FEDERAL COURT OF AUSTRALIA
Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028
MIGRATION – student visa – unsatisfactory academic performance – breach of Condition 8202 – cancellation of visa under s 116 of Migration Act 1958 (Cth) – whether representations made in notice issued under s 20 of the Education Services for Overseas Students Act 2000 (Cth) gave rise to procedural unfairness
Migration Act 1958 (Cth) ss 116, 116(3), 119, 137J, 137J(2)
Education Services for Overseas Students Act 2000 (Cth) s 20
Migration Regulations 1994 (Cth) reg 2.43(2)
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60
Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96
Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558
Formosa v Secretary, Department of Social Security (1993) 46 FCR 117
Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193
MAN YEE CHENG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL
WAD 70 OF 2005
SIOPIS J
9 AUGUST 2006
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIADISTRICT REGISTRY |
WAD 70 OF 2005 |
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BETWEEN: |
MAN YEE CHENG Applicant
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AND: |
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent |
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JUDGE: |
SIOPIS J |
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DATE OF ORDER: |
9 AUGUST 2006 |
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WHERE MADE: |
PERTH |
THE COURT ORDERS THAT:
1 The Migration Review Tribunal be joined as a second respondent.
2 The applicant’s application dated 31 March 2005 is dismissed.
3 The applicant is to pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIADISTRICT REGISTRY |
WAD 70 OF 2005 |
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BETWEEN: |
MAN YEE CHENG Applicant
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AND: |
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
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JUDGE: |
SIOPIS J |
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DATE: |
9 AUGUST 2006 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
1 The applicant is a British National (Overseas) who was born in Hong Kong on 11 August 1981. In 2003 the applicant enrolled in a Bachelor of Business degree at Edith Cowen University (‘ECU’). On 19 March 2003 the applicant was granted a student visa (‘visa’) which was due to expire on 15 March 2006.
2 The applicant’s visa was subject to Condition 8202 which in substance required the applicant to achieve an ‘academic result that is certified by the education provider to be at least satisfactory’ in respect of each semester. In the first semester, the applicant passed one subject, failed one subject and withdrew from another. Late in the first semester, the applicant discovered that she was pregnant, and in August 2003, early in the second semester, the pregnancy was terminated. In that semester, the applicant passed one subject, failed one subject and did not complete another subject.
3 On 31 May 2004, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the delegate’) cancelled the applicant’s visa under s 116 of the Migration Act 1958 (Cth) (‘the Act’) on the grounds that the applicant had breached Condition 8202 of her visa. The Migration Review Tribunal (‘the Tribunal’) upheld the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.
4 I join the Tribunal as the second respondent.
5 For the reasons which follow, the application is dismissed.
Statutory background
6 Section 20 of the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’) provides:
‘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.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) The notice must:
a. contain particulars of the breach; and
b. state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and
c. state that the student must present photographic identification when so attending; and
d. set out the effect of sections 137J and 137K of that Act.
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.’
7 Section 137J of the Act provides:
‘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).
(2) The non‑citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th 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.’
8 The general power to cancel visas is provided for in s 116 of the Act. Of particular relevance is s 116(3) which states:
‘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.’
9 Regulation 2.43(2) of the Migration Regulations 1994 (Cth) (‘the Regulatons’) prescribes the following circumstances in which the Minister must cancel a visa:
‘For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and
(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’.
10 Condition 8202 of Sch 8 of the Regulations relevantly provides:
‘(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is 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 (which ever is shorter) of the course.
…’
Factual background
11 On 16 December 2003, ECU issued a statement of academic record of the applicant. ECU supplied a copy of this transcript to the Department of Immigration and Multicultural and Indigenous Affairs (‘the department’). It read:
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‘UNIT CODE |
UNIT TITLE |
YEAR/ SEMESTER |
RESULT |
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ACC2250 |
Accounting II |
2003/1 |
N |
41 |
Fail |
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ACC2250 |
Accounting 11 |
2003/2 |
I |
50 |
Incomplete‑no‑ cre [sic] |
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ACC2350 |
Cost Accounting 11 |
2003/1 |
C |
52 |
Pass |
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MKT2100 |
Consumer Behaviour 11 |
2003/1 |
W |
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Withdrawn |
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MKT2100 |
Consumer Behaviour 11 |
2003/2 |
C |
56 |
Pass |
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ACC2360 |
Managerial Accounting 11 |
2003/2 |
N |
15 |
Fail |
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CONDITIONAL STATUS |
2003/1 |
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SEMESTER AVERAGE = 40.33 COURSE AVERAGE 42.80’ |
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12 The applicant’s course status was reviewed at the request of the applicant, by an independent review officer at ECU. The independent review officer determined that there should be no variation. The applicant then appealed to the Committee of Review at ECU.
