FEDERAL COURT OF AUSTRALIA Shrestha v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1607 MIGRATION – student visa – whether Migration Review Tribunal made a jurisdictional or other error by cancelling the applicant's visa for failure to comply with the 80% class attendance requirement in condition 8202 of the Migration Regulations 1994 (Cth) – Tribunal found applicant did not comply with condition 8202 by looking at only a proportion of the course – whether could be inferred from the evidence that Tribunal found that the applicant's enrolment had been terminated early – condition 8202 will not be satisfied where the applicant's attendance for a proportion of the course means 80% attendance overall cannot be attained. Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 474 Migration Regulations 1994 (Cth) Sch 8 condition 8202 Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257, [2000] FCA 1575 followed Zou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1126 followed RADHAB SHRESTHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 849 OF 2002 HILL J 20 DECEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 849 OF 2002 BETWEEN: RADHAB SHRESTHA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE OF ORDER: 20 DECEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed. 2. the applicant 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 NEW SOUTH WALES DISTRICT REGISTRY N 849 OF 2002 BETWEEN: RADHAB SHRESTHA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE: 20 DECEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT HILL J: 1 The applicant seeks judicial review pursuant to the provisions of s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") made applicable to decisions of the Migration Review Tribunal ("the Tribunal") by virtue of the provisions of s 474 of the Migration Act 1958 (Cth) ('the Act"). The Tribunal's decision is a "privative clause decision" as defined in s 474(1) with the consequence that the applicant must show not only that there are grounds for the Court to grant the prerogative relief referred to in s 39B of the Judiciary Act but also that, notwithstanding the provisions of s 474(1) of the Act, the Court has jurisdiction to grant that relief. The Background Facts and Previous Proceedings 2 The applicant is a citizen of Nepal who first entered Australia as a student on a Student (Temporary) (Class TU), subclass 560 visa granted to him on 28 May 1997 and which expired on 9 July 1999 upon the grant to him of a further subclass 560 visa while he was in Australia. That further visa was due to expire on 2 September 2000. The visa was subject to condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) ("Migration Regulations") which at the relevant time provided as follows: "8202 – 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." 3 The initial visa granted to the applicant was based upon his enrolment in a Diploma in Information Technology course at the Kent Institute of Business and Technology. That course commenced on 23 June 1997 and ended on 21 June 1999. 4 The applicant was unable to complete all the subjects for the diploma and was required to re-enrol in the course on 8 July 1999 but with advanced standing. His re-enrolment was for the course which commenced on 2 August 1999 and was scheduled to be completed on 2 August 2000. The second student visa issued to him was issued for the purpose of enabling him to pursue his re-enrolment. 5 On 10 December 1999 the Kent Institute notified the Immigration Department that the applicant had failed to meet course requirements and complete the course in which he had re-enrolled. On 7 January 2000 the applicant was sent, by the Department for Immigration and Multicultural and Indigenous Affairs, a notice advising him that it intended to cancel his visa, pursuant to s 116(1)(a) and (b) of the Act and asking him to provide written comments by 21 January 2000. 6 A migration agent replied on behalf of the applicant on 20 January 2000, claiming that the applicant's study had been affected by the sudden death of his father on 3 August 1999, and that the applicant was, in consequence, upset, could not eat properly and had insufficient sleep. In support of the claim a medical certificate was provided. The applicant's agent also submitted a letter from the Kent Institute which showed that he had attended classes at the rate of 82% for the period 23 June 1997 to 21 June 1999 and that he had successfully completed various courses as shown in a student results report also issued by the Kent Institute. 7 Notwithstanding the submissions, a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") proceeded to cancel the visa, purporting to act under s 116(1)(b) of the Act on the basis that the applicant had breached condition 8202. 8 The applicant appealed from the decision to the Tribunal which requested further information from the Kent Institute. In a letter dated 29 March 2000 the Institute stated that the applicant's attendance from 2 August 1999 to 10 December 1999 was 9.5%. The Tribunal also obtained further medical evidence about the applicant's medical condition. 