Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 123 (1 July 2005)

Last Updated: 13 September 2005

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 123

MIGRATION - Subclass 560 student visa - cancellation for breach of condition 8202 attached to visa - whether notice issued under s 20 of Education Services for Overseas Students Act 2000 (Cth) effective if not issued ‘as soon as practicable’ after breach of visa condition -validity of s 20 notice if non-citizen no longer an ‘accepted student’ of the education provider - status of non-citizen as ‘accepted student’ determined at time of breach of visa condition - appeal dismissed



Acts Interpretation Act 1901 (Cth) s 28A
Education Services for Overseas Students Act 2000 (Cth) s 19, 20, 21
Migration Act 1958 (Cth) s 116(1)(b), 116(3), 137J, 137K, 137L
Migration Regulations (1994) (Cth) reg 2.43(2)(b)(ii)



Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 cited
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 applied

















YU-TING LIU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
QUD 169 OF 2004



SPENDER, DOWSETT & HELY JJ
1 JULY 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 169 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	YU-TING LIU APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, DOWSETT & HELY JJ
DATE OF ORDER:	1 JULY 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.













Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 169 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	YU-TING LIU APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SPENDER, DOWSETT & HELY JJ
DATE:	1 JULY 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of a judge of this Court dismissing the appellant’s application for judicial review of a decision of the Migration Review Tribunal (‘the MRT’) made on 12 November 2003.

Background

2 The appellant first entered Australia on 2 September 1995 as the holder of a Student (Temporary) (Class TU) visa, subclass 560 (‘the 560 visa’). The 560 visa was subsequently renewed on a number of occasions, the last of which was on 4 April 2001. Attached to the 560 visa was ‘Condition 8202’ as set out in Item 4 of Schedule 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) which included a requirement that the appellant achieve an academic result that is certified by the education provider to be at least satisfactory.

3 The Queensland University of Technology (‘QUT’) is and was at all material times a registered provider under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’).

4 In 2001 the appellant became a registered student of QUT, undertaking a Bachelor of Business degree. The registered start date for his course was 9 February 2001 and the anticipated end date was 31 December 2003. The appellant’s residential address as recorded by QUT was 17/23 Agnes Street, Spring Hill, Brisbane. The appellant was excluded from his course on 2 January 2002 because of his failure to make satisfactory progress. He appealed against this exclusion and his appeal was rejected by QUT on 18 February 2002.

5 On 26 February 2002 the appellant commenced study as a student undertaking a Bachelor of International Business at Griffith University. He supplied the MRT with a statutory declaration to the effect that he moved house from 17/23 Agnes Street, Spring Hill, Queensland to 39/12 Grandchester Street, Sunnybank Hills, Brisbane, Queensland on 19 February 2002 and authorised Australia Post to redirect his mail to the new address for a period of three months. He did not advise QUT of his change of address because he was no longer a student with that institution, although he claims to have informed the Department of Immigration & Multicultural & Indigenous Affairs (‘DIMIA’) and Griffith University of the new address.

6 On 30 July 2002 QUT sent to the appellant at 17/23 Agnes Street, Spring Hill a notice pursuant to s 20 of the ESOS Act, and at the same time sent to the Secretary of the Department of Education, Science and Training (‘the Secretary’) a notice pursuant to s 19 of the same Act. At the expiration of 28 days from 30 July 2002, as the appellant had not complied with the notice by reporting to a DIMIA compliance officer, his existing visa was treated by DIMIA as having been automatically cancelled pursuant to s 137J of the Migration Act 1958 (Cth) (‘the Migration Act’) on 28 August 2002. The appellant was subsequently contacted by DIMIA and advised that his student visa had been cancelled for failure to comply with a notice issued by QUT under s 20 of the ESOS Act.

7 On 18 November 2002 the appellant applied, pursuant to s 137K of the Migration Act, for revocation of the cancellation effected by the operation of s 137J of the Act. The appellant claimed that in consequence of his leaving his old address which had been registered with QUT, the notice under s 20 of the ESOS Act never came to his attention. Accordingly, he was unaware of the contents of the notification and of his obligation to contact DIMIA within 28 days of the date of issue of the notification. He further submitted to the delegate that the breach of his visa condition was due to exceptional circumstances beyond his control, mainly the ill health of family members overseas, and the effect that this was having on his ability satisfactorily to perform his duties. On 28 November 2002 the delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (‘the Minister’) determined not to revoke the automatic cancellation of the appellant’s visa. The appellant applied to the MRT under the provisions of the Migration Act for review of the decision of the delegate. On 12 November 2003 the MRT affirmed the decision of the delegate not to revoke the cancellation of the appellant’s visa. The MRT found that the appellant did in fact breach Condition 8202 (failing to achieve a satisfactory academic result) to which the appellant’s visa was subject. The MRT was not satisfied that the breach was due to exceptional circumstances beyond the appellant’s control.

The legislative scheme

8 Sections 19, 20 and 21 of the ESOS Act provide as follows:

‘19. Giving information about accepted students

(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:

(a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student – the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of studies by an accepted student before the student’s course is completed;
(e) any change in the identity or duration of an accepted student’s course;
(f) any other prescribed matter relating to accepted students.

(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.

(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.

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.

Unincorporated registered providers

(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.

20 Sending students notice of visa breaches

(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.

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.

21 Record keeping

(1) A registered provider must keep records of each accepted student who is enrolled with the provider or who has paid any course money for a course provided by the provider.

(2) The records must consist of each accepted student’s current residential address, as supplied by the student, and any other details prescribed by the regulations.

(3) The provider must retain the records for at least 2 years after the person ceases to be an accepted student. However, the records do not need to be kept up to date after the cessation.

Note: 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 105.

Unincorporated registered providers

(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer who must keep and retain the records as required under this section.’

9 An ‘accepted student’ is defined by s 5 of the ESOS Act as:

‘Accepted student of a registered provider means a student (whether within or outside Australia):

(a) who is accepted for enrolment, or enrolled, in a course provided by the provider; and
(b) who is, or will be, required to hold a student visa to undertake or continue the course.’

10 Subdivision GB of Division 3 of Part 2 of the Migration Act was inserted into the Act by Act No 168 of 2000 (the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)) with effect from 4 June 2001. Section 137J appears in that subdivision:

‘137J Non-complying students may have their visas automatically cancelled

(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).

Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of explaining the breach.

(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.’

11 A non-citizen whose visa has been cancelled under s 137J may apply in writing to the Minister for revocation of the cancellation: see 137K of the Migration Act. The powers of the Minister in dealing with an application made under s 137K are provided for in s 137L of the Migration Act, which relevantly provides:

‘137L Dealing with the application

(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.’

12 Under s 116(1)(b) of the Migration Act, when read in conjunction with s 116(3) of that Act and Regulation 2.43(2)(b)(ii) of the Regulations made under that Act, the Minister must cancel a Student (Temporary) (Class TU) visa for breach if the holder has not complied with Condition 8202. Section 137P(1) of that Act provides that if a cancellation of a visa is revoked under s 137L, the visa is taken never to have been cancelled under s 137J. If the revocation is made wholly or partly on the ground that par 137L(1)(a) or (b) applies to the breach, then s 137P(2) of the Migration Act provides that the breach cannot be a ground for cancelling the visa under s 116. Thus a person whose visa is automatically cancelled under s 137J of the Migration Act may be in a better position than a person whose visa is cancelled under s 116, because it is only in the former case that exceptional circumstances beyond the holder’s control may effectively excuse a breach for which cancellation is mandatory under s 116.

The proceedings in this Court

13 The decision of the MRT is a privative clause decision in terms of s 474 of the Migration Act, unless it is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. The appellant sought to establish the existence of a jurisdictional error by contending that the MRT misconstrued the relevant provisions of the ESOS Act. The appellant’s contentions were summarised by the primary judge as follows:

‘(a) that a valid notice under s 20 of the ESOS Act is an inviolable statutory limit or condition upon a power which as a matter of construction must be observed for the effective exercise of the power;
(b) no such notice was given by QUT at any time while the applicant was an accepted student as defined in s 5 of the ESOS Act, and could not be given at any time after the applicant ceased to be an accepted student of QUT;
(c) the failure of QUT to send the notice under s 20 of the ESOS Act until 30 July 2002 meant that the notice was not sent "as soon as practicable after the breach" as required by s 20(2). Accordingly, the notice was not a valid or effective notice for the purposes of either s 20 of the ESOS Act or s 137J of the Migration Act;
(d) the matters set out in pars (a), (b) and (c) above constituted a failure to comply with an inviolable limitation or restraint which was a jurisdictional error sufficient for the purposes of denying an operation to s 474 of the Migration Act: see Plaintiff S157 of 2002 at par 76; Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 632; R v Metal Trades and Employers Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 at 248; and
(e) additionally, the delay in serving the notice amounted to a lack of procedural fairness being extended to the applicant, such procedural fairness itself constituting a jurisdictional error: see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.’

14 The appellant’s principal argument relied on the definition of an ‘accepted student’ for the purposes of the ESOS Act. The appellant submitted that s 20, on its proper construction, requires at the time the registered provider sends the notice the student must be a student who satisfies the definition in s 5 of the ESOS Act. That is, in the present case, s 20 required that the appellant be accepted for enrolment or be enrolled in a course at QUT on 30 July 2002 when QUT purported to give the appellant a notice under s 20 of the ESOS Act. The appellant submitted that because he had been excluded since January 2002 from QUT and had enrolled and commenced as a student at Griffith University, he no longer satisfied the definition of an accepted student at QUT on 30 July 2002 and thus it was beyond the power of QUT to give him an effective notice for the purposes of s 20 of the ESOS Act.

15 The primary judge’s conclusion in relation to this issue is as follows:

‘26. The ESOS Act, in s 19 and s 20, does not require that the student remain an accepted student at all times after the obligation on QUT to give the requisite notice arose in order that any notice given by QUT is, for the purpose of s 19 and s 20 an effective notice. The object of s 19 and s 20 is to initiate processes to ensure that the future status of the student visa is addressed under the Migration Act, having regard to the breach of visa condition. Whether or not there remains a relationship of registered provider and accepted student for the purposes of the ESOS Act is entirely irrelevant to the matters which are put in progress by the giving of a notice under s 20 of the ESOS Act. Accordingly, the application fails on this ground.’

16 The appellant’s second principal argument was that the failure of QUT to send the notice under s 20 of the ESOS Act until 30 July 2002 meant that the notice was not sent ‘as soon as practicable after the breach’ as required by s 20(2). This ground was not raised before the delegate on the appellant’s application under s 137K of the Migration Act for revocation of the automatic cancellation, nor was it raised before the MRT. Consequently, no direct finding was made by the delegate or the MRT as to whether or not the despatch of the notice on 30 July 2002 was as soon as practicable in all of the circumstances. Apparently the delay was due to the fact that the notice had been erroneously sent to another student with a similar name to that of the appellant at the time of the rejection of the appellant’s appeal against the exclusion in February 2002 and there was some delay in the discovery of this error.

17 The primary judge held that even assuming the notice was not given ‘as soon as practicable after the breach’ of the visa condition the notice was not invalid, having regard to the reasoning of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (‘Project Blue Sky’) at [93]. By reference to ‘the language of the relevant provision and the scope and object of the whole statute’ his Honour determined that it was not a purpose of the legislature that a notice given outside the time period provided in s 20(2) of the ESOS Act should be invalid.

The appeal to this Court

18 On the hearing of the appeal the appellant repeated the submissions which had been unsuccessfully put on his behalf to the primary judge, namely, that a notice under s 20 is not validly given under s 20 unless the person to whom it is given is an ‘accepted student’ of the education provider when the notice is given and unless the notice is given as soon as practicable after the breach. Each of these submissions should be rejected, essentially for the reasons given by the primary judge.

19 Whether a person is an ‘accepted student’ of the registered provider falls to be determined when the breach of the student visa condition occurs. In the present case, that was on 2 January 2002, when the appellant was excluded from his course because of his failure to make satisfactory progress. The appellant was, at the time of the breach, an ‘accepted student’ of QUT, and QUT came under an obligation to notify both the Secretary and the appellant of the breach. That obligation continued until it was discharged by performance. As the primary judge said (in the passage from his Honour’s judgment quoted above), the object of the ss 19 and 20 notices is to initiate processes to ensure that the future status of the student visa is addressed under the Migration Act, having regard to the breach of the visa condition. Whether or not there remains a relationship of registered provider and accepted student for the purposes of the ESOS Act is entirely irrelevant to the matters which are put in progress by the giving of a notice under s 20 of the ESOS Act. Accordingly, the appeal on this ground fails.

