Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION – appeal – visas – student visa – cancellation of visa – conditions on which visa granted – breach of conditions of visa – where visa must be cancelled if ‘prescribed circumstances’ exist – notice issued under Education Services for Overseas Students Act 2000 (Cth) – appellant in breach of conditions – breach reported to Department of Immigration and Multicultural and Indigenous Affairs – delegate of the Minister for Immigration and Multicultural and Indigenous Affairs found appellant in breach of Condition 8202(3)(a) which required appellant to attend 80 percent of contact hours at secondary school – appellant sought review in Migration Review Tribunal – Migration Review Tribunal disagreed with delegate’s decision but concluded that the appellant breached Condition 8202(3)(b) in that the appellant had not achieved an academic result ‘at least satisfactory’ – whether a letter from the appellant’s secondary school offering readmission to the appellant was certification that the appellant had achieved an academic result that was ‘at least satisfactory’ – whether delegate had erred by inquiring whether the appellant had made ‘satisfactory academic progress’ – interpretation – whether substantial compliance with Condition 8202 sufficient.

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 (30 August 2004)
Last Updated: 30 August 2004

FEDERAL COURT OF AUSTRALIA


Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238



MIGRATION – appeal – visas – student visa – cancellation of visa – conditions on which visa granted – breach of conditions of visa – where visa must be cancelled if ‘prescribed circumstances’ exist – notice issued under Education Services for Overseas Students Act 2000 (Cth) – appellant in breach of conditions – breach reported to Department of Immigration and Multicultural and Indigenous Affairs – delegate of the Minister for Immigration and Multicultural and Indigenous Affairs found appellant in breach of Condition 8202(3)(a) which required appellant to attend 80 percent of contact hours at secondary school – appellant sought review in Migration Review Tribunal – Migration Review Tribunal disagreed with delegate’s decision but concluded that the appellant breached Condition 8202(3)(b) in that the appellant had not achieved an academic result ‘at least satisfactory’ – whether a letter from the appellant’s secondary school offering readmission to the appellant was certification that the appellant had achieved an academic result that was ‘at least satisfactory’ – whether delegate had erred by inquiring whether the appellant had made ‘satisfactory academic progress’ – interpretation – whether substantial compliance with Condition 8202 sufficient.


Migration Act 1958 (Cth) ss 116, 137J, 137K
Education for Overseas Students Act 2000 (Cth) ss 19, 20

Migration Regulations 1994 (Cth) reg 2.43

Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 distinguished
Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 followed
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 followed
Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 cited
Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 cited
Ji v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 207 cited


ZENG XIA TIAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 56 of 2004



RYAN, JACOBSON and LANDER JJ
30 AUGUST 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 56 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: ZENG XIA TIAN
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: RYAN, JACOBSON and LANDER JJ
DATE OF ORDER: 30 AUGUST 2004
WHERE MADE: ADELAIDE


THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant to pay the respondent’s costs.













Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 56 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: ZENG XIA TIAN
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, JACOBSON and LANDER JJ
DATE: 30 AUGUST 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of a judge of this Court dismissing an application by the appellant for the issue of the constitutional writs in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 2 April 2003.

2 The appellant was born on 3 November 1983 and is a citizen of China where her parents live. The appellant first entered Australia on 17 May 2001 on a Student (Temporary) (Class TU) Visa, Subclass 560, which had been granted on 11 April 2001. The visa was current until 15 March 2002. She became a student at the Danebank Anglican School for Girls (Danebank) in Sydney.

3 The appellant next applied for a Subclass 571 visa which issued on 17 April 2002 and had effect, subject to cancellation, until 15 March 2003. A Subclass 571 visa is also a Student visa. Attached to that visa was Condition 8202.

4 At the time the visa issued on 17 April 2002, Condition 8202 was in the following form:

‘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 meed the requirements of subclauses (2) and (3).


(2) A holder meets the requirements of this subclause if:


(a) the holder is enrolled in a registered course; or


(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student – the holder is enrolled in a full-time course of study or training.


