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MIGRATION - Review of decision by Migration Review Tribunal - student visa - condition 8202 - non-compliance notice - section 20 Education Services for Overseas Students Act 2000 - automatic cancellation of visa.

Qi v Minister for Immigration [2004] FMCA 719 (5 November 2004)

Qi v Minister for Immigration [2004] FMCA 719 (5 November 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QI v MINISTER FOR IMMIGRATION
[2004] FMCA 719




MIGRATION - Review of decision by Migration Review Tribunal - student visa - condition 8202 - non-compliance notice - section 20 Education Services for Overseas Students Act 2000 - automatic cancellation of visa.




Judiciary Act 1903 (Cth), s.39B

Education Services for Overseas Students Act 2000 (Cth), s.20

Migration Act 1958 (Cth), ss.137J, 137K, 137L, 474

Migration Regulations 1994 (Cth), schedule 8

Ahmed v Minister for Immigration [2004] FMCA 127 (8 April 2004)

Craig v South Australia (1995) 184 CLR 163

Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 495 (22 May 2003)

Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (1 September 2000)

Zhou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1078 (20 August 2004)

Applicant:
WANG QI




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 1056 of 2003




Delivered on:


5 November 2004




Delivered at:


Melbourne




Hearing date:


13 September 2004




Judgment of:


Connolly FM




REPRESENTATION

Counsel for the Applicant:


Mr J. Belbruno




Solicitors for the Applicant:


Mr Joseph Belbruno, solicitor




Counsel for the Respondent:


Mr A. Palmer




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) THAT the application be dismissed.

(2) THAT the applicant pay the respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 1056 of 2004

WANG QI



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This judgment arises from an application filed by the applicant on

7 August 2003 seeking judicial review of the decision of the Migration Review Tribunal on 10 July 2003 to affirm the decision of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") to refuse to revoke the cancellation of the applicant's Student (Temporary) (Class TU) (sub-class 560) visa.

The history

2. The applicant is a male national of the People's Republic of China. He came to Australia on 22 April 2000 on a Student (Temporary) (Class TU) (sub-class 560) visa, granted on 10 April 2000 and valid until

15 March 2003. The applicant commenced studies at the Melbourne Institute of Business and Technology towards a Diploma of Commerce in October 2001 after completing his secondary schooling at Box Hill High School. All student visas are subject to condition 8202 (set out in Schedule 8 of the Migration Regulations 1994 (Cth)) which, summarily, requires that student visa holders be enrolled in an approved course of study, attend for at least 80% of contact hours scheduled for their course of study and achieve satisfactory results.

3. On 20 June 2002, the applicant received a "Non-Compliance Notice" pursuant to section 20 of the Education Services for Overseas Students Act 2000 (Cth). The notice stated that the applicant had not met the academic requirements of the enrolled course, thereby breaching condition 8202. The notice further required the applicant to attend DIMIA's office within 28 days. The applicant failed to attend DIMIA's office within the prescribed period; his visa was automatically cancelled pursuant to section 137J of the Migration Act 1958 (Cth) ("the Migration Act") on 19 July 2002.

4. In October 2002 the applicant wrote to DIMIA, providing an explanation for his failure to meet his academic requirements; the applicant claimed he had satisfied the attendance requirements but "had chosen a wrong major to study". The applicant also sought a revocation of the decision to cancel his visa pursuant to section 137K of the Migration Act. Summarily, section 137L(1) provides that the Minister may revoke an automatic cancellation effected under section 137J if the applicant satisfies the Minister of certain criteria. Sub-section (b) provides that the Minister may revoke the cancellation decision if the breach was due to exceptional circumstances beyond the applicant's control. In its decision of 8 November 2002, the delegate of DIMIA refused to revoke the cancellation of the applicant's visa, finding that the applicant had "not demonstrated grounds to allow the revocation". On 22 November 2002, the applicant filed an application for review of this decision by the Migration Review Tribunal ("the Tribunal").

5. In its decision on 10 July 2003, the Tribunal affirmed the decision not to revoke the cancellation of the visa. Summarily, the Tribunal found that:

(a) the applicant had breached condition 8202;

(b) the applicant had not demonstrated that there were exceptional circumstances beyond his control pursuant to section 137L(1)(b) which led to the cancellation of his visa; and

(c) there was no basis to revoke the cancellation decision.

6. On 7 August 2003, the applicant lodged an application in the Federal Court of Australia, being V 619 of 2003, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal's decision. The applicant claimed that the Tribunal had erred in affirming the decision not to revoke the cancellation of the visa. By order of Finkelstein J on 18 September 2003 and pursuant to section 32AB of the Federal Court of Australia Act 1976 (Cth), the matter was transferred to this Court, becoming MLG1056 of 2003.

7. On 23 October, the applicant filed an amended application that elaborated on the grounds on which the Tribunal had allegedly erred in making its decision. The applicant claimed that the Tribunal had erred in its interpretation of what constituted exceptional circumstances by:

(a) restricting the meaning of "exceptional circumstances" to circumstances connected with physical inability (such as illness or physical injury); and

(b) failing to consider the broader circumstances that related to the applicant's breach of condition 8202.

In the applicant's contentions of fact and law, filed 5 December 2003, the applicant further argued, inter alia, that the Tribunal "erred in interpreting and in applying the law in that it interpreted the relevant legislation as removing all discretion once it found that Condition 8202 had been breached". In addition, the applicant also argued generally that the Tribunal:

(a) had not given proper consideration to the merits of the applicant's case;

(b) had an obligation to make further enquiries;

(c) had not allowed the applicant to provide evidence on a critical issue in the case (or discouraged the applicant from proceeding with a particular line of evidence); and

(d) had failed to observe the procedural requirements under section 368 of the Migration Act.

8. In rebuttal, the respondent's contentions of fact and law were filed on 15 December 2003. In summary, the respondent argued that the Tribunal had not erred in law as:

(a) the Tribunal had correctly interpreted and applied the applicable law and had exercised its discretion;

(b) the Tribunal had satisfied the requirements of section 368 (and it was further argued would not constitute jurisdictional error if the section were not complied with in any event);

(c) there was no obligation on the Tribunal to make further enquiries;

(d) proper and realistic consideration as to the merits of the applicant's case was carried out by the Tribunal; and

(e) the applicant had attended the hearing and had given evidence via an interpreter.

The law

9. The part of condition 8202 applicable to the applicant which was in force during the relevant period, reads as follows:

(3) The condition is that:

(a) in the case of the holder of a Subclass 560 Visa who is an AusAID or secondary school exchange visa - the holder is enrolled in a full-time course of study; and

(b) in any other case - the holder is enrolled in a registered course; and

(c) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i) for a course that runs for less than a semester - for the course; or

(ii) for a course that runs for at least a semester - for each term and semester of the course; and

(d) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i) for a course that runs for less than a semester - for the course; or

(ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course.

10. The Education Services for Overseas Students Act, section 20, provides as follows:

Sending students notice of visa breaches

(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.

Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.

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

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

(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.

(4) The notice must:

(a) contain particulars of the breach; and

(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and

(c) state that the student must present photographic identification when so attending; and

(d) set out the effect of sections 137J and 137K of that Act.

11. Sections 137J to 137L inclusive of the Migration Act provide as follows:

Section 137J: Non-complying students may have their visas automatically cancelled

(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).

Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach.

(2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:

(a) the non-citizen complies with the notice; or

(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:

(i) in Australia; or

(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;

makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.

Section 137K: Applying for revocation of cancellation

(1) A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.

(2) A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.

(3) In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:

(a) 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

(b) if he or she informs an officer in writing within those 2 days of his or her intention to so apply--within the next 5 working days after those 2 working days.

(4) A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.

(5) In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.

Section 137L: Dealing with the application

(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or

(b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or

(c) of any other matter prescribed in the regulations.

(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.

(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.

12. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, a Tribunal decision would be reviewable if it was established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 ("Yusef") at 351.

13. An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).

Findings and conclusions

14. At the commencement of these proceedings, Counsel for the applicant indicated to the Court that the applicant was in effect abandoning all of his previous contentions and pursuing a new argument. He indicated that the Tribunal had committed jurisdictional error in that the notice sent to the applicant pursuant to section 20 of the Education Services for Overseas Students Act, was invalid in that it failed to give sufficient particulars of the applicant's breach and submitted that the invalidity of that notice is fatal to the automatic cancellation of the visa pursuant to section 137J of the Migration Act.

15. The applicant, in support of his application, relied upon three authorities: Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 495 (22 May 2003) ("Gerhard"); the Full Court of the Federal Court decision of Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (1 September 2000) ("Zhao"); and Ahmed v Minister for Immigration [2004] FMCA 127 (8 April 2004), a decision of Driver FM. In Gerhard, Ryan J held at [13]:

Accordingly, for the mandatory obligation to cancel the applicant's visa to arise, the Minister, or his Delegate (or the MRT standing in the shoes of the Minister) had to be satisfied that the applicant had not complied with condition 8202. The matters stipulated in condition 8202(2) and (3) are cumulative as are the twofold requirements imposed by condition 8202(3). In other words, for an applicant to comply with condition 8202(3), the Minister must be satisfied that the eighty percent threshold for attendance has been satisfied and the holder must have achieved an academic result that has been certified by the education provider to be at least satisfactory. The Minister can only be satisfied of non-compliance with the latter sub-condition if there is no acceptable evidence of certification by the education provider of at least satisfactory results. It is not open to the Minister to question, or go behind, such a certificate if one exists.

All three cases cited relate to whether or not the notice complied with section 119 of the Migration Act, not section 20 of the Education Services for Overseas Students Act.

16. In effect, section 20 requires the education provider to send a notice to the student and has to meet the requirements set out in subsection 4 and that indicates that the notice must contain particulars of the breach and that the student is required to attend a DIMIA office with a photographic identification within 28 days for the purposes of explaining the breach. What then happens depends on how the student responds to the initial section 20 notice.