13 By an internal memorandum dated 16 February 2004, an international student adviser at ECU, Mr Mitchell, wrote to the Assessment Support department at ECU in support of the applicant’s appeal. Mr Mitchell said that the independent reviewer had failed to focus on the main issue which was the validity of the applicant’s contention that the termination of her unplanned pregnancy had adversely affected her academic performance. He went on to say:
‘It is accepted that the student has not performed well. The issue is whether that poor performance can be explained by the medical/personal issue that she faced.’
14 On 19 February 2004, the Committee of Review of ECU rejected the applicant’s appeal. The Committee of Review stated that the applicant’s grounds were invalid and resolved that her course status remained unchanged.
15 On 31 March 2004 ECU sent the applicant a Non‑Compliance Notification (s 20 Notice) pursuant to s 20 of the ESOS Act advising the applicant that she had breached a condition of her student visa in relation to satisfactory academic performance in the course in which she was enrolled. The particulars of the breach were stated as follows:
‘Excluded 6 months
Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter.’
16 The s 20 Notice also stated:
‘You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs(DIMIA) office:
[Perth address] with photographic identification of yourself (preferably your current passport), and a copy of this Notice to explain the breach of your student visa condition as specified above. If you fail to bring satisfactory identification to DIMIA the automatic visa cancellation process will continue and your student visa will be cancelled.
If you report to DIMIA as required under this Notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred.’
17 On 27 April 2004 the applicant attended before an officer of the department in response to the s 20 Notice. At the end of the meeting the departmental officer issued the applicant with a notice of intention to consider cancellation (‘s 119 Notice’) of the student visa under s 119 of the Act. Under the heading ‘Possible grounds of cancellation’ the notice stated:
‘On 31.3.2004 Edith Cowan University (ECU) reported to [the department] that you failed to meet academic requirements in semester 1 and 2 of 2003 (attached academic statement).
Evidence shows that you breached Condition 8202 – academic performance.’
18 The notice went on to invite the applicant to attend an interview at the department on 18 May 2004 to provide comments as to why her visa should not be cancelled.
19 By letter dated 27 April 2004, Mr Mitchell, the international student adviser from ECU assisting the applicant, advised the department that the applicant would be appealing to the Academic Appeal Committee within ECU against her six month exclusion. The letter stated:
‘...By appealing she is seeking a ruling that the university has considered the personal issues faced and has deemed her performance, in all the circumstances, to be satisfactory.
This is the final stage of academic appeal at the university. I anticipate that the appeal could be prepared and lodged within the next few days. I anticipate that the matter will be heard within the next 2 to 3 weeks.
Would you kindly consider deferring a decision on this student’s visa until this process has been completed.’
20 On 13 May 2004, Mr Mitchell sent a further letter to the department advising that the applicant had appealed to the Academic Appeal Committee and asked that the department defer making a decision on the applicant’s visa until the outcome of the appeal. The letter also stated that the pending appeal was the final stage of the appeal process at ECU. The interview was rescheduled to 31 May 2004.
21 On 31 May 2004 the applicant attended an interview at the department with the delegate. By that date the department had been advised that the applicant’s ECU appeal had not been allowed. The delegate cancelled the applicant’s visa the same day. The delegate’s record of decision records the applicant as having advanced the following reasons why the applicant considered the ground for cancellation did not exist:
‘I had significant medical and personal problems which affected my studies. I attempted to get a partial withdrawal or deferral from ECU but was denied this, so I had no choice but to continue studying when I was not well.’
22 In the record of decision to cancel the visa, the delegate provided the following summary of the reasons given by the applicant as to why her visa should not be cancelled.