(3) A holder meets the requirements of this subclause if:


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


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


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


(b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory.


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


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


(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.’

5 Section 116 of the Migration Act 1958 (Cth) (the Act) obliges a visa holder to comply with all conditions attaching to that person’s visa. It relevantly provides:

‘116 (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:


...


(b) its holder has not complied with a condition of the visa; or


...


(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.’

6 Regulation 2.43(2) of the Migration Regulations 1994 (Cth) provides for the circumstances in which the Minister must cancel a visa under subsection 116(3) of the Act. It provides:

‘(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and
(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
(i) condition 8104 or 8105 (if the condition applies to the visa); or

(ii) condition 8202.’

7 It was the respondent’s contention that, if the Minister was satisfied that the appellant had not complied with Condition 8202, the Minister was obliged to cancel the appellant’s Student visa.

8 The Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) is a Commonwealth Act regulating education services for overseas students. It does so by providing a system of registration for approved providers who, when registered, become registered providers. It regulates the conduct of those registered providers. Part 3 of the ESOS Act provides for obligations with which a registered provider must comply. Section 19(2) of the ESOS Act provides:

‘(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.’
9 Danebank is a registered provider and, therefore, liable to action by the Minister if Danebank does not comply with s 19(2).

10 The powers given to the Minister include the power to impose sanctions or conditions on the registered provider: ss 83, 86 of the ESOS Act.

11 On 23 August 2002 the Department of Education, Science and Training (DEST) wrote to Danebank and all other education and training providers registered under the ESOS Act for overseas students reminding them of their obligations under s 19(2) of the ESOS Act and pointing out the consequences if those obligations were not complied with.

12 Section 20 of the ESOS Act provides:

’20 (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.

Unincorporated registered providers

(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.’
13 Section 137J of the Act provides:

‘137J (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.’

14 Section 137K applies if the non-citizen’s visa is cancelled by operation of s 137J. It provides a right to the non-citizen whose visa has been cancelled by operation of s 137J to obtain a revocation of that cancellation.

15 Clearly enough, the legislative scheme in this regard is that the ESOS Act and the Act operate together so that the Act gives effect to a failure of a non-citizen to comply with a notice under s 20 of the ESOS Act. The non-citizen’s visa is automatically cancelled unless the non-citizen takes either of the steps in s 137J(2).

16 On 2 September 2002 Danebank issued a notice, pursuant to s 20 of the ESOS Act, informing the appellant that she was in breach of a condition of her visa relating to attendance and academic performance. She was advised:

‘The 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.

Particulars of breach:

Student has not applied herself satisfactorily to course work. Frequent absences and latenesses [sic] have added to this. Despite warnings, the student has failed to meet course requirements.

Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter.’
17 Further information relating to reporting, not relevant to this appeal, was provided.

18 The notice was given pursuant to s 20 of the ESOS Act. A failure to comply with the notice has the consequence provided for in s 137J of the Act.

19 The opening paragraph of the notice refers to ‘satisfactory academic’ performance. They are the words used in s 20 of the ESOS Act. The notice is in accordance with the form approved by the Secretary: s 20(3) ESOS Act.

20 On 3 September 2002 the appellant sent a handwritten letter of apology to her teachers. The letter demonstrates that the appellant appreciated her predicament. She expressed regret for her breach of the school rules, her failure to do her schoolwork and the anxiety she had caused her teachers. She said she would reform and sought another chance.

21 On 5 September 2002 a delegate of the respondent Minister (the Minister) advised the appellant, in writing, that her visa may be cancelled: ‘POSSIBLE 8202 BREACH. Provider has advised student has failed to meet course requirements and has frequent absences’.

22 She was further advised that she would have the opportunity to respond to the notice issued under s 20 of the ESOS Act at an interview which was scheduled for 21 October 2002.

23 On 17 September 2002, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) wrote to the appellant’s school requesting further information:

‘Please advise the details of the following student. Please note that this information is required ASAP.