20 The notices under ss 19 and 20 of the ESOS Act are required to be given ‘as soon as practicable’ after the breach. The ESOS Act does not specify any method by which a notice under s 20 is to be given, although s 21(2) requires that the records maintained by a registered provider must include each accepted student’s current residential address as supplied by the student. Hence, there is no obligation to update the records required to be kept in relation to an accepted student after the person ceases to be an accepted student. It may be implicit in s 21(2) of the ESOS Act and s 28A of the Acts Interpretation Act 1901 (Cth) that the notice may be posted to the last residential address supplied by the student to the registered provider giving the notice. It is implicit in s 137L(2) of the Migration Act that automatic cancellation of a visa may occur even if the student does not receive the notice under s 137J, and s 137J(1) expressly so provides.

21 The period in which it is ‘reasonably practical’ to give an accepted student a notice under s 20 is not effectively extended just because a notice is erroneously sent to another student with a similar name, when it should have been sent to the appellant. That may provide an explanation for the breach of the obligation, but it has no bearing upon whether a breach has occurred. It is self-evident in the circumstances of the present case that the s 20 notice was not given ‘as soon as reasonably practicable’, even though the MRT has not made a specific finding to that effect. The primary judge correctly proceeded upon the assumption that this was so.

22 Section 137J of the Migration Act is enlivened if a notice ‘under’ s 20 of the ESOS Act ‘is sent to’ the appellant. The second of the appellant’s substantial arguments is that s 137J of the Migration Act is only enlivened if a notice which is authorised by s 20 of the ESOS Act is sent to the appellant, and a notice which is not sent as soon as reasonably practicable does not satisfy that description. Acceptance of that argument would involve the consequence that if it was reasonably practicable to have sent the notice a few days earlier that it was in fact sent, the notice would be invalid for all purposes. It is unlikely that the legislature intended that s 137J would operate in that way as no right of the student under the ESOS Act is prejudiced by the failure of the registered provider to give notice within the time prescribed in s 20(2): see Project Blue Sky at [93]. Even if a student’s visa is automatically cancelled under the Migration Act for non-compliance with a notice under s 137J, the Minister may revoke the cancellation if the student satisfies the Minister that he did not in fact breach the visa condition, or if a breach did occur, that it was due to exceptional circumstances beyond the student’s control.

23 No argument was put to the MRT, or to the primary judge that the notice was not ‘sent’ to the appellant by posting it to his last registered address with QUT even though he no longer resided there. If the notice was not ‘sent’ to the appellant as required by s 137J then there could be no automatic cancellation of the appellant’s visa, and nothing for the Minister or the MRT to revoke under s 137L. Whether or not the appellant’s visa had been effectively revoked was not a matter for decision by the MRT, whose administrative function was confined to determining whether, on the assumption that the appellant’s visa had been revoked, it should be reinstated. It would have been open to the appellant to apply for a declaration by this Court that his visa had not been automatically cancelled as a notice under s 137J had not been ‘sent’ to him. However, he did not do so. The only relief claimed in the application is an order quashing or setting aside the MRT’s decision, and that the Minister be ordered to ‘re-instate’ the appellant’s visa.

24 There are occasional hints in the appellant’s submissions to this Court that his visa was not automatically cancelled because the s 137J notice was not ‘sent’ to him. That submission was explicitly put in the document styled ‘Further submissions filed on behalf of the appellant’, filed by leave after the conclusion of oral argument. But this complaint is outside the scope of the application made in the present proceedings. It was not raised at first instance, nor is it a ground taken in the Notice of Appeal. It is therefore unnecessary for us to pursue this question any further. If the position were otherwise, issues of futility might have required consideration as it appears now to be common ground that the appellant was in breach of Condition 8202, and as such the Minister was bound to cancel his visa in any event.

25 The appellant’s written further submissions also assert that the change in education providers did not give rise to any obligation in the appellant to change his visa subclass. We do not need to decide whether this is so or not, as it is irrelevant to any issue raised in these proceedings.

26 The appeal should be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 1 July 2005

Counsel for the Appellant:	Mr S Nguyen
Solicitor for the Appellant:	Butts & Barkley Solicitors
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 May 2005
Date of Judgment:	1 July 2005