FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574

MIGRATION – student visas for overseas residents – conditions of visa governed by Act and Regulations and Conditions promulgated pursuant to Regulations – cancellation of student visa based on shortfall in attendance at tertiary institution – shortfall referrable to illness and return to China for operative procedure – Federal Court decision substantially restricted cancellation on non-attendance grounds – executive moved to negative consequences of Federal Court decision by statutory and regulatory amendments – amendments applicable to unexpired visas such as held by applicant once restored on administrative review – Tribunal reviewed cancellation decision in favour of overseas student in purported adoption of purposive approach to interpretation – whether Tribunal erred on its review of cancellation of visa in favour of student – whether room for purposive approach – recourse to extrinsic materials of the Parliament – Minister’s costs of the Court’s proceedings not allowed on discretionary grounds – liberty to apply as to final orders.

Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 considered

Ariyagama v The Minister for Immigration and Multicultural Affairs [2001] FCA 1407 considered

Shrestha v Minister for Immigration and Multicultural Affairs (2002) 64 ALD 669 referred to

Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 referred to

Kim v Witton (1995) 59 FCR 258 referred to

Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1285 referred to

Patsanza v Minister for Immigration and Multicultural Affairs [2001] FCA 734 referred to

R v Young (1999) 46 NSWLR 681 followed

Wentworth Securities Ltd v Jones [1980] AC 74 referred to

Bermingham v Corrective Services Commissioner of New South Wales (1988) 15 NSWLR 292 followed

Migration Act 1958 ss 29, 116, 476(1)(c), 476(1)(e), Part 2 Division 3, Subdivision GB

Migration Legislation Amendment (Overseas Students) Act 2000, Schedule 4, Condition 8202

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

Migration Regulations 1994 (Cth) Regulation 2.43(2)(b), Condition 8202

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v HOU

N 1324 of 2001

CONTI J

8 MAY 2002

SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Migration Review Tribunal made on 22 August 2001 be set aside.

2. Liberty to either party to apply on seven days’ notice.

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

REASONS FOR JUDGMENT

The applicable regulatory scheme

1                     The Respondent (“Mr Hou”) is a national of the Peoples Republic of China, who was born on 17 October 1979. He was granted a Student (Temporary) (Class TU) visa on 21 December 1999, which was due to expire on 30 June 2002, and entered Australia on 5 January 2000.

2                     The grant of that visa, pursuant to s 29 of the Migration Act 1958 (Cth) (“the Act”), was subject to a power of cancellation conferred upon the Minister by s 116 of the Act, which, so far as is here material, or potentially material, provides as follows:

“(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a) any circumstances which permitted the grant of the visa no longer exist; or

(b)               its holder has not complied with a condition of the visa; or

…

(fa) in the case of a student visa:

(i)                 its holder is not, or is likely not to be, a genuine student; or

(ii)               its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(g) a prescribed ground for cancelling a visa applies to the holder.

…

(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                     Regulation 2.43 of the Migration Regulations 1994 (Cth) provides, so far as is here material, as follows:

“2.43 Grounds for cancellation of visa

…

(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

…

(b)          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.”

4                     Condition 8202, as set out in Item 4 of Schedule 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), applies to any student visa which was granted or in effect before 1 July 2001, and commenced operation on 21 December 2000. Hence Condition 8202, in its thereby updated form, applied in relation to Mr Hou’s visa, which as stated in [1] above was not due to expire until 30 June 2002. At the time of cancellation of Mr Hou’s visa on 27 April 2001, Item 4(3) read as follows:

“Item 4 Special condition on certain student visas

…

(3)                       The condition is that:

(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student - the holder is enrolled in a full-time course of study; and

(b) in any other case - the holder is enrolled in a registered course, and

(c) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i)             for a course that runs for less than a semester – for the course; or

(ii)           for a course that runs for at least a semester – for each term and semester of the course; and

(d) 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.”

5                     At the time that Mr Hou was originally granted his Student visa on 21 December 1999, and until the abovementioned commencement date being 21 December 2000, Condition 8202 took the following form, under the auspices of the Migration Regulations 1994 (Cth):

“8202 The holder must:

(a)               be enrolled in a registered course; and

(b)               attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and

(c)                if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and

(d)               comply with any requirement of the education provider in relation to payment of fees for the course.”

