FEDERAL COURT OF AUSTRALIA

Fang v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1387

MIGRATION – appeal - student visa – cancellation – whether condition 8202 can apply if holder not currently enrolled in a registered course – whether error of law in failing to consider whether appellant had withdrawn from enrolment in one registered course and transferred to another – whether error of law arising from failure to particularise notice of cancellation – whether error of law arising from failure to give appellant certain information required by statute

Migration Act 1958 (Cth) ss 116, 119, 121, 349, 359A

Migration Regulations reg 2.43, sch 8 cl 8202

Abebe v Commonwealth (1999) 197 CLR 510 applied

Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 280 affirmed

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited

Teoh v Minister of State for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 applied

Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 applied

Twist v Randwick Municipal Council (1976) 136 CLR 106 referred to

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 applied

BIN FANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W112 of 2004

RD NICHOLSON J

29 OCTOBER 2004

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate (McInnis FM) given on 6 May 2004 (Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 280).  That decision dismissed an application seeking judicial review of a decision of the Migration Review Tribunal (‘the MRT’) given on 11 October 2002.  The MRT had affirmed a decision that a Student (Temporary) (Class TU) visa held by the appellant be cancelled. 

2                     On the hearing of the appeal the appellant sought leave to file a minute of amended notice of appeal.  It was agreed that the issue of the grant of leave be held over pending argument.  That having occurred, I am satisfied that the issues raised by the new grounds are within the scope of the issues raised by the case as presented:  Teoh v Minister of State for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 429 (not affected on appeal to the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273).  Accordingly I grant leave for the filing of the amended notice of appeal. 

3                     The reasons of the Federal Magistrate were extensive and it is not intended in these reasons to canvass all the issues here in the same detail.  Although there are ten grounds of appeal, two of them are conceded by the appellant and others are wholly or partly dependent on the argument raised in ground 2. 

factual background

4                     The background circumstances as they appeared before the MRT were as follows.  The appellant applied for a Student (Temporary) visa on 11 June 2001.  He was granted a Subclass 560 (Student) visa on 10 August 2001.  Condition 8202 was among the conditions of the grant of visa. 

5                     The appellant attended at Notre Dame University undertaking a tertiary preparation course from September 2000 to February 2001.  On 12 February 2001 he commenced a university foundation course.  This was a course leading to business studies.  However, it was the appellant’s wish to study computer science, a course which was not offered by Notre Dame University.  The appellant, therefore, approached Curtin International College.  On 28 November 2001 he received from Curtin University an offer of enrolment with respect to a Diploma of Information Technology leading to a Bachelor of Computer Science.  On the offer it was stated that the course would commence in February 2002.  There is no evidence of the appellant having provided a written acceptance of the offer or made payment of the fees.  However, in an affidavit filed before the Federal Magistrate an officer of the Curtin International College stated that the making of the offer had the effect that the appellant was accepted into the course at Curtin. 

6                     The appellant claimed that having received the letter from Curtin he thought that his transfer to that College had been completed and he ‘just stayed at home and studied from home and the library to prepare for [his] course with Curtin International College since 29 November 2002’.  There was evidence before the MRT that in so acting the appellant had relied upon conversations with the respondent’s Department.  As will appear, it is not necessary to state the particularities of that evidence save to say that there is evidence that such conversations have occurred. 

7                     At the end of week 10 in September 2001 the appellant was doing well in his course and had been only absent for 16 classes out of 250.  However, as a result of his perceptions of the effect of the ‘transfer’, he did not attend the last two weeks of the course at Notre Dame University nor did he sit the final examinations there. 

8                     On 12 December 2001 the appellant received a letter from Notre Dame International advising as follows:

‘At a recent Board of Examiners meeting your results were reviewed.  The end of the semester results are comprised of your in class work, assignments and exams.  Your enrolment has been placed on a conditional basis for poor attendance and academic performance.

It was decided by the Board that based on the reasons outlined above, that your enrolment in the Notre Dame International Foundation Program be terminated.  Please be advised that we are required to inform the Department of Immigration that you are no longer studying with Notre Dame International.’

