Zhou v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FMCA 1826
•9 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHOU v MINISTER FOR IMMIGRATION & ANOR (No.1) | [2005] FMCA 1826 |
| MIGRATION – Student visa – Migration Review Tribunal Decision – whether jurisdictional error – whether discretion available to take into account depressive illness – whether Condition 8202 of Schedule 8 of Migration Regulations valid. |
| Education Services for Overseas Students Act 2002 (Cth), s.20 Migration Act 1958, s.504 |
| Tian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 238 Anderson v Minister for Immigration [2005] FMCA 1579 Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 193 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 841 |
| Applicant: | YUAN ZHOU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 505 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 1 September 2005 |
| Date of Last Submission: | 26 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.B. Baker |
| Solicitors for the Applicant: | Jonathan Wong Lawyers |
| Counsel for the Respondents: | Mr P.R.D. Gray |
| Solicitors for the Respondents: | Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 505 OF 2005
| YUAN ZHOU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application, filed on 6 May 2005, as amended on 1 August 2005 and by leave further amended on the day of hearing, the Applicant seeks orders in relation to a decision of the Migration Review Tribunal made on 11 April 2005 ("the MRT decision"). The MRT decision had affirmed a delegate's decision to cancel the Applicant's student (temporary) (class TU) (subclass 573) visa ("the visa").
Background
The Applicant is a citizen of the People's Republic of China. She was granted the visa on 8 July 2003 for the period until 15 March 2006. In 2003 the Applicant was enrolled in a course of study at the Melbourne Institute of Business and Technology (MIBT) which was due to run from 3 March 2003 to 15 March 2006.
By letter dated 15 June 2004, MIBT notified the Applicant that a review of her academic progress and attendance had been undertaken in semester 1 of the year 2004. Results and/or attendance were claimed to be:-
Well below the minimum standards set by MIBT and the Department of Immigration Multicultural and Indigenous Affairs.
Further in that letter, MIBT state the following:-
Consequently, the committee has determined that you be excluded from further study at MIBT with no right of appeal.
Attached to the letter from MIBT was a document entitled “Statement of Academic Record”, which records that for the first semester of 2004 the Applicant received a grade "N" for three out of the three subjects for which she was then enrolled. "N" according to the key to results means "fail" in each of the subjects. There does not appear to be any dispute that that was a correct record of the grade awarded for each subject in the first semester of the year 2004; nor is there any dispute that a fail in each of the three subjects of itself would result in a conclusion that for that semester the Applicant could not claim to have satisfactorily completed those subjects in that semester.
On 16 June 2004 MIBT notified DIMIA in a notice pursuant to s.20 of the Education Services for Overseas Students Act 2002 (Cth) that the Applicant had:-
Failed three out of three subjects attempted in semester 1 2004 (1 March - 5 June). She also failed two out of four subjects in semester 3 2003 (October 03 - February 04). She failed management for the second time in the final semester of her course. The student did not meet MIBT's course requirements.
On 14 July 2004 the Applicant attended the Department and was then provided with a notice of intention to consider cancellation of the visa. An interview was held on 28 July 2004, following which the visa was cancelled by a delegate of the Respondent. Application was then made to the MRT for review of the delegate's decision; and, as indicated earlier, a decision was made affirming the delegate's decision.
Material was provided to the MRT by the Applicant, by an agent's letter dated 13 December 2004 (court book page 17), which included an opinion from a psychologist claiming that the Applicant had suffered from quite severe depression during the March-May period of 2004. The Applicant attended a hearing conducted by the MRT on 16 March 2005. At that hearing she handed to the MRT a further letter from MIBT dated 23 February 2005, which states in part the following:-
This student has asked MIBT to write a letter of support to assist her in appealing to the MRT.
Ms Zhou was excluded from MIBT due to her poor academic progress. She was subsequently brought in evidence of a psychological condition which seriously affected her ability to study effectively.
MIBT is satisfied that the student has dealt with her psychological condition, and has overturned her exclusion from MIBT. Accordingly, the student will be permitted to re-enrol at MIBT if her visa is reinstated.
In order to assist Ms Zhou with her study, MIBT will place her on a conditional enrolment upon her return to MIBT. The requirement of her enrolment will be that she attend 100 per cent of classes, go to academic support sessions, and hand in all assignments on time.
