FEDERAL COURT OF AUSTRALIA

Zou v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1126

MIGRATION – student visa – whether applicant complied substantially with the conditions attached to visa – where amendments were made to the conditions which came into force during a semester of the applicant’s course of study – whether the amendments applied retrospectively – whether decision of a single judge of the Federal Court of Australia that the old condition remained in force until the date on which the new condition replaced it was clearly wrong – whether there was a constructive failure to exercise jurisdiction by the Migration Review Tribunal – where decision was a “privative clause decision”.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 474

Migration Regulations 1994 (Cth) Sch 8 condition 8202

Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Sch 4

Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 not followed

Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 discussed

Maxwell v Murphy (1957) 96 CLR 261 cited

Geraldton Building Code v May (1977) 13 ALR 17 cited

Transurban City Link Ltd v Allan (1999) 95 FCR 553 cited

Brooks v Federal Commissioner of Taxation (2000) 100 FCR 117 cited

Habib v Minister for Immigration and Multicultural Affairs [2002] FCA 1003 considered

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

V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 cited

Minister for Immigration & Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57 cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited

Pierceand Geddies Statutory Interpretation in Australia 4^th ed. 1996

FENG FENG ZOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 192 of 2002

HILL J

13 SEPTEMBER 2002

SYDNEY

GENERAL DISTRIBUTION

THE COURT ORDERS THAT:

            1.         the application is dismissed.

            2.         the applicant pay the respondent’s costs.

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

GENERAL DISTRIBUTION

REASONS FOR JUDGMENT

1                     The applicant is a national of the Peoples’ Republic of China.  He applied on 9 March 2001 for a student (temporary) (Class TU) visa.  Before making the application he had, since 9 December 1999, held a Subclass 560 student visa (“the previous visa”). The previous visa had been valid until 9 March 2001.  He had held earlier student visas from the time he entered Australia, on 30 August 1998.

2                     His March 2001 application was refused.  He applied to the Migration Review Tribunal (“the Tribunal”) to review that decision.  The Tribunal affirmed the decision and Mr Zou has applied to the Court for relief under s 39B of the Judiciary Act 1903 (Cth) which, subject to the provisions of s 474 of the Migration Act 1958 (Cth) (“the Act”), applies to the present decision.  By force of s 474 the present decision is a “privative clause decision” as defined.  At the time of hearing the question of the meaning of that section in the context of the Act was the subject of a number of appeals argued before a full Court of this Court.  By agreement with the parties, the effect of s 474 was thus not the subject of argument before me.  It was rather agreed that I should decide whether the circumstances of the present case were such as to found relief under s 39B of the Judiciary Act.  If they were not, then it was agreed that the application should be dismissed.  If they were, then it was agreed that I would defer consideration of the effect of s 474 pending the decision of the full Court rather than add to the then proliferation of first instance decisions.  The judgment of the full Court in the appeals before it has now been given: see NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.

3                     For the applicant to succeed in the review it was necessary that the Tribunal be satisfied that the application had substantially complied with the conditions attached to the previous visa.  Those conditions included condition 8202 set out in Sch 8 of the Migration Regulations 1994 (Cth).  That condition in force at the time the previous visa was granted read as follows:

“8202. The holder:

(a)       must:

(i)         in the case of an occupational trainee – satisfy the requirements of the course of occupational training approved by the Minister under subclause 442.222(1); or

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

            (iii)       in any other case – be enrolled in a registered course; and

(b)       must (if the holder is not an occupational trainee):

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

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

            (c)        must (if the holder is not an occupational trainee) comply with any requirement of the education provider in relation to payment of fees for the course.”

4                     The Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (“the 2000 Act”) replaced condition 8202 with a new condition.  As so replaced condition 8202 read as follows:

“8202 – 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                     An issue which arises for decision before me is whether, as the Tribunal thought, the amendment made by the 2000 Act applied retrospectively, notwithstanding that the legislation itself only took effect on 21 December 2000 or whether it did not, as the applicant contends. 

6                     The facts as found by the Tribunal may be shortly summarised.  The applicant enrolled in the Sydney Institute for Business and Technology (“the Sydney Institute”) and commenced his study there on 28 February 2000.  He had previously attended a one year program at the Insearch Centre in Intensive Language.  Details of that earlier program were not the subject of consideration by the Tribunal.  Attendance records of the Sydney Institute for the period 28 February to 9 June 2000 indicated that the applicant had an overall attendance record of 78.46% at that Institute with a record of 79.23% if medical and approved absences were eliminated. 

