04

0801314 [2008] MRTA 523 (5 June 2008)


APPLICANT: Mr Shi Yu Zhang

MRT CASE NUMBER: 0801314



DIAC REFERENCE(S): CLF2003/46727

TRIBUNAL MEMBER: James Silva

DATE DECISION SIGNED: 5 June 2008

PLACE OF DECISION: Sydney

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.






STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW


1.                 This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs to cancel the applicant's Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.                 The then Department of Immigration and Multicultural and Indigenous Affairs (the Department) granted the applicant his Subclass 573 Higher Education Sector visa on 15 May 2003 The applicant was notified that a delegate of the Minister was considering cancelling his Subclass 573 visa and the decision to cancel the visa was made on 1 December 2003 The applicant was notified of the decision and his review rights on the same day.

3.                 The delegate cancelled the applicant’s Subclass 573 visa under s.116(1)(b) on the basis that the applicant had failed to maintain at least 80% attendance and/or to make satisfactory academic progress for each term/semester of his course.

4.                 The applicant sought review of the delegate's decision and the Tribunal, differently constituted (the ‘first Tribunal’), affirmed the delegate's decision on 20 December 2004 The applicant sought review of the Tribunal's decision in the courts. On 28 September 2006, the Federal Magistrates Court dismissed his application, but on 15 February 2007, the Federal Court ordered, by consent, that the orders made by the Federal Magistrate be set aside. It ordered that a writ of certiorari be issued to quash the decision of the Tribunal and that a write of mandamus be issued directing the Tribunal to reconsider and determine the matter according to law. The Tribunal, differently constituted (the ‘second Tribunal’) again affirmed the delegate’s decision on 20 June 2007. The applicant sought review of the second Tribunal’s decision. On 20 February 2008, the Federal Magistrates Court issued orders, by consent, remitting the matter to the Tribunal again for reconsideration and determination according to law. The matter is now before the Tribunal pursuant to the order of the Federal Magistrates Court.



RELEVANT LAW

5.                 Section 116(1)(b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:

116.        Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

...

(b) its holder has not complied with a condition of the visa; or

...

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

6.                 Regulation 2.43 of the Migration Regulations 1994 (the Regulations) sets out the prescribed circumstances referred to in s.116(3). For Student visas which were cancelled before 8 October 2005, r.2.43(2) relevantly provides:

2.43 Grounds for cancellation of visa (Act, s116)

...

(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

...

(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:

(i) condition 8104 or 8105 (if the condition applies to the visa); or

(ii) condition 8202.






7.                 The effect of s.116 and r.2.43(2)(b)(ii) is that, if the Tribunal is satisfied that the visa holder has not complied with condition 8202, it must cancel the visa.

8.                 In the present case, the delegate in cancelling the visa was satisfied that the visa holder did not comply with condition 8202.

9.                 For visas cancelled before 8 October 2005, the Tribunal does not have any discretion to set aside a visa cancellation where there has been a breach of condition 8202. Once non-compliance with the condition is established, the Tribunal is bound, by the operation of s.116(3), to affirm the visa cancellation:Tian v MIMIA [2004] FCAFC 238, at [66]. Unlike a decision made under s.137L of the Act not to revoke an automatic Student visa cancellation, or a decision under s.116 to cancel a Student visa that was still in effect on or after 8 October 2005, the Tribunal is not permitted to take exceptional circumstances into account.

Condition 8202

10.             The applicant’s visa was cancelled for breach of condition 8202. Generally speaking, the relevant version of condition 8202 is the version that was applicable at the time of the visa grant: Pradhan v MIMA [1999] FCA 1240; (1999) 94 FCR 91 at [19].

11.             Condition 8202 is found at Item 8202 of Schedule 8 to the Regulations. The relevant version of condition 8202 that applies in this case – namely 15 May 2003, the date on which the applicant’s visa was granted, reads as follows:

8202.    (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2) A holder meets the requirements of this subclause if:

(a) the holder is enrolled in a registered course; or

(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student — the holder is enrolled in a full-time course of study or training.

