FEDERAL COURT OF AUSTRALIA

Bosi v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 313

MIGRATION – appeal from decision of Federal Magistrate – subclass 560 student visa – visa cancelled pursuant to ss 116(1) and (3) of the Migration Act 1958 (Cth) for breach of condition 8202 – condition of visa that holder achieve an academic result that is certified by the education provider to be at least satisfactory – ‘academic progress’ and ‘academic result’ compared – failure of delegate and Migration Review Tribunal to ask education provider correct question – substitution of own interpretation for the statutory criterion – application of test not mandated by the Migration Act 1958 (Cth) or Migration Regulations 1994 (Cth)

Federal Court of Australia Act 1976 (Cth), s 25(1A)

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), para 2.43

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

Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 referred to

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 cited

Wong v Minister for Immigration [2004] FMCA 524 referred to

SRINIVAS BOSI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1328 OF 2004

STONE J

31 MARCH 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                       The appeal be allowed.

2.                       The orders of Raphael FM made on 25 August 2004 be set aside.

3.                       The matter be remitted to the Migration Review Tribunal for further consideration in light of these reasons.

4.                       The respondent pay the appellant’s costs.

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                     On 20 July 2000 the appellant was granted a subclass 560 Student visa that entitled him to enter and remain in Australia for the purpose of postgraduate study at the University of Technology, Sydney (‘UTS’).  The visa was subject to condition 8202 which is set out at [8] below.  It is sufficient for the moment to note that the condition requires the visa holder to achieve ‘an academic result that is certified by the education provider to be at least satisfactory’ in default of which the Minister is obliged to cancel the visa. 

2                     In his first two semesters of study the appellant passed two out of the six subjects he attempted as part of the Master of Business Administration course.  This course runs for more than one semester; consequently the appellant was required to achieve an academic result ‘certified by the education provider to be at least satisfactory’ for each semester of that course.  A delegate of the respondent (‘Delegate’) decided that the appellant had not complied with condition 8202 and on 2 May 2002 notified the appellant that his visa was cancelled.  The Migration Review Tribunal (‘Tribunal’) confirmed the cancellation and on 25 August 2004 a Federal Magistrate dismissed an application for review of the Tribunal’s decision. 

3                     The history of this matter is set out in more detail in the Tribunal’s reasons as follows (excluding file references):

The Department received advice from the review applicant’seducation provider, …UTS that the review applicant had requested leave for 1 semester.  In his request, the review applicant stated that he was not comfortable with his studies in Australia and because of that he had performed very badly.  He stated that he needed the time off in order to spend some time with his parents.  The Department also received advice from UTS that the review applicant had earned 12 credit points out of a total of 36 for semester 2 of 2000 and semester 1 of 2001.

On 5 February 2002, the delegate issued to the review applicant a written notice of intention to cancel the visa, stating that the review applicant may have failed to maintain 80% attendance and satisfactory academic progress.  The delegate asked for written comments by 19 February 2002.

The review applicant responded to that notice on 8 March 2002.  There is no documentation or file notes relating to the review applicant’s late response to the delegate’s letter.  The review applicantstated in his letter that he comes from an accounting background but found studies in Australia very different from that which he experienced in India.  He stated that he had difficulty following English and the Australian study system.  The review applicant also stated that he did not have good roommates and soon his results started to suffer.  He consulted a counsellor but did not find this helpful as they thought it normal for new students to have difficulty.  At the end of the 2^nd semester, the review applicanthad been advised that his family in India was in financial difficulty and needed his help.  His deferment was approved and in India he received academic counselling and decided to change his course.  The review applicantstated his attendance was always more than 90% and that he has never defaulted on his fees. The review applicantasks that the delegate give him the chance to finish his course otherwise life will be very difficult for him in India.

The delegate contacted the review applicantby telephone on 4 April 2002 and invited him to attend an interview on 2 May 2002 at 10.30am in the Department’s Sydney city office.