‘Student had medical and personal issues which made study difficult in 2003. She sought solutions with ECU unsuccessfully and feels her study results were adversely affected by the situation.’
23 The delegate’s reasons for the decision to cancel the visa were:
‘Breach of visa condition 8202 – failure to meet course requirement – poor academic performance.’
Proceedings before the Tribunal
24 On 4 June 2004 the applicant lodged an application at the Tribunal for a review of the delegate’s decision to cancel her visa.
25 In August 2004 the applicant’s agent forwarded to the Tribunal a letter in support of the applicant’s case. It included a document entitled ‘Agent’s Overview’ which contained two attachments. One attachment was the internal memorandum from Mr Mitchell to the Assessment Support department referred to in [13] above.
26 Another attachment was a memorandum dated 2 March 2004 from a student counsellor, Ms Fiona Bartlett, to an officer in the Assessment Support department. In this internal memorandum Ms Bartlett stated that she had seen the applicant and the applicant had presented with significant personal and medical issues that had affected her studies. Ms Bartlett went on to say:
‘In my opinion her issues have significantly affected her ability to concentrate and focus on her studies throughout last semester. I therefore believe she has valid grounds for a late withdrawal without academic penalty from the unit ACC2360 in light of these circumstances.’
27 Further the applicant’s agent contended in his ‘Agent’s Overview’ that the decision‑maker had erred because she should have sought more information from ECU about the applicant’s medical and personal circumstances.
28 In a letter dated 15 October 2004 pursuant to s 359A of the Act, the Tribunal invited the applicant to comment on the following information:
· ‘Section 20 notice…dated 31 March 2004…
· Academic transcript from ECU dated 16 December 2003…
· ECU letter of 13 May 2004 and delegate’s notation that appeal to ECU was not successful…’
29 In response to the invitation the applicant’s agent sent a letter dated 29 November 2004, enclosing a number of documents which included:
· A letter dated 8 August 2003 from a representative of the organisation, Marie Stopes International, which advised that following a counselling session and medical examination, the applicant had a medical procedure terminating her pregnancy on 8 August 2003. The pregnancy had been unplanned.
· A letter dated 23 November 2004 from Ms Jennie Connolly, a clinical psychologist. The letter referred to a psychological assessment of the applicant.
30 The psychologist concluded as follows:
‘It is my professional opinion that [the applicant] was suffering symptoms consistent with a clinically significant psychological disorder (Adjustment Disorder with mixed Anxiety and Depression) during the end of Semester I and all of Semester II 2003, and that this was highly likely to have had a significant impact on her academic performance over that period. I would consider this situation as “exceptional circumstances beyond her control” which would have contributed significantly to her unsatisfactory results.’
31 In the letter the applicant’s agent also said that there had been a further appeal that the applicant could have been made within 10 days of the Committee of Review’s decision, but the applicant had never been advised of this option until well after the expiry of such an appeal period. It was also said that the applicant was not informed of her appeal rights by ECU in writing.
32 The agent’s letter also stated that it was ‘lamentable that the committee of review appears to have made its decision based on a statistical analysis of her academic progress without taking into consideration the extenuating circumstances…’ The letter went on to say that the ‘Presiding Member’ might decide that the first respondent should not cancel the applicant’s visa because he or she is not fully satisfied that the applicant breached Condition 8202.
33 On 1 March 2005 the applicant attended a hearing of the Tribunal and gave evidence by video link. At the hearing the applicant explained that her studies had suffered as a result of her personal crisis. The applicant was represented at this hearing by an agent, who made submissions to the Tribunal to the effect that the decision‑makers at ECU had not taken the applicant’s personal circumstances into account in rejecting her appeals and may have breached ECU’s internal equity and disability policies. In its decision dated 9 March 2005 the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
The Tribunal’s Decision
34 In its reasons for decision the Tribunal stated:
‘With leave, the review applicant’s agent said that the appeal did not conform with the rules and policy of ECU, and that the official hearing the appeal was dismissive of the psychologist’s evidence and the comments of Faculty staff in relation to the gravity of the crisis faced by the review applicant in 2003, and may have breached the University’s equity and disability policy.’
