Kim v Minister for Immigration & Anor
[2011] FMCA 780
•7 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 780 |
| MIGRATION – Migration Review Tribunal – cancellation of Higher Education Visa – certification of unsatisfactory course progress – decision to cancel visa based upon certificate by education provider – status of certificate – decision to give certification privative clause decision. |
| Commonwealth of Australia Constitution Act, s.75(v) Migration Regulations 1994, reg.2.43, 2.43(2)(b)(ii), 2.43(2)(b)(ii)(B), cl. 8202, 8202(3)(a) – (b), 8202(3) |
| Alsunaid v MIAC [2011] FMCA 238 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Kumar v Minister for Immigration & Anor [2011] FMCA 741 Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581 Minister for Immigration and Multicultural Affairs v Seligman (1999) FCR 115 Minister for Immigration v Zhou (2006) 152 FCR 115 Mo v MIAC [2009] FMCA 1026 Patel v Minister for Immigration [2011] FMCA 112 |
| Applicant: | YE JIN KIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 335 of 2009 |
| Judgment of: | Jarrett FM |
| Hearing date: | 16 December 2009 |
| Date of Last Submission: | 16 December 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 7 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A J Torbey & Associates |
| Counsel for the Respondents: | Mr Bickford |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 22 May, 2009 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of five thousand two hundred and eighty-five dollars ($5,285.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 335 of 2009
| YE JIN KIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 to review a decision of a Migration Review Tribunal made on 17 April, 2009.
Ms Kim’s application for review specifies six grounds of review. The first ground alleges that the tribunal failed to properly interpret condition 8202 in Schedule 8 of the Migration Regulations 1994 and s.116 Migration Act 1958 “and hence its decision was an error of jurisdiction.” Her second and third grounds seek to challenge the validity of the certification made by the University as to unsatisfactory academic progress. Ms Kim’s fourth ground seeks to attack the validity of the s.20 notice issued to her by the University on the basis that it was not “properly particularised.” Grounds 5 and 6 are not grounds of review but are the conclusions that Ms Kim wishes this Court to reach after considering her earlier grounds.
An order for the delivery of further and better particulars of ground 3 of the grounds of review was made and on 15 December, 2009 Ms Kim delivered those further and better particulars.
The written submissions and the oral argument advanced on behalf of Ms Kim did not follow the grounds of appeal set out in her application. The argument (both written and oral) focussed upon grounds two and three. In addition, the applicant’s written outline introduced an alternative ground, namely that the jurisdictional facts necessary to give the tribunal power to affirm the decision to cancel Ms Kim’s visa were not present before the tribunal. This alternative ground is intimately connected with grounds two and three concerning the validity of the certification by Ms Kim’s education provider.
Having regard to the grounds of the application, the written argument and the oral argument, the issues raised in this application are:
a)whether a migration review tribunal may consider the validity of a certification made by an education provider for the purposes of condition 8202(3)(a) of Schedule 8 of the Migration Regulations 1994; and
b)whether the Court may consider the validity of a certification made by an education provider for the purposes of condition 8202(3)(a) of Schedule 8 of the Migration Regulations 1994;
c)if so, whether in the circumstances of this case a certification made by the applicant’s education provider was invalid or ineffectual; and
d)whether the s.20 notice sent by Ms Kim’s education provider to her was invalid because it was insufficiently particularised.
Background
Ms Kim is a Korean national and holds a valid South Korean passport. She arrived in Australia on 29 November, 2004. At that time she had a class TU subclass 573 student visa. On 5 May, 2005 she was granted a further subclass 573 visa.
Ms Kim was enrolled in a Bachelor of Business – Hotel Tourism Leisure and Sport in February, 2007 at Griffith University. There are two semesters at Griffith University, the first semester of 2007 ended in June 2007. Semester 2 2007 started on 23 July, 2007.
By email dated 1 August, 2007 from the University to Ms Kim, she was advised that because her cumulative GPA was less than 3.0 she had been placed on probation from 23 July, 2007 in accordance with the University’s academic performance policy. The email warned her that her academic performance was below the required standard and although she was entitled to continue her studies, she was advised to seek assistance in order to improve her academic performance. The email went on to inform her that if her GPA was less than 3.0 in a future semester she may be excluded from the program in which she was enrolled.
