FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1137

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of and incidental to the appeal to be taxed if not agreed.

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

THE COURT DIRECTS THAT:

1.    The name of the first respondent be amended to the Minister for Immigration and Border Protection.

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

REASONS FOR JUDGMENT

1    The appellant, Ms Yiqian Chen, is a citizen of the Republic of Singapore. Ms Chen arrived in Australia on 27 January 2010 as the holder of a visa issued under the Migration Regulations 1994 (Cth) (Migration Regulations) made under the Migration Act 1958 (Cth) (Migration Act) and known as a subclass 571 Schools Sector Visa.

2    Prior to her arrival in Australia, Ms Chen had enrolled as a student at the University of New South Wales (the University). The visa was issued to her in December 2009 for the purpose of her undertaking those studies.

3    On 23 June 2011, a delegate of the Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection), who is the active party respondent to this appeal, decided to cancel Ms Chen’s visa. The basis of the cancellation decision was that the Minister’s delegate was satisfied that she had failed to comply with a condition of her visa and that her non-compliance was not due to exceptional circumstances beyond her control. The non-compliance was grounded in a certification by the University as to her unsatisfactory attendance at her course of study.

4    Succinct though that statement as to the basis for the visa cancellation may be, the pathway through applicable legislation and subordinate legislation is truly Byzantine. Fortunately, that pathway has been charted in a summary offered in earlier authority in this Court, to which I refer below.

5    Ms Chen sought a review on the merits of the cancellation decision by the Migration Review Tribunal (Tribunal). On 4 April 2012, the Tribunal decided to affirm that decision. Ms Chen then applied to what was then known as the Federal Magistrates Court (now Federal Circuit Court) (Driver FM, as his Honour then was) for the judicial review of the Tribunal’s decision. That court dismissed her application on 30 October 2012. She has now appealed to this Court against the dismissal of her judicial review application.

6    As pleaded, the grounds of appeal are these:

(i)    The Federal Magistrate erred in finding that the Migration Review Tribunal had not failed to carry out its statutory duty.

(ii)    The Federal Magistrate erred in finding that the Migration Review Tribunal had not applied the wrong test.

(iii)    The Federal Magistrate erred in finding that the Migration Review Tribunal was not required to consider the manner in which the education provider recorded attendance and further consider whether to actually record the Appellant’s attendance amounted to exceptional circumstances.

(iv)    The Federal Magistrate erred in making a decision in respect of the merits of the Migration Review Tribunal’s decision.

(v)    The Federal Magistrate erred in finding that the decision of the Migration Review Tribunal was not irrational or illogical.

(vi)    The Federal Magistrate erred in finding that the Migration Review Tribunal had not failed to consider all the integers of the Appellant’s claims.

7    Under the Federal Court Rules 2011 (the Rules), a notice of appeal is required to state, “briefly but specifically, the grounds relied on in support of the appeal”: r 36.01(2)(c). The requirement of specificity imposed by this rule, dictated by the qualifying conjunction “but”, has been ignored in the pleading of grounds (i) and (ii) in this notice of appeal. Each is cast at such a level of generality as to be devoid of meaningful content unless particularised.

8     The Minister submitted that none of the grounds was particularised. He did not though seek consequential relief either in the form of an order that the appeal be dismissed because, given the way in which the grounds were pleaded, the notice was not one capable of regularly instituting an appeal. Nor did he seek to have particular grounds struck out on the basis of an absence of compliance with the Rules. This was doubtless because counsel for Ms Chen gave, in written and oral submissions, particularity to such of the grounds of appeal as were pressed. Ground (vi) was in those submissions abandoned.

9    Even though the Minister has not made any consequential application, it is desirable to say something further about the pleading of this notice of appeal and related obligations which fall on legal practitioners by virtue of the Migration Act.

10    For the reasons given above, I accept the Minister’s submission as to a want of adequate particularity in respect of grounds (i) and (ii). Of the other grounds which were pressed, I do not consider that this same criticism is open in respect of grounds (iii) and (iv). Absent particularity as to the basis upon which it is alleged that the Federal Magistrates Court ought to have held that the Tribunal’s decision was irrational or illogical, it is a moot point as to whether ground (v) is compliant with the Rules. As pleaded, ground (vi) is also devoid of meaningful content - which integers were not considered?

11    It is to be remembered that an appeal is a form of “migration litigation” (defined s 486K) for the purposes of s 486I of the Migration Act. That section requires that a document commencing migration litigation not be filed by a lawyer “unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success”. A notice of appeal is such a document.