A transcript of the MRT hearing was provided in the supplementary court book and reference is made to that letter at page 11:-
That letter - I read that letter. It says that if your visa is reinstated they will be prepared to have you back on conditional enrolment. That letter does not say that your results were satisfactory. That's the problem that you've got. All right...
There does not seem to be any dispute in the present case that the Applicant had not provided any evidence which would be construed as providing a basis upon which the Applicant is certified as having achieved at least a satisfactory performance in the relevant semester.
The Tribunal decision
The Tribunal whilst referring to the material provided by the Applicant, including evidence of her psychological condition and the further correspondence from MIBT found that there had been a breach of a condition of the visa, and concluded that the condition allowed no exercise of discretion on the matter of cancellation. Specifically, the Tribunal made the following findings:-
“33. Section 116(3), regulation 2.43(2) and condition 8202 appear designed to deny discretion whether or not to cancel a visa if the condition was not complied with, That is, the Tribunal must affirm a decision to cancel if a breach of a condition is established. This view was confirmed by Emmett J in the Federal Court decision of Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 (15 April 2002).
In Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 (8 May 2002) Conti J found that there is no room in the interpretation of section 116(3) for the importation of a ‘substantial compliance’ requirement in considering whether a student visa should be cancelled for breach of a condition for which cancellation is mandatory.”
Therefore, following these decisions of the Federal Court the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Accordingly, if the Tribunal is satisfied that the review applicant has breached condition 8202, it must affirm the visa cancellation.
The central question for the Tribunal is whether the review applicant breached condition 8202 of her visa. Compliance with condition 8202 must be assessed from 8 July 2003 (when the visa was granted) to 28 July 2004 (when the visa was cancelled). The review applicant’s enrolment in MIBT was terminated on 15 June 2004. There is no evidence to suggest that she was enrolled in any other course from 16 June 2004 to 28 July 2004. Therefore at the date of cancellation the Tribunal finds that the review applicant was in breach of condition 8202(2)(a) because she was not enrolled in a registered course. As this breach did not form part of the delegate’s decision to cancel the visa, the Tribunal will also address the alleged breach of the academic requirements in condition 8202.
The Tribunal has evidence from MIBT that the review applicant’s enrolment was terminated and she was excluded from her course because of unsatisfactory academic performance. The Tribunal has had regard to the evidence provided by the review applicant in her statutory declaration and the psychologist’s report. It has also had regard to the submissions from the review applicant’s migration agent in relation to the review applicant’s personal circumstances during the visa period. Whilst the Tribunal acknowledges and has some sympathy for the review applicant’s difficulties during that time, there is no evidence to contradict the evidence from MIBT that she was excluded from th4e course for unsatisfactory academic performance.
The requirement is condition 8202(3)(b)n is that the education provider certifies the academic results achieved by a student to be at least satisfactory, not the delegate or not Tribunal. Even if Tribunal were to find that the course provider should have assessed her academic performance as satisfactory for Semester 3, 2003, given that she passed 2 out of 4 subjects, MIBT advised the review applicant that her results were not satisfactory for Semester 1, 2004. In the circumstances, as there is no evidence before the Tribunal that the education provider has certified that the review applicant achieved an academic result that is at least satisfactory, the Tribunal finds that the review applicant has breached condition 8202(3)(b) of her subclass 573 visa.
39. Consequently the Tribunal is satisfied that the grounds for cancellation of the review applicant’s visa exist. In light of this finding, section 116(3) of the Act and Regulation 2.43(2)(b) require that the review applicant’s visa must be cancelled. On the basis of the reasoning in Nguyen and Hou, the Tribunal does not have any discretion not to cancel the review applicant’s visa.”
Relevant legislative provisions
The visa was subject to conditions including condition 8202 (located in Schedule 8 to the Regulations). This condition was imposed by clause 573.611 of Schedule 2 to the Regulations, which under the heading “573.6 Conditions” provided relevantly as follows:
“573.611 (1) If the applicant satisfies the primary criteria:
(a) in all cases:
(i) conditions 8202, 8501, 8532 and 8533; …”
Condition 8202 provided relevantly:
“8202 (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 subclause if:
(a) … ; and
(b) in any case — the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(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 or semester (whichever is shorter) of the course.
(4) … .”
“Registered course” is defined in regulation 1.03, and there is no dispute that the course in which the Applicant was enrolled at MIBT was a registered course.