By a letter dated 2 January, 2008 (and after the conclusion of semester 2 2007) the University advised Ms Kim that she was excluded from her program because her academic performance did not meet the requisite standards. The letter suggested that following a review of her academic record, she was excluded from enrolment with effect from the end of semester 2 2007 and that her enrolment with the University had been terminated.
Ms Kim appealed the University’s exclusion decision in accordance with the University’s policies but that appeal was unsuccessful.
By letter dated 27 February, 2008 Ms Kim received a notice from the University pursuant to s.20 of the Education Services for Overseas Students Act 2000. Further, on that day the University certified that Ms Kim was not achieving satisfactory course progress for the purposes of s.19 of the ESOS Act and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).
By letter dated 6 March, 2008 the Minister for Immigration and Citizenship, by a delegate, gave the applicant a Notice of Intention to Consider Cancellation of her visa pursuant to s.116 of the Migration Act1958. Although the applicant responded to the Notice of Intention to Consider Cancellation, by letter dated 1 July, 2008 from the Department to Ms Kim, she was given notification of cancellation of her visa.
Thereafter on 9 July, 2008 Ms Kim applied to a migration review tribunal for review of the decision to cancel her visa. The tribunal handed down its decision and reasons on 17 April, 2009 and notified her of that decision by letter dated 20 April, 2009.
The Tribunal’s reasons
Ms Kim’s visa was cancelled on the basis of her failure to comply with conditions of her visa. In particular, the tribunal found that she did not comply with condition 8202(3)(a) because her education provider had certified that she was not making satisfactory course progress. The tribunal was clearly correct in forming that view. It is the certification by the education provider which is the non-compliance with the visa condition: Maan v Minister for Immigration & Citizenship (2009) 179 FCR 581. Such a certificate had been issued by Ms Kim’s education provider.
The tribunal’s reasons for decision, and the documents placed before me on this application do not suggest that the Tribunal was asked to consider that the certification by Ms Kim’s education provider was invalid or unlawfully made. Thus, the tribunal in its reasons did not deal with that issue. It was not suggested in argument that the issue about the validity of the certification was raised with the tribunal and the tribunal invited to find that there was no non-compliance with condition 8202(3)(a).
The tribunal considered whether Ms Kim’s non-compliance with condition 8202(3)(a) was not due to exceptional circumstances beyond her control in accordance with regulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994. The tribunal considered Ms Kim’s evidence in relation to her poor academic performance and her reasons for it and determined that the non-compliance was not due to exceptional circumstances beyond Ms Kim’s control.
The decision of the Minister’s delegate to cancel her visa was affirmed.
The statutory regime
Section 116(1)(b) of the Migration Act1958 authorises the Minister to cancel a visa where the visa holder has breached a condition of the visa. Section 116(3) of the Act requires that the Minister cancel a visa if there exists prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Migration Regulations 1994 sets out the prescribed circumstances referred to in s.116(3) of the Act. Relevantly, for Ms Kim’s visa, reg. 2.43(2)(b)(ii) provides that the Minister must cancel a visa if the Minister is satisfied that:
a)the visa holder has not complied with condition 8202; and
b)that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Condition 8202 (found in Schedule 8 to the Migration Regulations1994 and in the terms extant at the time of the University’s certification) provides:
8202 (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).
…
(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 ;
…
Section 19(2) of the ESOS Act requires Ms Kim’s education provider to notify the Secretary of the Department of Immigration and Citizenship of any breach of a prescribed condition of the applicant’s visa. Section 20 of the ESOS Act requires Ms Kim’s education provider to send her written notice of any breach by her of a prescribed condition of her student visa.
If a s.20 notice is sent and the applicant fails to respond as required by s.137J(2)(a) or (b) of the Migration Act1958, the relevant visa is automatically cancelled: s.137J(2). If the visa holder responds to the s.20 notice in accordance with s.137J(2)(a) or (b) of the Migration Act1958 automatic cancellation is avoided but:
a)the visa might nonetheless be cancelled pursuant to s.116(1) of the Act; and
b)must nonetheless be cancelled in certain circumstances pursuant to s.116(3) of the Act.
Consideration
Ms Kim’s primary argument is underpinned by the proposition that the tribunal has power to examine and make a determination about the “validity” of a certification issued by a student visa holder’s education provider. She argues that if the tribunal had examined the validity of the certification, it would have concluded that it was wrongly made, or not valid. She argues that the University’s certification of her academic progress was not authorised by the University’s own policy on academic standing, progression and exclusion, the University’s “satisfactory course progress” policy or standard 10 of the National Code. None of these arguments, however, were put to the tribunal, either by her or her agent.
For reasons explained by me in Kumar v Minister for Immigration & Anor [2011] FMCA 741 at [16] – [29] I do not consider that the tribunal had power to examine the validity of the certification issued by Ms Kim’s University. For ease of reference I repeat those reasons here:
20. In Mo Raphael FM defined the relevant issue concerning an education provider’s certificate in that case as follows:
21. Before examining the alleged non-compliance of the education provider, it is necessary to consider the effect that these breaches, if established, would have on the decision to automatically cancel the applicant’s visa under s.137J. The applicant submits that the Minister may only act under s.137J if a notice is validly sent under s.20 of the ESOS Act and a s.20 notice may only be issued if a valid certificate under condition 8202 has been made. The applicant argues that the certificate issued in this case was not valid on the basis that the education provider did not comply with the procedures set out in standard 10 of the National Code. However, this assumes that the issuing of a valid notice is an essential preliminary to the decision-making process under s.137J. Perhaps more critically, it assumes that the issuing of a certificate by an education provider which has followed the standard 10 procedures is an essential preliminary to the issuing of a s.20 notice. The respondent submits that this is incorrect.
21. His Honour moved on to hold:
24. ... The legislative scheme has been designed so that education providers are responsible for collecting and reporting information relevant to the administration of the law relating to student visas; s.4A ESOS Act. The intention is to place the responsibility for monitoring students’ compliance with visa conditions on the education providers who are in the best position to do so. To suggest that the Minister should “go behind” a 8202(3) certificate is counter-productive to this purpose. The only task of the Minister is to determine that a certificate, on its face, is of a kind that engages condition 8202(3); Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356, Sackville J at [373]. The Minister was not required to enquire into the validity of either the certificate or the s.20 notice in order to exercise his power under s.137J.
22. The decision in Mo was reversed upon appeal, but not in a way that impugned anything set out in the above two paragraphs. In the appeal, – Mo v Minister for Immigration and Citizenship [2010] FCA 162, and a related appeal Hossain v Minister for Immigration and Citizenship [2010] FCA 161 the issue was whether a breach of student visa condition 8202 engaged the notification provision set out in s.20(1) of the ESOS Act in light of the relevant legislation as it then stood. The consequence of a positive answer to that enquiry was that s.137J of the Migration Act 1958 applied with the possibility of automatic cancellation of the relevant visa. The primary decisions in both Mo and Hossain decided that s.20(1) of the ESOS Act was engaged in the circumstances. On appeal it was decided that it was not so engaged. But the decision on appeal in Mo said nothing of the passages to which I have referred above. The reasoning in the appeal was directed to the efficacy of the notice given pursuant to s.20 of the ESOS Act and not the certificate issued by the education provider pursuant to visa condition 8202.
...
24. In Alsunaid, the issues were described by Emmett FM as whether a breach of condition 8202(3)(b) was effected by notification to the Department by the applicant’s education provider that he had failed to meet attendance requirements, whether the Tribunal was obliged to investigate inaccuracies in the records of the applicant’s education provider and, whether notice of the applicant’s breach of condition 8202(3)(b) was given to the Department as soon as practicable. The way in which her Honour dealt with the first two of those three issues is relevant in the application before me.
25. In the course of dealing with the first issue, her Honour pointed out:
25. However, since Dai, the Full Court of the Federal Court in [Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581] has unanimously held that the present form of condition 8202(3) has the result that the mere fact of certification by the education provider constitutes “non compliance by the (applicant) with his visa conditions”
26. The Full Court in Maan at 590 stated that it was not the actual non attendance by the appellant that was a breach of condition 8202(3). Rather, it was the receipt by the Department of the certification from the education provider as to the appellant’s unsatisfactory course attendance. The Full Court held that the Migration Review Tribunal had been correct to find that the certification constituted non compliance by the appellant with condition 8202(3).