12    Section 486I forms part of a regime in Part 8B of the Migration Act directed to the end of prohibiting the encouragement of litigants to institute “migration litigation” as defined, without reasonable prospect of success (which is not, by s 486E(2), equated only with litigation which is hopeless or bound to fail). The provisions of Part 8B must be construed and administered according to their terms. The prohibition against particular encouragement is not directed solely to legal practitioners. So far as legal practitioners are concerned, it is not presently necessary to consider the extent to which Part 8B extends the obligation under the general law which falls on legal practitioners not to institute or prosecute a proceeding which is an abuse of process, q.v. White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 (Goldberg J); affirmed, Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134. All that it is necessary to observe for present purposes is that it is difficult to see how a legal practitioner could, for the purposes of s 486I, certify in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success where the grounds in the notice of appeal concerned are pleaded with such generality as to be devoid of meaningful content.

13    As developed in the appellant’s submissions, ground (i) came to be that the court below should have concluded that, in the events which transpired, the Tribunal had breached the obligations placed on it by s 359A and s 359AA of the Migration Act.

14    In the course of the hearing which was afforded to Ms Chen by the Tribunal, the member constituting the Tribunal (Ms M Grau) made a number of introductory remarks as to the procedure which she would follow in the course of the hearing. The member stated:

… [W]hat I’ll do throughout the hearing is I’ll put to you information and concerns I might have, and that’s not because I’ve made up my mind. That’s because I would like you to be aware of what my concerns are so that you can respond to those.

… And sometimes I have to put to you in a formal manner because that’s what’s required by the legislation.

… So what I’ll need to do is to put to you again information in a formal manner, and that is I have information that would be the reason or part of the reason for affirming the decision under review. Affirming means agreeing with. And I’ll explain the relevance of that information and you can seek additional time if you wish.

15    Having so done, the tribunal member then detailed to Ms Chen the visa which she had been granted and the notices which had been sent to her by the Minister’s department notifying an intention to cancel that visa and offering an opportunity to respond. The member then questioned Ms Chen about:

(a)    her late arrival at her University classes;

(b)    the appeal which she had made to the University about the recording of her absence; and

(c)    her attendance record at the University.

Thereafter, the member put to Ms Chen details of the University’s certification as to her attendance, explained how that related to visa conditions which might form a basis for cancellation and gave her an opportunity to respond.

16    On behalf of Ms Chen, it was submitted that the procedure which ought to have been adopted by the Tribunal was to put particulars of the information, explain why it was relevant and then give an opportunity to respond before raising with her the three matters referred to in the preceding paragraph. Because the Tribunal did not do this, it was submitted that there had been a failure to comply with s 359AA of the Migration Act and thus with s 359A of that Act. This in turn meant, so the submission went, that there had not been a review hearing according to law and that the Federal Magistrates Court had erred in not so concluding.

17    To deal with this submission it is first necessary to set out the terms of s 359AA and s 359A of the Migration Act, which respectively provide:

359AA Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

359A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

     (c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies - by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

     (c)    that is non-disclosable information.

18    It is also necessary to refer to the scheme in that Act governing the cancellation of a visa and to the material conditions in respect of the visa held by Ms Chen. As to that, I gratefully adopt a summary offered by Yates J in Mani v Minister for Immigration and Citizenship (2012) 134 ALD 513 at [2] - [3]:

2    Section 116(3) of the Act provides that the Minister must cancel a visa in prescribed circumstances. For student visas in force on or after 8 October 2005 reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations) provides that, for the particular visa held by the appellant, the prescribed circumstances are that the Minister is satisfied that, first, the visa holder has not complied with condition 8202 and, secondly, that the non-compliance is not due to exceptional circumstances beyond the visa holder’s control. It is sufficient to note for the purposes of this matter that condition 8202 will not be complied with if the relevant education provider certifies that the student visa holder has not achieved satisfactory course progress or attendance. It is the issue of this certificate that constitutes the breach of condition, not the fact of unsatisfactory progress or attendance: Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [44]-[45].