On 1 May 2002 the delegate requested up to date information from UTS on the review applicant’sattendance for each term or semester and detail of his academic progress to date.  On 2 May 2002 the delegate received advice from UTS that the review applicant’s  academic progress had not been satisfactory as he had only passed 2 out of the 6 subjects attempted.  UTS advised that he would need additional time to complete the course and as a higher education provider, they do not keep attendance records.  UTS also confirmed that the review applicanthad been granted leave for August to November 2001 due to his need to return home for urgent family matters.

The delegate interviewed the review applicanton 2 May 2002.  The review applicantis recorded as stating in Part B of Form 1099 that his reason for not maintaining his academic progress was that he was not understanding the education system in Australia and was lacking in support during the first 2 semesters.  The review applicantprovided bank statements covering the period 21 January 2001 to 20 January 2002.  The review applicantadvised that he had been working for 20 hours per week since December 2000.

The delegate stated that grounds existed for cancellation of the student visa as UTS had advised that he was not making satisfactory academic progress, and as such was not meeting course requirements and was therefore in breach of condition 8202.

On 2 May 2002, the delegate proceeded to cancel the review applicant’s student visa, on the ground that he had breached condition 8202 as he had not been making satisfactory academic progress.  The delegate stated that UTS had advised the review applicanthad only passed 2 out of 6 subjects and would need extra time to complete the course.’

4                     The Tribunal stated that it was satisfied that the Delegate had followed the correct procedures for cancelling a student visa and that the issue for its consideration was whether, ‘at the time of the cancellation, it was possible to make a decision concerning non-compliance with condition 8202’.  It stated its conclusion thus:

‘The review applicantis enrolled in a registered course. The academic records for the review applicant states [sic] that for the 2^nd semester of 2000 the applicant had attempted 3 courses and passed 1.  The academic results for the 1^st semester of 2001 say that he also attempted 3 subjects but only passed 1.  The review applicantwas on an approved leave of absence for the 2^nd semester of 2001 and is enrolled in 3 subjects for the 1^st semester of 2002. 

The Tribunal finds that the review applicanthas not complied with condition 8202 of his visa and is, therefore, liable for cancellation pursuant to paragraph 116(1)(b) and subsection 116(3) of the Act.’

5                     The appellant sought review of the Tribunal’s decision and on 25 August 2004 the Federal Magistrate dismissed the application.

The legislation

6                     Section 116 of the Migration Act 1958 (Cth) (‘Act’) provides:

‘116     Power to cancel

(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

…

(1A)   …

(2)         …

(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.’

7                     Paragraph 2.43(2)(b) of the Migration Regulations 1994 (Cth) (‘Regulations’) sets out the prescribed circumstances in which the Minister must cancel a visa pursuant to s 116(3) of the Act.  Paragraph 2.43(2)(b) provides:

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

(1)         …

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

(a)              …

(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)                  …

(ii)                condition 8202’

8                     Condition 8202(3), in so far as is presently relevant, states:

‘(b)      … the holder achieves an academic result that is certified by the education provider to be at least satisfactory;

(i)            for a course than 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 the shorter) of the course.’

9                     The effect of these provisions is that the Minister is obliged to cancel a visa where (a) condition 8202 applies to the visa; and (b) the Minister is satisfied that the visa holder has not complied with condition 8202. 

This appeal

10                  The appellant filed a notice of appeal from the decision of the Federal Magistrate on 10 September 2004.  On 7 October 2004, Hill J ordered that, by 30 December 2004, the appellant file and serve an amended notice of appeal, ‘giving complete particulars of each ground of review being relied upon by the appellant’.  His Honour also made directions for the preparation of the appeal including that the bundle of relevant documents filed in the Federal Magistrates Court, the judgment of the Federal Magistrate and the notice of appeal should constitute the appeal papers.  Subject to a direction by the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal be heard and determined by a single judge, Hill J listed the appeal for hearing on 8 February 2005.  On 5 November 2004, the Chief Justice determined that the appeal should be heard and determined by a single judge.

