‘Satisfactory Course Progress’
There is no doubt that ‘satisfactory course progress’ does not require a 50% pass rate. The Federal Court has looked at this issue a number of times and determined that the word ‘satisfactory’ is qualitative not quantitative. All these cases, of course, refer to the old condition 8202.
In Weerasinghe v MIMIA  FCA 261 (19.3.04), the Federal Court suggested that the education provider has some discretion as to what it considers to be “an academic result that is certified by the education provider to be at least satisfactory” :
However, the presence or absence of a certificate from the education provider is not susceptible to being affected by circumstances beyond the applicant’s control in that sense. Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova v MIMA  FCA 1436 and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.
In Bosi v MIMIA  FCA 313 (31.3.05) Stone J concluded:
23 Neither the Act not the Regulations limit the education provider’s discretion to determine what is a satisfactory academic result……there is no statutory basis for limiting the concept of a satisfactory academic result to one that would permit the student to complete the course within the normal timeframe. An education provider, in its discretion, may or may not regard timely completion as essential to a satisfactory academic result but the way in which the Delegate’s question was framed does not allow this exercise of discretion.
The above cases only highlight that a lot of the focus about student visa cancellations has to shift to the education provider. ‘Satisfactory’ need not necessarily be arithmetic. An obvious example is of discretionary factors is a student’s result affected by getting sick. But it need not be limited to medical circumstances. For example a student who passes say 4 out of 9 nine subjects may still be satisfactory if the student is say in first year and not good on English. The circumstances could be quite wide.
There is further support for that proposition in Humayun v MIMIA  FCAFC 35 (22.3.06) where Wilcox J observed:
19 I agree that the phrase ‘at least satisfactory’ gives to the education provider a measure of discretion. Results that might be considered unsatisfactory for a student in one situation might be regarded as satisfactory for another student, differently circumstanced.
Stone J added:
36 Condition 8202 requires that the visa holder achieve “an academic result that is certified by the education provider to at be least satisfactory”. The use of the term “satisfactory” invites the question, “satisfactory for what purpose”? It would seem obvious that a failing grade is not satisfactory for the purpose of allowing the student to proceed to the next level of a course; it is not satisfactory to meet course requirements. If, however, it was intended that a visa could automatically be cancelled whenever a student failed to meet course requirements, one would expect the condition to state this. As Wilcox J notes at  the phrase “at least satisfactory” gives the education provider a measure of discretion. Thus in particular circumstances a failing grade may be consistent with an assessment that a student’s academic progress is satisfactory for the purpose of allowing the student to continue his enrolment and attempt the course again. In such circumstances it seems to me that it is within the discretion given to the education provider under condition 8202 for the education provider to certify that the student’s academic result is, “at least satisfactory”. In my view it is reasonable to interpret the letter of 22 January 2003 as providing such a certification.
The student lost in Humayun, but those comments by the 2 judges are useful to put to an education provider who is dithering about what discretion the provider. The writer had an unfortunate experience with RMIT, Melbourne who simply could not appreciate the point, so the only conclusion that one can draw from the RMIT approach is to advise overseas students not to go to RMIT.
This case of Tian below shows that work can be done with the education provider to take into account personal circumstances in determining whether a student’s academic performance has been ‘satisfactory’. This case demonstrates that it is not just a matter of pass and fail.
Here are the facts of TIAN, Hao  MRTA 7260 (31.8.04) which are well worth studying in full as this type of approach can used to turn an education provider around:
18. At his interview, the review applicant was recorded as stating that he had difficulty understanding his teachers and completing written assignments due to language problems. Although he had asked for help from his teachers he couldn’t understand them. He stated that he had enrolled in a language school in China at the end of 2003 beginning of 2004 and thinks he is now doing better as he can understand what his teachers are saying.
19.The review applicant claimed he was injured twice while playing basketball and had visited a doctor for treatment. He stated he was unable to walk for 1 and a half months in total. He stated further that just before his exams he was told his parents had separated and were divorced
20. On 11.3.04 the delegate cancelled the review applicant’s student visa for breach of condition 8202, stating.. his academic results in semesters 1 & 2 of 2003 were not deemed to be satisfactory by CQU.
21.When lodging his application for review, the applicant stated in a letter that his academic results were poor because of reasons previously outlined to the delegate at interview, and also because his grandfather had died in Oct 03.
22. On 2.6.04 a [MRT] officer contacted CQU to seek further information. Ms.. Baker of CQU confirmed.., notwithstanding the CQU’s willingness to place the visa applicant on a special program and monitor his progress, the CQU was not prepared to certify.. his results in 2003 were at least satisfactory.
23. The visa applicant’s.. representative submitted that the.. applicant did not breach condition 8202. He stated.. CQU issued the s 20 notice in error and.. the.. applicant was permitted to continue studying under a special monitoring program. Consequently, his results should not be taken to be unsatisfactory. The representative submitted further that the.. applicant’s performance in 2003 was affected by his parents’ divorce and the death of his grandfather. In support.. he provided a copy of a divorce certificate showing.. the.. applicant’s parents were divorced on 21.7.03 and a copy of a death certificate which stated.. Du Xiushan died on 17.10.03.
