FEDERAL COURT OF AUSTRALIA

Zhou v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1078

MIGRATION – student visa – cancellation – condition 8202 – decision of Migration Review Tribunal – whether jurisdictional error – relationship between s 116, s 119 Migration Act 1958 (Cth) and s 20 Education Services for Overseas Students Act 2000 (Cth)

Education Services for Overseas Students Act 2000 (Cth)

Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth)

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

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

Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460

Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476

Namm v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32

Akter v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1504

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

Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170

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

Peng v Minister for Immigration and Multicultural Affairs [2000] FCA 1672

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

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

Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1058

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 216

Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80

Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

ZONG ZHENG ZHOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q166 OF 2003

COOPER J

20 AUGUST 2004

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q166 OF 2003

BETWEEN:	ZONG ZHENG ZHOU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	20 AUGUST 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q166 OF 2003

BETWEEN:

ZONG ZHENG ZHOU

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:	COOPER J
DATE:	20 AUGUST 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1 The applicant is a national of the People’s Republic of China. On 11 January 2002, he received a Student (Temporary) (Class TU) visa. Attached to the visa was a condition 8202. A requirement of condition 8202 was that the applicant obtain satisfactory academic results.

2 The applicant was enrolled at John Paul College at Springwood in the State of Queensland to commence a high school preparation course commencing on 29 January 2002.

3 On 8 April 2003, John Paul College issued to the applicant a notice pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’). The notice stated that the applicant had breached a visa condition because he had not made satisfactory academic progress in respect of the course for which he was enrolled. The notice advised him that, unless he reported to the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) within twenty-eight days from the date of the notice to explain the breach of his visa condition, the visa would automatically be cancelled pursuant to s 137J of the Migration Act 1958 (Cth) (‘the Act’).

4 As required by the notice from John Paul College, the applicant attended on an officer of DIMIA before the expiration of the twenty-eight day period.

5 On 22 May 2003, a notice pursuant to s 119 of the Act was given to the applicant advising of an intention to consider the cancellation of his visa under s 116 of the Act and inviting his response by 11 June 2003.

6 On 11 June 2003, the applicant’s solicitors made a written response to the s 119 notice.

7 On 13 June 2003, the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), pursuant to s 116(1) and s 116(3) of the Act, cancelled the applicant’s visa. The ground relied upon by the delegate for the cancellation of the visa was that the applicant had not met course requirements as required by condition 8202 of his visa.

8 The applicant applied to the Migration Review Tribunal (‘MRT’) for a review of the decision of the delegate. The MRT affirmed the delegate’s decision to cancel the applicant’s visa on 30 September 2003. The applicant then applied to this Court, pursuant to s 39B of the Judiciary Act 1903 (Cth), for the issue of prerogative writs to quash the decision of the MRT and requiring it to re-hear the application according to law.

The decision of the mrt

9 The MRT held that the issue before it was to determine whether or not the applicant had breached condition 8202 attaching to his student visa. The MRT held that the issue was a factual one and found it against the applicant after hearing him. The MRT next found that the breach of condition 8202 entitled the Minister to cancel the visa pursuant to s 116(1)(b) of the Act. However, it held that, because of the operation of s 116(3) and reg 2.43(2)(b) of the Migration Regulations 1994 (Cth) (‘the Migration Regulations’), there was no discretion as to whether or not to cancel the visa. Rather, it was mandatory to cancel the visa because of the breach of condition 8202. In coming to this conclusion, the MRT relied upon two decisions of this Court: Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460.