(3) A holder meets the requirements of this subclause if:

(a) in the case of a holder whose education provider keeps attendance records — the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i) for a course that runs for less than a semester — for the course; or

(ii) for a course that runs for at least a semester — for each term and semester of the course; and

(b) in any case — the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i) for a course that runs for less than a semester — for the course; or

(ii) for a course that runs for at least a semester — for each term or semester (whichever is shorter) of the course

(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

12.             The onus of establishing the facts which may lead to cancellation is on the Minister or, on review, the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified: see Zhao v MIMIA [2000] FCA 1235 at [25] and [32].

13.             However, there is no power to cancel a student visa under s.116 of the Act for a breach of the condition 8202(3)(b), relating to satisfactory academic performance, as it stood prior to 1 July 2007: Dai v MIAC [2007] FCAFC 199.



CLAIMS AND EVIDENCE

14.             The Tribunal has before it the Department’s file CLF2003/046726 relating to the applicant. The Tribunal also has before it Tribunal files N03/08267 relating to the first Tribunal’s consideration of the application (which includes a recording of the hearing on 23 July 2004) and 071227314 relating to the second Tribunal’s consideration of the application.

15.             The applicant was represented in relation to the review by Mr Han Bing SHEN, currently of Austin Haworth and Lexon Legal, a registered migration agent.

16.             The applicant attended a hearing before the current Tribunal on 29 May 2008. His representative accompanied him. The hearing was conducted with the assistance of an accredited interpreter in Mandarin.

17.             The Department and Tribunal files contain the following information.

o        The Department granted a Subclass 573 (Higher Education Sector) visa on 15 May 2003, and he held this visa immediately prior to its cancellation.

o        The visa was subject to condition 8202.

o        The applicant was enrolled in an Advanced Diploma in Information Technology Course at Wollongong University College (WUC), a course which runs for more than one semester.

o        The semester relevant to this decision is the 14 week session running from 30 June 2003 to 3 October 2003.

o        On 30 October 2003, WUC issued a notice under section 20 of the ESOS Act stating that the applicant had breached a condition of his student visa. The particulars of the breach read: ‘Attendance for 14 weeks Ad Dip in IT from 30/06/03-03/10/03 was 65% without medical certificates’.

o        On 13 November 2003, the Department sent the applicant a ‘Notice of Intention to Consider Cancellation’ identifying as the possible grounds for cancellation ‘Breach 8202 – Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.’ The applicant was invited to provide comments on these grounds for cancellation and to give reasons why his visa should not be cancelled at an interview on 1 December 2003.

o        At the interview on 1 December 2003, the applicant is recorded as having stated (according to the interviewing officer’s notes) that he disagreed that there were grounds for cancellation. He said that he had had to travel each day from Hurstville to Wollongong, getting up early each day. He had become ill, and he had also often arrived late for class. The Wollongong class had been difficult, as well. He had now transferred to another education provider, Holmes College.

o        In the delegate’s decision of 1 December 2003 (the decision currently under review), the delegate was satisfied that the applicant had breached visa condition 8202 with respect to both academic results and attendance.

o        With respect to attendance, the delegate noted that WUC had reported the applicant for unsatisfactory attendance of 65% for the relevant session. It goes on: ‘He has provided medical certificates for this period of time which covers 12 days which brings his attendance to 82%. He was asked why his attendance was already 82% and what the further 18% absences were due to – he said that this was due to lateness to classes.’ The delegate again refers in her reasons to the applicant’s ‘attendance [being] already reduced to 82% due to turning up late for classes.’

o        The delegate’s decision does not indicate the following, with respect to attendance:

§     (a) The basis for calculating the applicant’s attendance rate with medical certificates as 82%. The decision mentions the medical certificates covering 12 days, but the Tribunal has been unable to find any calculation with respect to the scheduled contact hours, or how the attendance rate of 82% was reached.

§     (b) The reasons why, if the applicant’s attendance rate was 82% (with medical certificates), the delegate was nonetheless satisfied that he had breached condition 8202 regarding not just academic results, but also failure to attend at least 80% of scheduled contact hours. The decision mentions the applicant’s claim that the remaining 18% of his absences were due to his late arrivals to class (thus implicitly being marked absent when he was in fact ‘late but present’).

