FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96

MIGRATION – appeal – student visa – holding by Federal Magistrate that invalid s 20 notice under Education Services for Overseas Students Act invalidated cancellation pursuant to s 116 of Migration Act – concession by visa holder that judgment of Federal Magistrate not supportable on basis of existence of a factual causal connection between s 20 notice and mandatory cancellation under s 116 – visa holder also conceding validity of s 20 notice not a prerequisite for mandatory cancellation under s 116 – contention by visa holder that “legal interaction” between the two Acts requires conclusion s 116 mandatory power not exercisable when occasioned by s 20 notice without application of other provisions of Overseas Students Act requiring consideration of exceptional circumstances

Held:  Appeal allowed

Migration Act 1958 (Cth) ss 116, 118, 119, 120, 124, 137J, 137K, 137L, 137N, 137P

Education Services for Overseas Students Act 2000 (Cth) s 20

Migration Regulations 1994 (Cth) reg 2.43

Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495

Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35

Jadwan v Secretary, Department of Health and Aged Care (2005) 145 FCR 1

Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448

Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193

Shek v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 522

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841

Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v YUAN ZHOU and MIGRATION REVIEW TRIBUNAL

VID 1662 of 2005

RYAN, NICHOLSON and LANDER JJ

16 JUNE 2006

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1,         Paragraphs 3, 4, 5, and 6 of the orders of the Federal Magistrates Court made on 19 December 2005 be set aside.

2.         In lieu thereof, the proceeding before the Federal Magistrates Court be dismissed with costs.

3.         The appellant file and serve within 14 days of this day any written submissions on which she wishes to rely as to the costs of the appeal to this Court.

4.         The first respondent file and serve within 14 days of service on her of the written submissions referred to in paragraph 3 above her written submissions in answer to the appellant’s submissions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     M/s Zhou is a citizen of the People’s Republic of China.  She entered Australia and studied at the Melbourne Institute of Business and Technology (“MIBT”) on a student visa.  Following her failure to meet course requirements, her visa was cancelled.  The appellant Minister now appeals from a decision of a Federal Magistrate requiring the Migration Review Tribunal (“the MRT”) to rehear her appeal in respect of the cancellation.

Relevant legislative and regulatory provisions

2                     Before setting out the background circumstances in more detail, it is helpful if we set out a description of the relevant provisions which are at issue in the appeal.  The power of the appellant Minister to cancel a visa is relevantly provided for in s 116 of the Migration Act 1958 (Cth)(“the Migration Act”), reading as follows:

‘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

…

(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.’

3                     Section 116 does not stand alone as a power of cancellation.  Other powers to cancel exist under ss 109, 128, 134, 137Q, 140, 500A, 501, 501A and 501B of the Migration Act.  Section 118 provides that the powers to cancel a visa under one of those sections including s 116 are not limited, or otherwise affected, by each other. 

4                     Section 116 and s 118 appear in Subdivision D of Div 3 of Pt 2 of the Migration Act.  Subdivision E sets out the procedure for cancelling visas under Subdivision D in or outside Australia.  Section 119 provides for notice of a proposed cancellation to be given to the visa holder.  Section 120 provides for certain information to be given to the visa holder.  Section 124 addresses the issue of when the decision about cancellation of a visa may be made, in the following terms:

‘124

(1)            Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:

(a)               the holder responds to the notice;

(b)               the holder tells the Minister that the holder does not wish to respond;

(c)                the time for responding to the notice passes.

(2)           The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:

(a)               the comments are given;

(b)               the holder tells the Minister that the holder does not wish to comment;

(c)                the time for commenting passes.’

5                     With reference to the application in the circumstances of this appeal of s 116(3), reg 2.43 of the Migration Regulations 1994(Cth) provides in subreg (2) that the circumstances in which the Minister must cancel a visa are, relevantly here 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. 