Section 116 of the Act provides for cancellation of visas relevantly as follows:-
“116 Power to cancel
(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
…
(2) …
(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.”
Sub-regulation 2.43(2) relevantly prescribed the circumstances referred to in subsection 116(3):-
“2.43 Grounds for cancellation of visa (Act, s 116)
…
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(a) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
…
(ii) condition 8202.”
Section 119 of the Act, which contains requirements for notice to be given of intention to consider cancellation of a visa, is of indirect relevance. Relevantly, under section 119(1), the delegate was required to notify the Applicant “that there appear to be grounds for cancelling” the visa and to
“(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or(ii) there is a reason why it should not be cancelled.”
Section 20 of the Education Services for Overseas Students Act 2000 (Cth) relevantly provided:
“20 Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.”
Sections 137J and 137K of the Migration Act 1958 (the Act) provided for the consequences of a visa-holder’s failure to comply with a notice under s.20 of the Education Services for Overseas Students Act. They do not fall for consideration here, because the Applicant did comply with the notice served on her.
The Applicant's grounds
The Applicant's grounds appear to be, in part, inter-related. The first three grounds include the general claim that the Tribunal had misdirected itself in law by finding actually or constructively that it was not permitted to go behind the certificate issued by MIBT as to the Applicant's alleged breach of a condition or conditions of her visa. The document, which for present purposes may be regarded as a certificate, either includes the letter or the statement of academic record to which reference was made earlier in this judgment. The regulations do not define the required certificate or certification process.
The grounds relied upon by the Applicant specifically refer to claimed misdirection on the basis that the MRT failed to receive and/or give any weight to other evidence provided by the Applicant which significantly included her oral evidence and the documentary evidence by way of the further correspondence from MIBT dated 23 February 2005 and psychological evidence.
Essentially that complaint appears to be related to the complaint of misdirection by not permitting itself to go behind that material, that is the certificate, and consider the other evidence provided by the Applicant. The further ground relied upon in the amended application included a denial of natural justice.
At the hearing, the Applicant sought to argue that condition 8202 is invalid. It was argued that it was invalid by reason of the following:-
“(1) The governor general, in exercising the powers to make regulations, had exceeded those powers in making the regulation; as the regulation required a certificate which the applicant was incapable of complying with.
(2) The regulation did not make provision for circumstances in which it was not possible for a visa holder to comply due to no fault on the part of the visa holder.
(3) The regulation did not provide a date for compliance with subregulation (3) of the condition.
Submissions and Reasoning
The Applicant submitted that the court should further infer in this instance that condition 8202 should impliedly require in the condition that it is possible to obtain a certificate, but that one should take into account as an implied condition only if through no fault of the Applicant a certificate is not provided. In other words, it is suggested that the court should imply in the condition a provision that if "through no fault of the Applicant" the certificate claiming satisfactory performance has not been provided. The Respondent submits that the court does not have power to imply those words in the condition.
Clearly in my view that ground cannot be sustained, as I am satisfied that in the present case the court does not have power to imply such a condition in the regulations.
It is further argued in this instance that, in misdirecting itself, the Tribunal misapplied the law and should have taken into account the other material provided by the Applicant. The Respondent submits that in this instance the breach of condition 8202 has clearly occurred in this instance, as the MRT correctly identified that that condition required that the Applicant achieve a result certified by the MIBT, that is the education provider, as at least satisfactory in respect of each semester of the visa Applicant's course of study.
It is submitted and I accept that on no view did the material before the MRT constitute or include information to that effect. Indeed, it is noted in the present case that the information provided a clear indication of unsatisfactory rather than satisfactory performance.
In my view, a proper reading of the correspondence from the MIBT leads to the clear conclusion that the first letter provides material from which the delegate, and subsequently the MRT, would conclude that the Applicant has not provided material which could properly be regarded as being certified by the education provider, that the visa holder had achieved a satisfactory academic result. The second letter from MIBT does no more than provide an opportunity for conditional re-enrolment. It does not render satisfactory the unsatisfactory academic result in the relevant semester.
The Respondent referred to the approach that should be adopted in cases of this kind, as explained by the Full Court of the Federal Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 238, where the court states the following:-
“54 Condition 8202(3) requires the holder to meet the requirements of both subclauses (a) and (b). If the visa holder does not meet either of the requirements of that subclause then the holder will have breached Condition 8202. A breach of a condition may lead to cancellation of the visa: s 116 (1) of the Act.
