Humayun v Minister for Immigration

[2005] FMCA 1247

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUMAYUN v MINISTER FOR IMMIGRATION & ORS [2005] FMCA 1247

MIGRATION – MRT decision – cancellation of student visa for breach of condition 8202 – satisfactory academic results not certified by education provider – no error found – application refused for amendment and adjournment to make claims against provider.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.8(2), 11(1)(c)
Education Services for Overseas Students Act 2000 (Cth), s.20
Federal Court Rules, O.54B
Federal Magistrates Act 1999 (Cth), s.18
Federal Magistrates Court Rules 2001, r.7.01(2), 10.01, 11.02(2)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116(1), 116(1)(b), 116(3), 119, 483A, Pt.8
Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), Sch.4 items 4, 4(3)(c), 4(3)(d)
Migration Regulations 1994 (Cth), regs.2.43, 2.43(2)(b)(ii)

Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Applicant: ALI BEG HUMAYUN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: ACADEMIC BOARD OF THE UNIVERSITY OF CANBERRA

Third Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG740 of 2005

Judgment of: Smith FM

Hearing date: 17 August 2005

Delivered at: Sydney

Delivered on: 17 August 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms P Sibtain

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant is refused leave to amend the application to raise any claim against the second respondent, and paragraphs 3 and 4 of the amended application filed on 8 April 2005 are struck out. 

2. The Migration Review Tribunal is joined as third respondent. 

3. The application and amended application are otherwise dismissed. 

4. The applicant must pay the first respondent’s costs in the sum of $4,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG740 of 2005

ALI BEG HUMAYUN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

ACADEMIC BOARD OF THE UNIVERSITY OF CANBERRA

Second Respondent

MIGRATION REVIEW TRIBUNAL

Third Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The present proceedings were commenced by an application using the form under O.54B of the Federal Court Rules, seeking relief under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) in relation to a decision of the Migration Review Tribunal (“the Tribunal”) which is dated 31 May 2004.  The Tribunal affirmed a decision made by a delegate on 4 March 2003 to cancel a student (temporary) (class TU) subclass 560 (student) visa held by the applicant. 

2. The delegate’s decision was empowered by s.116(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”) on the ground that “its holder has not complied with a condition of the visa”. Pursuant to s.116(3) and reg.2.43(2)(b)(ii) of the Migration Regulations 1994 (Cth), the Minister and delegate had no discretion in relation to a decision to cancel once the Minister was satisfied that there was such non‑compliance, where the non‑compliance concerned a breach of condition 8202 in relation to the present class of visa.

3. In relation to the applicant’s visa, condition 8202 was in the form provided in item 4 of Sch.4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), and included the condition:

   (3)The condition is that: 

   (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 less 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 less 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. 

4. In the present case, the applicant sought to pursue a Bachelor of Information Technology course at the University of Canberra (“the University”).  The Tribunal had evidence obtained by it from the University, which was not contested by the applicant, that:

   a)in the first semester of his enrolment, being the second semester of 2001, the applicant had results of “NC” for two of his three subjects, “NC” meaning “Fail result based on a failure to complete one or more of the assessment requirements for the subject”; and

   b)for the first semester of 2002 he had an “NX” failure result for one of his three subjects, “NX” being “Fail result based on failure to reach pass grade in a subject having completed all the subject assessment requirements”; and

   c)for the second semester of 2002 he had failed all three of his subjects, one on the basis of “NX” and the other two based on “NN” being “Fail result based on non‑participation in a subject”. 

5. The applicant also did not contest that the most recent evidence of the opinions of the University concerning his academic results was adverse to him.  In particular, a letter from the University dated 21 August 2003 (see Court Book (“CB”) p.60) indicated the University’s opinion that he fell within a resolution of the Academic Board about satisfactory academic performance which provided: 

   (b) an overseas student who has failed 50% of subjects in three consecutive semesters in the same course should not be allowed to apply for course change and should be reported to DIMIA for not having met “satisfactory academic progress”. 

6. That letter declined to give the opinion raised expressly with the University by the Tribunal by letter dated 19 August 2003 (see CB p.159): 

   …whether, in terms of condition 8202, Mr Humayun, as at the date of issue of the section 20 notice (7 February 2003) had “achieved an academic result that is certified by the [University of Canberra] to be at least satisfactory”. 

7. The Tribunal had sent this letter to seek clarification of the position of the University in the light of earlier statements by officers of the University which the applicant thought were in conflict. 

8. The Tribunal’s reasoning on the evidence ultimately before it in relation to a breach of condition 8202 was:  

   55.Faced with such apparent conflict, the Tribunal sought specific advice from the UC as to University’s final position in respect of the review applicant.  It received the advice referred to earlier, namely that the Divisional Committee’s decision has been withdrawn, that a specific Resolution of the higher Academic Board does exist defining “satisfactory academic progress” for the purposes in effect of administering condition 8202, and that as interpreted and applied by the University the review applicant does not meet that definition. 

   56.While, as indicated earlier, there may well be some unanswered questions in respect of that advice, they are not matters over which the Tribunal appears to have jurisdiction. The final position that is before the Tribunal is that UC, after having a specific request put to it by the Tribunal, has not “certified” that the review applicant’s results are “at least satisfactory”. That is a matter that under the regulations has been deliberately vested in the education provider to determine, for good reason, as the Department and the Tribunal are not the appropriate experts in determining academic performance. As noted in other decisions of this Tribunal as presently constituted, there may be extreme cases where the provider’s action in applying condition 8202 in respect of academic results is so contrary to the object and purpose of the Migration Act and Regulations that the provider’s action do not amount to a proper application and conclusion in respect of academic performance. However, given the facts and the academic results in this case, the Tribunal does not believe that this case falls within that category.

   … 

   58.In the present case, the Tribunal has attempted to satisfy itself whether, prima facie, the UC has acted according to law.  It has obtained written advice from UC as to its position and as to the apparent relevant Academic Board Resolution.  It is unable to conclude that UC has not acted according to law and considers that it does not have the power to pursue the matter further.  Whether or not it would have been appropriate to delay a decision in this case if there had been an ongoing appeal by the review applicant within the University or before a court is a hypothetical question.  Certainly, in the absence of such action the Tribunal considers that it has no option but to conclude that the final UC position is as set out above and that the review applicant cannot be said, in terms of condition 8202, to have “achieve(d) an academic result that is certified by the education provider to be at least satisfactory”.  

   59.The result is that the Tribunal must conclude that it is satisfied for the purposes of regulation 2.43 that the review applicant “has not complied with … condition 8202” and therefore must affirm the decision under review. 

9. The applicant, in his material presented to the Tribunal and to this Court, pointed to explanations for his bad results and to the hardships which would result from the cancellation of his visa.  However, it is clear on current authority that this material was irrelevant to the issue which the Tribunal had to decide.  The law in this respect has become clearer since the Tribunal decision.  In Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 (“Tian”), a Full Court said: 

   [55]     A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a).  The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to.  The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory.  The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory.  There is either certification or not.  If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification.  The responsibility to provide the certificate is upon the education provider.  If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b). 

   …

   [66]     Section 116(3) does not permit the Minister to exercise any discretion at all.  If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa.  In our opinion, the words of the section are clear.  The subsection is mandatory.  No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist.  The Minister must cancel the visa.  Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa. 

10. Applying this interpretation, I can find no error of law affecting the Tribunal’s conclusion that, on the evidence before it, it: 

    … must conclude … that the review applicant “has not complied with … condition 8202” and therefore must affirm the decision under review. 

11. The Tribunal’s reasons referred to what it thought was an unsettled area of law as to whether the Tribunal could examine whether the cancellation procedures followed by the delegate accorded with the notification requirements of s.119 of the Migration Act and with procedural fairness. The Tribunal thought that issues concerning compliance with these requirements were “finely balanced”. Indeed, since the delegate made the cancellation decision almost immediately after purporting to give notice to the applicant under s.119, it may have been arguable that there was a clear failure to allow the applicant any real opportunity to reflect upon and respond to the proposal to cancel his visa.

12. However, in relation to this issue the law has also become clearer in recent times.  In Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 a Full Court held that a failure by a delegate to properly perform mandatory requirements of s.119 did not deprive the Tribunal of jurisdiction, and that the Tribunal had power to “cure” a procedural defect affecting the delegate’s decision.  This opinion was followed in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 (“Ahmed”), where the Full Court said:  

    [38]     … the fact of a lack of compliance with s 119 neither destroys the power under s 116(1)(b), nor governs the identification of the context of the decision ...  

    [39]     If s 119 has not been satisfied, that is no more a reason to deny the Tribunal the task of exercising a full review of the MRT‑reviewable decision, than would be an asserted failure of the delegate to afford procedural fairness or otherwise to comply with requirements failure to undertake which leads to the conclusion that jurisdictional error has occurred. 

13. In my opinion, these authorities prevent me from finding jurisdictional error in the proceedings of the present Tribunal by reason of any defects in the procedures followed by the delegate when making the decision to cancel the applicant’s visa. 

14. Another line of argument has sought to vitiate s.116(1) cancellation decisions based on non‑compliance with condition 8202, by seeking to challenge procedures taken by an education provider when giving notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth), and to rely upon the separate scheme for cancellation under that Act. However, authorities binding upon me have established that these procedures have no legal bearing on decision‑making under s.116(1) and (3) (see Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333, also Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60). I can see no argument available to the present applicant which would find jurisdictional error affecting the decision of the Tribunal by exploring and challenging the procedures followed by the University in relation to its s.20 notice.

15. The applicant in the present case has not been able to point to any other basis upon which this Court could set aside the Tribunal’s decision. Jurisdiction to do this under s.39B of the Judiciary Act, which is acquired by this Court via s.483A of the Migration Act, is subject in the present proceedings to limitations on privative clause decisions under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error.

16. For the reasons I have given above, I am not so satisfied in the present case.  I must therefore refuse the orders sought in the application originally filed in this Court, and dismiss the application. 

17. The present proceeding became complicated by an attempt by the applicant to broaden the proceeding to encompass claims against the University of Canberra.  In a document headed “Amended Application” which was sent by facsimile to the Court on 8 April 2005 and was received just prior to the first court date held by the Registrar, the applicant purported to join the Academic Board of the University as second respondent, and to make claims in relation to that body in the following terms: 

    3.That the second respondent namely The Academic Board of the University of Canberra had failed to accord the applicant procedural fairness and further amounted to an abuse of the applicant’s common law rights when it determined to terminate the applicant’s enrolment at the University of Canberra on the 22^nd January 2003, and therefore seek an order out of this court declaring that the applicant’s termination from continuing his Bachelor degree in Information Technology was void and of no legal effect. 

    4.An order requiring the Academic Board of the University of Canberra to re‑consider the applicant’s enrolment cancellation in accordance to law. 

18. On one view of r.11.02(2) of the Federal Magistrates Court Rules 2001 the joining of the University did not require the leave of the Court (assuming that it was a proper party), since this did not occur subsequent to the first court date. However, in my opinion, leave was required to amend the proceedings to raise the substantive claims against that body (see r.7.01(2) and r.10.01). There is no evidence that the applicant has ever attempted to serve the University with notice of his wish to join it to the proceedings and of the claims he wished to raise against it.

19. I do not consider that the Registrar at the first court date granted leave to raise these claims. The Registrar made orders by consent on short minutes which had been prepared by the solicitors for the Minister before they had notice of the purported amended application. These orders directed the applicant to file an amended application giving particulars of his grounds of review, but I would understand that order to be directed at seeking particulars of the grounds for review under s.39B of the Judiciary Act in relation to the decision of the Tribunal.

20. The foreshadowed claims against the University could not invoke jurisdiction under s.39B vested in this Court since it is confined by s.483A of the Migration Act to “a matter arising under this Act”. The Court might have jurisdiction to review actions of the University if they were taken under an enactment, so as to invoke the Court’s jurisdiction under s.8(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). An extension of time would also need to be sought, since the time limit under s.11(1)(c) would seem to have expired. If the actions of the University which were challenged were not made within that jurisdiction, then the Court might still be able to entertain a challenge in the course of the proceeding under its associated jurisdiction under s.18 of the Federal Magistrates Act 1999 (Cth), but that jurisdiction would be discretionary.

21. However, as I have indicated, in my opinion leave of the Court would first be required before allowing the application to be amended to raise, under either of those jurisdictions, the claims now foreshadowed by the applicant. 

22. The Registrar has written a note on the listing report for the first court date on 8 April 2005: 

    -     applicant filed an amended application joining Academic Board of Uni of Canberra as 2nd respondent.  

    -     applicant advised 2nd respondent may not be properly joined. 

    -     advised to get advice abt issue. 

23. No application has ever been made to the Court for leave to amend, but today a further facsimile was received by the Court from the applicant seeking directions which would allow the amendment, and also seeking an adjournment to allow the applicant to serve the University and to obtain legal advice about how to pursue his claims against it.  The applicant repeated this request to me today when he appeared. 

1. The applicant explained to me that he had not obtained advice from a qualified lawyer, but had been receiving advice from somebody whom he regarded as knowledgeable about law while he was held in detention at Villawood.  That person had left the country about a month ago.  He had not received any advice from a qualified person that he had grounds for seeking relief from the University.  On the material before me, it was most unclear as to the basis of the rights he wishes to pursue and the remedies he hopes to obtain. 

2. I refused the applicant’s applications for amendment and adjournment and indicated the following reasons.  My principal reason was that it did not appear to me that pursuit of litigation against the University could improve his position in relation to the proceedings against the Minister concerning the Tribunal decision which I have discussed above.  At most, his claims against the University might conceivably produce a re‑enrolment or some recognition by the University of erroneous procedures or actions by the University in relation to his past enrolment and the University’s past advice to the Department and Tribunal.  However, these outcomes could not be relevant to any ground of judicial review of the Tribunal decision made on 31 May 2004.  They could produce only what would amount to no more than fresh evidence which the applicant could hope to put before a Tribunal if the matter were remitted.  His ability to obtain that remittal would still require him to show jurisdictional error affecting the decision made by the Tribunal on the evidence which in fact was before it when it made its decision in May 2004.  I could see no basis on which the amendment and adjournment as sought by the applicant could assist him in obtaining the setting aside of the decision to cancel his visa which has been affirmed by the Tribunal. 

3. Moreover, I considered that the applicant should not be given the indulgence of further adjournment in the present proceeding.  The papers contain many references to his contemplating litigation against the University back in 2004, if not earlier, and this was an issue expressly addressed by the Tribunal in [58] of its reasons, which I have set out above.  However, the applicant did not commence any proceeding at that time. 

4. The applicant has had further ample opportunity since commencing the present proceeding in March 2005 to take qualified legal advice and to take proper steps to have his application amended, the University joined, and directions given for his claims against the University to be properly pursued in the course of the present matter.  He has failed to make any such applications, and I do not think his unrepresented state should require the Court to overlook his lack of action.  

5. The applicant is currently held in immigration detention and, in my opinion, adjournments of proceedings in this Court concerning such applicants should not lightly be made.  For the above reasons, I refused the application to amend and adjourn, and proceeded to hear submissions concerning the legal validity of the Tribunal decision.  I have indicated my conclusions on this above. 

6. From the above, it should be clear that the only claims which have been allowed to be raised in the proceeding, and which have been addressed by my present orders, are those made by the applicant against the Minister and Tribunal concerning the decision to cancel the applicant’s visa under s.116 of the Migration Act. My judgment should not be read in any respects as dealing with any claim which might in the future be sought to be pursued by the applicant against the University of Canberra. To make this clear, I shall order that the paragraphs making claims against the University contained in the “amended application” received by the Registry on 8 April 2005 shall be struck out.

I certify that the preceding twenty‑nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  5 September 2005