Kumar v Minister for Immigration
[2008] FMCA 1458
•24 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION | [2008] FMCA 1458 |
| MIGRATION – Whether the Court has jurisdiction to review the cancellation pursuant to s.137J of the Migration Act 1958 (Cth) of a student visa – whether cancellation pursuant to s.137J of the Migration Act 1958 (Cth) is a decision of an administrative character made under the Migration Act 1958 (Cth). |
| Migration Act 1958 (Cth), ss.137J; 137J(2); 137K; 474; 474(2); 474(3); 474(3)(b); 474(3)(g); 474(3)(h) Education Services for Overseas Students Act 2000 (Cth), ss.19; 19(2); 20 Migration Regulations 1994, reg.8202(3)(a) Federal Magistrates Court Rules 2001, r.44.06(2)(a) |
| Griffith University v Tang (2005) 221 CLR 99 |
| Applicant: | TARUN KUMAR |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Judgment of: | Emmett FM |
| File Number | SYG 2280 of 2008 |
| Hearing date: | 14 October 2008 |
| Date of Last Submission: | 14 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones, Solicitor |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2280 of 2008
| TARUN KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application by the Respondent that this Court lacks jurisdiction to hear the application for judicial review of the cancellation of the Applicant’s student visa on 21 June 2008 pursuant to s.137J of the Migration Act 1958 (Cth) (“the Act”). The application to this Court is brought pursuant to r.44.06(2)(a) of the Federal Magistrates Court Rules 2001.
The Respondent’s Response filed 3 October 2008 is as follows:
“1.1The jurisdiction of the Court under s 476(1) of the Migration Act 1958 (“the Act) is in respect of ‘migration decisions’ as defined by s 5 of the Act.
1.2The application purports to seek judicial review of the cancellation of the applicant’s student visa pursuant to s 137J of the Act.
1.3The Court does not have jurisdiction to review the cancellation of the applicant’s visa under s 137 J of the Act, because the cancellation pursuant to that section occurs by operation of law, and does not involve a ‘migration decision’ for the purposes of the Act; i.e. no administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the Education Services for Overseas Students Act 2000 to a non-citizen.”
The application filed by the Applicant on 2 September 2008 seeks review of the cancellation of the Applicant’s student visa pursuant to s.137J of the Act.
At the heart of the Respondent’s submissions is that the act of cancellation of the Applicant’s student visa pursuant to s.137J of the Act, is not a reviewable decision by this Court because, it is not, inter alia, a decision of administrative character made under the Act or a regulation or another instrument under the Act as is required by s.474(2) of the Act.
It is common ground that this Court can review a privative clause decision pursuant to s.474 of the Act. Section 474(2) of the Act is as follows:
“(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).” [Emphasis added]
It is the construction of the meaning of “a decision” as referred to in that section that is relevant to the application before the Court.
It is common ground that in order to be a privative clause decision it is necessary that “a decision of an administrative character” must have been made under the Act. Mr Markus, on behalf of the Respondent submitted that the cancellation of the Applicant’s visa pursuant to s.137J of the Act is not a decision of an administrative character made, relevantly, under the Act or Migration Regulations 1994 (“the Regulations”).
Section 137J is as follows:
“(1)This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).
Note:Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.
(2)The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non-citizen complies with the notice; or
(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.”
It is common ground, for the purposes of the Court’s determination of its jurisdiction, that a notice was sent to the Applicant, being a non-citizen, pursuant to s.20 of the Education and Services for Overseas Students Act 2000 (Cth) in relation to a visa held him. Having received such a notice, s.137J(2) of the Act provides mandatory time limits for the Applicant to take certain steps. It is common ground that the Applicant failed to take steps in accordance with the time limits and did not apply for revocation of the cancellation in accordance with s.137K of the Act. In the circumstances, the Applicant’s visa was cancelled automatically pursuant to s.137J(2) of the Act.
The Respondent submitted that, in circumstances where the cancellation operates by force of the statute, namely s.137J of the Act, it cannot be “a decision of an administrative character” made under the Act and it is therefore not a decision reviewable by this Court.
Mr Jones, on behalf of the Applicant, submitted that s.474(3), provides an expansive definition of the meaning of “a decision” and is capable of including the cancellation of the Applicant’s visa.
Section 474(3) provides an expanded definition of a decision of an administrative character as follows:
“A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);[Emphasis added]
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;[Emphasis added]
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;[Emphasis added]
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.”
In particular, Mr Jones relied on ss.474(3)(b), 474(3)(g) and 474(3)(h) of the Act in support of his submissions. These are discussed below.
s.474(3)(b) of the Migration Act
Mr Jones submitted that s.474(3)(b) included cancellation of the Applicant’s visa. He submitted that there is no reason to read the reference to “cancelling” in 3(b) as excluding the statutory cancellation that occurs pursuant to s.137J of the Act. He submitted that, for the purposes of s.474, the cancellation pursuant to s.137J of the Act is “a decision of an administrative character” made under the Act.
Mr Jones also submitted that the certification referred to in condition 8202 of the Migration Regulations of the Applicant’s visa is capable of satisfying 3(b) as the “revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa)” and is therefore “a decision of an administrative character” made under the Act for the purposes of s.474 of the Act.
Condition 8202(3)(a) specifically states that a holder meets the requirements of the subclause if neither of the following applies:
“the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress…”
However, the terms of condition 8202 in relation to the certification that the Applicant has not achieved satisfactory course progress suggest that the certification by the education provider has already occurred pursuant to ss.19 and 20 of the Education Services for Overseas Students Act 2000 (Cth). Condition 8202(3)(a) is simply clarifying the condition to which the Applicant’s student visa is subject. In those circumstances, condition 8202 cannot be a decision of an administrative character.
Further, I accept the submission of Mr Markus, on behalf of the Respondent, that the certification by an education provider required to be provided in respect of the Applicant’s failure to receive satisfactory course progress pursuant to reg.8202(3)(a) of the Regulations is an act that is required to be done pursuant to s.19(2) of the Education Services for Overseas Students Act 2000 (Cth) and not the Migration Act 1958 (Cth).
Mr Markus referred the Court to Griffith University v Tang (2005) 221 CLR 99 at [89] where Gummow, Callinan and Heydon JJ held:
“The determination of whether a decision is “made… under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.”
The s.137J automatic mandatory cancellation was triggered upon the Applicant’s registered provider giving to the Secretary particulars of the breach by the Applicant of condition 8202 of his visa pursuant to s.19(2) of the Education Services for Overseas Students Act 2000 (Cth) and the notice sent to the Applicant pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth). In these circumstances, the decision to issue a s.20 notice was made pursuant to ss.19 and 20 of the Education Services for Overseas Students Act 2000 (Cth). Therefore it was not a decision made under the Migration Act, as is required by s.474(2) of the Act.
s.474(3)(g) and s.4743)(h) of the Migration Act
Mr Jones also referred to s.474(3)(g). He submitted that, in recording the Applicant's cancellation, the Department was doing an act and that act is capable of being a decision of an administrative character under the Act.
Mr Jones also referred to subsection 474(3)(h) in submitting that conduct preparatory to the making of a decision to record the statutory cancellation, is conduct preparatory to the making of a decision that an applicant could not return to Australia for a period of three years. Mr Jones submitted that, for that reason, it is a decision of an administrative character under the Act.
In relation to s.474(3)(g), Mr Markus, on behalf of the Respondent, submitted that, even if the cancellation was registered in some way, such registration did not occur pursuant to the Act or any of its regulations. The same reason applies to s.474(3)(h) of the Act.
In the circumstances, the s.137J cancellation was not a decision of an administrative character made under the Act and is therefore not a “migration decision” that this Court has jurisdiction to review.
Conclusion
The cancellation of the Applicant’s student visa pursuant to s.137J of the Act is not a Migration Review Tribunal reviewable decision and does not enliven the jurisdiction of the Court pursuant to s.474 of the Act.
In the circumstances, the proceeding before this Court commenced by way of application filed on 2 September 2008 is dismissed by reason of the Court’s lack of jurisdiction to consider the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 23 October 2008
2
1
4