CASSE v Minister for Immigration
[2012] FMCA 1113
•30 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASSE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1113 |
| MIGRATION – Application for judicial review of Migration Review Tribunal decision – consideration of clause 572.235 of Migration Regulations – whether earlier decisions of Federal Magistrates Court clearly wrong – whether earlier decisions distinguishing on the facts – consideration of Patel v Minister – earlier decision not clearly wrong – application dismissed. |
| Migration Regulations 1994 Education Services For Overseas Students Act 2000, ss.19, 20 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 |
| Jayasekara v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 199 Patel v Minister for Immigration and Citizenship [2012] FCA 958 Hassan v Minister for Immigration and Citizenship [2012] FCA 816 Cai v Minister for Immigration and Citizenship [2011] FMCA 922 Singh v Minister for Immigration and Citizenship [2011] FMCA 972 Singh v Minister for Immigration and Citizenship [2012] FMCA 821 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 |
| First Applicant: | MARIE GEORGINA CASSE |
| Second Applicant: | PAUL CASSE |
| Third Applicant: | GREGORY CASSE |
| Fourth Applicant: | CONRAD CASSE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 623 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 26 October 2012 |
| Date of Last Submission: | 26 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr Hughan |
| Solicitors for the Applicant: | Hymans Solicitors |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 623 of 2012
| MARIE GEORGINA CASSE |
First Applicant
| PAUL CASSE |
Second Applicant
| GREGORY CASSE |
Third Applicant
| CONRAD CASSE |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicants seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 1 May 2012 by which the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants student (temporary class TU) visas. Although there are four applicants, the second, third and fourth applicants apply only as family members of the first applicant.
Boiled down to essentials, the applicants' case is that the Tribunal should have gone behind the certificate issued by the first applicant's education provider (it will be convenient to refer to her as the applicant) and should have examined whether the applicant had substantially complied with the conditions of her visa. It is further submitted that a notification given by the education provider was invalid. For the reasons that follow I do not think these criticisms are made out, and it follows that the application must be dismissed.
Some Background Facts
The following facts are uncontroversial and are taken from a combination of the parties' written submissions.
All the applicants are from Mauritius. The applicant's visa was subject to a number of conditions which relevantly included condition 8202, which is set out in Schedule 8 to the Migration Regulations 1994 (Cth).
On 4 August 2009, the applicant’s education provider certified for:
(a) Section 19 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”); and
(b) Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“the National Code”).
that the applicant had not achieved satisfactory course progress in her course of study (see Court Book (“CB”) 80).
On the same day, the education provider forwarded to the applicant a notice pursuant to s.20 of the ESOS Act. On 16 March 2010, the applicant applied for another student visa, which application was refused by a delegate of the Minister on 1 April 2010.
The applicant in due course applied to the Tribunal which declined her application. For these purposes it is sufficient to note that the Tribunal was not satisfied that the applicant met the requirements of clause 572.235 of Part 572 of Schedule 2 to the Regulations because the applicant had been certified for the purpose of condition 8202.
As part of her materials in support of the Tribunal hearing, the applicant's solicitors forwarded a letter from the same person who issued the certification, Mr Jean-Francois Barallon, dated 25 May 2009, confirming satisfactory performance by the applicant (CB92) and a further letter dated 3 August 2009 from the Managing Director of Totally Indigo Hair & Beauty College offering the applicant a place as an international student.
The Tribunal's Decision
Having referred to the criteria in clause 572.235 which requires that:
“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”
the Tribunal went on to consider what might be meant by "substantial compliance".
At paragraph 10, and critically for these purposes, the Tribunal said (CB113):
“There are some conditions to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not: Jayasekara v MIMA (2006) 156 FCR 199 (Jayasekara). The Court in Jayasekara held by majority that the requirement of a certificate in the academic result component of condition 8202(3), as it stood when considered in that case, was one such condition.”
The Tribunal noted that in this case the delegate found that the applicant did not satisfy clause 572.235 because she had not substantially complied with condition 8202 and, having set out the terms of that condition as it presently stands, the Tribunal said at paragraph 13 (CB114):
“Although not in the same form as condition 8202(3) as considered in Jayasekara, the reasoning of the majority in that case applies equally to Condition 8202(3) as amended, and as applicable in this case: Cai v MIAC [2011] FMCA 922 and Singh v MIAC [2011] FMCA 972. That is, the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either it is satisfied or it is not.”
It is clear from the Tribunal's Record of Decision that the issue of whether or not the certification given by the education provider was final or not was clearly canvassed with the applicants and their representative at the hearing (see paragraphs 22-32, CB117-120).
The Tribunal's findings and reasons are relatively brief; they are set out at CB121. The essential finding at paragraphs 39-40 reads as follows:
“39. The Tribunal finds that the applicant's education provider has certified the applicant as not achieving satisfactory course progress for the purposes of Condition 8202(3)(a). While the Tribunal has sympathy for the applicants and accepts that they are in possession of a letter dated 25 May 2009 (not 3 August as asserted by the applicant's representative at the hearing) which states that, at that time, she was "progressing with the course and is on track to complete her course on time”, as noted above, this aspect of Condition 8202 is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. As there is a relevant certificate before the Tribunal from the education provider for the purposes of Condition 8202(3) the Tribunal finds there is no compliance with Condition 8202(3), let alone substantial compliance.