9 Following a hearing the Tribunal affirmed the delegate's decision to cancel the visa on the basis that he had failed to meet the course requirements. The applicant applied to this Court for judicial review under the then provisions of the Act. The application came before Madgwick J who found that the Tribunal had erred in law in not considering whether the breach of condition 8202 was due to circumstances reasonably beyond the applicant's control. Notwithstanding that s 116(3) of the Act, when read together with Regulation 2.43(2)(b) of the Migration Regulations, suggested that breach of condition 8202 must lead without more to cancellation of a visa. His Honour was of the view that these provisions read in the light of the overall purposes of the Act and in particular s 116(1)(fa) had the consequence that mandatory cancellation was only a consequence where the visa holder was found not to be a genuine student. Where the applicant was a genuine student, the Minister, or on review, the Tribunal, had a discretion so that in deciding whether the visa holder had complied with condition 8202, the decision maker could consider whether any breach was due to misadventure or circumstances beyond the control of the former visa holder. 10 The Minister appealed to the full Court of this Court. 11 At the hearing however, Counsel for the applicant (the respondent in the appeal) indicated that he wished to file and press a notice of contention to the effect that the Tribunal had erred in that at the time the visa was cancelled the course for which the applicant was enrolled had not concluded, so that the Minister or Delegate could not have been able to determine at that time prior to completion of the course whether the applicant had or had not attended 80% of the classes for the overall course. For that contention Counsel for the applicant relied upon the decision of Katz J in Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257, [2000] FCA 1575. 12 Counsel for the Minister indicated that on the appeal the Minister wished to rely not only upon arguments that Madgwick J had misconstrued the legislation or that if he had not the requisite finding of fact which Madgwick J suggested had not been made, had in fact been made, but also that the applicant's enrolment in the course had been cancelled. Subsequent to that cancellation it seems that the applicant had commenced another course at a university which he was due to complete by the end of the academic year 2002. 13 It became obvious that these matters could not be dealt with on the appeal and that the appropriate course was that the appeal be allowed and the matter remitted to the Tribunal to decide afresh the application for review of the cancellation decision of 14 February 2000. Agreement was reached between the parties that orders to this effect be made and those orders were in fact made on 7 August 2001. In the consent, orders which were tended before me, the parties agreed that upon the matter being remitted to the Tribunal it would not be bound by the reasoning of Justice Madgwick in relation to the construction and or validity of condition 8202. Further the Minister agreed to supply to the Tribunal on remitter a transcript of the proceedings before the full Court. A copy of that transcript was likewise tended before me. The matter then came again before the Tribunal on 27 June 2002. At this re-hearing the Tribunal had no guidance from the full Court on the issue whether Justice Madgwick was correct on the question of interpretation. 14 At least potentially at the re-hearing two other issues had been foreshadowed in the transcript. The first was the question whether the circumstances of the case were such as to require the conclusion based upon the decision in Nong that the Minister was not authorised to cancel the visa on the grounds of non-compliance with condition 8202(b) ie the 80% attendance requirement but also, as contended by the Minister, that the visa could in any event be cancelled for non-compliance with condition 8202(a) that is to say, enrolment in the course on the grounds that that enrolment had been cancelled. 15 I say "potentially" in relation to these arguments because it is not clear from the Tribunal's reasons whether both these arguments were put to the Tribunal or whether the matters actually argued and dealt with by the Tribunal were confined firstly to the questions which had been raised by the decision of Justice Madgwick and secondly only to the question raised in Nong. The Tribunal's Reasons 16 After dealing with some of the background to the proceedings remitted to it, the Tribunal noted that it was required to consider whether, at the time of cancellation, it was possible to make a decision as to whether there had been non-compliance with the 80% attendance requirement. It noted that relevant to that question was whether the course had concluded when the visa was cancelled and how much longer it had to run. 17 After setting out the provisions of s 116 of the Act, the Tribunal turned to discuss the matter raised by Justice Madgwick. It formed the view that his Honour's reasoning was strongly persuasive and that it was appropriate, in determining whether there was a breach of condition 8202, to look at reasons for non-compliance with the relevant condition. The Tribunal then stated the issues before it in the following terms: "(a) Was there a breach of condition 8202? In making this decision, the Tribunal applies the principles outlined by Justice Madgwick in Shrestha, and can consider relevant policy guidelines. (b) If there was non-compliance with section 116(1)(b), the Tribunal has no discretion and must affirm the decision to cancel the visa." 18 The Tribunal by letter invited the applicant to provide comments on information which the Tribunal regarded as