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Lin v Minister for Immigration & Anor [2011] FMCA 529 (12 July 2011)

Last Updated: 15 July 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 529

MIGRATION – Application to review decision of Migration Review Tribunal – certification by education provider constituting non-compliance with condition 8202 – applicant disputed correctness of certification – no jurisdictional error.


Ahmad v Minister for Immigration and Citizenship [2009] FCA 1368
Maan v Minister for Immigration and Citizenship and Another (2009) 179 FCR 581; [2009] FCAFC 150
Minister for Immigration and Citizenship v Brar and Another (2009) 175 FCR 432; [2009] FCAFC 53
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

Applicant:
XIAOLEI LIN

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 2283 of 2010

Judgment of:
Barnes FM

Hearing date:
28 February 2011

Last date for Submissions:
28 March 2011

Delivered at:
Sydney

Delivered on:
12 July 2011

REPRESENTATION

Applicant:
In person

Counsel for the Respondents:
Mr J A C Potts

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The application is dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2283 of 2010

XIAOLEI LIN

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 24 September 2010 affirming a decision of the delegate of the first respondent to cancel the applicant’s Class TU (Subclass 573) (Higher Education Sector) Student visa.
  2. The applicant, a citizen of the People’s Republic of China, arrived in Australia in April 2005 on a student visa. According to the Tribunal he has held a number of such visas since that date, the last of which was the subclass 573 visa granted on 28 August 2007.
  3. Relevantly, the applicant was enrolled in a Bachelor of Business (City) degree at the University of Technology Sydney (UTS) from 21 July 2008. Mr Lin’s student visa was subject to condition 8202 which, among other things, required him to meet the requirements of subcl.8202(3) in Schedule 8 to the Migration Regulations 1994 (Cth) which relevantly provides that:
  4. On 19 March 2010 UTS certified the applicant as not achieving satisfactory course progress in the Bachelor of Business (City) course for s.19 of the Education Services for Overseas Students 2000 (Cth) (the ESOS Act) and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code 2007).
  5. On the same day UTS issued the applicant with a notice under s.20 of the ESOS Act which explained that para.8202(3)(a) applied to him, that UTS had certified him “as not achieving satisfactory course progress in relation to Bachelor of Business (City)” and particularised his breach as a failure to meet the requirements of para.8202(3)(a) and hence a breach of condition 8202. The notice explained that his student visa would be automatically cancelled under s.137J of the Migration Act 1958 (Cth) (the Act) unless he attended the Department of Immigration and Citizenship to make submissions about the breach and the circumstances that led to the breach.
  6. On 13 April 2010 the Department of Immigration and Citizenship sent Mr Lin a notice of intention to consider cancellation of his student visa under s.116 of the Act which referred to the certification by UTS that he had not achieved satisfactory course progress and invited him to comment on the ground for cancellation and to give reasons why the visa should not be cancelled. The notice also set out the applicable law. Relevantly s.116 of the Act is as follows:
  7. Regulation 2.43(2) of the Migration Regulations provides:

(A) the visa holder has not complied with condition 8202; and

(B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.

...
  1. The notice also referred to the matters the delegate had to consider under Ministerial Direction No.38 which are “Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202” and asked the applicant to address any matters in the Direction he felt applied to him or that were relevant to his circumstances. In particular, the notice invited the applicant to give reasons why exceptional circumstances beyond his control caused him not to comply with condition 8202.
  2. The applicant’s attention was drawn to that part of the Ministerial Guidelines that (among other things) requires decision-makers to give due regard and make further inquiries as appropriate if the education provider has failed to accurately monitor the student’s course progress or attendance or to give the student access to a complaints handling and appeals process.
  3. Mr Lin provided a brief written comment on 15 April 2010 to the effect that it was “very unfair” that UTS had “tried to cancel” his student visa. He appeared to suggest that the certification had not been because he did not meet academic requirements but “simply because” on 1 March 2010 he had transferred to Curtin University of Technology for further studies.
  4. He claimed that he had been studying at UTS for three semesters. He acknowledged that for the first semester he had failed three out of four courses, but explained that he was allowed to continue with his study. He claimed that for the second and third semesters he had passed more than half of his subjects.
  5. The Minister’s delegate did not accept that the certification by UTS was because Mr Lin had transferred to another education provider. It recorded that according to records from the Provider Registration and International Student Management System (PRISMS) Mr Lin’s last date of study was 31 December 2009, that he did not lodge an internal appeal with UTS and that he was therefore reported on 19 March 2010 for unsatisfactory course progress. The delegate noted that Mr Lin had “not provid[ed] any evidence to support his claims of passing more than half of the subjects studied for second and third semester at UTS” or “any explanation of what impacted his studies which led to unsatisfactory course progress”. On 25 May 2010 the delegate cancelled Mr Lin’s visa.

Tribunal application

  1. Mr Lin sought review by the Tribunal on 31 May 2010. On 9 June 2010 the Tribunal received a written submission from Mr Lin which repeated his claims about his study at UTS and that his transfer to Curtin University was the reason for the certification. He claimed that he had not breached condition 8202 after his first semester (Spring 2008) because UTS allowed him to continue his study notwithstanding his failure in three of four courses in that semester and that in the second (Autumn 2009) Semester and third (Spring 2009) semester he passed more than half of the subjects he had studied and so did not breach condition 8202.
  2. The applicant provided the Tribunal with a copy of his academic record from UTS for the Bachelor of Business course from the Spring Semester 2008 to the Spring Semester 2009. It stated that Mr Lin failed three out of four subjects studied in Spring Semester 2008 (gaining six credit points out of 24 in 2008); that he failed the one subject he undertook in the 2009 Summer Session; that he failed one out of three subjects in the 2009 Autumn Semester (a subject he was repeating); and that he failed two out of four subjects in the 2009 Spring Semester (one of which was a subject he was repeating). The academic record also showed that Mr Lin gained 24 credit points out of the 48 for which he was enrolled in 2009 and stated that he was “EXCLUDED – FAILURE TO MAINTAIN MINIMUM RATE OF PROGRESS (RULE 10.4.1) – Date Applied: 15 Dec 2009.”
  3. By letter of 5 August 2010 (re-sent on 20 August 2010) the Tribunal invited the applicant to comment on the certification by UTS of his unsatisfactory progress on 19 March 2010. The Tribunal received a response in which the applicant reiterated his contentions about the reason for the certification and his claim that he did not breach condition 8202 as he was allowed to continue after the first semester and passed more than half the subjects he studied for his second and third semesters. He took issue with the fact that cancellation was based on certification by the education provider.
  4. Mr Lin attended a Tribunal hearing on 2 September 2010. The only evidence before the court of what occurred in the hearing is the Tribunal reasons for decision. While the affidavit filed on 23 December 2010 in support of the application to this court stated that the MRT hearing record was attached, there were no attachments to the affidavit and there was no transcript of the Tribunal hearing before the court. On 24 September 2010 the Tribunal decided to affirm the delegate’s decision to cancel his visa.

The Tribunal decision

  1. The Tribunal set out the applicable law and the Ministerial Direction No.38 and the applicant’s claims. It recorded that at the Tribunal hearing the applicant “confirmed that he received the notice from UTS”, but “was disputing that his progress was unsatisfactory” as he believed his progress in semesters two and three was satisfactory. He confirmed that his academic record was accurate and that he had failed seven of the twelve subjects he undertook between Spring Semester 2008 and Spring Semester 2009.
  2. According to the Tribunal, the applicant acknowledged that he had not raised with UTS that he disagreed with their view that he was not making satisfactory progress. He stated that he thought he should transfer to another university and that “[h]e did not contact anyone at UTS after receiving the notice”. The Tribunal also recorded that Mr Lin said that he had received letters from UTS before this notice, after first semester which was in the beginning of 2009, and that he had “talked to someone at UTS, who advised him to reduce his study load, which he did”.
  3. The Tribunal asked the applicant why he thought he was failing the subjects. The applicant told the Tribunal that he had “underestimated the difficulty of the [UTS] course” in the first semester and the summer semester, but claimed that thereafter he “tried really hard and passed most of the subjects”. He claimed that the “high requirements for English” in some subjects was a problem. He had to repeat some subjects. He tried hard and did not understand why his marks were sometimes even lower. He also claimed that in the Spring Semester of 2008 he had broken up with his girlfriend after a two year relationship. He told the Tribunal that he had not had any illnesses, that he wanted the degree and was “now doing well at Curtin University” having passed all his subjects in what he had found to be an easier course. He said that he had no family in Australia and that if he went back to China “they would be very angry” as they had “invested heavily financially and he would go back with nothing”.
  4. The Tribunal was satisfied that Mr Lin had not complied with condition 8202(3)(a) as a result of UTS certifying on 19 March 2010 that he had not achieved satisfactory progress in the Bachelor of Business (City) Course for s.19 of the ESOS Act and Standard 10 of the National Code.
  5. It was also satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control (see s.116(1) and s.116(3) of the Act and reg.2.43 of the Migration Regulations).
  6. The Tribunal considered the applicant’s claim that his unsatisfactory progress was due to the difficulty he experienced with the course. It accepted that the applicant did well in an Insearch course before the UTS course, that he was doing well in his Curtin University course and also that he had found the UTS Bachelor of Business course more difficult than expected. However it found that the applicant had chosen that course and had “met the academic requirements for entry”. It found that the fact that the course “was apparently beyond his ability [wa]s not an exceptional circumstance beyond [his] control”. The Tribunal also accepted that the required standard of English was very high for some of the subjects studied at UTS, but found that this was the “standard expected of every student undertaking those subjects” and was “not an exceptional circumstance beyond the applicant’s control”.
  7. Nor did the Tribunal accept that the applicant’s break up with his girlfriend in August 2008 was an exceptional circumstance beyond his control, finding that “such relationship changes [we]re not uncommon in young people in the applicant’s situation” and that there was no evidence “to indicate that the applicant was unusually affected by the break-up or that it had an adverse impact on his study”.
  8. The Tribunal also found that there were no matters to which it was required to have regard under Ministerial Direction No.38, in particular no written advice from the Department of Education, Employment and Workplace Relations or an education provider of “concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting, including concerns in relation to monitoring of the applicant, the complaints handling and appeals process and/or the certification and reporting process”.
  9. The Tribunal concluded that it was satisfied that the applicant had not complied with condition 8202 and that the ground for cancellation in s.116(1)(b) of the Act therefore existed. It was further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control and that, in accordance with s.116(3), such circumstances were prescribed circumstances in which the visa must be cancelled. Hence the Tribunal affirmed the decision to cancel the applicant’s Class TU (Subclass 573) (Higher Education) Student Sector visa.

These proceedings

  1. The applicant sought review by application filed in this court on 21 October 2010. He filed an amended application on 23 December 2010. In oral submissions he confirmed that he wished to rely on the grounds in his amended application, but I have considered all the claims in his original and amended application. The amended application (like the original application) contains a relatively lengthy narrative under the heading “Grounds of application” which is in the nature of a written submission. It is apparent however, that the applicant intends to assert that there was evidence before the Tribunal demonstrating that he was achieving satisfactory course progress which was ignored by UTS. He seemed to suggest that the certification by UTS was incorrect. In effect the applicant’s contention is that the Tribunal should go behind the UTS certification and consider for itself whether he had achieved satisfactory academic progress.
  2. The applicant claimed that while he was placed on an academic caution after first session 2008 (in which he passed one subject out of three) UTS had allowed him to continued to study. He claimed the summer session 2009 (in which he failed the one subject he undertook) should be included in the first half year of his study as he did the course and examination in 2008, although the results came out in 2009. Mr Lin claimed that thereafter he had a “significant improvement in [his] academic progress”, passing over fifty per cent of the credit points for which he subsequently enrolled and that this constituted satisfactory course progress at UTS. He claimed that during this time he “no longer receive (sic) any academic caution” after the first caution. The claim that he did not receive a further “caution” was repeated in his affidavit. He transferred to Curtin University on 1 March 2010 (fearing a future third failure of the same subject at UTS). He claimed that UTS “intended to cancel” his visa because he had failed seven out of twelve subjects in total. This was said to be unfair because it ignored his “hard work and improvement” in 2009.
  3. Mr Lin claimed he put to the Tribunal that this was unfair. He took issue with the Tribunal’s reliance on the UTS certification. Mr Lin queried how the system of cancellation based on certification would apply if an education provider made a mistake and sent a certification to a “high distinction student”.
  4. In addition, the applicant claimed that a friend who had also received a notice from UTS did not have his visa cancelled by the Department, notwithstanding what were said to be similar circumstances (except that the Department stated it had received unspecified further information about the other student).
  5. In oral submissions the applicant asserted that he was achieving satisfactory course progress at Curtin University and that he expected to finish that course in July 2011. He took issue with the Tribunal’s reliance on the certification by UTS. He claimed that a friend had been treated differently and so he thought there must be an error in the treatment of his case.
  6. In the hearing an issue arose about the extent to which a certification by an education provider had to particularise the breach. The parties were given and took the opportunity to make post-hearing written submissions.
  7. In submissions in reply the applicant not only addressed the issue of particulars in the certification but also raised, for the first time, the validity of the notice under s.20 of the ESOS Act. He also claimed that UTS had failed to comply with Standard 10 of the National Code in that it failed to notify him in writing or at all of its intention to report him for failing to meet minimum course progress. I have considered each of these issues.
  8. As the applicant recognised, the Tribunal’s finding that he did not comply with condition 8202 was based not on the Tribunal’s assessment of the actual progress or results achieved by him in his UTS course, but rather on the fact of certification by UTS that he had not achieved satisfactory course progress for s.19 of the ESOS Act and Standard 10 of the National Code. However, it did not err in proceeding on this basis. It is clear (see Maan v Minister for Immigration and Citizenship and Another (2009) 179 FCR 581; [2009] FCAFC 150 at [41] – [48]) that it is the certification by the education provider as to unsatisfactory course progress that constitutes non-compliance by the applicant with visa condition 8202(3)(a). It is not the acts or omissions of the visa holder himself (or the Tribunal’s assessment of his academic progress) that comprises the breach of condition 8202 (see Maan at [40] and [44]). The applicant’s view that this legislative approach is “unfair” may be understandable but it does not establish jurisdictional error on the part of the Tribunal.
  9. As pointed out by the Full Court of the Federal Court in Maan at [45] this “clearly imposes substantial responsibilities on the educational institutions” which were said to be “reinforced by the criminal liability imposed on individuals” (see s.108 of the ESOS Act) “for providing false or misleading information” about visa holders to the relevant Department under ss.19 and 20 of the ESOS Act.
  10. Insofar as the applicant suggested that the Tribunal should have found that the certification was made in error, this has not been established on the evidence before the court. Such a submission is inconsistent with the view of the Full Court of the Federal Court in Maan at [44]. The Tribunal was correct in finding that the UTS certification constituted non-compliance by Mr Lin with condition 8202.
  11. The applicant’s contentions as expressed in post-hearing submissions in reply also take issue with the procedures adopted by UTS prior to the certification. He now asserts that UTS failed to meet its obligations under the 2007 National Code and, in particular, that UTS failed to notify him in writing (or at all) of its intention to report him for not achieving satisfactory course progress or of the importance of failing to meet minimum course progress. There is no evidence from the applicant to this effect (except insofar as in his affidavit he claimed not to have received a second caution from UTS). Critically, there is no evidence that any such issue was raised by the applicant with the delegate or with the Tribunal.
  12. The National Code 2007 imposes standards on registered providers delivering education and training to overseas students, and includes requirements for monitoring attendance and progress of students and an appropriate internal complaints handling and appeals process. The “Outcome” of Standard 10 (which relates to monitoring course progress) is as follows:
  13. Clause 10.1 provides that:
  14. Such policies must specify certain matters including the “requirements for achieving satisfactory course progress” and the “procedure for notifying students that they have failed to meet satisfactory course progress requirements”.
  15. Course progress is to be assessed “at the end point of every study period” in accordance with such policies and procedures (cl.10.3). There has been no suggestion by the applicant that UTS does not have policies and procedures. Rather he now takes issue with whether UTS complied with those policies.
  16. Clause 10.4 provides that:
  17. Clause 10.5 requires that:
  18. The applicant appears to have acknowledged that he was the subject of such an intervention in early 2009.
  19. Clause 10.6 states that:
  20. It is only where “the student has chosen not to access the complaints and appeals processes” within 20 working days, that “the registered provider must notify the Secretary of DEEWR through PRISMS” that the student is not achieving satisfactory course progress (cl.10.7).
  21. Insofar as the applicant appeared to claim that an error had been made by UTS in relation to his course progress, based on his belief that he had been achieving satisfactory course progress, on his own evidence to the Tribunal he did not respond to the notice he received from UTS (although the precise nature of such notice is not specified in the Tribunal reasons). The factual issue of the number of subjects that he had failed was raised by him before the Tribunal. Even if the Tribunal had made a factual error in respect of this issue it was not an issue that went to its jurisdiction (Maan at [47]).
  22. It is not for the Tribunal to go behind a certification in every case as the applicant appeared to contend. There is nothing in the material before the court that would have given rise to any duty on the Tribunal to inquire, insofar as this may have been contended by the applicant. The applicant himself had provided the Tribunal with a copy of his academic record. Contrary to his suggestion that he had passed more than half of the subjects that he had studied after his initial failure of three out of four subjects in 2008, he failed the one subject he undertook in the Summer Session of 2009, passed two out of three in the Autumn Session 2009 and then failed two out of four subjects in Spring semester 2009. There is no evidence that he put to the Tribunal any concern about whether UTS had met its applicable policies or the National Code in relation to monitoring course progress, notification and an appeals process or that he claimed to the Tribunal that he was not aware that he had been excluded from the UTS course in December 2009 (as he now appears to suggest for the first time in post-hearing submissions). Rather, he disputed that his progress was unsatisfactory, apparently on the basis that he had improved in 2009.
  23. It was acknowledged by the first respondent in written submissions (and see Ministerial Direction No.38) that had any such matters been raised with the Tribunal such as to demonstrate a failure of administrative procedures, this matter could have been taken into account in relation to whether the non-compliance was due to exceptional circumstances beyond the applicant’s control. However the fact that the applicant now raises these issues with the court is not such as to establish that the Tribunal made a jurisdictional error on the material before it at the time of the decision.
  24. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal recorded that it asked the applicant whether he raised with UTS that he disagreed with their statement that he was not making satisfactory progress. He said that he did not. He acknowledged that he had received a notice and also that he had received letters from UTS before this notice, after the first semester. Had he wished to claim to the Tribunal that thereafter he never received any notification at all from UTS about his course progress before the certification of 19 March 2010 (as he now appears to claim) he had the opportunity to do so.
  25. Insofar as it is now contended that UTS failed to meet Standard 10 of the National Code, that is not determinative of whether the Tribunal fell into jurisdictional error. It has not been established that such matters were raised with the Tribunal and there is nothing in the material before the Tribunal to indicate that the Tribunal failed to have regard to Ministerial Direction No.38 (and the need to have regard to making further inquiries as to whether the education provider failed to monitor the student’s progress or give the student access to a complaints handling and appeals process). I note in that respect that the Departmental notice of intention to consider cancellation advised Mr Lin of the content of Ministerial Direction No.38 and also invited him to comment on any circumstances beyond his control that caused the non-compliance (as did the Tribunal).
  26. It would be a matter of concern if a registered education provider had failed to comply with the National Code. If the applicant now intends to suggest that UTS failed to comply with monitoring and notification procedures in relation to his course progress, these are matters he may raise with the relevant Minister. They do not, however, establish that the Tribunal fell into jurisdictional error on the material before it at the time of its decision which, notably, included the academic record provided by Mr Lin stating that he had been excluded from the Bachelor of Business course in December 2009 for failure to maintain a minimum rate of progress.
  27. The applicant also contended in post-hearing submissions in reply that because the University failed to follow the requirements of Standard 10 of the National Code, the notice given to him under s.20 of the ESOS Act was “invalid” and should “be set aside”. First, the evidence before the court does not establish such a contention. In any event, this submission misconceives the nature of the present proceedings and the circumstances in which the applicant’s visa was cancelled. This is not a case in which the applicant’s visa was automatically cancelled because of a failure to report to the Department pursuant to s.137J of the Act. Rather, the applicant responded to the notification and attended the Departmental interview referred to in that notice. Hence no issue of automatic cancellation arose. Rather, notwithstanding that he had been given a s.20 notice and complied with that notice, his visa was cancelled by a delegate of the first respondent on the basis that he had breached condition 8202 of the visa. In that sense the s.20 notice is not in point (see Minister for Immigration and Citizenship v Brar and Another (2009) 175 FCR 432; [2009] FCAFC 53).
  28. I also that as Middleton J observed in Ahmad v Minister for Immigration and Citizenship [2009] FCA 1368, defects in a s.20 notice are “not material” to whether a cancellation pursuant to s.116 of the Act is valid. His Honour was of the view that the Federal Magistrates Court at first instance had been correct in suggesting that the validity of the cancellation process under the Act was “separate and distinct” from the validity of the s.20 notice itself (at [20]).
  29. Furthermore, while the certification in this case is, like the certification considered in Maan, not as informative as it might have been (see Maan at [43]) the absence of further details in the certification does not impact on the validity of the certification, insofar as that was contended by the applicant.
  30. It might be seen as desirable for a certification to explain the basis on which it was given so that any errors in calculation or application of the education provider’s progress or attendance policies and procedures could be identified by a delegate or Tribunal considering whether there are exceptional circumstances within reg.2.43 of the Regulations. However, the first respondent submitted that it is clear from the National Code 2007 that it is not a function of the certification to be provided by an education provider to identify or particularise the features of the student’s progress or attendance that are unsatisfactory. There are parts of the Code that are intended to ensure that any student is made aware of any difficulties with his or her academic progress before such certification can be given, including a requirement to monitor course progress and a procedure for notifying students that they have failed to meet satisfactory course requirements. While the applicant now contends that he was not notified in accordance with Standard 10, there is nothing in the material before the court to suggest that he raised such issue before the Department or the Tribunal. Hence it has not been established that the Tribunal erred in failing to consider such matter under reg.2.43 or that it erred in failing to make inquiries of UTS about the procedures it adopted in relation to Mr Lin.
  31. What is in issue under condition 8202(3) as it is now drafted, is whether there is a certification, not the detail of the non-compliance that forms the basis for that certification. The fact that that certification did not contain further details does not lead to its invalidity and there is nothing in the material before the court to suggest that the Tribunal failed to consider all of the issues raised by the applicant as possibly constituting exceptional circumstances within reg.2.43 of the Migration Regulations.
  32. Further, the contention of the applicant that his circumstances were similar to that of another applicant who had failed more subjects but nonetheless did not have his visa cancelled does not establish jurisdictional error. The factual aspects of this allegation were not made out. Even if they had been, the mere fact that in another case another decision was reached which the applicant asserted to be relevantly similar would not undermine in any relevant way the validity of the Tribunal’s determination in his case.
  33. Finally, in the course of the hearing I raised with counsel for the first respondent the issue of the possible application of s.359A of the Act to information that appears in the Court Book which was not put to the applicant in writing. That information consists of copies of two pages which appear to be from the PRISMS website maintained by the Department of Education, Employment and Workplace Relations for notification of information about international students. Relevantly, that information shows that the applicant’s Bachelor of Business course was “cancelled” and contains information, apparently from UTS, about the applicant and his Bachelor of Business course. It stated that he ceased studies because of “[u]nsatisfactory course progress”, that his last day of study was 31 December 2009 and that he had “been excluded due to Unsatisfactory Course Progress”. This record was created on 19 March 2010.
  34. I raised with Mr Potts whether this information had to be put to the applicant as information that the Tribunal had considered would be the reason or part of the reason for affirming the decision under review. However I accept that, as Mr Potts submitted, this information is not information that would be the reason or part of the reason for affirming the decision under review subject to the s.359A obligation, as the reason for affirming the decision under review was the certification by UTS of the applicant as not achieving satisfactory course progress (see the analysis applied in relation to the similarly worded s.424A of the Act by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26). Insofar as it was necessary to do so, that information was put to the applicant in the s.359A letter sent on 5 August 2010 and resent (apparently on the basis that the first letter had been sent to the incorrect address) on 20 August 2010. Moreover, the fact that the applicant was excluded from the course in December 2009 due to unsatisfactory course progress was information given to the Tribunal by the applicant himself in the UTS academic record (see s.359A(4)(b)). No failure to comply with s.359A of the Act is established.
  35. The fact that the applicant may now be achieving satisfactory results in another course does not establish jurisdictional error on the part of the Tribunal. The court has no power to remit a matter on such a basis.
  36. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Barnes FM


Date: 12 July 2011

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