…
28. In the circumstances, the Tribunal was correct to find that the applicant had breached condition 8202(3)(b) of his student visa upon receipt by the Department of the certification from his education provider that he had failed to achieve satisfactory course attendance in his General English course in that the applicant attended less than the minimum requirement of 80%. The applicant does not suggest that he attended more than 80% of his General English course. Indeed, the bundle of documents identified as “Court Book”, filed on 21 December 2010 and marked Exhibit 1A, contained a letter dated 22 January 2009 from the applicant acknowledging that his attendance had fallen below 80% in respect of his General English course.
26. It is clear enough from the decision in Mann that it is the receipt by the Department of the certificate from the education provider as to the applicant’s unsatisfactory course attendance that causes Schedule 8, cl.8208(3)(b) of the Regulations to apply to the applicant. Once that clause applies, the applicant no longer meets the requirements of Schedule 8, cl.8202 and for the purposes of reg.2.43(2)(b)(ii)(A) “has not complied with condition 8202”.
27. Both the decision in Mo (at first instance) and Alsunaid demonstrate that there is no requirement upon the tribunal to investigate the efficacy of the certificate issued by the education provider. The remarks of Raphael FM in paragraph 24 of his Honour’s reasons set out above concerning the obligations on education providers find resonance in the judgment in Mann where the Full Court said:
45. The fact that it is the certification by the educational institution as to breach of its attendance policies which constitutes the breach by the student of the visa clearly imposes substantial responsibilities on the educational institutions. These responsibilities are reinforced by the criminal liability imposed on individuals for providing false or misleading information in relation to visa holders pursuant to s 19 and s 20 of the ESOS Act: s 108 ESOS Act.
28. Responsibility for certification clearly rests with the education provider. The only task for a decision maker (the Minister or a tribunal) is to determine that a certificate, on its face, is of a kind that engages condition 8202(3). The existence of the facts which underlie the certificate do not need to be determined by the tribunal. Were it to be otherwise, the certification process would become irrelevant and ineffective. The inquiry by the Minister for the purposes of ss.116(1) or 116(3) and reg.2.43(2) would become a broad ranging and perhaps cumbersome examination of the visa holder’s attendances and insofar as condition 8202(3)(a) is concerned, satisfactory academic performance. It is apparent that the Legislature has intended to leave judgments about those matters to education providers.
29. The applicant argues that the above authorities, and in particular Mo, stand for the proposition that the tribunal is not required to go behind an education provider’s certificate, but may do so if the facts before it warrant such a course. Indeed, the submission goes further to suggest that the tribunal must inquire into the circumstances of the issue of a certification if the applicant raises questions about the validity of a particular certificate. To the extent that the submission suggests that there is discretion vested it the tribunal to examine the validity of an education provider’s certificate in any given case, I think the proposition is not sustainable on the authorities.
The applicant argues that the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Seligman (1999) FCR 115 is authority for the proposition that the tribunal was entitled to examine the validity of the certification by the University.
In Seligman at issue was the conclusiveness of an opinion rendered by a Commonwealth Medical Officer for the purposes of certain migration regulations.
At [66] the Full Court pointed out:
“[66] It is not necessary for the purposes of this case to characterise consideration of the medical officer’s opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which section 476 of the Act provides.
[67] It is not necessary for present purposes to decide whether his Honour was correct in characterising the opinion as a judicially reviewable decision. …”
As to the application of the ratio in Seligman to a certification made pursuant to condition 8202(3)(a), Burnett FM in Patel v Minister for Immigration [2011] FMCA 112 said:
[64] …Secondly the Full Court’s decision does not assist the applicant in determining the question of whether a court has power to review a Tribunal’s decision on the certificate beyond the matter of whether or not a certificate existed. That is to say, review the examination of the merits of the certificate decision. The only matter properly open for review is whether or not the delegate had before him, on its face, a valid certificate. The Full Court expressly avoided consideration of the ambit of the powers of judicial review in the context.
[65] Accordingly in the absence of clear authority I consider the better view to be that a reviewing court has no such power and is limited to a review of decisions as provided for under the Act as it stands. Although arguably the approach by his Honour at first instance in Seligman might bind me, the case is clearly distinguishable. In Seligman at first instance the medical officer was accepted to be a delegate of the Minister whose decision was directly reviewable by the court pursuant to s.475(1)(c) then extant. That section has now been repealed and a radically different regime has been substituted with the enactment of Part 9 of the Act which severely impacts the jurisdiction of this court to review the Migration Review Tribunal’s decisions. More significantly however is the fact that the decision being one made under the ESOS Act is not a Migration Review Tribunal reviewable decision as provided for in the Migration Act.
