Zhou v Minister for Immigration - [2007] FMCA 1053

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHOU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1053

MIGRATION – Student – failure to comply with condition 8202 – whether medical absence should be taken into account – whether Tribunal should have accepted certificate from Herbal Medicine Practitioner.

Education Services for Overseas Students Act 2000, s.20

Tian v Minister for Immigration [2004] FCAFC 238

Applicant:

WEI HUA ZHOU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG231 of 2006

Judgment of:

Raphael FM

Hearing date:

14 June 2007

Date of last submission:

14 June 2007

Delivered at:

Sydney

Delivered on:

14 June 2007

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr D Godwin

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4000.00.
The name of the First Respondent be amended to Minister for Immigration and Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 231 of 2006

WEI HUA ZHOU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Mr Zhou was the holder of a subclass 571 (student visa) that was subject to condition 8202. That condition required a student to attend not less than 80% of the contact hours scheduled for the course in which he or she was studying. Where the course was divided into terms or semesters a calculation of the 80% was to be done on a term or semester basis, whichever was the shorter.
At the time in question a failure to comply with condition 8202 resulted in a mandatory cancellation of the visa. Since about October 2005 that penalty has been somewhat modified by the introduction of regulation 2.4.3 which now gives the Minister power to take into account circumstances beyond the control of the applicant prior to determining whether or not to cancel the visa. The mandatory nature of the cancellation requirement was considered and affirmed by the Full Court of the Federal Court in Tian v Minister for Immigration [2004] FCAFC 238.
Mr Zhou was studying at the Wollongong University College where he was undertaking a course entitled “English Preparation for High School”. The course commenced on 7 February 2005 and was due to run for 16 weeks which included one week of approved holiday leave. The course was due to end on 27 May 2005. On 15 April 2005 the education provider issued Mr Zhou with a notice under s.20 of the Education Services for Overseas Students Act 2000 [CB1 and 2]. That notice referred to a breach of condition 8202 suggesting that the applicant’s current attendance was 62 per cent and his overall attendance 76 per cent. As I understand the correspondence passing between the Department and the education provider overall attendance meant the maximum possible attendance that the applicant could achieve by the end of the course.
Mr Zhou made arrangements to meet with the Department as required under the notice. This meeting did not take place until 27 June 2005 after the completion of the course. Mr Zhou explained to the delegate that there were a number of reasons why his attendance was low which, most importantly, included absences for medical reasons. Some of those absences for medical reasons were certified by registered medical practitioners, others by a specialist in Chinese herbal medicine. There was also a period of approximately 10 days whilst Mr Zhou was in China that he was in hospital and then resting on doctor’s instructions.
The delegate determined that the applicant had failed to comply with condition 8202 and cancelled the visa. The applicant sought review of that decision from the Migration Review Tribunal. There was quite a body of correspondence passing between the delegate and the Tribunal and the education provider found in the court book that deals with the calculation of the attendance taking into account medical absences so that the applicant is credited with time away because of medical absences.
The correspondence also deals with the policy of the education provider not to take into account for the purposes of condition 8202 the medical certificates signed by Chinese herbal medicine practitioners (presumably unless they were also legally qualified medical practitioners registered in Australia).
The applicant also produced to the Tribunal a letter from the doctor who he claims treated him in hospital in China [CB 137]. Mr Zhou explained to the Tribunal that he was not aware that certificates from herbal medicine practitioners were not acceptable. In the green book there is found a number of photographs taken by Mr Zhou of the premises of the herbalist that he attended which indicates that the herbalist held himself out to be a regular practitioner who was accepted by health funds and even appeared on Channel Seven. It is quite understandable that a young boy with little English and no familiarity with the complexities of the Australian health system would be confused by those statements and believed that the practitioner would pass the test of being “recognised” as required by the education provider.
When the Tribunal came to consider its review of the delegate’s decision it appears to have been prepared to take into account those periods certified by what it considered to be recognised medical practitioners as times of full attendance but the Tribunal did not accept the certificates from the herbal medicine practitioner and preferred the evidence of an earlier medical certificate from the Chinese hospital to the statement given by the doctor to which I have previously referred. The effect of this was to add one day to the total time that the applicant was deemed to have attended. Even when this time was added the total period of attendance by the applicant was less than 80 per cent. When I say attendance I mean actual attendance plus the maximum amount of attendance possible prior to the end of the course.
Mr Godwin who appears for the Minister argues that the Tribunal was in error in giving the applicant the benefit of extra time for medical absences. In his view as the Act then stood there was no room to permit this because the condition refers to attendance for at least 80% of the contact hours scheduled and does not exclude failure to attend for medical reasons. Mr Godwin suggests that the 80% figure was chosen because Parliament understood the possibility that a student would be ill from time to time and, therefore, that possibility was taken into account.
There seems to me to be some considerable force to that argument but because in all the cases that I have previously determined I have dealt with Tribunals that give applicants the benefit of periods of medical absence I do not propose to opine upon it. This is because the matter can be decided without the necessity of so doing. The Tribunal came to its conclusions based upon its assessment of the evidence. The evidence which the applicant produced and which was produced by the education provider indicated that the education provider did not consider the herbal medicine practitioners to be recognised. The Tribunal accepted this evidence in preference to the evidence of the applicant who said that such practitioners should receive recognition. It seems to me that whether the decision was right or wrong it was one of fact and not a jurisdictional fact thus it is not a matter upon which review could be provided. The jurisdictional fact in this case is whether the applicant attended for 80% of the contact hours.
The second matter upon which the Tribunal made an evidentiary decision related to the two medical certificates from the hospital in China. The Tribunal was entitled to prefer one over the other and it gave reasons for doing so which appear to me to have been made on a rational basis and in reliance upon matters that were logically probative.
In those circumstances I am unable to find that the decision of the Tribunal was infected with jurisdictional error and I must therefore dismiss the application. I order that the applicant pay the respondents’ costs which I assess in the sum of $4000.00. I also order that the name of the first respondent be amended to Minister for Immigration and Citizenship.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: