the student satisfied the Departmental decision-maker of exceptional circumstances, no further action “ought to be taken” in respect of the alleged breach – in particular no s.119 notice should issue (at [42]). However Cooper J went on to state that even if a Departmental officer proceeded on the basis suggested, if he or she then determined to issue a s.119 notice and proceeded ultimately to rely on a breach of condition 8202 to ground the exercise of power under s.116 to cancel the visa, the only relevant issue for the decision-maker at that stage would be whether he or she was satisfied on the available material that a breach had occurred at that time. “The reason why the breach occurred is irrelevant” (Zhou at [43]).
Moreover in such circumstances only the cancellation decision would be reviewable by the Tribunal. Any preliminary decision as to whether or not to issue a s.119 notice depending on the adequacy of any explanation for non-attendance would not be reviewable by the Tribunal (cf a decision under s.137L not to revoke cancellation which is reviewable under s.338(3A)).
Counsel for the applicant referred to the decision of Lander J in Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 229 in support of the proposition that the Tribunal was bound to consider the reason why the visa should not be cancelled in following the procedure laid down under the Act. However that was a case in which a student visa was automatically cancelled under s.137J and the Tribunal was reviewing a decision under s.137L not to revoke such cancellation. In those circumstances it was necessary for the Tribunal to address the applicant’s explanation for his absence from classes in determining whether the applicant had satisfied it that the breach of condition 8202 was due to exceptional circumstances beyond the applicant’s control in s.137L. (See Chen at [110]-[116]). However the present case does not involve any consideration of s.137L. Further in Minister for Immigration & Multicultural & Indigenous Affairsv Yu [2004] FCAFC 333, Allsop J (with whom Tamberlin J agreed) held that the ESOS Act “does not limit the circumstances under which s.116 might operate where there has been a failure to comply with condition 8202; nor does it confine the operation of condition 8202” (at [40]).
I am bound to follow the decision of the Full Court of the Federal Court in Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238. In that case the Full Court considered the same version of condition 8202 as is applicable in this case, although paragraph 8202(3)(b) (achieving an academic result that was certified by the education provider to be at least satisfactory) was in issue. The Court rejected an argument that the visa holder needed only to comply substantially with condition 8202 (as had been suggested in Shrestha). The Full Court pointed out at [59] that Shrestha was based upon a different statutory regime which no longer applied. In Tian (as in this case) it appears that the automatic cancellation that occurs under s.137J of the Migration Act 1958 if the applicant does not comply with the S20 ESOS notice (in particular by attending at an office of the Department) did not arise as the Department proceeded to cancel the applicant’s visa under s.116.
Their Honours referred to decisions contrary to Shrestha (such as Hou and Liu) and drew a distinction between a cancellation pursuant to s.116(1) of the Migration Act 1958 and a cancellation to which s.116(3) applied. Section 116(1) provides that the Minister “may” cancel a visa and in exercising that discretion:
The Minister would have regard to all of the surrounding circumstances to determine whether it is appropriate to cancel a visa for any of the reasons in that subsection” (Tian at [65]).
However in relation to a cancellation to which s.116(3) applies their Honours stated at [66]:
Section 116(3) does not permit the Minister to exercise any discretion at all. If the proscribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the proscribed circumstances referred to in s.116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a proscribed circumstance and obliges the Minister to cancel the visa.
There is nothing to warrant limiting this approach to s.116(3) to circumstances where the failure to comply with condition 8202 relates (as in Tian) to results rather than attendance. If the delegate (or Tribunal) is satisfied that there has been non-compliance with condition 8202, cancellation is mandatory under s.116(3) and not a matter of discretion. Hence any reasons for non-attendance (or failure to achieve an academic result that is certified by the education provider to be at least satisfactory under condition 8202(3)(b)) are not relevant. Nor can it be said that on the true construction of condition 8202 the applicant needed only to comply substantially with the condition.
The applicant contended that Tian did not mean that the Tribunal was relieved from the obligation to follow “proper procedures”. While this is so, it cannot be said that as part of such procedures it was necessary fro the Tribunal to consider any reasons for non-attendance or medical evidence in that regard.
The consequence of the authorities is that in a case such as the present the only stage at which a “discretion” arises would be when the delegate determined whether to issue a s.119 notice. As indicated above, such a decision is not reviewable by the Tribunal, even if it appears that an applicant has a legitimate medical explanation for non-attendance which, for whatever reason, was not such as to persuade the delegate not to issue a s.119 notice (cf a decision under s.137L not to revoke a cancellation which is reviewable under s.338(3A)). Indeed, as pointed out in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 (also see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561) even if the delegate failed to complete the procedural steps under s.119 such failure would not deprive the Tribunal of authority to review the cancellation decision and to “cure” such defect.
In the exercise of the cancellation power under s.116 the decision-maker cannot take into account a student’s reasons for non-attendance, however legitimate, in determining whether the particular student had complied with condition 8202 (in particular in determining whether he or she meets the 80 per cent attendance requirement). Nor can the Tribunal take such reasons into account in reviewing a decision to cancel a visa on this basis. As recognised by Bennett J in Chen at [26] this may have potentially draconian consequences in a situation in which a legitimate student affected by clearly documented ill-health, accident or injury, achieves a satisfactory academic result but nonetheless fails to comply with condition 8202 simply because his or her actual attendance is not at least 80 per cent of the contact hours scheduled. However the Federal Court has considered but rejected the purposive construction of condition 8202 which Madgwick J adopted in Shrestha in relation to an earlier statutory regime. (See Tian at [58]-[59]). Hence there is no room for an inquiry by the Tribunal as to whether there has been substantial compliance with the condition or, indeed, whether the circumstances were reasonably beyond the student's control. On the authorities above, the clear words of condition 8202(3)(a) (which require the Minister to be satisfied that the holder “attends” for at least 80 per cent of the contact hours scheduled) do not import or allow for any notion of deemed attendance if the decision-maker is satisfied that the circumstances for non-attendance are reasonably beyond the student's control (or exceptional). If the delegate or Tribunal is not satisfied that the holder actually attended for the requisite 80 per cent of contact hours scheduled then the prescribed circumstances exist and the visa must be cancelled.
In this case, because the applicant attended at an Immigration office in accordance with the notice under s.20 of the ESOS Act, automatic cancellation of his visa under s.137J was prevented. Had he not done so, while his visa would have been automatically cancelled he would have been able to seek revocation of the cancellation (one ground for which is that the breach was due to exceptional circumstances beyond his control (s.137L(i)(b)). Instead, because an automatic cancellation did not occur, it was for the Department to determine whether to issue a notice of intention to consider cancellation under s.119. It did so. The visa was cancelled. In carrying out its review the Tribunal had to be satisfied that condition 8202 was in fact breached. Thereafter, because of the operation of s.116(3) and Regulation 2.43(2), the Tribunal had no discretion as to whether or not to affirm the cancellation of the visa because of the circumstances of the applicant or reasons for breach. In light of this conclusion I turn to the specific grounds in the amended application.