7                     In September 2000, the applicant commenced study with the Information Technology Training Institute (ITTI) where he studied for a diploma of Information Technology.  He had an attendance record at that institute of 84%. 

8                     The applicant claimed that his attendance record at the Sydney Institute had been affected by his emotional condition in the year 2000.  He said that he had been going through a stressful and emotional period in this time, as a result of the serious illness of his maternal grandfather in China who was diagnosed with cancer on March 2000.  There was evidence that the grandfather had been diagnosed with stomach cancer and had undergone an operation for removal of a tumour on 15 June in an unspecified year (inferentially 2000) and that he had received chemotherapy. 

9                     In June and July 2000 the applicant returned to China for almost two months during the critical time of his grandfather’s recovery from illness.  He departed Australia on 10 June 2000 and returned on 27 June 2000 and departed again on 18 July 2000, returning on 1 August 2000. Evidence from a psychologist indicated that the applicant had been feeling severely depressed and anxious in June 2000 and further that in April 2001 he had, for some six or seven months, felt anxious and depressed. 

10                  The applicant’s academic progress was not good.  He had enrolled in three subjects in the Sydney Institute but passed only one of them.  Indeed he had stopped attending classes at the end of the semester in June, immediately prior to travelling to China.  In the diploma course at ITTI he had found computer science not interesting and had stopped attending that course at the end of June 2001 and did not sit the examination for the course.  He noted that his grandfather had been ill and hospitalised again in May 2001 and that he had been worried about his grandfather and depressed.  This had brought about a decision on his part to return to Commerce and indeed he had enrolled in a new course that was due to begin in November 2001.  He produced a letter of provisional acceptance to an advanced diploma of management at the Windsor Institute of Commerce and Languages for a two year course due to finish on 21 November 2003. 

11                  Material obtained by the Tribunal from the diploma course at ITTI indicated that the applicant’s academic failure and poor attendance had resulted in his repeating the first semester in that course in March 2001.  It was noted that the applicant’s attendance rate in that course had thereafter fallen to 14%.  He had again failed the first semester.

12                  The applicant, commenting on the adverse information responded that his attendance in the diploma course had been 84% overall from September 2000 to 6 April 2001 when the present application for visa had been made.  He admitted however that his attendance had not been good after the visa had been refused and that he had left the school in July 2001 when he had enrolled in the advanced diploma in the Windsor Institute of Commerce and Languages. 

13                  The Tribunal found that the applicant had substantially complied with the attendance requirement for the semester at the Sydney Institute which had finished on 9 June 2000.  It noted however that on the applicant’s own evidence he had studied three subjects but passed only one.  A certificate of attendance had shown only two subjects were studied but did not provide results.  The Tribunal noted that there was no evidence before it that the Sydney Institute regarded the applicant as having received satisfactory academic results for this period.  The Tribunal accordingly found that the applicant had not achieved an academic result that was certified by the Sydney Institute to be satisfactory for the first semester from 28 February 2000 to 9 June 2000. 

14                  The Tribunal then turned to the question whether, nevertheless, the applicant had substantially complied with condition 8202.  The Tribunal noted that the failure to achieve the attendance rate was not significant, although it had affected his ability to achieve a satisfactory result.  That failure to achieve a satisfactory result, in part, was because the applicant had returned to China twice in June/July 2000.  This was in the Tribunal’s view a more significant breach of the condition.  It may be noted that condition 8202 in the form it took at the time the visa was granted only required the applicant to obtain a certificate of satisfactory performance if the education provider was unable to provide evidence of the rate of attendance.  Thus the Tribunal’s decision depended upon the application of condition 8202 in its amended form.

15                  The Tribunal however regarded the breach of the condition, both as regards attendance and results in the diploma course at ITTI as more significant.  It pointed out that his attendance had been poor in this time and that he had failed to achieve a satisfactory result for the first semester which he had failed and then repeated.  It noted also that he had failed again and that his attendance rate had dropped.  The Tribunal said:

“44.     Even if the Tribunal does not take into account the period that he was between education providers and courses and had returned to China for family reasons, the review applicant was significantly in breach of 8202 during semester one from September 2000 to the date of application.  Although the review applicant may not have deliberately flouted the providers in the period under review, and did not obtain satisfactory results for the semester at either of them.

45.       Taking into account all the relevant circumstances of the case and the evidence before it the Tribunal finds that the review applicant had not substantially complied with condition 8202 at the time of application.  He therefore does not meet the criterion in clause 560.213.”

