FEDERAL COURT OF AUSTRALIA

Quan v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 764

ADMINISTRATIVE LAW – jurisdictional error – proper construction of a statute where power conferred by the statute is based on the existence of an opinion

WORDS AND PHRASES - ‘contact hours’

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 116

Migration Regulations 1994 (Cth) regs 1.03, 2.43 and Sch 8

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 referred to

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

Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 referred to

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 applied

LI QUAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N217 of 2004

JACOBSON J

17 JUNE 2004

SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed.
2. The decision of the Migration Review Tribunal (‘MRT’) made on 28 January 2004 be set aside.
3. The matter be remitted to the MRT to be determined according to law.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Migration Review Tribunal (“MRT”) affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) cancelling the applicant’s student visa. The visa was a subclass 571 student visa which was granted on 23 October 2002. The delegate’s decision was made 1 September 2003. The MRT’s decision was dated 28 January 2004.

2                     The delegate cancelled the visa because he was satisfied that the applicant had not complied with condition 8202 of his visa. This condition provided, inter alia, that the Minister must be satisfied that the applicant had attended at his educational institution for “at least 80% of the contact hours scheduled for each semester.” The delegate was satisfied that the applicant had an attendance rate of only 77% and that he failed by a small margin to reach the specified threshold.

3                     Mr Wigney, counsel for the Minister, fairly conceded that the reasons given by the MRT were not as clearly expressed as they might be. Nevertheless, he submitted that on a fair reading of the decision the MRT had reached a state of satisfaction that the applicant had attended for only 77% of the requisite time and therefore that the applicant had breached condition 8208.

4                     The effect of the relevant provisions of the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations 1994 (“the Regulations”) is that if the MRT reached a state of satisfaction that the applicant had not attended for 80% of the contact hours it was bound to affirm the cancellation of the visa. There was no residual discretion; see Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 (Emmett J) at [11] – [12]; see also Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 (Conti J) at [33].

5                     The applicant is a national of the People’s Republic of China. He is nineteen years old. He entered Australia on 30 June 2002 on a subclass 571 visa which expired on 23 October 2002. On that date he was granted a further subclass 571 visa which was valid to 15 March 2005. It was that visa that was cancelled and which is the subject of these proceedings.

6                     The application for review does not contain proper particulars of the challenge which is made to the MRT’s decision. It makes broad allegations of jurisdictional error based upon contentions that the MRT ignored parts of the applicant’s claims and that, as a result, the decision was without reasonable or rational foundation.

7                     The applicant appeared in person. He did not file written submissions. His submissions were very general but the effect of them was that the MRT had ignored his contentions as to why he had satisfied the 80% attendance requirements. There were three such contentions and I will deal with them later.

8                     There is however a further possible issue of jurisdictional error which I raised with Mr Wigney. The attendance requirement stated in condition 8202 is for 80% of the “contact hours”. However, the attendance record on which the MRT relied was a letter from the applicant’s school which stated that the applicant had been absent on certain specified dates. A question arises as to whether the MRT addressed the correct statutory question when considering whether it was satisfied that condition 8202 was breached.

The Legislation

9                     Condition 8202 is found in Schedule 8 of the Regulations. It provided, relevantly, as follows:-

“8202 …

(2) The 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 …”

10                  The definition of “contact hours” is found in Regulation 1.03. It is as follows:-

“contact hours, for a course for a period, means the total number of hours in the period for which students enrolled in the course are scheduled to attend classes for teaching purposes, course-related information sessions, supervised study sessions and examinations.”

11                  Section 116 of the Act provides relevantly as follows:-

“116 Power to cancel

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

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

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

…

(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                  There are no circumstances prescribed pursuant to s 116(2). The prescribed circumstances referred to in s 116(3) are contained in Regulation 2.43 of the Regulations which relevantly provides as follows:-

“2.43 Grounds for cancellation of visa (Act, s 116)

…

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

…

(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.”

The Background to the MRT Proceedings

13                  Under cover of a letter dated 14 August 2003, the applicant’s school (“the school”) gave a notice to the applicant under s20 of the Educational Services for Overseas Students Act 2000 (Cth) that the applicant had breached a condition of his student visa relating to attendance in the course in which he was enrolled at the school. The particulars of the breach were stated as follows:

“Mr Quan’s attendance rate was 77% for Term 2 2003 which commenced on 28 April 2003 and ended on 04 July 2003. This is below the 80% minimum attendance requirements specified by DIMIA. Mr Quan received two warning letters. The College considers that Mr Quan is making satisfactory academic progress.”