35 The Tribunal said that ECU has certified in the s 20 Notice that the applicant has been excluded for a period of six months due to her unsatisfactory academic results in semesters 1 and 2 of 2003. The Tribunal went on to say that:
‘The Tribunal notes the express wording of Condition 8202(3)(b) vests discretion to determine the satisfactoriness or otherwise of the review applicant’s academic results exclusively in the provider, and the Tribunal acknowledges strong judicial authority for the proposition that it confers no discretion upon immigration decision makers to go behind the education provider’s certification, or substitute their own assessment of the applicant’s academic performance for that of the provider.’
36 The Tribunal stated further:
‘...the Tribunal finds that the review applicant breached condition 8202(3)(b), a condition attached to her subclass 573 visa, in semesters 1 and 2 of 2003.
The Tribunal is therefore satisfied that grounds for cancellation of the review applicant’s visa exist. In light of this finding, subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations require that the review applicant’s visa must be cancelled. On the basis of the reasoning in Nguyen and Hou, the Tribunal does not have any discretion in this matter.’
The application before the Court
37 At the commencement of the hearing the applicant moved to amend the grounds of review in the application. Subject to the question of any costs thrown away, the first respondent did not oppose the amendment application. Accordingly, subject to the applicant paying any of the first respondent’s costs thrown away by the amendment, I allowed the amendment.
38 The applicant also sought to tender evidence contained in three affidavits. These affidavits were an affidavit of Mr Christopher Gerald Narayanan dated 27 July 2005 and two affidavits of the applicant dated 27 July 2005 and 11 November 2005 respectively.
39 At the hearing I stated that I would provisionally admit the affidavits into evidence but would rule on their admissibility in these reasons.
40 In his affidavit, Mr Narayanan deposes that he obtained documents from the Tribunal and ECU, and an audio tape recording of the Committee of Review hearing at ECU. The documentation obtained from the Tribunal is annexed to his affidavit. It comprises the materials which are contained in the Court Book. There is also annexed to the affidavit transcript of the audio tape of the ECU Committee of Review hearing which Mr Narayanan caused to be made, a copy of ECU’s (Admission Enrolment and Academic Progress) Rules contained in ECU’s 2003 Handbook, a facsimile transmission dated 7 July 2005 to ECU requesting that ECU grant an extension of time within which to appeal against the Committee of Review’s decision, and a response from ECU agreeing to extend time.
41 The applicant’s affidavit of 27 July 2005 comprises eight paragraphs. Paragraph 2 of the applicant’s affidavit of 27 July 2005 annexes the transcript of the proceedings before the Tribunal. Paragraph 3 records part of the reasons of the Tribunal.
42 In para 4 of that affidavit the applicant deposes to, and annexes documentation relating to, the circumstance of the termination of her pregnancy, her dealings with university officers at ECU, her appeals at ECU and the lodgment of her application with the Tribunal. The affidavit also deposes to the different view taken by Ms Bartlett and Mr Mitchell as to her circumstances to that taken by the internal reviewer and the Committee of Review. The affidavit annexes additional documentation, which was not before the Tribunal, showing dealings between Ms Bartlett and Mr Mitchell on the one hand, and the university officers engaged in the appeal process, on the other.
43 At subparas 4.27‑4.32 the applicant deposes specifically as to her dealings with the department following the receipt of the s 20 Notice.
44 In para 5 the applicant says that after her six month exclusion she has continued studies at ECU. In para 6 the applicant explains that her six month exclusion did not mean that she was forbidden thereafter from enrolling in any unit that she had previously failed. In para 7 the applicant states that she did not believe that ECU observed proper procedures or took into account relevant considerations when the ECU determined to exclude her from the course. Paragraph 8 records submissions made by the applicant’s agent before the Tribunal.
45 The applicant’s supplementary affidavit of 11 November 2005, deposes that, on 25 July 2005, some time after the Tribunal decision, ECU extended the time for the applicant to appeal from the Committee of Review, and that on 10 November 2005, ECU had allowed the applicant’s appeal, and that her academic record has been changed to reflect the position.
