Hossain v Minister for Immigration
[2009] FMCA 1008
•20 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1008 |
| MIGRATION – Visa – cancellation of visa – Subclass 571 Schools Sector visa – condition 8202 – irrelevant consideration – whether Tribunal acted on an irrelevant consideration – whether condition 8202 is a “prescribed condition” of Education Services for Overseas Students Act 2000 (Cth) s. 20 – whether condition 8202 is capable of being breached – no jurisdictional error. MIGRATION – Words & Phrases – “prescribed condition”. |
| Education Services for Overseas Students Act 2000 (Cth) ss.4A, 19, 20, 177 Education Services for Overseas Students Legislation Amendment (2006 Measures No.2) Act 2006 (Cth). Migration Act 1958 (Cth), ss.137J, 137K, 359, 359C, 474, 476 Education Services for Overseas Students Regulations 2001 (Cth) Reg. 3.03A Migration Regulations 1994 (Cth) Sch. 2, cl. 571.611, Sch. 8, subclause 8202 |
| Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458; [2007] FCAFC 199 Maan v Migration Review Tribunal [2008] FMCA 1738 followed |
| Applicant: | MOHAMMED MARUF HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1327 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 August 2009 |
| Date of Last Submission: | 19 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr Lloyd SC and Ms Mitchelmore |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s.
The Application is listed for Costs Mention on Monday 26 October 2009 at 10:15am before Federal Magistrate Scarlett in Court 7B, Level 7 John Maddison Tower, 88 Goulburn Street Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1327 of 2009
| MOHAMMED MARUF HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is applying for review of a decision of the Migration Review Tribunal made on 23rd April 2009. The Tribunal affirmed the decision of a delegate of the Minister not to revoke the automatic cancellation of the Subclass 571 Schools Sector held by the applicant.
The applicant seeks:
(a)A writ of certiorari to quash the Tribunal decision;
(b)An order in the nature of prohibition; and
(c)A writ of mandamus remitting the matter to the Tribunal.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 23rd September 2007. He was granted a Subclass 571 Schools Sector visa on 19th September 2007, and was granted a further Subclass 571 Schools Sector visa on 15th October 2007. He was enrolled at the Australian International High School Pty Ltd (the AIHS).
On 15th September 2008 the AIHS sent the applicant a notice under
s. 20 of the Education Services for Overseas Students Act (the ESOS Act). The Notice informed him that IAHS had certified certain matters certain matters relating to course progress and/or course attendance which gave rise to a breach of a prescribed condition of his student visa. The particulars of the breach were that the applicant had failed to meet the requirements of paragraph 8202(3)(b). The Notice contained this certification:
Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994
Australian International High School Pty Lt [02401M] on 15 September 2008 certifies Mr Md Maruf HOSSAIN, for course Senior Secondary (Year 12), as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).[1]
[1] See Court Book at page 1
The Notice also informed the applicant that he could avoid having his visa automatically cancelled under s 137J of the Migration Act by complying with one of the two options set out in s 137J(2), both of which involved attending an office of the Department of Immigration and Citizenship for the purpose of making any submission about the breach and the circumstances that led to it. To comply with either option, the applicant had to attend at an office of the Department within 28 days after 15th September 2008.[2]
[2] Court Book at 5
The applicant did not comply with either option and on 14th October 2008 his visa was automatically cancelled under s 137J(2) of the Act.
The applicant consulted a solicitor and migration agent, who wrote to the Department on 6th November 2008, seeking revocation of the cancellation of the visa under s 137K of the Act. The request was made on the following bases:
1. The Notice was issued particularising a breach under paragraph 8202(3)(b). We refer to the decision of the Full Federal Court in the matter of Dai v Minister for Immigration[3] and submit that the particular sub-regulation which the visa holder is alleged to have breached is invalid. Accordingly, we submit that the Section 20 Notice is also invalid.
2. The student submits that his college failed to comply with its obligations under the National Code before issuing the Section 20 Notice.
3. The Notice purports to refer to a prescribed condition. It is our understanding that the Minister has failed to issue the appropriate notice prescribing conditions.[4]
[3] Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458; [2007] FCAFC 199
[4] Court Book 8
A delegate of the Minister decided not to revoke the cancellation of the applicant’s visa on 24th February 2009.[5]
[5] Court Book 18-21
Application to the Migration Review Tribunal
On 12th March 2009 the applicant applied to the Migration Review Tribunal for review of the delegate’s decision.[6]
[6] Court Book 22
On 26th March 2009 the Tribunal wrote to the Australian International High School, seeking information under the provisions of s 359(2) of the Migration Act.[7]
[7] Court Book 32
The AIHS replied by fax on 1st April 2009, stating:
1. The period of Mr Hossain’s studies at AIHS was from 24 September 2007 to 15 September 2008.
2. The period of study Mr Hossain did not achieve satisfactory course attendance was from 28 April 2008 to 13 June 2008.
3. Attendance records – See appendix 1.
4. Mr Hossain stated he was absent due to medical reasons. One medical certificate was provided for the period 6th June to 17th June 2008. Mr Hossain failed to provide any further medical evidence for the period 28 April to 13 June 2008.
5. Communication documents – see appendix 2.
6. AIHS believes it met all the requirements of the National Code which is evidenced in the documentation provided in Appendix 2. Mr Hossain was provided with numerous warnings in accordance with the National Code and the Board of Studies requirements and afforded a number of opportunities to provide evidence of his illness which he was unable to do.[8]
[8] Court Book 35
The Tribunal wrote to the applicant on 2nd April 2009 inviting him to comment on or respond to information that the Tribunal considered would, subject to any comments or response he made, be the reason, or a part of the reason, for affirming the decision under review. The information was that provided by AIHS. The Tribunal asked the applicant to comment or respond by 9th April 2009.[9]
[9] Court Book 57-59
On 9th April 2009 the applicant’s migration agent asked for a 14 day extension of time to comment or respond.[10] The Tribunal replied that same day, granting an extension until 20th April.[11]
[10] Court Book 60
[11] Court Book 62
The Tribunal did not receive a response from the applicant.
On 23rd April 2009 the Tribunal determined the review under the provisions of s 359C of the Act.
The Migration Review Tribunal Decision
The Tribunal affirmed the decision not to revoke the automatic cancellation of the Subclass 571 Schools Sector visa formerly held by the applicant.[12]
[12] Court Book 65
The Tribunal noted the applicant’s argument that s. 137J of the Migration Act did not apply because there are no conditions prescribed for the purpose of s. 20 of the ESOS Act. The Tribunal considered that the preferable construction is to read ss. 19 and 20 of the ESOS Act together, where condition 8202 of Schedule 8 to the Migration Regulations is prescribed for the purposes of s. 19(2) of the ESOS Act.[13]
[13] Court Book 70 at paragraph [28]
The Tribunal rejected two other possible constructions of the words “prescribed condition” in s. 20(1):
(1)The first construes these words as a reference to a condition of a student visa prescribed under s. 41 of the Migration Act.[14]
(2) The second, being the construction advocated by the representative, is that the words refer to a condition prescribed under the ESOS Act and, as there are none prescribed for s. 20(1), there are no circumstances in which a s. 20 notice can be validly issued.[15]
[14] Court Book 71 at [32]
[15] Ibid at [33]
The Tribunal considered, but rejected, the applicant’s argument that, on the reasoning in Dai v Minister for Immigration and Citizenship[16], condition 8202(3)(b) was invalid. The Tribunal found that the reasoning in Dai does not apply with respect to attendance, which was the basis for the cancellation in the decision under review.
[16] supra
As to the application for revocation, the Tribunal was satisfied that AIHS complied with the National Code, noting from the information provided by AIHS that:
(a)The applicant had been given warnings in accordance with the Code;
(b)The applicant was given an opportunity to provide evidence relating to the possible breach; and
(c)AIHS appeared to have kept accurate records relating to the applicant’s studies.[17]
[17] Court Book 72 at [38]
Further, the Tribunal noted that the applicant was a citizen from Bangladesh and there was no information before the Tribunal relating to any political upheaval or natural disaster in Bangladesh that had affected the applicant’s ability to comply with condition 8202.
The Tribunal was not satisfied that AIHS had failed to monitor the applicant’s attendance accurately, or that it failed to give him access to a complaints handling and appeals process.
The applicant had not given any other reasons for the breach.
The Tribunal found that the applicant did breach the relevant visa condition and also found that the breach was not due to exceptional circumstances beyond his control.
Accordingly, the Tribunal affirmed the decision not to revoke the automatic cancellation of the applicant’s visa.
Application for Judicial Review
The applicant’s solicitors filed an application and an affidavit to commence these proceedings on 2nd June 2009. The application seeks:
a)A writ of certiorari;
b)An order in the nature of prohibition and/or an injunction; and
c)A writ of mandamus.
The grounds of the application are:
In basing its decision on an alleged breach of Condition 8202 acting as the trigger for issue of a notice under s. 20 Education Services for Overseas Students Act 2000 (ESOS Act), the Tribunal relied on an irrelevant consideration.
Particulars
(a)Condition 8202 is not a “prescribed condition” of s. 20 ESOS Act, and so a “breach” of that condition cannot trigger the issue of a notice under that section.
(b)In any event, Condition 8202 is not capable of being breached.
The Applicant’s Submissions
Counsel for the applicant submitted that, first, no valid s. 20 notice was issued. Section 19 of the Act deals with what precisely needs to be disclosed to the Secretary of the Department, although it leaves additional detail to be prescribed by regulation. The regulation-making power is to be found within s 177 of the Act and, he submitted, is the only provision of the ESOS Act which would permit the making of a regulation under ss. 19 or 20.
Mr Karp submitted that Part 3 of the Education Services for Overseas Students Regulations 2001, is headed “Obligations on Registered Providers” and Division 3.1 is headed “Information and Records”. Regulation 3.03A states:
3.03A Breach by an accepted student of a student visa condition
For subsection 19(2) of the Act, a registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition in the following table:
Item Student visa condition
1 8202
It was submitted that it is quite clear that what must be reported to the Secretary under s. 19(2) is a student’s breach of Condition 8202. In contrast to s. 19, s 20 deals with what must be given and disclosed to a student and the circumstances in which it must be given, which is entirely different subject matter to that in s.19.
Mr Karp submitted that a regulation made pursuant to a general regulation making power such as s.77 of the ESOS Act may be directed to the whole Act or a particular part of the Act. However, a regulation specifically stated to be made under a distinct provision of an enactment cannot by a process of metamorphosis be extended to apply to a different provision. Section 20(1) of the ESOS Act applies “if the student has breached a prescribed condition of a student visa”. It is submitted that there are no “prescribed conditions” of student visas for the purposes of s.20, because the prescription of Student Visa Condition 8202 in Reg. 3.03A of the Education Services for Overseas Students Regulations is stated to be for the purposes of s. 19(2) of the ESOS Act, which is limited to that sub-section.
Thus, it is submitted that no valid s. 20 Notice issued.
The second leg of the applicant’s submissions is that Condition 8202(3)(b) cannot be breached, even if Condition 8202 is prescribed for the purposes of s.20 of the ESOS Act.
Mr Karp submitted that the words “if the student has breached” indicate that the issue to be determined is whether an act or omission of the student has had the effect of contravening a rule. In contrast, Condition 8202(1) requires the student to “meet” the requirements of subclauses (2) and (3). The word “meet”, he submitted, refers to a state of affairs, rather than conduct. The way that Condition 8202(3) is expressed is that the condition is “met” if the education provider does not certify attendance or result. Therefore, it is an act or failure to act by the education provider, not the student, which results in his or her meeting or not meeting Condition 8202.
Accordingly, it is submitted that a breach of Condition 8202 cannot invoke s.20 of the ESOS Act because that condition cannot be breached – it can only be met or not met.
The Minister’s Submissions
Senior Counsel for the Minister, Mr Lloyd SC, took issue with the applicant’s contention that ss.19 and 20 of the ESOS Act deal with entirely different subject matter, submitting that the event triggering the obligation to notify a student in s. 20(1) of the ESOS Act is the same as that triggering the application of s 19(2), namely a breach by an accepted student of a prescribed condition of his or her student visa.
The term “prescribed condition of a student visa” was inserted into ss. 19(2) and (20)(1) by the Education Services for Overseas Students Legislation Amendment (2006 Measures No.2) Act 2006 (Cth). According to the Explanatory Memorandum to the Bill, the intention was to deliver procedural flexibility rather than substantive change. The Court’s attention was drawn to these words:
To remove any doubt, the amendments will not incorporate a range of new conditions in the regulations made under the Act that registered providers must report on nor will the amendments to the Act change what constitutes an offence by the registered provider if they fail to report on the prescribed conditions.[18]
[18] Quoted in Submissions of the First Respondent at paragraph [21]
The submission is that the legislative history of ss. 19(2) and 20(1), together with the “mirror functions” they perform, indicate that the reference to “a prescribed condition” in both sections should be construed as being a reference to the same condition. A condition prescribed under s. 19(2) would also be a condition prescribed by
s. 20(1).