18.             As noted above, the applicant applied for review of this decision on 9 December 2003. The first Tribunal affirmed the delegate’s decision on 20 December 2004 and, following remittal of that Tribunal decision, the second Tribunal also affirmed the delegate’s decision on 20 June 2007 In both instances, the Tribunal (differently constituted) found that the applicant had breached condition 8202(3)(b) in having failed to achieve an academic result that is certified by the education provider to be at least satisfactory, and that the ground for cancellation in s.116(1)(b) existed However, as set out in paragraph 13 above, the Full Federal Court has since determined that there is no power to cancel a student visa under s.116 of the Act for a breach of the condition 8202(3)(b), relating to satisfactory academic performance, as it stood prior to 1 July 2007: Dai v MIAC [2007] FCAFC 199. The Federal Magistrates Court noted on 20 February 2008 that the second Tribunal decision was affected by jurisdictional error, having regard to the decision in Dai.

19.             Neither the first nor the second Tribunal found it necessary to make findings with respect to the applicant’s compliance with condition 8202(3)(a), regarding attendance. However, the Tribunal’s files contain some relevant documentary material, and the applicant gave other evidence that assists in the current Tribunal’s assessment of his actual attendance rate. This follows:

o        On 17 February 2004, WUC advised in writing that, for the 14 week session from 30 June 2003 to 3 October 2003, the applicant’s ‘actual attendance’ was 65%, and his ‘attendance including medical certificates’ was 75%.

o        The applicant told the first Tribunal that he had been marked as absent when he was late by 30 minutes, whereas he had been led to think that ‘late attendance on three occasions is treated as the equivalent of one absence.’ (He also gave background to the reasons for his lateness, involving the relocation of his course to Wollongong, the early starts there, and the health and personal reasons for his repeated late arrivals at WUC. These are not material to this decision, except insofar as they indicate generally that the applicant’s late arrivals sometimes resulted in his being marked absent when he was in fact present.)

o        At the hearing before the first Tribunal on 23 July 2004,, the applicant discussed in detail his academic results. In the course of this, he raised doubts about WUC’s calculation of his academic results and gave evidence of his consultations with staff about his performance.

20.             The current Tribunal requested WUC to provide further details on contact hours scheduled, based not only on the scheduled classes (which appeared to form the basis of the attendance rate that they had calculated to date) but also course-related study sessions, supervised study sessions and examinations. On 28 March 2008, the Tribunal received further details from WUC. The Tribunal’s consolidated summary of the information before it at the time is immediately below.

Contact hours scheduled 30/6/2003 – 3/10/2003

Normal hours per week: 25

Normal weeks per session: 12

(Total) ‘normal’ hours per session: 300






Cancelled class (1/7/2003): -2

Examinations:

24/9/2003 3

26/9/2003 6

29/9/2003 3



Total contact hours scheduled: 310 hours






Attendance:

Actual attendance ‘normal’ hours: 192

Medical certificates: 32

Examinations: 12






Total attendance: 236 hours

21.             The Tribunal wrote to the applicant on 18 April 2008, setting out the above information and supporting documentation, and inviting his comment in writing. The Tribunal explained that this information showed that his attendance rate for the contact hours scheduled in the relevant session was 76%

22.             The Tribunal received a written response on 5 May 2008 by fax. The applicant provided printouts of his WUC attendance record for the relevant session, with annotations and comments regarding individual classes, a copy of the Spring 2003 timetable, and some documents relating to the previous session.

23.             The applicant’s submission and his evidence at the hearing on 29 May 2008 overlapped to a large extent. His arguments, in consolidated form, were as follows:

o        He contends that WUC records are inconsistent and unreliable. As evidence of this, he cites the following:

§     - WUC had certified his attendance rate as 65% and 75% (with and without medical certificates respectively), whereas the Tribunal had calculated it at 76%. (The Tribunal had explained that this was due to its inclusion of all contact hours scheduled.)

§     - He states that, although the 1 July 2003 Advanced Programming class, covering 2 hours, was cancelled, one set of WUC documents suggests that it was included in the attendance rate calculations.

§     - He refers to a number of occasions when he presented medical certificates because he had been absent for the whole day(s). However, he had actually been marked present for some of these hours.

§     - The applicant states that there was no Management class scheduled for Thursdays, hence the 2 hours absence recorded for 4 September 2003 was wrong.

§     - The applicant claims that he attended all the CRMS class on 5 September 2003, and had not been absent for one hour, as stated. He knew this because he did not skip individual hours.

§     - The applicant provides similar comments in relation to the Autumn 2003 semester, with examples.

o        The applicant refers to WUC’s practice of marking students as ‘absent’ for each second late arrival to class, commenting that this is harsh and unreasonable. He states that he discussed this with lecturers and tutors. They said that they sympathised, but were unable to help.

24.             At the Tribunal hearing on 29 May 2008, the applicant stated that he did not have any electronic or other record of his attendance during the Spring 2003 session. He agreed with the Tribunal’s observation that his overall attendance had been poor. He said he understood that the task before the Tribunal was to make a factual finding as to whether or not he had attended 80% of the contact hours scheduled.

25.             The applicant and his representative confirmed that one claim was that WUC records showed so many inconsistencies that the Tribunal should not rely on them in being satisfied that the applicant’s attendance rate had been below 80%. The Tribunal replied that it had examined the examples provided by the applicant. It did not think that they served to impugn the integrity of WUC’s record-keeping as a whole. On the contrary, it had the impression that the WUC records were thorough. The Tribunal addressed the applicant’s specific concerns.

o        As for WUC’s calculations of his attendance rate, the Tribunal noted that they appeared to have initially counted only the 12 weeks of scheduled classes, and that it had now taken into account other contact hours scheduled during the remaining 2 weeks (such as examinations). The revised figures were well-documented and, in its opinion, reliable.

o        The Tribunal noted the applicant’s concern that WUC may have included in some of its calculations his absence from the 2 hour class that had been cancelled on 1 July 2003. It agreed that the 2 hour Management class on 4 September 2003 was anomalous, as there were no such classes scheduled for Thursdays. Although there was the real possibility that the applicant had simply not been present when a regular class had been rescheduled for that day (his attendance at Management classes at this point was minimal), it was prepared to give him the benefit of the doubt on this.

o        The Tribunal noted that the applicant had presented 6 medical certificates covering scheduled classes. The dates (all in 2003) were: (a) 9 July; (b) 31 July – 1 August; (c) 18-19 August; (d) 27-28 August; (e) 8-9 September; and (f) 15-16 September. These certificates covered a total of 54 contact hours scheduled. It noted the applicant’s evidence that he had attended none of these hours, yet had been marked ‘present’ for some of the classes on these days. The Tribunal noted that he had been marked ‘present’ for a total of 22 hours over these particular days. WUC had accepted the medical certificates provided for the remaining 32 hours of recorded absences. The Tribunal said that WUC calculations seemed exact. While it seemed odd that the applicant was marked ‘present’ when he in fact was absent, if that had occurred, the upshot was that WUC had treated him generously and that any amendment of the records (to show his absences on those days) would place him in no better a position (and would, in any event, be offset by an adjustment to the medical certificates accepted). The Tribunal said that, on the information before it, it doubted that any uncertainty about these days served to undermine WUC’s attendance record-keeping overall.

o        The Tribunal noted the applicant’s claim that he had also had 10 hours of study commitments on 22 and 23 September 2003, and that he had provided medical certificates to cover his absence from those classes. WUC did not have any record of these commitments, thereby raising some question as to whether they were ‘scheduled’ The Tribunal would reflect on whether these should be taken into account.

26.             The Tribunal discussed with the applicant his claim that he had been marked absent from a number of classes in which he had in fact been present, but had simply arrived late. The applicant said that this arose because of his early starts from Hurstville to Wollongong, together with train and bus delays or coordination problems. The Tribunal noted WUC advice that they marked a student late only on each second occasion. The applicant indicated in general terms that, even though this was official policy, he did not think that all the teachers applied it in this manner. The Tribunal explained that of more than 40 recorded absences on the Spring 2003 attendance sheet for the applicant, it appeared that only a small number were in fact possible instances of ‘false absences’ (ie. where the applicant was in fact present but marked ‘absent’). It noted the following:

o        - The marked absences in Week 1 must have been real absences, as they were the first lesson for each class;