46 A change of circumstances after the Tribunal has made its decision, will not in itself constitute a ground to impugn the decision of the Tribunal, nor will it provide a basis on which the Court can require the Tribunal to reconsider its decision. (See Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 355. However, a court may admit evidence of the circumstances of a hearing where an allegation of breach of procedural fairness is made in relation to the conduct of that hearing.
47 Applying these principles, I deal firstly with the affidavit of Mr Narayanan. Those paragraphs of the affidavit which annex the material obtained from the Tribunal are superfluous because that material is already before the Court in the Court Book. The copy of the transcript of the hearing before the ECU Committee of Review and the copy of ECU’s rules were not before the Tribunal. The documents and the paragraphs annexing them are inadmissible on the grounds that they are irrelevant. The correspondence with ECU regarding the extension of time within which to appeal against the decision of the Committee of Review post‑date the decision of the Tribunal. The documents are, therefore, irrelevant and inadmissible. Accordingly, I do not admit the affidavit of Mr Narayanan into evidence.
48 I deal with the applicant’s affidavit of 27 July 2005. Paragraph 2 and para 3 are admissible.
49 As to para 4, insofar as the applicant’s dealings with the department are concerned, by reason of the applicant having raised an issue relating to procedural fairness in her dealings with the departmental officer, the evidence is, in my view, admissible. I would, accordingly, admit the evidence at paras 4.27‑4.32. The rest of para 4 comprises evidence which was not before the Tribunal. I would, accordingly, therefore, not admit the contents of paras 4.1‑4.26 and the documents referred to therein, into evidence. Insofar as those paragraphs annex documents already in the Court Book, the additional documents are superfluous.
50 Paragraph 5 is irrelevant because it deals with what has happened since the expiry of the applicant’s exclusion from ECU. Paragraph 6 and para 7 are inadmissible on the grounds that they comprise argument and submission. Paragraph 8 is admissible on the basis that it deposes to proceedings before the Tribunal.
51 As to the applicant’s affidavit of 11 November 2005, the evidence that ECU has subsequently changed its mind and allowed the appeal is irrelevant to the question of whether, on the material which was before the Tribunal, at the time that it made its decision, the Tribunal fell into jurisdictional error. Accordingly, in my view, the whole of the affidavit of the applicant of 11 November 2005 is inadmissible.
52 In her amended application, the applicant relied upon four grounds of review as giving rise to jurisdictional error on the part of the Tribunal. They can be summarised as follows:
1 The Tribunal erred in law because in the absence of a positive or negative certification by ECU as to the applicant’s academic result, the Tribunal could not be satisfied that the applicant had breached Condition 8202(3)(b). This was because the s 20 Notice issued by ECU did not allege ‘unsatisfactory academic results in semesters 1 and 2 of 2003’, rather, it only alleged that the applicant had been ‘excluded for 6 months’. The Tribunal could not be satisfied that the proper inference to be drawn from the exclusion by ECU of the applicant for six months was that the applicant had not complied with Condition 8202(3)(b).
2 The Tribunal erred in failing to examine the applicant’s claim that ECU did not correctly apply its own rules governing internal appeals and whether, in fact, the applicant had exhausted all avenues of appeal. The Tribunal also erred in failing to inquire whether ECU’s determination to exclude the applicant for six months amounted to ECU certifying that the applicant’s academic result was ‘at least satisfactory’.
3 The Tribunal erred in failing to address the question of whether, when the applicant had attended the office of the department in response to the s 20 Notice, the delegate had denied the applicant procedural fairness in failing to provide her with an opportunity to give evidence as to her medical and psychological condition for the purpose of ‘explaining the breach’ before the delegate issued the s 119 Notice.
4 The Tribunal erred in failing to find that the applicant was denied procedural fairness by reason of having been issued with a s 20 Notice which was misleading. The s 20 Notice created the impression that, the ‘breach’ could be explained, inferring that there was a discretion to take into account personal circumstances. The s 20 Notice failed to inform the applicant that s 116 of the Act requires the Minister to cancel a visa for breach of Condition 8202 irrespective of any exceptional circumstances which may exist, whereas on the automatic cancellation of the visa under s 137J of the Act, it was open to the applicant to rely upon exceptional circumstances to revoke the automatic cancellation. It also said that the s 20 Notice was defective because it failed to inform the applicant that she could report to an officer at a departmental office, instead the s 20 Notice required that the applicant report to a compliance officer at a particular departmental office.