40. Accordingly, the Tribunal finds that the applicant has not complied substantially with the conditions of her last held visa and any subsequent visa.”
The Tribunal accordingly affirmed the decision under review (I have not dealt with other categories of visa because it is common cause that none is relevant).
The Applicants' Case
The applicants' case raised three grounds, of which grounds 1 and 2 were taken together and treated effectively as one ground. That ground is essentially to the effect that because clause 572.235 refers to substantial compliance, it was open to – and indeed incumbent upon – the Tribunal to go behind the certification provided by the applicant’s education provider to consider whether, on the material, substantial compliance had occurred.
Counsel frankly conceded that this aspect of the application faced difficulties in the way of existing authority. Counsel submitted that the earlier decisions were either made on different facts or were clearly wrong. Counsel pointed out that the decision of the majority in Jayasekara v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 199 (“Jayasekara”) was based on the regulation in a different form. He submitted that a more recent decision of Collier J in Patel v Minister for Immigration and Citizenship [2012] FCA 958 (“Patel”) was wrong and that this Court was not obliged to follow it.
Counsel further conceded that two decisions prior to Patel had held that Jayasekara applied to condition 8202 but submitted that they were, likewise, clearly wrong. In relation to the third ground advanced, it was submitted that the purported certification by the education provider was not certification for the purposes of s.19 of the ESOS Act and, therefore, not one for the purposes of condition 8202. This was because the alleged notification of the breach by the applicant did not take place as soon as practicable after it was said to have occurred.
The Respondent's Submissions
As with the applicant's submissions, in the circumstances of this case it is possible to paraphrase somewhat. Counsel submitted that there was binding authority as to the applicability of Jayasekara within the new and presently adopted version of condition 8202. Counsel further submitted that Patel was a binding authority in any event. In relation to this matter, it was submitted that the decision of Cowdroy J in Hassan v Minister for Immigration and Citizenship [2012] FCA 816 (“Hassan”) was to the same effect.
In relation to ground 3, it was submitted that: (a) the certificate was final and binding in any event; (b) the education provider does not certify pursuant to s.19 or s.20 of the ESOS Act. Rather, those provisions require the education provider to give notice to the relevant secretary as soon as practicable after the breach occurs, and also to the visa holder.
It is not the notice pursuant to s.19 or s.20 of the ESOS Act that gives rise to the breach of condition 8202, rather the certification itself. Furthermore, it was submitted that there was nothing to suggest that any delay was such as to be so unreasonable as to invalidate the notice in any event.
Consideration
It will be readily apparent that these Reasons for Judgment paraphrase, and in a significant way, the comprehensive and skillful submissions made by both counsel. That is because, in my opinion, the outcome of this application is all too straightforward. It is clear from the decisions of Cai v Minister for Immigration and Citizenship [2011] FMCA 922 (per Hartnett FM); Singh v Minister for Immigration and Citizenship [2011] FMCA 972 (per Lindsay FM); and Singh v Minister for Immigration and Citizenship [2012] FMCA 821 (per Burnett FM) that the distinction that the applicant sought to draw as to the different wording of condition 8202 in Jayasekara and now is not maintainable. The three decisions to which I have referred are not clearly wrong and I am, therefore, obliged to follow them. I am equally clearly obliged to follow a relevant and applicable decision of the Full Court of the Federal Court in Jayasekara.
Furthermore, the decision of Collier J in Patel, which I accept is to the same effect relevantly as the decision of Cowdroy J in Hassan, is yet a further binding authority upon this Court. Both those were decisions of a single judge of the Federal Court sitting as the Full Court of the Federal Court; they are clearly binding upon me.
It is quite clear that the Tribunal could not go behind the notice and certificate issued by the education provider. As Collier J said in Patel at [74]:
“It was not the role of the Tribunal to find that there was a valid certification by Griffith University – once the evidence established that a notice and certificate had been issued by the University which was valid on its face, there was no role for the Tribunal in looking behind the notice.”
I have had regard to all the matters raised by the parties in their oral and written submissions, but that short extract from her Honour's decision in Patel seems to me to be directly on point and disposes of the applicant's primary arguments.
So far as the third ground of application is concerned, I agree with counsel for the respondent that once certification occurs, that is the end of the matter (see Patel).
Further, I accept the first respondent’s submission that while s.19 of the ESOS Act provides for notification of the breach of condition 8202 as soon as practicable after the breach occurs, it is the certification of the breach that constitutes the breach by the student of the visa (see Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [45]).
Further, it is not apparent that any delay in notification – (if there was any, the facts asserted did not suggest any delay in notification once the education provider finally formed the view that the breach should be certified) - was unreasonable in any event, contrary to the applicants submissions.
Conclusion
For these reasons, in my view the applicants’ case cannot be made out and it follows that the application will be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Date: 30 November 2012
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