ZHAO v Minister for Immigration - [2005] FMCA 1945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHAO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1945

MIGRATION – Visa – Migration Review Tribunal – application for review of MRT decision – Student visa cancellation under section 116 – Subclass 573 – condition 8202 – cancellation for failure to comply with condition 8202 – procedural fairness – no error where Tribunal did not tell Applicant that Applicant’s evidence may not be accepted – s.359A of the Migration Act 1958 (Cth) does not apply to medical certificates and letters provided by the Applicant to the Tribunal as part of the Applicant’s case – where Tribunal complied with s.359A by writing to Applicant ands seeking his comments about information provided by education provider going to his attendance – Applicant found to have been made aware of critical issue upon which the decision would turn.

MIGRATION – Reg.2.43 of Migration Regulations 1994 (Cth) – meaning of the words “paragraph (1) (a) and (b)” in Reg.2.43 – words refer to s.116 of the Migration Act 1958 (Cth).

Education Services for Overseas Students Act 2000 (Cth) s.20
Judiciary Act 1903 (Cth) s. 39B
Migration Act 1958 (Cth) ss 116, 357A, 359, 359A, 424, 424A, 474
Migration Regulations 1994 (Cth) Reg 2.43

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed.
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 distinguished.
Mahon v Air New Zealand Ltd [1984] 1 AC 808 cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited.
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 followed.
Abebe v Commonwealth (1999) 197 CLR 510 followed.
Kioa v West (1985) 159 CLR 550 considered.
Federal Steam Navigation Co Ltd. v Department of Trade [1974] 2 All ER 97 cited.
Re The Licensing Ordinance (1968) 13 FLR 143 considered.
R v Oakes [1959] 2 QB 350 referred to.
Yu-Ting Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 123 cited.
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 cited.

Applicant:

LIANG ZHAO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File No:

SYG 3586 of 2004

Delivered on:

20 December 2005

Delivered at:

Sydney

Hearing date:

5 October 2005

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr I.G.A. Archibald

Solicitors for the Applicant:

Tees Solicitors

Counsel for the Respondent:

Ms R. Francois

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,750.00 and I allow twelve (12) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3586 of 2004

LIANG ZHAO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Migration Review Tribunal that was made on 29 November 2004. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to cancel the Applicant’s Student (Temporary) (Class TU) visa.

Background

The Applicant is a citizen of the People’s Republic of China who was born on 17 April 1983. He held a subclass 573 Student visa which was cancelled by a delegate of the Minister on 12 August 2004. He had been enrolled with the Sydney Institute of Business and Technology, studying for the degree of Bachelor of Information Technology.
On 2^nd July 2004 the Applicant was issued with a notice from the Sydney Institute of Business and Technology (SIBT) under s.20 of the Education Services for Overseas Students Act 2000 (Cth), informing him that he had breached a condition of his visa by not attending a sufficient amount of his course. The notice alleged that he had only attended 62.5% of the necessary classes.
The Applicant attended an interview at the office of the Department of Immigration & Multicultural & Indigenous Affairs on 15 July 2004. He was issued with a Notice of Intention to Consider Cancellation under s.116 of the Migration Act 1958 (Cth) for a breach of condition 8202 of his visa. This breach was because of his failure to attend for at least 80% of the time at his course.
The Applicant attended an interview with the delegate on 12 August 2004. The delegate found grounds for cancellation and cancelled the Applicant’s visa for failure to comply with condition 8202.
The Applicant applied to the Migration Review Tribunal for a review of that decision on 13 August 2004. The Tribunal wrote to the Applicant on 30 September 2004 under the provisions of s.359A of the Migration Act, informing him of the effect of the section and saying:
You are invited to comment, in writing, on the following information:
·Your former education provider, Sydney Institute of Business Technology (SIBT) advised the Department on 2 July 2004 that your attendance for Semester 1, 2004, was 62.50%. This indicates that you may have breached condition 8202 of your student visa; and
·Even if your 3 medical certificates are accepted, your attendance would be 72.32%.
This information is relevant to the review because it is a requirement of your visa that you comply with condition 8208.[1] Condition 8202 requires that you attend for at least 80% of the required contact hours and achieve academic results that are deemed to be satisfactory by your education provider in each term or semester for your course. If the Tribunal finds that you have not complied with condition 8202, it may have no option other than to affirm the cancellation of your student visa.
[1] Presumably this is a typing error.
The Applicant wrote to the delegate on 6 October 2004, explaining that he had suffered from illness and had toothache, which had a bad effect on his study. He said that he still had 4 medical certificates to submit which, if accepted, would bring his attendance level up to a satisfactory standard.
The Applicant attended a hearing of the Tribunal on 11 November 2004 and gave oral evidence.

