FEDERAL COURT OF AUSTRALIA Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489 MIGRATION – appeal from judgment and orders of Federal Magistrate affirming Migration Review Tribunal decision – breach of condition 8202 – student visa cancelled pursuant to s 116 of the Migration Act 1958 (Cth)on ground of failure to attend at least 80% of contact hours – whether Federal Magistrate erred – whether jurisdictional error established Education Services for Overseas Students Act 2000 (Cth) s 20 Migration Act 1958 (Cth) ss 116, 116(3), 119, 137J Migration Amendment Regulations 2005 (No. 8)(Cth) Migration Regulations 1994 (Cth) reg 2.43, Sch 8, condition 8202 Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558 followed Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 referred to Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 applied Liyanage v Minister for Immigration and Multicultural Affairs [2006] FMCA 725 referred to Pradhan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 91 referred to Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764 referred to Singh v Minister for Immigration and Ethnic Affairs [1994] FCA 1011 referred to RASIKA SURANGA SARUWE LIYANAGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL VID662 OF 2006 MARSHALL J 10 NOVEMBER 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID662 OF 2006 BETWEEN: RASIKA SURANGA SARUWE LIYANAGE Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE OF ORDER: 10 NOVEMBER 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first 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 VICTORIA DISTRICT REGISTRY VID662 OF 2006 BETWEEN: RASIKA SURANGA SARUWE LIYANAGE Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE: 10 NOVEMBER 2006 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 At the conclusion of the oral submissions of the appellant, the Court announced it would dismiss the appeal with costs and give reasons for doing so later today. These are the Court's reasons for dismissing the appeal. 2 The appellant appeals from the judgment and orders of Federal Magistrate Phipps: see Liyanage v Minister for Immigration and Multicultural Affairs [2006] FMCA 725. His Honour dismissed an application for review of, and relief by way of prerogative writ in respect of, a decision of the Migration Review Tribunal dated 2 November 2005. 3 The 2 November 2005 decision affirmed a decision, made on 25 August 2004, of a delegate of the Minister for Immigration and Multicultural Affairs to cancel the appellant's Student (Temporary) (Class TU) visa, subclass 573. legislative scheme 4 At the time the visa was cancelled, s 116 of the Migration Act relevantly provided: "(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; … (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." 5 Section 119 of the Migration Act relevantly provided: "(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and: (a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and (b) invite the holder to show within a specified time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled. …" 6 Section 137J relevantly provided: "(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). … (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." 7 Regulation 2.43 relevantly provided: "(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: … (b) in the case of a Student (Temporary) (Class TU) visa, 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." 8 Condition 8202 as set out in Sch 8 of the Migration Regulationsis, and was at all relevant times, in the following terms: (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 meet 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." 9 Section 20 of the Education Services for Overseas Students Act 2000 (Cth) ("ESOS Act") relevantly provides: "(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." factual background 10 The appellant entered Australia on 31 January 2000 with a Student (Temporary) (Class TU) visa, subclass 560, which had been granted on 28 January 2000. 11 Since arriving in Australia, the appellant has been granted a series of Student (Temporary) (Class TU) visas. On 25 February 2000 he was granted a further subclass 560 visa and on 30 January 2002 he was granted a subclass 572 visa. The appellant was then granted a subclass 573 visa on 19 June 2003, which was valid for stay until 15 March 2005. Attached to the subclass 573 visa was condition 8202. 12 On 6 September 2003, Central Queensland University sent the appellant a "Non-compliance notice" which was said to be issued pursuant to s 20 of the ESOS Act. The notice had been sent on the basis of the appellant's academic results. It also stated that his student visa would be cancelled 28 days later unless he attended the offices of the Department of Immigration and Multicultural and Indigenous Affairs. 13 The appellant failed to respond to the notice, or to contact the Department, and on 5 October 2003 his visa was automatically cancelled pursuant to s 137J of the Migration Act. 14 On 8 October 2003, the appellant applied for the automatic cancellation of his student visa to be revoked. This was done on 2 February 2004 on the basis that the appellant had not in fact breached condition 8202. 