It would be appreciated if you would provide the following details:

1. attendance for each term or semester for the length of the current course as well as the total cumulative attendance,

2. whether or not the subject is making "satisfactory academic progress (i.e. will they complete the course within the normal timeframe?).

If this person is no longer enrolled with you, please advise the circumstances surrounding their departure.

Ms TIAN Zeng Xia Born: 03/11/1983

Attendance (please attach further papers if your college has a different term structure)

Year Term1 Term2 Term3 Term4 TOTAL
2000





2001





2002 92% 84% 55%
77%

The above does not include lateness. See Attendance record attached.


Ms TIAN Zeng Xia

Academic Performance

Please specify whether or not the student made academic progress for each term of their course by placing a "yes" or "no" in each box.

Year Term1 Term2 Term3 Term4
2000




2001


No
2002 Some No No



Please attach a copy of their academic transcript.’
24 The question raised in this inquiry was whether the appellant was making ‘satisfactory academic progress (i.e. will they complete the course within the normal time frame?)’.

25 Danebank responded to that inquiry by inserting the percentages for three terms in 2002 and the responses for four terms under "Academic Performance" which are reproduced at [23] above. It also made the following written report:

‘Report Re Sarah Zeng TIAN

1. Attendance
Sarah’s attendance has deteriorated over this year. Please see attached attendance reports (Attachments 1-3), which show a total attendance for the year of 77% i.e. of full day’s absences. Attendance for Term 3 was 55%. Partial absences, or latenesses [sic] have also been considerable but have not been calculated in the 77% figure.

2. Academic Progress
Sarah’s academic progress has also been poor. Absences have, no doubt, contributed to this. See attached latest report (attachment 4).

3. The school’s actions
The school has made many attempts to assist Sarah and encourage her to meet attendance and academic requirements. Letters have been sent to the guardian and to the parents, outlining the difficulties. (See attachments 5-9).

4. Current status
Immigration was contacted after the school received a circular from DEST which confirmed that, when a student was in breach of immigration requirements, we were obligated to follow procedures (see attachment 10). At the time, Sarah had been put on an attendance book whereby staff initialed [sic], indicating that she attended their lessons. We realised upon receipt of the circular from DEST that we could not give the student any more chances.
Sarah’s enrolment at the school was cancelled after the student claimed that immigration said that we should accept her back into school while awaiting her immigration appointment. This claim was checked and found to be untrue.’
26 Attachment 4 consisted of reports on the individual subjects being undertaken by the appellant. These reports contained an assessment of the appellant’s ability in each subject. The assessment was made by reference to ‘Experiencing Difficulty’, ‘Satisfactory’, ‘Proficient’ and ‘Outstanding’. She was mainly assessed as ‘Experiencing Difficulty’ in all facets of all subjects. Each subject had the subject teacher’s comments, all of which confirmed the fact that the appellant’s achievements were not satisfactory.

27 Attachments 5-9 referred to in paragraph numbered 3 of the school report consisted of a letter to the appellant’s guardian in Australia of 23 August 2002 in which the school wrote:

‘As a follow-up to the information regarding Sarah’s lateness and absences, set out in our letter of 19th August, I enclose a progress report on Sarah, compiled from her teachers’ comments.

You will see that Sarah is making little effort to complete the necessary school work and is not coping adequately with her work at the level required. Based on this report we believe there is little possibility of Sarah completing the Higher School Certificate successfully next year. Lack of progress in English is a large contributing factor as is her lack of commitment to attendance and study.’
28 The Progress Report (attachment 6) referred to in that letter was in the following form:

‘PROGRESS REPORT – SARAH TIAN

English
Sarah has attended most lessons, however, she hates learning English and avoids tasks constantly. She often does not hand in homework but has completed all assessment tasks very poorly. MK

Mathematics
Sarah’s attendance, especially returning to Beijing, has further put her behind but there is an ability. Her approach and lack of work is not allowing her to show the level to which she could aspire. WT