The Tribunal’s Decision

The Tribunal noted that the delegate decided to cancel the Applicant’s visa after finding that he had not complied with condition 8202 of his visa. The Tribunal then considered whether the applicant had complied with condition 8202.
The Tribunal approached that task by deciding that it had to be satisfied that the Applicant had attended his course for at least 80% of the contact hours scheduled for Semester 1 of 2004. The Tribunal calculated the Applicant’s attendance at 65 per cent of the scheduled contact hours.[2]
[2] See Court Book page 64.
The Tribunal then considered whether the Applicant had any approved absences and noted that the college had not indicated that it had given the Applicant any approved leave.
The Tribunal then considered some notes from the Applicant’s guardian and observed that there was no evidence that the notes were accepted by the college. The Tribunal did not accept the notes as evidence that the Applicant had been unable to attend college due to illness on those days.
The Tribunal considered certificates signed by two dentists showing treatment on a number of dates over March, April and May 2004. The Tribunal accepted two certificates from Dr Ann Hou for treatment on 24 & 31 May 2004 as the certificates had said “It is advisable to bed rest for one day”.
The other dental certificates did no more than refer to attendance for “dental treatment”, “x-ray” or “filling”, so it was hardly surprising that the Tribunal concluded that the Applicant was unable to attend college on those days.
The Applicant produced to the hearing a certificate from Dr Bernard Lau showing that he was unable to attend college on 6 May 2004 due to “flu”. The Tribunal accepted that certificate as evidence that the Applicant was unable to attend his course on that day.
The Tribunal then took into account the fact that there were 6 hours and 20 minutes for exams for two subjects that had not been included in the attendance, even though they were scheduled contact hours. The Tribunal said:
Even if the 6 hours and 20 minutes are included, the review applicant does not attain at least 80 percent of the scheduled contact hours for semester 1 of 2004.[3]
[3] See Court Book page 65.
The Tribunal found that the Applicant did not attend for at least 80% of the contact hours scheduled for semester 1 of 2004 and had thus breached condition 8202 of his visa in that semester.
As a result, the Tribunal made these findings at page 65 of the Court Book:
·The Review Applicant has not complied with condition 8202 of the visa.
·The Review Applicant’s visa may be cancelled pursuant to paragraph 116(1)(b) of the Act.
·The Review Applicant’s failure to comply with condition 8202 is a prescribed circumstance as set out in subparagraph 2.43(2)(b) of the Regulations.
·As a prescribed circumstance exists, subsection 116(3) of the Act directs that the Review Applicant’s visa must be cancelled.

The Amended Application

The Applicant’s solicitors filed an Amended Application on

20 September 2005. In that application, the Applicant seeks these orders:
(i)An order that the Decision of the Migration Review Tribunal dated 29 November 2004 (“the Decision”) to affirm the decision to cancel the Applicant’s Student (Temporary) (Class TU) visa be declared void.
(ii)An order that the application for review of the decision to cancel the visa be remitted to (the) Migration Review Tribunal, differently constituted, for further consideration according to law.
(iii)An order that the Respondent pay the costs of the Applicant in these proceedings.
The Applicant relies on these grounds:
(i) A lack of procedural fairness in that the Tribunal did not afford the Applicant an opportunity to rebut, or qualify by further information, and comment by way of submission, upon adverse material before the decision-maker.
(ii) A lack of procedural fairness in that the Tribunal did not identify to the Applicant issues critical to the decision which were not apparent from its nature or the terms of the statute under which it was made.
(iii) A lack of procedural fairness in that the Tribunal did not advise the Applicant of adverse conclusions which the Tribunal been (sic) arrived at on the known material which conclusion would not obviously be open (to) the Applicant.
(iv) That the Tribunal failed to consider an integer of the claims of the Applicant, that being that the Applicant was unable to attend college by reason of a heart disease.
(v) That the Tribunal determined the application before it on the basis that the circumstances in which the Respondent must cancel a visa, which circumstances are prescribed in Regulation 2.43(2) (a) and (b) of the Migration Regulations 1994, are to be construed disjunctively rather than conjunctively. This had the effect that the Tribunal failed to consider whether the circumstances comprising the grounds set out in paragraphs (1) (a) and (b) of Regulation 2.43 applied in the Applicant’s case.