6                     The critical aspect of Condition 8202, in its updated form set out in [4] above, is paragraph (c) of Item 4(3) thereof. The reason for the change from the precursor paragraph (b) of the former Condition 8202 to paragraph (c) of Item 4(3) of the present Condition 8202 appears to have been related to the reasons for decision of Katz J in Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575, which were given on the basis of paragraph (b) of the former Condition 8202 reproduced above at [5]. It was held in Nong that the 80% attendance test be applied, particularly in the light of the expression “the course” appearing in paragraph (c) of the former Condition 8202, precluded cancellation as long as it remained possible for the student to attain the 80% threshold attendance at classes and tutorials for the relevant course considered as a whole (see also the confirmation of that basic expression of the test by Ryan J in Ariyagama v The Minister for Immigration and Multicultural Affairs [2001] FCA 1407).

The circumstances found by the Tribunal to have led to cancellation of Mr Hou’s visa

7                     Mr Hou entered Australia on 5 January 2000 on a student visa issued for the period from 21 December 1999 to 30 June 2002. He enrolled relevantly in a 2 year Diploma of Information Technology course at Astral Commerce and Language College on 28 August 2000; a form of brochure issued by the College contained the statement “Must have a [sic] least 80% attendance”. The Department for Immigration and Multicultural Affairs (“DIMA”) received information from Astral College that Mr Hou’s attendance rate was 75%. That information did not disclose the duration of Mr Hou’s attendance record or his academic performance. DIMA sent notice of intention to cancel Mr Hou’s student visa on 12 April 2001, based on the information that his attendance at Astral College “was less than the required 80%”, and he was invited to provide his comments on that course of action in an interview at DIMA, which took place on 27 April 2001. The notice stated that DIMA would take into account, in making its decision, inter alia, “The circumstances in which the ground for cancellation arose” and “the seriousness of the ground for cancellation”.

8                     Mr Hou gave the following information prior to and at the interview conducted by a delegate of the Minister:

(i) He had completed a 5 month English course at the Sydney English Language Centre from 4 January 2000 to 19 May 2000, and had attended the International College of Tourism and Hotel Management Pty Ltd for a Diploma of Hotel Management. Thereafter he commenced studying for the Diploma of Information Technology at Astral College in August 2000.

(ii) He had attended Astral College regularly, except for a period of 3 to 4 months’ absence due to illness. Mr Hou submitted medical certificates bearing date 20 April 2001, which stated that he was suffering from fatigue and was unfit for school for the periods of time from 16 October 2000 to 24 October 2000, and from 6 November 2000 to 21 November 2000, each inclusively.

(iii) He provided medical certificates from hospitals in China, which disclosed that he was treated for acute appendicitis between 20 January 2001 and 20 March 2001, and further that one month’s rest had been medically recommended on 15 January 2001 for acute appendicitis.

(iv) He applied to Astral College for leave from 20 January 2001 to 20 March 2001, by reason of his return to China for treatment of his condition of acute appendicitis; so-called “movements’ records” disclosed the absence of Mr Hou from Australia between 12 December 2000 and 24 March 2001.

Thus it will be seen that the periods of time of non-attendance at Astral College referred to in sub-paragraph (ii) above occurred when the regime of the former Condition 8202 was in place.

9                     On 27 April 2001, the Minister’s delegate cancelled Mr Hou’s student visa on the ground that his attendance at Astral College had been below 80%; the delegate also apparently relied upon the circumstance that according to Astral College, Mr Hou had not completed any modules; however Mr Hou disclosed to the Minister’s delegate at the interview conducted by him that he had actually completed 5 subjects, and that the advice provided by Astral College to DIMA was therefore incorrect. Nevertheless the delegate recorded that “[a]cademic transcripts provided by Astral College indicate Mr Hou has not passed one subject during his studies (46 subjects are required to complete 2 yr course)”. In the formulation of his brief reasons for decision, the delegate made no reference to this Court’s decision in Nong (see again [6] above), which had been earlier handed down on 6 November 2000. As a consequence of the cancellation of his student visa, Mr Hou was immediately placed in detention. The delegate’s decision was recorded in the following terms:

“Breach of Condition 8202. Mandatory cancellation – s 116(1)(b)(g) and reg 2.43(2)(b).”

The delegate’s decision was thus expressed otherwise than in the terms of a course, or a term, or a semester of a course, being the criteria of Item (4) of the new Condition 8202.

