Grewal v Minister for Immigration
[2016] FCCA 1219
•23 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GREWAL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1219 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal refusing to grant applicant a Student visa – no reviewable error – application dismissed. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.29, 31, 41, 45, 65, 137J, 137K, 137L Migration Regulations 1994 (Cth) |
| Cases cited: Ahmed v Minister for Immigration (2015) 233 FCR 485 Casse v Minister for Immigration [2013] FCA 1007 Dai v Minister for Immigration (2007) 165 FCR 458 Jayasekara v Minister for Immigration (2006) 156 FCR 199 Liu v Minister for Immigration (2005) 146 FCR 228 Mohammed v Minister for Immigration [2015] FCA 1060 Montero v Minister for Immigration & Anor (2014) 229 FCR 144 Patel v Minister for Immigration (2012) 206 FCR 384 Peng v Minister for Immigration (2000) 105 FCR 63 |
| Applicant: | MANPREET KAUR GREWAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1003 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 3 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application, as amended, be dismissed with costs, with the quantum of such costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1003 of 2014
| MANPREET KAUR GREWAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a female citizen of India aged 29 years, having been born on 2 January 1987.
She seeks in this proceeding to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Migration Review Tribunal) (Tribunal), dated 19 March 2014, affirming a decision of a Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 29 November 2013, refusing to grant a Student (Temporary) (Class TU) visa to the Applicant. Further, she seeks a writ of mandamus directed to the Tribunal requiring the Tribunal to determine her application for review according to law.
Mr Nair of Counsel appeared for the Applicant and Mr G Johnson of Counsel for the First Respondent.
Background
The Applicant entered Australia on 21 September 2008 as the holder of a Student visa which was due to expire on 30 August 2012.
On 7 November 2012 the Applicant was granted a second Student visa (TU 572) with the visa due to expire on 3 September 2013 (Second Visa).
It was common ground that the Second Visa, as further discussed below, was subject to the continuing condition being cond.8202 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) that her education provider not certify her as not achieving satisfactory course conduct.
On 3 September 2013 the Applicant applied for a Class TU Student (Temporary) visa which was refused by the Delegate, which refusal was then affirmed by the Tribunal, as stated above.
The reason for the refusal by the Delegate was that during the period of the Second Visa, between 14 January 2013 and 10 March 2013 the Applicant was enrolled as a student for a Certificate IV in Accounting at New Cambridge College Sydney Inc. (Cambridge College), with her last day of study being either 12 or 13 February 2013, and that Cambridge College as educational provider had certified to the Minister for the purposes of cond.8202(3) on 13 February 2013 under s.19 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) that she had not achieved satisfactory course progress (s.19 Certificate). On the same date Cambridge College gave the Applicant a s.20 Notice under the ESOS Act advising her that it had certified pursuant to s.19 that she had not achieved satisfactory course progress (s.20 Notice).
The Tribunal, on review, in affirming the decision of the Delegate, found that, because of this adverse certification from Cambridge College, the Applicant could not satisfy the requirements of cl.572.235 of Sch.2 to the Regulations, which required that the Applicant had complied substantially with the conditions applying to the last of any substantive visa held by her, being relevantly the Second Visa. This was because, during the period of the Second Visa held by the Applicant, it was subject to cond.8202(3)(a)(i) which required, relevantly, that the Applicant’s education provider had not certified the Applicant as not achieving satisfactory course progress for s.19 of the ESOS Act. As there had been such certification by Cambridge College by reason of the s.19 Certificate, the Applicant did not satisfy cl.572.235.
Statutory framework
Summary of statutory framework
Relevantly to this proceeding:
a)Section 29 of the Migration Act 1958 (Cth) (Migration Act) empowers the Minister to grant a non-citizen a visa to remain in Australia;
b)Section 31 of the Migration Act provides for prescribed classes of visas and the making of regulations prescribing criteria for a visa or visas of a specified class;
c)Section 41 of the Migration Act provides that the Regulations may specify that certain classes of visas may be subject to specified conditions;
d)Section 45 of the Migration Act requires that a non-citizen who wants a visa must apply for a visa of a particular class; and
e)Section 65 of the Migration Act requires that if, after considering a valid application for a visa, the Minister is satisfied that the criteria prescribed by the Migration Act or Regulations have been satisfied, the Minister is to grant the visa. If not so satisfied then the Minister is to refuse to grant the visa.