Preliminary Matters

The Applicant had commenced proceedings against the Minister for Immigration and Multicultural and Indigenous Affairs only. In order to comply with the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the Migration Review Tribunal was joined as Second Respondent to the application.
The Applicant sought to rely on four affidavits. An affidavit of Anis Kidd, a transcriber and court reporter, dated 22 September 2005, was admitted without objection. Ms Kidd’s affidavit annexed the transcript of the Tribunal hearing.
Counsel for the Respondents, Ms Francois, objected to the tender of an affidavit by the Applicant dated 19 September 2005 on the grounds of relevance. I admitted the affidavit into evidence.
The Applicant sought to tender two other affidavits, one by the Applicant’s mother and one by Dr Richard Wu, a psychiatrist. I rejected both affidavits on the ground of relevance.
The Applicant described in his affidavit how his father had died suddenly in May 2003. He had a lot of difficulty coping with his father’s unexpected death.
The Applicant also deposed that he was not aware that the Tribunal would not accept the certificates from the dentist or the letters from his guardian. He deposed that the Tribunal did ask him about the certificates or the letters. He referred to having been diagnosed with a heart problem when he was a child, but he produced no medical evidence about it.

The Applicant’s Submissions

The Applicant’s counsel, Mr Archibald, prepared a Written Outline of Submissions. The first three grounds of the Amended Application dealt with a claim of a lack of procedural fairness by the Tribunal. Counsel for the Applicant dealt with those three grounds together.