Whether unreasonableness

The first ground relied upon by the applicant is that the Tribunal's finding of a number of jurisdictional facts was not “reasonable”. The particulars of this ground are:
(1)That the Tribunal’s finding that the applicant's attendance level was 56 per cent and therefore a breach of condition 8202 was a finding it could not reasonably have reached which was critical to the ultimate conclusion of the Tribunal. The applicant was said to have offered as evidence medical certificates that would have brought his attendance to 81 per cent therefore satisfying condition 8202;
(2)The Tribunal’s finding that the presented medical certificates may be “bogus” because the applicant had admitted to the Department of Immigration that he had previously presented false documentation to it was a finding that could not reasonably have been reached which was critical to the ultimate conclusion of the Tribunal; and
(3)The Tribunal's emphasis on the presentation of “bogus” documents “appears” to be a jurisdictional error in that the Department did not cancel the applicant's visa under the section pertaining to bogus documents in the Migration Act 1958.
In this case the Tribunal may be said to have failed to have regard to the medical evidence the applicant offered to the Tribunal. However such medical evidence (even that part of it that related to the semester in question) while purporting to provide a reason or excuse for non-attendance, was not “relevant” to the Tribunal's decision to affirm the decision of the delegate. (Chen at [22]). No medical evidence could have brought his attendance to a higher level than his actual attendance for the purposes of condition 8202. Further, contrary to the applicant’s contention, the Tribunal did not find that the medical certificates presented to it (as distinct from those submitted to AIT and the Department) were or may be bogus. Nor did it affirm the cancellation on that basis. It found that the certificates accepted by AIT were found to be bogus as was admitted by the applicant. It did not specifically address the genuineness of the certificates presented to it. It is not clear on the material before the Court that any of the certificates presented to the Tribunal (such as the stamped medical certificates from Dr L) had also been presented to AIT so that the Tribunal could be said to have regarded such certificates as bogus.
In any event, while the Tribunal did not expressly draw a distinction between the genuineness of the certificates provided to the Department and the certificates provided to the Tribunal, this cannot be said to be critical to the ultimate conclusion of the Tribunal on the approach to condition 8202 mandated by the decision of the Full Court in Tian.
Nor did the Tribunal fall into jurisdictional error by an “emphasis” on the presentation of bogus documents. The Department did not cancel the applicant's visa under the section pertaining to “bogus” documents. The Tribunal did refer to the applicant’s admissions about “bogus” documents. However even if this part of the Tribunal's reasons for decision left open the possibility that it may have regarded the existence of genuine medical documents as potentially relevant to a consideration of whether condition 8202 was breached (as there is no clear statement to the contrary), the critical part of its reasons for decision, in which no error has been established, is its satisfaction that the applicant's level of attendance in the relevant semester was 56%, thus that condition 8202 was breached and that cancellation was mandatory. In these circumstances no unreasonableness has been established in the manner contended. Hence it is not necessary to determine the extent to which “unreasonableness” may give rise to a jurisdictional error. Ground 1 in the amended application does not establish jurisdictional error.