14                  On 3 October 2003 the school wrote to the MRT stating that according to its attendance records for term 2 the applicant was absent on eleven specified dates. The letter states that no medical certificates were presented.

15                  Although the letter of 3 October 2003 specified particular dates on which the applicant was absent, the MRT had before it the school’s timetable for term 2. This document shows hours for various courses and also shows that there were large slabs of free time during the respective days. The document is as attached (see Annexure A).

16                  On 10 October 2003 the MRT wrote to the applicant about his application for review of the delegate’s decision. The letter was written pursuant to s 359A of the Act and it invited the applicant to comment, in writing, on, inter alia, the following information:-

“A notice from the Australian International High School dated 14 August 2003, under section 20 of the Education Services for Overseas Student Act 2000. The notice states you achieved an attendance rate of 77% for Term 2, 2003.”

The letter also invited the applicant to comment on the letter from the school dated 3 October 2003 which set out the days on which the applicant was absent without medical certificates.

17                  The letter went on to state that the significance of the information, if true, was that it may lead the MRT to find the applicant had not complied with condition 8202 which requires a minimum 80% attendance rate for each term or semester. The letter pointed out that if condition 8202 was breached then, under the regulations, cancellation of the visa was mandatory.

18                  On 21 October 2003 the applicant’s migration agent responded to the letter of 10 October 2003. The letter gave three explanations for why the applicant’s attendance rate was “not satisfactory”. These were as follows:-

·                    The applicant encountered “a car incident” when he was in China and was required to rest for at least a month as a result of the pain which he suffered.

·                    He did not attend the Maths class on Wednesdays because the Maths teacher was engaging in inappropriate behaviour.

·                    The school calculated the applicant’s attendance rate incorrectly. This was because he said that on Wednesdays he had a sports class in the morning which he did attend, although he did not attend the Maths class in the afternoons. He said that the school counted the whole of the day as a day on which the applicant was absent, whereas, in fact, he was present for a half day on each of the Wednesdays.

The MRT’s Decision

19                  The MRT recounted the history of the proceeding at [15] and following. It recorded the applicant’s submissions as to his excuses for non-attendance, namely his leg injury and the “inappropriate behaviour” of the Maths teacher. The MRT also recorded the submission made by the applicant’s migration agent which it referred to at [22] of the reasons for decision. There the MRT stated that the migration agent claimed that the school marked the applicant as being absent for 11 full days when it should have calculated half days in which the applicant attended. This would have amounted to an 80% attendance record if the half days were taken into account.

20                  The MRT said at [30] that the school’s attendance records stated that the applicant was absent for 11 days in the 10 week period of the semester. The MRT continued as follows:-

“This information suggests on the face of it that the review applicant has not complied with condition 8202 of their visa and is, therefore, liable for cancellation pursuant to s 116(1)(b) and s 116(3) of the Act.”

21                  The MRT found at [31] –[33] that the effect of s 116(3), and of Regulation 2.43(2) together with condition 8202 was that the MRT had no discretion whether or not to cancel the visa if the condition was not complied with. That is to say, cancellation was mandatory. There was no principle of substantial compliance.

22                  The MRT referred at [45] – [50] to the “excuses” for non-attendance put forward by the applicant. The MRT expressed doubts about the evidence which the applicant put forward to support the claim that the applicant had a leg injury. The MRT recorded the school’s denial of the inappropriate behaviour of the Maths teacher.

23                  The MRT dealt with the applicant’s contention that he had attended sports classes. The MRT said at [49] :-

That claim that the review applicant did not miss sport classes is not consistent with a person having to miss classes because of a leg injury. One would imagine that the review applicant would seek to avoid involvement in sporting activities lest he aggravate the injury to his leg which he claims has caused him so much trouble but that is not the case as shown by the evidence.”

24                  The MRT then concluded its reasons by making the following finding at [51]:-

“The Tribunal finds that the explanation given by the review applicant for the absences from class is not supported by the evidence available to the Tribunal.”

25                  The MRT went on at [52] to find that the applicant breached the provisions of s 116(1)(b) of the Act and that cancellation of the visa was mandatory in accordance with s 116(3) of the Act.

Contact Hours – whether the MRT asked itself the correct question

26                  The MRT was required under s 116(3), Regulation 2.43(2) and condition 8202 to reach a state of satisfaction as to whether the applicant had attended his course of study for at least 80% of the “contact hours” scheduled.