Grounds 1, 2 & 3

The particulars of the first three grounds are these:
a)(i) The Tribunal found that the letters from the guardian of the Applicant going to his ability to attend college on 15 April, 20 May & 10 May 2004 were not compelling evidence that the Applicant was unable to attend college on those days due to illness and accordingly the claim as to inability to attend those days was rejected. The said letters were not discussed with the Applicant by the Tribunal.
(ii) The Tribunal rejected five certificates from a dentist on the basis that they do not indicate that the patient was unfit to attend college on 22 March, 1 April, 8 April and 15 April 2004. The Tribunal did not put to the Applicant its finding that the said reports do not provide compelling evidence that the Review Applicant was unable to attend college on those days due to the treatment and that they would be rejected.
b)The Tribunal did not identify to the Applicant that the letters from the Applicant’s guardian, and the five certificates from the dentist (both referred to in Ground 1 above) did not constitute evidence that the Applicant was unfit to attend college on the days to which they referred.
c)The Tribunal did not advise the Applicant that the letters from the Applicant’s guardian, and the five certificates from the dentist did not constitute evidence that the Applicant was unfit to attend college on the days to which they referred.
The Applicant submits that the Tribunal was required to identify to the Applicant the issue or issues critical to the decision which are not apparent from its nature or the terms of the statute under which it is made, and also to advise of any adverse conclusion which had been arrived at which would not obviously open on the known material. (See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592).
The Applicant further submits that he should not have been effectively “left in the dark” as to the risk of the finding being made. (See Mahon v Air New Zealand Ltd [1984] 1 AC 808). The Applicant should not have been deprived of the opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred the Tribunal from making the finding, even though it cannot be predicted that it would inevitably have had that result. (See Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 116 [78] and 121 [101]).
The Applicant deposed in his affidavit that he could have told the Tribunal that he had been depressed and sleeping badly because of his grief at the death of his father. He had also deposed that if the Tribunal had asked him about the letters from his guardian he would have told the Tribunal that he suffered pain and fast heartbeat on the days when he was unable to attend college. He further deposed that he only went back to Australia from China because his mother had told him that his father had wanted him to complete his study in Australia.
There is no lack of procedural fairness shown in any of the first three grounds. All of the material referred to came from the Applicant himself. The Applicant cannot be said to have been “left in the dark” as to the risk of an adverse finding being made because he knew, or ought to have known, exactly what the issue was.
There was only one issue, which was whether or not the Applicant had complied with condition 8202, which requires attendance at no less than 80% of the scheduled contact hours.
The Applicant was made aware of that issue in a number of ways:
i)On 2 July 2004, his education provider sent him a Notice under section 20 of the Education Services for Overseas Students Act 2000 saying “You have breached a condition of your student visa relating to attendance in the course in which you have been enrolled at this institution”.
Particulars of breach:
Attendance: 2004/01 62.50%...”
ii)On 15 July 2004 the Applicant attended an office of the Department of Immigration & Multicultural & Indigenous Affairs where he was handed a Notice of Intention to Consider Cancellation, for which he signed a copy to acknowledge receipt. The Notice stated on its first page:
possible grounds for cancellation. Breach 8202 – Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.
iii)The Applicant attended an interview with a Departmental officer on 12 August 2004 and received a Notification of Decision to Cancel Visa under s.116 of the Migration Act 1958. The reasons for the decision were:
I am satisfied that you have breached visa condition 8202 by failing to maintain at least 80% attendance during Term/Semester 1, 2004.
iv)The Migration Review Tribunal wrote to the Applicant on 30 September 2004 to comply with its obligation under s.359A of the Migration Act. The relevant text of the letter is quoted at paragraph 6 above, but the thrust of the letter was an invitation to comment on information that he appeared to have breached condition 8202 of his visa by only attending 62.50% of his classes, and even if his 3 medical certificates were accepted, his attendance would still only be 72.32%.
v)The Applicant replied to that letter on 6 October 2004, saying:
I am writing to you to explain my situation which caused my poor attendance of 62.5% in Semester 1, 2004 in Sydney Institute of Business Technology (SIBT).
vi)The transcript of the hearing shows the Tribunal Member saying to the Applicant early on in the hearing:
All right, your visa was cancelled on the basis of your attendance. The applicant agreed.
At the conclusion of the hearing the Tribunal Member said to the Applicant:
No, I – what will happen is I will go away and consider the evidence. There may be further medical certificates here which I’ve not seen before. I’ll consider exactly what the medical certificates say and then come to a decision. Then in that decision I will make a calculation of your hours attended at the course plus any approved medical leave…
It is hard to see how the Applicant could possibly have been unaware of the issue that had to be decided.
The letters from the guardian and the certificates from the dentist all came from the Applicant. Section 359A of the Migration Act does not apply, as information that the Applicant gave for the purpose of the application is specifically excluded by s.359A(4)(b).
Counsel for the Respondent, Ms Francois, referred the Court to the decision of the Full Court of the Federal Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471. In that decision, at [24], Finn and Stone JJ considered the meaning of the term “information” as it appears in s.424A(1) of the Act, which is essentially similar to s.359A. In summary, their Honours said:
(i)The purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness. However, the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice.
(ii)The word “information” in s 424A(1) has the same meaning as in s 424[4] and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal, irrespective of whether it is reliable or has a sound factual base.
(iii)The word does not encompass the tribunal’s subjective appraisals, thought processes or determinations, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps etc.
[4] It follows that the word “information” has the same meaning as in s.359 of the Act.