55 A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
56 On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.”
I apply that authority in this instance (see also Anderson v Minister for Immigration [2005] FMCA 1579 at [20] and [21]. In my view it is clear, based on that authority, that there is indeed no discretion provided where it is clear that a breach has occurred of the kind set out in the material before the delegate and the MRT. Whilst it may appear commendable for MIBT in reconsidering the enrolment of the Applicant to properly have regard to psychological evidence concerning depressive illness of the Applicant, that decision can only affect the education provider's willingness to conditionally re-enrol the Applicant. It does not provide any basis upon which any conclusion could be drawn that the unsatisfactory academic performance would be rendered satisfactory or the result otherwise changed.
Whilst it may appear somewhat arbitrary for the condition to fail to provide for a discretion which may take into account circumstances including alleged depressive illness, that does not of itself mean in my view that the regulation is therefore invalid. It is a matter for Parliament to determine the factors to be taken into account, and indeed the conditions to be imposed, in relation to a visa of this kind. If Parliament chooses to exclude from the consideration of the delegate of the Minister factors which in other circumstances may on obvious compassionate grounds be relevant, and otherwise be part of a discretion, then that indeed is a matter for Parliament.
Specifically, if the Parliament of Australia does not regard it as relevant to take into account depressive illness suffered by a student which may explain unsatisfactory performance, then Parliament is able to do so. The regulations made by the Governor-General pursuant to s.504 of the Act cannot for the reasons sought to be advanced by the Applicant be declared invalid.
As a matter of law it is open to this court to declare the regulation invalid simply because it does not provide for a discretion sought to be advanced for and on behalf of the Applicant, even if a discretion as a matter of commonsense and compassion may otherwise be thought to be desirable.
Further, in my view the other issue raised by the Applicant, concerning the lack of a date by which some form of certification should be provided, is irrelevant in the present case and of no assistance to this application. The fact is that in this instance the education provider by correspondence dated 15 June 2004 clearly indicated that this Applicant had breached condition 8202 by not achieving an academic result certified by the education provider to be at least satisfactory for the relevant semester.
The mere fact that the regulation does not provide a date upon which material should be provided by the education provider does not of itself alter the outcome nor influence in any way in my view the reality of the Applicant's performance; nor does the omission of a date by which the material is to be provided render the condition invalid.
A further argument was sought to be advanced during submissions that it is still now possible for the Applicant, upon re-enrolment conditional though it may be with MIBT, to provide evidence that she has indeed achieved an academic result certified by the education provider to be at least satisfactory.
Whilst hypothetically that may be correct, the future satisfactory performance of the Applicant cannot in any way replace the facts as they existed before the delegate and the MRT namely that for the relevant semester, the education provider had notified the department that in this instance the visa holder had not achieved an academic result certified to be at least satisfactory for the relevant semester.
For those reasons based upon the submissions advanced at the hearing and in written submissions prior to the hearing it would follow that the application should be dismissed. However, after the hearing the Court invited the parties to make further submissions arising from a decision of the Full Court of the Federal Court of Australia in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 193.
The Full Court in Morsed was required to consider the proposed consent orders quashing a decision of the Migration Review Tribunal that the appeal was allowed by consent and an order was made in the nature of certiorari to quash the decision of the MRT and a further order was made in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister not to revoke cancellation of a student temporary class TU visa held by the appellant. That case required consideration of condition 8202 and the issue raised concerning a s.20 notice. The Court had been referred to a decision of the Federal Magistrates Court in Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 841. It is appropriate to set out the relevant paragraphs from the Full Court’s decision in Morsed as follows:-
“8 Prior to the hearing of the appeal, counsel for the Minister indicated that it proposed to consent to orders being made allowing the appeal, and quashing the decision of the MRT. That consent was proffered on the basis of a recent decision of the Federal Magistrates Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841. In that case it was held that the s 20 notice, which was relevantly indistinguishable from that issued in the present case, was invalid on a number of grounds, including in particular its failure to set out accurately the effect of s 137J(2)(b)(ii) of the Act.
