FEDERAL COURT OF AUSTRALIA

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

ADITYA GERHARD  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 861 of 2002

RYAN J

22 MAY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The applicant was a holder of a Student (Temporary) (Class TU) (Vocational Educational and Training Sector) visa sub-class 572 issued pursuant to the Migration Act 1958 (“the Act”).  A delegate of the respondent Minister (“the Minister”) decided on 5 July 2002 to cancel that visa.  The applicant applied to the Migration Review Tribunal (“the MRT”) for a review of the cancellation of his visa.  That application was refused on 21 November 2002.  The applicant’s visa had been issued on 27 November 2001 and was due to expire on 1 August 2002.  It was, by Reg 572.6 made subject to, amongst others, condition 8202 which provided;

‘(1)      The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2)       A holder meets the requirements of this subclause if:

(a)       the holder is enrolled in a registered course; or

(b)       in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student -- the holder is enrolled in a full-time course of study or training.

(3)       A holder meets the requirements of this subclause if:

(a)       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

(b)       in any case -- the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

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

(ii)       for a course that runs for at least a semester -- for each term or semester (whichever is shorter) of the course.

(4)       In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full-time course of study or training.’

2                     The applicant had been enrolled in a course leading to a Diploma of Commerce at the Melbourne Institute of Business and Technology (“the MIBT”) an affiliate of Deakin University.  At a hearing before the Delegate of the Minister, the applicant accepted that the effect of a notice issued by the MIBT was that he had failed seven out of eleven subjects for which he had presented in Semester 2 of 2001, Semester 3 of 2001 and Semester 1 of 2002.  A Certificate of Attendance between 2 July 2001 and 8 June 2002 fixed the applicant’s attendance at 88.33 per cent.  At the hearing before the MRT, the applicant adduced evidence that his studies had been disrupted by the breakdown of a relationship with his girlfriend and an attack of anxiety depression between 1 June and 7 June 2002.  He also put in evidence a testimonial letter from the Rev. Ting of the Camberwell Parish of the Uniting Church.  As well, the applicant adduced evidence that he had been accepted for enrolment by Swinburne University of Technology in a two year course leading to an Advanced Diploma of Business (Marketing). 

3                     Under the hearing “Findings”, the MRT in its reasons set out as follows its understanding of the relevant provisions of the Act and the Regulations;

‘23.      The delegate in cancelling the visa relied on sections 116(1)(b) and 116(3) and Regulation 2.43(2)(b). Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. Section 116(3) of the Act provides that if a visa may be cancelled under 116(1), it must be cancelled if there are prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2) sets out those circumstances. Regulation 2.43(2)(b) states that in the case of a Student (Temporary) (Class TU) visa, a prescribed circumstance is where the Minister is satisfied that the visa holder has not complied with condition 8202.’

4                     The MRT then set out the text of condition 8202 which I have already reproduced.  The MRT’s finding that the applicant had not satisfied the requirements of condition 8202 relating to academic performance was based on an MIBT notice purportedly issued pursuant to s 20 of the Education Services for Overseas Students Act 2000 (“the Overseas Students Act”).  That part of the MRT’s findings was expressed as follows;

‘25.      On 19 June 2002 the Melbourne Institute of Business Technology (MIBT) issued a notice under Section 20 of the Education Services for Overseas Student Act 2000. The notice stated that the review applicant had breached the condition of his student visa relating to academic performance and was excluded from MIBT for not meeting academic requirements. Accordingly the Tribunal finds that the review applicant has not satisfied the requirements of condition 8202 relating to academic performance.’

5                     Finally, the MRT took the view that the effect of s 116(3) and Reg 2.43(2) was to deprive a decision-maker of any discretion whether or not to cancel a visa once a holder had failed to meet the requirements of condition 8202.  These conclusions were expressed as follows in the MRT’s reasons;

‘26.      Section 116(3) and Regulation 2.43(2) deny any discretion whether or not to cancel a visa if the visa holder has not complied with condition 8202. That is, the Tribunal must affirm a decision to cancel if the condition was breached: Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 and Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574.

CONCLUSION

27.       The Tribunal is satisfied that the review applicant breached condition 8202 of his subclass 572 visa. Therefore the Tribunal must affirm the decision under review.’

6                     For the applicant it was contended that the MRT had erred in law because it failed to perceive that the notice issued to Mr Gerhard by the MIBT had not complied with s 20 of the Overseas Students Act.  The notice in question recited;

‘This Notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 as you have breached a condition of your student visa relating to satisfactory academic performance in the course in which you have been enrolled at this institution.

Particulars of breach:

Student excluded from MIBT due to not meeting academic requirements.

Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28^th day after the date of this notice, unless you report to DIMIA by that time.  The day count begins on the first day after the date of this notice and ends on the 28^th day thereafter.

You must report personally to a compliance officer at following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office:

AUSTRALIA (Melbourne - City VIC)

Level 15 (Compliance)

Casselden Place

2 Lonsdale Street

MELBOURNE

VIC 3000

Australia

Telephone 131881

with photographic identification of yourself (preferably your current passport), and a copy of this notice, to explain the breach of your student visa condition as specified above. If you fail to bring satisfactory identification to DIMIA, the automatic visa cancellation process will continue and your student visa will be cancelled.