The possibility that the Tribunal may not accept the Applicant’s evidence is not something required to be put to the Applicant in order to give procedural fairness. The Tribunal is not required to put to an applicant that it does not believe his or her claims. (See Abebe v Commonwealth (1999) 197 CLR 510 at [187]).
Counsel for the Respondents submitted that the common law principles in Kioa v West (1985) 159 CLR 550 do not apply. She referred to the decision of Mason J at 587, where his Honour said:
In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.
I agree with that submission. In the present case, there is ample evidence to show that the Applicant’s attention had been drawn to the critical issue in the case. There was only one issue, whether the Applicant had complied with condition 8202 by attending for at least 80% of the contact hours, or whether he had not.
Section 357A of the Migration Act applies, so that Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.
Counsel for the Respondent referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (supra), upon which the Applicant relies. A decision maker may well be obliged to bring to the attention of an applicant any conclusion which is not an obvious and natural evaluation of the evidence. As counsel submits, there was nothing unusual or surprising in relation to the Tribunal’s assessment of the evidence.
These three grounds must fail.

Ground 4

The Applicant submitted that Ground 4 of the Amended Application relies on the failure of the Tribunal to refer to the letters from the Applicant’s guardian during the review hearing or to refer to them in its decision. The submission is that there is no evidence that the Tribunal gave the letters any consideration at all and on this basis it might be said that the letters from the guardian were an “integer” or a substantial component of the applicant’s explanation as to why he did not attend the course on the days when he was absent.
Whilst it is true that the transcript confirms that the Tribunal Member did not refer to the letters from the Applicant’s guardian in the hearing, it does not follow that the Tribunal did not consider them. There is evidence that the Tribunal considered the guardian’s letters.
At paragraph 19 on page 63 of the Court Book, the Tribunal quoted a passage from the delegate’s reasons referring specifically to the letters, stating that they were not accepted because they were not from a registered medical practitioner. Again, the Tribunal referred to these letters at paragraph 31, on page 64 of the Court Book:
Notes from the review Applicant’s guardian were provided to the Department. There is no evidence that these notes were accepted by the college, and the notes are not from a medical practitioner. The Tribunal does not accept the notes as compelling evidence that the Review Applicant was unable to attend college on those days due to illness.
The Tribunal considered the notes from the Applicant’s guardian, which were the only documents that referred to the Applicant being unable to attend college by reason of heart disease. The Tribunal did not accept the guardian’s notes as evidence that the Applicant did suffer from any heart disease, as the notes were not from a medical practitioner.
This ground fails.