10                  Earlier on 6 April 2001, Astral College had in fact ceased to operate, Mr Hou having been given written notice of that foreshadowed event by letter of 27 March 2001 from the Australia Council For Private Education and Training. Mr Hou thereupon promptly made arrangements for transfer of tertiary study enrolment to the University of New South Wales in relation to an English language course to be conducted between 30 April 2001 and 6 July 2001. Subsequently by letter dated 11 April 2001, Mr Hou was notified by that University of his admission to the UNSW Foundation Year programme for the purpose of entry into a Bachelor of Science (Computer Science) to commence on 11 July 2001, and to continue for 46 weeks’ duration ending 21 June 2002 at a tuition fee of $14,500 payable 2 weeks prior to commencement of the course. I infer that payment of that substantial sum was duly made, having been informed by his Counsel that as a result of the Tribunal decision below, Mr Hou continues to be engaged in attendance at that University. It is unclear from the material before me whether the delegate was aware of Mr Hou’s enrolment at the University of New South Wales when he made his decision 16 days earlier. It would be somewhat surprising for the delegate to have ignored the existence of such circumstances, if he was aware of the same, irrespective of his view as to the legal implications of those circumstances.

11                  By letter dated 17 May 2001, in the context of the delegate’s cancellation of Mr Hou’s visa on 27 April 2001, and the application for review of the delegate’s decision lodged by Mr Hou with the Tribunal, Mr Hou was invited to provide further information to the Tribunal. He responded by lengthy submissions written by his migration agents Raif Thevar Wu & Associates, the contents of which were verified by Mr Hou’s statutory declaration. Reliance was placed by the migration agents upon certain Departmental Policy, and certain decisions of this Court, including Nong and Shrestha v Minister for Immigration and Multicultural Affairs (2002) 64 ALD 669 (Madgwick J). Both of those decisions were made by reference to Condition 8202 in its previous form set out in [5] above. The essence of the submissions was to the effect that if account was to be taken of the circumstances of Mr Hou’s enrolment at the University of New South Wales from 30 April 2001, and of Mr Hou’s satisfactory attendance at classes at the University from the time of his release from immigration detention, it was likely that he would satisfy the minimum 80% attendance requirement of Condition 8202. The Tribunal does not appear to have specifically ruled upon that submission, the same having been apparently overtaken by the events which had subsequently happened.

12                  This Court’s decision in Shrestha attracted substantial attention in the present proceedings. Madgwick J gave three reasons why paragraph (b) of Condition 8202 (in its earlier form) should not be read literally, as follows:

“…first, that would be inconsistent with the express policy of parliament as to student visas; second, a purposive interpretation, which would assist the applicant is both possible and mandated; or, third, the regulation promulgating condition 8202, if it is to be read literally, would be invalid as beyond the power of the regulation-maker.”

It is the second reason upon which Mr Hou relies in the present proceedings, it being accepted by his Counsel that the difficulty with the first and third reasons is that the same were largely underpinned by his Honour upon paragraph (fa) of subs 116(1), which paragraph had not taken effect at the time of cancellation of Mr Shrestha’s student visa on 14 February 2000. The second reason was implicitly supported by the Tribunal below, by its use of the expressions “substantially complied”, “not a deliberate flouting” and “not a significant breach”, which I have cited in [14-15] below. I will later return to the reasons for decision in Shrestha in relation to a purposive interpretation test, and to the authorities discussed and applied by Madgwick J in relation thereto.

13                  The concluding submissions of Mr Hou’s migration agents in the Tribunal below were in the following terms:

“1. The decision to cancel the visa was made one day after the applicant’s enrolment in a registered course. Applying the principles in Nong, combined with the operation of Migration Legislation Amendment (Overseas Students) Act 2000, there could be no breach of the attendance requirement prior to the conclusion of the course or the first term/semester of the course.

2. In the alternative, and if the Tribunal finds that a breach had occurred, the cancellation was made pursuant to s 116(1) and not s 116(3) and is therefore discretionary. Even if the decision to cancel were (sic) made under s 116(3), cancellation would be discretionary, following the judgment in Shrestha v MIMA.

3. The visa holder’s present position and the circumstances surrounding the breach justify the exercise of discretion in his favour.”

The Tribunal decision

14                  The Tribunal found on 22 August 2001 that Mr Hou “had substantially complied with the conditions attached to a visa last held”, referring thereby to the following circumstances:

(i) Mr Hou became ill whilst studying at Astral College, and sought medical advice; he was diagnosed with fatigue, and rest was recommended;

(ii) As a result of the illness, he missed three weeks’ study;

(iii) In December 2000, he travelled back to China for the spring festival, and upon returning to Australia, he learnt that Astral College had gone into liquidation; he then set about finding an alternate education provider; and

(iv) Mr Hou’s breach in relation to his attendance at Astral College was “not a deliberate flouting” of the conditions attached to the visa, and was explained by Mr Hou as based on medical grounds corroborated by the medical evidence on the DIMA file, which demonstrated his asserted basis for absence from Astral College for the periods of time from 16 to 24 October 2000 and from 6 November to 21 November 2000.

15                  The Tribunal concluded with the finding that the breach of visa conditions constituted by attendance of Mr Hou at only 75% of classes at the Astral College “was not a significant breach of the conditions attached to the visa, and is explained through the medical evidence on file”. Presumably because of the detailed information which Mr Hou put before the Tribunal in relation to his periods of non-attendance, the Tribunal took the view that what may be thought to have been a condition precedent to the operation of paragraph (c) of Condition 8202, namely “In the case of a holder whose education provider keeps attendance records…” was not an issue.

The Minister’s contentions

16                  The grounds for the application for review were stated by Counsel for the Minister to be first, that the Tribunal’s decision was not authorised by the Act or the Regulations (s 476(1)(c)), and secondly, that the decision involved an error or law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal (s 476(1)(e)). The following matters were relied upon as making out each of those two statutory grounds of review:

“(i) Whereas the Tribunal found that [Mr Hou] had breached Condition 8202, the Tribunal failed to appreciate that the legislation required mandatory cancellation once that finding was made. [The Minister] refers to section 116(1)(b) and (3), regulation 2.43(2)(b) and the Migration Legislation (Overseas Students) Act 2000 (including item 4 of Schedule 4 of that Act);

(ii) The Tribunal applied the wrong test in deciding the application, namely a test of “substantial compliance” with the Condition 8202, which was not authorised by the applicable legislation [referred to in (i)];

(iii) Alternatively, the Tribunal applied the wrong test in so far as it saw a breach of Condition 8202 as giving rise to a discretion to cancel, when no such discretion was conferred by the legislation and the legislation instead required mandatory cancellation when there was a breach of Condition 8202;

(iv) The Tribunal ought to have asked, but did not ask, whether it was satisfied that the respondent had complied with each relevant paragraph of Condition 8202.”

17                  Counsel for the Minister submitted that the essence of the Tribunal’s error was that it wrongly saw itself as being able to excuse compliance with Condition 8202, if the breach thereof was not a deliberate flouting or not a significant breach thereof, and if there had occurred substantial compliance (see the reference to “substantially complied” cited at the beginning of [14] above), and further, that the Tribunal viewed Condition 8202 as involving a discretion.

18                  Instead, so Counsel for the Minister contended, because of what the Minister described as the mandatory language of subs 116(3), regulation 2.43(2)(b) and Condition 8202 (Item 4), there was no room for any test of substantial compliance, and that the Parliamentary intention of mandatory operation was evident in the following:

(i) the use of the word “must” in subs 116(3) of the Act, in contrast to “may” in subs 116(1) thereof;

(ii) the terms in which the criteria in Condition 8202 are specified, each being objective and precisely stated;

(iii) the fact that language importing substantial compliance had not been used in the abovementioned legislative and subordinate legislative provisions, in contrast for instance to certain subordinate migration legislation addressed by the two earlier authorities cited by the Tribunal in its Statement of Decision, namely Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 and Kim v Witton (1995) 59 FCR 258;

(iv) the retention of the language used in subs 116(3) and regulation 2.43(b), subsequently to the same having been held in paragraph [7] of the Reasons for Judgment in Nong to have a mandatory effect.

19                  Counsel for the Minister therefore contended that by focusing upon its view of the serious or deliberate nature, or otherwise, of what it described as the “breach” on the part of Mr Hou, the Tribunal failed to ask the questions it ought to have asked, and that the Tribunal instead should have addressed the terms of paragraph (c) of Condition 8202, and also of paragraph (b) thereof (which stipulates that “… the holder is enrolled in a registered course”), and asked itself whether it was satisfied that Mr Hou “has not complied”.

