Jayasekara v MIMA & Anor

[2007] HCATrans 163

[2007] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M165 of 2006

B e t w e e n -

RUSHANTHA JAYASEKARA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

THE MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 APRIL 2007, AT 2.42 PM

Copyright in the High Court of Australia

MR T.A. FERNANDEZ:   If the Court pleases, I appear for the applicant in this matter.  (instructed by Mano & Associates)

MR C.J. HORAN:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   There is a submitting appearance for the Migration Review Tribunal submitting to the orders of this Court save as to costs.  That is the Tribunal.

MR FERNANDEZ:   That is the Tribunal.

KIRBY J:   Yes, it submits.

MR FERNANDEZ:    If I can just put my submission in context, your Honours, I would commence by just reading what condition 8202(b) says and then what condition 573.212 says.  I have enclosed that in my list of authorities that I have submitted to the Court and if I can just ask the Court to take condition 8202 of the Migration Regulations.

KIRBY J:   Yes, that is in the compilation of legislation that you have provided?

MR FERNANDEZ:   That is right and the decisions as well.

KIRBY J:   Yes.

MR FERNANDEZ:    What 8202(b) says is simply this:

in any case – the holder achieves an academic result that is certified by the education provider to be a case satisfactory –

If I can ask the Court to look condition 573.212.  What it says is simply this:

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.

So in the light of 8202 and 573.212, your Honour, the point that arises for the Court’s determination in this special leave application is simply this.  If there was no certificate that was issued, as has happened in this particular case, if there was no certificate that was issued by the educational provider, clause 8202(b), can it be said that there is no compliance let alone substantial compliance?  The Court will find that 573.212 deals with substantial compliance and 8202 deals with the question of the certificate by the educational provider.

There has been different interpretations given to both these provisions, your Honour, by the Federal Court and as well as by way of single judges of the Federal Court.  If the Court takes the compilation that I have submitted, there are two decisions also from the Federal Court, one in the matter of Khan and the other in the matter of Humayun, that go to this particular issue.  What the court has said in Khan is simply this. 
In Khan’s Case there was a certificate that was issued by the provider and what the court said was simply this; if there is a certificate that has been issued by the provider we cannot go and look behind that certificate.  We take that certificate at face value.

Also in Humayun, your Honour, the Court will see that even in Humayun the court has looked at some letters that were written by the educational provider to establish that there had been no compliance with 8202(b).  On the other hand, the Court will find that in the matter of Modi, which is also a decision of the Full Court, the court said – with the Court’s leave I would just like to read one sentence from that decision of the Full Court in Modi where it says the court can look or go into – in Modi’s Case the Court will find, which is also a Full Court decision, what the learned judges say is simply this at paragraph [20]:

The tribunal, in determining whether on the facts found by it Mr Modi had substantially complied with condition 8202, was entitled to have regard to the nature of Mr Modi’s conduct that resulted in his having failed to comply with his course requirements.

Of course, it is not clear from the decision of the Full Court whether there was a certificate that was before the Tribunal or not, but what the Full Court says is:

The tribunal . . . entitled to have regard to the nature of Mr Modi’s conduct that resulted in his having failed to comply with his course requirements

CRENNAN J:   But in relation to your main point as I understand it, application book 25 at the bottom of the page, the Full Court discusses, “The substantial compliance requirement” and goes on on the top of page 26:

in the present case it is not suggested there was any certificate at all.  There was thus no compliance, let alone substantial compliance.

Now what error is there in that?

MR FERNANDEZ:    No, what I am submitting is this, your Honour, that on one side we have some decisions of the Full Court that go to the fact and say, look, you can look into the situation, you can look into the compliance or non-compliance of the visa applicant, but on the other hand there are three decisions of Justice Ryan, and I am coming to that – I will answer your Honour’s question in a moment – but there are three decisions of Justice Ryan that specifically go into this issue and say - in the first case that is a tab on the decisions as well.