16                  The Tribunal found it unnecessary to determine whether the applicant had complied with condition 8202 as at the time of decision.  One reason for not doing so was a view the Tribunal expressed that at the time of the decision the applicant had held a bridging visa which was not subject to condition 8202.  In any event, failure to comply with condition 8202 at the time of the application meant that the application would necessarily have to fail, so it was not necessary to consider whether there had later been non-compliance.

17                  It was submitted by counsel for the applicant that the Tribunal had erred in three respects, each of which constituted a jurisdictional error founding relief under s 39B of the Judiciary Act 1903 (Cth).  The three matters relied upon were:

1.         That the Tribunal wrongfully imposed upon the applicant an onus of proof, whereas in administrative proceedings of the present kind, no question of onus arose.

2.         That the Tribunal erred in holding that the 2000 Act operated to change the content of condition 8202 retrospectively.

3.         That the Tribunal failed to consider the applicant’s case that his period in the second course was affected by his adjustment problems, emotional condition and difficulty with English and that this failure constituted a constructive failure of the Tribunal to exercise its jurisdiction.

I shall consider each of these matters in turn.

Onus of Proof.

18                  I was referred to two passages in the Tribunal’s reasons where it was submitted that the Tribunal made clear that it regarded the applicant as needing to satisfy an onus placed upon him.  The passage which most supports the submission that the Tribunal impermissibly required the applicant to satisfy an onus is that at para 13 of the reasons where the Tribunal noted that if the amended version of condition 8202 was to be applied, “the review applicant must show not only that he attended 80% of the contact hours scheduled for any semester but also produce a certificate from the education provider that he has obtained results for the semester that are at least satisfactory.” (emphasis added)

19                  It may be accepted that the concept of onus of proof has no place in administrative decision making (at least unless made specifically relevant, as for example in the context of income tax appeals before the Administrative Appeals Tribunal).  Rather the administrative tribunal is required to consider the material before it and in the present context determine by reference to that material whether the Tribunal is satisfied that there has been compliance with conditions to which a former visa was subject.

20                  However a reading of the Tribunal’s reasons as a whole does not suggest to me that the Tribunal did as is submitted, impose an onus upon the applicant.  Indeed, it is clear to me that the Tribunal did not.  The reasons make it clear that it saw its task as one of determining its satisfaction from the material before it, including material which it obtained itself.  It noted an absence of material in certain respects and where it had itself obtained adverse material properly gave the applicant the opportunity in accordance with s 359A of the Act to comment on matters that were adverse to his case. 

21                  In my view there is no justification at all for the submission.

Whether the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) operated to change the form of condition 8202 retrospectively.

22                  In support of the submission the applicant relied upon the decision of Finkelstein J in Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498.  That decision is presently on appeal to a full Court of this Court.  It is not expected however that the appeal will be argued until November.  In that decision his Honour held, but without any discussion, that the 2000 Act in effecting the change to condition 8202 did not operate retrospectively.

23                  The amendments relevant to the present case brought about by the 2000 Act were in part a legislative reaction to the decision of Katz J in Nong v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 257.  It was held in that case that the earlier version of condition 8202, which required an applicant to attend at least 80% of the classes and tutorials scheduled for a course had the consequence that the proportion of attendance could normally only be considered at the conclusion of the course.  Unless the course had been completed it would not be possible to know whether a student had attended or could be regarded as substantially having attended at least 80% of the classes.  The same would hold true for the requirement that the visa holder achieve a satisfactory academic result in a course.  The question was left open whether failure to attend 80% of classes for a course could be calculated in a particular case before the course had been completed when a point had been reached where it was no longer possible for the visa holder to achieve an 80% attendance before the course concluded.  It was unnecessary for his Honour to decide that matter and it is certainly unnecessary for me now to enter into that debate.  The Minister lodged an appeal from the decision of Katz J to a full Court of this Court but then discontinued the appeal before it was heard.

24                  The new form of 8202 required attendance and success to be looked at on a semester by semester basis rather than on a whole course basis, except where a course would run for less than a semester.  It thus avoids the problem raised in Nong.

25                  There is no express provision in Sch 4 to the 2000 Act which inter alia inserted the new form of condition 8202 stating that it is to operate retrospectively.  Nor for that matter is there anything in the extrinsic material which deals with the question.