6                     Condition 8202 is to be found in Sch 8 of the Migration Regulations.  It provides that a holder of the student visa (other than certain classes not relevant here) meets the requirements of the subclause if the holder attends for at least 80 per cent of the contact hours scheduled and achieves an academic result that is certified by the education provider to be at least satisfactory. 

7                     This regime for cancellation falls for consideration in this appeal in the context of the Education Services for Overseas Students Act 2000 (Cth) (“the Overseas Students Act”).  In Pt 3 of that Act certain obligations are enacted in relation to what are defined as registered providers, being approved providers of courses to overseas students entered on a register of a State.  Section 20 in that Part provides as follows:

‘(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:

(b)               contain particulars of the breach; and

(c)               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

(d)               state that the student must present photographic identification when so attending; and

(e)               set out the effect of sections 137J and 137K of that Act.

(5)          …’

8                     Section 20 is preceded by s 19 which casts onto a registered provider certain obligations to give information about accepted students.  In subs (2), it enacts that a registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.  Subsection (3) provides that information required under the section must be given in a form approved by the Secretary, which may be electronic. 

9                     Therefore the position under the Overseas Students Act is that, in the case of a breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance, notice must be given by the registered provider to the Secretary pursuant to s 19 and to the student pursuant to s 20. 

10                  At the same time as the enactment of the Overseas Students Act, complementary provisions were introduced into the Migration Act by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth).  These appear in Subdivision GB of Div 3 of Pt 2 of the Migration Act under the heading “Automatic cancellation of student visas”.  Section 137J in that subdivision provides:

‘(1)      This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).

(2)       The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:

            (a)        the non-citizen complies with the notice; or

(b)        the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:

            (i)         in Australia; or

(ii)        approved for the purposes of this paragraph by the Minister by notice in the Gazette;

            makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.’

11                  Section 137K provides that a non-citizen whose visa has been cancelled under s 137J may apply in writing to the Minister for revocation of the cancellation.  Section 137L provides on such an application the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

‘(a)       that the non-citizen did not in fact breach the relevant visa condition or conditions; or

(b)                 that the breach was due to exceptional circumstances beyond the non-citizen’s control; or

(c)                 of any other matter prescribed in the regulations.

…’

Section 137N also gives to the Minister a power to revoke a cancellation on his or her own initiative if it is thought that it is in the public interest to do so. 

12                  Section 137P provides:

‘137P

(1)          If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.

(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.

(3)          However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.

(4)          In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.

…’

Background circumstances

13                  It was on 8 July 2003 that M/s Zhou was granted her visa.  It was a student (temporary) (class TU) (subclass 573) visa.  Had she completed the course at the MIBT in the normal or minimum time, that course would have commenced on 3 March 2003 and ended on 15 March 2006. 

14                  In the first semester of 2004, M/s Zhou failed each of the three subjects for which she had been enrolled.  She had earlier failed two of the four subjects for which she had enrolled in Semester 3 of 2003, which ran from October 2003 to February 2004. 

15                  A notice dated 16 June 2004 was sent by MIBT to M/s Zhou advising her that, as a consequence of the above failures, she had breached a condition of her student visa.  The notice was described on it as a notice under s 20 of the Overseas Students Act.  It further stated that pursuant to s 137J of the Migration Act her student visa would cease on the 28^th day after the date of the notice unless she reported to the Department by that time. 

16                  The s 20 notice also stated that particulars of the notice had been sent to the Department and to the Department of Employment, Science and Training.  This is the only evidence that a notice was sent pursuant to s 19 of the Overseas Students Act. 

17                  On 14 July 2004 M/s Zhou attended the Department.  She was then given a Notice of Intention to Consider Cancellation of her visa, being a notice issued pursuant to s 119 of the Migration Act. 

18                  On 28 July 2004 M/s Zhou was interviewed by the Department, following which her visa was cancelled by a delegate of the Minister. 

