Anderson v Minister for Immigration
[2005] FMCA 679
•27 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANDERSON v MINISTER FOR IMMIGRATION | [2005] FMCA 679 |
| MIGRATION – Student Visa – Migration Review Tribunal – breach of condition 8202 whether proportionality of regulation relevant – application dismissed. PRACTICE AND PROCEDURE – Migration Agent not permitted to appear – s.55B of Judiciary Act 1903. |
| Federal Magistrates Court Rules 2001, r.1.06(1) Judiciary Act1903, s.55B |
| Minister for Immigration and Multicultural Affairs v Hou (2002) FCA 574 Minister for Immigration and Multicultural Affairs v Nguyen (2002) FCA 460 Zou v Hao-Chen (2002) MRTA 4584 Akter v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1504 Iftikhar v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1123 |
| Applicant: | BRETT WILLIAM ANDERSON |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 697 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 9 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2005 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr. K. Esser |
| Counsel for the Respondent: | Mr. S. Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application as amended be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $8,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 697 of 2004
| BRETT WILLIAM ANDERSON |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant relies upon an amended application dated
7 April 2005 seeking review of a decision of the Migration Review Tribunal (the MRT) dated 27 October 2003. The MRT had affirmed a decision of a delegate of the respondent made on 30 June 2004 to cancel the applicant's student (temporary) (class TU) sub-class 560 visa which had been due to expire on 31 January 2004 (the visa). The visa had been granted to the applicant on 26 February 2001. The applicant is a citizen of India who first arrived in Australia on 16 February 2001 as the then holder of a student (temporary) (class TU) sub-class 560 visa which was effective until 26 February 2001. On 13 February 2003 the applicant changed his name from ‘Amit Kumar’ to ‘Brett William Anderson’.
At the commencement of this hearing, a preliminary issue was raised in relation to the representation of the applicant. The applicant had sought to rely upon the amended application referred to earlier which was filed pursuant to orders made by this Court. The amended application was filed by a principal consultant of ‘Global Immigration Services’ who claimed to be ‘migration agents’ for the applicant. Correspondence had been forwarded to the Court from the applicant indicating that he had authorised the migration agent to act on his behalf in this matter. He notes in the correspondence dated 1 February 2005 that the person concerned, whilst being a solicitor, does not hold a solicitors practicing certificate, as she practices solely as a migration agent. The letter states that the agent would be briefing a barrister. The applicant in his correspondence referred to the Federal Magistrates Court Rules 2001 (the Rules) and in particular claimed that those rules provide that a "lawyer may represent a party". There is no doubt that a party in proceedings before this Court may appear by a lawyer, and a lawyer is defined in the rules as follows:-
“Lawyer means a legal practitioner who is entitled to practice in the Court”.
The migration agent had also filed on behalf of the applicant a notice of contentions of fact and law dated 7 April 2005. It is noted that in the correspondence from the applicant, after referring to the right to be represented by a lawyer, the applicant expressed concern that his "current arrangements for representation do not put me in breach of the relevant Court rules". He goes on to state, "If I am, then in due course I will seek leave to regularise the position by making an application under Rule 1.06(1). Please notify me as soon as possible if it appears
I may be in breach."
The correspondence from the applicant, whilst placed on the Court file, did not give rise to any concern by the Court at that stage, given that further orders were made that the matter be referred to mediation. Mediation occurred and was unsuccessful. It is appropriate, however, as a preliminary issue, for the Court to consider whether a migration agent is entitled to file documents on behalf of an applicant before this Court and indeed entitled to be present at the bar table instructing counsel. The migration agent is clearly not a lawyer for the purpose of the Rules, having regard to the definition of lawyer referred to earlier in this judgment. Furthermore, it is clear to me that the migration agent does not have a right to practice as a barrister and solicitor in this Court pursuant to s.55B of the Judiciary Act 1903. That section provides as follows:-
“(1) Subject to this section, a person who:
(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State or
(b) is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory; has the like entitlement to practise in any federal Court.
(2) A person is not entitled to practise in a federal Court as a solicitor by reason of paragraph (b) of the last preceding subsection unless:
(a) he or she has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or
(b)he or she practises as a solicitor in the Territory and his or her sole or principal place of business as a solicitor is in the Territory.”
The Federal Magistrates Court is a Federal Court exercising federal jurisdiction. It is a Chapter III Court under the Constitution. Accordingly, I ruled that the migration agent is not a lawyer for the present purposes and is accordingly not entitled to represent the applicant before this Court, nor entitled to instruct counsel from the bar table in this Court. That right is a right which pursuant to the Rules and the Judiciary Act 1903 is afforded only to legal practitioners, that is those who for the time being are entitled to practice as a barrister or solicitor in the Supreme Court of the relevant State.
I was prepared in the circumstances, however, to deem the documents filed by the migration agent on behalf of the applicant to be documents filed by the applicant in person and to further regard representation by counsel on his behalf before the Court on the day of the hearing to be representation which effectively could be regarded as pro bono representation. There was no opposition to this course being followed by the respondent, and as a matter of procedural fairness that was an appropriate course to follow in this application.
The application
Relying upon the amended application referred to earlier, and the notice of contentions of fact and law, together with oral submissions augmented by a summary of argument, the applicant sought to persuade the Court that the decision of the Tribunal should be set aside on the basis that it was affected by jurisdictional error or otherwise was invalid by reason of it lacking what was described as "the necessary characteristic of proportionality as required by law".
Chronology of events
As indicated earlier, the applicant had been granted a visa on 26 February 2001. That visa was subject to condition 8202. On 18 March 2003 the applicant lodged a separate application for a graduate skilled temporary visa (class UQ) sub-class 497, noting that he had also lodged an application at the Australian Computer Society (ACS) for an assessment of his qualifications. On 23 May 2003 the applicant was told that his level of qualification was not of the required standard and that therefore ACS could not give him a positive assessment. By letter dated 13 June 2003 the Department of the respondent informed the applicant that his application for the sub-class 497 visa was refused. On 22 September 2003 the applicant's education provider, Chisholm Institute of TAFE (Chisholm), informed the Department that the applicant had ceased his studies at Chisholm. In the notice which appears at Court book page 3, Chisholm advises that the reason the student left was that he "transferred to a course at another provider". The document confirms that the enrolment was cancelled on 22 September 2003.
On 2 October 2003 the Department wrote to the applicant stating that there may be grounds to cancel his visa. The applicant was invited to attend an interview on 14 October 2003, and this was later postponed to 23 October 2003. A letter dated 2 October 2003 (Court book page 1) stated in part the following:-
“There may be a ground for cancelling your visa.
It has come to the Department's attention that there may be a ground for cancelling your subclass TU560 visa, under section 116 of the Migration Act 1958 (“the Act”).
Section 116(1) of the Act says, relevantly:
“... the Minister may cancel a visit if he or she is satisfied that:…
its holder has not complied with the condition of the visa:” (emphasis added).
Your visa was granted subject to Condition 8202. It obliges the holder of the visa to do certain things. It says:
The condition is that the holder is enrolled in a registered course.
Information received by the Department appears to indicate that you have not complied with Condition 8202, and therefore a ground for cancellation of your visa may exist. The information is as follows:
Chisholm Institute of TAFE has advised on 22 September 2003 that you have ceased your studies there. There is no record of you being enrolled at any education provider.
If you have not complied with the condition, your visa must be cancelled
Although s.116(1) of the Act gives the Minister a discretion to decide whether or not to cancel a visa, in certain circumstances, cancellation will be mandatory. Section 116(3) says:
“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”.
In other words, if the “prescribed circumstances” exist the visa must be cancelled. The decision-maker will not have the discretion to decide that the visa should not be cancelled.