53 I will deal with each of the grounds of review.
Ground 1 ‑ No basis upon which Tribunal could be satisfied of breach of Condition 8202(3)(b)
54 The applicant submitted that the breach of Condition 8202(3)(b) needed to be identified in the s 20 Notice, before the Tribunal could be satisfied that the condition has not been complied with. The applicant submitted that all that the s 20 Notice did was to state that there had been a breach of a condition relating to satisfactory academic performance and give particulars as ‘excluded 6 months’. The s 20 Notice did not refer to Condition 8202 or its wording, nor did it refer to the relevant semester period in which it is alleged that there was no satisfactory academic performance.
55 The submissions of the applicant cannot be accepted. The submissions misapprehend the function of a s 20 Notice in relation to the process whereby the first respondent cancels a visa under s 116 of the Act. Section 137J of the Act, refers to the function of a s 20 Notice in the context of the Act. In Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60 at 68‑69 (‘Zhou 2004’), Cooper J observed:
‘Section 137J of the Act is part of Subdiv 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 ss 137J‑137N inclusive. The subdivision has no relevant operation in respect of Subdiv 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. Subdivision D has no relevant operation in respect of any of the matters provided for in Subdivision GB.
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.’
56 In Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 (‘Zhou 2006’), the Full Court confirmed that there was no legal inter‑relationship between s 20 of the ESOS Act and s 116 of the Act. That was so even in the case where, as in this case, the giving of a s 20 Notice gives rise to the delivery of a s 119 Notice (Zhou 2006 at [41]). In this case, the applicant’s visa was cancelled under s 116 of the Act on the grounds that the applicant had breached Condition 8202 of the visa. Section 116 of the Act gives the first respondent power to cancel the visa if he or she is satisfied that the visa holder has not complied with a condition of the visa. Section 116(3) read with reg 2.43(2) states that the first respondent has no discretion and must cancel the visa where there is a breach of a Condition 8202 of the visa.
57 Condition 8202(3)(b) prescribes that there is compliance with Condition 8202 of the visa in relation to academic performance if the holder achieves an academic result for the semester in question which is certified by the education provider to be ‘at least satisfactory’. The Regulations contemplate an act by the education provider to positively certify that the result is satisfactory: Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 at 456 per Allsop J (‘Yu’).
58 In Zhou 2004 at 71 Cooper J, referring to the making of a decision to cancel a visa under s 116 of the Act, observed:
‘…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.’
59 In this case by the time that matter came before the Tribunal the procedures in subdiv E of div 3 of the Act had been complied with in that a s 119 Notice had been issued. Before the Tribunal was evidence of the applicant’s academic transcript for semesters 1 and 2 of the 2003 academic year. There was also evidence of the applicant’s failed efforts to review her six month exclusion by ECU because of her academic results, and of ECU’s determination not to alter the academic transcript on the grounds of the applicant’s medical and personal circumstances. The applicant did not produce to the Tribunal a certificate from ECU certifying that the applicant’s academic result for either the first or second semesters of 2003 was ‘at least satisfactory’. The Tribunal did not, in those circumstances, fall into jurisdictional error in upholding the delegate’s decision to cancel the applicant’s visa on the grounds of breach of Condition 8202.
Ground 2 ‑ Failure to inquire into ECU’s internal appeal process
60 The applicant submitted that the Tribunal fell into jurisdictional error by failing to inquire as to whether ECU’s appeal process had been lawfully carried out and whether the applicant had exhausted all avenues of appeal.
61 Before the Tribunal, the applicant complained about ECU’s appeal process. These complaints were made in her agent’s letters to the Tribunal and also, by the applicant’s agent at the hearing before the Tribunal. However, neither the applicant nor the applicant’s agents advised the Tribunal that the applicant intended to take any further steps directed towards having ECU reconsider its position as expressed by the Committee of Review. In other words, the applicant did not suggest to the Tribunal that the appeal process within ECU had not been exhausted. Nor did the applicant submit that the Tribunal should adjourn the hearing of the review application until such time as an application to ECU was made to extend the time for the applicant to appeal against the decision of the Committee of Review or until the applicant had taken other steps within the decision‑making hierarchy at ECU to remedy the defects of which the applicant complained. Rather, the applicant’s submissions were to the effect that the Tribunal should go behind the ECU appeal decisions and come to its own view that the medical and psychological issues which had confronted the applicant during the second semester meant that the academic performance of the applicant was ‘at least satisfactory’.