27                  Condition 8202(3)(a) refers to an education provider which keeps attendance records. There was no suggestion that the school did not keep such records. Indeed, reference was made in the decision to the school’s attendance records.

28                  Nowhere in the MRT’s decision did it refer to the definition of “contact hours” contained in Regulation 1.03. Instead, the MRT seems to have proceeded on the basis of the evidence before it from the school that the applicant was absent for eleven days out of fifty.

29                  It is not entirely clear that the MRT made a finding that the applicant had been absent on eleven days and that he had therefore attended for only 39 days out of 50. However, it seems to me that on a fair reading of the decision this was the finding which it made.

30                  Nevertheless, it is plain that the MRT proceeded upon the basis that in determining the 80% attendance requirement it was appropriate to make the cancellation by reference to the ratio of the days on which the applicant attended the school to the total number of days of the semester.

31                  In my view, this approach does not address the statutory question which the MRT was required to answer in order to reach the necessary state of satisfaction.

32                  What the decision maker was required to do in order to reach a state of satisfaction as to whether the applicant had been in attendance for 80% of the contact hours was to have regard to the total number of hours in the semester for which the applicant, as an enrolled student, was scheduled to attend the school for four different purposes. These were, as stated in the definition: firstly to attend classes for teaching purposes, secondly to attend course-related information sessions, thirdly to attend supervised study sessions and fourthly to attend examinations.

33                  A percentage figure based upon the proportion that the total number of days attended at the school bears to the total number of days of the semester, in no way meets the statutory test which follows from the provisions of condition 8202 and the definition of “contact hours”.

34                  It can be seen by looking at the timetable (see Annexure A) that the students were not scheduled to attend classes for teaching purposes on the whole of each day. There appears to be time on Wednesday morning and Thursday afternoon where enrolled students are not scheduled to attend, and some of the classes occupied only a matter of one or two hours on each day.

35                  Moreover, there was no information before the MRT as to the hours for which the applicant was scheduled to attend during the semester for three of the purposes referred to in the definition of “contact hours”, namely course related information sessions, supervised study sessions or examinations.

36                  It seems to me to follow that the MRT did not ask itself the correct question because it did not consider whether it had reached a state of satisfaction as to the contact hours attended or the contact hours scheduled in accordance with the definition of that term.

37                  In Minister for Immigration and Multicultural Affairs v Eshetu (1998-99) 197 CLR 611 at [133] Gummow J referred to the remarks of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430. There the Chief Justice said that where the existence of an opinion is made a condition of the exercise of power, legislation confirming the power is treated as referring to an opinion which is such that it can be formed by a reasonable person who correctly understands the meaning of the law under which he or she acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.

38                  The Chief Justice also said at 432 that what the Court does is to inquire whether the opinion required by the legislation has actually been formed. If the opinion was reached by misconstruing the terms of the relevant legislation then it must be held that the opinion required has not been formed.

39                  In my view, the failure of the MRT to ask itself the correct question or to properly construe the terms of the Act and the Regulations constituted jurisdictional error within the principles referred to in Hetton Bellbird. Thus, even though the decision was a privative clause decision, the power to set it aside is enlivened because the decision would be a purported decision which had no legal effect: see Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 at [43].

40                  Mr Wigney submitted that it was impractical to determine the percentage of the applicant’s attendance by reference to hours of attendance rather than by days. Whether or not this is so, impracticality can be no answer to the requirements of the statute.

Whether the MRT failed to have regard to the applicant’s claims.

41                  It is strictly unnecessary to deal with this issue. The answer to it turns upon whether, on a fair reading of the reasons for decision of the MRT, these contentions were properly dealt with. Although, as I have said, the reasons for decision are not expressed as clearly as they might be, it does seems to me on a fair reading that the MRT dealt with each of the applicant’s contentions.

42                  A fair reading of [49] is that the MRT did not accept the applicant’s submission that he had attended sports classes and that his attendance should be increased by the relevant half days upon which he went to those classes. That disposed of the submission put by the applicant’s migration agent that the additional half days should be taken into account so that the applicant had, in fact, attended 80% of the required days.

43                  As to the other two points made by the applicant, the MRT expressed its doubts as to each of those contentions and rejected them at [51].

Conclusion and Orders

44                  I was much assisted by Mr Wigney’s written and oral submissions. However, for reasons set out above, the orders that I make are that the decision of the MRT be set aside and that the matter be remitted to the MRT to be determined according to law. The applicant appeared in person and it is therefore inappropriate to make any costs order.

Associate:

Dated: 17 June 2004