FEDERAL COURT OF AUSTRALIA

Mo v Minister for Immigration and Citizenship [2010] FCA 162

THE COURT ORDERS THAT:

1.         The parties are to confer about the terms of draft orders to give effect to these reasons for judgment.

2.         If no agreement is reached the first respondent is to file proposed orders within 21 days.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

BUCHANAN J:

1                          This appeal was heard consecutively with an appeal in Hossain v Minister for Immigration and Citizenship [2010] FCA 161 (“Hossain”).  Each appeal raised for consideration the conditions necessary for the operation of s 20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”).  The ESOS Act operates in conjunction with elements of the Migration Act 1958 (Cth) (“the Migration Act”).  So far as relevant to the two appeals, the ESOS Act and the Migration Act (and the regulations made under those Acts) operate to establish conditions which must be met by the holders of student visas issued under the Migration Act and the circumstances in which cancellations of those visas may occur.

2                          Ms Mo, a citizen of the People’s Republic of China, was granted a student visa in August 2005 and arrived in Australia in October 2005.  On 12 November 2005 she was granted a further student visa valid until 21 August 2008.  The visa was subject to “condition 8202” which I shall discuss hereunder.  Ms Mo enrolled in a Bachelor of Commerce course at the University of Wollongong.  Her academic progress was not satisfactory.  On 5 December 2007 she was excluded by the University of Wollongong from studying any course at the university for a year. 

3                          Section 19(2) of the ESOS Act requires a “registered provider” of education services, such as the University of Wollongong, to provide to the Secretary of the Department of Immigration and Citizenship particulars of any breach by an accepted student of a prescribed condition of a student visa.  Regulation 3.03A of the Education Services for Overseas Students Regulations 2001 (Cth) made under the ESOS Act required such particulars to be given in the event of breach of condition 8202. 

4                          At the relevant time Reg 3.03A provided:

            Breach by an accepted student of a student visa condition

For subsection 19(2) of the Act, a registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition in the following table:

Item                 Student visa condition

_____________________________________________________________

1                     8202

5                          Conditions relating to student visas are imposed by, or under, the Migration Act.  Section 41(1) of the Migration Act provides:

(1)        The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

6                          Regulation 2.05 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) has the effect that the visa conditions referred to in Schedule 2 of the Migration Regulations apply.  In turn, Schedule 2 provides, in clause 573.611 that condition 8202 applies to all student visas.  Condition 8202 is contained in Schedule 8 to the Migration Regulations.  So far as here relevant, it requires that neither of two specified events has occurred.  The first is that the student has not been certified by the education provider as not achieving satisfactory course progress under s 19 of the ESOS Act and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“the National Code”).  The second is that the student has not been certified by the education provider as not having satisfactory attendance under s 19 of the ESOS Act and standard 11 of the National Code.

7                          The effect of these requirements is that a student must make satisfactory progress and have a satisfactory attendance record.  If an education provider certifies, in accordance with s 19 of the ESOS Act and the relevant standard, that either of those requirements has not been met the student has not met the requirements of condition 8202. 

8                          Section 20(1) and (2) of the ESOS Act provide:

(1)        A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.

(2)        The registered provider must send the notice as soon as practicable after the breach.

9                          If a notice under s 20 of the ESOS Act is sent to a student, s 137J of the Migration Act applies.  It provides for automatic cancellation of a student visa if, within 28 days, a notice under s 20 of the ESOS Act is not complied with or the student does not make himself or herself available to an officer of the Department to make submissions about the matter.

10                        A notice was sent to Ms Mo intended to be in accordance with s 20 of the ESOS Act on 11 February 2008.  It informed her that the University of Wollongong had certified, for the purposes of s 19 of the ESOS Act, that she had not achieved satisfactory course progress.  It informed her about the operation of s 137J of the Migration Act and the consequences for her if she did not take the steps required by s 137J.  Ms Mo did not take any of those steps.  On the face of it her visa was, as a result, cancelled by operation of the Migration Act.

11                        Subsequent to the apparent automatic cancellation of Ms Mo’s student visa a number of steps were taken by Ms Mo which led to the re-examination of her position from both merit and legal perspectives.  First, on 27 March 2008, she applied to the Minister for revocation of the automatic cancellation of her visa.  Such a course was open to her under s 137K of the Migration Act.  On 1 May 2008 a delegate of the Minister decided not to revoke the cancellation of her visa.  On 9 May 2008 she applied to the Migration Review Tribunal (“the MRT”) for review of the delegate’s decision.  On 5 November 2008 the MRT affirmed the delegate’s decision, but on 5 March 2009 the Federal Magistrates Court of Australia (“the FMCA”) set aside the decision of the MRT by consent and remitted Ms Mo’s application for review to the MRT for further consideration.  The reason why that was done does not require consideration in the present appeal.  On 17 April 2009 the MRT again affirmed the delegate’s decision not to revoke the cancellation of Ms Mo’s visa.

12                        Apart from a challenge to the validity of the s 20 notice (which it rejected) the principal issue which required attention by the MRT was whether the breach by Ms Mo of condition 8202 was due to exceptional circumstances beyond her control (s 137L of the Migration Act).  The MRT concluded this issue against Ms Mo.

13                        Ms Mo then, on 22 May 2009, filed a further application in the FMCA for judicial review of the decision of the MRT.  The application for judicial review was dismissed by the FMCA on 9 October 2009 (Mo v Minister for Immigration & Anor [2009] FMCA 1026).  It is against that judgment that the present appeal has been brought.

14                        The grounds of appeal contained the following two grounds:

1.         His Honour erred in finding that item 8202 of Schedule 8 to the Migration Regulations 1994 was a prescribed condition for the purposes of s 20 of the Education Services for Overseas Students Act 2000 (the ESOS Act).

2.         His Honour erred in not finding that the purported notice given to the Appellant under s 20 of the ESOS Act was invalid as a result of breaches of the National Code 2007 on the part of the education provider.

15                        On the appeal only the first ground was pressed.

16                        In Hossain I concluded that Reg 3.03A did not operate to supplement the provisions of s 20 of the ESOS Act and that, accordingly, a notice which had been sent to Mr Hossain was legally ineffective.  For the same reason, the notice sent to Ms Mo by the University of Wollongong on 11 February 2008 was not an effective notice for the purposes of s 20 of the ESOS Act or of s 137J of the Migration Act.  Her visa was not automatically cancelled when she did not take the steps referred to in s 137J.

17                        For the reasons given in Hossain, it is desirable that the parties formulate appropriate orders to give effect to any conclusions.  If they are not able to agree on the terms of those orders, proposed orders are to be provided by the first respondent and further submissions will be taken if necessary.

Associate:

Dated:         2 March 2010