Tribunal’s decision

19                  M/s Zhou then applied to the MRT for a review of the delegate’s decision.  After a hearing on 16 March 2005, the MRT affirmed the delegate’s decision notwithstanding the provision of evidence directed to explaining M/s Zhou’s poor academic performance by reference to a severe psychological depression from which she had suffered between March and May 2004.  The MRT found that there had been a breach of condition 8202 prescribed by the Migration Regulations to which M/s Zhou’s visa was subject.  That breach was held to be of a kind which allowed the delegate, and, on review the MRT, no discretion to do otherwise than cancel the visa.

Federal Magistrate’s reasoning

20                  The Federal Magistrate accepted that the material before the MRT provided a clear indication that M/s Zhou’s performance had been unsatisfactory rather than satisfactory, so that, applying the reasoning of a Full Court of this Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238, there was no discretion but to cancel the visa.  However, his Honour considered that the recent judgment of another Full Court of this Court in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 stood in the way of his refusing M/s Zhou’s application for review of the MRT’s decision.  In Morsed, the Full Court (Heerey, Marshall and Weinberg JJ) allowed by consent an appeal and made an order in the nature of certiorari, quashing the decision of the MRT and a further order in the nature of mandamus, requiring the MRT to review according to law a decision by a delegate of the Minister not to revoke cancellation of a student (temporary) (class TU) visa held by the appellant in that proceeding.  The Minister had consented to that course because of a recent decision of the Federal Magistrates Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 in which it had been held that a notice given under s 20 of the Overseas Students Act was invalid on a number of grounds, including its failure to set out accurately the effect of s 137J(2)(b)(ii) of the Migration Act.  In particular, the Full Court understood Uddin as holding the s 20 notice to have been defective because it had failed to inform the applicant visa holder that he could report to an “officer” for the purpose of explaining his breach of condition 8202 but had required him to report to a “compliance officer”.  As well, the notice in Uddin required the applicant to report to a particular office of the Department, namely that at 2 Lonsdale Street Melbourne, rather than allowing him to report at any office of the Department within Australia as allowed by s 137J(2)(b) of the Migration Act.

21                  The Full Court in Morsed regarded the s 20 notice before it as “relevantly indistinguishable” from the notice which had been considered by the Federal Magistrates Court in Uddin.  The Full Court disavowed endorsement of the reasoning in Uddin.  However, it continued at [12]-[14] of its reasons;

‘12       There is, however, a matter of real concern arising 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."’

22                  The Full Court in Morsed then considered ss 137J and 137K of the Migration Act and continued, at [17]-[26];

‘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 [to] 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.’

23                  The Federal Magistrate in the present case acknowledged that those remarks of the Full Court in Morsed were obiter but considered that they were applicable to the circumstances of M/s Zhou who “has attended the Department and by doing so has effectively foregone … the opportunity to argue that her breach was due to exception [sic] circumstances beyond her control, namely her depressive illness”.  His Honour then allowed M/s Zhou to amend her 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.’

24                  In the light of that amendment, his Honour considered that M/s Zhou’s application should succeed.  He explained that conclusion by observing, at [46]-[48] of the reasons;

‘46       … 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.

47        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.

48        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.’

Appellant’s contentions

25                  The principal contention advanced by Mr Horan of Counsel who appeared on the hearing of the appeal for the Minister is that, even assuming the notice under s 20 of the Overseas Students Act to have been invalid, it did not have the effect of invalidating a mandatory cancellation of M/s Zhou’s visa under s 116(1)(b) and (3) of the Migration Act.  Support for this contention was said to be derived from observations of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 at [37]-[40]:

‘37       It was submitted on behalf of the respondent that the scheme provided for under Subdiv GB of the Migration Act was effectively a code for the use of powers to cancel a visa of a student under s 116 of the Migration Act.  Thus, it was said that failure to comply with condition 8202 could lead to visa cancellation only in a circumstance in which a student’s education provider has issued a notice under s 20 of the [Overseas Students] Act.

