FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship [2012] FCA 958

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Mr Patel is an Indian national. He was granted a Subclass 573 Higher Education Sector visa on 13 September 2007, and enrolled as a student at Griffith University in Brisbane. On 22 October 2008 the Migration Review Tribunal (“the Tribunal”) affirmed the decision of a delegate of the Minister to cancel Mr Patel’s visa under s 116(1)(b) of the Migration Act 1958 (Cth) (“Migration Act”). On 2 March 2011 the Tribunal’s decision was affirmed on judicial review by a Federal Magistrate. Mr Patel appeals the decision of the Federal Magistrate.

2    In substance, the delegate of the Minister cancelled Mr Patel’s visa under the Migration Act for breach of condition 8202 of his visa imposed by subcl 8202 of Sch 8 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) – that is, failure to satisfy course progress and attendance requirements, and the subsequent certification to this effect by the University.

3    Before turning to Mr Patel’s grounds of appeal it is helpful to outline the background facts to this proceeding. I take the facts, which are undisputed, primarily from the reasons for decision of the Tribunal.

Background

4    Mr Patel holds a Second Class Bachelor of Science degree in Mathematics from Gujarat University in India. He was offered a place in a Masters Degree course in Information Technology – Advanced at Griffith University, commencing 3 March 2008.

5    Mr Patel arrived in Australia on 13 July 2007 on a Class TU, Subclass 573 Student Visa, and was granted a further Subclass 573 Student Visa on 13 September 2007.

6    Between 27 August 2007 and 15 February 2008 Mr Patel was enrolled in an English Language Intensive Courses for Overseas Students (ELICOS) program with Griffith English Language Institute (“the Institute”), which provides English language teaching and support to students of Griffith University.

7    He subsequently met his English language requirements for the Masters program at Griffith University by “Language of Instruction” and cancelled his ELICOS course at the Institute, finishing on 14 December 2007.

8    On 24 October 2007, 9 November 2007, 29 November 2007 and 12 December 2007 the Institute wrote to Mr Patel warning him that his attendance in respect of the ELICOS course was unsatisfactory, having fallen below the level of 80% required by the Department of Immigration, and that this could lead to immediate cancellation of his visa.

9    It appears that, at some time after 4 December 2007, Mr Patel wrote a letter to the Department. In that letter he claims that, on arriving in Australia, he fell ill as a result of climate change and his workload. Three medical certificates (dated 23 November 2007, 28 November 2007 and 4 December 2007) were attached to the letter, as well as a further certificate from a registered nurse at the university stating that Mr Patel was unfit to attend lectures on 15 October 2007 due to an unspecified medical condition.

10    On 21 December 2007 a letter from the University was despatched to Mr Patel. The letter provided as follows:

Re: Warning of Griffith University’s Intention to report to the Department of Immigration and Citizenship (DIAC) for unsatisfactory attendance

Dear Chandrakant

The Department of Immigration and Citizenship (DIAC) requires Student Visa holders to maintain satisfactory attendance which is a minimum of 80% for the period of their program.

During the orientation program and through the student information booklet, you were informed of the student visa condition relating to class attendance.

You have been advised verbally and in writing that unsatisfactory attendance could lead to you being reported to the Department of Immigration and Citizenship (DIAC) and could result in the cancellation of your student visa.

You have now been assessed as not being able to meet satisfactory attendance requirements for your English program. In accordance with the Department of Education Science & Training (DEST) National Code Standard 11, I now inform you of Griffith University’s Intention to report you to DIAC for unsatisfactory attendance. Tis will have implications for your Student Visa.

If you think there are reasons why you should not be reported, you may appeal against this decision in writing. Your reasons for appeal must include additional documentation as your current approval medical certificates and other documentary evidence have been taken into consideration and you must demonstrate compassionate or exceptional circumstances.

The procedure for making an appeal is available from the Griffith University website (grievances and appeals) and is outlined on the attached flowchart. If you wish to make an appeal, you have 20 working days from the date of this letter to make your appeal in writing to the Deputy Director, Alyson McGrath at the address above. You will be advised in 10 working days of the receipt of your letter of the decision.

If your appeal is declined you may then appeal to the Pro-Vice Chancellor (International) within 10 working days. Upon completion of this internal appeal, if you are still dissatisfied you may appeal to the external Ombudsman as outlined in the Griffith University website and the Ombudsman Act 2001…

During this time (and if you choose to make an appeal, while your appeal is being considered) you must continue to attend classes and work towards completing course requirements.

(Emphasis in original.)

11    On 5 February 2008 the university issued Mr Patel with a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) accompanied by a certificate for the purposes of condition 8202(3), to the effect that he had not achieved satisfactory course attendance for the purposes of 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 documents comprised seven pages.

12    The certification page reads as follows:

Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994

Griffith University (GU) [00233E] (trading as Griffith University) on 5 February 2008 certifies Mr Chandrakant Bhagabhai PATEL, for course English Language Programs (Beginner to Advanced) 1-50 weeks, as not achieving satisfactory course attendance for section 19 of the Educational Services for Overseas Students Act 2000 and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).

Mr Christopher Madden

Pro Vice Chancellor (International) (Principal Executive Officer)

Griffith University (GU) [00233E] (trading as Griffith University)

Parklands Drive

GRIFFITH UNIVERSITY QLD 4111 Australia

5 February 2008

13    There then followed the s 20 notice, which appeared to be in several parts:

1.    The following introductory letter:

5 February 2008

Dear Mr Chandrakant Bhagabhai PATEL

This letter is part of a Notice, known as a Section 20 Notice, from Griffith University (GU) (trading as Griffith University). It is important that you read the whole Notice carefully as it deals with matters that affect whether you, members of your family unit and other people may become subject to visa cancellation, detention and removal from Australia.

Griffith University (GU) has certified certain matters relating to course progress and/or course attendance which gives rise to a breach of a prescribed condition of your student visa. Please refer to the section of this Notice entitled ‘Particulars of the breach’ for details.

Your student visa will be automatically cancelled at the end of the 28th day after the date of this Notice 5 February 2008 unless you have taken one of the two options described in this Notice. Taking either Option 1 or Option 2 means that your visa will not be automatically cancelled as a result of the breach described in this Notice, but it might still be cancelled later.

Option 1 requires that you attend the Department of Immigration and Citizenship (DIAC) office that is specified under Option 1 of this Notice, under the heading ‘Avoiding automatic visa cancellation under section 137J of the Act’. Under Option 2, you can attend any DIAC office in Australia. You must present photographic identification if you attend the DIAC office specified in this Notice and are requested to do so if you attend another DIAC office.