20                  Counsel for the Minister placed reliance on the following passage in Ariyagama v Minister for Immigration and Multicultural Affairs [2001] FCA 1407, where at [15] and [20], Ryan J said as follows:

“15. … In other words, if a student were shown by a comprehensive attendance roll to have attended none, or hardly any, of the classes and tutorials scheduled for the course, that student’s visa would be liable to cancellation notwithstanding that he or she had achieved an academic result for the course that is certified by the education authority to be satisfactory.

…

20. As the evidence demonstrated that the applicant did not satisfy the criteria in condition 8202, the Tribunal had no discretion under s 116 of the Act, as Reg 2.43(2) of the Regulations stipulated that a Student (Temporary) (Class TU) visa, sub-class 560 must be cancelled if the holder has not complied with condition 8202. Therefore, the Tribunal was bound, once it found that the applicant was no longer enrolled in a registered course or had not attended at least 80% of the classes and tutorials scheduled for the course, to affirm the decision to cancel the visa. Accordingly, the applicant can point to no error of law by the Tribunal.”

and further submitted that if the Tribunal had found paragraph (b) of Condition 8202 to have been complied with, and the education provider not to have kept proper records, it ought to have examined the issue as to whether it was satisfied that paragraph (c) of Item 4(3) of Condition 8202 had not been complied with, and that “[t]he Tribunal appears to have done none of this”.

21                  I should interpolate at once to point out that paragraph (b) of Item 4(3) of Condition 8202 seems to have been complied with by Mr Hou at all material times, since as earlier demonstrated, immediately the Astral College gave notice of intent to close down its operations on 6 April 2001, Mr Hou secured enrolment at the University of New South Wales by 11 April 2001, and the cancellation of his visa did not occur until 27 April 2001 (see [10] above). There is no suggestion that the University course was not a registered course within paragraph (b) of Item 4(3) of Condition 8202. Yet if I have understood the Minister’s written submissions correctly, the Minister would not accept that such paragraph (b) was complied with as well, albeit that the predominant focus of the submissions of the Minister related to paragraph (c) of Item 4(3).

22                  The reasoning adopted by Ryan J cited in [20] above cannot be doubted in principle. It is consistent with that applied earlier in this Court, for instance, in Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1285 (Hely J) and Patsanza v Minister for Immigration and Multicultural Affairs [2001] FCA 734 (Mansfield J). It is significant however that in Ariyagama, Ryan J observed that “on no view of the available evidence could the applicant have been regarded on 7 August 2000 as capable of attaining that threshold of 80% attendance”, after first citing with approval (with one exception not here relevant) the comprehensive reasoning of Katz J in Nong, where his Honour was unable to make a similar observation in the particular circumstances which he was required to address.

23                  Counsel for the Minister was dismissive of an entitlement of the Tribunal to rely on Shrestha as authority for the notion of “substantial compliance” by an overseas student in relation to Condition 8202, whether in its present or previous form, pointing out that the decision in Shrestha was set aside by consent of both parties in the context of the Minister’s appeal therefrom, and that in any event, the decision was “plainly wrong”, because it was said to be apparently founded on the presence of paragraph (fa) in subs 116(1), which had not come into force at the time of the Minister’s cancellation of the student visa in that case (see again the text thereof in [2] above). In any event, Counsel for the Minister submitted that paragraph (fa) “has different work to do and captures different cases than the combination of section 116(1)(a) and (3) and regulation 2.43(2)(b)”, as said to be illustrated by the supplementary explanatory memorandum to the Migration Legislation Amendment (Overseas Students) Bill 2000, where the following appears:

“Examples of the circumstances in which this new cancellation power may be used include:

- where there has not been an actual breach of a student visa condition but the decision-maker is nonetheless satisfied that a student is not genuine; or

- where the first academic year of the course in which the student is enrolled has not yet commenced, but the decision-maker is satisfied that the visa holder is not a genuine student; or

- where a semester for the course has not yet finished but the decision-maker is satisfied that the student is not attending the scheduled contact hours for the course in which he or she is enrolled.”