3    In order to be satisfied that the non-compliance is not due to exceptional circumstances beyond the visa holder’s control, decision-makers such as the Minister’s delegate and the Tribunal are required by the operation of s 499 of the Act to take into account directions given by the Minister. The relevant directions are contained in a document known as Direction No. 38. Direction No. 38 relevantly provides that decision-makers must have due regard to, but are not limited to, the following matters:

    policy advice from the Director of Compliance Operational Support Section (or, if there is a restructure, from the Director of the relevant section that is the successor on each occasion) to give due regard to a political upheaval or natural disaster in a particular country. Decision-makers must give consideration to whether that country is the student’s home country and to whether the particular political upheaval or natural disaster has affected the student’s ability to comply with condition 8202;

    where DEST [the Department of Education, Science and Training] or an education provider states in writing that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and the reporting thereof. This may include concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, decision-makers should give due regard to the following matters and make further inquiries as appropriate:

    if the education provider has failed to accurately monitor the student’s course progress or attendance;

    if the education provider has failed to give the student access to a complaints handling and appeals process as required under standard 8 of the National Code 2007.

19    The learned Federal Magistrate rejected a like submission as to an alleged transgression of s 359AA and consequential transgression of s 359A, observing (at [46]):

46.    In my view, Ms Chen’s submission introduces into s.359AA an obligation on the Tribunal to meet all of the requirements under the section at the earliest possible moment in a hearing. I do not accept that contention. The Tribunal may be uncertain about the significance of information until the presiding member has discussed it with the applicant. It is only when the Tribunal is satisfied that there is information requiring disclosure pursuant to s.359A that it needs to give attention to its obligations under s.359AA if it wishes to take advantage of that provision. There is no error in the Tribunal warning of the possible need for disclosure early in the hearing, and then after a process of questioning, telling the applicant what she needs to know in order to address the Tribunal’s concerns that have become clear as a consequence of the questioning. The presiding member may come into a hearing with preliminary views, and may wish to voice those views (including for the purpose of providing a fair hearing opportunity) but there is nothing wrong in the Tribunal discussing potentially adverse information with an applicant (which will generally help in clarifying the Tribunal’s views) before giving disclosure as required by s.359AA. Hypothetically, the discussion may overcome the Tribunal’s initial concerns, so that no disclosure is required. Conversely, the Tribunal may conclude that the circumstances require a written invitation after the hearing.

20    I agree with these observations. Section 359AA is facultative. It permits the Tribunal, if the Tribunal chooses, to put potentially adverse information to an applicant for response during the course of a hearing. If the Tribunal adopts this procedure it has no further obligation to invite an applicant to respond to potentially adverse information before making its decision: s 359A(3).

21    It is to be remembered that the Tribunal is by s 353 of the Migration Act at least exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” and is “not bound by technicalities, legal forms or rules of evidence”. Whether the effect of that section extends beyond exhortation into the realm of obligation, as had been opined by Greenwood J and me in Minister for Immigration and Citizenship v Li (2012) 202 FCR 387, was left an open question upon the dismissal of a subsequent appeal by the High Court: Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618. It is not necessary further to explore that question in this case. What can be said is that Parliament did not by s 353 dictate that a hearing in respect of a review application must proceed in the same particular manner in every case. As Driver FM rightly highlights in the passage quoted, the occasion for the invoking of the practice permitted by s 359AA of the Migration Act might not arise at the outset of a hearing. How and when occasion might arise for the Tribunal to adopt that practice during the course of a hearing will inherently be related to the circumstances of a particular case. What is necessary to engage the dispensation for which s 359A(3) provides is that, on a fair reading of the record of the whole of the proceedings at the hearing conducted by the Tribunal, it can be seen that, in substance, the requirements of s 359AA were observed. That is this case.

22    Ms Chen also put her case in respect of an alleged breach of s 359AA and thus s 359A in an alternative way. Understanding that alternative first requires that some further provisions in legislation, the Migration Regulations and policy directions be set out.

23    By virtue of Item 8202(3)(b) in Schedule 8 to the Migration Regulations, Ms Chen’s visa was materially subject to a condition which required that she not be the subject of a certification by the University, as a registered provider under the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act), as not achieving satisfactory course attendance for:

(i)    s 19 of the ESOS Act; and

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

Item 8202, which supples that visa condition, materially provides:

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

…

(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 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.

24    Standard 11 of the National Code provides:

11.1    The Registered provider must record the attendance of each student for the scheduled course contact hours in which the student is enrolled.

25    Section 499 of the Migration Act empowers the Minister to give to, inter alios, the Tribunal directions with which the Tribunal must comply in relation to the performance of its functions or the exercise of its powers. One such direction is Direction 38, which materially provides that, when considering whether non-compliance with an Item 8202 condition was not due to exceptional circumstances beyond a visa holder’s control, the Tribunal is to have regard to:

Written advice from the Department of Education, Employment and Workplace Relations (previously the Department of Education, Science and Training) or an education provider that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting, including concerns in relation to the monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, the Tribunal should give due regard, undertaking make further inquiries if appropriate to whether the education provider has failed to accurately monitor the student’s course progress or attendance … .

