Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 (11 March 2005)

Last Updated: 11 March 2005

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229

MIGRATION – student visa – jurisdictional error – where Migration Review Tribunal asked itself the wrong question – Education Services for Overseas Students Act 2000 (Cth) – where applicant received a section 20 notice alleging breach of visa conditions – degree of particularity required – purpose and operation of legislative scheme – whether notice containing insufficient particulars void and of no effect.


Education Services for Overseas Students Act 2000 (Cth) s 20
Migration Act 1958 (Cth) ss 119, 137J, 137K, 137L

Migration Regulations 1994 (Cth)


Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134 of 2002 [2003] HCA 1; (2003) 211 CLR 441 cited
Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 referred to
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 cited
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 cited
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 cited
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited







LEI CHEN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

WAD 117 of 2004




LANDER J
11 MARCH 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD117 OF 2004

BETWEEN:	LEI CHEN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	11 MARCH 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. A writ of certiorari issue quashing the decision of the Migration Review Tribunal dated 5 May 2004.
2. Remit the matter to the Migration Review Tribunal for further consideration according to law.
3. The respondent pay the applicant’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
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD117 OF 2004

BETWEEN:	LEI CHEN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LANDER J
DATE:	11 MARCH 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application for judicial review of a decision made by the Migration Review Tribunal (MRT) on 5 May 2004 in which the MRT affirmed the decision by a delegate of the respondent not to revoke the cancellation of the applicant’s Student (Temporary) (Class TU) visa.

2 The applicant is a national of the People’s Republic of China who was born on 9 November 1982. He entered Australia as the holder of a Student (Temporary) (Class TU) visa (subclass 560) which issued on 3 November 1998. He held a further student visa which was issued on 18 February 2002 and, on 25 March 2003, was issued the Student (Temporary) (Class TU) visa (subclass 573) which, if it had not been cancelled, was due to expire on 15 March 2006. The applicant’s visa was subject to Condition 8202 (Enrolment and Course Requirements).

3 Relevantly, Condition 8202 provides:

‘(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 (1) 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 a secondary 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

(c) 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.’

4 The applicant was a student at Curtin International College (Curtin). He commenced his first semester at Curtin on 3 March 2003. That semester concluded on 13 June 2003. On 8 July 2003 Curtin gave notice to the applicant, pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) advising that he had breached a condition of his student visa ‘relating to satisfactory academic performance in the course in which you have been enrolled at this institution’.

5 The particulars of the breach were given as ‘Poor progress and attendance’.

6 The applicant was advised in that notice that, pursuant to s 137J of the Migration Act 1958 (Cth) (the Migration Act), his student visa would cease on the 28^th day after the date of the notice unless he had reported to the Department of Immigration and Multicultural and Indigenous Affairs by that time. He was advised that he should report personally to a Compliance Officer ‘to explain the breach of your student visa condition as specified above’.

7 He was advised that if he did report as required under the notice the automatic cancellation of his student visa would not proceed. The decision would then be made whether or not to cancel the visa. He was advised that his student visa would not be cancelled if he could show that no breach occurred.

8 He was advised that if the visa was cancelled he would become an unlawful non-citizen and subject to mandatory detention, removal and exclusion from Australia for three years.

9 He was further advised that if his visa was cancelled under s 137J he was permitted to apply under s 137K of the Migration Act to the Minister for revocation of the cancellation.

10 The notice continued:

‘Cancellation of a student visa will only be revoked if the Minister is satisfied that the student did not breach the relevant visa condition(s) or that the breach was due to exceptional circumstances beyond the student’s control. Non-receipt of this notice will not be a ground for revoking the cancellation.’

11 In fact, the applicant did not respond to the notification within the prescribed period. His visa, therefore, was automatically cancelled on 6 August 2003. Thus, he became an unlawful non-citizen. On 12 August 2003 he was detained.

12 On 13 August 2003 he applied, pursuant to s 137K of the Migration Act, through his solicitors, for the revocation of the cancellation of his student visa. His application was supported by his statutory declaration.

13 In the application to the Minister his solicitors wrote:

‘We are instructed by our client that he was not aware that his student visa had been cancelled, nor has he received any notification from Curtin International College ("CIC") requesting him to report to the DIMIA in person regarding his performance at CIC. He was told by CIC that he would receive a notice from DIMIA, but this notice has never arrived.’

14 On 14 August 2003, Curtin, apparently at the request of the Department, forwarded a document entitled ‘Certificate of Attendance’ to the Department.

15 That Certificate showed that the applicant had studied and was assessed in four subjects; 03 Accounting, 07 Economics, 05 Information Systems, and 01 Legal Framework.

16 There were four sessions recorded each week and records were kept over 14 weeks of the semester.

17 The Certificate showed that the applicant had been recorded as being absent on 21 occasions, only one of which had been approved.

18 The Certificate showed that he had failed each of the subjects for which he was enrolled and had received marks of 32 in Accounting, 6 in Information Systems and 13 in Legal Framework.

19 In support of his application to the Minister for revocation of the cancellation of the visa, the applicant submitted six medical certificates which had not been previously submitted to Curtin, to establish that he was unable to attend classes on the dates of those certificates.

20 Three of those medical certificates were issued by an institution calling itself ‘Beijing Acupuncture and Herbal Clinic’ which showed that the applicant had attended for treatment on four dates; 28 March 2003, 23, 29, and 30 May 2003. The medical certificates did not identify the issuing doctor. The medical certificates did not state whether the applicant was able to attend or not able to attend classes on those dates.

21 Two medical certificates were submitted from Dr Dominic Leung who had been consulted by the applicant on 2 May 2003 and 9 May 2003. Those medical certificates stated that the applicant was suffering from a personal illness. The medical certificates did not state that the applicant was unfit for work/school on those dates. In fact, the reference to unfitness for work/school had been crossed out.

22 The last report was from Dr Chin Yap who certified that the applicant was unfit for work for medical reasons for 16/3 to 19/5/03 – 20/05/03. Dr Yap confirmed that the certificates were to cover the period 16-20 May 2003.

23 On 14 August 2003 the Minister’s delegate decided not to revoke the cancellation of the applicant’s visa because:

‘You were reported by Curtin International College for not meeting attendance or academic requirements. In your request you provided a number of medical certificates however only one has been accepted as adequate evidence that you could not attend classes. Your attendance has been recalculated as 69.64%, remaining under the minimum acceptable attendance level of 80%. Your academic performance for Semester 1, 2003 remains unsatisfactory as certified by Curtin International College. Furthermore, you have not demonstrated that there were exceptional circumstances beyond your control preventing you from attending classes.’

24 On 14 August 2003 the applicant applied to the MRT for a review of that decision and, on 5 May 2004, the MRT published its decision affirming the delegate’s decision not to revoke the cancellation of the Student (Temporary) (Class TU) visa.

25 The grounds for the applicant’s application to the MRT were:

‘1. miss calculate medical certificates, my attendance should be 81% including all the medical certificate, not 69.64%.
2. there were exceptional circumstances beyond my control for attending classes and making unsatisfactory academic performance because of my illness and stress.’

26 The applicant provided the MRT with medical certificates which he said supported his claim that his attendance was 80 per cent, not 69.64 per cent as calculated by Curtin.

27 Moreover, the applicant provided the MRT with a further certificate from Dr Huo, who was the issuing doctor of the certificates from ‘Beijing Acupuncture and Health Clinic’, in which he stated that the applicant was unable to attend school on the days on which he had treated him.

28 The MRT said in its reasons:

’25. The Tribunal has considered the representations about Mr Chen’s bouts of illness and the effect on his performance as well as his recorded absences. The material before the Tribunal shows that Mr Chen did find it necessary to seek medical assistance but the certificates furnished do not indicate that Mr Chen was seriously ill. The certificates show that he missed only three days for which a registered medical practitioner certified he was not well enough to attended [sic] classes. Mr Hou has certified 6 attendances whereas Mr Chen produced only 3 certificates and these do not certify that Mr Chen was too unwell to attend classes. Even if the Tribunal accepts that Mr Chen could not attend classes on the 6 occasions when he sought help from Mr Hou as well as the further 5 days missed due to medical consultations, the various certificates, taken together, do not explain a total of 20 absences. The education provider’s records show he missed 20 out of 21 classes for which he was not excused. On a generous application of the certificates supplied, it may be that Mr Chen would be close to achieving the 80% attendance as he claims.

26. However, Mr Chen breached condition 8202 of his visa both as to the attendance requirement and as to the satisfactory performance requirement. He has admitted that his academic performance was poor. This admission is substantiated by the records before the Tribunal. Mr Chen failed all four units studied with a course average of 12.75%. As the delegate observed, with the advice that Curtin International College considers his performance unsatisfactory, it is clear that he breached condition 8202(3)(b). As to whether there were emergency circumstances beyond Mr Chen’s control, the medical evidence furnished was not only too late so far as Curtin was concerned but, in the Tribunal’s opinion, is not adequate to establish that Mr Chen was so ill as to give rise to circumstances beyond his control leading to the breach of condition 8202(3)(b) of his visa.

27. For clarity, the Tribunal makes the following findings:
• The review applicant breached condition 8202.

• The breach was not due to exceptional circumstances beyond the non-citizen’s control.
• It follows that the Tribunal must affirm the decision not to revoke the cancellation.’

29 On 2 June 2004 the applicant brought these proceedings for judicial review.

30 On 1 July 2004 Carr J gave directions, including a direction that the applicant file and serve, on or before 6 August 2004, any amended application upon which he might rely, together with any affidavit upon which he intended to rely at the hearing of the matter.

31 The matter was listed for hearing before me on 1 March 2005. On that day the applicant filed an amended application for an order for review of the decision of the MRT, a further affidavit and an affidavit of the applicant’s solicitor.

32 The matter was adjourned until 4 March and then 9 March 2005 so that the respondent could consider her position and, in particular, whether she wished to file any further evidence relating to the matters raised on the amended application and contained in the affidavits to which I have referred.

33 In the meantime, the applicant filed yet a further affidavit.

34 The Minister has elected not to file any evidence in opposition to the application and those affidavits.

35 At the resumed hearing I gave leave to the applicant to amend his application in accordance with the proposed amended application filed on 1 March 2005. The application, as amended, was in the following form:

‘1.1 The non-compliance Notice, issued pursuant to s.20 of the Education Services for Overseas Students Act 2000 ("the Education Act"), fails to comply with the requirement under s.20(4) of the Education Act to give the Applicant particulars of the alleged breach of the Applicant’s student visa.

1.2 Both the Education Provider and the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") failed to inform the Applicant orally or in writing within 28 days of the notice:

(a) that it was condition 8202 or a "failure to meet course requirements" that was alleged against him;
(b) what was alleged as "the poor progress and attendance" referred to in the "particulars of breach";
(c) of any particulars or evidence being relied upon by DIMIA to support automatic cancellation of the Applicant’s student visa.

1.3 In determining not to revoke the cancellation under s.137L of the Migration Act ("the Act") the delegate to the Minister found that the Applicant’s academic performance for Semester 1 2003 was unsatisfactory based upon a certification from the education provider which was never shown to the Applicant.

1.4 In affirming the delegate’s decision not to revoke the automatic cancellation of the review Applicant, the Tribunal relied upon alleged certification from the Education Provider that the Applicant’s performance was unsatisfactory which certification of unsatisfactory performance was never shown to the Applicant (para 26 of the Tribunal’s reasons).

1.5 There was jurisdictional error in that the student visa ought not to have been cancelled under s.20 of the Education Act without:
(a) supplying particulars of the alleged breach;

(b) by the Tribunal affirming the delegate’s decision not to revoke cancellation based upon the alleged written certification from the Education Provider of alleged unsatisfactory academic performance which the Applicant never saw;
(c) the Tribunal contravened s.359A of the Act and/or the common law.’

36 The Minister’s decision is a privative clause decision, as defined in s 474(2) of the Migration Act, and therefore subject to the provisions of s 474(1) of that Act.

37 It is therefore necessary for the applicant to establish jurisdictional error on the MRT’s part so as to establish that there has been no relevant decision made by the MRT to which s 474 of the Migration Act can apply: Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134 of 2002 [2003] HCA 1; (2003) 211 CLR 441.

38 Part 2 of the ESOS Act provides for a system of registration of approved providers under that Act who, once registered, are entitled to provide courses of education for overseas students. Curtin is a registered provider.

39 Division 1 of Part 3 of the ESOS Act imposes obligations on registered providers. A registered provider must 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). Section 20 obliges a registered provider to send a student a written notice if the student has breached a ‘student visa condition relating to attendance or satisfactory academic performance’.

40 The obligation is imposed upon the registered provider. The failure by the registered provider to give written notice to the student is an offence by the registered provider against the ESOS Act: s 104. It also makes the registered provider liable to sanctions under that Act: Division 1 Part VI.

41 The principal purpose of s 20 of the ESOS Act is to ensure that a registered provider does not continue to receive benefits under the ESOS Act for providing a service to an overseas student who is not attending the course with the degree of regularity required under clause 3(a) of Condition 8202 or performing to the appropriate level as required under clause 3(b) of Condition 8202. Once the registered provider becomes aware that there has been a breach of Condition 8202 (or any other condition), the registered provider must comply with the obligation in s 20 of the ESOS Act.

42 Notice under s 20 of the ESOS Act to a student visa holder may trigger the operation of s 137J of the Migration Act. That section provides:

‘(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 28^th day after the day that the notice specifies as the date of the notice unless, before the end of that 28^th 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.’

43 Two things may be noticed. First, the section applies even if the non-citizen does not receive the notice under s 20 of the ESOS Act: s 137J(1). Secondly, if the student non-citizen does not comply with s 137J(2) of the Migration Act the visa is cancelled by force of the section itself: s 137J(2).

44 In the case of this notice it is not easy to see how the applicant could comply with the notice s 137J(2)(a) except by reporting to the Department of Immigration and Multicultural and Indigenous Affairs: s 137J(2)(b).

45 In any event, the non-citizen who is in the migration zone immediately becomes liable to be detained under s 189 of the Migration Act and becomes liable to be removed from Australia under s 198 of the Migration Act.

46 Thus, a notice which is not complied with sets in train a procedure which may have significant repercussions for the person to whom the notice is directed.

47 In Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078, Cooper J said that s 20 of the ESOS Act is not concerned with the cancellation of student visas. It is concerned with the regulation of registered providers of education services to overseas students in Australia. His Honour also said that s 20 of the ESOS Act does not create any rights or obligations in the student but merely initiates the procedure under s 137J of the Migration Act.

48 However, that said, any notice which is given under s 20 of the ESOS Act, if it is to operate to initiate the procedure under the Migration Act, must comply with that section.

49 The notice can only comply with s 20 if the notice is in the form which has been approved by the Secretary of the Minister’s department: s 20(3). Moreover, it must comply with s 20(4). Whilst s 20 is principally concerned with the regulation of registered providers, the registered provider will have not complied with the registered provider’s obligations under the ESOS Act if the registered provider does not comply with s 20(4).

50 Section 20(4) provides:

‘(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.’

51 If the student to whom the notice is directed does comply with the notice, that does not mean that the student’s visa will not be cancelled but only means that the student’s (in s 137J of the Migration Act called ‘the non-citizen’) visa will not be cancelled by the operation of s 137J itself.

52 The non-citizen’s visa is still liable to be cancelled because of the operation of s 116 of the Migration Act. Relevantly, that section provides:

‘(1) Subjection 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.’

53 Regulation 2.43 of the Migration Regulations 1994 (Cth) relevantly provides:

‘(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

(a) each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and
(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:

(i) condition 8104 or 8105 (if the condition applies to the visa); or

(ii) condition 8202.’

54 That regulation obliges the Minister to cancel a visa where the person holds a Student (Temporary) (Class TU) visa and the Minister is satisfied that the visa holder has not complied with Condition 8202. There is no discretion reposing in the Minister not to cancel the visa where there has been a breach of Condition 8202: Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238. The discretion in s 116(1) becomes a mandatory obligation under s 116(3).

55 If, therefore, the student complies with the notice under s 20 of the ESOS Act, the student visa holder will still have his/her visa cancelled if the student has not complied with Condition 8202 or the other conditions referred to in Regulation 2.43(2)(b)(i).

56 However, the Minister must proceed under s 119 of the Migration Act:

‘(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.

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

(4) The other provisions of this Subdivision do not apply to a cancellation:

(a) under a provision other than section 116; or

(b) to which Subdivision F applies.’

The Minister must otherwise comply with Subdivision E of Division 3.

57 Thus, the Minister is required to provide the visa holder with the information in s 120 and invite the visa holder to give comments in the manner prescribed by s 121.

58 In summary, therefore, where a student is given notice under s 20 of the ESOS Act, and does not comply with that notice, the student’s visa will be automatically cancelled pursuant to the provisions of s 137J of the Migration Act. On the other hand, where a person has been given notice and complies with that notice, that person’s visa will still be cancelled if that person has breached Condition 8202 of the visa.

59 If a non-citizen’s visa is cancelled, pursuant to the operation of s 137J of the Migration Act, the non-citizen may apply for a revocation of cancellation pursuant to s 137K. If such an application is made, the application is governed by s 137L which provides:

‘(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non-citizen’s control; or
(c) of any other matter prescribed in the regulations.

(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.

(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.’

60 A visa holder complies with Condition 8202 if the holder is enrolled in a registered course which includes a full time course of study or training; the Minister is satisfied that the holder attended for at least 80 per cent of the contact hours scheduled for the course or the semester; and the holder achieves an academic result that is certified by the education provider to be at least satisfactory. If Condition 8202 is breached, the registered provider must give notice under s 20 of the ESOS Act in a notice that contains particulars of the breach.

61 The ESOS Act itself does not identify the level of particularity which is required under s 20(4)(a).

62 In Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25], which was an appeal not concerned with a student visa of the kind in this review application, the Full Court of this Court said, in speaking of s 119 of the Migration Act, which as already demonstrated provides a procedure for the Minister considering cancelling a visa that requires the Minister to first notify the visa holder and give particulars of the grounds and the information upon which the Minister might rely:

‘Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.’

63 The applicant argued that a notice under s 20 of the ESOS Act must comply with s 20(4)(a) and contain particulars of the breach. He argued that those particulars, like a notice under s 119 of the Migration Act, must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.

64 There can be no doubt that the notice under s 20 of the ESOS Act must contain particulars. The level of particularity must serve the statutory purpose. However, the statutory purpose of the notice under s 20 of the ESOS Act is quite different to the statutory purpose under s 119 of the Migration Act. The purpose of s 20 is to bring to the student’s attention that the registered provider has formed the opinion that the student has breached a condition of the student visa. It is an initiating procedure. At the time the registered provider gives a student notice under s 20, the Minister has not taken any steps to cancel the student’s visa.

65 The statutory purpose of s 20, apart from the purpose to which I have already referred which relates to the registered provider, is to bring to the student’s attention the registered provider’s opinion that the student has breached a condition of the student visa and to have the student either comply directly with the notice or, alternatively, attend in person for the purpose of explaining the breach alleged in the notice.

66 If the student complies with the notice by attending but cannot explain the breach alleged in the notice, then the student will, in due course, receive all of the information that s 119 of the Migration Act demands and be accorded the protection of the procedures which the Minister must observe in Subdivision E of Division 3 of Part 2 of the Migration Act.

67 It follows, therefore, in my opinion, that a notice under s 20(4) of the ESOS Act does not require the same sort of particularity as a notice under s 119 of the Migration Act.

68 In my opinion, it would be sufficient to comply with s 20(4)(a) of the ESOS Act for the service provider to identify the condition which has been breached (i.e. in this case, Condition 8202) either by number or description and by identifying the manner in which the condition has been breached.

69 It was argued by the applicant that the notice which was given on 8 July 2003 did not comply with s 20(4) of the ESOS Act in that it did not give particulars of the breach.

70 Condition 8202 was described in the visa endorsed on the applicant’s passport as ‘meet course requirements’.

71 The breach of the condition alleged in the s 20 notice was ‘relating to satisfactory academic performance in the course in which you have been enrolled at this institution’.

72 The breach of a student visa condition relating to satisfactory academic performance is one of the breaches provided for in s 20(1). The other is if the student has breached a student visa condition relating to attendance. They are separate breaches, although a student may breach a condition relating to satisfactory academic performance because the student has not in fact regularly attended.

73 In any event, the breach in this case was said to be a breach relating to satisfactory academic performance.

74 However, the particulars of the breach rather suggest a breach of both satisfactory academic performance and a condition relating to attendance.

75 In my opinion, the particulars are not particulars of the breach of the condition.

76 In any event, the expression ‘Poor progress and attendance’ does not particularise the alleged breach or breaches of Condition 8202.

77 It is not a breach of Condition 8202 to poorly attend the course at which the student is enrolled. The breach is in the student enrolling in a course, which runs at least for a semester, and not attending 80 per cent of the contact hours scheduled for each semester of the course.

78 Moreover, it is not a breach of Condition 8202 to make poor progress.

79 The breach would be in the education provider failing to certify that the visa holder achieved an academic result ‘to be at least satisfactory’: Condition 8202(3)(b).

80 I do not think that means that there must be a certificate of the registered education provider that the visa holder has achieved an academic result that is certified not to be at least satisfactory. The absence of a certificate by the education provider that the academic result is at least satisfactory in circumstances where the education provider is not prepared to give such a certificate provides, in my opinion, for the necessary breach.

81 However, in my opinion, the notice given on 8 July 2003 was inadequate and also, in the respects just mentioned, wrong.

82 That raises a further question as to the effect of a registered provider failing to give proper particulars under s 20(4)(a) of the ESOS Act.

83 Such a failure may be an offence. Section 20(1) requires the registered provider to provide a written notice which must be in the form provided for in s 20(3) and s 20(4). Whether the failure, in this case, to give the appropriate particulars amounts to an offence is not a matter for me to address in these reasons. The registered provider was not represented on this application and no decision of that kind could be made in its absence.

84 I do have to decide, however, the effect upon any applicant who receives a notice which does not contain adequate particulars or particulars that are wrong.

85 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389, McHugh, Gummow, Kirby and Hayne JJ said:

‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.’

86 In my opinion, a notice under s 20 of the ESOS Act, which does not contain sufficient particulars, or which contains particulars which are wrong, is not invalid and of no effect.

87 For the reasons already given, the purpose of the notice, in relation to the student, is to bring to the student’s attention that the registered provider is of the opinion that the student has breached a condition of the student visa. It is an allegation by an institution which has no power to take any further action in respect of the allegation. The allegation has no effect if the student responds to the notice and establishes the absence of a breach. The allegation itself has no effect even if the student does not respond to the notice because it is not the allegation which triggers the operation of s 137J of the Migration Act but the notice itself.

88 Moreover, a student’s visa will be cancelled even if the student does not receive a s 20 notice: s 137J. The Minister is not entitled to revoke the cancellation on the ground that the non-citizen was unaware of the notice or the effect of s 137J: s 137L(2). In those circumstances, it is difficult to say that a s 20 notice, which is under particularised, should be held to be invalid and of no effect in relation to the student.

89 For those reasons, in my opinion, the notice was not invalid and of no effect. It continued to operate and, in this case, the applicant’s visa was cancelled by operation of s 137J of the Migration Act.

90 The applicant next argued that the delegate’s reasons, and the MRT’s further reasons, show that each of them had before them a certificate of unsatisfactory academic performance which they relied upon. He argued that he had never been provided with that certificate and, in those circumstances, he had been denied procedural fairness.

91 In my opinion, there is no evidence to suggest that the delegate or the MRT had a certificate of unsatisfactory academic performance. As I already noted, the delegate referred to the applicant’s academic performance remaining unsatisfactory ‘as certified by Curtin International College’, but that is not a reference to a certificate of unsatisfactory academic performance. That, in my opinion, is a reference to the information which had been supplied to the delegate in the Certificate of Attendance, which was provided to the applicant.

92 The MRT said in its reasons, at [26] recited above, that Curtin had considered his performance was unsatisfactory. That again, in my opinion, was not a reference to a freestanding certificate of unsatisfactory academic performance.

93 Indeed, there was no need for such a certificate. It is the absence of a certificate that the holder has achieved an academic result to be at least satisfactory that triggers the breach. In those circumstances, it could not be thought that any certificate of the kind exists.

94 In my opinion, that ground must also fail.

95 Next, the applicant argued that the MRT asked itself the wrong question in relation to the breach of clause 3(a) of Condition 8202. I am not sure that the s 20 notice ever alleged that the applicant breached that clause of Condition 8202 notwithstanding the particulars. The applicant argued that, in considering the medical certificates which were before it, the MRT did not have regard to the number of contact hours scheduled by Curtin but, rather, the number of days that the applicant was absent. It thereby made no finding in relation to the number of contact hours which had been scheduled and the number of contact hours which had been attended. Whilst it is true that the MRT did not refer directly to ‘contact hours’ but rather to days, I think that was driven by the applicant’s claim that he was ill for the whole day. Assuming that to be the case, there was with each course only one contact hour in that day so the question in fact was the same.

96 The applicant put before me a schedule which, upon the assumptions in the schedule itself, established that the applicant did attend 80 per cent of the contact hours.

97 The assumptions inherent in the schedule were first, a 14 week semester; secondly, four sessions per week for one contact hour each; thirdly, Curtin’s claim that the applicant was absent from 18 sessions without approval; fourthly, eight certificates of medical practitioners which show that the applicant was unfit to attend class on that particular day; and fifthly, the result that 10 out of 56 contact hours were not met. In those circumstances, it was submitted that the applicant had attended more than 80 per cent of the contact hours and, in fact, had attended 82.14 per cent.

98 I think the assumptions relied upon can be accepted. I think, on the evidence before the MRT, that the applicant did establish that he had medical certificates for eight absences. He also established that two of the absences occurred over Easter and one other absence was accepted. In those circumstances, he did establish before the MRT that he was absent from his course on 10 occasions out of 56 contact hours. Indeed, I think the MRT accepted that in the final sentence in its reasons: [25]. There it said:

‘On a generous application of the certificates supplied, it may be that Mr Chen would be close to achieving the 80% attendance as he claims.’

99 I think, in the end, for the reasons the MRT gave in [26], the applicant’s claim failed because of his breach of clause 3(b) of Condition 8202, namely, satisfactory academic performance and not for a failure to attend as required in clause 3(a) of Condition 8202.

100 Mr Lindsay, who appeared for the applicant, argued that if the MRT rejected the applicant’s review for that reason it did so because it again asked itself the wrong question.

101 Because of the provisions of s 137L of the Migration Act, the Minister may revoke the cancellation under s 137J only if the non-citizen satisfies the Minister that he or she did not in fact breach the relevant visa condition, or that the breach was due to exceptional circumstances beyond the non-citizen’s control, or for any other matter prescribed in the Regulations.

102 In this case, there was a breach of the relevant visa condition in respect of satisfactory academic performance and no other matter in the Regulations was relevant.

103 Therefore, if the Minister were to revoke the cancellation, the applicant had to satisfy the Minister that the breach of clause 3(b) of Condition 8202 was due to exceptional circumstances beyond the applicant’s control.

104 The MRT said that it had regard to the Department’s policy guidelines in the form of Migration Series Instructions No. 354, dated 5 June 2002, which relates specifically to automatic cancellations of student visas. Those guidelines state:

‘7.3.1 ...

Only where the former visa holder can show that they did not in fact breach Condition 8202 as alleged by their education provider or there were exceptional circumstances beyond the student’s control (eg hospitalisation) would result in the revocation of the automatic visa cancellation.

Examples of circumstances where an officer might consider revoking the cancellation include where:

• there has been a case of mistaken identity and a student’s visa has been cancelled in error;
• a student’s visa was cancelled only because the student had transferred to a second education provider; and
• there were emergency circumstances beyond the student’s control, eg illness, injury, hospitalisation.’

105 The applicant argued that the MRT led itself into error in its application of those guidelines. In [24] of its reasons the MRT said:

‘There has been no mistaken identity leading to cancellation in error and Mr Chen did not transfer to a second education provider. While it accepts his evidence that he was stressed and unwell enough to seek medical advice and assistance, these were not emergency circumstances beyond his control in the view of the Tribunal.’

106 Again, in [26], as recited above, the MRT had regard to ‘emergency circumstances’ in considering whether there were circumstances beyond the applicant’s control.

107 Mr Lindsay, who appeared for the applicant, argued that the MRT fell into error in considering ‘emergency circumstances’ rather than the test provided for in s 137L of the Migration Act, whether the breach was due to exceptional circumstances beyond the non-citizen’s control.

108 I think the published guidelines are unfortunate in providing examples of circumstances where revocation may occur as a result of emergency circumstances beyond the student’s control.

109 I realise that the examples are given after reference to the appropriate test under s 137L but the guidelines could lead to the MRT and to a delegate being confused as to the appropriate test.

110 The question which needed to be determined by the Minister (and therefore the delegate and the MRT) was whether the applicant has satisfied the Minister that the breach was due to exceptional circumstances beyond the applicant’s control.

111 Any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking the cancellation.

112 In this case, whilst the MRT assumed that on a generous application of the certificates supplied Mr Chen would be close to achieving 80 per cent of the attendance he required, it did not translate that assumption to its consideration as to whether exceptional circumstances, beyond the applicant’s control, existed in relation to the breach of clause 3(b) of Condition 8202.

113 In my opinion, the MRT had to make a finding as to the number of contact hours which were missed by reason of the applicant’s medical condition and whether those missed hours were due to exceptional circumstances beyond the applicant’s control.

114 It also had to make a finding whether, by missing that number of contact hours, the applicant was thereby prejudiced in achieving a satisfactory academic performance.

115 It had to make a finding as to whether the applicant’s failure to achieve a satisfactory academic performance was as a result of his medical condition which amounted to exceptional circumstances beyond his control.

116 It did not do that but, rather, addressed the question whether there were emergency circumstances beyond his control.

117 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351, McHugh, Gummow and Hayne JJ said:

‘"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.’ (Footnotes omitted.)

118 The MRT asked itself the wrong question and thereby fell into jurisdictional error.

119 In my opinion, the applicant is entitled to relief.

120 I would order that a writ of certiorari issue to quash the decision made by the MRT on 5 May 2004.

121 I would remit the matter to the MRT for further hearing according to law.

122 The respondent should pay the applicant’s costs.

I certify that the preceding one hundred and twenty two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 11 March 2005

Counsel for the Applicant:	Mr R Lindsay
Solicitor for the Applicant:	CGN Legal
Counsel for the Respondent:	Mr L Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 March 2005
Date of Judgment:	11 March 2005