Hasan v Minister for Immigration
[2007] FMCA 110
•16 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HASAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 110 |
| MIGRATION – Review of decision of MRT – student visa – compliance with Condition 8202 – where condition changes during currency of visa – whether Tribunal bound to consider original form of Condition – whether change made by Act of Parliament subject to ss.48(1) or (2) (now s.46B) of Acts Interpretation Act 1901. |
| Education Services for Overseas Students Act 2000, s.20 Acts Interpretation Act 1901 (Cth), ss.48(1), (2) Migration Legislation Amendment (Overseas) Students Act 2000 (Cth) c.43 |
| Kang v Minister for Immigration [2006] FCA 788 R v Kidman (1915) 20 CLR 425 Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501 Siddique v Minister for Immigration [2003] FCAFC 16 Siddique v Minister for Immigration [2002] FCA 1226 Zou v Minister for Immigration [2002] FCA 1126 Minister for Immigration v Shi Bo Yu [2004] FCAFC 333 Jayasekara v Minister for Immigration [2006] FCAFC 167 |
| Applicant: | MOHAMMAD MEHBUB HASAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2501 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 January 2007 |
| Date of Last Submission: | 25 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Ms V McWilliam |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2501 of 2005
| MOHAMMAD MEHBUB HASAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before me is for a review of a decision of the Migration Review Tribunal made on 12 August 2005 affirming a decision of a delegate finding that the visa applicant is not entitled to the grant of a Student Temporary (Class TU) visa.
Mr Hasan is a national of Bangladesh born on 31 May 1973 who applied for a Student Temporary (Class TU) visa together with his wife on 15 March 2003. The delegate refused to grant the visa on 26 March 2004. The refusal to grant the visa was made because the delegate found that the applicant did not satisfy Clause 573.212 of Schedule 2 of the Regulations in that the delegate was not satisfied that the applicant had complied substantially with Condition 8202 of the substantive visa he last held. Clause 573.212 of Schedule 2 at the relevant time was in the following form:
“If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. [CB 90]
Condition 8202 that was attached to the applicant’s last substantive visa which was granted on 2 June 2000 and was valid until 15 March 2003 was relevantly in the following form:
“8202 The holder
(a) must
(i) …
(ii) …
(iii) in any other case – be enrolled in a registered course; and
(b) must (if the holder is not an occupational trainee):
(i) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider; or
(ii) if attendance cannot be evidenced, achieve an academic result that is certified by the education provider to be at least satisfactory; and
(c) …”
In December 2002 the terms of Condition 8202 changed so that it read as follows:
“The Student visa last held at the time of application that was in effect on 21 December 2000. Therefore the version of condition 8202 in Item 4 of Schedule 4 the Migration Legislation Amendment (Overseas Students) Act 2000 applies. Item 4 states as follows:
4. (1) This item applies to the following visas (and only those visas):
(a) all student visas that are in effect when this item commences;
(b) all student visas that are granted after this item commences but before 1 July 2001.
(2)Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.
(3)The condition is that:
(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student – the holder is enrolled in a full-time course of study; and
(b) in any other case – the holder is enrolled in a registered course; and
(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 leas than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester of the 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 for leas 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;”
Mr Hasan studied for a Batchelor of Information Technology at the Central Queensland University from 28 February 2000 to 31 December 2002. On 24 September 2003 the University stated in a letter that his academic progress for the Bachelor of Information Technology course was unsatisfactory during the following terms:
·Autumn Term 2000 – (28 February 2000 to 30 June 2000)
·Spring Term 2000 – (10 July 2000 to 24 November 2000)
·Autumn Term 2001 – (5 March 2001 to 29 June 2001)
·Spring Term 2001 – (23 July 2001 to 23 November 2001)
·Autumn Term 2002 – (4 March 2002 to 28 June 2002)
Mr Hasan said that the reason for his unsatisfactory academic results were caused by the illness and subsequent death of his father in May 2000 and certain ongoing health problems that his wife had been suffering from since June 2002. The applicant changed his course and his academic progress has been satisfactory since July 2002. The Tribunal said at [CB 131]:
“27The evidence before the Tribunal indicated that the primary visa applicant did not maintain satisfactory academic progress over 2000, 2001 and 2002. Indeed the Department received a submission from the primary visa applicant which included an advice from the manager of student services from Central Queensland University, Linda Moalem-Wilhelmi which states that the primary visa applicant’s academic performance in the autumn and spring session of 2001 was unsatisfactory and was again in the autumn session of 2002. This evidence indicates that the maintenance of satisfactory academic performance was not a one off aberration but was a sustained breach of condition 8202 over a long period of time. There is evidence that the primary visa applicant’s wife was unwell during from June 2002 and that the primary visa applicants father passed away in May of 2000, but these events do not explain the sustained failure to meet academic requirements from the autumn term of 2000.”