Further, it is submitted:
Regulation 3.03A of the ESOS Regulations stipulates condition 8202 as the only student visa condition the breach of which triggers the obligation of a registered provider under s 19(2) of the ESOS Act to notify the Secretary. Consistently with the legislative purpose in enacting the amendments to ss. 19(2) and 20(1), condition 8202 deals with educational requirements. On the construction of ss. 19 and 20 contended by the Minister, the prescription of that condition for the purposes of s 19(2) enlivens the obligation of a registered provider under s 20(1) to also notify the student. To construe the provisions in this manner is consistent with the object of the ESOS Act “to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas” (s 4A(c)).[19]
[19] Ibid at [24]
In the case under review, the notice sent to the applicant under s. 20 of the ESOS Act particularised a breach of condition 8202, being the condition prescribed for the purposes of s 19(2).
The Minister submitted that the notice was valid and sending the notice to the applicant triggered the application of s.137J of the Migration Act.
Turning to the second leg of the applicant’s submission, counsel for the Minister submitted that condition 8202 is capable of breach. He took issue with the applicant’s argument that the clause cannot be breached, although it could be said to be “not met”. The semantic distinction between the words “meet” and “breach” was, he said, a distinction without a difference. If a person is obliged by a provision of a statute or a regulation to meet a particular requirement and does not do so, that failure will constitute a contravention, or “breach”, of that provision. Condition 8202(1) stipulates that the visa holder “must meet the requirements of subclauses (2) and (3)”. A failure to meet the requirements of either subclause will result in the visa holder breaching subclause (1).
Mr Lloyd went on to submit:
27.Subclause (3) of condition 8202 is relevant for present purposes. It is framed in negative terms in two important respects. First, a visa holder meets the requirements of the subclause if neither if paragraphs (a) or (b) applies to him or her. Secondly, paragraphs (a) and (b) refer to a certification being made by the relevant education provider, as to the visa holder’s unsatisfactory course progress or course attendance. An education provider is obliged to issue a certificate in the terms of paragraph (a) or paragraph (b), in accordance with their obligations under the ESOS Act and the National code, when prompted to do so by the unsatisfactory course attendance or course progress of the visa holder in question.
28.The existence of negative certification on the part of the education provider pursuant to either paragraph (a) or (b) will result in a visa holder not meeting the requirements of subclause (3) of condition 8202, and thereby breaching the requirements of subclause (1). While the education provider will only be obliged to issue a certificate if the visa holder fails to perform in his or her course, or fails to attend the requisite number of hours, on this construction such failure is a factual or causative element of the condition, but not its focus. Construing the certification as the relevant breach of subclause (3) is consistent with the language in s. 20(4)(b) of the ESOS Act and s. 137J(2) of the Act, that the non-citizen attend up[on an officer of the Department “for the purpose of making any submissions about the breach and the circumstances that led to the breach” (emphases added).[20]
[20] Submissions of the First Respondent [27]-[28]
This construction of condition 8202(3) was adopted by Jarrett FM in Maan v Migration Review Tribunal[21] at [45]:
The applicant’s arguments do not recognise that non-attendance at the relevant educational institution is not the relevant non-conformity, but rather it is the certification which is the non-conformity with the relevant visa condition. It is not a failure to comply with the visa condition to not attend classes to the relevant standard. What is non-conformity is to receive certification from the relevant educational institution that does not certify satisfactory course attendance.
[21] [2008] FMCA 1738
Thus, it is submitted:
a)If a visa holder performs well, and attends the minimum course contact hours, the obligation on the part of the education provider to issue a certificate will not arise and the visa holder will meet the requirements of subclause (3); but
b)If, on the other hand, the student does not make satisfactory course progress, or fails to attend the minimum course contact hours, the education provider will be obliged to issue a certificate in the terms of paragraph (a) or (b) of subclause (3).
Conclusions
The applicant’s first particular of his ground claims that Condition 8202 is not a prescribed condition of s. 20 of the ESOS Act, and so a breach of that condition cannot trigger the issue of a notice under that section.
Condition 8202 appears in Item 8202 of Schedule 8 to the Migration Regulations. It says:
(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.
The applicant submits that the Tribunal erred when it found that ss. 19 and 20 of the ESOS Act were to be read together , so that the reference to a prescribed condition in s. 20(1) is taken to be a reference to a condition prescribed for the purposes of s. 19, which, under reg. 3.03A, is condition 8202. The Tribunal said:
This construction promotes the underlying purpose of the Act which, in part, is to provide a scheme for the reporting of students who breach their visa conditions, and gives s. 20 work to do.[22]
[22] Court Book 71 at [34]
Regulation 3.03A states:
Breach by an accepted student of a student visa condition
For subsection 19(2) of the Act, a registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition in the following table:
Item Student visa condition
1 8202
The applicant’s argument is that sections 19 and 20 of the ESOS Act deal with entirely different subject matter from each other, so that, whilst visa condition 8202 is expressly prescribed for subsection 19(2), it does not follow that it is a prescribed condition for subsection 20(1). The submission is that there are no “prescribed conditions” for the purposes of s. 20 of the ESOS Act.
I am not persuaded that this is correct.
Subsection 19(2) states:
A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
Subsection 20(1) states:
A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
The two subsections clearly refer to the same subject matter, namely the breach of a prescribed visa condition by an accepted student. That is the subject matter of regulation 3.03A, which prescribes Condition 8202:
Breach by an accepted student of a student visa condition
In my view, sections 19 and 20 of the ESOS Act are meant to be read together, and they follow in logical order. The prescribed condition in subsection 20(1) can only be the prescribed condition in subsection 19(2). It cannot refer to anything else. It would be absurd for the breach of prescribed condition, which must be reported to the Secretary under s. 19(2), was not the breach of that same condition that must be the subject of a written notice to the student under s. 20(1).
If it were otherwise, the registered provider would be obliged to report the breach of the condition to the Secretary but would have no obligation to give any notice of the breach of that same condition to the student. If that were so, the student would not be informed of the obligations under s. 20(4) or of his or her rights and obligations under ss. 137J and 137K of the Migration Act.
Again, s. 20 of the ESOS Act would have no work to do if there were no prescribed conditions, which is also an absurd situation.
I am satisfied that the reference to “prescribed condition” in subsection 20(1) of the ESOS Act refers to a condition prescribed for the purposes of subsection 19(2) of that Act. It follows that the applicant’s contention that no valid s. 20 Notice was issued must fail. If it were otherwise, no s. 20 Notice would be valid.
Thus, the Tribunal did not fall into error by relying on an irrelevant consideration. Condition 8202 is a prescribed condition of s. 20 of the ESOS Act.
The applicant also submits that Condition 8202 is not capable of being breached.
The applicant contends that Condition 8202(3) means that the Condition is met if the education provider does not certify attendance or results and it is an act or failure to act of the education provider, not the student, which results in the student meeting or not meeting Condition 8202.
That is not the view expressed by Jarrett FM in Maan v Migration Review Tribunal[23] at [45]:
The applicant’s arguments do not recognise that non-attendance at the relevant educational institution is not the relevant non-conformity, but rather it is the certification which is the non-conformity with the relevant visa condition. It is not a failure to comply with the visa condition to not attend classes to the relevant standard. What is non-conformity is to receive certification from the relevant educational institution that does not certify satisfactory course attendance. They are two different things although the latter is based on the former. But the former, of itself, means nothing for the purposes of the visa holder’s visa until and unless it is acted upon by the education provider to provide the relevant certification.[24]
[23] supra
[24] [2008] FMCA 1738 at [45]
In my view, the decision in Maan is on point. Judicial comity requires that I should follow that decision unless I consider it to be wrong. I do not consider it to be wrongly decided and I intend to follow it.
The absence of a certificate from the education provider under Condition 8202(3)(a) or (b)means that the student meets the requirements of the subclause. However, if a negative certificate is issued that the student is not achieving satisfactory course progress or satisfactory course attendance, then it will follow that the student is not meeting the requirements of the subclause and will therefore be in breach of subclause (1).
Thus, Condition 8202 is capable of breach. It follows that the Tribunal did not fall into jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s. 474(2) of the Migration Act. It is final and conclusive and not subject to certiorari, prohibition, injunction or mandamus (s. 474(1)).
The application will be dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 20 October 2009
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