FEDERAL COURT OF AUSTRALIA Ariyagama v Minister for Immigration & Multicultural Affairs [2001] FCA 1407 IMMIGRATION - Visas - Student visa - Cancellation of visa for non-compliance with prescribed condition - Prescribed condition requiring visa holder to be enrolled in a registered course and attend at least 80% of classes and tutorials scheduled for the course - Whether compliance to be assessed at time of initial cancellation or of decision by Migration Review Tribunal - When 80% threshold can no longer be attained - Whether achievement of an academic result certified to be satisfactory is complete alternative to attainment of 80% threshold - Visa holder ceasing to be enrolled in course - Whether independent ground for cancellation - Obligation of Tribunal to give applicant particulars of information that would be the reason or part of the reason for affirming cancellation - Whether information as to non-enrolment had been given by visa holder for the purpose of the application - Whether no evidence of non-enrolment Migration Act 1958 s 116, 359A, 476 Migration Regulations 1994 Reg.2.43(2), Schedule S8 condition 8292 Federal Court Rules O 20 r 2. Manh Chien Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 (unreported 6 November 2000) - distinguished ASITHA JANANDHAYA ARIYAGAMA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V977 of 2000 RYAN J MELBOURNE 5 OCTOBER 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V977 of 2000 BETWEEN: ASITHA JANANDHAYA ARIYAGAMA Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: RYAN J DATE OF ORDER: 5 OCTOBER 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondent's motion on notice dated 30 January 2001 be allowed. 2. The application be dismissed. 3. The applicant pay the respondent's costs of the application, including the costs of and incidental to the said motion on notice dated 30 January 2001, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V977 of 2000 BETWEEN: ASITHA JANANDHAYA ARIYAGAMA Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: RYAN J DATE: 5 OCTOBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision of the Migration Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent Minister to cancel the applicant's Student (Temporary)(Class TU) visa, sub-class 560. The applicant, a 25 year old citizen of Sri Lanka, was issued with the visa on 21 March 2000, to study for a Diploma in Computer Systems at Swinburne University of Technology (TAFE Division) ("Swinburne"). The visa was due to expire on 15 March 2001. The decision to cancel the visa was made on 7 August 2000. The following statement of facts is taken from the reasons of the Tribunal: "10. The visa applicant was interviewed by the Department on 7 August 2000. He is recorded as not stating in Part B of Form 1099 any reasons why grounds for cancellation do not exist (D1 f 12). He had been enrolled in the Diploma of Computer Systems at Swinburne University of Technology (T1 f 30). The primary decision maker stated that advice had been received from Swinburne University of Technology that the visa applicant had discontinued his studies (T1 f 12). The Tribunal requested Swinburne University of Technology to clarify this matter. In a response to the request for further information Swinburne University of Technology in its letter dated 11 September 2000 advised that since his first enrolment in Semester 1, 1999, the visa applicant had only sporadically attended classes and achieved generally poor results. The advice also states that the student was withdrawn from his studies on 14 April 2000 and was not currently enrolled, and concludes that despite warnings regarding his attendance he had not attended any classes in Semester 1, 2000, and failed to respond to any attempts to contact him (T1 f 30). ..... 12. At the hearing the visa applicant said that he enrolled at Swinburne University of Technology, attended classes and took two subjects instead of four as he was exempted from the other two because he had already been given credit for them. He said the first half of the year was divided into two terms, the first from February to May 2000, the second from May to end-June. He said the usual student fee for each term is $2,000, but he was required to pay only half of that amount because he was taking only half the usual subject load. He said he paid the fee late. It was due in February 2000 and he paid in March and for this reason he says his results were withheld. On 10 March 2000 he paid the requisite $1,000. The visa applicant provided evidence of a receipt from Swinburne University of Technology for $1,000 dated 10 March 2000, confirmation of enrolment for the course commencing on 1 February 1999 and due for completion on 31 December 2000, and a letter dated 10 March 2000 certifying that he is currently studying at Swinburne University of Technology on a full time basis. He said he did not pay the fee for the second term and therefore stopped going to classes. In June 2000 he attempted unsuccessfully to enrol at Chalmers Institute. 13. The visa applicant requested the Tribunal to contact his lecturers to confirm his results for first term 2000 at Swinburne University of Technology. This was done at the hearing in the presence of the visa applicant. The first telephone number provided by the visa applicant was not related to Swinburne University of Technology and the second was for a person who said he had left the staff of Swinburne University of Technology in June and had no records or recollection of the visa applicant." 