In its findings and reasons the Tribunal stated:
“31On 24 September 2004 the education provider wrote to the Department and advised the Department that in the above requested terms his academic progress was unsatisfactory. The education provider’s letter further notes that the primary visa applicant entered doctors certificates for some of this time and that his wife was ill for some of this time and that he was affected by his fathers death. However the evidence indicates that the primary visa applicant despite the fact that he provided medical evidence to his education provider did not comply with the conditions attached to his visa. It is incumbent on the education provider to certify that this is the case and the evidence indicates that they were not despite the evidence of the primary visa applicant pertaining to extenuating circumstances, willing to do this.
32The primary visa applicant has not complied substantially with condition 8202 of the visa they held or last held at the time the visa application was made.
33On the basis of the Tribunal’s finding, the Tribunal must affirm the decision under review.”
At the hearing before me Mr Hasan first posited two possible jurisdictional errors and later supplemented this with a third. The first error was that:
“The Tribunal, in making its decision, relied in part on the applicant’s academic progress for Autumn term 2000 (28 February to 30 June 2000). Most of this period fell outside the period of the visa last held by the applicant. Either the Tribunal was not permitted to take academic progress in this period into account or else the Tribunal failed to take into account that most of the period fell outside the period of the last visa held by the applicant.”
This is a matter which was raised before Siopis J in Kang v Minister for Immigration [2006] FCA 788 where at [29]:
“The Regulations prescribe the means by which a visa holder is to satisfy the requirement of Condition 8202 in respect of academic performance. It is by a visa holder obtaining a certificate from the education provider that the academic result is ‘at least satisfactory’ in respect of each term or semester as the case may be. There is no qualification in the Regulations specifying the period of time that the visa holder was required to have held a specific visa prior to the end of the relevant term or semester. Satisfaction of the visa condition simply requires the production of a certificate in relation to the academic performance for the term or semester in question and contemplates that the certificate will be issued at the end of the term or semester. The means of fulfilling the requirement is sufficiently flexible to accommodate the case of a person who is a student for the whole of the semester or term but whose visa expires during the term or semester and is issued a new visa during that term. There is no dispute in this case that the applicant was enrolled at the commencement of the semester in question and was a student for the whole of the semester.”
No submissions were made to me that his Honour was clearly wrong in the findings set out above with which I would concur. In the circumstances I am unable to uphold the submission put on behalf of Mr Hasan.
The second alleged jurisdictional error is expressed as follows:
“The applicant explained that between February and June 2002 he did not receive any warning from the University that his academic progress was unsatisfactory. This matter was relevant to whether the applicant complied substantially with Condition 8202. The Tribunal made no reference to this matter in the section of its decision entitled “findings and reasons”. On this basis the court can conclude that the Tribunal failed to take this matter into account in making its decision.”
The thing that the Tribunal had to take into account was whether or not the applicant had complied substantially with the condition. The failure to obtain satisfactory academic progress for five terms over a period of two years was described by the Tribunal as “a sustained breach of Condition 8202 over a long period of time”. I am unable to see that a failure of the academic institution to warn the applicant of the danger of his position would have made any difference. He was clearly in the wrong course. He admitted as much. He was lucky that no notice was sent to him under s.20 of the Education Services for Overseas Students Act 2000. I am unable to see any value in this submission.
At the end of the day the applicant raised a further submission relating to the change in Condition 8202 that occurred during the existence of the applicant’s last substantive visa. It is expressed in this way:
“In June 2002 Condition 8202 which applied to the applicant’s visa was in certain terms (see CB 90.4) (the “old terms”). In December 2000 the terms of Condition 8202 changed (see CB 128.10 to 129.5) (the “new terms”). In relation to the period June 2000 to December 2000 the Tribunal should have applied the old terms in considering whether the applicant substantially complied with Condition 8202. However, the Tribunal erronously applied the new terms. Alternatively even if the Tribunal was permitted to apply the new terms the Tribunal should have taken into account the change of terms in considering whether the applicant complied substantially with Condition 8202.”
Mr Zipser who appeared on behalf of Mr Hasan argued that three issues arise from this amendment. The first was whether the amendment of Condition 8202 had retrospective effect. He argued that it did not because of the operation of ss.48(1) and (2) (now s.46B) of the Acts Interpretation Act 1901 (Cth). But these sub-sections applied to delegated legislation and would not apply to clause 4.3 of the Migration Legislation Amendment (Overseas) Students Act 2000 (Cth) which was an act of Parliament that amended the regulation. The Commonwealth Parliament has power to make retrospective or retroactive laws; R v Kidman (1915) 20 CLR 425, Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501 at [539] per Mason CJ; at [642] per Dawson J; at [715], [719] per McHugh J. I am satisfied that there is a clear intention to give retrospective effect to Condition 8202 from a reading of Clause 4 of Schedule 4 of the Act in its entirety and the reference to “all student visas that are in effect when the item commences.” Clause 4.6 of Schedule 4 of the Act expressly permits cancellation of a visa on grounds of non compliance with the amended Condition 8202 even if the non compliance occurred before the commencement of the provision.
This conclusion lies in line with the now settled authorities. In Siddique v Minister for Immigration [2003] FCAFC 16 their Honours Madgwick, Gyles and Conti JJ, whilst not hearing argument on the point due to the applicant’s failure to idenitfy any appealable error, summarised the conflicting authorities:
“[12] There is one aspect of the decision we should mention, namely, which form or forms of condition 8202 should have been considered by the Tribunal in the present case. There was a conflict on the authorities as to whether, in relation to an application for a fresh visa after 21 December 2000 and before 1 July 2001 (as in the instant case), non-compliance with the new condition 8202 could be judged if some or all of the events constituting the non-compliance happened before that item commenced (again, as in the instant case). In Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 Finkelstein J took the view that the new condition only governed from the time it applied and compliance should be judged accordingly. His Honour did not refer to cl 6 of Sch 4 Item 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) or to the Supplementary Explanatory Memorandum which related to the Bill for that Act. In Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772 Tamberlin J came to the contrary conclusion without apparently having been referred to Kwan. Mansfield J, having considered the position for himself, concluded that the view of Tamberlin J was preferable. The same view appears to have been acted upon by Merkel J in Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 630. In Zou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1126 Hill J expressly declined to follow Kwan. Whilst we have not heard full argument on the point, it appears to us that the primary judge was correct in coming to the conclusion that he did on this aspect of the case, particularly in view of the provisions of cl 6 of Sch 4 Item 4 and the contents of the Supplementary Explanatory Memorandum.”
The primary judgment of Mansfield J in Siddique followed by the Full Court on appeal held that the applicant was required to demonstrate that he had complied with the conditions imposed by the amended condition 8202. His Honour stated at [19]:
“[19] It is appropriate first to determine whether the former Condition 8202 or the amended Condition 8202 applied to the Tribunal's review of the delegate's decision. I note the respondent's suggestion that the amended Condition 8202 may be a consequence of the decision of Katz J in Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 which took the view that the attendance requirement prescribed in the former Condition 8202 was to be measured against attendance for the whole of the course being undertaken, rather than for particular years or semesters of the course. See also per Conti J in Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 at [6].
[20] In Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772, Tamberlin J was required to address that issue. In that matter, coincidentally, the visa applicant also held a Student visa which expired on 15 March 2001, and his application for a new Student visa was unsuccessful. The Tribunal determined whether he satisfied criterion 560.213 of Sch 2 to the Regulations by reference to the amended Condition 8202. It was contended that it had erred in so doing. Tamberlin J, having regard to item 4(1) of Sch 4 to the amending Act, but without referring to item 4(6), said at [11]:
"Having regard to these statutory amendments which were clearly designed to ensure that this condition was uniform in relation to all student visas, there is no substance in the argument advanced by the applicant on this point. The Tribunal applied the correct form of condition 8202."
[21] In Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 (Kwan), Finkelstein J appears to have taken a different view. Again, the Student visa expired on 15 March 2001 and the application before the Court concerned a Tribunal decision refusing to grant a further Student visa. His Honour said at [7] that the visa applicant:
"had to show that he had complied substantially with the original condition 8202 while his visa was subject to that condition (that is until 21 December 2000), and thereafter he had to show that he had complied substantially with the new condition. In substance, Mr Kwan was only required to meet the new condition for 10 days, namely from 5 March 2001, when the new academic year commenced, until 15 March 2001, when his previous visa expired."
[22] His Honour found that the Tribunal had erred in assuming that the amended Condition 8202 applied to the visa in force until 15 March 2001 from the time of its grant. His Honour rejected the contention, on behalf of the Minister, that the amended Condition 8202 had retrospective effect, so as to replace the former Condition 8202 as if it had never existed (at least in respect of a visa not expired by 21 December 2000). His Honour's reasons for so doing appear in the following passage at [9]:
"In the first place there is nothing in the language of the amending Act which would produce that result. In the second place, I would not attribute to Parliament such a perverse intention unless I was compelled to do so by unambiguous language. In my opinion not only is the language of the amending legislation not ambiguous in that sense, it is to the opposite effect."
[23] In my view, the conclusion reached by Tamberlin J is the preferable one.” As per Mansfield J in Siddique v Minister for Immigration [2002] FCA 1226.
The Full Court in Siddique affirmed the decision of Hill J in Zou v Minister for Immigration [2002] FCA 1126, where his Honour concluded that the legislation had retrospective effect:
“[25] There is no express provision in Sch 4 to the 2000 Act which inter alia inserted the new form of condition 8202 stating that it is to operate retrospectively. Nor for that matter is there anything in the extrinsic material which deals with the question.
[26] It may be accepted that there is a presumption against legislation applying retrospectively: Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ. This will be so, unless the intention to operate retrospectively appears with reasonable certainyy. See too, Geraldton Building Code v May (1977) 13 ALR 17 and Pierce and Geddies Statutory Interpretation in Australia 4th ed. 1996 Chapter 10 at pp. 243 ff. Ultimately, it must be said however, the question is one of interpretation. It must therefore be asked whether the provisions of Sch 4 and particularly item 4(2) replacing condition 8202 was intended by Parliament to operate with retrospective effect. It may here be noted that the 2000 Act received the royal assent and thus came into effect on 21 December 2000. It applied specifically to visas in effect on that date or which were granted between that date and 1 July 2001.
…
[30]… Item 4 of the Schedule clearly contemplates retrospective effect in the circumstance to which it refers. … On the whole I think that Item 4 was inserted into the Schedule to make it abundantly clear and explicit that in the case to which it referred there was retrospective effect. I do not think that it was intended to deal with a case which was to be an exception to the general rule of non-retrospective effect. That seems not to be the intention.”
The second point raised by Mr Zipser was:
“Second, clause 4(6) in schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) suggests that clause 4(3) has some retrspective effect. However:
(a) Clause 4(6) concerns and is expressly limited to the cancellation of a visa. The present case involves the refusal to grant a visa.
(b)In any event, clause 4(6) is invalid on the basis that it infringes s.48(2) of the Acts Interpretation Act. This point is exemplified by Atkinson v Oakleigh Holdings Pty Ltd [2000] FCA 1547 at [12]-[14] where Heerey J held that a regulation of the Bankruptcy Amendment Regulations 2000 which sought to give retrospective operation to some provisions of the Bankruptcy Amendment Regulatiosn 2000 was invalid because it infringed s.48(2) of the Acts Interpretation Act.”
This submission seems to me to suffer from the same difficulty that the first submission suffered from, namely that it is not a regulation that is being used to amend a previous regulation but an Act of the Parliament to which ss.48(1) and 48(2) of the Acts Interpretation Act did not apply.
The second issue raised by Mr Zipser, as opposed to the second point of the first issue discussed above, concerns whether or not the Tribunal’s error in statutory construction was a jurisdictional error. As I do not believe that the Tribunal has made an error in statutory construction I am not required to make a finding on this issue but as Ms McWilliam states in paragraph 12 and 13 of her additional submissions there was no evidence before the delegate or the Tribunal in relation to the applicant’s attendance. Such evidence is required by (b)(i) of Condition 8202 in the old terms and without it the applicant would have had to meet (b)(ii) of the old Conditon 8202 which requires a satisfactory certification of the education provider. As Allsop J opined in Minister for Immigration v Shi Bo Yu [2004] FCAFC 333 at [30]:
“There was no obligation upon the Tribunal to enquire of the College about the answer. No statutory obligation arose to do so: WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277. The proper task before the Tribunal was to consider whether the respondent had met the requirement of condition 8202(3)(b) that he achieved in the term in question an academic result that was certified by the College as satisfactory. It had a certificate, which stated that the respondent’s academic progress was unsatisfactory. It was not obliged by s.116, s.119, Reg 2.43(2), condition 8202 or otherwise to seek to go behind the communication from the College. It was certainly not entitled to assay the task of assessing the progress of the respondent for itself.”
As Ms McWilliam says:
“In the present case there was no certification and accordingly the applicant would still have failed to meet Conditon 8202 in its old terms for the period June to December 2000 [the period during which the old condition applied].”
The third issued raised by Mr Zipser relates to his alternative amended ground that the Tribunal should have taken into account the change of terms. This submission appears to import some form of discretionary element into the consideration of the applicant’s failure to comply with Condition 8202 but the discretionary aspect of substantial compliance does not arise in cases where there has been a failure to comply with Condition 8202 by virtue of a lack of certification of satisfactory performance: Jayasekara v Minister for Immigration [2006] FCAFC 167 at [11-15].
For these reasons I am unable to grant the applicant the review he seeks. I dismiss his application and order that the applicant pay the respondent’s costs assessed in the sum of $5,500.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
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