Case: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35
Outcome: applied
I accept the submissions of counsel for the first respondent. The Tribunal afforded the applicant a merits review and it was not, therefore, required to address any alleged denial of procedural fairness before the delegate ( Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 at [30] ('Humayun') ). 35 Counsel for the applicant said that the Tribunal had received the response dated 17 May 2005 from the University referring to the applicant's 'semester weighted average' as being unsatisfactory for semester 2 of 2004, but that response had also stated that the applicant was no longer terminated and was granted a 'reprieve' of conditional status. Counsel submitted that the Tribunal treated the applicant's conditional status as of no significance and relied only on the reference in the response to the applicant's 'semester weighted average' as being conclusive that the University had not certified the applicant's academic result to be satisfactory. 41 In Humayun at [21] Wilcox J (with whom Conti and Stone JJ agreed) confirmed that the education provider has a 'measure of discretion' as to what level of academic performance is satisfactory for the purposes of providing a certificate in respect of Condition 8202. However, Wilcox J (with whom Conti J agreed) drew a distinction between a decision made by the education provider in relation to whether an academic result was at least satisfactory and a decision made in relation to the status of a student. At [22], Wilcox J (with whom Conti J agreed) said: 'I see no inconsistency in an educational institution saying to a student, whether simultaneously or at different times: (i) "we will allow you to continue your course"; (ii) "your academic results to date are unsatisfactory". On 22 January 2003, the University made the first statement to the appellant; on 7 February 2003 it made the second.' 42 In that case, the majority found that the University's letter of 22 January 2003, did not constitute a certification by the provider which met the requirements of Condition 8202. 43 The case which the applicant put to the Tribunal was that he accepted that his academic result was unsatisfactory, but that after having given the matter some consideration he had decided to appeal against his terminated status on the grounds that he had only three subjects left to do for his degree. It is apparent that the Tribunal was conscious of the requirement to consider only the question of whether the education provider had certified that the applicant had achieved an academic result that was at least satisfactory, as opposed to any decision of the University in relation to the academic status of the applicant. It cannot be said that, in so doing, the Tribunal asked itself the wrong question. The Tribunal had considerable sympathy for the plight of the applicant but came to the view that the letter from the University of 13 April 2005 and the email response of 17 May 2005 from the University did not comprise a certificate to the effect that the academic result was 'at least satisfactory'. It cannot be said that in coming to that view, the Tribunal misconceived the material from the University. The letter of 13 April 2005 refers only to the student's academic status. The email response from the University of 17 May 2005 itself draws a distinction between the applicant's academic result and his academic status. The email does not certify that the applicant's appeal has led to the 'academic result' being reclassified as 'at least satisfactory'. The email records that the 'semester weighted average' result was 'unsatisfactory', and says that the appeal resulted in a 'reprieve' in the academic status to 'conditional'.