11                  The appellant has not filed an amended notice of appeal nor has he provided any written submissions in support of his appeal.  At the hearing of the appeal the appellant, who appeared for himself, merely reiterated the claims he had made before the Federal Magistrate.  The Court is therefore required to proceed without the benefit of cogent submissions from the appellant.  Effectively his appeal is based on the claim that his Honour erred in failing to uphold the appellant’s claim that the Tribunal made jurisdictional errors in wrongly applying the statutory test for cancellation of his visa and in ignoring information it was required to take into account. 

12                  Central to the resolution of this appeal is the correspondence between the Delegate and UTS on 1 and 2 May 2002.  It is appropriate to set out these letters in some detail.

13                  By letter dated 1 May 2002 (‘Delegate’s Letter’) and sent by facsimile to UTS, the Delegate requested up-to-date information from UTS concerning the appellant’s attendance and academic progress for each term or semester.  In so far as is relevant, the Delegate’s Letter said:

‘Dear Ms Hides,

It would be appreciated if you would provide the following details which are required by 10am tomorrow as the client is attending our office at 10.30am.  Sorry for any inconvenience caused.

1.      attendance for each term or semester for the length of the current course as well as the total cumulative attendance if applicable,

2.      whether or not the subject is making ‘satisfactory academic progress (i.e. will they complete the course within the normal timeframe?).

…

Academic Performance

Is the student making satisfactory academic progress for each term of their course?

YES / NO (please circle)

IMPORTANT – Please attach a copy of their academic transcript

Further comments

(Please attach further papers if necessary)

…’

[emphasis in original]

14                  In a letter also dated 1 May 2002 but which was clearly a response to the above enquiry (‘First UTS Letter’), UTS answered the questions put by the Delegate as follows:

‘Is academic progress satisfactory? (transcript attached)

No.  The student passed 2 out of 6 subjects attempted.  He would require additional time to complete the course.  The Faculty of Business has advised that he is not meeting course requirements.

…

Please note that as a higher education institution, we do not keep attendance records. …’

[emphasis in original]

15                  Also of relevance to this appeal is a letter from the Tribunal to UTS dated 11 October 2002 (‘Tribunal’s Letter’) in which the Tribunal asked:

‘Could you please advise the Tribunal within 21 days whether UTS has changed its mind as to whether Mr Bosi had met course requirements as at 1 May 2002.’

[emphasis in original]

16                  In its reply (‘Second UTS Letter’) UTS responded:

‘…

In May 2002 we reported Mr Bosi for not meeting course requirements on the advice of the Faculty of Business, as at that time he had passed only 2 of 6 subjects attempted in the Master of Business Administration (Limited Work Experience).

The University does not exclude (or in the case of postgraduate students, suspend the registration of) students in the Autumn (March-July) semester in the academic year.  This process occurs after the completion of the Spring (August-December) semester each year.  For this reason, Mr Bosi was permitted by the Faculty to re-enrol and continue his studies.  He is currently enrolled in 3 subjects and the results will be released on 18 December.  If a decision is taken by the University to suspend the registration of Mr Bosi, it will not occur until the commencement of classed in March 2003 at the earliest.

So whilst Mr Bosi was not meeting course requirements in May 2002, he has not yet had his registration suspended by the University and is thus permitted to continue studying at the present time.’

17                  The Federal Magistrate was satisfied that although the Delegate had asked UTS for information concerning the appellant’s ‘academic progress’, rather than asking UTS if the appellant had achieved an academic result that was at least satisfactory, this did not avail the appellant.  The Federal Magistrate held that the appellant obtained a visa on the basis of a particular condition, namely condition 8202, and it was the appellant’s duty to ensure that he complied with the condition by obtaining the appropriate certification from UTS.

18                  The Federal Magistrate noted, at [10] of his reasons, that the task of the Tribunal (and the Delegate) was to ascertain whether or not that condition had been met.  For his Honour, once the suspicion of the Minister has been aroused, obviously by the initial communication from UTS, that the condition may have been breached, the Minister must be entitled to require the appellant to satisfy the Minister that he had complied with the condition. 