Proceedings in this Court

10 The applicant, by his amended application, relies upon the following grounds in order to obtain the relief obtained:

‘That the Tribunal’s decision was in excess of jurisdiction or was in jurisdictional error in that:

(a) the Tribunal erred in construing regulation 2.43 of the Migration Regulations in respect of the visa holder “not complying” with condition 8202 of the visa as solely a question of whether compliance had occurred or not and failing to construe it as whether there had been non-compliance by taking into account the explanation given by the Applicant in accordance with s.20 of the Education of Overseas Students Act (C’th);

(b) the Tribunal erred in law in failing to embark upon the imperative duty to take into account the relevant consideration of the explanation given by the Applicant and by his solicitors in a letter from the Applicant’s solicitors dated 11 June 2003 and the report of Leticia R. Stevens, in accordance with Regulation 2.43 and s.20 of the Education Services for Overseas Students Act (C’th); and

(c) in the alternative to (a) and (b) hereof, the Tribunal erred in law in taking into consideration at all Regulation 2.43 of the Migration Regulations which is invalid as inconsistent with s.116(1) of the Migration Act and/or s.20 of the Education Services for Overseas Students Act.’

(Original emphasis)

The statutory scheme

11 So far as is presently relevant, the power of the Minister to cancel the applicant’s visa is contained in s 116 of the Act. That section provides:

‘(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; or

…

(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’

12 Regulation 2.43(2) of the Migration Regulations provides:

‘(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.’

13 Condition 8202 provides:

‘(1) The holder…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;

(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary 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.’

14 Section 20 of the ESOS Act provides as follows:

‘20 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 purposes of explaining the breach; and

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

Unincorporated registered providers

(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.’

(Original emphasis)

15 The giving of a notice under s 20 of the ESOS Act has the effect of bringing into operation the provisions of s 137J of the Act. That section provides:

‘137J Non-complying students may have their visas automatically cancelled

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

Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach.

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

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

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

(i) in Australia; or

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

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

(Original emphasis)

16 Automatic cancellation of a student visa pursuant to the expiration of the twenty-eight day period provided under s 137J of the Act is subject to a right to apply under s 137K of the Act for revocation of the cancellation.

17 Section 137L of the Act deals with the matters which are relevant to the exercise of the discretion of the Minister on the application to revoke the cancellation. Section 137L provides:

‘137L Dealing with the application

(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

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

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

(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.

(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.’

(Original emphasis)

The applicant’s submissions

18 The applicant submitted that, as a matter of construction, the purpose of s 20 of the ESOS Act and s 137J of the Act was to give a student the opportunity to explain why he or she had not complied with condition 8202. That meant, in the present case, to give the applicant the opportunity to explain to an officer of DIMIA why he had not achieved satisfactory academic performance.

19 The applicant submitted that the explanation was intended to have some operative statutory effect with respect to the consequence of non-compliance with condition 8202 and that such effect was to be found in giving an ambulatory effect to the words ‘has not been complied with’ in reg 2.43(2)(b) of the Migration Regulations by adding the words ‘without reasonable explanation’ or simply by giving the words a less restrictive operation than one requiring strict compliance with the requirement of condition 8202.

20 The applicant submitted that, to fail to give some statutory effect to the words in s 20 of the ESOS Act, the notice given under s 20, or s 137J that it was a requirement ‘to attend before an officer for the purpose of explaining the breach’, is to treat the direction as a statutory sham because the breach of condition will render cancellation mandatory whether or not the student attends before an officer of DIMIA for that purpose. The applicant further submitted that s 137L indicates that if, notwithstanding a breach of condition 8202, the explanation given is that the breach was due to exceptional circumstances beyond the student’s control and that explanation is accepted, the Minister has a discretion not to cancel the visa for breach of condition. Otherwise, the applicant submitted, the student would be better off not attending as required by the notice under s 20 of the ESOS Act because automatic cancellation under s 137J of the Act would give to the student a ground to avoid cancellation which would not otherwise be available to him or her if the Minister were precluded on an exercise of the power under s 116 of the Act to have a discretion whether or not to cancel the visa for breach of condition 8202.

21 The applicant submitted that the MRT failed to consider the explanation given by the applicant and whether or not that explanation constituted reasonable grounds for the breach or the circumstances showed that the breach was due to exceptional circumstances beyond the applicant’s control. By holding that the issue was whether or not there had been strict compliance with condition 8202 in regard to satisfactory academic performance, the MRT had allegedly denied the applicant his statutory right to have his explanation considered and, if found acceptable, to receive a favourable exercise of discretion against cancellation. It was further alleged that, in holding that there was no discretion available to it, the MRT failed to exercise the statutory power properly available to it. The applicant contended that both of these circumstances, together or individually, constituted jurisdictional error thus precluding the MRT decision being a privative clause decision for the purposes of s 474 of the Act and thereby not justiciable in these proceedings: Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 and 511.