9 More specifically, Uddin held that the s 20 notice was defective because, inter alia, it failed to inform the applicant in that case that he could report to an "officer" for the purpose of explaining the alleged breach, but instead required him to report to a "compliance officer". This was said to impose a more restrictive requirement than permitted by s 20 of the Overseas Students Act. Uddin also held that the s 20 notice was invalid because it required the applicant to report to a particular DIMIA office, at 2 Lonsdale Street, Melbourne, rather than reporting to any DIMIA office, anywhere in Australia, as s 137J(2)(b) permitted.
10 An appeal by the Minister from the decision in Uddin was ultimately abandoned. On 10 August 2005, that appeal was dismissed by consent.
11 The Minister’s concession before us that the s 20 notice did not comply in an important respect with the requirements of s 20, based upon the principles laid down in Uddin, is sufficient to justify allowing the appeal, and setting aside the cancellation decision. However, in taking that course, we should not be taken as endorsing all aspects of the reasoning in that case.
12 There is, however, a matter of real concern arriving out of the form in which s 20 notices are apparently being drafted. It involves the interaction between the s 137J "automatic" cancellation scheme, and the cancellation scheme of general application that applies under s 116 of the Act. Specifically, we are concerned that the following statement in the s 20 notice may be misleading:
"If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred."
13 Section 116(1) of the Act applies to all categories of visas. It grants the Minister a general power to cancel visas if holders have breached visa conditions. Although framed in discretionary terms, s 116(3) states that this power must be exercised if prescribed circumstances exist. Regulation 2.43(2)(b) of the Migration Regulations 1994 (Cth) provides that, subject to an exception not presently relevant, breach of condition 8202 is such a prescribed circumstance in the case of a Student (Temporary) (Class TU) visa. Therefore, pursuant to s 116, the Minister is compelled to cancel that student visa if she is satisfied that the attendance or academic performance requirements of condition 8202 have not been met.
14 The provisions relating to automatic cancellation of student visas were introduced to the Act in 2000. Section 20 of the Overseas Students Act obliges "registered providers" (educational institutions) to send a written notice to a student "if a student has breached a student visa condition relating to attendance or satisfactory academic performance". Clearly, condition 8202 is such a visa condition.”
The Full Court went on to consider s.137J and 137K of the Act and stated the following:-
“17 If a person is sent a s 20 notice, having breached condition 8202, and then complies with that notice by making themselves available to an officer to explain the breach, their visa will not be automatically cancelled under s 137J.
18 However, that person remains subject s 116, which requires the Minister to cancel a visa if she is satisfied that there has been a breach of condition 8202. Once a s 20 notice has been sent, and a person has attempted to "explain the breach" (rather than deny it), it is difficult to see how the Minister could fail to be satisfied that there has been a breach of condition 8202. Therefore, while the person may not have their visa automatically cancelled, the Minister will be compelled to cancel pursuant to s 116.
19 In contrast, if that same person does not "report to DIMIA" to explain the breach, their visa is automatically cancelled. Once a visa has been automatically cancelled pursuant to s 137J, they may apply for revocation of that automatic cancellation on the ground that the breach was due to "exceptional circumstances beyond the non-citizen’s control".
20 If revocation is granted, not only is the automatic cancellation revoked, but, more importantly, the breach in issue is prevented from being used as a basis for cancelling their visa under s 116. This is because s 137P(2) provides:
"(2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116."
21 Therefore, the only way a holder of a student visa who has breached condition 8202, but whose breach was due to exceptional circumstances beyond their control, can avoid having their visa cancelled is to not comply with the s 20 notice.
22 Given this, we consider that the statement in the s 20 notice, extracted above, is misleading. In the event that a person has breached condition 8202, and reports to DIMIA as requested, it is incorrect to state that "a decision will then be made whether or not to cancel your visa". This may imply some sort of discretion on the part of the officer, particularly given that the notice asks the recipient to "explain" their breach. It implies that it is possible that the visa will not be cancelled if the breach is adequately explained. However, the true position is that the Minister is obliged under s 116 to cancel the visa if satisfied there has been a breach.
23 Furthermore, the s 20 notice may be misleading by omission. The notice states that the visa will not be cancelled "if you can show that no breach occurred". It does not go on to say the corollary of that, which is that a visa will be cancelled if a breach did occur, (or, probably more accurately, if it cannot be shown that no breach occurred).
24 For those visa-holders who have breached condition 8202, but may have exceptional circumstances beyond their control to explain that breach, the notice creates a trap. It encourages the visa-holder to explain their circumstances to avoid automatic cancellation. However, it does not tell them that in doing so, and in admitting a breach, they will then have their visa cancelled pursuant to s 116.