Whether error of law

The next ground in the amended application is that the decision involved an error of law because the Tribunal performed its review and made its decision by reference to the wrong subclass of visa. It was contended that although the applicant held a subclass 572 visa the Tribunal made its decision by reference to subclass 560.
I am satisfied on the evidence before me, including affidavit evidence from the solicitor with carriage of the matter for the respondent, that the visa in question was a Student (Temporary) (Class TU) subclass 572 visa granted on 5 November 2002. The Tribunal makes two incorrect references to a subclass 560 visa. The first is in the catchwords on the cover page of the decision. The second is in the third paragraph of the reasons for decision. In describing the history of the matter the Tribunal stated that on 20 May 2003 a delegate of the respondent cancelled a “subclass 560 (Student) visa” held by the applicant.

However when one reads the Tribunal decision fairly and as a whole (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) I am satisfied that these errors are no more than inconsequential factual errors and did not lead the Tribunal into error. This is because in paragraph 13 of the reasons, in describing the evidence before it, the Tribunal stated the correct position, including that the applicant first entered Australia as the holder of a subclass 560 visa and that on 5 November 2002 he was granted a subclass 572 (Vocational Education and Training Sector) (Student) visa to which condition 8202 was attached and that this visa was cancelled on 20 May 2003. The Tribunal went on to refer to the version of condition 8202 which applied on 5 November 2002 (being the date the subclass 572 visa was granted) in the findings and reasons part of its decision. It is clear from these references and from the Tribunal's ultimate affirmation of the decision to cancel the class of visa held by the applicant (a Student (Temporary) (Class TU) visa) that the Tribunal was correctly addressing the actual visa that had been held by the applicant and cancelled on 20 May 2003. No jurisdictional error is established by this ground.

Whether Tribunal ignored relevant considerations

The next ground in the amended application is that the Tribunal ignored relevant considerations in making its decision, in that the applicant offered medical evidence but the Tribunal member failed to recognise the validity of these documents. It was contended that the Tribunal member stated in the hearing that he thought the documents were “bogus” without making the “relevant investigation” to ascertain their validity and that the Tribunal made the decision without regard to the applicant's personal circumstances surrounding the reasons why the visa was cancelled.
The migration agent for the applicant swore an affidavit on 9 May 2005 describing the unsuccessful efforts she had made to obtain the hearing tapes from the Tribunal. Time was allowed after the hearing of this matter for the respondent to use her best endeavours to locate the Tribunal hearing tape. In an affidavit affirmed on 9 June 2005 a legal officer of the Migration Review Tribunal stated that she had made various efforts to obtain the hearing tape but had been unsuccessful. In these circumstances, as counsel for the respondent acknowledged, the only evidence of what occurred in the Tribunal hearing is the unchallenged affidavit evidence of the applicant's migration agent. She attended the Tribunal hearing. She stated that prior to the start of the Tribunal hearing she submitted the original doctor's certificate from Dr Y. C. Wong to the presiding member. I accept that what occurred thereafter was in substance as follows in accordance with her affidavit evidence:
When the Presiding Member received these documents he looked at them and asked me the words in effect: “What are these documents?”
I said: “They are doctor's certificates”.
He then said words in the effect: “What’s the point for these doctor's certificate? The applicant already admitted that he provided “bogus” documents to the department. These look like “bogus” documents.”
I replied words to the effects: “They are real doctor’s certificates. That’s the reason why the applicant's attendance was falling below 80%.”
The member then said words to the effect: “How come they are in handwriting? Why not typed out from computer? What does it mean [Asthenia]?”
I replied to the effect: “I don't know this medical term. You have to ask the doctor.”
Then the formal hearing started without further inquiry of the original medical certificate from Dr Y. C. Wong I provided.
However, while I accept that there was such an exchange, it does not establish that the Tribunal ignored relevant considerations as contended. As explained above, the medical evidence offered by the applicant was not relevant to the only issue for the Tribunal, which was whether the applicant had achieved actual 80% attendance in the semester in issue. In those circumstances it was not necessary for the Tribunal to recognise or to investigate the “validity” or genuineness of the documents provided to it. Nor was it necessary for the Tribunal to have regard to the applicant’s personal circumstances as contended.
Had the applicant's reasons for non-attendance been matters which the Tribunal could have taken into account, there may have been some force in the applicant's argument that the Tribunal ignored relevant considerations (not in the manner contended but in failing to take the applicant’s evidence of reasons for non-attendance into account in its decision). However, for the reasons given above, such matters are not relevant and no error is established as contended.