By attending a DIAC office and speaking to an officer you will have an opportunity to make any submissions about the breach and the circumstances that led to the breach described in this Notice.

This Notice also sets out how you may apply to the Minister of Immigration and Citizenship to have an automatic visa cancellation revoked, if automatic cancellation occurs. If automatic visa cancellation of your student visa is revoked, your visa will be taken never to have been cancelled. In other words, the visa will again be in effect, unless the visa would have ceased to be in effect for some other reason. In certain circumstances, it is possible for a decision by the Minister not to revoke an automatic cancellation to be reviewed by the Migration Review Tribunal.

The consequences of your failing to take Option 1 or Option 2 are very serious. A person without a visa in effect is an unlawful non-citizen and is subject to detention and removal from Australia. It is important that you read through this Notice carefully. If you have any questions regarding this Notice please call DIAC on 131 881 for further information.

2.    The following page:

Dear Mr Chandrakant Bhagabhai PATEL

This Notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000. It is sent to you because Griffith University (GU) has certified certain matters relating to course progress and/or course attendance which gives rise to a breach of a prescribed condition of your student visa.

3.    The following description of the particulars of Mr Patel’s alleged breach of visa conditions:

Particulars of the breach

The particulars of the breach are set out below. Failure to meet the requirements of subclause 8202(3) is a breach of condition 8202. A visa holder meets the requirements of subclause 8203(3) if neither (a) or (b) applies.

Paragraph 8202(3)(b) provides:

the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

i.    section 19 of the Education Services for Overseas Students Act 2000; and

ii.    Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).

Griffith University (GU) on 5 February 2008 has certified you as not achieving satisfactory course attendance in relation to English Language Programs (Beginner to Advanced) 1-50 weeks.

Paragraph 8202(3)(b) applies to you. Therefore, you have failed to meet the requirements of subclause 8202(3) and have breached condition 8202.

4.    There then followed three pages of information, respectively headed “Avoiding automatic visa cancellation under section 137J of the Act”, “Applying to have an automatic cancellation revoked”, and “What happens if you apply for revocation?”.

14    At the end of the last page concluding the document, the author of the document was described as:

Mr Christopher Madden

Pro Vice Chancellor (International) (Principal Executive Officer)

Griffith University (GU) [00233E] (trading as Griffith University)

Parklands Drive

GRIFFITH UNIVERSITY QLD 4111 Australia

15    There was a signature appended immediately above this signature clause. It was clear however that Mr Madden did not personally sign the document. A third party had clearly signed the document, “for” Mr Madden. It appears that the third party was Ms Meenu Issar, who during February 2008 was employed in the office of the Pro Vice Chancellor (International) at Griffith University as the International Admissions Supervisor, and had acted for a short period of time in 2007 as the Acting International Director.

16    The Department of Immigration issued Mr Patel with a notice of intention to consider cancellation of his visa. Mr Patel’s advisor sent a submission to the Department on 14 February 2008, stating that there had been no breach regarding condition 8202(3)(a) and (b) of his visa because, inter alia:

    Mr Patel had completed the ELICOS course ahead of schedule, and was in fact awarded a Certificate for the ELICOS course on 14 December 2007 with his Masters course scheduled to commence on 8 February 2008.

    A Student Medical Certificate had been submitted to Griffith University in respect of certain periods of absence.

    Taking these factors into account Mr Patel should meet the minimum 80% attendance requirement.

    Further, Mr Patel had difficulty accessing the Institute on public transport from his accommodation.

17    The Department sought a response from the Institute in respect of these points, and a detailed response was provided on 20 February 2008.

18    On 20 June 2008 the Department wrote to Mr Patel to advise him that his visa had been cancelled, and to advise him of his review rights.

19    Mr Patel sought review of the decision to cancel his visa in the Tribunal.

Decision of the Tribunal

20    The Tribunal considered that there were two questions for consideration, namely whether the ground for cancellation under s 116(1)(b) of the Migration Act identified by the delegate had been made out, and whether Mr Patel had demonstrated exceptional circumstances beyond his control such that his visa ought not be cancelled.

21    First, the Tribunal noted that the delegate cancelled Mr Patel’s visa for failure to comply with a condition of the visa, namely condition 8202(3)(b) which, as in force from 1 July 2007, specified that the holder will meet the requirements for course attendance unless the education provider has certified the holder, for a registered course undertaken by the holder, has not achieved satisfactory course attendance for s 19 of the ESOS Act and Standard 10 of the National Code. The Tribunal found that Mr Patel had not complied with condition 8202(3)(b) because, in summary:

    Mr Patel’s education provider, Griffith University, certified him as not achieving satisfactory course attendance in his English Language Programs (Beginner to Advanced) for s 19 of the ESOS Act and Standard 11 of the National Code. On the basis of that evidence the Tribunal found that Griffith University had certified that Mr Patel had not achieved satisfactory course attendance.

    Mr Patel disputed the assessment on a number of grounds, including:

    misstatement by the Institute of the length of his absences;

    evidence that his attendance rate was steadily increasing and that if he had been allowed to complete the course it would have reached the required level of 80%;

    incorrect oral advice given to him by the Institute on 7 December 2007, namely that he did not have to continue attending classes up to 14 December 2007 because his enrolment for a Master of Science course had been unconditionally accepted through the “Language of Instruction” path rather than ELICOS study.

However the Tribunal rejected these grounds on the basis that:

    there was no evidence to support Mr Patel’s claim of misstatement by the Institute of the length of his absences;

    the simple fact that Mr Patel’s attendance was increasing did not mean that it would have reached the level of 80% at any point;

    there was no documentary substantiation for his claim concerning the advice he claimed to receive from the Institute, and it seemed sufficiently clear that Mr Patel understood that he was to complete the course on 14 December 2007.

22    Accordingly, at paragraph 68 of its decision the Tribunal said:

On the basis of these considerations the Tribunal is not satisfied that there was any error in the way the applicant’s attendance was recorded by GELI or that he was given incorrect advice about the date when he could cease attending classes. The Tribunal is not satisfied that the applicant can have been under any misapprehension about the importance of maintaining a satisfactory level of attendance in his ELICOS course, given that his acknowledgement that he received four warning letters on this issue. The Tribunal is not satisfied that the claims advanced by the applicant demonstrate any relevant fault in the process by which his education provider certified him as failing to achieve satisfactory course attendance.