9                     On 22 January 2002 the appellant was given a notice of intention to consider cancellation of his visa.  The possible ground for cancellation as set out in that notice was ‘notification from Notre Dame International that student not meeting course requirements and enrolment had terminated’.  The notice was given at 9.20 am on that date. 

10                  At 9.40 am the appellant’s visa was cancelled.  He was given a record of the decision which stated that grounds for cancellation existed because ‘the student has not met academic requirements.  End of wk 20, student failed all subjects and was absent 51 out of 240 classes.  Enrolment has been terminated by Notre Dame’.  It was noted on the record of decision that there had been non-compliance with visa condition 8202.  It was also recorded that the decision to cancel the visa was based on the application of s 116(3) of the Migration Act 1958 (Cth) (‘the Act’) and reg 2.43(2)(b). 

11                  On the day of the cancellation the appellant applied to the MRT to review the decision of the delegate.  As the reasons of his Honour recount, in a notice dated 3 July 2002 the MRT invited comment on the information in the notice pursuant to s 359A of the Act.  Specifically, the letter stated:

‘You are invited to comment, in writing, on the following information:

·               Condition 8202 attached to your subclass 560 (Student) visa required you to maintain satisfactory academic results.  As you failed four out of six subjects at the University of Notre Dame in 2001, you have not met your course requirements and are therefore in breach of condition 8202.  You are invited to submit any reasons why you did not comply with condition 8202.’

12                  It is conceded by the respondent that this notice contained an error in that it refers to a failure of the appellant in four out of six subjects when in fact it should have referred to a failure in two out of six subjects.  It is noted the appellant relied upon a statutory declaration dated 30 August 2002 where the error in relation to the number of subjects allegedly failed has been corrected. 

13                  In its reasons the MRT found that the appellant had not complied with visa condition 8202 by not completing any of his subjects in the term ending on week 20, 2001 and that thereby he did not achieve a result that could be certified by Notre Dame International to be at least satisfactory for that term.  As a result, it found that s 116(1)(b) of the Act applied and the visa may be cancelled.  The MRT proceeded on the basis that a failure to meet one of the three requirements of condition 8202 was sufficient to be in breach of the whole condition and that the condition did not import any discretion to consider the reasons for poor academic performance or any circumstances beyond the appellant’s control. 

14                  It was this decision which was upheld by the Federal Magistrate essentially for the same reason.  He dealt in detail with the grounds of review before him, most of which have been re-argued on this appeal.  One issue which has not been re-argued is the issue of estoppel based on what the appellant claimed had been said to him by the respondent’s Department. 

relevant provisions

15                  The relevant power to cancel a visa is that which arises pursuant to s 116(1)(b) of the Act which reads as follows:

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

(a)                …

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

16                  Migration Regulation 2.43(2)(b) 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:

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

(ii)               condition 8202.’

17                  Condition 8202 reads as follows:

‘8202

(1)               The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student of 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 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.

(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.’

whether cancellation contingent on present enrolment

18                  Grounds 2 and 3 on the appeal raise the issue of construction of condition 8202.  The appellant contends that his Honour was in error in finding that it was open to the MRT to cancel the visa when the appellant was no longer enrolled for the course at Notre Dame University at the time of consideration by the MRT.  The appellant contends that he either ceased being enrolled at Notre Dame University at the end of November 2001 as a consequence of his withdrawal from the course (a factual issue in relation to which there is no finding) or at the very latest he ceased being enrolled when Notre Dame International stated on 12 December 2001 that his enrolment was terminated.  The appellant states that the reference to ‘the course’ in condition 8202(3)(b) can only be understood as a reference to the course for which ‘the holder is enrolled’ in terms of condition 8202(2)(a).  It is said that the requirement in condition 8202(3)(b) that ‘the holder achieves an academic result’ is not one that he has at all times in the past achieved such an academic result in respect of a course for which he is no longer enrolled.  It is said that where a visa holder is no longer enrolled in a course at the time of cancellation of the visa, the appropriate ground for cancellation may be that the holder is not enrolled in a registered course as required by condition 8202(2)(a). 