62 These submissions misapprehended the function of the Tribunal and also the basis upon which compliance with Condition 8202 was to be achieved, namely, by obtaining a certificate from ECU that the applicant’s academic result was ‘at least satisfactory’. For these reasons, the Tribunal was correct in not going behind the ECU’s decisions (Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [55]‑[56]).
63 Further, whilst it is accepted that a distinction may be made between a student’s academic result and his or her academic status, there was nothing in the facts before the Tribunal to cause it to doubt that the applicant was accorded her academic status as ‘excluded for 6 months’ by ECU as a result of her poor academic results. This was the obvious inference from the terms of the academic transcript, the correspondence between Mr Mitchell and Ms Bartlett and the Assessment Support department, the submissions made in the applicants’ agent’s letter to the Tribunal of 29 November 2004 and the s 20 Notice. There was, therefore, no ambiguity on the issue, and, therefore, no reason for the Tribunal to make any inquiries of ECU as to whether the documentation could be construed as certifying that the applicant had achieved an academic result which was ‘at least satisfactory’.
Ground 3 ‑ Failure to address procedural defects in the lead up to the cancellation of the visa
64 The applicant said that the s 20 Notice referred to the applicant having an opportunity to ‘explain the breach’ when she attended the departmental office on 27 April 2004. The applicant submitted on attending the departmental office, the officer had issued the s 119 Notice without receiving evidence as to the applicant’s medical and psychological condition during the second semester; and, in so doing, had failed to accord the applicant procedural fairness. The Tribunal, it was submitted, fell into jurisdictional error by not addressing this issue.
65 The applicant’s submissions are not accepted. As already mentioned in [56] above, the Full Court in Zhou 2006 has confirmed that there is no legal interaction between the giving of a s 20 Notice and the cancellation of a visa under s 116 of the Act, even where the issue of a s 20 Notice gives rise to the issue of a s 119 Notice. It does not avail the applicant to impugn the procedural fairness of a process which is legally unrelated to the process which led to the impugned decision, namely, the cancellation of the visa under s 116 of the Act.
66 The applicant’s visa was cancelled pursuant to s 116 of the Act. In determining to proceed under s 116 of the Act the first respondent came under an obligation to accord the applicant procedural fairness. The purpose of the issue of the s 119 Notice to the applicant was to warn the applicant of the intention to cancel the visa and provide the applicant with the opportunity to make submissions in relation thereto. The first respondent accorded the applicant procedural fairness by issuing the s 119 Notice and considering the applicant’s submissions on 31 May 2004 before cancelling the visa.
67 In any event, it was not necessary for the Tribunal to consider the question of whether the applicant had been accorded procedural fairness because the hearing before the Tribunal was itself a merits review and any defects leading to the decision of the delegate were cured by the review undertaken by the Tribunal (Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; Humayun v Minister for Immigration and Multicultural and Indigenous Affairs 149 FCR 558 (‘Humayun).
Ground 4 – Breach of procedural fairness because the s 20 Notice was misleading
68 The applicant submitted that she had been denied procedural fairness because of the misleading nature of the s 20 Notice.
69 It was submitted that the first respondent required education providers to issue notices under s 20 of the ESOS Act in a prescribed form, which used language which was misleading. The wording in the s 20 Notice induced the applicant to report to the departmental office within 28 days in the expectation that the department would exercise a discretion whether or not to proceed to the cancellation of her visa. It was further submitted that if the first respondent had not impliedly misrepresented to the applicant that the department had a discretion the ‘applicant would have had every reason to decline to attend the departmental office’, allow for a cancellation and then apply for revocation of the cancellation, being able to invoke the exceptional circumstances beyond her control. The procedural unfairness relied upon is the failure of the applicant’s expectation of being able to raise matters relating to her medical and personal circumstances as a means of preventing the cancellation of her visa when there was an alternative course available to the applicant which would have permitted her to raise her medical and personal circumstances as a means of reinstating her visa.