significant, particularly a letter from the Kent Institute dated 29 March 2000 that indicated that his attendance between 2 August 1999 and 10 December 1999 was 9.5%. That letter had indicated that the applicant had failed to provide medical certificates or respond to offers of counselling which the Kent Institute had apparently made to him. The Tribunal notes that it had sent a copy of that letter to the applicant for his reference. The applicant responded in writing and advanced reasons for his non-attendance which are irrelevant to the present applicant before me. 19 At paragraph 45 the Tribunal noted as follows: "The applicant advised at hearing that he arrived in Australia on 31 May 1997 on a student visa valid for two years. He enrolled in the Kent Institute Diploma of Information Technology which was a two year course which commenced on 23 June 1997 and was due for completion on 23 June 1999. His attendance over this period was 82%. However he failed to complete all of the requisite subjects within this two year period and the Institute gave him advanced standing to complete the remaining three subjects from 2 August 1999 to 28 July 2000." 20 It noted that the applicant had three subjects to complete and that students in essence were required to work through a manual they were given in respect of each subject but at their own pace. A tutor was on site to assist. There was a requirement to attend three times a week for four hours at a time for one subject, two days a week for three to four hours at a time for another and two days a week for four hours at a time for the third. In other words, the applicant was expected on average to attend twenty-four hours per week for roughly five hours a day. 21 Among the correspondence the Tribunal referred to from the Kent Institute was a letter dated 18 November 1999, in fact received by the applicant, which advised him that his enrolment with the Kent Institute was to be cancelled both because tuition fees were overdue and because he had failed to attend classes as required. The letter invited him to come to the Kent Institute to discuss the matter otherwise it threatened that the Institute had no alternative but to inform the Department of Immigration and Multicultural Affairs that the applicant's enrolment with the Kent Institute had been cancelled. The applicant did not apparently respond to the letter. However the Tribunal expressed the following finding of fact with respect to it: "The Tribunal is satisfied on the basis of this evidence that the applicant was duly notified of the Institute's intention to cancel the visa (sic) and of their offer to discuss this prior to them cancelling the visa." 22 It would seem clear enough that the reference to visa in this passage is a reference to enrolment. 23 The Tribunal then turned to consider another matter, namely whether the applicant was in breach of the prohibition against working attached to the visa. The Tribunal also questioned the applicant as to why he had only attended 9.5% of the course at the Kent Institute from 2 August 1999 to 10 December 1999. The date 10 December 1999 had not, to this point in the Tribunal's reasons, been referred to as a relevant date. However, that date continues to be repeated thereafter in the Tribunal's reasons for decision. Its significance will be seen shortly. 24 After dealing with evidence the applicant gave to explain his poor attendance, the Tribunal proceeded to make findings. 25 The following paragraphs are significant, for present purposes: "59 The applicant's visa was cancelled under section 116(1)(b) of the Migration Act 1958 on the basis that he had not complied with a condition attached to his visa, in this case it was condition 8202 which required the applicant to attend at least 80% of the course. The applicant in this case attended only 9.5% of classes between 2 August 1999 and the 10 December 1999. His attendance up to this time had been 82% but given the poor attendance in the latter part of 1999 his overall attendance for the course was 46%. … The Tribunal finds that based on the evidence in this case that those prescribed circumstances [ie the circumstances in s 116(3)] for mandatory cancellation exist. … 63 The Kent Institute stated that it had sent two letters to the applicant prior to cancellation of his visa offering him an opportunity to discuss the problems pertaining to attendance. The applicant in an undated submission to the Tribunal received by the Tribunal on 5 June 2002 the applicant (sic) stated that 'I was never informed of my poor attendance, nor did they ask for any medical certificates not to mention student counselling.' At hearing the applicant was shown copies of the two letters forwarded by Kent Institute which contradicted the claims in his submission and he acknowledged receiving the letter dated 18 November 1999. The applicant understood the contents of the letter which stated that the Institute was considering cancelling his visa (sic) due to unpaid tuition fees, failing to attend classes and not meeting course requirements and offering the applicant an opportunity to discuss the matter before they contacted the Department. The Tribunal is satisfied on the basis of this evidence that the applicant was given every opportunity to attempt to resolve this matter with Kent Institute but that he did not avail himself of this opportunity." 