Student Visa Cancellation: Federal Court Reasons

Matter Refused: Zhang v MIAC & Anor [2007] FMCA 1855

The visa had been cancelled pursuant to s.116 of the Migration Act 1958 (the Act) on the basis that the applicant had failed to maintain satisfactory attendance for term 8 of her course, in breach of condition 8202(3)(a) in Schedule 8 to the Migration Regulations 1994. This is not a matter our firm handled.

The Tribunal wrote to the applicant pursuant to ss.359 and 359A of the Act inviting her to comment on her apparent failure to meet the attendance requirement, and to provide any evidence which would indicate that her non-compliance was due to exceptional circumstances beyond her control.

After the Tribunal hearing the Tribunal made inquiries with the education provider which advised the Tribunal that in term 7 the applicant’s academic performance had been unsatisfactory and her attendance had been less than 80 per cent, even taking into account absences explained by medical certificates. The letter also advised that for term 8 her academic performance had been satisfactory but again, she had failed to meet the 80 per cent attendance requirement. The Tribunal sent a further s.359A letter inviting her to comment on the information about term 7.

It affirmed the delegate’s decision on the basis that she had not achieved an academic result certified by her education provider to be at least satisfactory for term 7, in breach of condition 8202, specifically 8202(3)(b), and that the non-compliance was not due to exceptional circumstances beyond her control.

The applicant alleged, among other things, that the Tribunal was not permitted to affirm the delegate’s decision on grounds which were neither the subject of the Department’s notice of intention to consider cancellation nor the delegate’s decision.

Held: Application was allowed. Tribunal decision was quashed and remitted for reconsideration.

1. The Tribunal’s decision was affected by jurisdictional error.
2. The Tribunal is not confined to whatever may have been the issues that the delegate considered. However the Tribunal did not give the applicant a real and meaningful invitation to attend a hearing to give evidence and present arguments in relation to the issues which it found to be decisive. As the determinative issue, the failure to have an academic result certified to be satisfactory, had not been one of the issues that the delegate had considered dispositive, s.360 required the Tribunal to alert the applicant to the significance of this criterion to the determination of the review application. As the Tribunal did not do so, it breached its obligations under s.360.
3. Although the Tribunal’s decision might be characterised as one which was based on the applicant’s failure to comply with visa condition 8202, to characterise the matter in that way would be to fail to identify sufficiently the issues which were before the Tribunal. The real nature of the questions which the Tribunal asked itself included an identification of the academic performance criterion as being decisive.
4. The letter inviting the applicant to comment on the information that the applicant had not achieved an academic result certified to be at least satisfactory did not satisfy s.360 of the Act. It was sent after the Tribunal hearing so that the Tribunal could meet its requirements under s.359A and it did not invite the applicant to attend a further hearing to give evidence and present arguments.
5. Because the Tribunal had not flagged to the applicant that her academic result was an issue in play, she could not have turned her mind to the presentation of evidence or arguments which would address the subsidiary question of whether her failure to obtain certification of a satisfactory academic result was the result of exceptional circumstances beyond her control. Consequently she was denied the opportunity guaranteed by s.360 to give evidence and present arguments on that issue. The Tribunal erred as a result.

Federal Magistrates Court of Australia, Cameron FM, SYG 1677 of 2007, 9 November 2007

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