For immediate purposes, reg.2.1 of the Regulations provides that for the purposes of s.31 of the Migration Act the prescribed classes of visas are those set out in Sch.1 to the Regulations. Among the classes of visas set forth in Sch.1 is Item 1222, being a Student (Temporary) (Class TU) visa.
Clause 572.235 provides that at the time of the decision an applicant for a Student visa must have complied substantially with the conditions attaching to the prior visa held by them. Clause 572.235 is expressed as follows:
572.235
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.
It was common ground that the Second Visa was subject to a number of conditions, including cond.8202 (see reg.2.05 and the definition of “condition” in reg.1.03, cl.572.611 and cond.8202 ).
Condition 8202 relevantly provides as follows:
8202
(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.
Section 19 of the ESOS Act provides (inter alia) for the Secretary of the Department of Immigration to be notified of any breach of any prescribed condition of a Student visa by the applicable education provider. Section 20 provides for the giving of written notice by the applicable education provider to a student of any breach of a prescribed condition of a Student visa.
Grounds of attack on Tribunal decision
Ground 1
Ground 1, as stated in the Amended Application filed in Court on 3 March 2016, was (omitting Particulars) as follows:
The Tribunal misconstrued and misapplied the law. The Tribunal purported to found its satisfaction that the relevant criterion for grant of the visa had not been met on the provision of a certification by the applicant’s education provider notwithstanding that the Tribunal accepted this certification had been vitiated by denial of statutory procedural fairness by the education provider. The Tribunal exceeded its jurisdiction
At the hearing this ground was amplified and was, in substance, that the Tribunal in its written reasons in fact accepted that Cambridge College, as the Applicant’s education provider, had been guilty of procedural unfairness in issuing the s.19 Certificate against the Applicant. It was submitted that the Tribunal had accepted in express terms in its Decision Record that, in relation to the s.19 Certificate, the Applicant had been denied the procedural fairness mandated by statute and that the s.19 Certificate was invalid and the Tribunal should have been (and was) aware that the s.19 Certificate was invalid (see [10] and [14] of the Outline of the Applicant’s Submissions dated 5 February 2016). It followed from this, it was submitted, that the s.19 Certificate, being invalidated by procedural unfairness, ought to have been completely disregarded and accordingly, that if so disregarded, there was no breach of cond.8202(3)(a)(i) and, therefore, the Applicant in truth satisfied cl.572.235.
The basis for the submission that the Tribunal had accepted that there had been procedural unfairness by Cambridge College in issuing the s.19 Certificate was based on [9]-[11] of the Tribunal’s Decision Record, which stated as follows:
9.During the hearing the applicant confirmed that she had been granted a student visa which was valid from 7 November 2012 until 3 September 2013, and that her education provider had certified her as not achieving satisfactory course progress on 13 February 2013. The applicant explained that she had been unhappy with the course provider at that time and on the same date as the certification, being 13 February 2013, she had advised her education provider that she wished to change providers, she had obtained a confirmation of enrolment from a new education provider, and she had informed the department of this. (The Tribunal notes that the applicant’s submissions are supported by the evidence provided in her written submissions.)
10.The Tribunal explained that it did not have discretion in matters such as this, and if the applicant had been certified by her education provider as not achieving satisfactory course progress whilst she was the holder of a Student Visa, the Tribunal must find that the applicant has not substantially complied with her previous Student Visa when assessing her eligibility for the current Student Visa.
11.The applicant’s agent submitted that the education provider in question had not followed the proper procedure in issuing the certification against the applicant on 13 February 2013, however the Tribunal explained but it could not go behind the process and consider what procedure had been undertaken, but instead must consider whether or not the applicant had been certified. The Tribunal made clear that it accepted the evidence provided by the applicant, as it was supported by the documentation she had provided in her written submissions.
