FEDERAL COURT OF AUSTRALIA Shao v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 18 MIGRATION – Application for a declaration that the respondent's decision to cancel the applicant's visa using s 116 of the Migration Act 1958 (Cth) was void – applicant held Temporary (Student) visa – failed to comply with Condition 8202 – consideration of effect of an incompetent s 20(4) Education of Overseas Students Act Notice – application of Uddin – where notice is incompetent automatic cancellation provision in s 137J of Migration Act cannot operate – applicant's visa was not automatically cancelled therefore subsequent decision to cancel pursuant to s 116 for breach of condition is within power – application dismissed. Education Services for Overseas Students Act 2000 (Cth) s 20 Migration Act 1958 (Cth) ss 82, 116, 137J, 137K Uddin v Minister for Immigration [2005] FMCA 841 applied XIAO DONG SHAO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SAD 312 OF 2005 LANDER J 24 JANUARY 2007 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 312 OF 2005 BETWEEN: XIAO DONG SHAO Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent JUDGE: LANDER J DATE OF ORDER: 24 JANUARY 2007 WHERE MADE: ADELAIDE 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 SOUTH AUSTRALIA DISTRICT REGISTRY SAD 312 OF 2005 BETWEEN: XIAO DONG SHAO Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent JUDGE: LANDER J DATE: 24 january 2007 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application for a declaration that a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, made on 30 August 2005 cancelling the applicant's Student (Temporary) (Class TU) visa is void and of no effect and for the issue of a writ of certiorari to quash that decision. 2 At some time prior to 10 June 2005 the applicant was granted a Student (Temporary) (Subclass 573) visa which entitled the applicant to remain in Australia for the purpose of attending a course of education conducted by a registered provider of education, in this case the University of South Australia, under the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act). 3 The ESOS Act regulates education services for overseas students. It provides for the registration of approved providers of courses of education or training (course) for overseas students. These providers are designated registered providers. Only registered providers can provide a course to an overseas student: s 8 of the ESOS Act. 4 Obligations are imposed upon registered providers. They must, for example, give the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs particulars of any breach by a student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs: s 19(2) of the ESOS Act. Further obligations are imposed upon registered providers by s 20 of the ESOS Act. 5 Section 20 of the ESOS Act 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. (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.' 6 That section requires the registered provider to give notice if a student has breached a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach has occurred. The notice must be in a form approved by the Secretary of the respondent's Department: s 20(3) of the ESOS Act. It also must comply with s 20(4) of the ESOS Act. 7 On 10 June 2005 the University of South Australia, as the registered provider, purported to give the applicant notice under s 20 of the ESOS Act asserting that the applicant had breached a condition of her Student visa relating to satisfactory academic performance by failing to meet course requirements and by being precluded from the course. 8 Section 137J of the Migration Act 1958 (Cth) (the Migration Act) applies if a notice is sent to a non-citizen under s 20 of the ESOS Act. The giving of a notice under s 20 of the ESOS Act activates the provisions of s 137J(2) of the Migration Act, which has the effect of cancelling the student's visa by force of the section at the end of the 28th day after the day that the notice specifies as the date of the notice unless the student complies with one or other of paragraphs (a) or (b) of subsection (2) of s 137J. Section 137J(2) provides: '(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.' 9 It is the subsection itself which cancels the non-citizen's visa. Nothing needs to be done by the Minister or any other party to effectuate the cancellation of the non-citizen's visa. 10 In this case, the date specified in the notice was 10 June 2005, being the date of the notice and the 28th day after the notice was 8 July 2005. 11 The applicant did not comply with either paragraph of s 137J(2) which meant that if s 137J(2) applied the visa was cancelled as at 8 July 2005. The visa would cease to have effect on the day of cancellation because of the provisions of s 82(1) of the Migration Act,. 