38        Whilst there is a coherent body of regulation under Subdiv GB of the Migration Actwhen examined in the light of the terms of the [Overseas Students] Act, I do not see any express or implied statutory limitation on the circumstances in which s 116 of the Migration Act can be invoked.  Subdivision GB comes into operation if a notice is sent to a non-citizen under s 20.  Section 116 of the Migration Act is not so limited.

39        Nor do I see condition 8202 as limited by reference to certification expressly under s 20.  Condition 8202 (3) is couched in terms of meeting the requirements of the condition  by, amongst other ways, the visa holder achieving a result that is certified as satisfactory.  This contemplates an act of certifying that is positive.  Section 20 of the [Overseas Students] Act only contemplates the opposite:  a notice of breach, that is certification of a result that is unsatisfactory.

40        In my view, the [Overseas Students] 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.  If a breach of condition 8202, or some part of it, was only intended to arise upon giving of a notice under s 20 of the [Overseas Students] Act that would have been simple enough to say.’

26                  According to Counsel for the Minister, the Federal Magistrate in the present case, by implication, distinguished Yu because, in that case, there had apparently been no notice under the Overseas Students Act.  Accordingly, Counsel for the Minister imputed to his Honour the view that, in the passage just quoted, Allsop J was addressing only the question of whether the exercise of the power of cancellation under s 116 of the Migration Act was conditioned upon the giving of such a notice.  Allsop J had not, in terms, dealt with the effect of a notice which had been given in purported reliance on s 20 but was, presumptively, invalid.  Counsel for the Minister submits that, however, did not afford a proper basis for distinguishing Yu because the power conferred by s 116 was not conditioned exclusively on the service of a notice under s 20 of the Overseas Students Act.  He contends this is confirmed by the decision in Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 where Ryan J had observed, at [17]:

‘Section 20 of the Overseas Students Act is not determinative of the attainment of satisfaction postulated by s 116 of the Act.  The latter makes no reference to the Overseas Students Act which is not surprising since the relevant provisions of s 116 have remained in their present form since before the Overseas Students Act or the Migration Legislation Amendment (Overseas Students) Act 2000 (Act No 168 of 2000) were passed.  Likewise condition 8202 was not amended in the light of the Overseas Students Act and related legislation.  Accordingly, the validity of a notice under s 20 of the Overseas Students Act is not a prerequisite for cancellation of a student visa under s 116 although it may, as Counsel for the Minister accepted, be essential for cancellation pursuant to s 137J which was inserted into the Act by the Migration Legislation Amendment (Overseas Students) Act 2000.  A cancellation under s 116 must occur upon the Minister’s attainment of the requisite satisfaction even if the process has been initiated on the Minister’s own motion or otherwise without the issue of a notice under s 20 of the Overseas Students Act.  Once that is understood, s 116(3) leaves no discretion to the Minister or the MRT once he or it is satisfied that the holder has not achieved an academic result that is certified by the education provider as at least satisfactory.  For a similar view of the effect of s 116(3) in excluding any discretion see Ariyagama v Minister for Immigration and Multicultural Affairs [2001] FCA 1407 [20], Nguyen v Minister for Immigration and Multicultural Affairs [2002] FCA 460 [11] and Akter v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1504 [20].’

27                  According to Counsel for the Minister, the Federal Magistrates Court erred in the present case by regarding a mere factual, causal, connection between the s 20 notice and the initiation of the cancellation process under s 116 of the Migration Act as affecting the validity of a decision mandated by the latter section.  He submits that the duty imposed by s 116 could not be abrogated by any antecedent or legal error which brought about the circumstances in which the duty came to be performed:  Jadwan v Secretary, Department of Health and Aged Care (2005) 145 FCR 1; (2004) 204 ALR 55, at [56] and Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60 at [43].