23    Second, in relation to whether Mr Patel’s non-compliance with condition 8202(3)(b) was due to exceptional circumstances beyond his control, Mr Patel had submitted, in summary, that the following factors constituted exceptional circumstances:

    chronic pain he had suffered from an injury suffered in India when he broke his hip, and in respect of which he had submitted medical certificates and x-rays;

    the fact that his medical conditions interfered with his sleep so that he could not wake up before 6.30 am each morning, resulting in lateness for classes;

    his feelings of homesickness, stress, loneliness and depression;

    the fact that he was required to complete various tasks at the main campus of Griffith University and, as the office there closed in the middle of the afternoon, he was unable to attend classes at various times;

    the fact that he missed a field day through a lack of understanding on his part that it was compulsory;

    that he was mislead by the Institute as to the date on which he was required to complete his studies.

24    However in relation to these claims the Tribunal found:

    There was no evidence before the Tribunal to demonstrate that Mr Patel was so affected by pain resulting from chronic pain chronic pain arising from a hip injury that his attendance at the Institute course fell below 80%, or that he needed to seek medical advice on a regular basis for chronic back pain.

    The Tribunal was not satisfied that Mr Patel’s medical condition prevented him from sleeping properly while enrolled at the Institute, and there was no evidence of his having sought medical assistance for such a problem or having made practical adjustments to his lifestyle to allow him enough time in the morning to travel to the Institute.

    While the Tribunal accepted that Mr Patel may have felt homesick and lonely, this was a common reaction to the experience of leaving home to study in another country and another society, and the Tribunal was not satisfied that Mr Patel experienced these problems to an extent where he needed to seek assistance.

    The Tribunal was not satisfied that the tasks Mr Patel needed to complete at the main campus were other than minor tasks which could have been completed in a very short time over the telephone.

    The Tribunal was not satisfied that Mr Patel’s failure to understand that the field day excursion was compulsory was an “exceptional circumstance”.

    The Tribunal was not satisfied that the Institute gave Mr Patel incorrect advice in relation to the date on which Mr Patel was required to complete his studies.

25    In summary, the Tribunal was not satisfied that Mr Patel’s breach of condition 8202 was due to exceptional circumstances beyond his control.

26    Accordingly, the Tribunal found that Mr Patel breached condition 8202 of his visa, and that Mr Patel had not established that this breach had been caused by exceptional circumstances beyond his control. The Tribunal therefore affirmed the delegate’s decision

Appeal to Federal Magistrates Court

27    Mr Patel appealed from the decision of the Tribunal on the following grounds:

1.    The second respondent failed to properly interpret condition 8202 in Schedule 8 of the Migration Regulations 1994 and s 116 of the Migration Act 1958 and hence its decision was an error of jurisdiction;

2.    The second respondent failed to make proper findings on the material before it and therefore made the errors of the type identified in SZLGP v MIAC [2008] FCA 1198 and WAIJ v MIMIA (2004) 80 ALD 568 (per Lee & Moore JJ). As a result the second respondent made a decision which was an error of jurisdiction.

3.    The certification by the Griffith University under condition 8202 was not valid. Hence there was an absence of a jurisdictional fact thus disabling the delegate of the first respondent from making a valid decision to cancel the applicant’s student visa. It follows that the delegate had no jurisdiction to make that decision. The second respondent standing in the shoes of the delegate ought to have appreciated that it did not have the jurisdiction to confirm the cancellation of the applicant’s student visa. Its decision therefore was an error of jurisdiction.

4.    The second respondent committed an error of jurisdiction by not making the correct or preferable decision.

5.    The second respondent erred by failing to deal with important aspects of the applicant’s case presented to it, namely:

i.    That the second respondent ignored a submission “specifically raised” by the applicant that he had lodged an appeal against the decision to consider reporting him for failing to meet satisfactory attendance requirements;

ii.    That the second respondent failed to make a determination on whether it had been open to the education provider not to issue a certificate in respect of the applicant because his non-attendance had fallen into the range of 71-80% referred to in Standard 11.9 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

b.    (sic) The existence of a valid certification is a precondition for a breach of condition 8202 and this court can determine for itself in these proceedings whether or not a valid certificate had been issued by the applicant’s education provider. Because of an alleged failure to comply by the education provider with standards 11.6 and 11.9 of the National Code, including because of a lack of proper delegation to the decision-maker, the certificate purportedly provided by the education provider was invalid and of no effect.

Decision of the Federal Magistrate

28    In a lengthy, detailed and thoughtful judgment the Federal Magistrate dismissed the application with costs (Patel v Minister for Immigration and Citizenship [2011] FMCA 112). In doing so the Federal Magistrate found, in summary, as follows.

Ground 1

29    First, his Honour found that no substantive arguments had been advanced by Mr Patel in support of his complaint contained in ground 1.

Grounds 2 and 3

30    Next, his Honour considered grounds 2 and 3 together, and at considerable length. In relation to Mr Patel’s reference to SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 and WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 the Federal Magistrate accepted the submissions of the respondent that there appeared to be nothing on the face of the Tribunal’s reasons suggesting any irrational or illogical fact finding by the Tribunal. His Honour considered that grounds 2 and 3 overlapped and that, in substance, three issues for determination emerged, namely:

    The Tribunal failed to make a determination on whether it had been open to the education provider not to issue a certificate in respect of the applicant because of his non attendance (sic) had fallen into the range of 70-80% referred to in Standard 11.9 of the Code (the certificate issue);

    The Tribunal ignored submissions “specially raised” by the applicant that he had lodged an appeal against the decision to consider reporting him for failing to meet satisfactory attendance requirements (the appeal issue); and

    The existence of a valid certificate was a precondition for a breach of condition 8202 (the condition 8202 issue).

31    In relation to the certificate issue the Federal Magistrate noted the applicant’s submissions that:

    the Tribunal appeared to be unaware of the terms of Standard 11 of the National Code, which afforded a student the right to appeal a decision;

    the absence of discussion in the Tribunal’s findings in relation to the right of appeal means it was not addressed;

    such a failure was an error of the type identified in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 ALR 389.

32    The respondents contended that the matter was not one which required consideration by the Tribunal, and it followed that a failure by the Tribunal to address it could not give rise to error. The respondents also submitted that the validity of a decision to cancel did not turn on the validity of the certificate issued by an education provider such as the Institute, the Court had no role in determining the validity of the certificate issued by the Institute in the course of judicial review of the Tribunal’s decision, and the Tribunal was entitled to accept the certificate on its face.

33    The Federal Magistrate found that, irrespective of the merits, the Tribunal need not have been concerned with any rights of appeal in Mr Patel, because ultimately a certificate under s 19 of the ESOS Act was given to the Secretary of the Department of Education, Employment and Workplace Relations, and the Minister was entitled to have regard to it in relation to considering whether to cancel a relevant visa without further investigation (at [34]). His Honour made this finding by reference to a detailed examination of the relevant regulatory structure, including legislative provisions prescribing visa conditions, and the National Code. His Honour observed at [43]-[45]:

[43]    In summary, as was submitted by the respondents, the effect of the introduction of the National Code in 2007 was to impose upon education providers obligations under the National Code relating to:

a)    setting performance and attendance standards;

b)    monitoring performance and attendance standards;

c)    provide an appeal structure for determining whether those standards had been breached; and

d)    oblige education providers to report breaches of those standards to the Department of Education and to students.

To this end the system was designed to interface with the student visa regime under the Migration Act through Condition 8202.

[44]    Critically the new scheme no longer required the Minister for Immigration to form views on attendance or academic progress at all. This it was submitted was now to be done by education providers. It was upon this point that the case really turned. That is, what was a visa holder’s remedy in the event that person was unhappy about a decision made in respect of the application of a Standard under the National Code? Was such an applicant’s remedy judicial review against the Minister under the Migration Act or was a decision made in respect of a Standard under the National Code only amenable to review processes available as provided by an education provider or other direct legal remedy against it?

[45]    It is the issuing of a certificate for the purposes of the relevant Standards of the National Code that gives rise to the breach of Condition 8202. The issue here was whether the Tribunal had jurisdiction to review the education provider’s decision to issue such a certificate.

34    Importantly, his Honour continued at [53]-[54]:

[53]    … In particular the fact that once the certificate issues the Minister’s hands are tied and critically that the Minister has no role in the decision making process relevant to the issue of the certificate. As the respondents noted in their submission the power to cancel a visa for breach of Condition 8202 arises when the Minister is satisfied that there has been certification by an education provider that has been made for the purposes of Standards 10 or 11 of the National Code and s.19 of the ESOS Act. That is, the constraint on the power to cancel is not whether a certificate exists as a jurisdictional fact but whether the Minister is satisfied that it exists. In other words, whether or not a valid certificate exists in relation to a visa holder, the power to cancel arises where the Minister is satisfied that there exists a certificate made for the purposes of Standards 10 or 11 of the National Code and s.19 of the ESOS Act.

[54]    As the respondents submitted, a certificate does not cease to be efficacious if the education provider failed to comply with some aspect of the National Code. One consequence for breach of the National Code is a disciplinary one for the education provider. It does not avail the student a basis for determining that a breach has not occurred. Undoubtedly noncompliance may provide a consideration for the Minister of grounds giving rise to exceptional circumstances beyond the control of the visa holder: see clause 4 of direction 38 under s.499 of the Migration Act; but this does not go to the existence of any breach. If noncompliance is accepted it could provide a basis to remove the obligation to cancel the visa; see Regulation 2.43(2)(b)(ii).

[55]    An argument advanced by the applicant was that the respondents’ approach denied the applicant any right of review. However I do not think that is so. The 2007 reforms operated to make the education providers the principal decision makers as to whether attendance and progress was satisfactory. These were to be measured against the particular rules and policies of the individual education provider concerned. They were required to meet basic standards imposed by the National Code. It was then left to the education providers to deal with any appeals within their own mechanisms remembering that the National Code provided that education providers were required to have such mechanisms in place. The overall effect of the system was to ensure the Minister was entitled to act upon a certificate issued to a certain effect. Once the Minister was satisfied that the certificate was to the effect stated in Condition 8202, there was a power to cancel. It is not the role of the Minister (or indeed the Tribunal) to go behind any certificate. The scheme was designed so that the Minister could simply rely upon the fact of the certificate and that a student wishing to prevent the issue of a certificate had available internal appeal systems. It follows that any relief sought in relation to a certificate lay against the education provider and not the Minister. (Emphasis added.)

[56]    It follows, in my view, that certificates issued by an education provider are not an exercise of power under a statute but a step taken by that entity under its own auspices albeit to meet its obligations under the non enforceable requirements of the National Code. The only task that the Minister has to determine is that there exists, on its face, a certificate of a kind that engages Condition 8202(3); Bellaiche v Department of Immigration and Ethnic Affairs [1998] FCA 478; (1998) 51 ALD 356 at 373.

[57]    It follows in my view that in answer to the rhetorical question posed upon the Project Blue Sky (supra) principal (sic) is that there is no discernable legislative purpose to invalidate any act by the Minister premised upon a certificate issued under the ESOS Act.

35    In claiming that the certificate to which the Minister’s delegate had regard was invalid and could not be the subject of such reliance, Mr Patel referred, before his Honour, to Minister for Immigration v Seligman (1999) 85 FCR 115. However his Honour distinguished Seligman on the grounds that:

    The relevant decision in respect of Mr Patel’s visa was not extra jurisdictional in the sense that it was beyond the power.

    The only matter properly open for review in this proceeding was whether or not the delegate had before him, on its face, a valid certificate. The decision of the Full Court in Seligman did not assist Mr Patel in determining the question of whether a court has power to review a Tribunal’s decision on the certificate beyond the matter of whether or not a certificate existed.

    In any event, the regime considered by the Full Court in Seligman has been repealed and a radically different regime substituted with the enactment of Pt 9 of the Migration Act which severely impacts the jurisdiction of the Court to review decisions of the Tribunal.

36    In conclusion in relation to the certificate issue, his Honour said at [69]:

Respectfully the applicant’s submissions ignore the underlying obligation upon the Minister’s delegate. The obligation which arose under the ESOS Act operated to impose upon education providers obligations under the National Code relating to setting performance and attendance standards; monitoring performance and attendance; providing an appeal structure for determining whether those standards have been breached; and obliging education providers to report breaches of those standards to the Department of Education and to students. Under the legislation there was no role for the Minister to form views on attendance or academic progress at all, that being a matter left to the education providers to perform in a manner consistent with the National Code. The delegate’s involvement with those matters arose only if the education provider certified for “not achieving satisfactory course progress” – Condition 8202(3)(a) or “not achieving satisfactory course attendance” – Condition 8202(3)(b) – the course attendance referred to in the condition being for s.19 ESOS Act and Standard 11 of the Code. However as the condition, the ESOS Act and Standard 11 of the National Code provide, these matters are to be left to the education provider, in this case Griffith University. They are not matters for determination by the Minister or his delegate. It follows this case is one where the certificate founding the delegate’s decision was not one premised upon the Act in that it’s source of power was founded in the Migration Act. The certificate was sourced in the ESOS Act with its existence enlivening the delegate’s powers to act, given it appeared valid on its face. Accordingly the decision to issue the certificate was not reviewable by the Minister or the tribunal.

37    In relation to the appeal issue his Honour found that:

    He was not satisfied that Mr Patel properly lodged an appeal against Griffith University’s notice to him of its intention to advise the Minister of his unsatisfactory attendance; and

    Even if he were wrong in respect of that finding, his Honour considered that any failure by the university to process an appeal was an internal matter which would not concern the Minister (at [72]). The Minister was “entitled to rely upon the certificate which on its face appeared valid” (at [73]).

38    In relation to the condition 8202 issue, Mr Patel contended in summary that the existence of a valid certificate was a precondition for a breach of condition 8202; in this case the person who had purported to issue the certificate did not have an appropriate delegation to issue it; and in doing so the purported delegate did not bring any proper consideration to bear upon its issue (at [74]). His Honour addressed these contentions in considerable detail, materially as follows:

[75]    The applicant contended that one or more of the decision makers from Griffith University lacked the relevant authority to make a decision in concerning the issue of the s.20 certificate as a result of a lack of proper delegations. The applicant’s contentions were there are two distinct and separate decisions that must be made before a student can breach clause 11 of the National Code:

a)    The first is a decision to notify the student that attendance has not been satisfactory as required by clause 11.6. It was contended that the persons who made these decisions that lacked the requisite authority;

b)    The second decision is the “final certification issued under s.20 of the ESOS Act”. It was contended:

i)    There was no valid delegation to make any decisions under the National Code;

ii)    The person who issued the certificate under s.20 did not give proper consideration to the issues;

iii)    That person did not have a delegation to make a decision to issue a certificate; and

iv)    There can be no lawful sub-delegation of the powers of Council or Vice Chancellor.

[76]    In addressing these issues it is essential to understand the legislative regime provided for the conduct of the University and the interface between the University and the obligations arising under the ESOS Act. The Griffith University is established as a body corporate by s.4 of the Griffith University Act 1998 (the GU Act). Section 7 of the GU Act provides for the establishment of a Council. The Council’s powers as provided by the GU Act include doing anything necessary or convenient to be done for or in connection with its functions. Its powers include power to manage and control the University’s affairs; s.9(2)(b). Its function includes the provision of education. The Council has powers to delegate its powers to appropriately qualified members of the University staff. Likewise the Vice Chancellor has similar powers. It may create statutes and rules which have the status of subordinate legislation; ss.62 and 64.

[77]    The registration of Griffith University as a registered provider is provided for by s.9 of the ESOS Act. The requirements for registration include a requirement that the provider comply with the National Code. The National Code is promulgated by the Minister and is a legislative instrument; s.33 ESOS Act. Its purpose is to provide nationally consistent standards for the registration and conduct of registered providers and the conduct of persons who deliver educational services on behalf of registered providers; s.34 ESOS Act. The National Code is required to contain standards and procedures required for registered providers in providing courses for overseas students. It only has the legal effect provided for by the ESOS Act; s.40 ESOS Act.

[78]    Concerning the first point I accept that the delegations that were put in place were not properly employed. Those who purported to exercise power under delegation did not in fact possess delegated power. However for reasons which follow this did not disqualify the Minister or the Tribunal from relying upon the invalid certificates as in each case reliance was placed upon a certificate which on its face was valid.

[79]    The applicant’s counsel contended that the effect of the legislative scheme is that the decision to issue the s.20 ESOS Act certificate was a decision of either the Council or the Vice Chancellor and that the power to delegate that decision could only be done in writing and itself not be subject to sub-delegation.

[80]    A copy of the relevant delegation was exhibited to the affidavit of Andrew Peter Yuile filed 18 August 2009. It provided that “for the purpose of compliance with s.20 of the ESOS Act the [Pro Vice Chancellor (International)] or Director are authorised on behalf of Griffith University to sign all notices to be given under that section”.

[81]    The evidence was that the person who signed the s.20 notice was Ms Meenu Issar. At the time she was relevantly employed in the office of the Pro Vice Chancellor (International) as the International Admissions Supervisor. In her capacity as that office holder she said that she signed the s.20 notice. In her affidavit she stated that although she had no specific recall of signing the s.20 notice concerning the applicant, the usual practice was to receive a briefing from the relevant officer concerning the matters in support of the s.20 notice. She said that she would be informed that a s.20 notice was required to be signed and given a reason why the notice was required. Brief grounds would be stated to her following a process within the administration that the relevant officer had taken all necessary steps and due diligence was satisfied. As she believed she was the delegate for the Pro Vice Chancellor in that capacity she would then sign the certificates. Her evidence was that it was her practice to place reliance upon what she was told by relevant officers in the GELI.

[82]    Under cross examination she agreed that prior to execution she would receive a brief following which she would then execute the relevant notice or certificate. When pressed in cross examination about the execution and nature of delegation her evidence was vague. In fairness she ceased working for Griffith University over 12 months prior to being called to give evidence. Furthermore she did not have access to any documentation from which to refresh her memory. However she impressed me as a responsible person. She appreciated the need for a delegation or basis of authority to execute certificates and notices under the ESOS Act. She also appreciated that she was called upon to do so on behalf of the Pro Vice Chancellor. Her approach to this task was to request a briefing so as to be appraised of the relevant facts and it was after this appraisal and upon the advice and recommendation of the relevant officers that she then purported to exercise her delegation. Although it is in fact the case that she did not hold a proper delegation I am satisfied she was not aware of that matter and at all times acted in good faith in the belief that she was authorised to sign notices including the notice to the applicant in the manner in which she did.

[83]    In my view the applicant is correct in his submissions that the delegation can only be exercised by the delegate and that in this case, because there is no provision in the GU Act for sub-delegation provided in either of s.11 (Council’s Delegation) or s.52 (Vice Chancellor’s Power of Delegation). The only officer of the university who could issue a certificate under the delegation was “the Pro Vice Chancellor (International) or director”. In this case neither of those officers purported to sign the certificate under s.19 or the notice under s.20.

[84]    The decision to issue the certificate is one as defined in s.4 of the Judicial Review Act (Q) (1991). The relevant decision was not one made by the Minister pursuant to his powers under the Migration Act and not a Migration Review Tribunal reviewable decision; s.338 Migration Act.

[85]    In any event, the answer to any question concerning delegations is to be found in the Minister’s powers. The Minister’s powers to cancel a visa under s.116(1)(b) arise once the Minister is satisfied that a relevant certificate as been issued by the education provider. The Minister (and the Tribunal) is not required to investigate the issue of delegation. Provided the certificate appears on its face to be valid that is sufficient for the Minister and the Tribunal to be satisfied that there has been no breach. Given the facts as I have found them I consider there would have been nothing to place the Minister on notice as to the invalidity of the certificate. Accordingly irrespective of the validity of the s.20 notice, given it was on its face valid, the notice’s invalidity would not invalidate the decision made to cancel the visa under s.116(1) of the Act; Minister for Immigration and Multicultural Affairs v ZHOU [2006] FCAFC 96; (2006) 152 FCR 115 at [39] – [42].

Ground 4

39    Ground 4 was not expressly agitated before his Honour and was dismissed.

Other issues

40    Mr Patel also submitted that he was entitled to a relaxation of the requirement of 80% course attendance because he had greater than 70% attendance but that the Tribunal had not determined that issue. After extensive examination of the relevant legislation and the evidence his Honour concluded that, in fact, Mr Patel’s actual attendance was only 68.371%, which meant that his attendance was below the lower threshold. As a consequence, the university was obliged to issue the notice and no discretion to relax attendance requirements was enlivened.

41    Further, his Honour found that there was no obligation on the Minister or the Tribunal to consider the exercise of a discretion under clause 11.9 of Standard 11. In any event the Institute was required by clause 11.6 to notify Mr Patel and ultimately the Secretary of the Department of Mr Patel’s unsatisfactory attendance as required by clause 11.7.

42    Finally his Honour made extensive credit findings in respect of witnesses who appeared in this proceeding, including the appellant.

Grounds of Appeal

43    Mr Patel appealed on six grounds. Those grounds are as follows:

1.    The learned Federal Magistrate found that the person who issued the notice under s. 19 or 20 of the Educations Services for Overseas Students Act 2000 (Cwth) [“the ESOS Act”] did not have the necessary power or delegation to issue that notice (paragraph 78 of the Federal Magistrate’s reasons for decision). It follows that an invalid notice under s. 19 or 20 of the Education Services for Overseas Students Act 2000 (Cwth) cannot found a power to cancel a student visa.

2.    The principles outlined in the Full Federal Court decision of Minister for Immigration & Multicultural Affairs v Seligman are applicable. As a consequence a defect in a necessary intermediate step in the decision making process means that the final decision is invalid and is infected with jurisdictional error.

3.    (i) The learned Federal Magistrate concluded that any defect in any decision by the education provider could not affect the validity of any decision to cancel the appellant’s student visa;

(ii) But condition 8202(3) of Schedule 8 of the Migration Regulations 1994 states (as relevant):

(3) A holder meets the requirements of this subclause if neither of the following applies:

(a) ….

(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i) section 19 of the Education Services for Overseas Student Act 2000; and

(ii) Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 [“the Code”]

(iii) it follows that a defect in the exercise of the education provider’s power under s. 19 of the ESOS Act or Standard 11 means that condition 8202 has not been breached;

(iv) if condition 8202 has not been breached then there is no power to cancel the appellant’s student visa;

(v) the learned Federal Magistrate erred in finding as a matter of principle that the MRT need not be concerned with any defects in applying Standard 11, yet Standard 11 is integral to the determination of a breach of condition 8202.

4.    The learned Federal Magistrate erred in characterising the appellant’s case as being that the MRT was reviewing the education provider’s decision. The appellant’s case was and is that the Minister’s delegate could not validly exercise the power to cancel a student visa unless the education provider issued a valid certificate. Characterising the appellant’s case as requiring the MRT to have power to review the decision of the education provider was a distraction which lead the learned Federal Magistrate into error.

5.    The learned Federal Magistrate appeared to base his decision on avoiding the floodgates problem, broadly being that the system of cancelling student visas is designed around the delegate of the Minister (the first respondent) being able to rely on the certificate issued by the education provider and that it is not the function of the delegate to look behind the certificate (see paragraphs 53-55 of the Federal Magistrate’s reasons for decision). In practice, the delegate or the decision maker would only have to look behind the certificate if the certificate was challenged. If challenged the delegate needs to satisfy himself or herself that the certificate was valid. The reasoning in paragraphs 53-55 (and the associated paragraphs) of the learned Federal Magistrate, is erroneous as, in the absence of a legislative directive making the certificate conclusive irrespective of any defects, the delegate, in the end can only act on a valid certificate.

6.    The learned Federal Magistrate erred in concluding that the MRT’s finding of 74% attendance was wrong. There is nothing in Standard 11 which prohibits an education provider for legitimate reason to give a particular student, temporary leave of absence during a course. Such a legitimate reason may be as varied as the student representing the education providers at an intervarsity competition (sport or academic), compassionate reasons, medical reasons or some recognition of prior learning. Once leave of absence is given then “the scheduled course contact hours for the course in which he or she is enrolled” for a particular student are the cumulative set of hours in the course less the hours subject of the leave of absence. Once seen in this light the MRT finding on 74% attendance is accurate. Once the 74% figure is accepted then the MRT error is the failure to appreciate the terms of Standard 11.9 of the Code.

44    Grounds 3, 5 and 6 in particular are a curious mixture of grounds and submissions. No submissions of substance were made at the hearing in relation to ground 5, which to that extent appears not to be the subject of reliance by Mr Patel. Further, in my view grounds 1-5 actually constitute variations on the same ground of appeal, namely that the decision of the delegate was founded on an invalid notice and certificate, which were invalid on the face of the document because of the clearly unauthorised signature.

45    In ground 6 Mr Patel raises the issue of attendance, and whether the university gave proper consideration to the discretion in respect of the 70% threshold in Standard 11.9 of the National Code.

46    The submissions of Counsel at the hearing focused on the substantive grounds of appeal concerning the invalidity of the notice and certificate issued to Mr Patel, and the issue of proper consideration of his attendance and the discretion available in Standard 11.9. I now turn to these issues.

Certification

Relevant legislation

47    As I have already noted, s 116(1)(b) of the Migration Act empowers the Minister for Immigration and Citizenship to cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. More particularly, while the Minister is empowered to cancel a visa under s 116(1), s 116(3) provides the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43 of the Migration Regulations provides:

…

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

(a) …

(aa) …

(b) in the case of a Student (Temporary) (Class TU) visa:

(i) …

(ii) that the Minister is satisfied that:

(A) the visa holder has not complied with condition 8202; and

(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

48    It is not in dispute that the form of condition 8202 (found in Sch 8 to the Migration Regulations) which applied in this case was as follows:

8202 (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) The holder meets requirements of this subclause if:

(a) the holder is enrolled in a registered course

(b) [paragraph (b) not relevant to this proceeding]

(3) The holder meets requirements of this subclause if neither of the following applies:

(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i) section 19 of the Education Services for Overseas Students Act 2000; and

(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b) the education provider has certified the holder, for a registered course undertaken by the holder as not achieving satisfactory attendance for:

(i) section 19 of the Education Services for Overseas Students Act 2000; and

(ii) Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(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.

49    Section 19 of the ESOS Act in turn provides:

Giving information about accepted students

(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:

(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;

(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;

(c) the prescribed information about an accepted student who does not begin his or her course when expected;

(d) any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed;

(e) any change in the identity or duration of an accepted student’s course;

(f) any other prescribed matter relating to accepted students.

(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.

(2A) A registered provider must give particulars of a breach by a student under subsection (2) even if the student has ceased to be an accepted student of the provider.

(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.

Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

(4) ….

(5) ….

(6) ….

50    Standard 10 of the National Code provides (inter alia) that a registered provider must monitor, record and assess the course progress of students. Standard 11 of the National Code provides that registered providers must systematically monitor students’ compliance with student visa conditions relating to attendance, and specifies requirements of documented attendance policies and procedures for each course. In particular, education providers must have documented policies specifying requirements for achieving satisfactory attendance, which, at a minimum, require overseas students to attend at least 80 per cent of the scheduled course contact hours. Further, paragraph 11.9 of Standard 11 provides:

For the ELICOS and school courses identified in 11.1, the registered provider may only decide not to report a student for breaching the 80 per cent attendance requirement where:

a.    the student produces documentary evidence clearly demonstrating that compassionate or compelling circumstances (e.g. illness where a medical certificate states that the student is unable to attend classes) apply, and

b.    that decision is consistent with its documented attendance policies and procedures, and

c.    the registered provider confirms that the student is attending at least 70 per cent of the scheduled course contact hours for the course in which he or she is enrolled.

Reviewable decision

51    Properly interpreted, the regime thus created does not require the Minister (or his or her delegate) to form a view on whether the visa holder has complied with attendance or academic requirements. The Minister is required to cancel a student visa if he or she is satisfied that visa holder has not complied with visa condition 8202.

52    It is clearly for the education provider to form a view as to whether the visa holder has complied with attendance or academic requirements, and notify the Secretary of the Department of Education, Employment and Workplace Relations in relevant circumstances. The act of notification pursuant to Standards 10 and 11 of the National Code and s 19 of the ESOS Act to notify the Secretary constitutes a certification, which itself constitutes the breach of condition 8202 by the holder of the visa. As the Minister properly submits, this is because the visa holder is required by condition 8202(1) to meet the requirements of condition 8202(3), which requires (in summary) that a visa holder not be subject to a certificate of this type.

53    The Federal Magistrate analysed in considerable detail the statutory regime, including the interaction of the National Code, the ESOS Act and condition 8202 (cf [35]-[49] of his Honour’s judgment). I respectfully note and adopt his Honour’s reasoning in this respect. Importantly his Honour noted s 40 of the ESOS Act, which provides:

The only legal effects of the National Code are the effects that this Act expressly provides for.

54    His Honour concludes at [49] that the only legal effects given by the ESOS Act to the National Code are:

a)    s.9(2)(d) dealing with current and projected compliance with the National Code as preconditions for registration as an approved provider;

b)    standards for the imposition of disciplinary action on education providers available to the Minister pursuant to s.83; and

c)    the provision of regulations making it an offence to breach prescribed provisions of the National Code.

55    Mr Patel’s case before me in relation to the issue of validity of the certification was, in substance, that because the certification could not have been valid because it was signed by a person who was not authorised by the university, the Minister’s satisfaction could not be based on such a certification. In summary, the argument was:

    under condition 8202(3)(a) the education provider certifies that the visa holder has not achieved satisfactory course progress;

    the person who has so “certified” must be authorised to do so by the education provider;

    the Federal Magistrate made a specific factual finding that the person who “certified” that Mr Patel had not achieved satisfactory progress was not authorised to do so by Griffith University;

    non-certified persons could not validly perform the task of “certification”;

    the certification document was unsigned and the evidence established that it was not done with the authority of the Pro Vice Chancellor, who was overseas at the time;

    the respondent’s case is based on the proposition that anyone at the education provider could be the person who had “certified” for the purposes of condition 8202;

    there is no jurisdiction to cancel a student visa if there has not been a valid certification;

    good faith is no answer to satisfaction based on an error of law: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.

56    The appellant’s argument concerning the undesirable policy implications of the Minister’s decision being in fact based on a certification by an unauthorised person at the relevant education provider potentially raises concerns as to processes in education providers. However the structure of the Migration Act means that, as found by the Federal Magistrate, the decision the subject of review by the Tribunal is the decision of the Minister as to whether he was satisfied that there had been a breach of visa condition 8202. In this case the Federal Magistrate found that the Minister was so satisfied. While Ms Issar was not an authorised delegate of Griffith University there was nothing on the face of the documentation to found any concern by the Minister that there had not been a breach of condition 8202 as the documentation stated. Indeed, the documentation was comprehensive and unequivocal, was clearly issued under the aegis of an office of the University, and was signed “for” the Pro Vice Chancellor who is a senior academic officer.

57    This is not a case where the underlying decision of the University is susceptible to review by the Tribunal, and the Minister is required to go behind the certificate, or be on notice as to the nature of delegations and proper lines of authority within the education provider (compare by way of analogy comments of Davies J in Manokian v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 632 at p 633; Moore J in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] 141 FCR 448 at [30]; and Blanchard, McGrath and William Young JJ in the Supreme Court of New Zealand in McNamara v Auckland City Council [2012] NZSC 34 at [155]-[156]).

58    Compliance with the National Code is required of the education providers, not the Minister. Further, Standard 8 of the National Code requires education providers to have an internal complaints handling and appeals process for overseas students, and education providers are also required to advise students of their right to access an external complaint and appeals process if they are not satisfied with an internal complaint process or outcome. It is this process with which the student must engage if he or she has a complaint about the policies and practices of the education provider, including the manner in which certificates are notified to the Secretary.

Seligman

59    In relation to the submission by the appellant that his Honour erred in finding the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 distinguishable, examination of his Honour’s reasoning does not support such a finding.

60    In Seligman the legislative framework in place at that time (so far as material) required the Minister to grant the relevant visa if satisfied that health and other criteria had been satisfied. Regulation 2.25A required the Minister to seek the opinion of a Medical Officer of the Commonwealth on certain of the criteria:

(1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(a), 4005(b), 4005(c), 4006a(1)(a), 4006a(1)(b), 4006a(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless:

...

(3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.

(Emphasis added.)

61    Regulation 2.25B prescribed the approach to be taken by the Medical Officer as follows:

In determining whether or not, during an applicant’s proposed period of stay in Australia, a person’s disease or condition would be likely to:

(a)    result in a significant cost to the Australian community in the areas of health care or community services; or

(b)    prejudice the access of an Australian citizen or permanent resident to health care or community services;

the Medical Officer of the Commonwealth must consider the person’s need and eligibility for health care or community services, without regard to whether that person will use the services.

62    The Full Court in Seligman observed that reg 2.25A and reg 2.25B were made pursuant to s 505 of the Migration Act.

63    The Medical Officer in Seligman had given an opinion to the effect that the son of the primary visa applicant would be a significant cost to the community, and in evident reliance on that medical opinion the Minister had refused the visa applications in that case.

64    Before the Full Court the Minister contended (in summary) that the primary judge had erred in holding that, once the Court’s jurisdiction was invoked under s 475(1)(c) of the Migration Act in relation to a decision of a delegate, the Court also had jurisdiction to review a decision of a Medical Officer of the Commonwealth which decision had been applied by the delegate. Section 475(1)(c), which has since been repealed, at the time provided:

Subject to subsection (2), the following decisions are judicially reviewable decisions:

…

(c) other decisions made under this Act, or the Regulations, relating to visas.

65    The Full Court found that reg 2.25B was not authorised by s 505 of the Migration Act (at [54]-[63]).

66    The Full Court then turned to the question whether the primary judge erred in taking the view that the application for review of the delegate’s decision was a proper vehicle for review of the Medical Officer’s opinion because the opinion fell into the category of a judicially-reviewable decision under s 475(1)(c) of the Migration Act (at [64]). The Minister contended that this reasoning was in conflict with reg 2.25A(3), which required the Minister to treat the opinion of the Medical Officer as correct. In summary, however, the Full Court observed that the delegate was only entitled and obliged to take the opinion of the Medical Officer as correct if it was an opinion of a kind validly authorised by the Migration Regulations (at [66]). The Full Court said:

[67]    It is not necessary for present purposes to decide whether his Honour was correct in characterising the opinion as a judicially-reviewable decision. He took the view that the Medical Officer erred in passing upon the likelihood that Gregory’s “condition” would require long term income support. The way his Honour saw it that was an error about the scope of “community services” contemplated by the criterion in Item 4005(c)(i). It that is correct and it were such an error then the opinion on the face of it did not address the criterion and the delegate would have erred in taking it as correct.

67    The Full Court continued:

[68]    As to the second ground relied upon by his Honour, relating to the absence of evidence to support the Medical Officer’s opinion, an opinion which is unlawful for that reason does not bind the delegate. The fact that the delegate may not have made inquiry or may have been unaware of the deficiency makes it no less an error lf law to treat the opinion as provided in accordance with the requirements of the regulations and to be taken as correct.

[69]    On this approach it makes no difference to the outcome of the case that his Honour characterised the decision of the Medical Officer as a judicially-reviewable decision. If the opinion is vitiated by error of law the delegate errs in taking it as correct. On the basis already outlined, the Court has jurisdiction to consider the lawfulness of the Medical Officer’s opinion as an element of its consideration of the lawfulness of the delegate’s decision. The first two grounds of appeal which are both directed to this issue therefore fail.

68    His Honour considered the applicability of Seligman at [58]-[67] of the judgment. I agree with the reasoning of his Honour in distinguishing Seligman, because it is clear that:

    the legislative regime upon which Seligman was decided (including now-repealed s 475(2)(c)) is different to that before the Court in this proceeding;

    any decision-making inherent in relation to issue of the notice and certificate by Griffith University in this proceeding is not a decision reviewable under the Migration Act;

    the decision of the Medical Officer in Seligman was in terms inconsistent with the relevant criterion under the Migration Act, and was therefore in error on its face (unlike the certificate in this case). It followed that the delegate in Seligman erred in relying on that medical opinion.

69    His Honour concluded that, in the absence of clear authority, the better view was that a reviewing Court has no power to review a Tribunal’s decision on the certificate beyond the matter of whether or not a certificate existed (at [65]).

70    In my view there is no error in the reasoning of his Honour in respect of the relevance of the decision of the Full Court in Seligman.

Attendance and Standard 11.9 of the National Code

71    The question whether the Tribunal appreciated the terms of clause 11.9 of Standard 11 of the National Code was considered by the Federal Magistrate at [89]-[99] of his Honour’s judgment. After detailed examination of Standard 11 and the evidence, his Honour concluded that Mr Patel’s actual attendance was 66.25%, that the Tribunal erred in accepting that Mr Patel’s attendance at 14 December 2007 was 73%, and that as a result the discretion of the education provider under clause 11.9 not to issue the notice was never enlivened.

72    In my view there is no error in the reasoning of his Honour in relation to this issue.

Jurisdictional facts

73    The appellant made detailed written submissions with respect to the concept of jurisdictional facts, including extensive references to Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. The appellant contended, in reliance on Enfield, that it is the function of the Court to determine if the Tribunal wrongly gave itself jurisdiction to affirm the cancellation of the student visa by finding there was a valid certification by Griffith University.

74    Placing to one side the point that the ground of appeal to which this submission relates is not readily apparent, and the fact that the validity of the certificate was not actually raised by the appellant in the Tribunal, in my view the question posed by the appellant is misconceived. The Tribunal did not “give itself jurisdiction” “to affirm the cancellation” of Mr Patel’s visa “by finding there was a valid certification by Griffith University”. The Tribunal decision was limited to reviewing the decision of the Minister’s delegate that Mr Patel had breached condition 8202 of his visa, where the decision was made following consideration of a notice and certificate in respect of his attendance. A decision, reviewable by the Tribunal, had been made by the delegate. It was not the role of the Tribunal to find that there was a valid certification by Griffith University – once the evidence established that a notice and certificate had been issued by the University which was valid on its face, there was no role for the Tribunal in looking behind the notice.

Conclusion

75    The appellant submits strongly that the issue of the notice certificate by Griffith University, in circumstances where he actually met the English Language requirements for his Griffith University degree program by “Language of Instruction” (where the University recognises previous studies outside Australia), was absurd and unjust. Whether that is the case is not an issue for decision by this Court. I note, in any event, the detailed attention given by his Honour at [102]-[130] to:

    credit findings;

    the warning letters received by Mr Patel from the education provider in relation to the attendance requirement in relation to the ELICOS course while he was enrolled in it; and

    the issue of lodgement by Mr Patel of a form of appeal against the decision of the University to issue the notice.

76    Cancellation of a visa in these circumstances is an issue of utmost seriousness. However I am unable to identify any basis upon which the decision in the Court below should be overturned.

77    The appeal is dismissed and I will now seek submissions from the parties as to costs.

Associate:

Dated:    4 September 2012