The reference in paragraphs [9]-[11] of the Tribunal’s Decision Record to the Applicant’s “written submissions” was to a 24 page letter from the Applicant’s migration agent in support of the Applicant’s review by the Tribunal. This letter relevantly stated:
STUDENT VISA REFUSAL:
At this juncture, we would like to bring to your kind notice that the applicant has discontinued Diploma of Accounting from New Cambridge College Sydney (NCCS), which is a two year course.
It is pertinent to mention here that the applicant has successfully completed one and half years of study. During this time she had satisfactory course progress and attendance. She has paid the tuition fees till that date and there were no dues. However, due to her personal reasons, she decided to change the course and intimated the same to the NCSS College.
Consequently she also took admission in Diploma of Human Resources Management from Apex Institute of Education and accordingly the new college has given a COE.
On 12/02/2013, the applicant gave a copy of new COE to the old college i.e., NCSS and requested them to change her provider. The NCSS took her new COE and cancelled her old COE.
On the same day the applicant visited the department at Sydney and submitted her new COE to the department. Therefore on 12/02/2013, the department was aware of the fact that the applicant took admission with new college and the department has received the new COE to that extent.
However, the old college NCSS has cancelled the old COE on 13/02/2013 and consequently the student visa has been cancelled on 14/03/2013.
At this juncture, before proceeding with the below submissions, we would humbly request the respected presiding officer to please read and take note of the applicant’s two page statement dated 19-03-2013.
It is a very crystal clear case that on:
12/02/2013: the applicant took new COE from Apex Institute,
12/02/2013: the applicant submitted the new COE to old college i.e., CSS
12/02/2013: the applicant requested NCSS for change of provider
12/02/2013: the applicant submitted a copy of new COE to the department at Sydney 13/02/2013: the old college cancelled her COE
14/02/2013: the applicant student visa has been cancelled
We humbly submit that till these events, the applicant has a satisfactory course progress and attendance. The old college (NCSS) has cancelled her COE on 13/02/2013 and consequently her student visa has been cancelled on 14/02/2013. The applicant was never given a proper opportunity in the form of warnings.
It is pertinent to mention that the education provider did not follow proper procedure. The process required the education provider to put the student on notice that he or she was at risk of breaching condition 8202 (be enrolled, 80% attendance, satisfactory course progress). If the education provider was of the preliminary view that there had been a breach, the student has an opportunity to show the education provider why there has been no breach. This was referred to as the internal review.
If that was not successful, the student was offered an external review. If the external review was unsuccessful, a notice unders20 of the Education Services Student Act 2000 (ESOS Act) was issued. A student’s visa will be automatically cancelled if the affected student did not report to an office of immigration within 28 days of a section 20 ESOS Act Notice being issued (s137J of the Migration Act 1958).
…
We humbly submit that the applicant has acted responsibly and intimated the department about the change of education provider on the same day i.e., 12/02/2013. Subsequently she has also provided the previous education institution with the new COE and requested for a change of education provider. However, the previous education institution has issued the application s20 notice which was totally unjust, unfair and inappropriate.
As said before, there is a proper procedure to be followed. Initially there should be a warning notice, which is followed by internal review and subsequent external review and finally s20 notice should be issued. Further after issuing the s20 notice the student has 28 days to respond.
The Applicant’s argument is that the last sentences of [9] and [11] of the Decision Record constituted an acceptance by the Tribunal of the assertions in the migration agent’s letter (reproduced at [18] above) that Cambridge College, as the Applicant’s education provider, did not follow “proper procedure” in relation to the s.19 Certificate and also in connection with the s.20 Notice of visa breaches sent to the Applicant, also dated 13 February 2013.