Physics
Frequently absent; shows no interest or understanding whatever. CL

Business Studies
Sarah has attended 50% of lessons this term, and has completed all assessment tasks. Due to her attendance it is difficult to comment on homework. MW

Design and Technology
Sarah does not appear very interested. She has recently not submitted an assessment task worth 15% and appears unconcerned about this. AS

Saturday School
Notice received from Saturday School of numerous absences which could jeopardise her place there. CS

Other
Sarah received two detentions last week: one for signing her guardian’s name on an absence note and the other for leaving school without permission.’
29 Attachment 7 was a further letter to the appellant’s guardian dated 19 August 2002 bringing to her attention the appellant’s poor attendance record and poor results.

30 Attachment 9 was a letter to the appellant’s father advising of the appellant’s difficulty with the English language.

31 The appellant attended the Department’s office for the purpose of an interview. At that interview she provided the Department with a letter from her school stating that the school would re-enrol her if the Department made a decision not to cancel her Student visa. She also provided a letter from her father.

32 On 7 November 2002 a delegate of the Minister published a decision cancelling the appellant’s Subclass 571 (Student) visa.

33 In that decision, under the heading ‘Part B--Record of Decision Whether to Cancel Visa’, the delegate of the Minister recorded the appellant’s reasons why the visa should not be cancelled.

‘She stated she came back from China and her mind was not so stable. In the past she attended the classes a lot. She stated if you cancel my visa it is too harsh. Her parents want her to stay in Australia to study. She stated she would like a second chance. She stated she goes to school everyday. She is sorry for her mistake. She stated she wants to go back to study Year 11.’
34 The delegate indicated that grounds existed for cancellation under s 116(1)(g), s 116(3) and regulation 2.43(2)(b). The reasons given were:

‘Danebank School advised that subject failed to apply herself satisfactorily to course work. She failed to meet course requirements. Her attendance for Term 3 2002 was 55%. They also advised she failed to achieve a satisfactory academic progress for Term 2 & 3, 2002.’
35 There is nothing on the papers before this Court to indicate whether anyone concluded or even considered whether the appellant’s visa was automatically cancelled pursuant to s 137J of the Act.

36 The delegate reached his decision upon the ground that the appellant had not attended at least 80 per cent of the contact hours required at the appellant’s school and, therefore, was in breach of Condition 8202(3)(a).

37 On the same day as her Student visa was cancelled, the appellant was granted a bridging visa to allow her to seek a review of the delegate’s decision.

38 On 14 November 2002 the appellant applied to the Tribunal for a review of the decision of the delegate.

39 In a letter of 17 December 2002 written by the Tribunal to the appellant the Tribunal stated, inter alia:

‘You are invited to comment, in writing, on the following information:

● Danebank certified that your attendance for Term 3, 2002 was 55%. Your overall attendance was 77%. Danebank has also certified that in Term 4, 2001, Term 2, 2002 and Term 3, 2002 you were not making satisfactory academic progress.

This information is relevant to the review because it may lead the Tribunal to find that you breached condition 8202 of your visa. Condition 8202 currently provides, and relevantly to your circumstances, that you achieve both an attendance rate of at least 80% and academic progress that is certified by the education provider to be at least satisfactory, for each term or semester of your course. If this information is found to be true, then your visa will remain cancelled, as it is a ground for mandatory cancellation.’
40 In its review the Tribunal disagreed with the delegate’s decision but separately concluded that the appellant had failed to comply with Condition 8202(3)(b) in that the appellant had not achieved an academic result ‘at least satisfactory’.

41 The Tribunal said:

‘Considering all of the available evidence, it is the Tribunal’s view that the review applicant has not achieved an academic result that is certified as satisfactory by Danebank Anglican School for Girls. While the school has indicated that they would consider readmitting the review applicant if her visa were not cancelled, this does not indicate that her performance to the point of the issue of the section 20 Notice was satisfactory for each term of her course of study. The advice from the provider indicates that her performance to that point was not satisfactory.’
42 The Tribunal concluded that, because there had been a breach of Condition 8202, the Minister was obliged to cancel the appellant’s Student visa, pursuant to s 116(3) of the Act.

43 On 2 April 2003 the Tribunal affirmed the decision to cancel the appellant’s Student (Temporary) (Class TU) Visa.

44 On 28 April 2003 the appellant brought proceedings in this Court seeking the issue of the constitutional writs, removing the decision of the Tribunal to this Court to be quashed, and an order directing the respondent to appoint a member of the Tribunal (other than the Tribunal member who dismissed the application for review) to rehear and redetermine the appellant’s application for a review of the delegate’s decision.

45 On 21 November 2003 the appellant filed amended grounds supporting the application for relief, the particulars of which were:

‘1. The Tribunal failed to apply the correct test. The Tribunal incorrectly applied the test in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 per Katz J. In determining substantial compliance, this included "matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition. These include the nature and significance of the breach, whether or not the applicant deliberately flouted the condition and, if the applicant failed to appreciate the breach of condition, what if anything had contributed to that failure, including whether the Department had misled the applicant."

"Katz J held that:

Whether a person can be regarded as having ‘substantially complied’ with a condition is not only a quantitative matter, or a question of proportionality, but also a qualitative matter which may concern factors such as bona fides of the Applicant, so that a person who has sought to comply with the condition but made an innocent error or was thwarted from complying with the condition through no fault of his or her own may be said to have ‘substantially complied’ with the condition as distinct from a person who knowingly disregards the condition." (CB 101)

"The delegate found that the review applicant had not complied with condition 8202 because her attendance was below 80% during a term of her enrolment and had not made satisfactory academic progress." (CB 124)

The Tribunal failed to apply the test as to whether, in the circumstances, the applicant’s academic performance along with other factors, could constitute substantial compliance.

In failing to apply the test in Baidakova, the Tribunal has made a jurisdictional error.’
46 The only ground relied upon before the primary judge related to the construction of s 116(3) of the Act and whether that subsection should be given a literal or purposive construction.

47 Later, however, the appellant filed written submissions in which the appellant contended that the Department had not asked Danebank the correct question. It was further argued that Danebank had not given a certificate that complied with Condition 8202(3)(b) because the Department asked the wrong question. Lastly, it was argued that Danebank’s letter offering to re-enrol the appellant in the next year amounted to a certificate that the appellant had achieved a result that was at least satisfactory.

48 The primary judge rejected the ground of appeal and the further contentions advanced by the appellant. On 12 March 2004 the primary judge dismissed the application.

49 All of the matters agitated before the primary judge were argued again on this appeal.

50 We shall deal with the last mentioned contention first.

51 The letter written to the appellant offering the appellant enrolment at Danebank in Year 11 in 2003 cannot be understood on any reading to be a certificate by Danebank that the appellant has achieved an academic result that is at least satisfactory. It does not purport to say so. It makes no mention of her academic result. It does not assess that result. It does not purport to be a certificate.

52 When read with all the other contemporaneous correspondence it cannot, on any understanding, be construed as a certificate by Danebank that the appellant has achieved an academic result that is at least satisfactory.

53 Next, we should consider the construction of s 116(3) and Condition 8202.

54 Condition 8202(3) requires the holder to meet the requirements of both subclauses (a) and (b). If the visa holder does not meet either of the requirements of that subclause then the holder will have breached Condition 8202. A breach of a condition may lead to cancellation of the visa: s 116(1) of the Act.

55 A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).

56 On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.

57 The appellant argued before the primary judge and on this appeal that, on the true construction of Condition 8202, the appellant only needed to substantially comply with the condition rather than to strictly comply with it. She argued that a decision of a single judge of this Court in Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 should be followed.

58 In that case, Madgwick J gave a purposive construction to Condition 8202. He construed the condition as being satisfied if there had been substantial compliance with the condition or where the circumstances were reasonably beyond the student’s control.