22 It was submitted in the alternative that, if reg 2.43(2)(b) was not to be given an ambulatory effect, it was inconsistent with s 20 of the ESOS Act and s 137J of the Act and therefore invalid and of no effect as being beyond the regulation making power contained in s 504 of the Act.

23 Finally, the applicant submitted that there was no decision of this Court which required the MRT to come to the conclusion which it did.

THE respondent’s SUBMISSIONS

24 The respondent submitted that the MRT’s finding that the applicant was in breach of condition 8202 of his visa because he had not achieved an academic result that was certified by the education provider, John Paul College, as being at least satisfactory was a finding of fact. As such, it was not reviewable in this Court: Namm v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32.

25 The respondent submitted that, having made the finding of fact that a breach of the visa condition had occurred, it was open to the Minister, or the MRT standing in the shoes of the Minister, to cancel the visa pursuant to s 116(1)(b) of the Act. Absent any other circumstance, the respondent submitted that the power to cancel would be discretionary. However, in the present case, s 116(3) had an operation by virtue of reg 2.43(2) of the Migration Regulations. Because the breach of condition was a breach of condition 8202 attaching to a student visa subclass 571, the regulation provided the prescribed circumstance for the purpose of s 116(3), which required the Minister to cancel the visa. This conclusion, the respondent submitted, had been consistently arrived at in a series of decisions in this Court: see Minister for Immigration and Multicultural Affairs v Nguyen; Minister for Immigration and Multicultural and Indigenous Affairs v Hou; Akter v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1504; Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495; Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170.

26 The respondent submitted that reg 2.43(2) was not inconsistent with any provision of s 116 of the Act. This was because the regulation was contemplated by the terms of s 116(3) of the Act and was necessary to facilitate the operation of that sub-section. Regulation 2.43(2) merely provided the prescribed circumstances contemplated by s 116(3). Further, the respondent submitted, reg 2.43(2) was not inconsistent with the provisions of subdivision GB of Div 3 of Pt 2 of the Act because that subdivision was concerned with the automatic cancellation of student visas with which reg 2.43(2) had no relevant operation. The respondent submitted that s 20 of the ESOS Act and s 137J – s 137M of the Act were separate and specific provisions dealing with the automatic cancellation of visas which stood separate and apart from the Minister’s power to cancel a visa for breach of condition pursuant to s 116(1)(b) of the Act.

27 The respondent submitted that, because there was no relevant inconsistency between the regulation and any operative provision of the Act, it had not been established that the regulation was being beyond the regulation making power contained in the Act and therefore invalid.

28 The respondent submitted that, in these circumstances, there was no error made by the MRT. Accordingly, it was submitted that, as no jurisdictional error was made out and as the decision was a privative clause decision, s 474 of the Act operated to place the decision beyond challenge.

conclusion of appeal

29 The argument which the applicant advanced in these proceedings is based solely upon the introduction of s 20 of the ESOS Act and the insertion of subdivision GB – automatic cancellation of student visas – in Div 3 of Pt 2 of the Act. These statutory changes occurred with the passage of a package of legislative enactments in 2000, being the Acts numbered 164, 165, 166, 167 and 168 of 2000. This package deals with the regulation of education services for overseas students and for related purposes. The five Acts received Royal Assent on 21 December 2000. For the purpose of these proceedings, the only relevant Acts are No 164 of 2000 (the ESOS Act) and No 168 of 2000 (the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (‘the MLA Act’)).

30 Prior to the passage and the coming into effect of the ESOS Act and the MLA Act, the cancellation of student visas for breach of a condition occurred when the Minister exercised his or her power of cancellation under s 116 of the Act. The power to cancel under s 116(1) of the Act is, and was, expressly subject to the provisions of s 116(2) and s 116(3). Where s 116(3) operated, the discretionary nature of the power under s 116(1) was lost and if the Minister had a discretionary power to cancel, that power had to be exercised if the prescribed circumstances existed. The prescribed circumstances were those contained in reg 2.43(2) of the Migration Regulations. Those Regulations identified the category of cases where mandatory cancellation was required by s 116(3) of the Act.

31 A breach of condition 8202 attaching to a Student (Temporary) (Class TU) visa became a prescribed circumstance when it was inserted as part of reg 2.43(2) in 1998 by the Migration Amendment Regulations 1998 (No 10). The amended regulation commenced to operate on 1 December 1998. A breach of condition 8202 by a student visa holder prior to the commencement of the MLA Act on 4 June 2001, where the Minister had under consideration the exercise of his or her power to cancel for breach of a visa condition under s 116(1)(b) required mandatory cancellation of the visa by virtue of s 116(3) of the Act and reg 2.43(2)(b) of the Migration Regulations. See Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1285 at [6] – [7]; Peng v Minister for Immigration and Multicultural Affairs [2000] FCA 1672 at [16] – [18]; Patsanza v Minister for Immigration and Multicultural Affairs [2001] FCA 734 at [17]; Ariyagama v Minister for Immigration and Multicultural Affairs [2001] FCA 1407 at [20]; Minister for Immigration and Multicultural Affairs v Nguyen at [11]; Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs at [17]; Minister for Immigration and Multicultural Affairs v Hou at [22].

32 The question then arises: did the introduction of the ESOS Act and the MLA Act in 2000 and their commencement in June 2001 alter the situation? That requires a consideration of the two Acts and their operations.

33 The ESOS Act is not concerned with the cancellation of student visas. It is concerned with the regulation of the providers of education services to overseas students in Australia. This it does by the registration of providers of education services and the imposition of obligations on them. Those obligations include an obligation to give information about students accepted for courses by the registered provider, including information as to breach of a visa condition concerning attendance or academic performance, or early cessation of a course by an accepted student: see generally Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1058 at [21] – [26]; [29] – [30]. Section 20 of the ESOS Act operates to impose an obligation on the registered provider to give to a student a notice in the event of a breach of an attendance or academic performance condition of a student visa. The purpose of the notice is simply to initiate a process which will cause the student to attend upon a DIMIA officer for the purpose of explaining the breach of visa condition alleged in the notice, or to bring about the automatic cancellation of the visa in the event of non-compliance with the notice or non-attendance on the officer: s 137J(2) of the Act. The notice under s 20 of the ESOS Act has no other purpose and creates no rights or obligations in the student and is effective for the purposes of the Act even if it is not received by the student visa holder: s 137J(1).

34 Section 137J of the Act is part of subdivision GB of Div 3 of Pt 2, which is concerned with the automatic cancellation of student visas. The subdivision is completely self-contained and includes s 137J – s 137N inclusive. The subdivision has no relevant operation in respect of subdivision D of Div 3, which contains s 116 of the Act. Subdivision D is concerned with the cancellation of visas on the grounds specified in s 116 of the Act. Sub-section D has no relevant operation with respect to any of the matters provided for in subdivision GB.

35 The process for automatic cancellation of a student visa is initiated by the giving of a notice pursuant to s 20 of the ESOS Act: s 137J(1) of the Act. Subdivision GB cannot operate in the absence of the giving of a notice under s 20 of the ESOS Act.

36 If a notice is not complied with, the visa is automatically cancelled by force of s 137J(2) upon the expiration of the statutory time period provided for in the sub-section. In that event, the student has the right to seek revocation of the cancellation: s 137K. However, the grounds of revocation are limited to those specified in s 137L of the Act. So far as presently relevant, those grounds are:

(a) that the student did not, in fact, breach the relevant visa condition or conditions; or

(b) that the breach was due to exceptional circumstances beyond the student’s control.

