Islam v Minister for Immigration
[2014] FCCA 1829
•22 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISLAM v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1829 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – Tribunal finding that applicant had failed to comply with a condition on his previous student visa – no jurisdictional error. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.65, 116, 349, 359A Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth) |
| Casse v Minister for Immigration [2013] FCA 1007 Minister for Immigration v Eshetu (1999) 197 CLR 611 Patel v Minister for Immigration (2012) 206 FCR 384; [2012] FCA 958 |
| Applicant: | K M FOYZUL ISLAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2983 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Law |
| Solicitors for the Respondents: | Mr L Dennis Sparke Helmore |
ORDERS
The application as amended on 5 August 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2983 of 2013
| K M FOYZUL ISLAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
On 14 August 2014, I dismissed Mr Islam’s application for judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 1 November 2013. The Tribunal had affirmed a decision of a delegate of the Minister not to grant Mr Islam a temporary student visa. The following are my reasons for the dismissal order (and the consequential costs order) that I made on 14 August 2014.
The following statement of background facts is derived from the submissions of the Minister filed on 12 August 2014.
Mr Islam, a citizen of Bangladesh, applied for a Student (Temporary) (Class TU) visa on 15 March 2012[1]. The only relevant visa subclass was Subclass 573. Among the primary criteria to be satisfied at the time of decision for the grant of a Subclass 573 visa was that in clause 573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[2]. That clause required Mr Islam to have complied substantially with the conditions that applied to the last of any substantive visa held by him. Relevantly, the last visa held by Mr Islam was another Subclass 573 visa from 2 September 2010 to 15 March 2012[3].
[1] Court Book (CB) 7
[2] Clause 573.235 of Schedule 2 to the Regulations was repealed by the Migration Amendment (Redundant and Other Provisions) Regulation 2014 with effect on, and from, 22 March 2014.
[3] CB 142: [2]
The Minister’s delegate found that, while Mr Islam held that visa, he did not achieve satisfactory course progress and was therefore in breach of condition 8202 (which applied to that visa by virtue of clause 573.611(a)).
Accordingly, on 3 April 2012, the delegate refused to grant the visa on the basis that Mr Islam failed to satisfy clause 573.235.[4] On 20 April 2012, Mr Islam applied to the Tribunal for review of that decision[5].
[4] CB 39
[5] CB 49
Tribunal decision
The Tribunal accepted that Mr Islam had been suffering a “major depressive illness” and “other medical complications” and was unfit for education activities[6]. The Tribunal also accepted that Mr Islam applied to the education provider (University of Ballarat) to withdraw from his studies and for special consideration due to those medical conditions[7].
[6] CB 147
[7] CB 148: [27], CB 114-115, 124
The Tribunal denied Mr Islam a further 21 days to obtain further evidence from the education provider to demonstrate that the cancellation of his enrolment was due to administrative errors by the University. This was because the Tribunal could not “go behind” the certification and such an extension would serve no purpose[8].
[8] CB 148: [29]
The Tribunal identified that the key issue on review was whether Mr Islam had breached condition 8202[9]. Relevantly, clause 8202(3) required that the visa holder has not been certified by an education provider as not achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) and standard 10 of the National Code of Practice.
[9] CB 144: [13]
Section 19(1) of the ESOS Act imposed an obligation on registered education providers to give particular information to the Secretary of the Department of Education about “accepted students”. Section 19(2) of the ESOS Act required a registered provider to give the Secretary particulars of any breach by an “accepted student” of a prescribed condition of a student visa as soon as practicable after it occurs. Section 20(1) of the ESOS Act required a registered provider to send an “accepted student” a written notice if the student has breached a prescribed condition of their student visa.
Based on evidence on the PRISMS database[10], which included a record of Mr Islam’s unsatisfactory course progress and the making of a notice under s.20 of the ESOS Act, the Tribunal found that Mr Islam’s education provider had certified him as not achieving satisfactory course progress for the purposes of condition 8202[11]. This meant that Mr Islam did not comply with that condition. Consequently, the Tribunal found that Mr Islam failed to satisfy clause 573.235 and therefore affirmed the delegate’s decision to refuse to grant the Subclass 573 visa[12].
[10] Provider Registration and International Student Management System, administered by the Department of Education.
[11] CB 68-69
[12] CB 148: [30]
The Tribunal considered relevant authority dealing with “substantial compliance” with visa conditions[13]. However, the Tribunal found that that concept had “no logical application” to condition 8202 as that the condition “is satisfied or it is not”[14].
[13] CB 144-145: [15]-[16]
[14] CB 145: [17]-[18], 148: [29]: Jayasekara v Minister for Immigration (2006) 156 FCR 199; Casse v Minister for Immigration [2013] FCA 1007; Singh v Minister for Immigration & Anor [2011] FMCA 972
The judicial review application
These proceedings began with a show cause application filed on 29 November 2013. Mr Islam now relies upon an amended application filed on 5 August 2014. The particularised ground in that amended application is:
1. The Tribunal erred by misdirecting itself as to the law.
Particulars
The Tribunal considered that it was not possible for there to be “substantial compliance” with condition 8202(3)(a). A correct interpretation of the requirement would allow for a finding of substantial compliance where the Minister had decided not to cancel a previous visa or the Tribunal considered that it should not have been cancelled despite the breach of the condition.
I have before me as evidence the court book filed on 17 January 2014. The parties made oral and written submissions.
Consideration
The visa criterion in issue was at the relevant time contained in clause 573.235 of the Regulations. It stated:
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.
Condition 8202 is in the following terms:
(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 requirement 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 Tribunal dealt with the issue of substantial compliance with condition 8202(3) at [17]-[29] of its reasons. At [17]-[18] the Tribunal said[15]:
There are also visa conditions to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not: Jayasekara v MIMA (2006) 156 FCR 199 (Jayasekara). The Court in Jayasekara held by majority that the requirement of a certificate in the academic result component of condition 8202(3), as it stood when considered in that case, was one such condition.
Although not in the same form as Condition 8202(3) as considered in Jayasekara, the reasoning of the majority in that case applies equally to Condition 8202(3) as amended, and as applicable in this case: Casse v MIMAC [2013] FCA 1007 and Singh v MIAC [2011] FMCA 972. That is, the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not.
[15] CB 145
In the case before the Tribunal there was no dispute that Mr Islam’s institution had issued an adverse certificate. He explained to the Tribunal the circumstances which centred upon a significant period of illness he had suffered. The Tribunal noted that it could not go behind the certificate to investigate how the institution had made its decision. At [22] the Tribunal referred to an Invitation to Comment issued pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) which put to Mr Islam that in the case of condition 8202(3), based on the authorities referred to, the concept of substantial compliance has no logical application. Either the condition is met or it is not. The Tribunal explained in that letter this would lead the Tribunal to find that Mr Islam, having been certified by his education provider, had not complied at all with condition 8202, let alone substantially. Mr Islam had commented extensively, referring to his health problems, but the Tribunal did not consider that it could be diverted from the outcome determined by the authorities. At [29] the Tribunal said[16]:
The applicant told the Tribunal that he put all these relevant matters to the University in his appeal against the University’s intention to report him, including the fact that he had a pending application for special consideration due to his previous application being lost by the University, but the University nevertheless decided to cancel his enrolment and certify him as not achieving satisfactory course progress. The Tribunal has carefully considered the applicant’s request for a further period of 21 days in which to obtain evidence from the University that he had correctly withdrawn from subjects in the Summer Semester 2010-2011 and that those subjects should not show as failures on his academic record. However, the Tribunal has decided not to agree to that request on the basis that no purpose would be served in allowing additional time for the applicant to obtain proof of the administrative errors he claims were committed by the University given that, as explained at the hearing, the Tribunal cannot ‘go behind’ the certification made by the University. The Tribunal is aware of the circumstances considered by Sackville J in Kim v Witton to be relevant to the consideration of substantial compliance to which the applicant’s representative drew the Tribunal’s attention, however the Tribunal does not consider that these circumstances are relevant in considering compliance with Condition 8202 subclause (3) because the concept of substantial compliance does not logically apply to that subclause, as discussed with the applicant and his representative at hearing. The Tribunal is guided in this by the court’s decisions in Jayasekara and Casse, which are discussed at paragraph 18 above.
[16] CB 148
In these proceedings, Mr Islam submits that the judgment of this Court in Singh was clearly wrong and should not be followed. While acknowledging that this Court is bound by the judgment of the Federal Court is Casse, Mr Islam formally submits that the case was wrongly decided. Mr Islam notes that it was open to the Minister to cancel his former student visa as a consequence of the certification by his institution but that did not occur. At the time of the Tribunal decision, cancellation for breach of condition 8202(3) was discretionary. Mr Islam contends that in circumstances where the Minister has not cancelled a student visa on the basis of a certificate, it is open for a decision maker to consider whether a student has substantially complied with condition 8202(3). Mr Islam further contends that if the interpretation placed on clause 573.255 with reference to condition 8202(3) is correct, the visa criterion would be invalid[17].
[17] The solicitor for Mr Islam at the trial of this matter sought a transfer of the case to the Federal Court so that those arguments could be further agitated. I refused that application as the case had been before this Court for over eight months. The existence of adverse superior court authority is not a sufficient reason for transfer and Mr Islam would have a right of appeal from my decision.
In his submissions, counsel for the Minister notes the concept of “exceptional circumstances” bearing upon a hypothetical issue of cancellation of a visa under s.116(3) of the Migration Act and regulation 2.43(2)(b)(ii)(B).
The Minister submits that in assessing the visa applicant’s ability to meet clause 572.235, the Tribunal must be satisfied that the education provider has not certified that the applicant has not achieved satisfactory course progress[18]. In undertaking that assessment, the decision maker is not required to look behind the certification issued by the education provider[19]. The legislative scheme is designed so that the Tribunal can simply rely upon the fact of the certification.
[18] See ss.65 and 349 of the Migration Act; see also Minister for Immigration v Eshetu (1999) 197 CLR 611 at [130]-[137]
[19] Patel v Minister for Immigration [2012] FCA 958 at [51]-[52]; Vannemreddy v Minister for Immigration [2013] FCA 245 at [57]-[62]
In the Minister’s submission, the concept of “exceptional circumstances” (as it applies to cancellation and revocation), is not relevant to the question of satisfaction of clause 572.235. The existence of exceptional circumstances does not negate the existence of any breach of condition 8202.
The Minister contends that if, as was the case here, the Tribunal was not satisfied that the applicant has complied substantially (or at all) with the conditions applicable to his previous student visa, it was obliged to affirm the decision to refuse to grant the applicant a further student visa.
The Tribunal concluded, based on the authorities it referred to, that it could not consider any issue of substantial compliance in relation to condition 8202(3) and on the basis of the decision of the Federal Court in Casse, the Tribunal’s conclusion is undoubtedly right. That was the basis upon which I ordered the dismissal of the judicial review application. I am clearly bound by the Federal Court decision in Casse. In that case, at [12], North J said:
In Jayasekara, Heerey and Sundberg JJ considered a previous version of condition 8202(3). The previous version is not relevantly different. Their Honours said at [12]:
Since the regulations include some conditions to which the concept of substantial compliance can have no logical application, the regulations are to be read as not admitting any qualification of substantial compliance in such cases. For example, in the present case the visa applicant must be the holder of an existing visa of the specified kind. Either that condition is satisfied or it is not.
His Honour noted at [13] that the same reasoning was applied in Patel and Hassan[20].
[20] Patel v Minister for Immigration (2012) 206 FCR 384; [2012] FCA 958 and Hassan v Minister for Immigration [2012] FCA 816
His Honour appeared to proceed on the basis that, even though condition 8202(3) had no logical application to the concept of substantial compliance, it nevertheless bore on the Tribunal’s consideration of clause 572.235. That assumption might be debated. The visa criterion called for an exercise of judgement or discretion on the issue of substantial compliance with visa conditions. That is all that the clause dealt with. If there is a visa condition which has no logical connection to that visa criterion, then how is it relevant to the application of that visa criterion? The issue of a certificate may bear on other visa criteria for a student visa, for example the criterion that the visa applicant must be a genuine student. Given the basis upon which the Federal Court proceeded in Casse, it is not open to me in this proceeding to explore that issue further. It is, however, an issue which Mr Islam might wish to pursue in the event of a further appeal in this case.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 August 2014
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