Ahmed v Minister for Immigration
[2015] FCCA 1341
•22 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMED v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1341 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it had misapplied cl.573.235 of the Migration Regulations 1994 (“Regulations”) or had failed to find that cl.573.235 of the Regulations was invalid for inconsistency with s.137P of the Migration Act 1958. |
| Legislation: Migration Act 1958, ss.137J, 137K, 137L, 137P, 474 Migration Regulations 1994, cls.573.235 and 573.611 of sch.2, condition 8202 of sch.8 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Jayasekara v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 199 Montero v Minister for Immigration & Border Protection (2014) 315 ALR 222 |
| Applicant: | MOHAMMAD PARVEJ AHMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 484 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 18 May 2015 |
| Date of Last Submission: | 18 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 484 of 2014
| MOHAMMAD PARVEJ AHMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Bangladesh, applied for a Student (Temporary) (Class TU) Higher Education Sector subclass 573 visa on 17 May 2013. On 3 June 2013 a delegate of the first respondent (“Minister”) refused his application on the basis that the applicant did not satisfy cl.573.235 of the Migration Regulations 1994 (“Regulations”) because he had not complied with a condition of a previous visa. On 17 June 2013 the applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant law
The criteria for the grant of a subclass 573 visa are found in pt.573 of sch.2 to the Regulations. At the time of the delegate’s decision, cl.573.235 provided:
If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
By reason of cl.573.611, subclass 573 visas are subject to condition 8202 which is found in sch.8 to the Regulations. At all material times it relevantly provided:
(1)The holder … must meet the requirements of subclauses (2) and (3).
(2) …
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)…
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 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.
At the relevant time, s.20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) provided:
20 Sending students notice of visa breaches
(1)A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
Section 137J of the Act provides for the automatic cancellation of a student visa following the issue of a notice under s.20 of the ESOS Act unless certain action is taken by the visa holder. Where a visa is automatically cancelled under s.137J of the Act, the visa holder may apply to the Minister under s.137K to have the cancellation revoked.
Section 137L provides that the Minister may revoke the cancellation in the following circumstances:
137L Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non‑citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non‑citizen’s control; or
(c) of any other matter prescribed in the regulations.
…
Section 137P of the Act relevantly provides:
137P Effect of revocation
(1) If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.
(2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.
…
Background
The applicant was granted a subclass 573 visa on 5 August 2011. On 20 December 2012 his education provider, Jasmine Education Group Pty Ltd, certified that the applicant had not, for the course Certificate IV in Frontline Management, achieved satisfactory course attendance for s.19 of the ESOS Act and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students. A notice under s.20 of the ESOS Act was issued to the applicant advising him that he had breached condition 8202(3) of his visa because he had been certified by his education provider as not having achieved satisfactory course attendance. It was in light of these matters that the delegate found that the applicant did not satisfy the requirements of cl.573.235 for the grant of a (further) subclass 573 visa.
The s.20 ESOS Act certification led to the automatic cancellation of the visa which the applicant held at that time but that cancellation was later revoked, as advised in a letter from the Minister’s department (“Department”) to the applicant dated 4 February 2013. The letter advised that the Department considered the applicant’s breach to have been caused by circumstances beyond his control, a basis for revocation of such a cancellation under s.137L(1)(b) of the Act.
As previously indicated, on 17 June 2013 the applicant filed with the Tribunal an application for review of the delegate’s decision that he did not satisfy the requirements of cl.573.235. In his covering letter, the applicant submitted that the notice under s.20 of the ESOS Act had lapsed because the automatic cancellation of his previous visa had been revoked pursuant to s.137L of the Act. He submitted that his breach of condition 8202(3) could not be invoked and that he therefore satisfied the requirements of cl.573.235.
In a statement dated 7 February 2014 the applicant claimed that:
a)he had completed an Advanced Diploma of Accounting in 2009 and a Bachelor of Accounting degree in 2012. He was half-way through a Master of Business Administration (“MBA”) degree course;
b)because he wanted to fast-track his MBA, he consulted an education agent who advised him to undertake a Diploma of Management which would exempt him from part of the course requirements of the MBA. In September 2012, and acting on that advice, he commenced a course in Frontline Management at Jasmine Education Group Pty Ltd;
c)when he later realised that he would not receive an exemption, he decided to commence a different course of study, which he did in January 2013. However, in the meantime, Jasmine Education Group Pty Ltd certified him for non-attendance; and
d)although his visa was cancelled as a result of the certification, the cancellation was later revoked by the Department.