One of the “prescribed circumstances” is non-compliance with Condition 8202. Therefore, non-compliance with Condition 8202 is a circumstance in which the decision-maker must cancel the visa.
…”.
The applicant attended an interview on 23 October 2003 with the Department and was issued with a notice to cancel his visa. That notice of intention to consider cancellation appears at the Court book pages 21‑31. The document includes the notice of intention to consider cancelling the visa and further includes in Part B a "Record of Decision whether to cancel visa". In Part C the notification of decision is set out under the heading "Notification of decision to cancel visa under s.116 of the Migration Act 1958". In the reasons given, the following appears:-
“Mandatory cancellation under section 116(1)(b), section 116(3) reg 2.43(2)(b).”
There is no dispute that the applicant has not been enrolled in a course since December 2002. That much is conceded. However, the applicant stated that Chisholm had failed to inform him that there would not be a Bachelor of IT course available for him once he had finished the diploma. The applicant informed the delegate of the following:
“a)on 10 December 2003 he had been offered a place in a Diploma of Accounting by the Australian School of Business Administration Technology and Research (ASBATR);
b)he had been honest with the Department; and
c)he had done everything he could to remain in Australia”.
On 27 October 2003 the applicant applied to the Tribunal for a review of the delegate's decision to cancel the visa. As indicated earlier, the Tribunal affirmed the delegate's decision on 30 June 2004. The applicant then applied to this Court for review of the decision by an application filed 23 July 2003 which was the subject of an amended application filed 8 April 2005.
Relevant law
Section 116 of the Migration Act 1958 (Cth) (the Act) provides as follows:-
“Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
a.…
b.its holder has not complied with a condition of the visa; or
c. …
(2) …
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled.”
Migration regulation 2.43 of the Migration Regulations 1994 (Cth) (the Regulations) specifies as follows:-
“Grounds for cancellation of visa (Act, s.116):
(2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa:
a.…
b.in the case of a Student (Temporary) (Class TU) visa, the Minister is satisfied that the visa holder has not complied with:
i. … condition 8202.”
At the time the visa was granted, there is no dispute that condition 8202 provided as follows:
“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:
c.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 course: and
d.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 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 a 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.”
The respondent submitted the applicant is in breach of the first requirement of condition 8202, namely that the applicant be enrolled in a registered course during the period of the visa and the applicant was not enrolled in a registered course. This, it is submitted, amounted to a breach of a condition 8202, and accordingly s.116(1)(b) of the Act was enlivened. It was submitted that cancellation of the visa was mandatory by the combined operation of s.116(3) of the Act and regulation 2.43(2)(b)(ii) of the regulations. The respondent submitted that cancellation is mandatory in such circumstances as was confirmed in Minister for Immigration and Multicultural Affairs v Hou (2002) FCA 574 (Hou) and in Minister for Immigration and Multicultural Affairs v Nguyen (2002) FCA 460 (Nguyen).
The applicant sought to make the submission that the Court should find jurisdictional error in the reasoning of the Tribunal. In my view, on a proper reading of the MRT decision, it has applied the law correctly.
I accept the submissions made for and on behalf of the respondent that in this case there is a clear breach of the requirement of condition 8202. I further accept that that breach having been established and indeed not disputed, that accordingly s.116(1)(b) of the Act is enlivened. Applying the authorities of Hou and Nguyen to the circumstances of the present case, the cancellation of the relevant visa is mandatory.
I cannot see any jurisdictional error of any kind arising out of the MRT decision.