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.

Particulars of this notice have been sent to the Department of Employment, Science and Training (DEST) and DIMIA.’

7                     Then followed a notification of the consequences for a person whose visa has been cancelled under s 137J of the Act and a reference to s 137K as entitling a person whose visa has been cancelled under s 137J to apply, before the date on which the visa would have expired had it not been cancelled, for revocation of the cancellation.

8                     Section 20 of the Overseas Students Act provides, so far as is relevant;

‘Sending students notice of visa breaches

(1)       A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.

Note 1:  The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.

Note 2:  It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

(2)       The registered provider must send the notice as soon as practicable after the breach.

(3)       The notice must be in a form approved by the Secretary of the Immigration Minister's Department.

(4)       The notice must:

(a)        contain particulars of the breach; and

(b)       state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958 ) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and

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

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

9                     Mr Fernandez for the applicant contended that the purported “particulars of breach” stipulated in the MIBT’s notice, namely “Student excluded from MIBT due to not meeting academic requirements”, were not particulars of a breach of the student visa condition 8202 relating to satisfactory academic performance.  It was contended that condition 8202(3)(b), in relation to an applicant like the present whose course was to run for more than a semester, required a certification of results as satisfactory or unsatisfactory for each semester which had been completed at the date of issue of the notice under s 20 of the Overseas Students Act.  In the absence of particulars of that kind, it was contended, the MRT was bound to hold that the notice was invalid and was precluded from obtaining the requisite state of satisfaction that the visa-holder had not complied with a condition of his visa.

Reasoning

10                  Section 116 of the Act confers on the Minister a power to cancel a visa by providing;

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

…………

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

11                  Sub-sections (2) and (3) of s 116 provide;

‘(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.’

12                  It is common ground that Reg 2.43(2) prescribes circumstances in which a visa must be cancelled as contemplated by s 116(3) of the Act by providing;

‘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;

(i)         condition 8104 or 8105 (if the condition applies to the visa);  or

(ii)        condition 8202.’

13                  Accordingly, for the mandatory obligation to cancel the applicant’s visa to arise, the Minister, or his Delegate (or the MRT standing in the shoes of the Minister) had to be satisfied that the applicant had not complied with condition 8202.  The matters stipulated in condition 8202(2) and (3) are cumulative as are the twofold requirements imposed by condition 8202(3).  In other words, for an applicant to comply with condition 8202(3), the Minister must be satisfied that the eighty percent threshold for attendance has been satisfied and the holder must have achieved an academic result that has been certified by the education provider to be at least satisfactory.  The Minister can only be satisfied of non-compliance with the latter sub-condition if there is no acceptable evidence of certification by the education provider of at least satisfactory results.  It is not open to the Minister to question, or go behind, such a certificate if one exists. 

14                  In the present case there was a complete absence of any such evidence of certification. Moreover, the MRT was almost compelled to infer from the evidence before it that no such certificate had been, or would be, issued by the MIBT.  In the first place, the record of the decision by the Delegate noted under the heading;  “Evidence of and reasons why grounds for cancellation do or do not exist”;

‘School has reported a breach of condition 8202.  Visa-holder has agreed that his academic performance did not satisfy course requirements.”

15                  Secondly, in a letter placed before the MRT, the applicant acknowledged that his studies had been affected by emotional stress and begged for one more chance “to prove that I can be successful in my studies.”  Similar statements were made in the testimonial from the Rev. Ting.  As well, the particulars of breach furnished under s 20 of the Overseas Students Act, whether or not they were as full as that section contemplated, indicated that the applicant had been “excluded from MIBT due to not meeting academic requirements.”  The applicant’s failure to meet academic requirements was also corroborated by a certificate of attendance which indicated that his enrolment at MIBT had ended on 8 June 2002.  A results list before the MRT showed that in Semester 2 of 2001 the applicant had passed in one of four subjects for which he had presented.  In Semester 3 of 2001 he passed in two out of three subjects, including Management, which he had failed in the previous semester.  In Semester 1 of 2002 he achieved a bare pass of fifty percent in one subject, the Global Economy, which he had repeated.  In the other three subjects for which he presented in that semester the applicant achieved marks of thirty percent, twenty-nine percent and thirty-two percent.

16                  Against that background, it would have been perverse for the MRT to have been satisfied that the applicant had met the requirements of that part of condition 8202 which required him to have achieved an academic result that was certified by the MIBT to be at least satisfactory for each semester of the approved course which had been projected to end on 1 July 2002. 

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]. 

Conclusion

18                  For these reasons, the MRT was plainly correct in the conclusion which it reached and no occasion arises for considering whether s 474 of the Act precludes review of the MRT’s decision on the ground of the errors imputed to it by the applicant.  Accordingly, the application must be dismissed with costs.

Associate:

Dated:              22 May 2003