17. Cooper J explained in Zhou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1078 (20 August 2004) at [33]-[36] the way in which the section 20 notice works:

33 The ESOS Act is not concerned with the cancellation of student visas. It is concerned with the regulation of the providers of education services to overseas students in Australia. This it does by the registration of providers of education services and the imposition of obligations on them. Those obligations include an obligation to give information about students accepted for courses by the registered provider, including information as to breach of a visa condition concerning attendance or academic performance, or early cessation of a course by an accepted student: see generally Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1058 at [21] - [26]; [29] - [30]. Section 20 of the ESOS Act operates to impose an obligation on the registered provider to give to a student a notice in the event of a breach of an attendance or academic performance condition of a student visa. The purpose of the notice is simply to initiate a process which will cause the student to attend upon a DIMIA officer for the purpose of explaining the breach of visa condition alleged in the notice, or to bring about the automatic cancellation of the visa in the event of non-compliance with the notice or non-attendance on the officer: s 137J(2) of the Act. The notice under s 20 of the ESOS Act has no other purpose and creates no rights or obligations in the student and is effective for the purposes of the Act even if it is not received by the student visa holder: s 137J(1).

34 Section 137J of the Act is part of subdivision GB of Div 3 of Pt 2, which is concerned with the automatic cancellation of student visas. The subdivision is completely self-contained and includes s 137J - s 137N inclusive. The subdivision has no relevant operation in respect of subdivision D of Div 3, which contains s 116 of the Act. Subdivision D is concerned with the cancellation of visas on the grounds specified in s 116 of the Act. Sub-section D has no relevant operation with respect to any of the matters provided for in subdivision GB.

35 The process for automatic cancellation of a student visa is initiated by the giving of a notice pursuant to s 20 of the ESOS Act: s 137J(1) of the Act. Subdivision GB cannot operate in the absence of the giving of a notice under s 20 of the ESOS Act.

36 If a notice is not complied with, the visa is automatically cancelled by force of s 137J(2) upon the expiration of the statutory time period provided for in the sub-section. In that event, the student has the right to seek revocation of the cancellation: s 137K. However, the grounds of revocation are limited to those specified in s 137L of the Act. So far as presently relevant, those grounds are:

(a) that the student did not, in fact, breach the relevant visa condition or conditions; or

(b) that the breach was due to exceptional circumstances beyond the student's control.

18. Cooper J then further explained at [39]-[45] the way in which the giving of a notice which complies with section 119 of the Migration Act is a statutory precondition to the exercise of the Minister's powers to cancel a visa for breach of condition. Indeed, it is that procedure that was the subject of the three authorities cited by the applicant.

19. The respondent submitted and I accept that both processes (that is, the one pursuant to section 116 by which the Minister decides whether or not to cancel a visa, and the one by which the Minister decides whether or not to revoke (section 137)) are based upon material provided by the education institution and the applicant; and it is the Minister's satisfaction about whether the cancellation should be revoked just as it is the Minister's satisfaction about whether or not the visa should be cancelled that is really the determining factor, not the notice.

20. What occurred in this case is that the applicant received the notice, failed to respond within the required time and the visa was automatically cancelled pursuant to section 137J of the Migration Act. The applicant sought revocation of the automatic cancellation of his visa and put before the Tribunal the material on which he intended to rely. The Tribunal decided on the material not to cancel the revocation.

21. In this instance, I am satisfied that the notice does comply with the requirements of section 20. The notice is set out in Court Book ("CB") 1:

This Notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 as you have breached a condition of your student visa relating to satisfactory academic performance in the course in which you have been enrolled at this institution.

There is no ambiguity there. It makes it clear that the applicant has breached the academic requirements, not the enrolment condition or the attendance condition. I agree with the respondent's contention that all that can possibly be required of a section 20 notice is to inform the student which of the three conditions they have breached. In this case, the notice clearly met that requirement.

22. I further agree with the respondent's submission that the whole process has been subsumed by the fact that additional information has been provided to the Minister and the Minister has actually been satisfied that a breach of the visa condition occurred. That process renders the section 20 notice irrelevant.

23. At CB 3, a letter written to the Minister on behalf of the applicant is reproduced and it makes no complaint about the lack of clarity in the particulars provided in the section 20 notice. It doesn't say "what are you saying has been breached?" It just says the applicant is applying "for revocation of cancellation" of his student visa. Further, at CB 5 in a supporting letter from the applicant, he says: "My name is Wang Qi. I was a student of MIBT, but MIBT has decided to cancelled [sic] my enrolment, because of my failing of all subjects for the last semesters [sic]." The matters that he seeks to be taken into account in his application for cancellation of the revocation are also explained in the letter when he says: "I have kept class attendance of above 80%. It indicates... my attitude towards study is positive. But I reckon I have chosen a wrong major to study. Commerce is very (difficult)... I made a wrong decision ... eventually failed again."

24. I am satisfied that the section 20 notice is a valid notice and fails to give rise to jurisdictional error. Indeed even if it were invalid, I accept the respondent's submission that it would mean the visa had not been cancelled and the appropriate remedy would be a declaration. In all the circumstances I am satisfied that the application ought to be dismissed with costs and I order accordingly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate: J. O'Brien

Date: 5 November 2004
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