15 On 14 July 2004, the Kangan Batman Institute of TAFE issued a similar notice under s 20 of the ESOS Act. It gave the following particulars of breach: "Student has received two written warnings about his attendance and has not improved in semester 1. His term 1 attendance is 45%, term 2 is 37%. Overall attendance in semester 1, 2004 is 40%. He has not yet paid his tuition fees due on the 2nd July 2004." 16 The notice also stated: "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 The appellant attended the Department on 11 August 2004 and was issued with a "Notice of Intention to Consider Cancellation". 18 On 25 August 2004, the appellant's visa was cancelled on the grounds of a breach of condition 8202, subparagraph (3)(a). The record of decision cites the following as the evidence of, and reasons why, grounds for cancellation do or do not exist: "MR SARUWE LIYANAGE ATTENDED 45% OF CLASSES IN TERM 1 OF 2004 AND 37% IN TERM 2 OF 2004. OVERALL IN SEMESTER 1 OF 2004 HE ATTENDED 40% OF CLASSES. MR SARUWE HAS PROVIDED MEDICAL CERTIFICATES FOR 16/03/04 – 27/03/04, 27/05/04 – 28/05/04, 16/06/04 – 17/06/04, 15/06/04. THESE ABSENCES ARE DEEMED BY DIMIA TO BE PART OF THE 20% OF ALLOWED ABSENCE. THEREFORE, THE ATTENDANCE FIGURES ABOVE ARE NOT CHANGED BY THE PRESENTATION OF THE CERTIFICATES, THEY WERE NOT PRE-APPROVED." 19 An application for merits review of that decision was lodged with the Tribunal on 2 September 2004 and a hearing was set down for 16 November 2004. In the meantime, the Tribunal requested further information from the Institute about the appellant's attendance, including the documentation used to calculate that attendance. Further information was provided by the Institute to the Tribunal on 10 November 2004, however, it was not provided to the appellant at that time. 20 The appellant's migration agent sent a facsimile to the Tribunal on the morning of 16 November 2004, advising that due to illness the appellant would not be able to attend the hearing listed for that day. When no further communication was received from the appellant or his migration agent over the ensuing 72 hours, the Tribunal proceeded to determine the review, pursuant to s 362B(1)(b) of the Migration Act, without taking any further action or allowing the appellant to appear before it. 21 On 30 November 2004, the Tribunal affirmed the decision of the delegate. Following an application by the appellant to the Federal Magistrates Court, the matter was, however, remitted by consent back to the Tribunal on 13 May 2005. 22 On 3 August 2005, the Tribunal invited the appellant to comment on information which it considered would be the reason, or a part of the reason, for affirming the decision under review. The information in question was that provided by the Institute which seemed to demonstrate that the appellant's attendance had been 62% for term 1 of 2004 and 22% for term 2 of 2004. 23 On 16 August 2005, the appellant's migration agent sent a submission to the Tribunal stating that the appellant disputed the Institute's record of attendance. The submission claimed that the appellant's attendance was not marked, that he was said to have been absent on 25 April 2004 which was a Sunday, and that there were several discrepancies between the Institute's academic timetable and the record of attendance. The appellant's migration agent also advised the Tribunal that he had written to the Institute about the record and requested more time in order to receive a response. The Tribunal granted such an extension on 24 August 2005. 24 On 2 September 2005, the Tribunal received a further facsimile from the appellant's migration agent which attached two letters to the Institute. The facsimile also stated that the Institute's record of attendance was not reliable for the reasons previously mentioned and because the appellant was marked absent whenever he arrived late to class. 25 A hearing was scheduled for 3 October 2005. On 20 September 2005, however, the appellant's migration agent sent a facsimile to the Tribunal. That facsimile stated that the Department had decided to revoke all cancellations that had flowed from any s 20 notice sent to a student in the period from May 2001 to 16 August 2005. The migration agent submitted that on the basis of that policy change, the Tribunal may no longer have jurisdiction. 26 A case officer from the Tribunal subsequently contacted the appellant's migration agent and advised that the Department's notice only applied to students whose visas were cancelled automatically under s 137J of the Migration Act and not to visas that were cancelled under s 116. Accordingly, the appellant's migration agent was informed that the hearing would proceed on 3 October 2005. 27 In his oral evidence at the hearing on 3 October 2005, the appellant gave further details of illnesses that he had suffered during both terms 1 and 2 of 2004, some of which had been evidenced by medical certificates and others which had not. He also restated his belief that the attendance records had not been calculated correctly. the tribunal's reasoning 28 As stated previously, on 2 November 2005 the Tribunal affirmed the decision of the delegate to cancel the appellant's visa. It did so on essentially three bases. 