KIRBY J:   Yes, I have seen that.  Are you going to take us to that by answering her Honour?

MR FERNANDEZ:    I will take your Honour to that in a second.  That is the matter of Aditya that was decided in 2003 and this is what Justice Ryan says at paragraph 13 of his judgment, and if I can take you to somewhere midway:

In other words, for an applicant to comply with condition 8202(3), the Minister must be satisfied that the eighty percent threshold for attendance has been satisfied and –

because it is cumulative –

the holder must have achieved an academic result that has been certified by the eduction provider to be at least satisfactory.  The Minister can only be satisfied of non-compliance with the latter sub‑condition if there is no acceptable evidence of certification by the education provider of at least satisfactory results.  It is not open to the Minister to question, or go behind, such a certificate if one exists.

CRENNAN J:   But in this case there is no certificate at all.

MR FERNANDEZ:    In this case there is no certificate at all.  What the Full Court says, that is the subject of this special leave application, if there is no certificate, then there is no compliance, leave alone substantial compliance.  But, in my respectful submission, that is not what Justice Ryan has said.  Justice Ryan has said on three different occasions, he has said that if there is no certification, it is open to the Tribunal to go into that and find out whether there has been compliance or not.  Actually, the first sentence of the next paragraph will answer that question.

In the present case there was a complete absence of any such evidence of certification.  Moreover, the MRT was almost compelled to infer from the evidence before it that no such certificate had been, or would be, issued by the MIBT.

The Court will see that on one hand the Full Court has said, look, if there is a certificate, you cannot go behind the certificate, but in the same breath the Full Court at another place says, as in Modi, the MRT can go behind and find out the reasons for non‑compliance substantially with that particular condition 8202(b).  Then you get Justice Ryan also saying if there is no certificate, it is open to the Tribunal to find out whether there has been substantial compliance or compliance with that particular condition.  The Court will see that it is not only in the first decision but also in the decision on which the Tribunal has placed reliance.  Justice Ryan has come to the same conclusion and if I can draw the court’s attention to paragraph ‑ ‑ ‑

KIRBY J:   Is this in the case of Weerasinghe?

MR FERNANDEZ:   That is right, your Honour.  If the Court takes paragraph 8 of the judgment in that matter, what Justice Ryan says is this:

In my view, the Tribunal accorded the applicant an excessively benevolent application of Condition 8202(3)(d) when it accepted the decision of the Swinburne Appeals Committee to allow him to continue his course in Semester 2 –

et cetera.  Then if the Court just turns the page and goes to paragraph 14 of that same decision, this is what Justice Ryan says again.  If I can take up that paragraph somewhere midway:

Whether there had been substantial compliance was a question of fact which the Tribunal was entitled to resolve in the light of the relevant PAM guideline.

Your Honours will see that what Justice Ryan says at paragraph 12, the preceding page, does not gel, if I can use the colloquial expression, with what he has said in the earlier decisions as well as in this very decision, because what he says in paragraph 10 is simply this:

Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not.  Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.

In my respectful submission, your Honours, what Justice Ryan says at paragraph 10 does not fit in with what he has said earlier in relation to the Tribunal having the discretion to go into this matter ‑ ‑ ‑

KIRBY J:   Yes, but we are not sitting here on an application from Justice Ryan and we are not the Federal Court and we do not have to follow what Justice Ryan has said, with all respect to his Honour.  We have got to consider this case and in this case you have on your side the dissenting opinion by Justice Finkelstein and we have to consider whether or not that is sufficient to attract the grant of special leave.  In favour of it is the fact that Justice Finkelstein lands a few blows by his interpretation by saying, well, what happens if the building burns down and the records disappear and so on? 

Against it is that this is not really such a case or we do not have those instances that his Honour posited for the purpose of finding the correct construction.  Instead, we have a case where your client really began his course back in 1998 and by 2005 he was still going and he did not produce the certificate.  The majority’s interpretation has a big advantage, it seems to me, that it grants it to the education authority rather than to an official in the department to decide whether or not the person is making satisfactory progress.  That is really an interpretation of the regulations that upholds academic freedom and integrity and does not have departmental officials making those forms of decisions. 

So that, on the face of it, although I see the point that Justice Finkelstein raises, I do not think this is a case where it really touches the issue in this case.  Therefore, even though the point might have some strengths, this is not really a suitable vehicle in which to allow it to be considered.  I put those to you so that you can respond.

MR FERNANDEZ:    My reply is simply this, your Honour.  If the educational provider has not given a certificate for whatever reason, whether it has closed its doors or for any other reason it has not given a certificate to assess the educational capacity or whatever of the applicant, in those circumstances my submission is it is left to the Tribunal then to assess the educational capacity of the student taking into account factors which are not there – for which the educational provider has not given a certificate.  Your Honour will see that in this particular case what has happened is that the applicant’s father took ill and died after two or three years.

KIRBY J:   We know that and we realise that these are rather sad facts and that was commented upon by the majority in the Full Court.

MR FERNANDEZ:    Yes, and that was one of the factors.  In my submission to the Court, all that I am saying is if there is no certificate by

the educational provider, it is open to the Tribunal to look into factors because 573.212 says it is left to the Tribunal not to the delegate or to the decision‑maker to find whether the applicant has substantially complied with that condition or not and the only way you can do it, to find if there is substantial compliance or not, is to go to the facts, as the Full Court has said in Modi.  I do not know if that answers your Honour’s question.  That is how I would put my response to your Honour’s query.

KIRBY J:   Yes, thank you.

MR FERNANDEZ:    My submission to the Court is simply this.  There is a divergence of opinion in relation to this particular condition because the Full Court has held in one way, Justice Ryan has held in one way but in another place he says something else.  I am not asking your Honour to sit in judgment over Justice Ryan’s decision, but all that I am submitting is that there is a divergence of opinion and that divergence has got to be resolved one way or the other in relation to compliance with 8202.  That will be my submission to the Court.

KIRBY J:   Yes, thank you.  Mr Horan, we do not need your assistance on this occasion. 

In 1998 the applicant, a national of Sri Lanka, was granted a visa to enter Australia subject to a condition that he achieve an academic result certified by the education provider to be at least satisfactory for each term or semester of the course.  The applicant applied in 2001 for a continuing student temporary visa.  A delegate of the Minister refused to grant the visa on the ground that the essential condition had not been satisfied, namely, provision by the education provider of the requisite certificate.  That decision was confirmed by the Migration Review Tribunal, the second respondent to this application, which has submitted to the orders of this Court.

The applicant sought judicial review from the Federal Court of Australia.  A Full Court heard the application.  By majority (Justices Heerey and Sundberg with Justice Finkelstein dissenting) the Full Court dismissed the application.  The applicant now seeks special leave to appeal to this Court, substantially relying on the reasoning of the dissenting judge.  In his reasons, Justice Finkelstein is critical of the reasoning that appealed to the majority, in effect, that the relevant provision of the Migration Regulations posited the existence of an essential factum, namely, the certificate from the education provider.  His Honour asked how that could be so if the education provider no longer existed or if its records had been destroyed.

As a point of construction, there may be merit in Justice Finkelstein’s point.  However, the present is not the case in which this Court would plumb its depths.  The applicant’s case is not one falling within Justice Finkelstein’s posited class, effectively one of the impossibility of the application of the regulations to the case.  If such a case arises that will be time for this Court to become involved.  Meantime, the construction adopted by the majority of the Full Court must be upheld.  It is for the education provider, rather than for the decision‑maker or the Tribunal, to decide whether satisfactory progress has been made by the student visa holder. 

Special leave is therefore refused.  The applicant must pay the Minister’s costs.

Adjourn the Court now until Thursday next, 26 April 2007 at 10.15 am in Canberra.

AT 3.04 PM THE MATTER WAS CONCLUDED