2 Section 116 of the Migration Act 1958 ("the Act") provides, so far as is relevant: "(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) any circumstances which permitted the grant of the visa no longer exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or (e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or (fa) in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student; or (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or (g) a prescribed ground for cancelling a visa applies to the holder. ..... (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." 3 As contemplated by s 116(3) circumstances have been prescribed by Reg.2.43(2) of the Migration Regulations 1994 ("the Regulations") in which a visa must be cancelled, including: "(b) in the case of a Student (Temporary) (Class TU) visa - that the Minister is satisfied that the visa holder has not complied with condition 8202." 4 Condition 8202 is to be found in Schedule S8 to the Regulations and is in these terms: "The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." 5 The conclusions reached by the Tribunal were as follows: "17. The visa applicant said he did not pay the fee for the second term (May to June 2000) and therefore stopped going to classes. This is corroborated by the Swinburne University of Technology letter dated 11 September 2000 which was written in reference to his withdrawing from the course in April 2000. On the evidence provided the Tribunal finds that the visa applicant is not enrolled in a registered course and was not enrolled in a registered course at the time of cancellation of his visa. 18. The visa applicant said he had stopped attending classes and that he had attempted to enrol at Chalmers but was not, in fact, a student there. The letter from Swinburne University of Technology dated 11 September 2000 states that the visa applicant has not attended any classes in Semester 1, 2000, which is the period during which the visa for the application under review was issued. The Tribunal finds that the visa applicant has failed to attend at least 80% of the classes and tutorials scheduled for the course. 19. The Tribunal finds that the visa applicant does not satisfy regulation 8202(a) or 8202(b) and therefore is in breach of Section 116(3) of the Act. The exercise of discretion set out in Section 116(1)(b) of the Act does not apply. 20. For these reasons the Tribunal concludes that the grounds exist for the cancellation of the visa and the circumstances are those in which the exercise of discretion not to cancel the visa does not apply." 6 On 19 December 2000 the applicant sought a review of the Tribunal's decision on the following grounds: "1. Procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed within s 476(1)(a) of the Migration Act. 2. The person who purported to make the decision did not have jurisdiction to make the decision within s 476(1)(b) of the Migration Act. 3. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the decision-maker within s 476(1)(e) of the Migration Act. 4. There was no evidence or other material to justify the making of the decision within s 476(1)(g) and s 4764(b) of the Migration Act." 7 The respondent has moved on notice for an order pursuant to O 20 r 2 of the Rules of this Court that the application be dismissed as disclosing no reasonable cause of action or as having no prospect of success and so being frivolous or vexatious or an abuse of the process of the Court. It has been contended on behalf of the respondent that the applicant did not dispute that he had failed to attend 80% of the classes and tutorials for his course and so could not impugn the finding at par 18 of the Tribunal's reasons which is set out at [5] above. It was further argued on behalf of the respondent that any order by this Court remitting the matter to the Tribunal would be futile because it was incontrovertible that the applicant had failed to attend at least 80% of the classes and tutorials scheduled for his course and, moreover, had ceased to be enrolled in a registered course, thereby failing to satisfy condition 8202(a). 8 Mr Fairfield of Counsel for the applicant, in resisting the respondent's motion, contended that the Tribunal had arguably failed to adopt proper procedures required by the Act. He pointed, in particular, to s 359A of the Act which provides: "(1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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 (c) invite the applicant to comment on it. (2) Subject to subsection (3), the invitation must be given to the applicant by one of the methods specified in section 379A. (3) Subsection (2) does not apply if the applicant is in immigration detention because of: (a) a decision to refuse to grant him or her a bridging visa; or (b) a decision to cancel his or her bridging visa. (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; or (c) that is non-disclosable information." 9 The letter to the applicant by which the Tribunal purported to fulfil the requirements imposed by s 359A was dated 19 September 2000 and was in these terms: "I am writing about your application for review by the Migration Review Tribunal of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to cancel your Student Visa Sub-class 560. The Member of the Tribunal to whom this case has been constituted has asked that you be advised of the following information. Section 359A of the Act requires that you be advised of information that would be the reason or part of the reason for affirming the decision under review -that is, which would cause your review application to be unsuccessful -and that you be given an opportunity to comment on that formation. Particulars of the information and the reasons that the information is relevant to the review are as follows: (i) Letter from Swinburne University of Technology dated 11 September 2000 (copy attached). (ii) Undated DIMA File Note. Relevance to affirming decision under review: That the Review Applicant has breached Condition 8202 of the Student Visa in that you have not attended 80% of classes. If you wish to comment on this information before the Tribunal makes its decision, your response, in writing, should be received by the Tribunal within 28 days of receiving this letter. According to migration law, you are deemed to have received this letter 7 days after the date shown on it. Accordingly, you need to reply by Tuesday 24 October 2000." 10 The attached letter from Swinburne University of Technology recited: "Further to your fax of 28 August 2000, this is to confirm that the abovenamed student was withdrawn from studies in our Diploma in Computer Systems programme on 14 April 2000 and is not currently enrolled at this university . Since his first enrolment in semester 1 1999, Mr Ariyagama had only sporadically attended classes and had achieved generally poor results. Despite warnings regarding his attendance, he had not attended any classes in semester 1 2000 and failed to respond to our attempts to contact him." 11 Mr Fairfield submitted that, by identifying the relevance of the Swinburne letter as being "that the Review Applicant has breached condition 8202 of the student Visa in that you have not attended 80% of the classes", the Tribunal failed to alert the applicant to the possibility of its relying alternatively on the fact that he was no longer enrolled in a registered course. 12 Mr Fairfield next contended that the Tribunal had misinterpreted or erroneously applied condition 8202(b) when it found that the applicant had failed to attend 80% of the classes and tutorials scheduled for his course. Reliance was placed on the judgment of Katz J in Manh Chien Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 (unreported 6 November 2000) ("Nong"). At par 31 of his reasons in that case, Katz J observed: "The MRT was not concerned, in making its decision, with the issue whether Mr Nong was or was not in compliance with condition 8202 on 6 January 2000, the date of its own decision. Rather, it was concerned with the issue whether Mr Nong had or had not been in compliance with condition 8202 on 30 March 1999, the date of the delegate's decision: see, for example, the discussion of the nature of the review function of the MRT's predecessor in Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 (Weinberg J) at 524-26, [61]-[63]." 13 It is not clear to me whether the Tribunal in the present case, assessed the applicant's attainment of the 80% threshold at the date of its own decision (15 November 2000) or at the date on which the applicant's visa was cancelled (7 August 2000). However, I do not consider that anything turns on that matter because, on no view of the available evidence, could the applicant have been regarded on 7 August 2000 as capable of attaining that threshold of 80% attendance. 14 In Nong, Katz J adopted a construction of condition 8202(b) which precluded cancellation of a student's visa for attendance at less than 80% of the classes and tutorials so far conducted at the time when cancellation was considered. His Honour said: "..... I am myself comfortably satisfied that the MRT was itself satisfied that, on 30 March 1999, Mr Nong had not been in compliance with the requirement that he "attend at least 80% of the classes and tutorials scheduled for the course" (see par (b) of condition 8202). Again, at the hearing before me, the Minister accepted that that was a correct analysis of the MRT's statement of findings and reasons. On what basis was the MRT so satisfied? The answer can only be that the MRT construed the requirement to "attend at least 80% of the classes and tutorials scheduled for the course" as a requirement that, at any point in time during the currency of one's course, the student must have attended at least eighty percent of the classes and tutorials thus far held in it. Yet again, at the hearing before me, the Minister accepted that that was a correct analysis of the MRT's statement of findings and reasons. The question which I raised with the parties during the hearing before me as to the manner in which the MRT had dealt with the issue whether Mr Nong had been in non-compliance with condition 8202 on 30 March 1999, the date of the delegate's decision, was whether the construction of par (b) of condition 8202 on which the MRT had obviously proceeded had been correct. The first thing to be said in that respect is that a construction of par (b) of condition 8202 which contemplates an examination of the student's attendance in the registered course in which he or she is enrolled only when that course has concluded appears to me to give effect to the ordinary meaning of the words of the paragraph, particularly to the requirement that a student attend a certain percentage of the classes and tutorials scheduled "for the course". (One may contrast in that respect condition 8105, which, by its language, requires a week by week examination of the student's conduct so far as engaging in work is concerned.) The next thing to be said in that respect is that the giving to par (b) of condition 8202 of a construction which accords with what I consider to be its ordinary meaning appears to me to be supported by par (c) of condition 8202. Satisfaction by a student of par (c) of condition 8202 is plainly intended as an alternative to satisfaction by the student of par (b) of condition 8202. Paragraph (c) of condition 