26    By s 116(1)(b) of the Migration Act, it is provided that, subject, materially, to s 116(3), the Minister may cancel a visa if satisfied that “its holder has not complied with a condition of the visa”. Section 116(3) provides:

(3)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

One “prescribed circumstance” is supplied by reg 2.43(2) of the Migration Regulations which, for student visas in force on or after 8 October 2005, provides:

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

…

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

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

…

(ii)    that the Minister is satisfied that:

the visa holder has not complied with condition 8202; and

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

27    Against this background, the alternative submission made on behalf of Ms Chen was as follows. It was put that an alleged failure on the part of the University accurately to record her course attendance was “squarely raised” with the Tribunal. That, it was submitted, had the consequence that the Tribunal was required to consider the recording of the attendance and, as Direction 38, read with s 499 required, to make “due inquiries” in relation to the recording of Ms Chen’s absence by the University. A failure so to do was said to constitute a failure by the Tribunal to carry out its statutory duty. A separate but related, like failure was said to be found in a failure on the part of the Tribunal to consider an absence of advice from the Department of Education, Employment and Workplace Relations of the kind referred to in Direction 38 as to “concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting”. This lack of advice was said to constitute “information” for the purposes of s 359AA and s 359A of the Migration Act such that the Tribunal was obliged to put that absence to of advice to Ms Chen.

28    The flaw in this alternative submission was identified by the learned Federal Magistrate (at paragraphs [54] and [55]). The Tribunal did make inquiries of the University. It sought and obtained a copy of the University’s attendance record in respect of Ms Chen and of its policy (found in the student handbook for the course) in relation to the recording of attendance. The tribunal member’s assessment of the contents of these informed the questions which she put to Ms Chen and the opportunity to respond which she extended to her in the course of the hearing. Far from ignoring either Direction 38 or Standard 11 of the National Code, the Tribunal expressly took each of these into account, as the procedure followed by it at the hearing suggests and as the Tribunal’s reasons for decision confirm.

29    Contrary to the submission made on behalf of Ms Chen, but like the learned Federal Magistrate, I conclude that the absence of written advice from the Department of Education, Employment and Workplace Relations was not “information”. I do so for these reasons.

30    In other contexts, for example security vetting of an individual by an intelligence agency, the absence of an adverse report about that individual may aptly be regarded as “information” about that individual. Depending upon information from other sources and agencies about that individual, that absence of adverse reporting may prompt a vetting decision to give that individual a particular level of security clearance or it may prompt the initiation of further inquiries. Viewed in the abstract, it is thus by no means impossible to accept a proposition that, sometimes, absence of adverse information can, itself, be “information”. That is not the sense in which the word “information” is used in s 359AA or s 359AA of the Migration Act. In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ referred with approval to an observation made by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477, which was that, in s 424A of the Migration Act, the word “information” does not:

extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

The word “information” is used in the same context in s 359AA and s 359A of the Migration Act. In these sections, the “information” must have the characteristic of being “the reason, or a part of the reason, for affirming the decision that is under review”: s359AA(a)/s359(1)(a). The absence of written advice from the Department of Education, Employment and Workplace Relations was not “information” for the purposes of these sections.

31    Yet further, having regard to the Full Court’s judgement in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 (Maan), item 8202(3)(b), which supplied the material visa condition, was breached upon the certification by the University of her failure to attend in accordance with its attendance policies. The Tribunal referred to Maan in its reasons for decision but nonetheless later in those reasons devoted considerable attention to whether, having regard to various decisions of the Federal Magistrates Court, not all of which are readily reconcilable, it was entitled to go behind the University’s certification. The Tribunal concluded (reasons, paragraph [60]) that “its only task is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The mere fact of certification gives rise to a ground of cancellation under s 116(1)(b) of the Migration Act.”

32    The learned Federal Magistrate also gave detailed consideration to whether it was possible for the Tribunal to go behind an education provider’s certificate. His Honour concluded that it was not, regarding himself as bound so to hold by the more recently decided decision by Collier J in Patel v Minister for Immigration [2012] FCA 958.

33    Having regard to Maan, this detailed consideration by the Tribunal and the court below was not, in my respectful opinion, necessary, so far as the question of whether the item 8202(3)(b) condition was breached was concerned. Each, as I am, was bound by that judgement of the Full Court to hold that, in deciding whether that condition had been breached, it was not possible for the Tribunal to go behind the University’s certificate. To this extent, I agree with the conclusion reached by the Tribunal in the passage which I have quoted.

34    Insofar as the Tribunal further concluded that this certification, ipso facto, gave rise to a ground of cancellation under s 116(1)(b) of the Migration Act, this also is true but the statement of that conclusion must be treated with caution lest uncritical application of it lead to a failure additionally to consider and apply s 116(3) of the Migration Act and reg 2.43(2) of the Migration Regulations. The establishment of a ground for cancellation under s 116(1)(b) of the Migration Act does indeed “give rise” to a ground upon which, as a matter of discretion, a visa may be cancelled whereas, having regard to s 116(3), if the Minister is satisfied that a prescribed circumstance for which reg 2.43 provides exist, the Minister must cancel the visa.

35    The Tribunal correctly addressed both whether the condition was breached and also whether there existed prescribed circumstances. In the course of so doing, it conducted a hearing and, for the reasons given, adopted a procedure which complied with s 359AA of the Migration Act. It follows that grounds (i) and (ii) in the notice of appeal fail.

36    Ground (iii) in the notice of appeal raises a false issue. That is because the Tribunal expressly did, in conducting its review, address whether or not it was satisfied that there existed, for the purposes of reg 2.43, “exceptional circumstances”. More particularly, it considered whether the attendance recording was inaccurate and, even if not, whether the University’s governing attendance recording policy was unreasonable. In this sense, the Tribunal did look behind the certificate. It did so not for the purpose of deciding whether the item 8202(3)(b) condition had been breached but rather and permissibly for the purpose of deciding whether or not it was satisfied that there existed “exceptional circumstances”.

37    As it happened, the Tribunal concluded that the policy was not unreasonable. Further, the Tribunal expressly considered on the merits the reasons given by the appellant for her chronic lateness at her university course (grief associated with the death of a relative and with chronic complications from an asthmatic condition present since childhood and tonsillitis). The Tribunal did not accept that the appellant’s bouts of illness or grief accounted for her non-compliance with attendance requirements. All in all, what is revealed by the Tribunal’s reasons is a very particular consideration as to whether, having regard to the very bases put forward by the appellant, the Tribunal should be satisfied that there existed “exceptional circumstances”. The Tribunal, correctly, did not regard that inquiry as constrained by the wording of the University’s policy.

38    Having regard to the way in which Ms Chen’s case was presented, the Tribunal was obliged to and did consider whether or not it was satisfied that “exceptional circumstances” existed. In so doing, the Tribunal could and did reach its own conclusions, having regard to such of the material before it as it found persuasive, as to Ms Chen’s attendances at her course and the reasons for her non-attendances and whether on the basis of these it was satisfied that no “exceptional circumstances” existed. The Tribunal’s conclusion that it was not satisfied that there were exceptional circumstances was one reasonably open to it on the material before it. Direction 38 counsels rather than forbids such an approach to decision-making by the Tribunal in relation to deciding whether or not it is satisfied that there are “exceptional circumstances”. So much is apparent from the statement in that direction that the Tribunal should give due regard to and make appropriate inquiries as to “whether the education provider has failed to accurately monitor the student’s course progress or attendance”.

39    It follows that this statement (reasons for judgement, paragraph [61]) made by the learned Federal Magistrate was, on the authorities, both unremarkable and correct:

The consequence is that, on the authorities, the Tribunal is not required to go behind a certificate issued pursuant to s.19 of the ESOS Act (or a notice issued pursuant to s.20 of that Act). The only questions for the Minister, and the Tribunal, are whether condition 8202 has been breached by reason of the issuing of a certificate in the terms described in clause (3) of the condition and whether, if the condition on the visa has been breached, that breach was the result of exceptional circumstances beyond the visa holder’s control.

40    Having made this statement, his Honour went on to add remarks about the difficulties which might arise were “the process leading to the issuing of a certificate under s 19 of the ESOS Act” not a fair one (reasons for judgement, paragraphs [61] and [62]). These remarks were, truly, obiter dicta. It is neither necessary for the purposes of determining this appeal nor, for that reason, desirable, to pass comment upon their correctness. That can await a case, if ever there be one, where a decision not to be satisfied that “exceptional circumstances” exist is thought to be dictated by an educational provider’s attendance recording policy which is itself unreasonable.