19                  So much may be accepted.  The Minister is obliged to cancel the appellant’s visa if the condition is not met; the condition requires that the visa holder achieve the nominated academic result, viz a result that is certified by the education provider ‘to be at least satisfactory’.  It is the achievement of the result that complies with the condition although obviously the certification referred to is necessary for the statutory description of the required result to be met.  Without the certification that description is not met; see Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 (‘Tian’) at [55].  However, it is not for the Minister to determine whether the result is satisfactory.  As Ryan J stated in Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 (‘Gerhard’) at [13]:

‘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.’

[emphasis added]

20                  In the present proceedings the Delegate was satisfied that the appellant had not complied with condition 8202 and therefore that it was obligatory to cancel the visa pursuant to s 116(3).  The Tribunal affirmed the decision of the Delegate and found that the appellant had not complied with condition 8202 and his visa was therefore liable for cancellation. 

21                  In his reasons for decision the Federal Magistrate correctly noted that the concept of onus of proof does not apply to decisions made by the Tribunal.  Consequently, the Tribunal cannot, in default of satisfaction by the appellant, make a decision in favour of the respondent on the basis that the appellant has not discharged the onus of proof.  The Tribunal must decide the matter on the evidence before it; it is not obliged to obtain evidence on its own initiative and the appellant is not obliged to provide evidence although, if the appellant does not do so, he or she obviously takes the risk that the claim made will not be sustained. 

22                  Although neither the Tribunal nor the Delegate is obliged to obtain evidence, it may, and commonly does, do so.  Irrespective of whether evidence is obtained by the Delegate, the Tribunal or the visa holder, it is still necessary for it to be relevant to the question at issue for its probative value to be assessed in the normal way.  In this case the Delegate made enquiries from UTS and among the evidence considered by the Tribunal was the correspondence between the Delegate and UTS, set out above at [13] and [14].   However, unlike the question put to the education provider in Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Yu [2004] FCAFC 333 (‘Yu’), where the question was framed precisely in terms of condition 8202(3)(b) (see Yu per Allsop J at [18]-[19]), the question here was expressed differently.  Here not only did the Delegate enquire about the appellant’s ‘academic progress’ rather than his ‘academic result’, but also indicated that the criterion for satisfactory academic progress was whether the appellant would complete the course within the normal timeframe. 

23                  Neither the Act not the Regulations limit the education provider’s discretion to determine what is a satisfactory academic result.  It may be that an education provider would consider the terms ‘academic progress’ and ‘academic result’ as synonymous.  Even assuming this, however, there is no statutory basis for limiting the concept of a satisfactory academic result to one that would permit the student to complete the course within the normal timeframe.  An education provider, in its discretion, may or may not regard timely completion as essential to a satisfactory academic result but the way in which the Delegate’s question was framed does not allow this exercise of discretion.  In my view a determination made on the basis of a response to a question framed in this way is not such as would enable the Minister to be satisfied that condition 8202 had not been met.   Having decided to seek the certification required by condition 8202, the Delegate was obliged to put the correct question to UTS.  In substituting its own interpretation for the statutory criterion the Delegate made a jurisdictional error, which was repeated by the Tribunal.

24                  The Tribunal’s efforts to confirm and clarify the situation by sending the Tribunal’s Letter failed to do so.  In fact, the Tribunal’s Letter further confused the issue.  This letter introduced the concept of ‘course requirements’.  This term does not form part of the condition.  Course requirements may cover a broad range of conditions depending on the education provider and course of study.  While meeting course requirements could form part of the determination as to compliance with condition 8202, its use in this context is not helpful.