Procedural fairness

The next ground in the amended application is an assertion that the Tribunal denied the applicant natural justice or procedural fairness. It repeats the particulars to the three previous grounds. These particulars do not establish a lack of natural justice or denial of procedural fairness. The Tribunal asked itself the right question, did not err in failing to address the applicant’s reasons for non-attendance and the incorrect reference to subclass 560 does not establish a lack of procedural fairness. Nor did its consideration of whether or not the submitted documents were bogus constitute such an error.
I accept the affidavit evidence of the applicant's migration agent as to what occurred in the Tribunal hearing. However there is no suggestion by the applicant or in the migration agent’s affidavit that there was any other exchange in the Tribunal hearing in relation to this documentation or that otherwise gave any reason for concern. In these circumstances I am not satisfied that any denial of natural justice has been established in the conduct of the hearing. Indeed, if the medical evidence was relevant, it would have been appropriate for the Tribunal to raise with the applicant or his migration agent any concerns about the genuineness of documentation provided in order to afford an opportunity for comment (see WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 and WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624). It appears from the affidavit of the migration agent that she provided a number of medical certificates to the Tribunal. Given that two of the medical certificates provided to the Tribunal were in the name of the same doctor as those on the certificates which had been admitted by the applicant to be bogus, it was not inappropriate for the Tribunal to raise a concern about the validity of documents including further certificates from Dr L.
Further, the medical certificate from Dr Y. C. Wong dated 12 August 2003 stated that he had seen the review applicant three times since 3 July 2003 for medical treatment. While it gave a history suggested that the applicant's difficulties commenced in February 2003 it was not in fact medical evidence from the time of the semester in issue. Neither consultation with Dr Ben Wong was in this time. Only one of the medical certificates from Dr L submitted to the Tribunal related to a time during the session. In those circumstances the fact that the Tribunal queried the “point” of the certificates does not establish a lack of procedural fairness.

Bias

The final ground in the amended application is that the Tribunal was or appeared to be biased. Again the particulars relied on are repeated with the additional contention that the overall conduct at the Tribunal hearing and “the Tribunal's inference drawn from most if not all evidential issues in a way not favourable to the applicant when it might be open for a contrary view to be taken” indicated bias.
As discussed, there is very limited evidence is before the Court as to the conduct of the Tribunal hearing. I note in that respect that while the applicant provided an affidavit in support of his application (see in particular an affidavit filed on 9 May 2005) he makes no reference to or complaint about what occurred in the Tribunal hearing.
The evidence of the applicant’s migration agent does not establish bias or apprehended bias. Given that the applicant had admitted providing bogus medical certificates in the name of Dr L and then provided further certificates from Dr L to the Tribunal, it was not inappropriate for the Tribunal to raise the genuineness of the medical evidence for comment. Further the Tribunal did not rely on the documents provided to it in reaching its conclusions – finding only that the medical certificates accepted by the education provider were bogus as admitted by the applicant. The evidence before me does not establish that the Tribunal determined, on the basis of the exchange referred to in the migration agent’s affidavit or otherwise, that the medical certificates submitted to it were bogus. Nor is it apparent from the reasons for decision that the Tribunal drew unfavourable inferences against the applicant as contended. The fact that the Tribunal made findings on the evidence with which the applicant disagrees or which were adverse to the applicant is not indicative of actual or apprehended bias. No jurisdictional error is established in the manner contended.
As no jurisdictional error has been established the decision is a privative clause decision to which s.474(1) of the Act applies and the application must be dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 16 August 2005