GANJI v Minister for Immigration
[2010] FMCA 711
•1 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GANJI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 711 |
| MIGRATION – Migration Review Tribunal – cancellation of applicant’s sub-class 573 Higher Education Sector Visa – deficiency in section 20 notice – cancellation procedure under s.116 of Migration Act 1958 has separate existence from section 20 notice – application dismissed. |
| Education Services for Overseas Students Act 2000, ss.19, 20 Migration Act 1958, ss.116, 137J Migration Regulations 1994, reg.2.43, sub-cl.8202 of Schedule 8 |
| Hossain v Minister for Immigration & Citizenship (2010) 183 FCR 157; (2010) 114 ALD 106; [2010] FCA 161 Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 Mo v Minister for Immigration and Citizenship [2010] FCA 162 |
| Applicant: | PRAVEEN GANJI |
| First respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 654 of 2010 |
| Judgment of: | Riley FM |
| Hearing date: | 1 September 2010 |
| Date of Last Submission: | 1 September 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Peter Vlahos |
| Counsel for the First Respondent: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 5 May 2010 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 654 of 2010
| PRAVEEN GANJI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal. The Tribunal affirmed the cancellation of the applicant’s sub-class 573 Higher Education Sector Visa. The cancellation was pursuant to s.116(1)(b) of the Migration Act 1958. Section 116 provides that:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)its holder has not complied with a condition of the visa; or
(c)another person required to comply with a condition of the visa has not complied with that condition; or
(d)if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e)the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f)the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa)in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g)a prescribed ground for cancelling a visa applies to the holder.
(1A)The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(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.
The Tribunal noted that this was not a case where the Tribunal was obliged to cancel the visa, and noted that it did have a discretion. The relevant condition in this case was condition 8202. That condition at the relevant time 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 a secondary 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 neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(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.
(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.
In the present case, there was at least a purported certification under condition 8202(3)(a). It is set out at CB5. It is headed, “Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994”. It says:
Swinburne University of Technology [00111D] on 5 November 2009 certifies Mr Praveen GANJI, for course Master of Technology (Information Technology), as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).
The certification was on the first page of a seven page document, which was said to be a notice under s.20 of the Education Services for Overseas Students Act 2000. The Tribunal acknowledged that the s.20 notice was ineffective as a s.20 notice and for the purposes of that section because condition 8202 had not been prescribed under s.20 at the relevant time. However, that is not to say that the s.19 certification that formed part of the s.20 notice was also a nullity.
In any event, returning to the Tribunal’s decision, the Tribunal noted that there had been a notice sent to the applicant under s.116 of the Migration Act 1958, being a notice of intention to consider cancellation of his visa. The Tribunal noted that the provisions of the Migration Act 1958 that followed upon the issuing of an effective s.20 notice for automatic cancellation did not apply in the present case. The Tribunal proceeded to deal with the matter under s.116 of the Migration Act 1958 and particularly noted that the cases of Hossain[1] and Mo[2] were not relevant to the consideration of the issues before it.
[1] Hossain v Minister for Immigration & Citizenship (2010) 183 FCR 157; (2010) 114 ALD 106; [2010] FCA 161.
[2] Mo v Minister for Immigration and Citizenship [2010] FCA 162.
The Tribunal went on to determine that, on the basis of the certificate set out at CB5, the education provider had certified that the applicant had not achieved satisfactory course progress and, therefore, concluded that the breach of condition 8202 had occurred in this case. The Tribunal then proceeded to consider whether there were exceptional circumstances beyond the visa holder’s control, and ultimately determined that there were not. Accordingly, the Tribunal affirmed the cancellation.
The grounds of review were set out in an application filed on 5 May 2010.
Ground 1
The first ground is that:
The MRT erred in law and thereby made a jurisdictional error by failing to find that the notice under s 20 of the Education Services for Overseas Students Act 2000 given to the applicant on or about
5 November 2009 was a nullity.
As I have indicated, the Tribunal, in fact, at paragraph 45 of its reasons for decision, said the following:
45.Section 20 of the ESOS Act as amended on 1 July 2007 requires a registered education provider to send an accepted student a written notice if the student has breached a prescribed condition of a student visa. Prior to 17 December 2009, no student visa condition was expressly prescribed for the purposes of s.20; and on 2 March 2010 the Federal Court in Hossain v MIAC [2010] FCA 161 and Mo v MIAC [2010] FCA 162 (Mo) held that in those circumstances notices sent to the appellants were ineffective for the purposes of s.20 of the ESOS Act and s.137J of the Act. Accordingly, s.137J did not operate to automatically cancel the appellants’ visas. The ESOS Regulations 2001 were amended on 17 December 2009 to address this omission.
The Tribunal in that paragraph acknowledged that the s.20 notice was ineffective for the purposes of s.20 and s.137J of the Migration Act 1958. It seems to me that the first ground simply misconstrues the Tribunal’s decision.
Ground 2
The second ground set out in the application is that:
The MRT erred in law and thereby made a jurisdictional error by accepting that a notice under either ss 19 or 20 of the Education Services for Overseas Students Act 2000 was determinative or relevant for deciding whether a person has not complied with condition 8202(3)(b) imposed on the visa for the purposes of reg 2.43 of the Migration (1994) Regs, and s 116 of the Migration Act.