37 The perceived anomaly arising from the provisions of s 137L of the Act (see per Mansfield J in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 216 at [33] and [34]) and the applicant’s case in the present proceedings as to the existence of an inconsistency arising from the terms of s 137L(1)(b) is, it is said, that a student is better off not complying with the s 20 notice because he or she obtains the benefit of a ground to avoid cancellation (being exceptional circumstances) which is not available to a student who appears in answer to the notice. The unavailability of the exceptional circumstances ground is said to arise because of the operation of s 116(3) of the Act and reg 2.43(2)(b) of the Migration Regulations.

38 The resolution of the apparent anomaly lies, in my view, in the use for which an explanation of the breach alleged in the notice under s 20 of the ESOS Act is sought. The use is to obtain information from the student in respect of what is no more than an allegation of a breach of condition, the allegation being made by the registered provider of the education services. That explanation may reveal that in all the circumstances there does not appear to have been any breach of condition. Or, it may appear that if there was a breach of condition, it was due to exceptional circumstances beyond the student’s control. The information is sought not for the purpose of the exercise of any discretionary power under s 116(1) of the Act to cancel the visa. Rather, it is to enable the decision-maker to see whether there appears to be grounds for cancelling the visa for breach of a condition attaching to it concerning attendance or academic progress and, if so, to consider what action, if any, ought to be taken in respect of the visa. In the context of any possible exercise of the cancellation power in s 116, that would require the taking of steps under s 119 of the Act. Section 119 provides as follows:

‘Notice of proposed cancellation

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b) invite the holder to show within a specified time that:

(i) those grounds do not exist; or

(ii) there is a reason why it should not be cancelled.

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

(4) The other provisions of this Subdivision do not apply to a cancellation:

(a) under a provision other than section 116; or

(Original emphasis)

39 Unless a notice is issued under s 119 of the Act and the procedure specified in subdivision E of Div 3 followed, the Minister cannot exercise any cancellation power under s 116 of the Act. The giving of a notice which complies with s 119 of the Act is a statutory precondition to the exercise of the Minister’s power to cancel for breach of condition: Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at 84, 92, 93.

40 The purpose and operation of s 119 was considered by a Full Court of this Court (French, Hill and Carr JJ) in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235. Their Honours said:

‘23. Section 119 addresses both the content and the manner of the notification to be given by the Minister or the Minister’s delegate before proceeding to cancellation under s 116. Dealing first with its content, the notification must contain a statement “that there appear to be grounds for cancelling” the visa. It must provide particulars of the grounds and “of the information (not being non-disclosable information) because of which the grounds appear to exist”. The visa holder is to be invited to show within a specified time that the grounds do not exist or that there is a reason why the visa should not be cancelled (s 119(1)).

24. The section contemplates that when the notice is issued the decision-maker will not have formed a concluded view on the question of cancellation. The notice is to specify no more than that there “appear” to be grounds for cancellation. The plain statutory intention of this verbal formula is to assure the visa holder that the matter has not been finally decided. It also indicates that at this stage the decision-maker must not have finally decided the matter. It is quite inappropriate therefore to entitle the notice given as a “Notice of Intention to Cancel Visa”. This suggests, that without hearing from the visa holder, the decision-maker has already reached a state of satisfaction necessary to cancel the visa under s 116. It is misleading not only to the visa holder but also, and perhaps more dangerously, to the official who issues it. The notice in this case however went on to carry out the statutory requirement of notifying the visa holder that “there may be a ground for cancellation” of the visa.

25. Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary. The other element of the notice is the invitation to the holder to show, within a specified time, that the grounds do not exist or that there is a reason why the visa should not be cancelled. It is important to note that the terms of the invitation do not reflect the imposition upon the visa holder of a statutory onus at this point which, if not satisfied, will result in the visa being cancelled. That would no doubt be the case if a firm intention to cancel the visa had been formed and the visa holder’s task was to persuade the decision-maker to abandon that intention. The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.’

41 The notice under s 20 of the ESOS Act does not perform the same function as a notice under s 119 of the Act, and is not a substitute for such a notice. Nor is it open to the decision-maker to affirmatively determine to cancel a visa for breach of condition 8202 on the basis of the explanation given by the student in complying with the notice under s 20 of the ESOS Act. As the Full Court makes clear in the passages cited above, the time for the decision-maker to make a decision does not arise until the procedures in subdivision E of Div 3 have been complied with and at that time the decision is made on the whole of the materials then available to the decision-maker.

42 There is nothing in subdivision GB to indicate that the legislature intended that students, beyond being exposed to the possibility of automatic cancellation of their student visa by force of the operation of s 137J of the Act, were to be treated differently for the purposes of the Act in being at risk of ultimate cancellation of the student visa depending upon whether or not they complied with the requirements of the notice under s 20 of the ESOS Act or, as required by s 137J(2), attended on a DIMIA officer. There is no indication that the legislature intended to penalise or disadvantage a student who appeared in response to the notice in favour of a student who did not do so. Rather, in my view, the legislature made clear in s 137L that if there was no breach, or, if any breach was due to exceptional circumstances beyond the control of the student, the student was to be left in, or restored to the same position in terms of the status of the student visa as if no notice had been given pursuant to s 20 of the ESOS Act. That means when the student has attended on a migration officer in compliance with the notice or in compliance with s 137J(2) of the Act, if the student satisfies the decision-maker that either of the circumstances specified in s 137L exist, then no further action ought to be taken in respect of the breach alleged in the notice given under s 20 of the ESOS Act. In the context of a possible exercise of the power to cancel the visa under s 116 of the Act, that would mean that no notice under s 119 of the Act would issue in respect of the breach of condition alleged in the notice under s 20 of the ESOS Act.

43 However, where it is the case that, notwithstanding the explanation given by a student who attends and gives an explanation in response to a notice under s 20 of the ESOS Act, the Minister determines to give a notice under s 119 of the Act, the exercise of the power to cancel for breach of condition is to be controlled by the provisions of subdivision E of Div 3 and by the operation of s 116(3) and reg 2.43(2)(b) of the Migration Regulations. Such explanation as has been given in response to the s 20 notice, to the extent that it remains relevant to the issues to be determined by the decision-maker, forms part of the whole of the body of material upon which the decision is to be made. Where a breach of condition 8202 is relied upon to ground the exercise of the power under s 116 to cancel the visa, the only relevant issue is whether the decision-maker is satisfied on the material then available that a breach of the condition has occurred. The reason why the breach occurred is irrelevant.

44 When the statutory purpose of s 20 of the ESOS Act and s 137J of the Act is understood, there is no occasion to construe reg 2.43(2)(b) of the Migration Regulations in any way so as to read down or modify the ordinary meaning of the words used. In any event, I do not consider that the text of the regulation enables the regulation to be read down or given an ambulatory effect of the type contended for by counsel for the applicant: see Minister for Immigration and Multicultural Affairs v Hou at [33]; Tian v Minister for Immigration and Multicultural and Indigenous Affairs at [35].

45 Further, as there is no inconsistency between the operation of s 116(3) together with reg 2.43(2)(b) of the Migration Regulations on the one hand and the operation of any provision of subdivision GB of Div 3 on the other, no case is available of invalidity of the regulation based on an inconsistency between the regulation and the operative sections of subdivision GB.

46 The MRT identified the correct question which arose on the exercise of a power to cancel a student visa for a breach of condition 8202 under s 116 of the Act. It was correct in its view that a finding of breach of condition 8202 lead to a mandatory cancellation of the visa.

47 The decision presently the subject of these proceedings is a privative clause decision. Absent the existence of jurisdictional error or some other disentitling circumstance, the privative clause operates to protect the decision from challenge in this Court. No basis has been made out by which the effect of the privative clause is avoided. In consequence, the application will be dismissed.

48 There is no basis why costs should not follow the event in accordance with the ordinary course.

49 The Court orders:

1. The application is dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 20 August 2004

Counsel for the Applicant:	P Kronberg

Solicitor for the Applicant:	Cruise Lawyers

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	13 May 2004

Date of Judgment:	20 August 2004

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