28                  Counsel for the Minister also relies upon consideration given to the issues raised in this appeal in other decisions.  Firstly, he relied on Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35.  Like the present appeal, Humayun concerned a decision of the MRT to affirm a decision by a delegate to cancel a student visa pursuant to s 116 of the Migration Act.  The appellant in Humayun had been sent a notice pursuant to s 20 of the Overseas Students Act in respect of a breach of condition 8202 of his student visa.  It was relevantly in the same form as the s 20 notice given by M/s Zhou’s education provider in the present appeal.  In response to the s 20 notice that appellant reported to the Department and attended an interview, at the end of which he was advised of the decision to cancel his visa.  The Minister contended in Humayun that, even if the s 20 notice was incapable of having the consequences set out in Subdivision GB of the Div 3 of the Migration Act (ss 137J – 137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Migration Act.  Further, the Minister contended there that a legal deficiency in the delegate’s decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made.  Wilcox J (with whom Conti and Stone JJ relevantly agreed) accepted each of these submissions.  The Full Court’s acceptance of the Minister’s first submission also involved its acceptance of the correctness of what was said by Allsop J (with Tamberlin J agreeing) in Yu.

29                  The submissions for the Minister therefore also contain the submission that the “defects” said to exist in the s 20 notice and identified in Uddin are immaterial here given that the decision under review is a decision of the MRT to affirm a cancellation decision made under s 116 of the Migration Act.  It is not a challenge to an automatic cancellation of a visa pursuant to s 137J of the Migration Act. 

30                  The Full Court decision in Humayun was recently followed and applied by Siopis J in Shek v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 522 at [41]-[45]. 

31                  In a subsidiary way, Counsel for the Minister contends that, even if the primary contention be rejected, the s 20 notice in the present case conformed with the relevant statutory requirements and was not misleading.  It faithfully followed the formula to be found in s 20(4)(b) of the Overseas Students Act and, properly construed, called on M/s Zhou to explain only her “alleged breach” of condition 8202.  To the extent that the dicta of the Full Court in Morsed (supra) suggested that a s 20 notice in the present form is misleading or creates a “trap” for an applicant, they should not be followed and, in any event, did not go so far as to say that any defect in such a notice can negate or prejudice the achievement of the purposes of s 116(3) of the Migration Act read in conjunction with reg 2.43(2)(b)(ii) of the Migration Regulations.

Contentions for M/s Zhou

32                  The submissions for M/s Zhou rely firstly on the alleged defects in the s 20 notice which was sent to M/s Zhou in this appeal.  Specifically it is said that the notice failed to require M/s Zhou to present herself to an officer of the Department, instead requiring her to report to a compliance officer.  Additionally it failed to inform her that, by reason of s 137J(2)(b) of the Migration Act, she could avoid automatic cancellation if she attended another office of the Department within 28 days of the notice.  These submissions rely upon these alleged defects in addition to what was held in Morsed to be the misleading wording of the notice. 

33                  M/s Zhou’s case places reliance on the following passage from the relevant Minister’s Second Reading Speech as reported in Parliamentary Debates, House of Representatives, p 19613, on 30 August 2000 on the introduction of the Overseas Students Act:

‘… the new regime introduced by the … Bill will require that, where a student is not complying with course requirements, the provider will send a notice directly to the student, copied to the department.…warning the student that their visa will be cancelled within 28 days if they do not report to the department.

Complementary measures in this bill will provide that, if the student does not report within the 28 days, their visa will be automatically cancelled by operation of the law.

A student who reports within 28 days and is able to show good reasons for their apparent non-compliance with visa conditions will be able to resume studies. …

A further safeguard is the built-in provision to apply for revocation of the cancellation. …’

While it is acknowledged that this may have been the intention of the introduction of the legislation, the submissions accept that neither the Migration Act or the Migration Regulations as drafted (until recently amended) give effect to that intention. 

34                  The submissions for M/s Zhou concede that the judgment of the Federal Magistrate cannot be defended on the basis of the existence of a factual causal connection of the kind referred to by his Honour as a necessary strand of his reasoning.  It is contended that the proper basis for the reasoning lies in the “legal interaction” between the relevant provisions of the Migration Act and the Overseas Students Act. 