[66] The fundamental question to be addressed is whether or not the certificate decision was one within the power of the Minister’s delegate. For reasons which need not be rehearsed in this judgment the Full Court in Seligman following a close examination of the statutory and regulatory regime concluded that the opinion called for in that instance was in terms inconsistent with the relevant criterion.
[67] In this case close examination of the statutory and regulatory scheme does not produce a like result.
Moreover, consistent with the conclusions drawn by Raphael FM in Mo as to the obligations upon an education provider to be responsible for certification for the purposes of condition 8202(3), Burnett FM went on:
69. The applicant submits the conclusion encapsulated in the s.19 ESOS Act certificate was unlawful. He contended the University did not properly apply the law in making that certification. He contended Condition 8202 required that the certification had to be in conformity with Standard 11 and in this case he contended it was not. His submission proceeded:
“31. It does not appear to (be) anything in any of the material which indicates that there has been any consideration to clause 11.9 by either the MRT or the primary decision maker.
32. For there to be a valid certification by Griffith University there must be proper consideration of the 70% attendance threshold in clause 11.9. The fact that Mr Patel was no longer required by Griffith University to complete the ELICOS course in order to proceed to his masters is in itself a compelling circumstance that Griffith University ought to have taken into account. In the absence of any consideration of clause 11.9 by the Griffith University then there can be no valid certification under Condition 8202 by Griffith University. It appears Griffith University was prepared to accept that he had completed 70% attendance”.
69. Respectfully the applicant’s submissions ignore the underlying obligation upon the Minister’s delegate. The obligation which arose under the ESOS Act operated to impose upon education providers obligations under the National Code relating to setting performance and attendance standards; monitoring performance and attendance; providing an appeal structure for determining whether those standards have been breached; and obliging education providers to report breaches of those standards to the Department of Education and to students. Under the legislation there was no role for the Minister to form views on attendance or academic progress at all, that being a matter left to the education providers to perform in a manner consistent with the National Code. The delegate’s involvement with those matters arose only if the education provider certified for “not achieving satisfactory course progress” – Condition 8202(3)(a) or “not achieving satisfactory course attendance” – Condition 8202(3)(b) – the course attendance referred to in the condition being for s.19 ESOS Act and Standard 11 of the Code. However as the condition, the ESOS Act and Standard 11 of the National Code provide, these matters are to be left to the education provider, in this case Griffith University. They are not matters for determination by the Minister or his delegate. It follows this case is one where the certificate founding the delegate’s decision was not one premised upon the Act in that it’s source of power was founded in the Migration Act. The certificate was sourced in the ESOS Act with its existence enlivening the delegate’s powers to act, given it appeared valid on its face. Accordingly the decision to issue the certificate was not reviewable by the Minister or the tribunal.
This Court in Mo, Alsunaid, Patel and Kumar took the view that the tribunal was not required to consider the validity of a certification issued by an education provider for the purposes of condition 8202 of each applicant’s higher education visa. The outcome in each case did not depend upon whether the certification was in respect of condition 8202(3)(a) – satisfactory academic progress or 8202(3)(b) – satisfactory attendance. I ought to follow those decisions unless I am satisfied that they are clearly wrong. I am not so satisfied.
Moreover, there is a further, more compelling, reason to hold that the tribunal had no power to review the certificate issued by Ms Kim’s education provider.
Despite the reasoning set out above at paragraph 29 from Patel, in my view, certification by an education provider under condition 8202(3)(a) or 82202(3)(b) is a certification made pursuant to the Migration Regulations1994. Whilst the policies implemented by an education provider for the purposes of the National Code and the ESOS Act inform, at least in part, the decision to make a certification for the purposes of condition 8202(3), the certification itself is only authorised by the Migration Regulations1994. Sections 19 and 20 of the ESOS do not provide for certification for the purposes of condition 8202(3). Those sections provide only for the notification of the fact of certification to the Secretary and the visa holder respectively. The sections are in the following terms:
19 Giving information about accepted students
(1) A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
a) the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b) for each person who becomes an accepted student--the name, starting day and expected duration of the course for which the student is accepted;
(c) the prescribed information about an accepted student who does not begin his or her course when expected;
(d) any termination of an accepted student's studies (whether as a result of action by the student or the provider or otherwise) before the student's course is completed;
(e) any change in the identity or duration of an accepted student's course;
(f) any other prescribed matter relating to accepted students.