29 First, it reviewed the procedure for cancelling visas under the Migration Act and found that the procedure had been followed. It stated that the notice of intention to cancel the visa clearly set out the grounds of the alleged breach and that the appellant had been given time to consider the notice and prepare his response. 30 Second, it held that once a breach of condition 8202 had been established, s 116(3) and reg 2.43(2)(b) operated to make cancellation of the visa in such circumstances mandatory. The Tribunal held that it had no discretion to set aside the cancellation. In that regard it relied upon the judgments of Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 and Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574. 31 The Tribunal noted that the Migration Amendment Regulations 2005 (No. 8)(Cth) had introduced an "exceptional circumstances" test in relation to visas cancelled under s 116. However, as that amendment only applied to visas cancelled on or after 8 October 2005 it did not assist the appellant. 32 Last, the Tribunal found that the appellant had in fact breached condition 8202. It applied Pradhan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 91 in concluding that the operative version of condition 8202 was that which applied on the date the visa was granted. 33 The Tribunal referred to the decisions of Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764 at [33]-[34] per Jacobson J and Singh v Minister for Immigration and Ethnic Affairs [1994] FCA 1011, and found that it was required to be satisfied "to a high degree" that the information upon which the visa cancellation was based was correct. 34 The Tribunal found that there had been errors in the calculations of attendance for both terms 1 and 2. In term 1, it found that the medical certificates had not been taken into account as they should have been and, as a result, the appellant had in fact attended 91% of classes. Accordingly, he was not found to have breached condition 8202 in that term. However, the Tribunal found that even when considering the medical certificates and the correct hours which had been attended in term 2, the appellant's attendance would only be 35%. That attendance level was "far below" the required 80%. 35 The Tribunal was therefore satisfied that a breach of condition 8202 had occurred in term 2 of 2004. In light of that conclusion, it held that the mandatory nature of s 116(3) and reg 2.43(2)(b) required it to affirm the delegate's decision. appeal to the federal magistrates court 36 The appellant lodged an application for review of the decision of the Tribunal with the Federal Magistrates Court on 23 November 2005. Originally he did so on the basis that the s 20 notice was invalid. However, a Full Court of this Court had subsequently held that a cancellation under s 116 of the Migration Act was not dependant on the validity or otherwise of a s 20 notice: see Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558. 37 The appellant then submitted an amended application on 23 February 2006. The appellant submitted that even though the decision in question had been made prior to the 8 October 2005 amendments, a requirement for the Tribunal to provide natural justice applied. In his reasons for judgment, Federal Magistrate Phipps found, however, that the cases the appellant relied on in that regard were of no assistance. 38 His Honour also held that even if the appellant had been misled by the warnings given by the Institute, that did not effect the validity of the Tribunal's decision affirming the cancellation of the visa. His Honour held that once the Tribunal came to the conclusion that the appellant had failed to attend 80% of contact hours in term 2, the Tribunal was obliged to affirm the cancellation. 39 The appellant also submitted that the Tribunal had erred in the way it had dealt with the evidence that the education provider's policy was to mark students absent if 15 minutes late. He referred to the Tribunal noting that the Institute had confirmed the policy in a letter and advised that he had been late in June but not marked as absent. He argued that this did not exclude the possibility that he had been marked as absent on other occasions. He contended that there were two points of significance arising from this. First, that the Tribunal had misled itself and, second, that it should have waited for further comments from the Institute or sought further information about attendance. 