12 Section 137K of the Migration Act allows a student whose visa has been cancelled under s 137J to apply in writing to the Minister for revocation of the cancellation: s 137K(1) of the Migration Act. Section 137L empowers the Minister to revoke the statutory cancellation which has occurred under s 137J of the Migration Act. 13 On 18 July 2005 the applicant applied in writing under s 137K to the Minister for revocation of the cancellation. The grounds upon which the Minister may revoke a cancellation on an application under s 135K are provided for in s 137L of the Migration Act. 14 On 3 August 2005 a delegate of the Minister decided not to revoke the cancellation of the visa because: '● You have breached visa condition 8202. You have failed 14 out of 17 courses of study attempted in 2003 and 2004. You failed to seek academic advice/support despite your Education Provider recommending you do so. ● Due to unsatisfactory academic progress in 2004, the Education Provider has precluded you from further studies. You appealed the Education Provider's decision, but due to insufficient evidence, your appeal was denied. ● I am not satisfied that the student's claims for revocation satisfy the definition of exceptional circumstance under DIMIA policy. ● You have presented medical diagnoses that show that you have suffered from a medical condition but you have failed to demonstrate a clear link between this medical condition and your inability to meet your course obligations. ● The medical diagnosis from the St Agnes surgery does not specify the dates of consultation and does not specify that your condition would lead to your inability to meet your course obligations. ● The medical diagnosis from the Liaoning Feng Tian Chinese Medical Hospital (translated by Migration Agent Philip NG, MARN 9251321) suggests that long term medical treatment and less stress could improve the condition. The diagnosis does not specify that your condition would lead to your inability to meet your course obligations.' 15 The effect of the delegate's refusal to revoke the cancellation was that the applicant's visa remained cancelled. It therefore continued to cease to have effect. 16 On 9 August 2005 the applicant applied to the Migration Review Tribunal (MRT) for a review of the delegate's decision. 17 On 17 August 2005 the delegate made an entry in the applicant's file: '17 August 2005 – reversed cancelled – Uddin v MIMIA'. The respondent's solicitor has deposed that the respondent accepted the correctness of a decision of Scarlett FM in Uddin v Minister for Immigration [2005] FMCA 841 ('Uddin'). 18 On 7 June 2005 Scarlett FM had held in identical factual circumstances that a notice given purportedly pursuant to s 20 of the ESOS Act, did not comply with s 20(4) of that Act: Uddin. The Federal Magistrate held that because s 20(4) of the ESOS Act had not been complied with, s 137J of the Migration Act was not invoked and therefore the applicant's visa was not cancelled by operation of that section. 19 The notice given in Uddin was in the same form as the notice given in this matter. It did not advise the applicant that he was required to attend in person before an officer within the meaning of the Migration Act but, instead, advised him that he had to report personally to a compliance officer. It did not set out the effect of s 137J and s 137K of the Migration Act in that it did not inform the applicant that the applicant could avoid the consequences of s 137J by making himself available to an officer for the purpose of explaining the breach alleged in the notice. The notice did not bring to the applicant's attention the provisions of s 137K(2) and, in particular, advise the applicant that because of the provisions s 82 an applicant cannot apply for revocation when the visa would no longer have been in effect in any event had the visa not been cancelled under s 137J. Lastly, it did not bring to the applicant's attention the provisions of s 82 so as to allow the applicant to understand the provisions of s 137K(2). 20 Scarlett FM found that s 20(4) of the ESOS Act was mandatory in its terms. The notice did not comply strictly with the requirements in s 20(4) of the ESOS Act and, as I understand his reasons, s 137J(2) of the Migration Act therefore was not invoked and the Student visa was therefore never cancelled. 21 The Federal Magistrate made two declarations: '(1) That the Applicant's student visa was not cancelled by operation of law under section 137J of the Migration Act 1958. (2) That the Applicant was not an unlawful non-citizen at any stage.' He ordered that the constitutional writs issue to give effect to those declarations. 22 The declarations made by the Federal Magistrate were those sought by the applicant in that proceeding. They reflect his Honour's reasons and are unambiguous in their terms. The applicant's visa was, in terms of those declarations, never cancelled and the applicant was never an unlawful non-citizen. 23 After Scarlett FM's decision, the Department identified visas which were purportedly cancelled pursuant to s 137J of the Migration Act where the purported cancellation was affected by the same error as identified in Uddin. The applicant was one of those visa holders. 24 On 18 August 2005 the same delegate notified the applicant of an intention to consider cancelling the applicant's visa under s 116 of the Migration Act notwithstanding that the delegate had previously assumed that the visa had already been cancelled by operation of s 137J of the Migration Act on 8 July 2005. 25 Section 116 of the Migration Act empowers the Minister to cancel a visa if the Minister is satisfied that any of the circumstances in s 116(1) have occurred. If the Minister is satisfied that the holder has not complied with a condition of a visa, the Minister may cancel a visa: s 116(1)(b) of the Migration Act. In the notice given the applicant by the delegate, the delegate identified the ground for cancelling the applicant's visa as being a 'possible breach of condition 8202(3)(b) for failing to achieve satisfactory academic results in school years 2003 and 2004', and 'Education Provider has reported visa holder as failing 14 courses out of 17 during 2003 and 2004'. 26 When, on 18 August, the delegate gave notice of his intention to consider cancellation of the applicant's visa under s 116 the MRT was still seized with an application for review of the decision by the same delegate not to revoke the cancellation of the applicant's visa under s 137L of the Migration Act. The MRT was advised that the Department had amended its records 'to remove the automatic student visa cancellation and record that the original student visa, expiry date 15 March 2006, has been reinstated'. 27 Notwithstanding that advice, the MRT proceeded to consider that application and on 13 September 2005 decided: 'The Tribunal sets aside the decision under review to refuse to revoke the cancellation of the review applicant's Student (Temporary) (Class TU) visa and substitutes the decision that the visa is not cancelled.' 28 It gave as its reasons for that decision: '12. Although the Department's file has not been provided, from the evidence contained in the Department's records, the the (sic) Tribunal finds that the s 20 notice sent to the review applicant is in the same form as that considered by Scarlett FM in Uddin. For the reasons set out in Uddin, the Tribunal therefore finds that the s 20 notice is defective due to its failure to comply with sub section 20(4)(b) of the ESOS Act. 13. Given the above, and given the action of the Department in reinstating the review applicant's student visa, the Tribunal finds that as a matter of law and of fact, the review applicant's student visa is not cancelled. As a result, the decision not to revoke the cancellation is also of no effect. 14. However, as there is a purported decision not to revoke the cancellation before the Tribunal, the Tribunal accepts that it has jurisdiction to make a decision on the decision under review: MIMIA v Ahmed [2005] FCAFC 58. Nevertheless, it concludes that the only course of action open to it is to set aside the decision not to revoke the automatic cancellation and to substitute a decision that the review applicant's visa is not cancelled.' 29 I am not sure that the MRT exceeded its jurisdiction by deciding that 'the review applicant's visa is not cancelled'. However, nothing turns on that in this proceeding. 30 On 30 August 2005 the delegate decided to cancel the applicant's visa pursuant to s 116 of the Migration Act. It is that decision which is impugned. 31 The single ground of this application is: '1. The delegate of the Minister of Immigration & Multicultural & Indigenous Affairs did not have jurisdiction to make the decision made on 30 August 2005, by which he purported to cancel the Applicant's Student (Temporary) (Class TU) visa pursuant to s. 116 of the Migration Act 1958 (Cth) ("the Act"). Particulars 1.1 Section 116 of the Act provides that the Minister may cancel a visa. 1.2 It is a precondition to the exercise of power under s. 116 to cancel a visa that the person who may be subject to such an exercise hold such a visa. 1.3 By operation of s. 82 and 137J of the Act, the Applicant's Student (Temporary) (Class TU) visa was cancelled on or about 8 July 2005 and ceased to be in effect. 1.4 As at the date of the Decision on 30 August 2005, the Applicant did not hold a Student (Temporary) (Class TU) visa.' 32 The application which is before me is for a declaration that the respondent's delegate's decision made on 30 August 2005 pursuant to s 116 of the Migration Act is void and of no effect. 33 The ground for quashing the decision rather assumes that s 137J of the Migration Act operated in its terms so as to cancel the applicant's Student (Temporary) (Class TU) visa on the date specified in the s 20 notice. 34 The applicant in this proceeding put her case in different ways. In the applicant's outline of argument, and in oral argument, her counsel contended that because a notice had been given under s 20 of the ESOS Act and because the applicant had not complied with either paragraph of s 137J(2), the applicant's visa was cancelled by operation of s 137J. Because of the provisions of s 82, it ceased to have effect on that day. 35 The applicant's counsel argued that as at 18 August 2005, when the delegate notified the applicant of an intention to cancel the applicant's visa under s 116 of the Migration Act, and as at 30 August 2005 when the delegate decided to cancel the applicant's visa, there was no visa in existence. It was put that 'as a matter of historical fact (the applicant was not) the holder of a Student (Temporary) (Class TU) visa on 30 August 2005'. The decision therefore to cancel was not valid. 36 It was further contended that the subsequent decision of the MRT setting aside the decision not to cancel and substituting 'the decision that the visa is not cancelled' did not have retrospective effect and only operated from the date of the decision. Therefore, it was contended at the time the decision was made on 30 August 2005 to cancel the applicant's visa, the applicant was not the holder of a visa and the decision was invalid. 37 That last argument had to be put because, if the MRT decision had the effect of deciding that the visa was never cancelled at any time then, of course, the first limb of the argument cannot be made out because there had been no cancellation of the visa and the Minister's delegate could proceed to consider the matter under s 116 of the Migration Act. In summary, the applicant argued that the applicant's visa was cancelled by operation of s 137J and the applicant was and remained an unlawful non-citizen until the MRT made its decision. It was submitted, therefore, that whilst the visa remained cancelled, there could be no further decision by the Minister to cancel that visa. 38 Both parties have asked me to assume that Uddin was correctly decided. I think that assumption can be made because if Uddin was incorrectly decided then the applicant's visa was cancelled by operation of s 137J on 8 July 2005 and that would be an end to the matter. To assume that Uddin was correctly decided is to make an assumption most favourable to the applicant. Therefore I will assume that Uddin was correctly decided. 39 It is necessary to determine the effect of the decision in Uddin. Uddin stands for the proposition that unless the notice given by the registered provider under s 20 of the ESOS Act complies strictly with subsection (4) (or at least paragraphs (b) and (d) of that subsection), the notice given is not a notice under s 20 of the ESOS Act and the automatic cancellation provisions of s 137J never apply. That is clear from the Federal Magistrate's reasons but made even clearer by the declarations which the Federal Magistrate made. The first declaration is that the applicant's visa was not cancelled by operation of law under s 137J. The second declaration, which is consistent with the first, is that the applicant was not an unlawful citizen at any stage. 40 If Uddin was correctly decided and the effect of the decision is as I have described it, then the applicant's argument fails at its first premise. The applicant's visa was never cancelled by operation of s 137J and it did not cease to have effect. It follows that the applicant was the holder of a visa as at 30 August 2005 and the delegate was empowered to cancel that visa. 41 I pointed out in argument that if Uddin is correct then the applicant's visa was not cancelled by operation of s 137J and, therefore, there was a valid visa in existence at the time the Minister's delegate made his decision on 30 August 2005. 42 The applicant's counsel argued, contrary to the decision in Uddin, that because the Migration Act provides for a procedure to review the cancellation (s 137K) and revoke that cancellation (s 137L and s 137N), and because that decision is itself subject to a merits review by the MRT (s 338(3A)) 'in the context of the Act, the automatic cancellation is valid unless and until it is revoked by an administrative decision maker under s 137L, or otherwise subject to orders by a court of competent jurisdiction'. 43 There are difficulties with that argument. First, it is contrary to the decision in Uddin which I have been asked to assume is correct. Secondly, and more importantly, the argument is contrary to the provisions of the Migration Act. Section 137J applies if a notice is sent to a non-citizen under s 20 of the ESOS Act. Uddin, and the applicant's argument, assumes that no notice has been sent under s 20 of the ESOS Act. Therefore, it must follow that s 137J does not apply. Therefore, if no notice is sent to a non-citizen under s 20 of the ESOS Act, the non-citizen's visa is never cancelled under s 137J of the Migration Act. There can be no automatic cancellation. That is because the condition precedent for the operation of s 137J(2) has not been satisfied. No notice was given under s 20 of the ESOS Act. 44 It is true that the Migration Act allows for an applicant to apply to the Minister for revocation of the cancellation: s 137K of the Migration Act. However, the Minister may on such an application only revoke the cancellation for the reasons in s 137L(1). The Minister cannot revoke the cancellation because no notice was given under s 20 of the ESOS Act. Of course, one would not think that would be a reason for revocation of cancellation. If no notice is given, there could be no cancellation. 45 That procedure and the fact that that process is subject to merits review by the MRT does not support the proposition that where no notice is given under s 20 of the ESOS Act the visa holder's visa is automatically cancelled under s 137J and remains cancelled until revoked by an administrative decision maker or a court of competent jurisdiction. 46 If the applicant's argument were right it would mean that a non-citizen would become an unlawful non-citizen for a period until the cancellation was revoked or set aside. The non-citizen would be liable to detention (s 189) and removal from Australia (s 200). That would be in circumstances where no notice had been given under s 20 of the ESOS Act. In my opinion, the applicant's primary argument must be rejected. 47 The only relevance of the notation which was made on 17 August 2005 is that it shows that the Minister's delegate recognised that s 137J had not operated to cancel the applicant's visa. It was not a decision by an administrative decision maker. It was, as I say, merely a recognition that the applicant still held a visa because it had not been cancelled by operation of s 137J of the Migration Act. 48 The applicant also contended that the decision of the MRT given on 13 September 2005 did not have any retrospective effect and was only effective prospectively. 