Case: Quan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 764
Outcome: distinguished
On the first issue, Phipps FM, referred to the judgment of Jacobson J in Quan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 764. In Quan , the Court held that the Tribunal had asked itself the wrong question by not considering "whether it had reached a state of satisfaction as to the contact hours attended"; see Quan at [36]. 20 In Quan the attendance records related to only the total number of days at which Mr Quan attended at the school. They bore no relation to what actually occurred during his attendance at school. 21 The Federal Magistrate observed that the records from Eltham College were class attendance records and not daily attendance records as in Quan. At [14], his Honour said: "The reasonable reading of them is that the tribunal considered that when the College records and other material showed that the [appellant] was absent from a class, that meant he missed the class, not that he was there for part of the class. Therefore, to calculate a percentage of classes attended was to calculate a percentage of contact hours attended." 22 His Honour then noted the appellant's submission that the Tribunal had not taken into account other activities at the College in assessing attendance, such as School Assessed Coursework. His Honour said that the Tribunal had evidence before it about attendance and determined, on that evidence, that the required percentage of contact hours was not attained. Therefore, he considered that the Tribunal did not ask itself the wrong question. 23 The Federal Magistrate also dismissed the appellant's submissions based on natural justice and related grounds. He said that the Tribunal was not obliged to search for evidence on the College's practice of recording lateness for class or the way attendance on medical practitioners affected attendance records. 24 His Honour found, in any event, that the Tribunal had independent valid grounds for affirming the cancellation of the visa given the lack of certification of a satisfactory academic result and the failure of the appellant to be enrolled in full time study from 11 June 2003 until the cancellation of the visa. 25 Counsel for the appellant took issue with his Honour's distinguishing of Quan . Counsel also said that the Tribunal was not able to rely on a breach of condition 8202(2)(b), or the condition relating to satisfactory academic performance, given that the s 20 notice only referred to attendance requirements. Counsel contended that reliance on these conditions by the Tribunal amounted to a denial of natural justice. In his oral submissions, counsel contended that the Tribunal's reliance on the condition relating to satisfactory academic performance amounted to a breach of s 359A of the Act. Counsel also submitted that the Tribunal erred by considering whether the applicant was engaged in full time study, and not whether he was enrolled in a course. Counsel further submitted that the Tribunal erred by disregarding the effect of the alleged statement of the delegate that the applicant was not permitted to study in Australia. 26 Counsel for the Minister submitted that "contact hours" in condition 8202 refers to the proportion of required contact hours attended by the student. He said that there was no suggestion before the Tribunal that the length of classes varied from subject to subject. Counsel also agreed with the Court below that Quan was distinguishable. Counsel stated in his written outline of submissions that Quan : "...was a case in which there was no inquiry made as to the number of classes attended, and the decision rested on a simplistic calculation based on the number of days the visa holder had not attended school." 27 Counsel for the Minister calculated from the attendance records before the Tribunal that "expressed as a proportion of the total number of classes the appellant was required to attend in term 1, [of 2003] his attendance was less that the required 80%". Counsel also contended that there was no basis for the submission of the appellant that the attendance records did not properly reflect when he was late, as distinct from absent. Counsel drew attention to the appellant's failure to persuade the Tribunal that he had been marked as absent on two occasions when he had merely been late. 28 Counsel for the Minister submitted that the s 20 notice did not act as precondition to the cancellation under s 116. He also contended that the appellant could not have been taken by surprise by the findings that he was not enrolled in course of study and was not the beneficiary of certificate of satisfactory completion of study as each matter was an incontrovertible fact. Further, counsel disputed that the delegate of the Minister told the appellant that he was not permitted to study 30 The records relied on by the Tribunal were attendance records for classes, school assessed coursework and examinations. Those records enabled an assessment of "contact hours" within the definition of those words in the regulations. The Tribunal's calculation of the contact hours attended by the appellant was a question of fact for it to determine. Unlike in Quan , the Tribunal did consider whether it had reached a state of satisfaction as to contact hours attended. It did not merely consider the total number of days attended as a proportion of the number of days in the term. No judicially reviewable error arose as a result of the Tribunal's treatment of this issue. 31 The Tribunal was entitled to consider the appellant's failure to be enrolled in full time study and his failure to achieve satisfactory academic results as grounds for visa cancellation, despite the s 20 notice not referring to these grounds.