Put another way, the Minister’s contention is that where a breach of Condition 8202 occurs, fulfilling the circumstances prescribed by regulation 2.43(2)(b), the provisions contained in paragraph (b) of subs 116(1) and in subs 116(3) duly apply, and not paragraph (fa) of subs 116(1), and further that paragraph (fa) has work to do only in certain cases where there is no breach of another condition, and where subs 116(3) has no application.

24                  The Tribunal, implicitly I would infer, recognised the prima facie injustice of the cancellation of Mr Hou’s visa in circumstances which do not appear to have been fully placed before the Minister’s delegate (see [8-10] above), and hence sought to rely upon the notion of substantial compliance by reference to Baidakova and Kim (see again [18(iii)] above). The critical issue arising in the present proceedings is whether by other avenues of legal principle, a test as to substantial compliance was required upon an issue as to fulfilment or otherwise with paragraph (c) of Item 4(3) of the new Condition 8202. I should add for completeness that the present proceedings in the Court were commenced prior to 2 October 2001, and accordingly, as Counsel for the Minister rightly volunteered at the outset of his submissions, the same are not affected by the new Part 8 introduced into the Act at and from that time.

Mr Hou’s submissions

25                  Counsel for Mr Hou sought threshold support for the Tribunal’s proposition as to substantial compliance, to which I have already referred in [18(iii)] above, by reference to the approach adopted by Madgwick J in Shrestha, being a judgment to which Mr Hou’s migration agents originally drew attention to the Tribunal below in the context which I have recorded in [11] above. As has been seen, those migration agents also sought to place reliance upon Nong, but as the Tribunal implicitly recognised, it could not do so because, of the text of the new Condition 8202 having taken effect, in one sense retroactively in the circumstances described in [4] above, during the currency or term of Mr Hou’s student visa. The applicant student in Shrestha had attributed his non-compliance to circumstances beyond his control, namely the death of his father, and relied on section 14.3 of the Procedures Advice Manual, which provided that where a student has not complied with Condition 8202, the Minister should consider whether the student’s failure was due to circumstances beyond the student’s control. That was understandable, since the concepts of substantial compliance, and non-compliance due to circumstances beyond one’s control, are not mutually exclusive. Mr Hou’s proposition warrants close consideration, notwithstanding that the Tribunal’s decision below did not purport to place reliance on Shrestha, but rather upon the authorities of Baidakova and Kim, for the purpose of applying the notion of substantial compliance. As has been seen, Counsel for the Minister submitted that reliance by Mr Hou on Shrestha, as authority establishing the application of the concept of substantial compliance in the context of the operation of regulation 2.43(2)(b) and Condition 8202, was not open, for the reasons I have summarised in [23] above.

26                  By way of preliminary submission, Counsel for Mr Hou repudiated the assertion that the decision in Shrestha was set aside by consent because of mutual acceptance by the parties to that litigation that the reasons for decision based upon substantial compliance were misconceived. Moreover Counsel for Mr Hou submitted that the incorrect reliance upon or reference to paragraph (fa) in the reasons for judgment in Shrestha is here immaterial, since paragraph (fa) was inserted into subs 116(1) by Act 168 of 2000 on 21 December 2000, and the cancellation of Mr Hou’s student visa did not take place until 27 April 2001. If I understand that contention of Counsel for the Minister correctly to the effect that the reference to the expression “genuine student” in paragraph (fa) of subs 116(1) has nothing to do with cancellation based on absence of satisfaction as to compliance with Condition 8202, the contention could not be sustained.

27                  Counsel for Mr Hou advanced a further proposition, in support of the decision of the Tribunal below, based upon the scheme of Subdivision GB of Division 3 of Part 2 of the Act, which was introduced into the Act on 21 June 2001, albeit at a time subsequent to the decision of the Minister’s delegate of 27 April 2001. That scheme imposes potentially adverse consequences upon students who have been sent by registered educational institutions, pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth), notices of breach of visa conditions relating to attendance and performance. If a student does not comply with that notice, which requires attendance upon an officer of the Department, his or her visa is to be cancelled by operation of s 137J of the Act. If the student does attend upon the Departmental officer pursuant to a notice of that kind, the officer is empowered by subs 116(1) of the Act to cancel the visa upon any of the grounds therein set forth, including, since 21 December 2000, that prescribed by paragraph (fa) thereof, and if there is no such attendance, and the visa is cancelled automatically by force of s 137J of the Act. In the event however of no attendance, and the visa is thus automatically cancelled, the non-attending student may thereupon apply to the Minister to revoke the cancellation, pursuant to s 137K of the Act. In addressing an application in those circumstances, the Minister is required by subs 137L(1) of the Act to pay regard to the circumstance not only whether the student did in fact breach the relevant condition or conditions, but as to whether any such breach or breaches was or were due to so-called “exceptional circumstances beyond the student’s control”.

