KC v MINISTER FOR IMMIGRATION & ANOR
[2014] FCCA 2591
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KC v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2591 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – breach of condition 8202 – consideration by Tribunal whether there were exceptional circumstances beyond the control of the applicant – whether the Tribunal applied the correct version of the Migration Regulations 1994 (Cth) considered. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.7 Migration Act 1958 (Cth), ss.5,48, 48A, 50, 74, 82, 109, 114, 115, 116, 133, 134, 198, 261H, 349 Migration Legislation Amendment Regulation 2013 (No 1) |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Envestra Ltd v Federal Commissioner of Taxation (2008) 169 FCR 300 Minister for Immigration v Watson [2005] FCAFC 181 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 |
| Applicant: | ATMARAM KC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 576 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 November 2014 |
| Date of Last Submission: | 1 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Jeppesen |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr R Francois |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application as amended on 27 October 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 576 of 2014
| ATMARAM KC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 21 February 2014. The Tribunal affirmed a decision of a delegate of the Minister to cancel Mr KC’s student visa.
The following statement of background facts is derived from the parties’ submissions.
On 24 January 2013, Mr KC applied to the Tribunal[1] for review of a decision of a delegate of the Minister on 18 January 2013[2] to cancel Mr KC’s Student (Temporary)(Class TU) Vocational Education and Training Sector (Subclass 572) visa[3] under s.116 of the Migration Act 1958 (Cth) (Migration Act).
[1] at court book (CB) 96-106
[2] at CB 85-94
[3] granted on 28 June 2011: CB 19
The Tribunal correctly stated that condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) applied to Mr KC. Condition 8202(3)(b) required Mr KC to have not been certified by his education provider as not achieving satisfactory course attendance. The Tribunal correctly found that Mr KC breached condition 8202(3)(b).
As stated by the Tribunal at [9], on 3 December 2012 Mr KC’s education provider certified that Mr KC had not achieved satisfactory attendance.
The Tribunal correctly found at [8] that it was the certification by the education provider which created the breach of condition 8202 and not the unsatisfactory attendance.
Having determined that Mr KC had breached condition 8202, the critical question was therefore whether the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond Mr KC’s control.
Mr KC’s claims
On 3 December 2012, Mr KC’s education provider, Pacific College Pty Limited, issued Mr KC a Notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) (Section 20 Notice) having certified under s.19 of the ESOS Act that Mr KC had not achieved satisfactory course attendance for a Diploma of Accounting[4]. According to the education provider, this was for the study period term IV: 4 October to 30 November 2012[5].
[4] at CB 1
[5] CB 38
On 12 December 2012, Mr KC submitted correspondence to the Minister’s Department outlining the basis on which he claimed that his breach was due to exceptional circumstances beyond his control[6]. These claims were maintained before the Tribunal at the hearing before it on 21 November 2013.
[6] at CB 5
Mr KC claimed that a number of factors in combination had caused him to breach condition 8202 namely:
a)he had travelled to his home country Nepal between 28 June 2012 and 19 July 2012 to see his critically ill grandmother at her request. His grandmother was very important to him. He was closer to her than his parents;
b)the death of his grandmother on 29 September 2012;
c)following the death of his grandmother, he was suffering from mental anguish, including grief and melancholy[7];
d)following the death of his grandmother he “remained depressed for more than one and half month”[8]; and
e)in accordance with his religion, he was required to undertake a period of bereavement preventing his participation in studies.
[7] CB 7
[8] CB 7
Mr KC, through his migration agent, claimed that the above circumstances caused his non-compliance, and that they were exceptional circumstances beyond his control[9].
[9] CB 74-75; 122; 126
Tribunal’s decision
The Tribunal commenced its decision by correctly finding that:
a)Mr KC’s visa was subject to condition 8202 of Schedule 8 of the Regulations[10];
b)condition 8202 required Mr KC not to have been certified by his education provider as not achieving satisfactory course attendance as specified in condition 8202(3)(b)[11];
c)on 3 December 2012, Mr KC’s education provider did certify Mr KC as not achieving satisfactory course attendance[12]; and
d)as a consequence, Mr KC had breached condition 8202(3)(b)[13].
[10] at [5]
[11] at [6]
[12] at [9]
[13] at [10]
Having found Mr KC in breach of condition 8202(3)(b), the Tribunal then proceeded to undertake an assessment of whether to exercise its discretion to cancel Mr KC’s visa pursuant to s.116(1)(b) of the Migration Act. The Tribunal stated at [12]:
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
Having identified the factors it considered relevant for consideration, as contained in PAM3, the Tribunal continued its assessment by finding at [13]:
The Tribunal is satisfied that the purpose of his travel to and stay in Australia was in order to study.
The Tribunal then purported to consider Mr KC’s claims between [14]-[24] by reference to what it considered were the relevant considerations under PAM3.
In dismissing the claims of Mr KC, the Tribunal concluded at [26]:
The Tribunal has also found that the applicant was distressed by his grandmother’s death and that that may have impacted for a limited period on his ability to attend classes. The Tribunal has not accepted though that he had a consequent psychological condition, nor that he would suffer social hardship because of inability to continue his studies or that financial problems gave rise to his inability to attend classes. The Tribunal has found that his lapse in attendance was not isolated as he claimed and that his subsequent satisfactory attendance was likely to have been precipitated by his coming to the Department’s attention. The Tribunal has considered the totality of the applicant’s submissions as to why he did not achieve satisfactory course attendance and, considering his circumstances as a whole, concludes that the visa should be cancelled.
The judicial review application
These proceedings began with a show cause application filed on 11 March 2014. Mr KC now relies upon an amended application filed on 27 October 2014. There is one particularised ground in that application:
1. The Second Respondent erred in the identification and/or application of the operative law and regulations applicable to the review of the applicant’s application and thereby proceeded having asked itself the wrong question, failed to take into account relevant considerations, took into account irrelevant considerations, and constructively failed to exercise its jurisdiction.
Particulars
(a) The Tribunal did not undertake its review in accordance with the applicable and operative law;
(b) The Tribunal either failed to exercise its duty pursuant to section 116(3) of the Act, or erred in deciding that it was not applicable to the review;
(c) The Tribunal failed to identify and/or apply the operative version of Regulation 2.43(2) of the Migration Regulations relevant to the applicant’s review.
(d) As a consequence, it failed to ask itself whether the Applicant’s breach of Condition 8202(3)(b) was not a result of exceptional circumstances beyond the applicant’s control as required by Regulation 2.43(2)(b)(ii)(B);
(e) Further, the Tribunal failed to apply the test relevant to the question in (d) above as enunciated by Lander J in Leung v Minister for Immigration and Citizenship [2010] FCA 268 at [30] to [37], and applied by Burnett FM in He v Minister for Immigration & Anor [2012] FMCA 393 to the claims of the Applicant;
(f) The Tribunal took into account irrelevant considerations under Policy Advice Manual 3 (PAM3); and
(g) In the premises, did not undertake its review according to law and thereby constructively failed to exercise its jurisdiction.
I have before me as evidence the court book filed on 30 April 2014.
Both Mr KC and the Minister made written and oral submissions.
Consideration
Although the particularised ground in the amended application might suggest otherwise, the only issue to resolve is whether the Tribunal erred in applying an amended regulation which conferred a broader discretion than had previously existed.
On 14 March 2013, the Migration Legislation Amendment Regulation 2013 (No 1) (Select Legislative Instrument No 33 of 2013) (Amending Regulation) was made.
Under Schedule 3 of the Amending Regulation, paragraph 2.43(2)(b) of the Regulations were repealed. The consequence of such amendment is that a breach of condition 8202 attached to a Student (Temporary) (Class TU) visa, is no longer a prescribed circumstance under s.116(3) of the Act.
Mr KC submits that the Amending Regulation had no operational effect in relation to his review by the Tribunal. He submits that no intention is expressed within the Amending Regulation that the repeal of regulation 2.43(2)(b) was to have retrospective operation.
At Schedule 6 to the Amending Regulation, clause 1303 makes express reference to the intended operation of the repeal of sub-paragraph 2.34(2)(b)(ii). It provides:
1303 Operation of Schedule 3
(1)The repeal of subparagraph 2.43(2)(b)(i) by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) does not apply in relation to a person who:
(a)holds a student visa; and
(b)was sent a notice of proposed cancellation of the visa under section 119 of the Act for non‑compliance with visa condition 8104 or 8105 before 13 April 2013.
(2)The repeal of subparagraph 2.43(2)(b)(ii) by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) does not apply in relation to a person who:
(a) holds a student visa; and
(b) was sent:
(i)a notice of proposed cancellation of the visa under section 119 of the Act for non‑compliance with visa condition 8202 before 13 April 2013; or
(ii)a notice under section 20 of the Education Services for Overseas Students Act 2000 for non‑compliance with visa condition 8202 in relation to the visa.
Mr KC contends that the express legislative intention provided at clause 1303(2) of the Amending Regulation is that it is not to apply retrospectively to a student visa holder who was sent a notice of proposed cancellation or a Section 20 Notice before 13 April 2013. He claims that he satisfies both pre-conditions. He was sent a Section 20 Notice on 3 December 2012[14]. He was sent a Notice of Proposed Cancellation on 14 December 2012[15]. Thus, Mr KC contends that schedule 3 of the Amending Regulations, repealing regulation 2.34(2)(b)(ii) was not intended to apply to him and was not operative. By applying it, the Tribunal is said to have fallen into error.
[14] CB 1
[15] CB 19
Counsel for Mr KC referred in argument to s.7(2)(c-e) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) as applied to Regulations by the Legislative Instruments Act 2003 (Cth) (Legislative Instruments Act). I do not accept those submissions. First, the Amending Regulations do not affect accrued rights or obligations. The amendment is simply one of process to broaden the field of discretion open to decision makers. In any event, if the Acts Interpretation Act and Legislative Instruments Act did have some bearing, it is apparent from the terms of paragraph (2) of item 1303 of schedule 6 to the Amending Regulations that the drafter intended, by making specific transitional arrangements, to evince a contrary intention.
There is no doubt that because Mr KC satisfied the pre-conditions to the transitional provision in paragraph (2), the Minister’s delegate would have been bound to apply the superseded process even if he had made his decision after the operative date[16]. The question is whether the Tribunal was in the same position as the delegate.
[16] in fact the decision was made before the operative date
Section 116(1)(b) of the Migration Act gives the Minister the power to cancel a visa where the visa holder has not complied with a condition of the visa. Section 116 relevantly provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Notably, s.116 of the Migration Act is not a condition of the visa; it is a statutory power by which the visa may be cancelled[17].
[17] cf [18] of the Mr KC’s submissions
Regulation 2.43 of the Regulations had previously prescribed circumstances for the purposes of s.116(3).
On 13 April 2013, regulation 2.43(2) was amended by item 2 of Schedule 3 of the Amending Regulations which completely removed regulation 2.43(2)(b). Contrary to Mr KC’s submissions, this amendment applied to Mr KC because as at 13 April 2013 and at all times thereafter Mr KC no longer held a student visa.[18] This conclusion arises as follows.
[18] See item 1303 of Schedule 6 of the Amending Regulations
Item 1303 of Schedule 6 to Amending Regulations provides that (emphasis added):
(1)The repeal of subparagraph 2.43(2)(b)(i) by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) does not apply in relation to a person who:
(a)holds a student visa; and
(b)was sent a notice of proposed cancellation of the visa under section 119 of the Act for non‑compliance with visa condition 8104 or 8105 before 13 April 2013.
(2)The repeal of subparagraph 2.43(2)(b)(ii) by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) does not apply in relation to a person who:
(a) holds a student visa; and
(b) was sent:
(i) a notice of proposed cancellation of the visa under section 119 of the Act for non‑compliance with visa condition 8202 before 13 April 2013; or
(ii) a notice under section 20 of the Education Services for Overseas Students Act 2000 for non‑compliance with visa condition 8202 in relation to the visa.”
It is trite law that when construing the meaning of any statutory provision, the starting point must be the text of the provision itself[19].
[19] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ
The conjunction “and” used after the semi-colon in items 1303(1)(a) and 1303(2)(a) is a clear indication that subclauses (a) and (b) in each item must both be satisfied in order for the transitional provision to apply.
Further, both items 1303(1)(a) and 1303(2)(a) are cast in the present tense whereas items 1303(1)(b) and 1303(2)(b) are in the past tense. This indicates a legislative intention that the satisfaction of subclause (a) and subclause (b) in each item is to be considered at different points in time. In particular, subclause (a) requires the visa to be held at least immediately prior to the decision to cancel the visa while subclause (b) looks back in time to when the notice was sent. If any other temporal meaning had been intended then subclause (a) would also have been phrased in the past tense e.g. “held a student visa as at 13 April 2013” (or some other prior date)[20].
[20] cf Envestra Ltd v Federal Commissioner of Taxation (2008) 169 FCR 300 at 309 (the tense adopted in the statute is a “significant indicator to the proper construction” of the statute)
Finally, there was no “retrospective” operation of the Amending Regulations in this case. The Tribunal was undertaking a de novo review of the delegate’s decision[21]. The Tribunal was required to consider the facts and law as they stood at the time of its own decision; law which, notably, was more favourable to the applicant[22].
[21] Section 349(1) of the Migration Act
[22] cf Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [60] per Kirby J, Crennan J agreeing at [118]; applied in Kamal v Minister for Immigration [2009] FMCA 238 at [46] per Smith FM
I conclude that the drafter of the transitional provision in item 1303 must have intended the Tribunal to be in a different position to the delegate. The delegate, being the first decision maker to consider a cancellation discretion is bound to apply the superseded regulations if the time qualifications are met. I cannot envisage any circumstance in which the delegate’s decision would come before the Tribunal on review except by application by the visa holder in consequence of a cancellation decision by the delegate. In that circumstance, as here, it must necessarily follow that at the time the Tribunal comes to consider the matter, the review applicant would no longer hold a student visa (because it had been cancelled by the delegate). It must also follow that the qualification which would have been met before the delegate, namely that the visa holder hold a student visa) would no longer be met before the Tribunal. It might seem strange that different procedural regimes would thus necessarily apply before the Tribunal as opposed to the delegate. Counsel for the Minister suggested that this was probably intentional in order to ease the administrative burden on the Minister’s Department. That may be so. I have perused the explanatory statement accompanying the Regulations but it does not assist. However strange or cumbersome the result may be, as a matter of simple legislative construction, I agree with the Minister that the Tribunal did not err in applying the Regulations as amended and thus applying a broader discretion than had been applied by the delegate.
I mention, for completeness, that I invited post trial submissions from the parties on the question of whether the words “finally determined” as employed in the Migration Act have any relevant application to a visa cancellation decision. I am satisfied from the Minister’s submissions, which I respectfully adopt, that the words have no relevant application.
The term “finally determined” as it appears in the Migration Act does not ordinarily refer to visa cancellations. The Minister submits and I accept that the term has no application to when the cancellation of a visa takes effect. Rather, s.82(1) of the Migration Act provides that a “visa that is cancelled ceases to be in effect on cancellation.”[23]
[23] For references as to the effect of s.82(1) of the Migration Act see for example Shao v Minister for Immigration [2007] FCA 18 at [11] per Lander J; Minister for Immigration v Watson [2005] FCAFC 181 at [10]
By way of contrast s.134(8) of the Migration Act provides for the delay of the effect of the cancellation of a business visa under s.134(1) where a person applies for review of the decision to the Administrative Appeals Tribunal (AAT), until 28 days after the AAT gives its decision on review. This is not relevant to the present application and there is no equivalent of s.134(8) in relation to s.116 cancellations.
Counsel for Mr KC submits that while the term “finally determined” may not be expressly referred to in reference to the decisions to cancel a visa, however it does arise by implication. It is said to arise by reason of the differing powers vested in the Migration Act to cancel visas, and the remedies available to applicants accordingly; some may be set aside ab initio, whereas others operate prospectively when revoked. For example, under s.114(1), when a decision is made to set aside a decision to cancel a visa under s.109, the visa is taken never to have been cancelled. Whereas, under s.133 and similar provisions, if the cancellation of a visa is revoked, then it has effect as if it were granted on the revocation; prospectively. With respect, that analysis reinforces my view that a cancellation decision is effective when it is made.
Sections 5(9), 5(9A) and 5(9B) of the Migration Act define the concept of “finally determined” as follows:
(9) For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
(9A)Without limiting subsection (9), if a review of a decision that has been made in respect of an application under this Act is instituted under Part 5 or 7 as prescribed, the application is finally determined when a decision on the review in respect of the application is taken to have been made as provided by any of the following provisions:
(a) subsection 368(2) (Migration Review Tribunal written decisions);
(b) subsection 368D(1) (Migration Review Tribunal oral decisions);
(c) subsection 430(2) (Refugee Review Tribunal written decisions);
(d) subsection 430D(1) (Refugee Review Tribunal oral decisions).
(9B) However, subsection (9A) does not apply in relation to the following decisions:
(a)a decision of the Migration Review Tribunal under paragraph 349(2)(c);
(b)a decision of the Refugee Review Tribunal under paragraph 415(2)(c).
Note: These decisions are for the remission of some matters by the relevant Tribunal.”
The phrase “finally determined” is then deployed in the Migration Act as follows:
a)in s.48(1) and (1A) which limit the class of visas certain non-citizens may apply for;
b)in s.48A(1) and (1AA) which prevent certain non-citizens from making further applications for protection visas while in the migration zone;
c)in s.50 which applies to further applications for protection visas;
d)in s.74(2) which imposes a timing requirement on certain applications for a bridging visa;
e)in s.115(2) which stipulates when subdivision C of Division 3 of Part 2 to the Migration Act applies (being a subdivision dealing with the cancellation of visas based on incorrect information);
f)in s.198(2), (5A) and (6) which deals with the removal of unlawful non-citizens; and
g)in s.261H(4) which deals with the timing of when things (such as vessels, equipment etc) that have been used in the commission of certain offences are forfeited to the Commonwealth.
Conclusion
Mr KC has not established that the decision of the Tribunal is affected by jurisdictional error. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 December 2014
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