The Tribunal, in fact, recognised that the s.116 cancellation procedure was separate and distinct from the procedure arising under s.20 of the Education Services for Overseas Students Act 2000. The Tribunal entirely correctly considered that s.19 was relevant in deciding whether a person had complied with condition 8202(3)(b). It is part and parcel of condition 8202(3)(b) that a person has been certified or not as achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000. To that extent, s.19 was clearly relevant and applicable in a consideration of a cancellation under s.116.
Ground 3
Ground 3 in the application is that the:
MRT erred in law by failing to find whether the applicant was given a notice under ss 19 or 20 of the Education Services for Overseas Students Act 2000.
The Tribunal appears to have proceeded on the basis that the applicant was given a notice under s.20 of the Education Services for Overseas Students Act 2000. However, the Tribunal accepted, as the first respondent today accepts, that that notice was not effective as a s.20 notice. The s.19 certificate was part and parcel of that notice. The applicant, in fact, does not dispute that he was given the s.20 notice. He said that it was invalid, for the reasons set out in Hossain and Mo.
The Tribunal’s decision proceeds on the basis that the applicant did, in fact, get the certificate under s.19. There is absolutely no reason to doubt that. In the applicant’s written submissions, he says, at paragraph 2.15 that:
The MRT found the cancellation was authorised because [of]
s 19(3) of the ESOS Act. This requires a notice and a valid notice. But there was no notice under s 19 of the ESOS Act.
That is not factually correct. There was a certificate under s.19 of the Education Services for Overseas Students Act 2000. It is set out at page 5 of the court book. It is a certificate. As I have indicated, there is no suggestion that the applicant did not receive it. The applicant argued in court today that the certificate at CB5, which says that it is under s.19, was invalid as a s.19 certificate because it purports to be part of a notice under s.20 and, of course, the s.20 notice was invalid as a s.20 notice, and was ineffective to trigger the automatic cancellation provisions in s.137J of the Migration Act 1958.
However, I do not accept that the document at CB5 ceases to be what it purports to be – namely, a certificate under s.19 of the Education Services for Overseas Students Act 2000 – because it was part of a s.20 notice. It seems to me that it has an existence and an effect in its terms, namely, that it is a certificate that the applicant has not achieved satisfactory course progress. That certificate survives, as it were, the fact that it was part of a notice that was issued under s.20 and is invalid for certain purposes.
The first respondent set out, in his written submissions, a good deal of authority to the effect that an invalid s.20 notice does not invalidate the process under s.116 of the Migration Act 1958. In particular, reference was made to the Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 at paragraphs 41 to 43, which state as follows:
[41] Turning to the "legal interaction" of Subdivs GB and D, we do not agree with the submission for Ms Zhou that Subdiv GB is required to be construed as inter-related in some way with the previous provisions in Subdiv D. This is so even in the case where the s 20 notice gives rise to the delivery of the s 119 notice. The terms of s 137P are against such a construction. Section 137P(2) provides some support for the concept of "legal interaction" when it provides that a breach in terms of s.137L(1)(a) and (b) which has resulted in a revocation under s.137L cannot be a ground for cancellation of a visa under s 116. However, s.137P(3) expressly provides that a revocation under s.137L or s.137N does not otherwise limit or affect any other power to cancel the visa under the Migration Act. Apart from the instances provided by s 137L(1)(a) or s 137L(1)(b), the intention of Subdiv GB is to leave legally unrelated the provisions of that subdivision and other powers of cancellation in the Migration Act. In the case of revocation of a cancellation in terms of s.137(1)(a) or s.137(1)(b), the provision in s.137P(3) – by excluding reference to those paragraphs – protects the effectiveness of the revocation against the application of the power in s.116.
[42] For the "legal interaction" relied on for Ms Zhou to be determinative, it would be necessary for s 116 to be interpreted as subject to an implied limitation on its operation. The wording of that section is against such an implication, as it contains a detailed catalogue of specific circumstances in which the power of cancellation may be exercised. We agree with Allsop J in Yu that, if Parliament had intended that a breach of condition 8202, or some part of it, was only to occur after the giving of notice under s 20 of the Overseas Students Act, that would have been simple enough for Parliament to say. Section 116 is also to be construed in its context, including s 124. The contention for "legal interaction" also arguably requires an implication into that section for which there is no proper basis.
[43] In our view, the case for the Minister is correct when it submits that the federal magistrate had no proper basis for distinguishing in this case the reasoning of Full Courts in Yu and Humayun and of Ryan J in Gerhard. We accept and apply the reasoning there set out. We do so because the statutory provisions in issue do not admit of any different reading even in a case where the response to a s 20 notice under the Overseas Students Act gives rise to the occasion for delivery of a notice under s 119 of the Migration Act. There is nothing in the provisions to admit of a different application because of what the case for Ms Zhou describes at the "legal interaction" between these provisions. It is to the provisions themselves that attention must be directed. They are devoid of any support for a different approach in that circumstance.
It seems to me that there is no substance in the applicant’s arguments. The certificate under s.19 of the Education Services for Overseas Students Act 2000 has an independent existence from the s.20 notice with which it was sent.
The cancellation procedure under s.116 has a separate and independent existence from any deficiency in the s.20 notice that was sent to the applicant. The regulations at all relevant times prescribed condition 8202 for the purposes of s.19 of the Education Services for Overseas Students Act 2000. It seems to me that there is no substance in the applicant’s contentions in this case.
Conclusion
The application must be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 15 September 2010
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