26 The Tribunal accordingly decided that the applicant had not offered any sufficient reason for the substantial slip in his attendance to 9.5%. This meant that at the time of cancellation of the visa the applicant's overall attendance for the course was 46%. The Tribunal accordingly found the applicant had breached condition 8202 of his visa in the period 2 August 1999 to 10 December 1999. That breach having been established, the Tribunal concluded that it was bound by s 116(3) to affirm the visa cancellation which it then did. The Applicant's Submissions 27 For the applicant it was submitted that as at the date of cancellation of the visa, namely 14 February 2000, the visa could only be validly cancelled if the applicant had not achieved the 80% attendance rate for the course as contemplated by condition 8202. However, to determine whether the 80% attendance rate was satisfied it would be necessary to know matters such as the distribution of hours of attendance of the course throughout the whole period of the course. However, the Tribunal made no findings such as would enable it to conclude, consistently with the decision of Katz J in Nong whether the applicant had breached condition 8202(b). In particular, it was submitted, that merely to know the percentage figure of class attendance up to the date of cancellation of the visa without more, told nothing as to whether the 80% attendance condition was or was not satisfied. Further, it was submitted, that despite the provisions of s 474 of the Act, the Court was not precluded from determining the matter under s 39B of the Judiciary Act either because the application to the Tribunal had been remitted to it by the full Court (no explanation why this was so was given) or because the Tribunal's decision was based on an incorrect answer to the legal issue posed by s 116 of the Act or because that section imposed inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal which were transgressed by the Tribunal in reaching its decision. The Respondent's Submissions 28 On behalf of the Minister it was submitted that the Tribunal's findings of fact were adequate to permit it to conclude that the applicant was in breach of the 80% attendance condition. Further it was submitted that this Court was precluded by s 474 of the Act from exercising the jurisdiction under s 39B of the Judiciary Act and, whether or not an error had been made by the Tribunal, this Court had no jurisdiction. Whether the Tribunal made a Jurisdictional or other Error 29 As noted, the applicant relied upon the decision of Katz J in Nong as the starting point for his submission. That case involved condition 8202 in its form prior to the enactment of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) when it was in substantially the same form as that applicable to the present case. Katz J held that the 80% attendance requirement in the condition could only, in the circumstances of that case, be determined at the conclusion of the relevant course, because, unless and until the course was completed, it would not be possible to know whether a student had attended or could be regarded as essentially having attended at least 80% of the classes. His Honour left open the question whether a failure to attend 80% of the classes for a course could possibly be calculated in other circumstances before the course had been completed, especially, if at the time the calculation was required to be made, a point had been reached where it was no longer possible for the visa holder to achieve an 80% attendance rate for the course. It was unnecessary for his Honour to express an opinion other than with respect to the circumstances before him and his Honour did not do so. 30 The Minister appealed from the decision of Katz J to a full Court of this Court. The appeal was however discontinued. 31 In Zou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1126I followed the decision of Katz J in Nong, although the substantial matter for decision in that case was whether the subsequent form of condition 8202 which had been introduced in 2000 to overcome the decision in Nong, applied with retrospective affect in the circumstances of that case. That is not a matter at issue in the present case. 32 With respect to Katz J, the point made by his Honour in Nong is an obvious one. Generally, it will be impossible to know whether the holder of a visa had attended at least 80% of the classes and tutorials scheduled for a course when the calculation is made part of the way through the course and the course has not yet been completed. Depending on the factual circumstances an applicant might have completed only a small percentage of classes in one proportion of the course but still, in the remainder of the period until the course is completed, be able to attend sufficient classes so that overall the 80% attendance condition will be satisfied. However, it is likewise the case, particularly where the matter has to be tested near the end of the course, that the attendance up to the time the matter is tested may be so poor that there would be no possibility that the applicant could satisfy the 80% attendance rate test. It would seem to me absurd if an interpretation were given to condition 8202 that in every case the matter could only be tested at the end of the course. This is particularly the case where the visa is likely to extend only until the end of the course or some few days thereafter as will usually be the case where the visa has been granted to enable the student to complete the course. I am of the view that condition 8202 should be interpreted so that, if at the time the decision to cancel the visas is made, it would be impossible for the student in the time remaining until the course is completed to satisfy the overall 80% attendance rate, then the condition will not be satisfied. 