59 That case was decided before the enactment of the ESOS Act and was based upon a different statutory regime which no longer applies: Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460.

60 Conti J in Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 was not prepared as a matter of statutory interpretation to import a concept of substantial compliance into s 116(3) of the Act.

61 His Honour was of the opinion that the words were clear and the scheme of the subsection did not allow room for implication of a statutory alleviation or any other relaxation of the otherwise unqualified language of the subsection.

62 He said at [33]:

‘In the result, I am of the opinion that there is no legitimate room for an implication of the principle of statutory interpretation as to substantial compliance in relation to the operation of paragraph (b) of subs 116(1) of the Act. Moreover the scheme of subs 116(3) does not envisage or allow room for the implication of a statutory alleviation or relaxation of the otherwise unqualified language of paragraph (b). Since the enactment of Subdivision GB of Division 3 of Part 2, the subject of automatic cancellation of student visas has now been more comprehensively addressed, ... I am unable to distil any justifiable basis for the application of a purposive approach to the construction of paragraph (b) of subs 116(1), ...’
63 In Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495, Ryan J said at [13]:

‘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.’
64 That decision was followed by Cooper J in Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170. See also Ji v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 207.

65 Section 116(1) permits the Minister to cancel a visa for any of the reasons in that subsection. In exercising that discretion, the Minister would have regard to all of the surrounding circumstances to determine whether it is appropriate to cancel a visa for any of the reasons in that subsection.

66 Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.

67 In this case, there was no certificate which would comply with Condition 8202(3)(b). The appellant argued that the ‘fault’ for the absence of the condition lay with the Department which had asked Danebank the wrong question.

68 The Department asked Danebank a question slightly different to that posed in s 20 of the ESOS Act, whether the appellant was making ‘satisfactory academic progress’ which, in turn, it must be accepted, is different to the question whether the appellant had achieved an academic result that is at least satisfactory.

69 However, because the Department made a further inquiry into the application of s 20 of the ESOS Act the appellant was not thereby relieved of her responsibility to comply with Condition 8202. She could only comply with Condition 8202 by producing a certificate of the kind contemplated in Condition 8202(3)(b).

70 Insofar as the proceedings before the Minister were concerned, the appellant suffered no prejudice. The delegate decided the question upon a consideration of Condition 8202(3)(a) not (3)(b), so the question posed was irrelevant.

71 It was further argued that because the Minister posed the question in the letter of 17 September 2002 the appellant was somehow denied procedural fairness both before the Minister and the Tribunal. We have already observed that the failure to ask the right question by the Minister of Danebank did not prejudice the appellant before the Minister. However, the Tribunal relied upon the appellant’s failure to make out Condition 8202(3)(b) for concluding that the decision to cancel the visa should be affirmed.

72 The Tribunal did not ask itself the wrong question. It clearly recognised that the question before it was whether there was a certificate of the kind contemplated in Condition 8202(3)(b). It therefore reached the correct decision. In doing so, it did not deny the appellant procedural fairness because, on 17 December 2002, well before the Tribunal hearing, the Tribunal brought to the appellant’s attention:

‘Condition 8202 currently provides, and relevantly to your circumstances, that you achieve both an attendance rate of at least 80% and academic progress that is certified by the education provider to be at least satisfactory, for each term or semester of your course. If this information is found to be true, then your visa will remain cancelled, as it is a ground for mandatory cancellation.’
73 The appellant was on notice of the question that had to be addressed by the Tribunal. It was for her to provide the Tribunal with the certificate to comply with Condition 8202(3)(b). That she did not do, not because she was misled but, because it may be inferred such certificate could not be obtained.

74 The contemporaneous written documents establish that the appellant had not achieved a satisfactory academic record. In those circumstances, the certificate which was necessary for compliance with the condition could not be obtained.

75 The appeal should be dismissed with costs.




I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 30 August 2004



Counsel for the Appellant: V Wan



Counsel for the Respondent: M Roder



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 17 August 2004



Date of Judgment: 30 August 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia