Ju v Minister for Immigration - [2005] FMCA 1265

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JU v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1265

MIGRATION – MRT decision – cancellation of student visa – breach of condition 8202 in relation to academic results – condition not invalid delegation of power to the education provider.

Education Services for Overseas Students Act 2000 (Cth), s.20
Health Insurance Act 1973 (Cth), s.23DNA
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.41, 116(1), 116(3), 483A, 496, 496(1A), 504(1), Pt.8

Migration Regulations 1994 (Cth), reg.2.43, Sch.2 item 573.611(1)(a), Sch.8 items 8202, 8202(3)(b)

Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313
Gribbles Pathology (Vic) Pty Ltd v Minister for Human Services and Health (1996) 67 FCR 327
Kozel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 138 FCR 181
Lynch v Minister for Human Services and Health (1995) 61 FCR 515
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333
O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1
Owen v Turner (1990) 20 ALD 585
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Secretary, Department of Employment, Education, Training and Youth Affairs v Lander (1996) 24 AAR 39
Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Turner v Owen (1990) 26 FCR 366
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Applicant:

HONGTAO JU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG534 of 2005

Judgment of:

Smith FM

Hearing dates:

19 and 22 July 2005

Date of Last Submission:

22 August 2005

Delivered at:

Sydney

Delivered on:

9 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr L J Karp

Solicitors for the Applicant:

Lyndon Sayer‑Jones & Associates

Counsel for the First Respondent:

Mr R J Bromwich

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG534 of 2005

HONGTAO JU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Act”) in relation to a decision of the Migration Review Tribunal (“the Tribunal”) dated 2 February 2005. The Tribunal affirmed a decision of a delegate which cancelled the applicant’s subclass 573 (Higher Education Sector) visa pursuant to s.116(1) of the Act, on the ground that the applicant was in breach of a condition of his visa found in Sch.8 item 8202(3)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”).
Condition 8202, which applied to the applicant’s visa pursuant to Sch.2 item 573.611(1)(a) of the Regulations, provided:
(3)A holder meets the requirements of this subclause if:
…
(b)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.
The significant relief sought by the applicant, which is identified in a further amended application, is a declaration that this condition “is invalid”. The applicant then seeks consequential relief by way of a writ of certiorari to quash the Tribunal’s decision, a declaration that the delegate’s original cancellation decision “was unlawful”, and a writ of prohibition to restrain the Minister from “acting upon or giving effect to the decision”.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant jurisdiction to give relief by way of writs and declarations in matters arising under the Migration Act is given to the Federal Court under s.39B of the Judiciary Act 1903 (Cth) and, although this was not the subject of any submissions, I am prepared to assume that this would allow me to make declarations as to the validity of a regulation made under the Migration Act in appropriate circumstances raising a proper controversy.
In so far as the application challenges the decision of the Tribunal, this jurisdiction is subject to limitations under Part 8 of the Migration Act and, as a result of Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the applicant must establish jurisdictional error by the Tribunal before relief can be given. The applicant’s contention that the Tribunal’s decision proceeded upon an incorrect opinion that condition 8202(3)(b) validly applied to the applicant’s visa, would seem to give rise to such an error. This was not an issue argued before me, and for reasons appearing below I do not need to decide it.
Since the applicant does not challenge the Tribunal’s decision on any other basis, I do not need to give more than a brief description of the factual and legal background to the case.
The applicant has been studying in Australia since 2000. On 29 July 2003, he was granted his most recent visa. This allowed him to commence a Bachelor of Applied Information Technology at the University of Newcastle, Holmes Colleges in Sydney, which was due to be completed on 30 June 2005. However, following a notice sent to the applicant on 28 July 2004 by the University under s.20 of the Education Services for Overseas Students Act 2000 (Cth), a delegate on 13 September 2004 cancelled the visa for “breach of 8202 condition”. The applicant then, on 17 September 2004, applied for review by the Tribunal.
It is unnecessary for me to examine the procedures which were followed by the delegate nor the evidence which was considered, since it is now clear that these did not affect the jurisdiction of the Tribunal to conduct a de novo merits review of the grounds for cancellation (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 (“Ahmed”)).
It is also clear on recent Full Court authorities that as a result of s.116(3) and reg.2.43 the Minister, and the Tribunal on review, has no discretion in the matter, and must cancel the visa if satisfied as to a failure to comply with a visa condition arising under item 8202 (see Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 (“Tian”) at [66] and Ahmed (supra) at [19]).
Moreover, due to the wording of the condition, a breach must usually be found unless the Tribunal is satisfied that the education provider has issued a positive certificate that the student has “achieve(d) an academic result that is … at least satisfactory” for a requisite course, term or semester. As was said in Tian (supra) at [55]:
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).
In Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333 (“Yu”) at [30], Allsop J, with whom Tamberlin J agreed, rejected an obligation on a Tribunal to seek out the education provider’s opinion in relation to a student’s academic results. He said:
… 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.
A similar view was taken in Tian (supra) at [73]:
The appellant was on notice of the question that had to be addressed by the Tribunal. It was for her to provide the Tribunal with the certificate to comply with Condition 8202(3)(b). That she did not do, not because she was misled but, because it may be inferred such certificate could not be obtained.
In the present case the evidence before the Tribunal clearly did not include a positive certificate such as would be required to establish compliance with this condition. The University’s s.20 notice which was sent to the Department informed the applicant:
You have failed to comply with condition 8202 of your student visa which requires you to make satisfactory progress in every term. In particular, in semester 1, 2004 you failed 20 out of 30 units attempted and in the past two semesters have passed only 30 of 80 units attempted.
The applicant’s statement of academic record confirmed failures by the applicant in two out of four subjects in semester 2 of 2003, and in two out of three subjects in semester 1 of 2004. Moreover, in response to an enquiry by the Tribunal, the University on 19 August 2004 said: “He has failed to meet his course requirements to date”. Although the University had allowed him to re‑enrol for semester 2 of 2004, there was no certificate that it held a favourable opinion about his past results. The last word from the University was a facsimile transmission received by the Tribunal on 11 November 2004. This circled the word “unsatisfactory” for semester 1 of 2004 in response to the question: “Did Mr Ju achieve satisfactory academic results for each term of his studies? Please complete the table below by crossing out either satisfactory or unsatisfactory for each term/semester individually”.
The applicant himself conceded to the Tribunal that “I did not make satisfactory progress in some terms”. He put forward in writing and personally at a hearing of the Tribunal some cogent explanations for his poor results, and he pointed to hardship which would result to him and his family from a visa cancellation. However, as interpreted by the above authorities, the legislation has the draconic effect of rendering these considerations entirely irrelevant.
In these circumstances, the Tribunal’s reasoning was legally unexceptionable:
27.The University of Newcastle has advised the Tribunal that in Semester 1 of 2004 the review applicant had achieved an unsatisfactory academic result. This advice stands despite the mitigating circumstances set out by the review applicant and his representative and despite a willingness on the part of the University of Newcastle to allow the review applicant to remain enrolled in his course. Based on the evidence, the Tribunal finds that the review applicant has breached condition 8202 of his last student visa.
28.The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of condition 8202. Once non‑compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation.
Counsel for the applicant had not challenged any of the above legal propositions, and has not sought to challenge the correctness of the Tribunal’s factual or legal conclusions. He relied entirely upon the following ground and particulars re‑formulated in a further amended application filed after the hearing:
1.The Tribunal committed jurisdictional error by relying on breaches of the condition in paragraph 8202(3)(b) of schedule 8 of the Migration Regulations 1994 in deciding to affirm the decision under review.
Particulars
(a)The condition in that paragraph is invalid in that its effect is to impermissibly delegate to the “education provider” the decision as to whether a student visa is to be cancelled for breach of that condition.
(b)The condition in that paragraph is invalid in that the Migration Act does not authorise an education provider to make a decision that has the practical effect of dictating to the Minister or her delegate that a person’s visa is to be cancelled under s 116 of that Act.
The power to make regulations attaching conditions to a visa is conferred expressly in s.41 of the Act, which provides:
Conditions on visas
(1)The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2)Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a)a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
(b)a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i)any work; or
(ii)work other than specified work; or
(iii)work of a specified kind.
(2A)The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
(3)In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
This power operates in conjunction with the general regulation‑making power conferred by the opening words of s.504(1):
Regulations
(1)The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations: …
Neither counsel took me to authority, whether in relation to the migration legislation or generally, which discusses the principles upon which the valid exercise of the power to prescribe visa conditions can be tested. Uninstructed by authority, one question which would seem to arise is whether item 8202(3)(b) can be regarded as a provision serving the objects of the Act in relation to visa conditions in the sense of being “convenient … for carrying out or giving effect” to the Act’s scheme of migration control through the issue of conditional visas. Another question is whether it has an effect inconsistent with anything in the parent Act. Other questions addressing the validity of subordinate legislation could also be asked, but I do not consider that I must traverse through these except to the extent that they were raised by the submissions of counsel set out below.
In relation to the two questions I posed above, my short conclusion is that it seems clear to me that it is “convenient” and within the scope of the regulation‑making powers for a condition attaching to a student visa to turn upon whether or not the holder can obtain certificates of satisfactory academic results from his education provider. I do not consider that this requires explanation.
Moreover, I consider that there are obvious reasons why the condition might be framed by giving conclusive effect to evidence of such opinions given by the provider, rather than by reference to opinions about academic performance which are to be formed by the Minister, her delegates or a review tribunal. As a Full Court said when construing subordinate legislation governing access to student benefits which required the characterisation of an academic course: “There is little likelihood that in formulating the Determination the Minister contemplated that he or his delegates would perform that task. Neither he nor they could be expected to be qualified to do so” (Secretary, Department of Employment, Education, Training and Youth Affairs v Lander (1996) 24 AAR 39 at 43).
My response to the present condition is, therefore, that it appears generally to be framed in its subject matter and content to be within the intended scope of the Act’s power to prescribe conditions to attach to a visa of the present sort. From this perspective, I turn to consider counsel’s arguments for invalidity.
Counsel’s first argument was that the condition was invalid due to its “impermissible delegation” of a power of decision. His argument did not gain in strength by use of the adjective “impermissibly”, since he did not cite authority which establishes generally when such a delegation can or cannot be made under subordinate legislation.
In the present context, as I understood counsel, he argued that there could be no “lawful delegation” of a decision‑making power under the Migration Act to an education provider, because the formalities of s.496 in relation to delegation were not performed in favour of education providers. There was no evidence about this, but I am prepared to assume that this is true. He also argued that in the present legislative context, it was impermissible to delegate informally a Minister’s decision‑making power to an education provider acting as an agent under the “Carltona” principle (see O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 18 and 30). I am also prepared to assume the correctness of this proposition. However, I cannot accept the premise of these arguments, which is that the present condition itself purports to confer on an education provider a power of decision vested in the Minister under the Act or Regulations, or, alternatively, that it requires or anticipates the exercise by a provider of such a power.
As I have explained above, and as is apparent from the statements of the Full Courts which I have extracted above, a “certificate” by an education provider provides evidence upon which satisfaction of condition 8202(3)(b) depends. It may be true that this gives the provider a “power” in a factual sense to control whether the student can prove that he is not in breach of his visa condition. However, the statutory power to determine whether or not such a breach has arisen, and to determine the legal consequences of any breach, are in my opinion clearly preserved to be exercised by the Minister and her duly appointed delegates under provisions of the Act such as s.116(1). I am unable to find in the framing of condition 8202(3)(b) any intention, nor legal effect, of vesting in an education provider a statutory power to determine whether or not a student is in breach of a condition of his visa.
Counsel sought to gain strength for this argument, by showing that the education provider was not subject to directions by the Minister under s.496(1A) as to how to determine whether a student’s results were “satisfactory”. However, I consider that this point does not help his argument. It tends to confirm that the provider’s certificate produces a piece of evidence for consideration by the Minister, rather than evidence of an exercise of delegated power. The “freedom with which the University acts” which was pointed to by counsel shows the evidentiary nature of its certificates. The context which I have pointed to above, explains why this approach to evidencing academic results was taken in condition 8202(3)(b). In the language of Allsop J in Yu which I have quoted above, the condition has been framed so that it is unnecessary for the statutory decision‑maker to “seek to go behind the communication from the College”.

One of counsel’s arguments characterised a visa cancellation based on breach of condition 8202(3)(b) as “a mechanical exercise following this (i.e. the provider’s) decision”. If counsel meant by the word “mechanical” that the decision will often be easily made on the evidence before a delegate or tribunal, then this may be true. However, the simplicity with which a decision can be made upon an issue of breach of condition does not reflect upon the validity of the condition, but might appear to support validity by revealing a practical approach to the conferral of administrative power. Moreover, there is at least one recent decision which points out that the Tribunal retains an important duty to ensure that an education provider’s opinions are not conveyed ambiguously, and that the Tribunal must pose for itself the correct question in relation to the evidence from the provider (see Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313).
As a result of exchanges with me during his submissions, counsel for the applicant developed a second argument which was subsequently reflected in particular (b) of the further amended application filed after the hearing (see above at [17]). This drew attention to cases where courts have found invalidity in subordinate legislation providing a condition of entitlement or liability which turned upon the evidencing of an opinion formed by a specified person. No general principle seems to emerge from the cases to which I drew counsel’s attention, and he did not subsequently cite any authority for a general proposition covering the area. Rather, these cases turn upon an examination of the legislative context, and find that a reference by subordinate legislation to an opinion given by an identified person was inconsistent with features of the particular empowering legislation. Counsel’s argument therefore attempted to proceed by analogy taken from different statutory contexts.
Thus, taking first an example which is clearly remote from the present context, there are cases where a power to prescribe prohibited imports was found not to have been observed in by‑laws which gave this status by reference to an opinion to be formed by a Minister (c.f. Turner v Owen (1990) 26 FCR 366, and cases cited therein and in the judgment below: Owen v Turner (1990) 20 ALD 585). The empowering legislation in these cases was construed to give “a limited power to bring matters within the prohibition” and to require regulations which “precisely identif(y)” the activities regulated in a manner which is not achieved if the regulation “effectively places the power of prohibition in the hands of the Minister” (see Turner v Owen (supra) per Pincus J at 373 and French J at 388‑389, respectively).
However, I do not consider that the power to prescribe conditions on migration visas has relevant analogy with a power to prescribe prohibited imports. In my opinion, the regulation‑making power in the Migration Act carries no implication that there must be objectively determinable “precision” when deciding breach of a visa condition, nor any implied exclusion of a power to prescribe visa conditions whose application turns upon evidence of a particular sort, including evidence of an opinion formed by an outside agency or person. There are many examples in the Migration Regulations which illustrate a breadth of approach which has been permitted generally under the Migration Regulations. A notable area where a “mechanical mode of proof” has been accepted under the Migration Regulations, is provided in the “domestic violence” criteria on permanent spouse visas (c.f. Kozel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 138 FCR 181 at 187, and Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 at [45]).
Counsel sought to draw a second, and perhaps better, analogy from Lynch v Minister for Human Services and Health (1995) 61 FCR 515 (“Lynch”). In that case, the Administrative Appeals Tribunal had power to review decisions of the Minister concerning the approval of accredited pathology laboratories under the Health Insurance Act. The power was required to be exercised by the Minister, and on appeal by the Tribunal, by reference to mandatory “principles” made under s.23DNA. As promulgated, one principle required “evidence that … the premises have been inspected by an agency which has reported that the premises comply with the Standards”, and a particular agency had been designated to give these reports. The Full Court held that this principle was not authorised.
The reasoning of Davies and Lehane JJ is found at 518‑519:
However, the Minister is not empowered by s 23DNA of the Act to confer a decision‑making role upon an inspection agency. The primary decision‑making power is conferred upon the Minister, which includes his delegates. The Minister and his delegates are the primary decision‑makers and, in respect of all relevant decisions of the Minister and his delegates, the Act provides for review by the Tribunal, which under the AAT Act has the power to review decisions on their merits and to exercise the powers and discretions of the primary decision‑maker. Those are the authorities on which Parliament has reposed the decision‑making powers and functions. Section 23DNA(1) provides for the promulgation of principles to be applied in the exercise of the Minister’s powers, and therefore by the Tribunal, not for the conferral of a decision‑making power upon another body.
Had cl 4.2(a) of the principles merely provided a procedure whereby the Minister and his delegates could be advised with respect to relevant matters, there would have been no problem with it. The Minister is entitled to take advice, as other clauses of the principles, such as cl 7.4, contemplate. But cl 4.2(a) of the principles purports to have a determining effect.
A decision‑making power is conferred when, inter alia, the exercise of a function or power serves as an “ultimate and operative determination” which affects legal rights and obligations (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335‑339, or when, to use the words of Deane J in Director‑General of Social Services v Chaney (1980) 47 FLR 80 at 100, there is “a determination effectively resolving an actual substantive issue”. If the formation by NATA of a view unfavourable to an applicant’s case determines the application, as cl 4.2(a) provides, then the inspection agency has a decision‑making role. Its adverse finding operates as the final and operative decision determining the application.
The conferral of such a decision‑making role upon the inspection agency is not authorised by s 23DNA(1). The Act does not enable the Minister to repose in an inspection agency a power to refuse applications for the approval of premises or (which is substantially the same thing) a power, by the terms of its report, to compel the Minister to refuse such an application. It is also inconsistent with the Act that any such decision of an inspection agency should not be reviewable by the Tribunal or should effectively exclude the Minister’s decision from the Tribunal’s review: cf Riddell v Secretary, Department of Social Security (1993) 42 FCR 443.
However, I do not consider that this case assists the present applicant. This is because, for reasons which I have already explained, I do not consider that condition 8202(3)(b) does purport to give the education provider “a decision‑making role” which is contrary to the Migration Act’s scheme of visa conditions and their enforcement. Rather, I consider that the reference to its certificates as to academic results does no more than “merely provid(e) a procedure whereby the Minister and his delegates could be advised with respect to relevant matters”. In my opinion, there is not in the present scheme an abdication of power to the education provider which would allow this condition to be regarded as inconsistent with the regulation‑making power in relation to visa conditions nor with the decision‑making power in relation to cancellation of visas for breach of conditions. I do not consider that the present condition has an analogous effect of “deny(ing) to the Minister the capacity to exercise the discretionary power to determine whether approval should be granted or refused” (c.f. Moore J in Lynch (supra) at 527, and consider Gribbles Pathology (Vic) Pty Ltd v Minister for Human Services and Health (1996) 67 FCR 327 at 340 and 352).
An essential difference in the present situation is that the power to prescribe conditions on visas serves a function significantly different to a power to prescribe “principles” for guiding a discretionary decision‑making power of approval. There may be a clear intention in a scheme providing for a discretionary approval, that Ministerial principles must guide but not prevent the discretionary decision‑making in which they serve a subordinate role. However, I cannot find in the Migration Act’s power to formulate visa conditions, any implied prohibition on a condition whose satisfaction depends upon the production of a certificate issued by an outside agency according to its own judgment. By focusing upon the nature and purpose of the power to impose a visa condition such as the present, the fact that questions of its breach might be readily determined by reference to a certificate obtained from an education provider would seem to point in favour of consistency with the regulation‑making power, rather than the converse.
For the above reasons, I am not persuaded by any of the arguments presented to me that condition 8202(3)(b) was invalid or otherwise unenforceable by way of a cancellation decision such as was made in the present case. I therefore decline to make the declarations sought, and find that the present decision of the Tribunal was not affected by jurisdictional error.
I shall dismiss the application, and hear the parties in relation to costs.

I certify that the preceding thirty‑seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 9 September 2005