28                  In those circumstances, so Counsel for Mr Hou submitted, in order for the legislation to have any present coherence in its now updated form containing Subdivision GB of Division 3 of Part 2, it must follow that if the student complies with the notice and attends upon an officer of the Department, that officer must address the same range of considerations as he or she would have been required to do, if the student did not comply with the notice by way of attendance upon a Departmental officer in the first place, and all that would include a student said to fall within the purview of paragraph (fa) of subs 116(1) of the Act. It could hardly be thought, so Counsel for Mr Hou emphatically observed, that the legislation would favour students who failed to comply with a notice the subject of s 137J, yet that would be the logical consequence of the Minister’s grounds for review of the Tribunal’s reasons for decision below.

29                  It was therefore submitted by Counsel for Mr Hou that the Minister must be empowered to consider circumstances beyond the control of a student in determining whether to cancel a student visa for non-compliance with Condition 8202, pursuant to subs 116(1) of the Act, and each of paragraphs (a), (b), (fa) and (g) thereof in particular. A fortiori must that be so, in circumstances where the Parliament was informed by Senator Patterson, in her Second Reading Speech of 30 November 2000 relating to the Education Services For Overseas Bill 2000 etc., that students, whose visas had been cancelled would be able to “explain his or her failure to attend classes or to achieve a satisfactory performance”. It is entirely understandable that students who suffer the kind of set-backs to their health, found to have been the case in relation to Mr Hou (see again [8(ii), (iii) and (iv)] above), would have been intended by the Legislature to be subject to a disciplinary review regime under which the Minister would be authorised to have regard thereto, or indeed any circumstances beyond the control of the student. In that regard, it may be legitimately borne in mind that the scheme for the tuition of foreign students in Australia has not evolved for reasons of foreign aid, but on the contrary constitutes “a very valuable export industry… worth more than $3.7 billion [presumably per annum] in revenue to Australia” (Senator Patterson ibid).

30                  Counsel for Mr Hou therefore further submitted that whilst the legislative scheme of Subdivision GB of Division 3 of Part 2 did not come into force until some weeks after the decision of the Minister’s delegate, it was not reasonably or logically open to the Minister to contend that prior to the introduction of that scheme, there was no power in the Minister to have regard to circumstances beyond the control of the student, in considering whether a visa condition had been breached, or that power to that effect became available merely by the sidewind of introduction of paragraph (fa) to subs 116(1). If the Minister’s contention in the present proceedings be correct, so Counsel for Mr Hou additionally pointed out, if a student’s record of attendance becomes (relevantly) less than 80% in contravention of the new Condition 8202(3)(c) (see again [4] above), the Minister must cancel the person’s visa, with all the adverse consequences that would ensue. The following exemplification of that consequence proffered by Counsel for Mr Hou, albeit somewhat extreme but in order to nevertheless illustrate the point, would logically follow, namely, a student who:

• has attended 100% of 9 semesters of a 10 semester course (at considerable personal expense), or
• has attended every class up to 75% of the tenth semester; or
• is then involved in a serious accident, or is subjected to serious illness, and in consequence misses 25% of his or her last semester;

must have their visa automatically cancelled, and be banned from re-entering into Australia as a student for at least three years.