25                  In affirming the Delegate’s decision the Tribunal made the same jurisdictional error as the Delegate.  The Tribunal stated at [25] that:

‘On May 2 2002 the delegate received advice from UTS that the [appellant’s] academic progress had not been satisfactory as he had only passed 2 out of the 6 subjects attempted.  UTS advised that he would need additional time to complete the course…’

26                  Although the Tribunal noted the correct test at [35] of its reasons and at [37] found that the appellant had not complied with condition 8202, it is clear that it applied the same criterion as the Delegate, which is not the criterion set out in condition 8202.  In addition to the statement  set out at [25] above, the error is demonstrated at [54] of the Tribunal’s reasons, where the Tribunal stated:

‘…

·       The [appellant] conceded that unless UTS granted him an extension of time to complete his course he could not complete the course by December 2003.

·       The Tribunal gave the [appellant] a direction that he was to provide certain evidence that UTS had granted him an extension of time to complete his course and certain other documentation and allowed him 28 days to provide the information.

·       Whilst he provided most of the information requested he was unable to provide evidence that UTS had given him an extension of time to finish his course.

…’

[emphasis added]

27                  The use of the term conceded indicates that the criterion of completing the course in the normal timeframe was substituted for the criterion in condition 8202, namely that the appellant achieve an academic result that is certified by the education provider to be at least satisfactory.  To complete the course within the normal timeframe would likely be a consideration for the education provider in deciding whether it can certify a student’s academic result as at least satisfactory.  However, to elevate it as the Tribunal did, and to accept the information the Delegate induced UTS into commenting on, indicates that in concluding that condition 8202 had not been met the Tribunal had applied a test that was not the test mandated by the Act or the Regulations.

28                  In Tian a Full Court considered a letter to the education provider, Danebank School, sent by a delegate of the Minister that was in almost identical terms to that in the present proceeding (see Tian at [23]).  The Full Court summarised the submissions before it on this point at [47] as follows:

‘Later, however, the appellant filed written submissions in which the appellant contended that the Department had not asked Danebank the correct question.  It was further argued that Danebank had not given a certificate that complied with Condition 8202(3)(b) because the Department asked the wrong question.’

29                  Danebank School’s response to the Department’s enquiry (which, as noted, was in essentially the same form as the Delegate’s Letter) was markedly different to that of UTS.  The School provided a detailed report containing, inter alia, information in respect of the student’s attendance; the education provider’s actions; the current status of the student’s enrolment; reports on each of the subjects being undertaken by the student; letters from the education provider to the student’s guardian and father; and a report of the student’s progress in each current subject.  Those reports, which covered virtually all aspects of the student’s progress, were almost uniformly negative.  It is not surprising that the  Full Court held that the correspondence from Danebank could not, ‘be understood on any reading to be a certificate by Danebank that the appellant has achieved an academic result that is at least satisfactory’ and that the Minister could be satisfied that there was ‘no acceptable evidence of certification by the education provider of at least satisfactory results’: see Gerhard at [13]. 

30                  In the present case, however, UTS did not provide such evidence in either the First or the Second UTS Letter.  UTS confined its answers to the questions asked by the Delegate and the Tribunal.  As indicated above, these questions did not address the criterion articulated in condition 8202.  One further comment needs to be made.  In the statement of Ryan J in Gerhard quoted above at [19], his Honour refers to ‘satisfactory results’.  His Honour must be taken to be paraphrasing the requirements of condition 8202, in that his Honour is in effect referring to a satisfactory academic result.  This interpretation explains the decision in Wong v Minister for Immigration [2004] FMCA 524 (‘Wong’) in which the Federal Magistrate at [22] of her reasons took the view that the Tribunal (and presumably the Minister) cannot look behind the certification of academic results, that is grades or marks.  In Wong, the Federal Magistrate failed to differentiate between the certification of a student’s academic result by an education provider under condition 8202 (to which Ryan J appears to have been referring) and an education provider’s ‘certification’ (or provision) of results or marks.

31                  For the reasons given above I allow the appeal .  The orders of Raphael FM made on 25 August 2004 must be set aside and the matter be remitted to the Tribunal for further consideration in light of my reasons.  The respondent should also pay the costs of the appellant.

Associate:

Dated:              31 March 2005