25 In fact, if a person’s breach was due to exceptional circumstances beyond their control, they would be best served by not complying with the s 20 notice, having their visa automatically cancelled under s 137J, and then applying for revocation under s 137K. If revocation is granted, their breach is then "immunised" from being used as a basis for cancelling their visa under s 116.
26 We would urge the department to give careful consideration to modifying the standard form of a s 20 notice in order to avoid the difficulties outlined above.”
I have deliberately set out in some detail that decision of the Full Court which given that the Court was invited to make orders by consent would properly be regarded as obiter.
In the present case I have already set out the s.20 notice forwarded to the Applicant who attended the Department and was then provided with a Notice of Intention to Consider Cancellation of the Visa.
In my view the Applicant in the present case has attended the Department and by doing so has effectively foregone for the reasons given earlier in this judgment the opportunity to argue that her breach was due to exception circumstances beyond her control, namely her depressive illness. I note and accept for the present purposes the reasoning of the Full Court of the Federal Court in paragraph 25 of Morsed referred to above.
I accept that in the present case the s.20 notice was accordingly defective and invalid as it implied that the Applicant’s visa would not be cancelled if the Applicant could adequately explain her breach of condition 8202 to the Respondent’s compliance officer. Hence, I accept the Applicant’s written submission in relation to that issue and further accept as submitted by the Applicant that the defective notice had the effect of denying to the Applicant the opportunity to apply to the Minister for revocation of the cancellation of her visa pursuant to s.137K of the Act.
The Applicant has sought and I am prepared to grant a further amendment to the Amended Application to add the following grounds:-
“1. That the Tribunal and the Minister’s delegate committed a jurisdictional error by relying on an invalid notice given to the Applicant pursuant to s.20 of the Act; and
2. That the decision of the Minister’s delegate and of the Migration Review Tribunal were invalid.”
I am prepared to allow that amendment and for the reasons given in my view the Application as amended should now succeed. I have noted the Respondent’s submissions that even if the s.20 notice was misleading there can be no estoppel against the statutory duty (see Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 especially at p.210 per Gummow J). Whilst I accept the Court in Morsed did not specifically hold in its obiter that the effect of the invalid notice was to have a vitiating effect on the validity of a decision made under s.116 of the Act to cancel the visa, I am prepared to conclude in the present case on the material before me that that is indeed the effect. An invalid notice which triggers a decision which in turn is considered by the Tribunal in my view should properly be regarded as a decision making process which is void ab initio. It is after all based upon an invalid notice which as
I found in this case I am satisfied is misleading and effectively has denied the Applicant in this instance from relying upon exceptional circumstances which could have been relied upon had the notice been drafted in a form which would have avoided the difficulty and prevent an Applicant from taking a step which effectively deprives the Applicant of an alternative remedy allowing for exceptional circumstances.
In my view contrary to the submissions made for and on behalf of the Respondent, the invalidity of the s.20 notice is relevant to the question of whether or not the decision made under s.116 is valid. The factual causal connection between the sending of the purported s.20 notice and the attendance of the Applicant at the office of the Department in my view is relevant given that it effectively deprives the Applicant of an alternative remedy and arguments to be advanced in support of exceptional circumstances based on her depressive illness.
Whilst I accept that there is binding authority on this Court to the effect that it is not necessary that a s.20 notice be sent to a visa holder or that there be compliance with any of the provisions of the Education Services for Overseas Students Act 2000 (Cth) in order for a valid decision to be made under s.116 of the Act by reference to condition 8202, the fact remains in the present case that a notice was sent which I regard as invalid with the effect that it then renders invalid the adverse decision of the delegate and the MRT.
Accordingly, based upon the written submissions of the parties arising from the Full Court decision in Morsed it is appropriate in my view that the following orders be made:-
(1)There be an order in the nature of certiorari to quash the decision of the Migration Review Tribunal made on 11 April 2005.
(2)There be an order in the nature of mandamus requiring the Migration Review Tribunal to review according to law the decision made by the delegate of the First Respondent dated 28 July 2004.
An appropriate order should also be made in relation to costs.
I shall hear Counsel in relation to the precise form of the orders which may involve further remedies concerning the decision of the delegate which I have found to be invalid given it is based upon what I have also found to be an invalid s.20 notice.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 December 2005
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