49 If my analysis is correct, the decision of the MRT was otiose. If there was never a notice given under s 20 of the ESOS Act, s 137J never operated in its terms and there was never a cancellation of the applicant's visa. 50 In any event, the MRT, in deciding that the visa had not been cancelled, was only declaring (if it had jurisdiction to do so) that s 137J had never operated. 51 Because I am of the opinion that no administrative decision was made which gave rise to the cancellation of the visa, I do not need to address the purport of the decision of the MRT given on 13 September 2005. It follows that I do not need to determine whether or not the MRT had power to reach the decision which it did or whether its decision was prospective or retrospective. 52 After I had reserved my decision I raised some matters with counsel and invited some short submissions. Both counsel responded. The applicant's counsel's response raised a different argument to that which was presented at the hearing. 53 The applicant's counsel submitted that the applicant's visa was treated by the Department, up until at least 17 August 2005, as having been cancelled pursuant to s 137J. It was submitted that, in effect, by the Department treating the visa as having been cancelled pursuant to s 137J the Department had made a 'decision' to treat the visa as cancelled. It was not explained how the Department could make a 'decision'. It was submitted that 'decision' is voidable rather than void and therefore there was no valid visa in existence until the MRT overturned the 'decision' on 13 September 2005. Thus, it was submitted, when the Minister's delegate made his decision on 30 August 2005 to cancel the applicant's visa, there was no such visa in existence and therefore the decision is void. The applicant submitted that because the 'decision' was voidable and not void the 'decision' is valid unless and until it is set aside. The applicant's contention was effectively that, for the period of time mentioned, someone I think in the Department had made a decision to treat the applicant's visa as having been cancelled. The applicant did not contend that the visa was cancelled but rather there was a decision to treat it as cancelled. 54 There are a number of difficulties with the argument. First, s 137J is, in my opinion, unambiguous. It operates to cancel the non-citizen's visa where a notice has been sent to a non-citizen under s 20 of the ESOS Act. As I have already said, no decision is made to cancel a visa. Section 137J itself operates to cancel the visa. 55 There is nothing, in my opinion, in the Act or in Uddin which would support the applicant's contention that any administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the ESOS Act to a non-citizen. There is no administrative decision to be made. Section 137J(2) operates to cancel the non-citizen's visa. The only decisions which have to be made relate to the Minister's power to revoke the cancellation effected by s 137J(2). 56 Section 137K allow a non-citizen 'where visa has been cancelled under s 137J' to apply to the Minister for revocation of the cancellation. That section also recognises that the cancellation is effected by s 137J not by any administrative decision. The Minister may revoke the cancellation for any of the reasons in s 137L(1) of the Migration Act. The Minister may also revoke cancellation on her or his own initiative: s 137N of the Migration Act. If the Minister does revoke the cancellation under s 137L or s 137N 'the visa is taken never to have been cancelled under section 137J': s 137P(1) of the Migration Act. 57 The whole scheme of this subdivision of the Migration Act is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision. The Minister's decision making only extends to considering whether the statutory cancellation should be revoked. 58 It follows that the applicant's visa was either cancelled or not cancelled on 8 July 2005 depending upon whether s 137J operated. No administrative decision was made on or after that date to cancel the applicant's visas. It follows that because there was no decision the question of whether it was void or voidable does not arise. 59 For those reasons, that further argument must be rejected. 60 The applicant conceded that if I concluded there was a valid visa in existence when the delegate decided to exercise power under s 116 of the Migration Act, the application could not succeed. I have so concluded. 61 For the reasons I have given it follows that if, contrary to Uddin, s 137J operated to cancel the applicant's visa then the applicant has become an unlawful non-citizen. On the other hand, if Uddin is correctly decided, then the applicant was the holder of a visa as at 30 August 2005 when that visa was cancelled pursuant to s 116 of the Migration Act. Either way the applicant's visa has been cancelled and she has become an unlawful non-citizen. 62 It follows that the application must be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 24 January 2007 Counsel for the Applicant: Mr S D Ower Solicitor for the Applicant McDonald Steed McGrath Counsel for the Respondent: Dr C Bleby Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 October 2006 Date of Judgment: 24 January 2007