26                  It may be accepted that there is a presumption against legislation applying retrospectively: Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ.  This will be so, unless the intention to operate retrospectively appears with reasonable certainly. See too, Geraldton Building Code v May (1977) 13 ALR 17 and Pierceand Geddies Statutory Interpretation in Australia 4^th ed. 1996 Chapter 10 at pp. 243 ff.  Ultimately, it must be said however, the question is one of interpretation.  It must therefore be asked whether the provisions of Sch 4 and particularly item 4(2) replacing condition 8202 was intended by Parliament to operate with retrospective effect.  It may here be noted that the 2000 Act received the royal assent and thus came into effect on 21 December 2000.  It applied specifically to visas in effect on that date or which were granted between that date and 1 July 2001.

27                  If the amendment to 8202 applied retrospectively, as the Tribunal thought, then all it was required to do was to form a view of the applicant’s compliance with the condition in its amended form.  If on the other hand it did not operate retrospectively, as the applicant submits, then presumably, it would be necessary to consider on the facts of the present case whether in the period from 9 December 1999 (the date the last student visa was issued to him) until 20 December 2000 (the date the 2000 amendments received the Royal Assent) the applicant had complied with the original condition 8202 and whether from 21 December 2000 until 9 March 2001 he had complied with the amended form of the condition.

28                  In accordance with authority, a single judge of this Court should follow the decision of another single judge on the same subject matter unless that decision is clearly wrong: Transurban City Link Ltd v Allan (1999) 95 FCR 553; Brooks v Federal Commissioner of Taxation (2000) 100 FCR 117 at [69]-[70]. 

29                  Some doubt indeed may be cast upon the decision of Finkelstein J in Kwan by the later and ex tempore decision which his Honour gave shortly before the present case was argued in Habib v Minister for Immigration and Multicultural Affairs [2002] FCA 1003.  In Habib the Minister again argued before his Honour that the change of language of condition 8202 applied retrospectively.  His Honour found it unnecessary in the circumstances of that case to revisit the issue but said at [6]:

“I should point out, however, that in considering the effect of the legislation which introduced the new condition [ie in Kwan] I did overlook a point.  The new condition was introduced by Schedule 4 of the Amendment Act.  Item 4 of that schedule contains a number of provisions, one of which appears to contemplate that the Minister has the power to cancel a visa for non-compliance with the new condition even if that non-compliance predated the Amendment Act.  This item favours the Minister’s argument and is a point that I should have dealt with.”

30                  With respect to his Honour, I am of the view that the decision in Kwan was wrong, and I think clearly wrong, for the following reasons:

(1)        First, as Finkelstein J has himself now noted, Item 4 of the Schedule clearly contemplates retrospective effect in the circumstance to which it refers.  For the applicant it was argued that indeed this did not favour the Minister’s construction but in fact was adverse to it.  The submission was that if the Schedule did have retrospective effect it would have been unnecessary to deal with a specific case that is dealt with in Item 4.  On the whole I think that Item 4 was inserted into the Schedule to make it abundantly clear and explicit that in the case to which it referred there was retrospective effect. I do not think that it was intended to deal with a case which was to be an exception to the general rule of non-retrospective effect.  That seems not to be the intention.

(2)        Secondly, and this is related to the first point, it would seem strange if conduct to 21 December 2000 could form the basis of a cancellation of an existing visa because of the application of Item 4 but could be taken into account in determining whether a new visa should be issued.  In saying this I understand that the case law has construed the tests applicable to cancellation of an existing visa to be in certain respects different from those applicable to the case where there is a grant of a new visa.  That this is the case can be seen, for example, from the decision of Conti J in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and the cancellation cases to which his Honour there refers.  On the whole, however, the fact that there may be some differences of construction arising in a cancellation case does not in my view support the view that those differences extend to the question of the retrospective effect of the new condition 8202.  It would be bizarre if Parliament had such an intention.

(3)        Thirdly, if the construction urged upon me by the applicant is correct cases may well arise where the amended condition 8202 creates a similar problem to that evidenced in the previous condition which it was designed to replace, as illustrated by the full Court decision in Nong.  For example, let it be assumed that the period from the date of an initial visa to 21 December 2000 was less than a semester and condition 8202 did not have retrospective effect so that it was necessary to consider the question of compliance in two periods, the first in accordance with the language of the original wording of the condition and the second in accordance with the amended wording.  It may be impossible to determine whether there has been compliance with the condition in the first period in accordance with the decision in Nong for the course will not then have been completed.  There may be a difficulty of testing compliance in the second period also, because it may include only part of a semester and in the case of a semester course attendance during the semester could only be judged once a semester was completed or at least until so much of a semester had been completed as ensured that the visa holder could not comply with the 80% attendance requirement.  Given that the obvious legislative intention was to overcome the decision of Katz J in Nong, an interpretation which did not do so, but may, indeed, have compounded the problem is unlikely to accord with the Parliamentary intention.