The Tribunal found that it was bound by the decision of the Federal Court in Jayasekara v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 199 where it was held that the concept of “substantial compliance” had no logical application to condition 8202(3). Their Honours held that the condition was either satisfied or it was not. Consequently, as there was a relevant certificate from the education provider for the purposes of condition 8202(3), the Tribunal found that the applicant had failed to comply with condition 8202(3). The Tribunal found that it had no discretion to take into account the reasons for the applicant’s non-compliance or to consider whether he had substantially complied with the condition. For these reasons, the Tribunal was not satisfied that the applicant met the requirements of cl.573.235 of the Regulations. It therefore affirmed the delegate’s decision to not grant him a visa.
Proceedings in this Court
In his amended application the applicant alleged:
1.The Second Respondent made jurisdictional error in that it made legal error by failing to consider whether the Applicant had substantially complied with the conditions of his last substantive visa in circumstances where a cancellation of that visa had been revoked.
2.The Second Respondent made legal error in relation to the issue of substantial compliance pursuant to cl.573.235 of Schedule 2 of the Migration Regulations 1994.
3.The Second Respondent made jurisdictional error by failing to consider whether the revocation of the cancellation of a visa involves issues of estoppels and waiver in relation to whether there had been substantial compliance with the conditions of that visa.
4.The Second Respondent made jurisdictional error by failing to distinguish named judicial authorities including Jayasekara v MIMA (2006) 156 FCR 199.
5The Second Respondent made jurisdictional error concerning the construction of regulation 573.235 in relation to the meaning of substantial compliance, where a cancellation of visa had been revoked pursuant to section 137L of the Migration Act 1958.
6.In the alternative to [5] above, the Second Respondent made jurisdictional error by not finding regulation 573.235 invalid to the extent of its inconsistency with the Migration Act 1958 and in particular Division 3 Subdivision GB.
At the hearing the applicant did not press the third ground and stated that grounds 1, 2 and 4 should be treated as particulars of grounds 5 and 6 and not dealt with individually. The applicant’s allegations raised two issues:
a)whether in this case there had been substantial compliance with the antecedent visa’s conditions on the basis that, although that visa had been cancelled because there had been a breach of one of its conditions, that breach had, in effect, been forgiven and the visa reinstated; and
b)if those circumstances did not lead to a finding that there had been substantial compliance with the antecedent visa’s conditions, whether that meant that cl.573.235 was inconsistent with subdiv.GB of div.3 of the Act and invalid as a consequence.
First issue
The parties agreed that cl.573.235’s requirement that an applicant have “complied substantially with the conditions that … applied” to his or her last substantive visa necessitated substantial compliance with each condition of that visa: Montero v Minister for Immigration & Border Protection (2014) 315 ALR 222. The parties also agreed that the concept of substantial compliance was not relevant to condition 8202 because the operation of that condition was such that a person could only be certified or not certified by an education provider, there being no intermediate position: Jayasekara.
The applicant submitted that the revocation of the cancellation of his visa arising out his breach of condition 8202 had the effect that the breach was to be treated as never having happened. He referred in that regard to s.137P of the Act, quoted earlier. The applicant further submitted that the interpretation of the situation which he propounded was borne out by what the Department had said in its letter to him advising of the revocation of his visa cancellation. That letter said that the cancellation would be revoked because the breach had arisen out of circumstances beyond his control and stated:
Your visa therefore continues to provide you … with permission to remain in Australia until 21/05/2013. … You may bring your passport and CoE in to a Department of Immigration Office to apply for a new student visa.
The Department’s letter reflects an unsurprising attitude in the circumstances but it was incorrect. There are no textual or contextual reasons to suppose that s.137P is concerned to do more than permit a student to continue studying until the end of his or her original visa period. That is hardly surprising as it is found in subdiv.GB of div.3 of the Act, a subdivision concerned with the automatic cancellation of student visas as a result of having been given a notice under s.20 of the ESOS Act and with the revocation of such cancellations. Relevantly, neither s.137P nor subdiv.GB of div.3 attempts to do more than to reverse a cancellation; specifically, they do not seek to invalidate the education providers’ certification on which such a cancellation will be based.
For these reasons, I conclude that the applicant has not demonstrated jurisdictional error on the part of the Tribunal on the basis advanced, namely that the revocation of the cancellation of his earlier visa meant that he had substantially complied with the conditions of that visa.
Second issue
The applicant submitted in relation to the second issue that if s.137P had the effect of treating his breach of condition 8202 as of no consequence in relation to the antecedent visa it was incongruous, and inconsistent, that cl.573.235 should treat it as a matter of decisive importance. He argued that as the latter was delegated legislation it was invalid for inconsistency with the very Act which purportedly authorised it.
The fact that a person is permitted to remain in Australia and study until their reinstated visa expires says nothing about whether he or she might be permitted to stay longer by way of a subsequent visa. Section 137P and cl.573.235 deal with quite different things and are not inconsistent, even if their practical operation might be unfair as may have been the case on this occasion.
As a result, the applicant has not demonstrated jurisdictional error for the reasons advanced in support of the second issue which his amended application raised.
Conclusion
As jurisdictional error has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 22 May 2015
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