8202 is satisfied if the student has achieved an academic result "for the course" which is at least satisfactory. As the achievement of such an academic result for the course usually will not be known until the course has concluded, it will not be available to the student in the usual case as an alternative to the attending of at least 80% of the classes and tutorials scheduled for the course unless such attendance is also not considered until the course has concluded. To the possible construction of par (b) of condition 8202 to which I have referred above, the Minister has put a number of matters in opposition. Before, however, turning to those, I mention that one matter which the Minister did not put in opposition to that construction was that the ordinary meaning of the words of par (b) of condition 8202 was different from that to which I have referred above. Instead, the Minister relied primarily on a submission that if par (b) of condition 8202 were to be given the construction to which I have referred above, that would deprive par (b) of condition 8202 of all utility, since non-compliance with it could not found the cancellation of a student visa during a student's course. The Minister also submitted that par (c) of condition 8202 should not be used for the purpose of construing par (b) of condition 8202 in the manner to which I have referred above, again since that would deprive par (b) of condition 8202 of all utility. Instead, par (b) of condition 8202 should be interpreted as the MRT had plainly done in the present case, that is, as a requirement that, at any point in time during the currency of one's course, the student must have attended at least eighty percent of the classes and tutorials thus far held in it. I agree that, if the construction of par (b) of condition 8202 which I favour would deprive it of all utility, that would obviously be an almost insuperable obstacle to my construing it in accordance with its ordinary meaning. However, I do not accept that the construction of par (b) of condition 8202 which I favour would deprive it of all utility. Even if non-compliance with it would not found the cancellation of a student visa during a student's course, non-compliance with it could nevertheless provide a justification for refusing to grant to the visa holder any subsequent student visa for which the holder applied: see cl 560.213 of Sch 2 to the Regulations. I add that I find nothing startling in the notion that non-compliance with par (b) of condition 8202 will not found the cancellation of a student visa during a student's course, since it appears to me that non-compliance with par (c) of condition 8202 will not do so in the usual case either. (On the other hand, non-compliance with pars (a) and (d) of condition 8202 will found the cancellation of a student visa during a student's course, thus ensuring that par 2.43(2)(b) of the Regulations has some work to do)." 15 I entertain some doubt whether, as his Honour suggested in par 39 of the passage just quoted, "satisfaction by a student of par (c) of condition 8202 is plainly intended as an alternative to satisfaction by the student of par (b)." Paragraph (c) depends upon the condition "if attendance cannot be evidenced" which is clearly a reference to the mode of evidencing attendance stipulated in par (b), for instance "by records of attendance of the education provider or otherwise". In other words, if a student were shown by a comprehensive attendance roll to have attended none, or hardly any, of the classes and tutorials scheduled for the course, that student's visa would be liable to cancellation notwithstanding that he or she had achieved an academic result for the course that is certified by the education provider to be satisfactory. 16 Subject to that qualification, I adopt with respect Katz J's interpretation of condition 8202 as precluding cancellation as long as it remains possible for the student to attain the 80% threshold of attendance at classes and tutorials for the course considered as a whole. Katz J in an obiter dictum in Nong was inclined to doubt whether cancellation of a visa for non-compliance with condition 8202(b) could occur before the end of the registered course, even after attainment of the 80% threshold had become demonstrably impossible. His Honour said, at par 47: "Given that construing par (b) of condition 8202 in the manner alternatively contended for by the Minister would have no impact on the outcome of the present case, I do not consider it appropriate to express a concluded view on that alternative construction. However, I should point out that I do see a difficulty with it, because it would have the effect of denying to a student in the usual case the alternative means of satisfaction of condition 8202 which is prima facie made available to the student by par (c) thereof." However, for the reasons just explained, I do not regard par (c) as affording a full or true alternative to satisfaction of par (b). 