33 I do not understand Counsel for the applicant to submit otherwise. The submission made for the applicant is a different one. In essence, it is submitted that where the decision is made part way through a course, the Tribunal on review of the decision must find the facts necessary to enable it to conclude that, irrespective of attendance by the applicant for the balance of the course, the 80% attendance requirement could not be satisfied. In the present case it is said that the Tribunal would need to find the total number of hours of classes and tutorials for the course and the number of hours of classes and tutorials which had been conducted up to the point at which the calculation was sought to be made. It was said that without that information, a percentage figure for class attendance could not be arrived at. 34 By way of an example, it was said that if a number of hours in a course was ten hours per week for the first six months and fifty hours per week for the next six months, a finding that the student had attended only 40% for the first six months would not prevent the student achieving 80% attendance overall so long as the student attended 90% of the classes and tutorials for the next six months. 35 However, it was submitted that the Tribunal did not make the necessary findings here, notwithstanding that it was aware, if only because of the debate before the full Court of this Court in the transcript which was tendered to it, that it was to be submitted that there was no evidence on which the Tribunal could have concluded with certainty that the applicant could not have attended 80% of the classes for the overall course. 36 The Minister accepts the hypothetical example given above and the need, where the decision is to be made part way through a course, that it be possible with certainty to conclude that, irrespective of subsequent potential attendances, the applicant could not satisfy the 80% attendance requirement. However, it is submitted on behalf of the Minister that the Tribunal had found that the Kent Institute had cancelled the applicant's enrolment as at 10 December 1999. Alternatively, it was submitted that this was the case having regard to a letter from the Kent Institute to the Tribunal reproduced in the Court papers which stated that the applicant's enrolment in the course had been cancelled on 10 December 1999. That is the significance of the date 10 December 1999 to which the Tribunal referred in its reasons. 37 There is no specific finding by the Tribunal in terms that the applicant's enrolment was cancelled as at 10 December 1999. It certainly is true that the Tribunal does refer to that date without explanation or discussion. It seems likely that the failure of the Tribunal to explain the relevance of the date 10 December 1999 was inadvertent. There is no explanation for that date other than that it must be relevant to the Tribunal's calculations. So, for example, the Tribunal accepted that the attendance between 2 August 1999 and 10 December 1999 was 9.5% and that this was a relevant figure in showing attendance to be under the 80% mark. Likewise the finding that the overall attendance for the course was 46% in the period from 23 June 1997 until 10 December 1999 (again a percentage under 80%), could only be predicated upon the finding that the course had terminated by 10 December 1999. That this in fact is the case is made clear only when one takes into account the letter from the Kent Institute reproduced in the Court book, which shows that it was received by the Tribunal on 7 March 2002. 38 The Court should not approach a decision of the Tribunal with a mind attuned to error. Further decisions of the Tribunal should be given, where possible, a benevolent construction. Error should not be assumed. 39 I am, on the other hand concerned whether I should take into account material reproduced in the Court book but not directly referred to in the Tribunal's reasons unless there is agreement of the parties that I do so. However, not without some doubt, the present is a case where it is, in my view, appropriate to read the Tribunal's judgment having regard to the material which clearly was before it and which has been reproduced in the papers presented to the Court, particularly where the document in question bears the Tribunal's date stamp, that being a date before the hearing by the Tribunal and where it is that other material in the letter has been referred to by the Tribunal. 40 It follows in my view that the applicant's submission should not be accepted and in consequence that the applicant has not demonstrated an error of a kind which would entitle him to relief under s 39B of the Judiciary Act. 41 The question whether the Court is entitled to grant relief under s 39B of the Judiciary Act having regard to the provisions of s 474(1) of the Act accordingly does not arise. I will therefore dismiss the application with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 20 December 2002 Counsel for the Applicant: J Young Solicitor for the Applicant: Newman & Associates Counsel for the Respondent: J Smith Solicitor for the Respondent: Sparke Helmore Date of Hearing: 22 October 2002 Date of Judgment: 20 December 2002