19                  The appellant contends that this interpretation accords with the plain and ordinary meaning of the provisions.  Further, the appellant states that because of the potentially far‑reaching affects of the relevant provisions it is appropriate that they fall to be restrictively interpreted in the case of any ambiguity.  Additionally, the appellant contends that the interpretation avoids absurd and draconian consequences of a contrary interpretation.  For example, where a student does not perform satisfactorily in one term but subsequently performs with distinction in a subsequent term. 

20                  The appellant’s case is that it was simply not open to the MRT to cancel the appellant’s visa on the basis of any alleged unsatisfactory attendance or performance at Notre Dame University because at that time he was no longer enrolled at Notre Dame University.  It is further contended that the MRT was in error in not considering and making appropriate findings of fact as to whether in fact he had been enrolled in a course at Curtin at the relevant time. 

21                  The respondent contends that the circumstances which may be examined under condition 8202 in respect of the exercise of the power under s 116(3)(b) are those which go to the question of whether the visa conditions have or have not been complied with during the currency of the visa.  The respondent says that to construe condition 8202 as requiring anything else would be to subvert the operation of the condition. 

22                  In support of these contentions the respondent relies on the following passage from Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55]-[56]:

‘[55]   A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subcl (3)(a).  The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to.  The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory.  The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory.  There is either certification or not.  If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification.  The responsibility to provide the certificate is upon the education provider.  If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).

[56]    On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.’

In response to this the appellant states that the paragraphs above are not seeking to consider the issue here raised as to whether there needs to be current enrolment in a course in relation to which the certification is applicable. 

23                  On these matters the Federal Magistrate said (at [44]):

‘I do not accept as submitted by the applicant that the operation of s 116 in Condition 8202 can be confined in the manner suggested.  I do not accept that there is a requirement for a continuing breach in a course in which the student is currently enrolled at the time.  To impose that condition would clearly be against the intended operation or indeed arguably any operation at all of paragraphs [(a) and (b) of s 116(1)].’

24                  In my opinion his Honour was not in error of law in reaching this view.  It is important to realise that the condition attached to the visa at all times.  The function required under s 116, in relation to the exercise of the power to cancel, is to determine whether the holder of the visa has not complied with the conditions of the visa.  That is a statutory enquiry limited only by the currency of the visa.  There is sound sense in this.  If non‑compliance with the conditions of a student visa could not be considered because of a cessation of or change in enrolment, the power to cancel the visa could be prevented from exercise for lengthy periods of time.  The power is one which exists at any time and his Honour was correct to find that the MRT had found that the breach of the condition supported the exercise of the power to cancel and that the condition should not be construed in the manner contended for by the appellant. 

25                  In ground 3 the appellant sought to rely upon par 41.3 of the Procedures Advice Manual Three which provides:

‘A student who has withdrawn from their (sic) original course and lawfully transferred to another course may be regarded as having continued to satisfy course requirements if they were (sic) up to date with their (sic) studies and their (sic) attendance was satisfactory at the time of withdrawal.’

26                  This contention only has possible application if the appellant was correct in his contentions concerning the construction of condition 8202.  Whether, as a question of fact, the terms of the paragraph could be satisfied is a matter presently undetermined but of no materiality. 

Materiality of course transfer

27                  Grounds 4 and 5 are also dependent upon the appellant succeeding on ground 2.  These grounds contend that his Honour was in error in not finding that the MRT should have considered as material questions of fact the issues of whether the appellant had withdrawn from the course at Notre Dame University or transferred to or been accepted into a course at Curtin.  On these issues, his Honour concluded that there was no need for the MRT to have considered them because they did not provide a basis upon which the Court should permit judicial review of the MRT decision. 