35                  It is also conceded by the submissions for M/s Zhou that the validity of a notice under s 20 of the Overseas Students Act is not a prerequisite for cancellation of a student visa under s 116 of the Migration Act where the process has been initiated on the Minister’s own motion or otherwise without the issue of a notice under s 20.  However, it is submitted that the position is otherwise where, but for the issue and terms of the s 20 notice, M/s Zhou would not have attended at the Department so as to set in train and enable the activation of the s 116 process.  It is submitted that the fact that the relevant provisions of s 116 have remained in their present form even after the introduction of amendments following from the Migration Legislation Amendment (Overseas Students) Act 2000, is not determinative of the legal relationship between the two Acts.  Further it is contended that the statement by Ryan J in Gerhard did not deal with the argument put on this appeal.  It is submitted that neither did the reasoning of Full Courts in Yu or in Humayun address the argument made for M/s Zhou on this appeal, namely, the effect of the “legal interaction” of the Overseas Students Act and the Migration Act. 

36                  It is also submitted for M/s Zhou that s 20 of the Overseas Students Act must have work to do and must be viewed as having been inserted into a broader scheme, so that it relates not only to the provisions concerning automatic cancellation introduced by the Overseas Students Act but also to the pre-existing mechanism for cancellation provided by s 116 of the Migration Act.  It is said that where a person attends in compliance with the s 20 notice so that such attendance results in mandatory cancellation pursuant to s 116(3) and reg 2.43(2)(b), it is difficult to see s 20 of the Overseas Students Act as being independent of the s 116 process under the Migration Act.  It is said that where the relevant notice pursuant to s 20 of the Overseas Students Act sets in train a process leading to the cancellation of a visa, it is the sole means of activation of the s 116 process. 

37                  The case for M/s Zhou also argues that this “legal interaction” of the Overseas Students Act and the Migration Act in its s 116 provision and related provisions is exemplified by the enactment of s 137L(1)(b), providing the Minister with the power to revoke a cancellation if he or she is satisfied the breach was due to exceptional circumstances beyond the non-citizen’s control.  Therefore, it is said, the interaction of the two Acts is recognised in the statutory scheme.  It is submitted that, as the Court in Morsed pointed out, a valid s 20 notice would have the effect, if not responded to, of allowing a challenge to the automatic cancellation and immunising the breach from being used as a basis for a s 116 cancellation if the Minister was satisfied of the requirements to enable revocation of the cancellation (at [25]).  It is said further that the Full Court’s dicta in Morsed cannot be taken as reflecting the Court’s view that, by attending before an officer, a student was exposing himself or herself to valid cancellation under s 116(1)(b) and (3). 

38                  As to the effect of an invalid notice, it is submitted that the statutory purpose is one to make the notice void for all purposes and incapable of cure.  It is said that follows from the fact that the s 20 notice on its face expresses a whole series of mandatory obligations and as the obligation to give the notice rests on a private education provider, strict conditions of compliance should apply where an invalid notice is given so that the invalidity is only curable by the provider issuing a fresh notice.  The submission is that the question of how the statutory purposes of the broader scheme, involving both of the identified pathways to cancellation, are to be achieved can only be answered by upholding the invalidity of the s 20 notice in the present case for all purposes. 

Reasoning

39                  We start from the proposition that the present case is not one where alleged defects in the s 20 notice are material to the resolution of the appeal.  That is because the decision under review is a decision of the MRT to affirm a cancellation decision under s 116 of the Migration Act.  The issue is whether the MRT was correct in its reasoning that the power of cancellation arising under that section was validly exercisable.  This disposes of M/s Zhou’s amended notice of contention (ground 2 of it not being pursued).

40                  It is conceded for M/s Zhou that the factual connection relied upon in the Federal Magistrates Court is not a proper basis for providing a foundation for her case.  Here, the evidence is not determinative of precisely how the particulars of the s 20 notice were in fact sent to the Department.  It may be observed that, if the information given to the Department under s 19 of the Overseas Students Act comprised the particulars of the breach only, it is not apparent how any invalidity in the s 20 notice could, in any event, have had any invalidating effect on the s 119 procedure. 

41                  Turning to the “legal interaction” of Subdivision GB and Subdivision D, we do not agree with the submission for M/s Zhou that Subdivision GB is required to be construed as inter-related in some way with the previous provisions in Subdivision D.  This is so even in the case where the s 20 notice gives rise to the delivery of the s 119 notice.  The terms of s 137P are against such a construction.  Section 137P(2) provides some support for the concept of “legal interaction” when it provides that a breach in terms of s 137L(1)(a) and (b) which has resulted in a revocation under s 137L cannot be a ground for cancellation of a visa under s 116.  However, s 137P(3) expressly provides that a revocation under s 137L or 137N does not otherwise limit or affect any other power to cancel the visa under the Migration Act.  Apart from the instances provided by s 137L(1)(a) or (b), the intention of Subdivision GB is to leave legally unrelated the provisions of that subdivision and other powers of cancellation in the Migration Act.  In the case of revocation of a cancellation in terms of s 137(1)(a) or (b), the provision in s 137P(3) – by excluding reference to those paragraphs – protects the effectiveness of the revocation against the application of the power in s 116.

42                  For the “legal interaction” relied on for M/s Zhou to be determinative, it would be necessary for s 116 to be interpreted as subject to an implied limitation on its operation.  The wording of that section is against such an implication, as it contains a detailed catalogue of specific circumstances in which the power of cancellation may be exercised.  We agree with Allsop J in Yu that, if Parliament had intended that a breach of condition 8202, or some part of it, was only to occur after the giving of notice under s 20 of the Overseas Students Act, that would have been simple enough for Parliament to say.  Section 116 is also to be construed in its context, including s 124.  The contention for “legal interaction” also arguably requires an implication into that section for which there is no proper basis.

43                  In our view, the case for the Minister is correct when it submits that the Federal Magistrate had no proper basis for distinguishing in this case the reasoning of Full Courts in Yu and Humayun and of Ryan J in Gerhard.  We accept and apply the reasoning there set out.  We do so because the statutory provisions in issue do not admit of any different reading even in a case where the response to a s 20 notice under the Overseas Students Act gives rise to the occasion for delivery of a notice under s 119 of the Migration Act.  There is nothing in the provisions to admit of a different application because of what the case for M/s Zhou describes at the “legal interaction” between these provisions.  It is to the provisions themselves that attention must be directed.  They are devoid of any support for a different approach in that circumstance.

44                  It may be further observed that the Migration Amendment Regulations 2005 (No 8) have amended the provisions in Sch 5 relating to student (Temporary) (Class TU) visas in reg 2.43(2)(b).  The effect of the amendment is to import an additional element into the matters which the Minister must consider before cancelling a visa for breach of a condition 8202.  That element is that “the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”.  The effect is therefore to place the procedure under s 20 of the Overseas Students Act and s 116 of the Migration Act on a similar footing with respect to consideration of exceptional circumstances.  The amendment came into effect on 7 October 2005 and so cannot assist M/s Zhou.  It does however serve to address any apparent injustice implicit in the argument of “legal interaction” by reason of the fact that the requirement to attend in response to a s 20 notice afforded an opportunity for service of a s 119 notice.  The necessity for this amendment is nevertheless confirmatory of the opinion we have reached that, without it, the relevant and regulatory provisions do not allow us to uphold the reasoning of the Federal Magistrate.

45                  For these reasons we consider the appeal must be allowed and the appeal to the Federal Magistrates Court dismissed with costs.  We shall give the parties an opportunity to make written submissions as to the costs of the appeal to this Court.

Associate:

Dated:              16 June 2006