Whilst arguments were raised by the applicant that the cancellation of the visa prevented him from accepting a subsequent offer for enrolment of a course which effectively would have meant compliance with the condition 8202, it seems to me that that submission misses the point of the condition. It is not appropriate that students be given an opportunity to enrol in another course so that they can comply with a condition which has been breached in the months prior to the decision to cancel the visa. That would effectively provide another layer of decision-making which would inevitably give to students a further extension of time or indeed almost be tantamount to a variation of the condition so that cancellation would not occur in circumstances where it might prevent a student from subsequently enrolling in a course to, in a sense, endeavour to rectify the fact, as in this case, that there had indeed been a breach of the condition as a result of the applicant not being enrolled in a registered course for many months. The argument, in my view, cannot be sustained. Hence in the absence of jurisdictional error, in my view it is clear in this case that the application should be dismissed.
I should mention briefly, however, that a further argument was raised in relation to what might be described as proportionality, and the applicant in support of that argument seeks to rely upon a decision of the Migration Review Tribunal in a matter of Zou v Hao-Chen (2002) MRTA 4584 (7 August 2002). The Tribunal member in that case found that despite the Federal Court decisions of Hou and Nguyen in circumstances concerning "genuine" students who have suffered "misadventures" and “circumstances beyond their control”, the Tribunal can take into account an applicant's reasons for non-compliance with condition 8202. I have considered the decision of the Tribunal member which of course is not binding nor indeed necessarily persuasive on this Court and accept the submissions for and on behalf of the respondent that in any event that decision is clearly wrong. I do not accept that there is a discretion of a kind identified by the Tribunal in that case. Nor do I accept the argument advanced for and on behalf of the applicant that this Court can somehow take into account what might be described as a proportionality argument. A Court may consider proportionality in considering whether or not the regulations may be regarded as invalid. In this case there is no such basis upon which the Court could reach that conclusion. The issue of proportionality otherwise in my view is not applicable in circumstances of this application.
The respondent referred to the decision of Akter v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1504 per Moore J at [21] considered more recently by Giles J in Iftikhar v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1123 at paragraph [8].
“21 Despite the mandatory effect of these provisions, the Tribunal in this matter considered whether the applicant's non-compliance with condition 8202 was due to circumstances beyond his control. Counsel for the respondent suggested that the Tribunal may have thought, incorrectly, that the principles discussed by Madgwick J in Shrestha v Minister for Immigration & Multicultural Affairs [200] FCA 359 were applicable. That matter concerned the previous form of condition 8202, and was set aside by consent by a Full Court of this Court. The consideration by the Tribunal of these matters in relation to the new form of condition 8202 was discussed by Emmett J in Nguyen (supra) at [11]:
I consider that the Tribunal based its decision on a misapprehension. The matter was not governed by the decision in Shrestha's Case. Section 116(3) is clearly mandatory in using the word "must". Section 116(1), on the other hand, uses the word "may". There can be no discretion for the Minister, or the decision maker making a decision as the Minister's delegate, as to the cancellation of a visa where s 116(3) applies. The Tribunal found that the applicant had not satisfied condition 8202, as that condition was imposed by Item 4 of the schedule to the Overseas Student Act. Accordingly, the Tribunal was bound to cancel the visa.
8 This circumstance was, I observe, also remarked upon by Emmett J in Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 at [9] and [10]. It is, to say the least, arguable that the Tribunal fell into error in taking the view that the approach taken by Madgwick J in Shrestha was still available for use by decision makers in the appropriate case. However, if there were an error, it was an error to the advantage of the applicant. It seems to me that the Tribunal in par [27] did direct its mind to the principle applied in that decision and, despite the valiant efforts of the counsel for the applicant, I cannot see any arguable basis upon which that principle, even if it exists, could apply in the present case”.
In my view, applying those decisions, it is appropriate that the application in this case be dismissed as I am satisfied the Tribunal was obliged to affirm the cancellation decision. I accept the respondent’s submissions that the decision of Akter represents the current state of the law. The prescribed circumstances having been found, it is clear to me and I accept that the delegate has no discretion to not cancel the visa. The Tribunal therefore was correct in affirming that decision.
It follows for the reasons given that the application as amended should be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 May 2005
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