o        - The Spring 2003 timetable showed Internet and CRMS classes as always commencing in the afternoons. The marked absences did not therefore appear attributable to late arrivals in the morning;

o        - There were an additional 13 days on which the applicant had been marked absent for all classes, not just the first class in the morning; (7, 9, 21, 22 and 25 July; 1 and 27 August, 4, 8, 10, 12 and 15 September)

o        - The applicant had just advised that he had been absent all day on 18 August 2003 (a day for which he had produced a medical certificate), so this had not been a ‘false absence’;

o        - The Tribunal noted that the applicant had not attended Management classes on 23 July, 30 July, 6 August, 13 August, 20 August and 27 August. This was a sustained period of non-attendance, and it was not possible to construe out of this any pattern of ‘false absences’ on each second occasion that the applicant had arrived late. The applicant agreed that he had not attended these classes, as he did not get along with the teacher.

27.             The Tribunal agreed to receive any further submissions within a week after the hearing. However, it has reviewed the evidence before it and decided to proceed to a decision in the applicant’s favour on the basis of the available material.

28.             The Tribunal received on 5 June 2008 a further submission in which the applicant contends that he may also have submitted some medical certificates from Chinese herbalists, that the education provider failed to take into account in its calculations. He also states that he recalls attending class on some occasions, feeling sick and then proceeding to obtain a medical certificate. He therefore amends his earlier advice that he was absent on all the days for which he presented a medical certificate. The Tribunal has considered this further material. It has no effect on the findings and reasons immediately below, the text of which was prepared and signed on 2 June 2008.

FINDINGS AND REASONS

29.             The Tribunal must first determine whether the ground for cancellation under s.116 identified by the delegate has been made out.

30.             The applicant’s visa was cancelled on the basis of a failure to comply with a condition of the visa: s.116(1)(b). The relevant conditions were identified by the delegate as condition 8202(3)(a) and condition 8202(3)(b). The delegate found that the applicant had not complied with condition 8202(3)(a) because he had failed to meet attendance requirements (see page 5 above for discussion of the reasons given), and with condition 8202(3)(b) because he failed to achieve academic results that were certified by his education provider to be at least satisfactory. For the following reasons, the Tribunal is not satisfied that the applicant has not complied with a condition of the visa.

Condition 8202(3)(a) - Attendance

31.             Condition 8202(3)(a) requires a visa holder to have attended the relevant course for at least 80 percent of the ‘contact hours’ scheduled. ‘Contact hours’ is defined in r.1.03 of the Regulations as follows:

contact hours,

for a course for a period, means the total number of hours in the period for which students enrolled in the course are scheduled to attend classes for teaching purposes, course-related information sessions, supervised study sessions and examinations.

32.             In order for the Tribunal to reach a state of satisfaction as to whether the applicant has been in attendance for 80 percent of the contact hours, it must have regard to the total number of hours in the semester or course, as relevant, for which the applicant, as an enrolled student, was scheduled to attend the school for the different purposes set out in r.1.03. A percentage figure, based upon the proportion that the total number of days attended at the school bears to the total number of days of the semester, does not meet the definition of ‘contact hours’: Quan v MIMIA [2004] FCA 764, at [32] – [33].

33.             For the following reasons, the Tribunal is not satisfied that the applicant has not complied with condition 8202(3)(a).

o        The Tribunal does not accept the applicant’s suggestion that WUC’s attendance records are wholly unreliable, because there are some entries that appear anomalous or unexplained (such as the 4 September 2003 class, which may have been rescheduled, or their treatment of his medical certificates, which appear to have been entirely to his advantage), or because they did not initially include in their ‘contact hours scheduled’ all relevant study commitments.

o        The applicant has consistently referred to the effect of his travel time and his late arrivals on his recorded attendance rates. The issue for the Tribunal is not whether this rule is ‘harsh’ or ‘unfair’, but rather whether it results in the applicant having been marked ‘absent’ when he had in fact been ‘present but late’.