Consideration of Ground 1
I do not read the last sentences of [9] and [11] of the Tribunal’s Decision Record in the way that the Applicant asserts they should be read and understood. The last sentence in parentheses in [9] is a statement by the Tribunal that the documents attached to the written submission from the migration agent, sent under cover of the 24 page letter to the Tribunal, supported the Applicant’s submission that on 13 February 2013 she had advised Cambridge College that she wished to change education providers, had enrolled with a new education provider, being Apex Institute of Education Pty Ltd, and that on 12 February 2013 she had advised Cambridge College that she was leaving it.
The last sentence of [11] of the Tribunal’s Decision Record is a confirmation of its acceptance of what the Applicant’s migration agent had submitted about the circumstances of the Applicant changing education providers as being consistent with and supported by the documentation that the migration agent had submitted. However, it was not, in my view, an acceptance by the Tribunal of the correctness of the migration agent’s submission that there had been procedural unfairness associated with either the s.19 Certificate or the s.20 Notice sent to the Applicant by Cambridge College. The last sentence of [11] is but a mere reiteration of the acceptance by the Tribunal in the last sentence of [9] that documentation provided by the migration agent established that the Applicant had advised Cambridge College that she wished to change education providers, that she had obtained confirmation of enrolment with a new education provider and that she had informed the Department of these changes, presumably meaning to refer to the Applicant’s email to the Department dated 19 March 2013.
In my view, nothing in [9]-[11] of the Tribunal’s Decision Record constitutes or evidences an acceptance by the Tribunal of the assertions of procedural unfairness made in the migration agent’s 24 page letter in the passages excerpted at [18] above. The consequence of that is that Ground 1 fails because no argument was put by the Applicant in this proceeding that objectively, in truth and in fact, there had been a breach of procedural fairness by Cambridge College in relation to the provision of the s.19 Certificate or the giving of the s.20 Notice.
Rather, reliance was placed solely on the assertion that the Tribunal, upon the proper construction of its Decision Record, had accepted that there was procedural unfairness and that it was bound by that finding to come to the view that the Applicant had satisfied cl.572.235.
In other words, the Applicant in this proceeding has not sought to establish independently that there was actual procedural unfairness because, for example, the s.20 Notice had not been given to the Applicant by Cambridge College pursuant to cl.10.6 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. Further, the migration agent’s submission in his 24 page letter to the effect that Cambridge College could not give the s.19 Certificate dated 13 February 2013 because the Applicant had changed education providers on 12 February 2013 was disavowed by Mr Nair of Counsel, who appeared for the Applicant at the hearing and, in any event, could not succeed having regard to s.19(2A) of the ESOS Act or the decision of the Full Court of the Federal Court in Liu v Minister for Immigration (2005) 146 FCR 228.
Further, and in any event, it is clear law that the Tribunal is not permitted to go behind the certification by the education provider issued pursuant to s.19 of the ESOS Act. It is sufficient for present purposes to refer to the decision of North J in Casse v Minister for Immigration [2013] FCA 1007 and the decision of Flick J in Ahmed v Minister for Immigration (2015) 233 FCR 485 and the decision of Collier J in Patel v Minister for Immigration (2012) 206 FCR 384 in this regard.
Ground 2
Ground 2 was stated in the Amended Application filed in Court on 3 March 2016 as follows (omitting Particulars):
The Tribunal misconstrued and misapplied cl.572.235 of Schedule 2 of the Migration Regulations 1994. The Tribunal misconstrued the legislation as requiring it to engage with every one of the conditions that the visa was subject to, irrespective of whether or not the applicant was able to comply with a particular condition owing to circumstances beyond the applicant’s control.
The basis of this second ground starts with the fact that after the Applicant had been sent the s.20 Notice, her Second Visa was automatically cancelled under s.137J of the Migration Act. She then by letter dated 19 March 2013 sought that the automatic cancellation of the Second Visa be revoked by the Minister pursuant to s.137K of the Migration Act.
By letter dated 24 April 2013 the Minister did in fact revoke the cancellation of the Second Visa pursuant to s.137L of the Migration Act on the ground that the breach certified in the s.20 Notice was “due to exceptional circumstances beyond [the Applicant’s] control”. Both parties in this proceeding were agreed that it was unnecessary for the Court to have any knowledge of what these “exceptional circumstances” might have been for the purposes of the s.137L revocation.