28                  In my opinion his Honour was correct in that conclusion.  Only if the appellant’s point on construction of condition 8202 had succeeded would it have become necessary for the MRT to examine these issues.  That construction is precluded by the statutory provision.  Further the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called on to consider:  see Abebe v Commonwealth (1999) 197 CLR 510 at 579 per Gummow and Hayne JJ; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.

whether cancellation of visa discretionary

29                  The appellant contends in grounds 6 and 7 that the cancellation of his visa was a discretionary matter which was approached incorrectly by the MRT.  However, on the authority of Tian at [66], the appellant accepted on the hearing of the appeal that these grounds could not succeed before this Court. 

giving of notice and particulars

30                  Grounds 8, 8B and 9 address issues arising in respect of the notice and the particulars given by it. 

31                  Ground 8 contends that an error arises from failure to give particulars in three respects.  The first was that the particulars should have related to the term.  The second was that the notice did not particularise the ground that the appellant was not meeting course requirements.  The third was that the notice did not state that a ground for cancelling the visa was a breach of condition 8202(3). 

32                  Ground 8 relies upon the requirements of s 119 of the Act which relevantly reads:

‘(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

…’

33                  Ground 8B alternatively argues that contrary to the provisions of s 121(3) of the Act the appellant was not given a reasonable period within which to respond to the notice of proposed cancellation before the respondent’s delegate. 

34                  Ground 9 contends further in the alternative that the decision was based on grounds other than those in respect of which the appellant was given notice under s 119. 

35                  However, as the respondent’s contentions state, all these matters were cured by the nature of the review before the MRT:  see s 349 of the Act.  The MRT has jurisdiction to review even where the decision of the delegate may be legally ineffective:  see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, at [28]-[32], and the cases therein cited.  Further, to the extent there may have been a defect in the decision of the delegate, the full merits review in the MRT was able to cure that defect:  Zubair at [32], citing Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.

36                  I agree with the respondent’s submission that in exercising its review, however, the MRT was not required to consider whether the delegate had erred.  Rather it was required to determine whether the appellant had not complied with condition 8202.  The question for the MRT was whether the appellant had achieved 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. 

37                  The MRT expressly addressed whether that condition required it to consider whether the education provider had certified satisfactory progress for the term or the semester and correctly held that it was the term result which it was required to consider.  It is not to the point that the education provider may have terminated enrolment based on semester results or that the original decision may have considered semester results as well.

failure to comply with s 359A

38                  In ground 10 the appellant contends that the MRT did not give to the appellant particulars of information that would be the reason or part of the reason for affirming the decision under review, this being a failure to comply with a jurisdictional prerequisite to the exercise of power and/or a breach of the requirements of procedural fairness, contrary to s 359A of the Act.  This is particularised with respect to the fact that the information provided to the appellant related to the course of Notre Dame as a whole whereas the reasons for affirming the decision under review would need to relate to the term, having regard to the provisions of condition 8202(3).  Additionally, it is particularised that the MRT’s invitation to comment on information incorrectly stated that the appellant had failed four out of six subjects at Notre Dame in 2001 when in fact he had failed two. 

39                  The latter particularisation was corrected before the MRT.  Likewise, there was opportunity before the MRT to address the first particularisation.  In any event, I agree with the respondent’s submission that it is not ‘information’ within the meaning of s 359A. 

40                  In this case, the MRT did not act on the incorrect statement of how many subjects the appellant failed, but correctly stated his academic results.  Further, the statement of academic results was part of the information provided by the appellant to the MRT.  In acting on that material, there could have been no failure to comply with the section and no breach of procedural fairness. 

conclusion

41                  For the above reasons I do not consider that any of the grounds of appeal are made out and I hold that his Honour was correct to conclude that the MRT was not in error of law in its decision affirming the decision under review to cancel the appellant’s Student (Temporary) (Class TU) visa. 

42                  Although that decision is reached as a matter of law it should not be thought by the appellant that it in any way reflects on his talents as a student.  As the reasons of the MRT and his Honour record, there is evidence that the appellant is a competent and promising student.  Unfortunately, non-compliance with the conditions of his visa has resulted in the loss of that visa. 

Associate:

Dated:              29 October 2004