40 The Federal Magistrate rejected both of these contentions. His Honour held that the Tribunal had been entitled to conclude that the letter meant that the appellant had not been late in April or May. He further held that there was no legal obligation on the Tribunal to make inquiries and that the Tribunal had not breached any requirements for procedural fairness. the appeal to this court 41 The appellant has appealed to this Court from the whole of the judgment of the Federal Magistrate on the basis that his Honour: · failed to find that the Tribunal identified the wrong issue, asked the wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without jurisdiction; · failed to find that the s 20 notice was defective and invalid as it did not accurately reflect the situation of the appellant at all material times; · failed to find that the Tribunal misconstrued and misapplied the operation of condition 8202; · failed to find that the Tribunal denied the appellant procedural fairness; · erred in concluding that the errors of law committed by the Tribunal were validated by s 474 of the Migration Act and did not constitute jurisdictional errors warranting review or the grant of prerogative writs; and · erred in dismissing the application. 42 The Minister has conceded that the notice issued by the Institute did not comply with the requirements of s 20 of the ESOS Act and was therefore invalid. However, she has also correctly submitted that the invalidity of a s 20 notice does not lead to the invalidity of a subsequent decision of a delegate of the Minister, or the Tribunal, to cancel a visa pursuant to s 116 of the Migration Act: see Humayun and Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115. In any event, the Tribunal did not rely on the information contained in the s 20 notice when satisfying itself that the breach of condition 8202 had occurred. Accordingly, for both of those reasons, the appellant's submission that the s 20 notice was defective and invalid is of no consequence in the present appeal. 43 In response to the appellant's contention that the Tribunal misconstrued and misapplied the operation of condition 8202, the Minister submitted that she was not obliged to consider any "exceptional circumstances". She stated that the amendments set out in Sch 5 of the Migration Amendment Regulations 2005 (No. 8) (Cth) only apply to visas that were in force on or after 8 October 2005, which is the date that Sch 5 came into force. 44 In Zhou, the Full Court of this Court accepted that the amendments could not assist a person whose student visa was cancelled prior to 8 October 2005. It stated (at [44]): "It may be further observed that the Migration Amendment Regulations 2005 (Cth) (No 8) have amended the provisions in Sch 5 relating to student (temporary) (class TU) visas in reg 2.43(2)(b). The effect of the amendment is to import an additional element into the matters which the Minister must consider before cancelling a visa for breach of a condition 8202. That element is that "the non-compliance was not due to exceptional circumstances beyond the visa holder's control". The effect is therefore to place the procedure under s 20 of the Overseas Students Act and s 116 of the Migration Act on a similar footing with respect to consideration of exceptional circumstances. The amendment came into effect on 7 October 2005 and so cannot assist Ms Zhou. It does however serve to address any apparent injustice implicit in the argument of "legal interaction" by reason of the fact that the requirement to attend in response to a s 20 notice afforded an opportunity for service of a s 119 notice. The necessity for this amendment is nevertheless confirmatory of the opinion we have reached that, without it, the relevant and regulatory provisions do not allow us to uphold the reasoning of the federal magistrate." 45 Following this reasoning, I reject the appellant's submission that the Minister and/or the Tribunal had an obligation to consider any "exceptional circumstances" before proceeding to cancel the appellant's visa. 46 The Minister has further submitted that the Federal Magistrate was correct in holding that the Tribunal was entitled to interpret the letter from the Institute setting out its absentee policy in the manner that it did. I agree that the Federal Magistrate was correct in so holding, particularly when regard is had to the circumstances in which the Tribunal drew the conclusions that it did. 47 The appellant submitted that the Tribunal had denied him procedural fairness because it had failed to wait for a response from the Institute when the appellant queried the accuracy of the attendance records. The steps taken by the Tribunal in attempting to ascertain the accuracy of the attendance records have been set out above. It is also clear that the Tribunal took the appellant's evidence with respect to illness into consideration. As the Minister submitted, the appellant was given ample opportunity to make submissions to the Tribunal in relation to all relevant matters. She further stated that the appellant did not make any submission to the Tribunal that it ought wait for the Institute's response. In the circumstances outlined above, I consider that the Tribunal was entitled to make the decision on the material before it. I agree with the Federal Magistrate that there was no denial of procedural fairness. 48 Accordingly, the appeal will be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 10 November 2006 The Appellant appeared in person Counsel for the First Respondent: Mr A Lewis Solicitor for the First Respondent: Clayton Utz Date of Hearing: 10 November 2006 Date of Judgment: 10 November 2006