Ground 5

Ground 5 of the Amended Application is based on what is submitted is the true construction of Regulation 2.43 (2) (a) and (b) of the Migration Regulations 1994. The ground is as follows:
The Decision is void for jurisdictional error in that the Tribunal determined the application before it on the basis that the circumstances in which the respondent must cancel a visa, which circumstances are prescribed in Regulation 2.43 (2) (a) and (b) of the Migration Regulations 1994, are to be construed disjunctively rather than conjunctively. This had the effect that the Tribunal failed to consider whether the circumstances comprising the grounds set out in paragraphs (1) (a) and (b) of Regulation 2.43 applied in the Applicant’s case.
The Applicant submits that the relevant parts of Regulation 2.43 are:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(a) that the Foreign Minister has personally determined that the holder of the visa is a person whose presence in Australia:
(ii) is, or would be, prejudicial to relations between Australia and a foreign country; or
(iii) may be directly or indirectly associated with the proliferation of weapons of mass destruction;
(b) that the holder of the visa has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security;
(2) 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 8102.
The Applicant further submits that s.116(3) of the Act, being the section upon which the Tribunal relied[5] says:
(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.
[5] At page 61 of the Court Book
What counsel for the Applicant submits is that, in the case of a student visa, the prescribed circumstances are each of the circumstances “comprising the grounds set out in paras.(1) (a) & (b) of Regulation 2.43 and it is submitted relevantly in the case of a student visa the Minister is satisfied that the visa holder has not complied with, in this case, condition 8202”.
Consequently, the Applicant submits that the Tribunal has erred in the exercise of its jurisdiction in that it has construed the word ‘and’ in Regulation 2.43(2) disjunctively rather than conjunctively.
The Applicant then goes on to refer to, and distinguish, cases where courts in Britain have held that if construing the word “or” disjunctively and the word “and” conjunctively leads to an unintelligible or absurd result, the courts will substitute the one word for the other (Federal Steam Navigation Co Ltd v Department of Trade [1974] 2 All ER 97 at 112).
The Applicant then cites the decision of Blackburn J in Re The Licensing Ordinance (1968) 13 FLR 143, where his Honour referred to two categories where “and” can sometimes mean “or”:
The first category is that of cases where, if “and” was given its natural meaning the result was so extraordinary (to quote Lord Parker CJ in R v Oakes [1959] 2 QB 350 (“an absurdity or unintelligibility”) that in order to make sense of the provision the court was obliged to say that it must read the word “and” as if it had been “or”. The cases in the second category are those in which there was a list of items, the items being joined by “and” and the list being governed or affected by words which showed that the list was a list of alternatives.
The Applicant submits that it is not necessary to construe ‘and’ as ‘or’ in Regulation 2.43 (2) in order to make sense of the provision. The submission is that the Regulation has a clear and intelligible meaning if the word ‘and’ is given its usual meaning.
According to the Applicant’s submission, the regulation means that the Minister must cancel a student visa when:
(a) The Foreign Minister has personally determined that the holder of the visa is a person whose presence in Australia:
(i) is, or would be, prejudicial to relations between Australia and a foreign country; or
(ii) may be directly or indirectly associated with the proliferation of weapons of mass destruction;
(b) The holder of the visa has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security; and
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.
The Applicant submits that if the word ‘and’ at the end of regulation 2.43(2)(a) is not construed conjunctively, a result is produced which could not have been intended by the legislature. The Applicant’s submission then goes on to examine the procedures under ss.37J & 137K of the Migration Act, which I will not reproduce here, because it is clear that the Applicant’s submission is misconceived.
The Applicant does not explain why the legislature would have intended that cancellation of a student visa would only be mandatory if the Foreign Minister determined personally that the student’s presence in Australia would prejudice relations between this country and another, or that the student was in some way involved with the proliferation of weapons of mass destruction.
It is difficult to see why the legislature would regard failing to attend at least 80% of a student’s university lectures as making the proliferation of weapons of mass destruction more heinous than it otherwise would be, or, on the other hand, why the legislature should determine that mandatory cancellation should not apply to a person whose presence in this country would be prejudicial to Australia’s relations with another country just because the person was otherwise a conscientious student with a good attendance record.
In my view, the construction of Regulation 2.43 (2) argued by the Applicant is so extraordinary that it amply illustrates the fact that the submission is misconceived.

Conclusion

The 5^th ground of the Amended Application is entirely misconceived. It is not the Tribunal that has misconstrued Regulation 2.43 (2), but the Applicant.
Ground 5 of the Amended Application and the Applicant’s entire submission about it are based on the false premise that, when Regulation 2.43 (2) refers to “paragraphs (1) (a) and (b)” it means ‘paragraphs (1) (a) and (b) of Regulation 2.43.’ This is incorrect.
What the words “paragraphs (1) (a) and (b)” in Regulation 2.43 mean are paragraphs (1) (a) and (b) of section 116 of the Migration Act.
The purpose of Regulation 2.43 is to prescribe the grounds upon which the Minister may cancel a visa under s.116(1) and must cancel a visa under s.116(3). It is s.116 that provides the basis for Reg 2.43. When read together, s.116 and Reg 2.43 set out the intentions of the legislature quite clearly, in my view.
The relevant parts of the section and the regulation are these:

116 (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

(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.
2.43 (2) 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.

What Regulation 2.43 means, in other words, is that:
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) if he or she is satisfied that 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; and
(c) in the case of a Student (Temporary) (Class TU), 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 8102.
As counsel for the Respondents submits, Regulation 2.43 (2) sets out a list of prescribed circumstances, and it has been referred to in this way by the Full Court of the Federal Court in Yu-Ting Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC at [12].
This ground must fail.
As the Applicant has not shown any error that leads the court to the conclusion that the Migration Review Tribunal failed to exercise its jurisdiction, or exceeded its jurisdiction, or breached any of the principles set out in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. There is no jurisdictional error. The Tribunal decision is a privative clause decision as set out in s.474 of the Migration Act.
The application will be dismissed with costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 9 January 2006