17 In the present case the evidence before the Tribunal was that the applicant had withdrawn from the course on 14 April 2000, and had not attended any classes in the first semester of 2000. The applicant first enrolled for the Diploma of Computer Systems on 1 February 1999 (although the evidence as to his commencement date is conflicting) and was said to have "only sporadically attended classes" since his enrolment. In any event, even if the applicant could be shown to have attended 100% of classes in 1999, he would need to have attended 60%of classes in 2000 in order for him to have attended the minimum of 80% of classes over the entirety of the course. Given the evidence from Swinburne that by the time of either the delegate's decision or the Tribunal's decision the applicant had not attended any classes in 2000, he could not be said to satisfy the 80% attendance requirement in condition 8202(b). Therefore, it is irrelevant whether the Tribunal determined that the applicant had not satisfied 8202(b) before the date on which he would have completed the course as, on either construction, the applicant could no longer have satisfied the criterion from, at the latest, 14 August 2000 when he ceased to be enrolled in the course. For this reason the facts of the present case are distinguishable from those in Nong . 18 Nevertheless, the applicant argued that the Tribunal failed to follow proper procedures as required by s 359A of the Migration Act, which constitutes a ground of review under s 476(1)(a). The applicant contended that the letter sent by the Tribunal to the applicant did not indicate that the Tribunal was considering whether or not the applicant was enrolled at the time, but only that it was considering whether the applicant had attended at least 80% of classes. In that respect, the latter was said to contravene s 359A of the Act. However, it was pointed out on behalf of the respondent that s 359A(4)(b) provides that the section does not apply to information "that the applicant gave for the purpose of the application". In this context, Counsel for the respondent relied on the statement by the applicant in his application to the Tribunal that; "I did attend Swinburne TAFE this year but the school did not allow me to do exams because the fees were paid late. So I had to leave Swinburne …" That was said to be an acknowledgment by the applicant that he was no longer enrolled in the course, and so s 359A had no application because the information in question had been given by the applicant himself. The applicant contended that the "application" referred to in s 359A(4)(b) is the initial application to the delegate of the Minister, and that the critical information in this case was provided by the applicant after the decision had been made to cancel his visa. In any event, it was submitted the information was not actually to the effect that he was no longer enrolled at Swinburne, but rather that he had to leave. That distinction, I think, is semantic rather than real. Nor do I consider that s 359A(4)(b) should be confined to information supplied by an applicant before the making of the delegate's decision. There is nothing in its language to indicate that it should not comprehend information given for the purpose of the application at any time up to the making of a decision on review by the Tribunal. In any event, there was evidence before the delegate that the applicant was not currently enrolled in any course, as the delegate's notes of her interview with the applicant on 7 August 2000, the day on which the decision was made to cancel his visa, recorded that the applicant had stated he had "[n]o current enrolment". For these reasons, I have been unable to discern any non-observance within the meaning of s 476(1)(a) of a procedure required by s 359A to be observed in connection with the making of the Tribunal's decision. 19 The applicant further contended that there was no evidence before the Tribunal that, at the time of the delegate's decision to cancel the applicant's visa, the applicant was not enrolled in the course at Swinburne. Instead, it was argued, the Tribunal relied on the applicant's non-attendance as evidence of non-enrolment. In those circumstances, the argument proceeded, the Tribunal was required to examine the rules and regulations of Swinburne to determine for itself whether the applicant was enrolled. The letter from Swinburne of 11 September 2000 noting that the applicant was not enrolled had been written after the delegate's decision to cancel the visa. However, the Tribunal is entitled to take into account any evidence before it at the time it makes its decision, and, in any case, the applicant's own evidence both before the delegate and the Tribunal was sufficient to establish that he was no longer enrolled in the course at Swinburne. Therefore, there was sufficient evidence before the Tribunal to support the finding which it made. Accordingly, s 476(1)(g) of the Act cannot avail the applicant as it cannot be shown, as required by s 476(4)(a), that the fact of his non-enrolment did not exist. 20 As the evidence demonstrated that the applicant did not satisfy the criteria in condition 8202, the Tribunal had no discretion under s 116 of the Act, as Reg 2.43(2) of the Regulations stipulated that a Student (Temporary) (Class TU) visa, sub-class 560 must be cancelled if the holder has not complied with condition 8202. Therefore, the Tribunal was bound, once it found that the applicant was no longer enrolled in a registered course or had not attended at least 80% of the classes and tutorials scheduled for the course, to affirm the decision to cancel the visa. Accordingly, the applicant can point to no error of law by the Tribunal. 21 It follows, as the applicant's proceeding discloses no reasonable cause of action and has no reasonable prosect of success, that the motion by the respondent Minister must be allowed. The applicant's application for review of the Tribunal's decision will be dismissed with costs. I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 5 October 2001 Counsel for the Applicant: Mr C Fairfield Solicitor for the Applicant: G E Dorevitch Counsel for the Respondent: Mr Craig Rawson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2001 Date of Judgment: 5 October 2001