41    Ground (iii) in the notice of appeal must be dismissed.

42    Ground (iv) in the notice of appeal asserts that the learned Federal Magistrate erred by making a decision on the merits in respect of the application for review of the visa cancellation decision. Had his honour so done, that would have transgressed the limits of the judicial review jurisdiction conferred on the Federal Magistrates Court but he did no such thing.

43    This appeal ground is predicated upon the following passage in the judgement below (at paragraph [61]):

If, as here, an educational institution chooses to record punctuality rather than attendance by reference to contact hours, that is not an exceptional circumstance.

This passage forms part of the remarks made obiter dicta. As explained above, the Tribunal did not regard its inquiry as to whether or not it was satisfied as to “exceptional circumstances” as constrained by the wording of the University’s policy. Further, the statement made by his Honour, quoted above, which precedes these obiter dicta is a correct statement of the approach the Tribunal must take in the review of a decision to cancel a visa of this class. On analysis, ground (iv) seeks to raise yet another false issue and must, accordingly, be dismissed.

44    Ground (v) asserts that the learned Federal Magistrate ought to have concluded that the Tribunal’s decision was irrational or illogical. That an administrative decision the making of which is dependent upon the existence or otherwise of a jurisdictional fact constituted by a state of satisfaction as to the existence or otherwise of a state of affairs or fact may be judicially reviewed on the ground of illogicality or irrationality must be accepted: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

45    On analysis, this ground of appeal, too, raises a false issue. It ignores that the following statement in the Tribunal’s reasons (at paragraph [66]), “The Tribunal has nonetheless considered for itself the concerns raised by the applicant as to his [sic] reasons for non-compliance with the provider’s attendance policies.” It likewise ignores that the Tribunal did consider whether the reasons proffered by Ms Chen for her course attendance record as certified by the University constituted “exceptional circumstances”. It is just that the Tribunal was not so satisfied after considering those reasons on their merits. There is nothing illogical or irrational about that.

46    True it is that (at paragraph [68]) the Tribunal, as was highlighted in Ms Chen’s submissions, did state that it did “not accept that the education provider failed to accurately record the applicant’s attendance when she was late”. The conclusion by the learned Federal Magistrate (at paragraph [74]) that, “[t]he Tribunal’s finding that Ms Chen’s education provider did accurately record her attendance was a finding of fact open to it on the evidence before it, including the information contained in the education provider’s policy and Ms Chen’s own evidence that she knew about the policy”, which Ms Chen seeks to impugn, was responsive to the attack on that finding of fact on the basis of illogicality or irrationality.

47    As to that attack, first, there was material before the Tribunal which logically and rationally admitted of findings that Ms Chen had not attended her course in accordance with the attendance requirements laid down in the University’s policy and that the University had recorded her absences in accordance with that policy. Further and more fundamentally, that finding of fact was but one of a number which the Tribunal made in the course of deciding that it was satisfied that no exceptional circumstances existed. It was that satisfaction which was the relevant jurisdictional fact. Other findings of fact which informed that state of satisfaction were that, accepting that the course attendance was as recorded, the reasons advanced by Ms Chen for her non-attendance did not, considered together, constitute “exceptional circumstances”. That was a conclusion that the Tribunal was entitled to reach on the material before it. In these circumstances, the jurisdictional error ground “illogicality or irrationality” could not be made out. Rather, as the learned Federal Magistrate aptly stated, by reference to an observation made by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40], “Ms Chen’s description of the Tribunal’s reasoning as being ‘illogical’ should be viewed as merely an emphatic way of expressing disagreement with it.”

48    Ground (v) in the notice of appeal was grounded in a narrow, piecemeal reading of the Tribunal’s reasons in violation of the admonishment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 not to engage in such an exercise in respect of the reasons of administrative decision-makers. I dismiss that ground.

49    Ground (vi) is a complaint that the court below ought to have concluded that the Tribunal had failed to consider all of the integers of Ms Chen’s claim. The learned Federal Magistrate found that the complaint failed on the facts because the Tribunal had, contrary to the argument made on her behalf, expressly considered a submission which she had made to the Tribunal which was, even though her attendance at the relevant course was less than 80%, her attendance at courses taken immediately before and after that course were greater than 80%. I agree. The Tribunal’s reasons disclose a detailed engagement both with the reasons why Ms Chen said her attendance at the relevant course was as recorded but also with her better attendances at other courses. It is just that, considering all of these reasons, the Tribunal in the end was not satisfied that there existed “exceptional circumstances”. This it was entitled to do on the merits. I dismiss ground (vi).

50    It follows that the appeal must be dismissed, with costs.

Associate:

Dated:    1 November 2013