70 Although not pleaded as a ground of review, the applicant also submitted that the first respondent was estopped from cancelling the applicant’s visa by reason of the representation in the s 20 Notice that the applicant’s personal circumstances would be considered before the cancellation of the applicant’s visa.
71 In my view, the applicant’s contentions cannot be accepted. Firstly, there was no evidence before the Tribunal, nor before this Court, that the applicant was actually misled by the s 20 Notice nor that she would have been content to let her visa be cancelled by not responding to the s 20 Notice with the intention of bringing an application for the revocation of the cancellation on the grounds of the exceptional circumstances. In the absence of any such evidence there was no basis upon which a plea of estoppel could be considered. Even if such evidence had been forthcoming, several issues would have arisen, including whether the s 20 Notice which was issued by ECU (albeit in a prescribed form), and not the first respondent, could be said to be a representation binding on the first respondent, whether the s 20 Notice was in fact misleading as alleged, and the effect of the principle in Formosa v Secretary, Department of Social Security (1993) 46 FCR 117.
72 Secondly, the submission of the applicant misapprehends the relevance and function of a s 20 Notice to a cancellation decision made under s 116 of the Act. As previously mentioned, the Full Court in Zhou 2006 held that there is no legal interaction or relationship between the process invoked by a s 20 Notice and the cancellation process under s 116 of the Act, even if the attendance by the visa holder at the departmental office in response to a s 20 Notice led to the issue of a s 119 Notice under the Act. As the impugned decision was made under s 116 of the Act, it does not, therefore, avail the applicant to complain of procedural unfairness in relation to a process which is unrelated to the legally separate process that led to the making of the impugned decision by the first respondent.
73 In the absence of the applicant having advanced an estoppel case based on evidence of the applicant’s reliance and detriment, the applicant’s arguments based on the misleading nature of the s 20 Notice are, on proper analysis, similar in effect, to the contentions of the applicant before the Full Court in Zhou 2006, namely, that the validity of the decision to cancel the visa under s 116 of the Act could be impugned because that process had been instituted as a consequence of the visa holder being trapped into attending the departmental office pursuant to a misleading s 20 Notice, when there was an alternative course available, which would have permitted the exceptional circumstances to be considered (see Zhou 2006 at [35]).
74 As has already mentioned, the applicant’s visa was cancelled under s 116 of the Act for breach of Condition 8202. It is by reference to a cancellation decision made under that section, that the question of whether procedural fairness was accorded to the applicant, must be considered. The applicant was issued with a s 119 Notice and given the opportunity to make submissions to the delegate that the visa should not be cancelled. There was no failure to accord procedural fairness. Further, and in any event, as already mentioned the Tribunal afforded the applicant a merits review and, therefore, any procedural defect in the previous process was cured by the subsequent merits review.
75 The applicant also submitted that the s 20 Notice contained two other defects which were recognised in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193. Firstly it requires the visa holder to report to a ‘compliance officer’, whereas s 137J(2) of the Act only requires the visa holder to report to ‘an officer’. Secondly, the notice requires the visa holder to report to a specific office, whereas s 137J(2) of the Act states that the visa holder is required to report to ‘an office of immigration’.
76 This contention must be rejected. A s 20 Notice is not the instrument of cancellation and is not a pre‑condition to cancellation pursuant to s 116 of the Act (Allsop J at 456 in Yu). Any defect in a s 20 Notice does not invalidate a decision to cancel a visa under s 116 of the Act (Humayun at 567).
77 The application is dismissed with costs.
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I certify that the preceding seventy‑seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. |
Associate:
Dated: 9 August 2006
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Counsel for the Applicant: |
Mr R Lindsay |
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Solicitor for the Applicant: |
CGN Legal |
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Counsel for the Respondent: |
Mr L A Tsaknis |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
16 November 2005, 15 February 2006 |
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Date of Final Written Submissions: |
25 July 2006 |
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Date of Judgment: |
9 August 2006 |