A hearing was held.. at which the.. applicant gave evidence. He stated that CQU had reported him to the Dept in error and that he was permitted to re-enrol in 2004 on a special monitoring program. He stated.. his performance had been adversely affected by a number of personal issues including his parents’ divorce and his grandfather’s death. The [MRT] noted that notwithstanding CQU’s willingness to allow him to keep studying in 2004, they had advised the Dept that his results in semesters 1 & 2 of 2003 were unsatisfactory. The [MRT] observed that although there appeared to be some inconsistency in the actions of CQU, an assessment of whether or not the visa applicant had achieved satisfactory academic results was a matter for the education provider alone to determine. In this case, and while sympathetic to the review applicant’s situation, the [MRT] would have no choice but to affirm the decision under review as CQU had certified that the review applicant’s results during the relevant period were not satisfactory. The.. applicant’s migration agent stated.. he would contact CQU to enquire whether they were prepared to provide an amended assessment.
On 18.8.04 the.. representative provided a further statement from CQU… Ms Baker, Manager of Student & Client Services, stated.. the.. applicant’s studies during semester 1, 03 were adversely affected by his parents’ separation. She stated.. the.. applicant’s grandfather passed away.. just prior to the date for submission of final assignments and exams, although [CQU]was not aware of this when they reported him to the Dept. She stated further.. in these circumstances CQU “would consider Mr Tian’s 2003 results satisfactory”.
As a result the visa cancellation was set aside!
Here is what condition 8202 says about attendance:
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)s. 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
Note that because this condition refers to a certification by an education provider it could suffer the same fate as the previous 8202 on academic performance (as identified in Dai v MIACabove).
Standard 11 below does NOT require an education provider to keep attendance records for higher education students. As they are NOT required to keep such records and breach of 8202 is in any event dependant on Standard 11 then higher education students can never be in breach of the attendance requirement!
Here is what Standard 11 says:
Standard 11 – Monitoring attendance
Outcome of Standard 11
Registered providers systematically monitor students’ compliance with student visa conditions relating to attendance. Registered providers are proactive in notifying and counselling students who are at risk of failing to meet attendance requirements. Registered providers report students, under s. 19 of the ESOS Act, who have breached the attendance requirements.
11.1 The registered provider must record the attendance of each student for the scheduled course contact hours for each CRICOS registered course in which the student is enrolled which is:
a. an accredited vocational & technical education course (unless Standard 11.2 applies)
b. an accredited school course
c. an accredited or non-award ELICOS course, or
d. another non-award course3. [3For the purposes of the National Code, non-award courses do not include higher education courses or units including Study Abroad courses.]
11.2 Where the registered provider implements the DEST & DIAC approved course progress policy and procedures for its vocational and technical education courses, Standard 11does not apply.
11.3 For the courses identified in 11.1, the registered provider must have and implement appropriate documented attendance policies and procedures for each course which must be provided to staff and students that specify the:
a. requirements for achieving satisfactory attendance, which at a minimum, requires overseas students to attend at least 80% of the scheduled course contact hours
b. manner in which attendance and absences are recorded and calculated
c. process for assessing satisfactory attendance
d. process for determining the point at which the student has failed to meet satisfactory attendance, and
e. procedure for notifying students that they have failed to meet satisfactory attendance requirements.
11.4 For the courses identified in 11.1, the registered provider’s attendance policies and procedures must identify the process for contacting and counselling students who have been absent for more than 5 consecutive days without approval or where the student is at risk of not attending for at least 80% of the scheduled course contact hours for the course in which he or she is enrolled (i.e. before the student’s attendance drops below 80%).
11.5 For the courses identified in 11.1, the registered provider must regularly assess the attendance of the student in accordance with the registered provider’s attendance policies and procedures.
11.6 Where the registered provider has assessed the student as not achieving satisfactory attendance for the courses identified in 11.1, the registered provider must notify the student in writing of its intention to report the student for not achieving satisfactory attendance. The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeals process as per Standard 8 (Complaints & appeals) and that the student has 20 working days in which to do so.
11.7 Where the student has chosen not to access the complaints & appeals processes within the 20 working day period, withdraws from the process, or the process is completed and results in a decision supporting the registered provider, the registered provider must notify the Secretary of DEST through PRISMS that the student is not achieving satisfactory attendance as soon as practicable.
11.8 For the vocational and technical education and non-award courses identified in 11.1.a & 11.1.d, the registered provider may only decide not to report the student for breaching the 80% attendance requirement where:
a. that decision is consistent with its documented attendance policies and procedures, and
b. the student records clearly indicate that the student is maintaining satisfactory course progress, and
c. the registered provider confirms.. the student is attending at least 70% of the scheduled course contact hours for the [enrolled] course.
11.9 For the ELICOS and school courses identified in 11.1, the registered provider may only decide not to report a student for breaching the 80% attendance requirement where:
a. the student produces documentary evidence clearly demonstrating that compassionate or compelling circumstances (e.g. illness where a medical certificate states that the student is unable to attend classes) apply, and
b. that decision is consistent with its documented attendance policies and procedures, and
c. the registered provider confirms that the student is attending at least 70% of the scheduled course contact hours for the course in which he or she is enrolled.
As one can see this takes away the strict 80% attendance rule and again the education provider has some limited leeway not to report the student.
Dealing with education providers will be the key
The writer has had recent experience dealing with education providers. Advisors of students will not have to be very vigilant about being aware of the rules of the education provider and being prepared to take on the education provider for any adverse outcome or decision involving a student. The strategy is to head off the education provider before condition 8202 is formally breached.
The writer recently had the unnerving experience of a student reporting that the death of a grand parent had caused stress to the point of affecting the student’s academic performance. It turned out that the grandparent had not died at all! This experience only highlights that many overseas students face enormous stress in relation to their study performance and will be desperate to salvage their visas. Advisors need to be aware of this and the prudent course in situations where the death of a relative is reported is to insist that a certified copy of a death certificate is produced (otherwise the student will be digging him or herself into a worse position if the lie is found out.)
 Condition 8202.