The Court’s conclusions

31                  The legislative reforms which were introduced, first by the addition of paragraph (fa) to subs 116(1) of the Act on 21 December 2000 (see [26] above), and secondly by the additions of Subdivision GB of Division 3 of Part 2 to the Act on 21 June 2001 (see [27] above), have complicated the task of statutory interpretation arising in the present proceedings. As earlier appears in these reasons, the delegate’s decision was made on 27 April 2001, in the context of Mr Hou’s student visa which was originally granted on 21 December 1999, and was not due to expire until 30 June 2002, and was cancelled on 27 April 2001, in circumstances where Condition 8202 had undergone alteration on 21 December 2000 of potentially adverse significance to Mr Hou, in the light of his appendicitis condition. The impetus for the legislative changes introduced by Subdivision GB of Division 3 of Part 2 of the Act on 21 June 2001 appear to have been this Court’s decision in Nong made on 6 November 2000, which, according to the Explanatory Memorandum to the Migration Legislation Amendment (Overseas Students) Bill 2000, crystallised in the form of the said Subdivision GB, and deprived the former paragraph (b) of Condition 8202 “of all utility”, probably an overstatement in the light of the reasons for judgment of Katz J. The decision in Nong had been confirmed, though not totally but in essence, by the decision of this Court in Ariyagama, and if there had been no subsequent legislative changes, would have seemingly constituted a complete answer to any assertion of breach of the visa conditions arsing out of Mr Hou’s Astral College experiences.

32                  Contrary to the submissions advanced on behalf of Mr Hou, I do not think however that the “genuine student” concept of paragraph (fa) was intended to be incorporated into, or to control or modify the test for compliance with paragraph (b) of subs 116(1), which test was expressed in unconditional and unqualified terms. That “genuine student concept” is directed to circumstances where a student visa holder has been in literal compliance with visa conditions, for instance as to course attendances, yet has not conducted himself or herself as a genuine student for instance in relation to behaviour at lecturers, and is occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student. I further think that the enactment of Subdivision GB of Division 3 of Part 2 was directed to the achievement of similar goals, as is apparent from the examples in the supplementary explanation memorandum which I have extracted in [23] above.

33                  In the result, I am of the opinion that there is no legitimate room for an implication of the principle of statutory interpretation as to substantial compliance in relation to the operation of paragraph (b) of subs 116(1) of the Act. Moreover the scheme of subs 116(3) does not envisage or allow room for the implication of a statutory alleviation or relaxation of the otherwise unqualified language of paragraph (b). Since the enactment of Subdivision GB of Division 3 of Part 2, the subject of automatic cancellation of student visas has now been more comprehensively addressed, but unfortunately for Mr Hou, the scheme of that enactment does not appear to have retroactive operation, such as to assist Mr Hou. For all of the above reasons, I am unable to distil any justifiable basis for the application of a purposive approach to the construction of paragraph (b) of subs 116(1), such as to assist Mr Hou’s case. In R v Young (1999) 46 NSWLR 681 at 687-88, in the context of discussion of the three well known conditions of statutory construction as to “reading words into legislation” set out by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-6, and paraphrased by McHugh JA in Bermingham v Corrective Services Commissioner of New South Wales (1988) 15 NSWLR 292 at 302, Spigelman CJ said as follows:

“…The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.

…If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text – using consequences to determine which meaning should be selected – then the process remains one of construction.

The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court ‘supplying omitted words’ should be understood as a means of expressing the court’s conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted.”

34                  To adopt his Honour’s well known phraseology, a construction by implication of the existence of paragraph (b) in favour of a visa student of a test as to sufficiency of substantial compliance “must be text based”. Moreover given the circumstances already discussed in [25-26] above, I do not think that Mr Hou can gain any assistance from Shrestha, nor from Baidakova or Kim.

35                  In the result, the Minister must succeed in his application to review the finding of the Tribunal. Two issues nevertheless remain for resolution, the first relating to consequential relief and the second relating to the costs of the proceedings. The finding of the Minister’s delegate should not realistically be restored, in the light of the incorrect information furnished to him by the Astral College (see [9] above), and the subsequent enrolment of Mr Hou in the University of New South Wales in the circumstances set out in [10] above. Presumably Mr Hou is still attending that University. Moreover since the Tribunal’s decision took place after the enactment of Subdivision GB of Division 3 of Part 2 of the Act, any new Departmental complaints about Mr Hou not yet resolved (of which there is no evidence in the Record Book filed in Court) would presumably be now governed by that framework. As to costs, in the exercise of my discretion in the light of the events which have happened, I consider in principle that no order for costs of the present proceedings would be warranted. The Tribunal clearly took a favourable view of his conduct, and the predicament in which he found himself to be placed, by reason of the shortcomings in the reporting of the Astral College and the obviously exculpating circumstances of Mr Hou’s conduct. I grant liberty to apply in any event in relation to the issues as to costs, and any further processes to be undertaken, on seven days notice, if the same cannot be mutually resolved.

Associate:

Dated: 8 May 2002