(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
(3) Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.
(5) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
20 Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108
(2) The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
Unincorporated registered providers
(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.
(6) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(7) An offence under subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Relevantly, s.474 of the Migration Act1958 provides:
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
…
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
…
The certification issued by Ms Kim’s education provider pursuant to cl8202(3)(a) of Schedule 8 to the Migration Regulations1994 is, in my view, a decision made under a regulation made under the Migration Act1958. It is the giving of a certificate for the purposes of s.474(2)(b) of the Act. It is, in my view a privative clause decision. It is not excluded from the definition by any regulation made for the purposes of s.474(5) of the Migration Act 1958.
The certification is not given under the ESOS Act (either s.19 or 20). Thos sections deal only with the notification of a breach of a visa condition. As the Full Court instructs in Maan (above), it is the issue of the certification under cl. 8202(3) which is the breach ( or non-compliance) which becomes notifiable under ss.19 and 20 of the ESOS Act.
Section 338 of the Migration Act1958 provides for the types of decisions that are reviewable by a migration review tribunal.
A decision by an education provider for the purposes of cl.8202(3)(a) of Schedule 8 to the Regulations is not within s.338 of the Act or the regulations that prescribe certain decisions as MRT-reviewable decisions for the purposes of the Act.Thus, the decision by an education provider to issue a certificate (or certification) for the purposes of cl.8202(3)(a) is not reviewable by a migration review tribunal. The first issue must be resolved against the applicant.
In my view, this court does have jurisdiction to review the decision of the education provider to issue the relevant certification for the reasons that follow.
The jurisdiction of this court is set out in s.476 of the Migration Act1958 in the following terms:
476 Jurisdiction of the Federal Magistrates Court
(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
The education provider’s decision under cl.8202(3)(a) is not a primary decision for the purposes of s.476(2) as set out above. It is a migration decision for the purposes of s.476(1) (see s.5 definition of migration decision). Thus, in respect of such a decision, this Court has the same original jurisdiction as the High Court has under paragraph 75(v) of the Constitution.
The application before me, however, is not in respect of the education provider’s decision and seeks no relief in respect of it pursuant to s.476(1) of the Act. Even if the present application could be so construed, it was not commenced within time and no extension of time was sought or obtained: s.477(1) of the Act. Moreover, the decision maker is not a party to the proceedings.
Ms Kim argued that this court could review the decision of the education provider so as to determine if a jurisdictional fact existed to ground the decision of the Minister’s delegate to cancel Ms Kim’s visa and to ground the tribunal’s affirmation of that decision in accordance with the principles set out in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. She argued that a valid certification must exist before the jurisdiction to cancel her visa arose, and the court, consistent with Enfield could examine whether that fact existed.
However, in Maan the Full Court of the Federal Court made it clear that it was the fact of certification, or the existence of a certification pursuant to cl.8202(3)(a) or cl.8202(3)(b) that was the non-compliance by a student visa holder for the purposes of cl.8202(1) of Schedule 8 to the Regulations. The underlying facts that led the education provider to issue the certification did not constitute the non-compliance. Once certification occurred, the process under the ESOS Act (notification) and the Act (cancellation) were put in motion.
If the decision to issue the certification is a privative clause decision, as I think it is, the certificate is final and conclusive, subject to an application in respect of it pursuant to this Court’s original jurisdiction provided in s.476(1) of the Act.
This ground of review fails.
Given my determinations set out above, there is no occasion to consider whether in the circumstances of this case the certification made by the applicant’s education provider was invalid or ineffectual.
The issue of the invalidity of the s.20 notice sent by Ms Kim’s education provider to her because it was insufficiently particularised is not of significance on this review: Minister for Immigration v Zhou (2006) 152 FCR 115.
The notice is required to be sent by s.20 of the ESOS Act to the student visa holder. It is, however, the certification made pursuant to cl.8202(3)(a) which sets in motion the cancellation regime set out in the Migration Act1958. There was nothing to suggest that the form of the s.20 led the Minister’s delegate or the tribunal into error. Both were concerned with the certification as to unsatisfactory course progress. This ground of review fails.
Conclusion
Ms Kim has not established that the tribunal’s decision is attended by jurisdictional error. The application must be refused with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date: 7 October 2011
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