It was submitted that as the Minister had revoked the automatic cancellation of the Second Visa because he was satisfied that the relevant breach was due to exceptional circumstances beyond the Applicant’s control, it followed that the Applicant had not failed to satisfy cl.572.235 since the Applicant’s failure to meet the requirements of cond.8202(3)(a)(i) was due to the said exceptional circumstances beyond the Applicant’s control.
It was then submitted that the Tribunal had wrongly construed and applied cl.572.235 as engaging with and requiring compliance with each and every condition to which the Second Visa was subject, whereas the Tribunal ought rather to have found that cl.572.235 did not require substantial compliance with conditions applying to the Second Visa where compliance with a particular condition was beyond the Applicant’s control. Alternatively, it was submitted that the conditions referred to in cl.572.235 do not include conditions where compliance is beyond the control of the relevant applicant and that this construction avoids plain unfairness, injustice, capriciousness and absurdity that can otherwise result from the construction of cl.572.235 applied by the Tribunal.
In my view, the second ground argued for the Applicant is contrary to authority and decisions binding on this Court.
First, neither cl.572.235 nor cond.8202(3) is invalid or void for uncertainty. There is no decision which construes cl.572.235 as having been complied with in circumstances where an adverse certificate has been issued, and decisions of both the Federal Court and this Court have proceeded upon the basis that the condition may lawfully be imposed: see Flick J in Mohammed v Minister for Immigration [2015] FCA 1060 at [16] and Flick J in Ahmed v Minister for Immigration (supra) at [20].
Second, cl.572.235 requires substantial compliance with each and every condition to which the relevant visa is subject, and non-compliance with one such condition is conclusive of an inability to satisfy or meet with substantial compliance: see Montero v Minister for Immigration & Anor (2014) 229 FCR 144; Peng v Minister for Immigration (2000) 105 FCR 63 and Jayasekara v Minister for Immigration (2006) 156 FCR 199.
Further, the fact that the automatic cancellation of the Applicant’s Second Visa was subsequently revoked by the Minister under s.137L of the Migration Act does not affect, detract or otherwise qualify the necessity for the Applicant to comply with the requirements of the Migration Act and the Regulations. The fact that the Minister exercised a discretion to allow the Applicant to continue to study until the expiration of the Second Visa on 3 September 2013 is both logically and practically unrelated to the issue of whether the Applicant should have been granted a third student visa after expiry of the Second Visa.
The fact that the Minister has decided to revoke an automatic cancellation of a visa for breach of cond.8202(3) and that s.137P of the Migration Act provides that thereby the relevant visa is taken never to have been cancelled under s.137J does not negate the certification by Cambridge College, in this case that the Applicant had not achieved satisfactory course progress. Cancellation and revocation of cancellation differ from the grant of a visa as Flick J (with whom the Chief Justice and Logan J agreed) said in Montero (supra) at [37]:
37. The two powers — be it of cancellation or grant — are not, of course, totally comparable; they merely overlap in the manner in which they operate. Greater discretionary flexibility may be available when exercising the power conferred by s 116 to cancel a visa than when exercising the discretionary power to grant a fresh visa. Even total noncompliance with a condition may not necessitate cancellation of a visa; but noncompliance with one condition may preclude the granting of a visa in conformity with cl 3004(e).
Finally, and in any event, cond.8202 does not expressly impose an obligation upon an applicant for a visa. As Gyles J said in Dai v Minister for Immigration (2007) 165 FCR 458 at 466 ([30]):
30.… Condition 8202 is not framed so as to expressly impose an obligation upon the visa holder to hold or procure certification — certification is rather a free-standing requirement. Compliance depends upon the existence of a positive certificate. Non-compliance is therefore the absence of a positive certificate rather than the existence of a negative certificate.
Conclusion
In my opinion, no jurisdictional error has been demonstrated and the Application is dismissed with the First Respondent’s costs to be paid by the Applicant. I reserve the issue of the quantum of such costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 23 May 2016
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