31                  Finally, although certainly not conclusively, Item 4(2) deems the condition to be in the new form “for all purposes”.  Further in accordance with Item 1 it is clear that the prior visa in the present case had been granted before 1 July 2001 and was such that the new condition applied to it.  For these reasons I think that the legislature made tolerably clear its intention that the new form of condition 8202 was to apply with full effect to those visas to which it is stated to apply and for all purposes during the currency of that visa, not that the old form of condition was to apply until the coming into effect of the 2000 Act and the new form thereafter.

32                  It follows in my view that the applicant fails on the second submission.

Failure to exercise jurisdiction.

33                  It is no doubt true that the failure of the Tribunal to address a relevant argument of an applicant is a jurisdictional error as well as a legal error amounting to what has been sometimes referred to a constructive failure to exercise jurisdiction: V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355; Minister for Immigration & Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57 at [80] per Gaudron J; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [41] per Gaudron J.

34                  One difficulty an applicant may have in making such a submission will be where the applicant does not put before the Tribunal a transcript of the proceedings from which it may be seen that the submission said not to be addressed was in fact made.  That is a difficulty which the applicant faces in the present case.  At the hearing all that was known of the case put by the applicant is to be found in a letter from the applicant’s migration agent dated 1 May 2001, which was the original submission to the decision maker and which the agent forwarded as well to the Tribunal in a letter of 4 May 2001.  The applicant was granted time to obtain a copy of the transcript of proceedings before the Tribunal and further time to file a note pointing to any sections of that transcript to which he wished the Court to refer.  The transcript indicated that the agent did not attend the Tribunal hearing and the hearing was occupied with the Tribunal member asking questions.

35                  In the letter, to which reference is made above, the agent noted that the applicant had had some adjustment problems on his arrival, that is to say in September 1998 but had soon settled in after three to six months.  It is said that, the applicant’s performance was “slightly affected” due to his language ability and that his attendance record has been satisfactory until “up to now” (ie May 2001) except that it was affected by his “emotional condition” in the year 2000.

36                  The letter dealing with the issue of satisfactory attendance notes that the applicant had been worried about his maternal grandfather’s health since there had been a diagnosis of cancer in March 2000 and that the applicant was emotionally disturbed about this.  It is said that the grandfather had been under cancer treatment for a few months until the operation had been performed in June 2000.  It is noted that the grandfather’s condition had stabilised after July and there is nothing in the letter to suggest that there is any explanation for any emotional condition after that date. 

37                  In summary, it would seem from the letter that the applicant’s case was that there had been an initial adjustment period which finished in March 1999, some slight impact of a language problem and an emotional condition for which the explanation had disappeared by around July 2000. 

38                  The consulting psychologist’s report, to which reference is also made above, does note that Mr Zou had been depressed through to August 2000, as well as noting a problem in or around April 2001.  However this does not seem to have been part of the case made by the migration agent.

39                  There is finally a letter from the applicant himself dated 26 November 2001 in which he notes that his mental status had been severely affected in relation to his grandfather’s ill health.  It seems not to add anything to the migration agent’s submission.

40                  The transcript of the hearing before the Tribunal when it was ultimately produced did not disclose any information in greater detail or submissions from the applicant on the matters in the documents to which I have referred.

41                  The Tribunal’s reasons refer to these matters.  There is nothing in the reasons that suggests that the Tribunal did not consider the submission that was made to it.  Indeed the Tribunal took into account the impact of the grandfather’s illness and said that it was understandable that the applicant had been affected by this.  It is difficult to see that the claim that the applicant had some difficulty with English required particular discussion by the Tribunal.

42                  With respect, I do not think that the applicant has made out a case that the Tribunal has incorrectly failed to consider the applicant’s submission, so far as that submission at least is evident from the papers before the Court.  It may be noted that nothing in this submission explains why the applicant failed the exam in February 2001, a matter which the Tribunal regarded as significant in its reasons.

Conclusion

43                  It follows, in my view, that the applicant has not succeeded in showing any ground for an order being made under s 39B of the Judiciary Act.  Having regard to the decisions of the full Court it would also follow that the present decision being a privative clause decision would in the circumstances of the present case be final and not subject to review. As the application must fail I dismiss the application and order the applicant to pay the Minister’s costs of it.

Associate:

Dated:              13 September 2002