o        The applicant claimed that he had to start classes at 8:30 am four times a week, suggesting that he was actually present for a fair proportion of the classes for which he was marked absent. As the Tribunal noted at the hearing, a closer examination of the applicant’s timetable, attendance record and pattern of absences reveals that there is only a very small proportion of classes for which it could conceivably have been marked ‘absent’ when he was actually ‘present but late’ The Tribunal has also had regard to the college’s policy of marking a student ‘absent’ only on each second occasion that he or she is late, although it notes the applicant’s evidence that he was not sure that all lecturers and tutors went to the trouble of checking whether it was a first or second late arrival, and that they may have incorrectly marked some late arrivals as absences, contrary to their policy.

o        In the light of the applicant’s supplementary documentary and oral evidence, the Tribunal has revised the calculation set out in paragraph 20 above. It takes into account the following:

§     (a) The Management class scheduled for 4 September 2003 is at odds with the Spring 2003 timetable. The Tribunal therefore omits it from the ‘contact hours scheduled’.

§     (b) The Tribunal gives the applicant the benefit of the doubt and accepts that there were 10 hours of scheduled examination preparation set for 22 and 23 September 2003, and that he presented medical certificates to cover his non-attendance.

§     (c) The Tribunal accepts the applicant’s advice that he generally attended all or none of any particular class (except where he arrived late). On this basis, it is not satisfied that the recorded absences on 30 July 2003 (Management, 2 hours) and 5 September 2003 (CRMS, 1 hour) are the result of actual absences, but more probably the applicant’s failure to mark his attendance.

§     (d) As noted previously, there are very few classes that are in fact possible instances of ‘false absences’, where the applicant was late but nonetheless present. The Tribunal accepts, however, that these happened on some occasions. The recorded absences on 15 July 2003 (Advanced Program, 2 hours), 18 July 2003 (Management, 2 hours) and 6 August 2003 (Management, 3 hour) are probable examples of this. On the last of these, it appears that the applicant had been marked absent for 2 hours of the preceding Wednesday’s class (possibly due to a late arrival), and may therefore have been liable for a recorded absence the follow week.

§     (e) The Tribunal makes no adjustment for the applicant’s claimed days of unrecorded absence with medical certificates. WUC counted all the medical certificates, but only insofar as they covered the applicant’s hours of recorded absence. Such adjustments therefore do not affect the Tribunal’s calculation of his attendance rate.

o        The Tribunal’s amended attendance rate calculation (changes in italics) is as follows:

Contact hours scheduled 30/6/2003 – 3/10/2003

Normal hours per week: 25

Normal weeks per session: 12

(Total) ‘normal’ hours per session: 300



Cancelled class (1/7/2003): -2

Management class (4/9/2003) -2

Examinations:

Preparations (22-23/9/2003) 10

24/9/2003 3

26/9/2003 6

29/9/2003 3



Total contact hours scheduled: 318 hours

Attendance:

Recorded attendance ‘normal’ hours: 192

Medical certificates: 32

Probable incorrect absences ((30/7, 5/9/2003)3

Probable false absences (15/7, 18/7/2003) 7

Medical certificate (22-23/9) 10

Examinations: 12






Total attendance: 256 hours

34.             The Tribunal calculates on the basis of these figures that the applicant attended his course for 80.5% of the ‘contact hours’ scheduled for the relevant semester. In doing so, the Tribunal is aware that such calculations are difficult, particularly given the passage of time and the challenge for an applicant and an education provider in recalling with precision the practices and individual dates that may have a critical impact on a calculation. In the present case, from the time of the delegate’s decision in December 2003 to the remittal of this matter to the current Tribunal in February 2008, the focus of the applicant and successive Tribunals has been on the applicant’s compliance or otherwise with condition 8202(3)(b) relating to academic results, rather than his attendance rate.

35.             Accordingly, the Tribunal is satisfied that the applicant has attended his course for at least 80 percent of the ‘contact hours’ scheduled for the Spring 2003 session, and therefore has complied with condition 8202(3)(a).



Condition 8202(3)(b) – Academic result

36.             As a result of the Full Federal Court judgment of Dai v MIAC [2007] FCAFC 199, neither the Minister nor the Tribunal has the power to cancel a student visa under s.116 of the Act for a breach of condition 8202(3)(b) relating to satisfactory academic performance (as it stood prior to 1 July 2007).



Summary

37.             For the reasons given above, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the circumstances for cancellation of the visa do not arise.



DECISION

38.             The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.